attorneygeneral v wheat Eden er report date burgess v wheat attorneygeneral v  wheat see tailor v Haygarth sim viscount down v morris hare follow Davall v  new river company de g Sm distinguish Onslow v Wallis Mac g see beal v Symonds  Beav distinguish barrow v Wadkin Beav see Brookman v smith lr ex in re Gosman  Ch d in re van Hagan sperling v Rochfort Ch d Gallard v Hawkins Ch d the Lord  keeper Lord Mansfield c I the master of the roll a be seize in fee ex part of  a father convey to trustee in trust for herself her heir and assign to the  intent that she shall appoint c and for no other use intent or purpose  whatsoever a die without appointment and without heir ex part of a father hold  per Lord keeper and the master of the roll saint that the maternal heir be not  entitle dly that there be a terretenant the crown claim by escheat have not a  title by subpoena to compel a conveyance from the trustee the trust be  absolute determine no opinion be give upon the right of the trustee per Lord  Mansfield c I saint that the heir ex part of a mother be not entitle dly that  from the analogy between trust and legal estate the crown be entitle by  escheat but that if the conveyance have bar the crown of its right as between  the maternal heir and the trustee the former be entitle that that and that  December that January SC black Rep Amb ms Cox ms hill ms Laurence Bathurst be  seize in fee of the manor and advowson of Lechlade in the county of Gloucester  by indenture make the that of December bargain and sell certain part of the  premise call Rudmore and AskeMill c to trustee for the term of one thousand  year upon trust to assign the same in such manner as he shall appoint and till  such appointment in trust for himself his executor administrator and assign  Eden by indenture bear date the that of march he mortgage the say premise for  five hundred year for secure the payment of pound Eden er p soon after this he  die leave issue sir Edward Bathurst his only son and heir and two daughter Ann  and mary and the premise descend to sir Edward subject to the above mortgage  as to part by his will he make his widow Susannah his sole executrix who  thereby become entitle to the say term of one thousand year by indenture bear  date the that of February in order to secure the further sum of pound she  assign over the residue of the thousand year term these several term afterward  become vest in John chandler sir Edward die a infant and without issue in  consequence of which the freehold and inheritance subject to the say term  descend to Ann and mary his sister and coheiress Ann intermarry with John  greening and mary with George Coxeter and thereupon the husband and wife  become entitle to this estate in undivided moieties John greening and his wife  make a settlement of their moiety August and covenant to levy a fine to the  use of such person as they shall joint appoint by any deed or will duly attest  and for want of such appointment to themselves for their life and the life of  the survivor remainder to the heir of their body remainder to the right heir  of the survivor in Michaelmas term George Coxeter and his wife file a bill for  a partition of the estate and the usual direction be give on the decree and  also that the encumbrance shall be discharge in equal moieties afterward a  allotment be make by commission and greening and his wife be dissatisfy with  their allotment apply to the court for a new commission but the other sister  agree to give up her allotment and to Eden make a exchange with her sister the  allotment be exchange but no conveyance be execute in march Ann greening die  without have join her husband in any appointment inconsequence of which the  husband by the settlement of become entitle to her moiety in December he die  without issue and the estate descend to Elizabeth greening his niece and heir  ex part of a father be the only child of Thomas greening his old brother  Elizabeth greening afterward marry Nicholas Harding and previous to the  marriage a settlement be make the that and that of August of this moiety to  the use of the husband for life then of the wife for life remainder to trustee  to preserve contingent remainder remainder to trustee on a trust for  ninetyyears which never arise remainder to the first and other son in tail  male successive remainder to trustee for five hundred year on trust that never  arise remainder to the right heir of Elizabeth greening in Michaelmas Harding  and his wife bring a bill to perfect the partition and to divide other land  omit in the former partition a decree be accord make for mutual conveyance and  a commission issue to divide the rest of the premise and in January conveyance  be mutual execute George Coxeter die leave mary his wife survive he and there  be a large sum then due to chandler she by deed and fine convey a moiety of  the say mill land and premise to trustee and their heir in trust for chandler  and his heir and Nicholas Harding and Elizabeth his wife agree to convey the  other moiety to the same trustee in trust for John chandler and his heir and  the say John chandler and his trustee be in consideration of pound to reconvey  to he the say Nicholas Harding and his heir the say mill c Eden by indenture  bear date the that and that of February Nicholas Harding and Elizabeth his  wife convey their moiety of the say mortgage premise to the trustee and their  heir in trust for the defendant James chandler the son of John chandler then  decease and his heir who with the personal representative of John chandler  covenant that they will at any time thereafter at the request and charge of  the say Nicholas Harding and Elizabeth his wife assign and convey the say  several term and the inheritance of the say mill c to the say Nicholas Harding  and Elizabeth his wife or the survivor of they and the heir and assign of such  survivor No assignment be ever make of the say term nor do the trustee make  any conveyance of the inheritance by indenture bear date the that of January  there be