brents case see bacon read upon this stat the case be that Robert burn be  seize of land in fee make a feoff thereof unto the use of himself and Dorothy  his wife for their life and if he do survive his say wife then to the use of  he the say Robert and such a woman as he shall after marry for the jointure of  such wife the remainder over to a stranger in fee and afterward with the  privity and assent of the feoff he in the remainder and the feoff join in a  feoff to diverse person note both feoff be after the statute of h and  afterward Robert burn the husband levy a fine to the same use and take a  second wife and die the second wife by the assent and commandment of the first  feoff after the five year pass after the fine enter to raise the use mention  in the first feoff limit to the second wife this case be argue by all the  justice of the court of commonplea and mounson justice conceive that the entry  of the wife be lawful and that without the assent or commandment of the feoff  a use may be limit to one who be in be or in posse and the second wife here be  in be when the use be limit and she be also in posse Leonard for by  possibility the first wife may die and also by possibility the feoff may take  to wife this woman a gift to one who be not in be or in posse be void a gift  to I S birthright son his if he have a son alive at the time of the gift he  shall take joint with his father but if not yet after his death he shall take  by way of remainder a use be nothing else but a trust and confidence and be  not any inheritance by the course of the commonlaw for no mention be make of  use in our ancient book when the commonlaw great flourish as in the time of e  and e and also use be not subject to the ground of law and although diverse  statute have be make for the avoid of diverse policy for the gain of land in  mortmain yet the maker of the say statute can not find out any such conveyance  to use see the statute of Leonard er p religious devotee e and see h three  mortmain there be a glance at use e b the word be en foy demist c and the  feoff sue livery and the first mention of use in our book be h Br Title to use  and the same case devise Fitzherbert in the time of e use be more frequent for  e diverse case concern use be there put c and afterward I r a new statute be  make for the benefit of beneficiary and use and afterward the statute of h for  the wardship of beneficiary and use and afterward the statute of h which make  a end of use these use at the first be of no value but afterward by  continuance common error fecit law so as they be take and esteem as  inheritance and they can be more fit resemble to any thing as to copyhold  which at beginning be but tenor at will and be not know at the commonlaw but  now they be in the same reputation in law as inheritance and they be not guide  by the rule of the commonlaw but by the intent of the party which appear in  this case at bar to be that she who shall be the second wife of Robert burn  the feoff shall have the land ut above and therefore this use shall rise and  the statute of h shall draw the possession after it manwood justice as to the  commencement of use it have be as long as mankind have be guide by reason and  although no mention be make of use in our ancient book yet that be no argument  that use have be but of late time use be not common therefore be not at all be  a non sequitur as long as will have be trust and confidence have be and also  as long as marriage have be see the writ of causan marriage speak out and see  the statute of Marlbridg cap there be mention of falsehood feoffamenta and  note by other word of the say statute there be a trust but it be a false trust  to deceive another and therefore such a mishap trust be not call a trust by  the say statute but a collusion and Mr Littleton say that beneficiary and use  shall be swear upon inquest which be not enact by any statute but practice and  put in ure by reason of commonlaw and I have see diverse ancient deed of use  and in ancient time you shall not find that any will purchase land to himself  alone but have two or three joint feoff with he and he who be first name in  the charter of feoff be beneficiary and use although that no use be declare  unto he upon the livery and so it be know by the occupation of the land and  the reason why no mention be make in our ancient book of use be because man be  then of better conscience than now they be so as the feoff do not give  occasion to their feoff to bring subpnas to compel they to perform the trust  repose in they as to that which have be say that use have take their beginning  after the statute of west for before the say statute if a man have make a  feoff in fee without declare any use it shall be to the use of the feoff  because there be a sufficient consideration betwixt Leonard the feoff and  feoff to raise the use I the seignory create by the law betwixt they but now  by the say statute such consideration be take away and then upon such feoff  without consideration or declaration of use it be to the use of the feoff  himself the same be no reason against they for although that a use imply be  not before the say statute of west yet a use express be and if before the say  statute the feoff have declare a use the same have be good as at this day a  gift in tail or a lease for life be make to another use yet notwithstanding  that the law do create a tenure upon the lease or gift yet the use express  shall be good and although use be of such antiquity yet they be not direct by  the rule of the commonlaw but by the will of the owner of the land for the use  be in his hand as clay be in the hand of the potter which he in who hand it be  may put into what form he please and notwithstanding that now the possession  be execute to the use yet the property and quality as abstract from the  possession shall not be drown in the possession and so for as much as use be  by permission of law guide at the will of the party so also shall be the  possession and so because that a use as abstract from the possession may have  be well limit to the wife which shall be notwithstanding that at the time of  such limitation such a one be not in be in the same manner it shall be now  when the possession be present execute to the use and so in this case the  second wife shall be capable of this use accord to the will and direction of  the owner if a feoff in fee be make to the use f b for life and if a before  such Leonard er p a day shall pay to the feoff then to the use of the say a  for life the same be a good use to begin upon the say condition and yet if it  have be limit in possession it have be otherwise and that a use may begin upon  a contingency see the case h a covenant be make by indenture betwixt a and b  that the son of a shall marry the daughter of b upon which b pay to a and the  say a do covenant that if the say marriage do not take effect that then the  feoff of the say a shall suffer the say b his executor and assign to have the  issue and profit of certain land until b his executor and assign shall be  content and satisfy of the sum aforesaid by the say a his executor or assign  there if the marriage do not take effect upon such contingent the use shall  rise to b and see h Br feoff to use a covenant with b that then b shall feoff  a of the manor of d then b and his heir shall be seize of the manor of d to  the use of the say a and his heir now if a feoff b ut above then c vide scales  and here in our case the second wife do not hold joint with her husband for  their estate do not begin together for the husband be in of his ancient estate  which he have during the first marriage notwithstanding the word of limitation  to the say husband and his second wife but she shall take by way of remainder  Harper justice use begin about e after which time there be such a general like  of they that they be anew use but they do not come into common practice before  the time of king Henry the six when the great contention fall out betwixt the  two great house of York and Lancaster at which time use be in great estimation  for the safety of inheritance afterward use by practice become mischievous and  prejudicial to the public justice of the realm and to many particular person  for some to fear implacitari convey their land secret to use so as be who have  right know not against who to bring his action and for that diverse statute  have be make to enable the subject to implead the pernor of the profit h h h  and as to the make of the statute of h the truth be that the king be displease  for the loss of hardship and other injury do to he for which cause he Leonard  complain to the judge of the defect of the law in that case who therefore show  unto the king the cause of those injury and loss to the king and far show to  the king that if the possession may be join to the use all will go well and  all the injury wrong and loss which come to the king by reason of such use  will and secret feoff will be avoid for which the king command his council to  frame a bill to that purpose and present it to the house of Commons in the  year of his reign but it be then reject and the king at that time will have be  content that the four part of the land only shall descend and from that time  the king stay far proceed in the say cause until h at which time it take  effect and their cure be to pen the statute so precise that nothing shall be  leave in the feoff but that the whole estate shall be execute by the statute  so as the say statute do utter take out all from the feoff whereas it have be  say that a use have be as long as any marriage have be and so conceive upon  the writ causan marriage speak out the same be not any reason for in that case  there be not any confidence or trust for if the marriage do not take effect  the woman shall have her writ de causan marriage speak out in conveyance we be  to respect two thing the form and the effect of it and in all case where the  form and the effect can stand together the form shall be reject and the effect  shall stand a lease for life be make to a feme sole she take husband the  lessor confirm to both of they the husband can take any estate present accord  to the word of the confirmation but because the will of the lessor be that a  estate shall accrue to the husband he shall have it as the law will by way of  remainder so land be give to a abbot and a secular man the form of the word  purport a joint estate but that by law can be and