no issue of the marriage make between Nicholas Harding and Elizabeth  his wife of the one part and sir Francis page and Robert simmons of the other  part recite the settlement of the that of August and covenant to levy a fine  to assure the premise to Eden er p the use of the daughter of the marriage as  tenant in common and in default of such issue to page and simmons and their  heir in trust for the say Elizabeth Harding her heir and assign to the intent  that she may at any time during her life without her husband concurrence  dispose of the reversion of the moiety aforesaid to such use c as she shall by  her will or other write appoint and for no other use intent or purpose  whatsoever a fine be accord levy there be no daughter of the marriage mrs  Harding survive her husband without make any appointment and without heir on  the part of the father from whence the land descend but burgess the plaintiff  be her heir on the part of the mother Eden on the death of mrs Harding sir  Francis page the survive trustee get into possession and in July the bill in  the first cause be file against he by burgess and on sir Francis death it be  revive against his personal and real representative it pray that if there be  any legal interest in sir Francis page he may be compel to convey to plaintiff  deliver up possession and account for the rend and profit the answer insist  that he be lawful seize of the inheritance of the estate and entitle to the  rend and profit on the that of July the cause come on to be hear before Lord  Hardwicke c who on the plead be open object to the attorneygeneral not be a  party both party be desirous that there shall be no question about the escheat  and the attorneygeneral do not insist upon it but the Lord chancellor ask he  if he waive any right the crown may have and will consent that it may be so  enter the cause stand over and the attorneygeneral be make a party it come on  again before Lord Hardwicke on the that of February a case be direct to be  make for the opinion of the court of king bench with the three follow question  the argument in the king b which be very elaborate be in the Hargrave ms No p  first whether by virtue of the indenture of the that of January and the fine  therein mention any and what estate in law do pass to page and simmons or  either of they second in case no estate pass to page and simmons or either of  they by virtue of that indenture and fine whether the inheritance of the  premise or any part thereof do on the death of Elizabeth Harding descend to  burgess as heir at law on the part of the mother three in case the say deed of  the that of January have not be execute or the fine levy but the same be  entire out of the case whether the inheritance Eden of the say premise or any  part thereof will have descend to the say Richard burgess as heir at law on  the part of the mother and the consideration of cost and further direction be  reserve till the opinion of the judge shall be certify upon the that of may  the judge of the king bench lee c I be dead certify their opinion as follow to  the first question upon hear counsel on both side and consideration of the  case we be of opinion that by virtue of the indenture of the that of January  and the fine therein mention the reversion in feesimple after the death of  Nicholas Harding and Elizabeth his wife without issue male do pass to the say  sir Francis page and Robert simmons to the second question in case no estate  have pass to the say sir Francis page and Robert simmons by virtue of the say  indenture and fine we be of opinion that the inheritance of the premise or any  part thereof will not on the death of the say Elizabeth Harding have descend  to Richard burgess as heir at law on the part of the mother to the three  question in case the deed of the that of January have not be execute or the  fine levy but the same be entire out of the question we be of opinion that  upon the death of Elizabeth Harding the inheritance of the premise or any part  thereof will not have descend to burgess as heir at law on the part of the  mother but we be of opinion that if the mill c have be convey to Nicholas  Harding and Elizabeth hiswife and the survivor of they and the heir of such  survivor accord to the covenant in the release of the that of February they  will Eden have descend to the say burgess as heir at law on the part of the  another Eden er p and we do certify that the late Lord chief justice concur  with we in opinion m wright t denison m Forster sergeant inn may after this  certificate be return the attorneygeneral on behalf of the crown file a  information insist that sir f page by the deed of have no beneficial interest  in the estate in his own right but be a mere trustee for the benefit of mrs  Harding or her appointee or heir and in default of such appointment or heir  that he be a trustee for the benefit of his majesty who stand in the place of  such heir and that the premise be escheat and that the representative of sir f  page ought to convey to the use of his majesty to this there be a answer put  in and issue join and now the first cause come on again for further direction  and the information come on to be hear at the same time the attorneygeneral  the solicitorgeneral Mr jewel Mr Hoskins and Mr Cox for the crown note there  be a remarkable full note of the argument at the bar in the Lord keeper note  book and a less exact report in amblers ms as the great question of the  escheat be however so full enter into in the very elaborate discussion which  the case undergo from the bench they be here omit Mr serjeant Hewitt and Mr  caldecot for the heir ex part of a mother contend that the case be different  from that which be argue in the court of king bench by reason of the trust  that mrs Harding be to be consider as have take a new estate by purchase from  the trustee dyer a Carth that it will be so Eden if the trustee have actual  convey the legal estate to her as it be a rule in equity that what ought to be  do be look upon as do note