therefore they shall take as  the law will rather than not at all in our case here the limitation of the use  can be pursue precise accord to the word which be videlicet if the husband  overlive his say first wife then to the use of the say husband and his wife  which shall be which in word be a joint estate and therefore the word shall be  construe after the death of the first wife unto the use of the husband until  be marry and afterward to the use of he and his second wife in which case they  shall take joint Leonard er p dyer chief justice as to the beginning of use be  conceive that the same be immediate after the statute of mortmain at which  time all their shift then in practice be find out which see the statute of  mortmain e stat de religious devotee for which cause they be after drive to  find out other shift not provide for by the statute which be espy by the make  of the statute of r cap and in that statute these word behoof and use be use  which be the first place those word have be use in our law and yet long time  before that statute use have be in practice as appear in the exchequer e the  which in the time of queen mary when the say record be show in the exchequer  to the justice the effect of which record be that Walter de Chirton who be  customer of the king become indebt to the king in the sum of l and with that  the king money have purchase in the name of his friend to defraud the king  many land and take the profit of they those land so purchase be extend to the  use and for the king in payment of his debt as well as if Walter de Chirton  himself have be seize of they and that by the advice of the chancellor and the  chief justice now use by tract of time have grow in credit so as beneficiary  and use have be swear in inquest and by the law they may justify the maintain  of their feoff when they have be implead which they can not have do if they  have not more interest in the land than stranger Leonard and they use have be  in such reckon and account since that a use have obtain the name of a  inheritance and be now repute among the estate of land in our law and  therefore we say in speech and in pen of statute estate in possession and  estate in use and a use can be limit to parishioner no more than the land it  self so as there be a great affinity betwixt the word land and use it be to be  grant that the statute of h do divest all out of the feoff yet it do not  divest it before that the use be vest in beneficiary and use for the word of  the statute be that the possession shall be execute in such manner quality and  degree as be the use therefore the vest of the use ought to precede the  execution of the possession to it and he be of opinion that this future use in  the principal case limit to the second wife do remain in the feoff at the  first but that they have destroy it by their feoff for the second wife at the  time of the feoff be not know and therefore it shall now accrue and he be also  of opinion that this limitation to the second wife be void at the beginning  for the second wife be not a person able to take when the estate and use limit  to the first wife be determine and therefore she shall not take at all and if  such a estate have be limit in possession it shall not have vest no more than  now mounson justice when the feoff and the feoff join in a fine of that land  within which the use in future be wrap be conceive that the use be in abeyance  and consideration of the law can not be touch by the fine it be to be confess  that a use may be discontinue see h a feoff make to the use of a for life and  after to the use of b in tail c a make a feoff in fee and die the same be a  discontinuance of the other use and see h and in our case the use may arise  without any entry of the feoff for the use be not discontinue but the feoff be  bar by the fine and he be also of opinion that this use may take effect  without any entry and take effect accord to the limitation manwood this estate  which be limit in use to the second wife because it can vest in her because  not know the feoff be yet content with it and this use be to grow out of their  estate at the seasonable time then when they join in a feoff their estate  which be the root of the conveyance and the use which be the branch spring not  till she die and therefore if the estate of the feoff which be the root of the  use be destroy by alienation of the land before the use have their be as in  our case it be because that then the second be not know no use can afterward  rise for by the feoff they be destroy and also every possibility of they but  if the use have be in be so as the person to who they be limit be know then  the statute shall execute the possession to such use and as to that which have  be object by my brother mounson that the law shall keep and preserve the use  and that notwithstanding any thing do by the feoff at its due time it shall  rise that can be for the statute of h do not speak of such use as this in our  case but of such use only of which one may say such a use be limit to such a  Leonard er p person and such to such a person c and such use be only execute b  the statute it may be demand what estate the feoff have in the land until such  use be execute it may be