this be what Lord Thurlow call the cant expression  which he think shall have be abandon bro c c vide particular Pulteney v Lord  Darlington and Mr hargrave argument there Edward v lady Warwick p W Kettleby v  atwood vern and the note to those case also walker v den Ves jun Lord  Mansfield c I I have always understand it as settle and fix that the accession  of the legal estate to the equitable do not make any alteration in the estate  nor will a conveyance thereof from the trustee to the beneficiary and trust be  a revocation of his will parson v freeman Amb atk will sparrow v Hardcastle  Amb atk and see Watts v fullarton cit Doug find on a case in roll Abr pl Mr  will Mr Perrot Mr Wilbraham and Mr Aston for the defendant wheat Lord  Mansfield c I at the sit of the court on the three day none of the counsel for  the defendant have then speak except will say that there may be a difference  between the come in near fault and in consequence of the original right of  ownership take it that there can not be a forfeiture of a trust under the stat  Henry it be a question therefore whether the heir of a felon may not have come  into equity against the trustee for a reconveyancethere be no determination in  the age of use that the heir shall not have it it be make a query in Edward  bro title feoff to use Eden second suppose brook query be right and equity  will not execute the trust in favour of the heir of a person attaint whether  the right will not have result to the creator of the trust No notice be  however take of these observation in the argument owe probable to the counsel  not have have time to consider they Amb ms the court be divide in opinion take  time to consider till this day the master of the roll the matter in  questionbetween the party come before the court in two several cause one be  set down for further direction in consequence of a reservation in a decree of  the late Lord chancellor refer a case and several question to the judge of the  court of king bench for their opinion they have certify their opinion to the  Lord keeper and he seem incline to confirm that certificate and that cause be  now set down for further direction note Mr Christian in his note to blackstone  commentary have by a mistake observe Vol two p that the master of the roll  coincide with Lord Mansfield and that the Lord keeper determine contrary to  both their learned opinion they come before the court in another cause on a  information file by the attorneygeneral on behalf of the crown the attorney be  a defendant in the original cause so that the information here be in the  nature of a cross bill Eden er p the case on which the matter arise be this  here his honour state the case very minutely this be the state of the case of  the cause and of the several claim of the party Eden I shall now proceed to  consider these claim in order first the claim of the plaintiff burgess as heir  at law ex part of a mother in default of a heir ex part of a father this claim  I see no ground for consider the certificate of the judge which Lord keeper I  propose to confirm the question state for b r have leave the point open for  the maternal heir if there be any ground of right and their answer have  effectual preclude he in case he have no equity and what ground of equity have  he what have be insist on be mere matter of law and will open the question  again which be conclude for by the deed of it be hold he take nothing that the  trustee thereby take the legal estate and no new use be create by mrs Harding  the only thing suggest by that side which have the colour of equity be that  mrs Harding may have pray and compel a conveyance from the trustee while she  live by which she will have be seize to new use which in default of heir ex  part paternal will have go to the heir on the part of the mother and that it  be a rule of equity that what ought to be do or be agree to be do be look upon  as do have such a conveyance be execute it will have be like a feoff and  refeoffment and have make her seize of a new use but as it be not do the  consequence insist on will not follow for nothing be look upon in equity as do  but what ought to have be do not what may have be do nor will equity consider  thing in that light in favour of every body b light only of those who have a  right to pray it may be do the rule be that it shall be either between the  party who stipulate what be to be do or those who stand in their place here  mrs Harding never pray Eden a conveyance and one can tell whether she ever  will and the maternal heir be not to be consider as a privy in blood but a  mere stranger this very cause warrant the distinction here take I e with  regard to the mill c mention in the opinion on the last question it stand thus  Nicholas Harding after have agree to release to chandler the equity of  redemption of a moiety of the mortgage premise agree to purchase of chandler  the mill c and make chandler stipulate to convey these premise to he and his  heir or such person as he shall direct the equity of redemption be release and  then chandler stipulate to convey to Harding and his wife and the survivor of  they and the heir of the survivor the consequence be that mrs Harding take  this estate not as the old use but by purchase under the appointment of her  husband which enlarge the course of descent beyond that of the old use and  since what be covenant to be do be consider as do the mill go in a course of  descent in default of paternal heir to the heir ex part of a mother in the  deed of there be nothing like such a covenant nor any thing which show she  intend to enlarge the course of descent wherefore under these circumstance as  the opinion of the judge be propose to be confirm I think there be no ground  for the claim of the maternal heir second the next claim be on behalf of the  crown to which there be two preliminary objection first that the claim of the  crown be premature there be no office find or inquisition take to find a title  in the crown there be case where such previous