answer a feesimple determinable as the lord have when  he enter upon his villain donee in tail and I conceive that this use be not in  custodian law because de least non curate law and the use be such a thing of  which the law take no knowledge and in case of a estate in possession such a  use in abeyance shall be bind as a lease for life unto a the remainder to the  right heir of b Leonard a suffer a common recovery in the life of b who  afterward die and afterward a die the heir of b be bind for he have not right  at the time of the recovery this fine levy by the manner shall not destroy the  use limit to the second wife for as to the feoff they have nothing to do with  the land to transfer any estate against the former limitation for the statute  leaves nothing in the feoff but vest all in cesti and use and that which can  vest in he to who it be limit shall return to the feoff as if I make a feoff  in fee to the use of my self for life and after to the use of my second wife  all the fee be now in I and when I take a second wife then the feoff shall be  seize to the use of such wife in remainder for her life but in the case at bar  the feoff at the time when this second wife be in be have not any thing in the  land for they have depart with all their interest before by their feoff and  fine note that by the first feoff the use be limit to d the first wife of the  feoff for term of her life the remainder in tail to a burn the remainder in  fee to one Broughton and all these use be execute by the statute but these  person be not party to the livery but only the feoff which have not any thing  then when they make their letter of attorney to make livery of seize not be  seize of the land the attorney only be a seize and so nothing pass from the  feoff if any right have be in they and for another reason nothing pass by this  last conveyance out of the feoff for the party to the latter conveyance have  notice of the use and so it appear by the second indenture the which make  mention of the first use c dyer here in our case the founder of these use I  the feoff and the feoff have a intent to overthrow these use for at the  commonlaw the feoff may do it of themselves as if the feoff have make a feoff  in fee in consideration of money to other who have not notice of the use now  the use be go and the second feoff in such case be seize to their own use I  well know that by this feoff all be divest out of the feoff which may vest in  the person to who the use be limit but here this use which be limit to the  second wife can not upon the limitation of it vest in any person and therefore  it shall remain in the feoff who be put in trust with it and therefore have  interest in the land until all the trust be perform and therefore the second  wife be advice by her council to make her entry in name of the survive feoff  and the interest which the feoff have in the interim until the execution of  all the use be a feesimple determinable for the whole interest be not divest  or drive out of the feoff until the whole trust be accomplish I until all the  use limit upon the feoff be execute and have their full perfection and whereas  it have be allege on the other side that upon the second feoff nothing pass  out of the feoff for which it shall not be say in law their livery but that  the attorney shall be say the sole seize as to that I conceive that whatsoever  be lose in the feoff pass by that livery if be in reversion upon a estate for  life make a charter of a feoff and a letter of attorney to make livery of  seize without word ad expellend all men c if livery be make by force thereof  the feesimple shall pass and he cite a case which be argue before all the  justice of England report by himself and man diverse lease for year be make of  the demean of a abbey after which the reversion be grant to the countess of  Richmond for life after which king Edward grant the reversion in fee to the  earl of Warwick who make a feoff of Leonard all to certain person to the use  of his old son and his wife for her jointure with a letter of attorney to make  livery and seize the attorney make livery accord and by that feoff and livery  it be adjudge that the feesimple do pass so in our case upon this second feoff  a seize be do to d the first wife and yet the right of the feoff do Leonard er  p pass thereby and although it shall not be take in law their livery yet it  shall be adjudge their confirmation because they have join in the deed and  that shall bind their right to establish the same in the new feoff as if the  disseizee join in a feoff by deed with the heir of the seize and as to that  which have be object that because at the time of the feoff the feoff have not  any thing c and therefore nothing shall pass and they have liken to the case  where the father be seize and the son and heir do release to the seize the  same shall not bind the heir after the death of his father the same be not  like our case for there be a great difference betwixt a release and a feoff  for if the son seize the father and make a feoff in fee in the life of his  father notwithstanding that he have not any right at the time of the feoff yet  he be bind dyer b   I Rep Shelleys case trin Elizabeth in the king bench rot