step be necessary where the  crown want to make a seizure and to take possession of the freehold and  inheritance there its title must appear by matter of record whether judicial  Eden or ministerial or whether the conveyance itself be matter of record or  matter of fact find on record this be the constant barrier between the crown  and the subject and the effect of it be to put the subject on interpleading  with the crown by traverse its title or set up a better in a to point out de  law or petition of right the judgement if the subject succeed be to move away  manus but he lose the intermediate profit which be account for in the  exchequer   baxter case finch it be the prerogative of the crown not to  interplead with the subject before it take possession but it be say may not  the crown where it have a legal title in lenity to the subject waive that  prerogative and interplead with the subject as one subject may with another it  be clear the crown may the office be circuitous expensive and attend with the  loss of mesne profit Eden er p to the subject the crown may refuse to alter  the possession till the right be determine and only proceed by information of  intrusion even where it have a legal right on a office which may warrant a  seizure but the present case be strong for if a find for the crown have be  under office and inquisition it must have be fruitless ineffectual and felon  de see it must have find all the matter aforesaid mrs Hardings seize  conveyance to and legal title in page and a inquisition will not entitle the  crown to seize where there be a legal title in possession in another the crown  may have recourse to equity if the crown have any equity it be say there may  be a find for the crown on a equitable title holland case alein but there it  be answer that be a copyhold and the crown can not hold of a mesne lord it be  true that in fact a office be find but a to move away manus be award not on  the merit of the case or the exception there take to the venire but a  objection be take by the court Eden itself to the commission that there be no  direction for seize this be a objection take probable on a foresight that as  to the merit of the case they can not succeed Lord hale be of counsel for the  crown in holland case and he in Sandss case hard show that the only remedy for  the crown to pursue be by bill in equity he say the king can not have enter in  point of law and a bill of intrusion do not lie and the only proper remedy be  in equity it be proper say that the estate be copyhold may be a reason why the  equitable remedy be not pursue this case be rather a authority to justify the  remedy now pursue by the crown than one to find a objection on therefore the  objection for want of office be groundless and a bill or information be the  only proper remedy objection second this be not the proper court for the crown  to institute a suit in but it shall have be a court of revenue this be a  strange objection to be make in any case and as the circumstance be it be  still stranger to be make in this because though the crown may insist on be  sue in its own proper court yet it may sue in what court it please finch it  may bring a quare hinder or writ of escheat in b r it may have a quare hinder  in b r though there have be a recovery in c b but it be yet more extraordinary  in this case as the crown may have make the objection and yet waive it and  file its information in the same court where the cause be institute otherwise  all the proceed in the original cause have be fruitless and the crown may have  then go into the exchequer in return for which indulgence this objection be  now make gut if any one else can have make the objection burgess can for he  bring the crown here first and so be estopped in sir John warden case before  Lord Talbot there Eden be a objection for want of jurisdiction here and that  the matter be proper triable at law but it be disclose that he have file a  cross bill the court do not enter into that objection but say the defendant  have give a jurisdiction this bring I to consider the merit of the claim of  the crown vide roupe v Atkinson bunb   the great question be whether the crown  have a right to a conveyance of the legal estate from mrs Hardings trustee as  a equitable escheat by the death of mrs Harding without heir on the part of  the father from who the estate descend to her I shall consider the right of  escheat in three light saint in what situation it stand in respect to  conveyance at commonlaw before the invention of use dly in what situation it  stand in respect to conveyance to use before the statute of use be make dly  how it stand since the statute and now with regard to trust the result and  application of the whole will decide the question how far the crown be or be  not in equity entitle to a conveyance from a trustee or those in his place in  treat these point one may expatiate into a curious field of learning from the  writer on allodial and feodal property but as the doctrine of tenor be never  whole adopt into our constitution the different period of our law can be  account for from a strict notion of feud so that it will be perplex the case  to go into the general learning I shall therefore have only recourse to it  occasional so far as I find by our own writer that it be now adopt into our  constitution in other respect that law be of no more use than the Roman law it  serve for ornament and illustration first consider how escheat stand at  commonlaw before use be invent Eden a escheat be in its nature feodal a feud  be the right which the tenant have to enjoy land c render to the lord the duty  and service reserve to he by contract on the other hand a right remain in the  lord after a grant make Eden er p call a seignory consist of service to be  perform by the tenant and a right to have the land return on the expiration of  the grant as a reversion a right afterward call a escheat and as the grant be  more or less extensive the reversion be more or less remote for the feud be  sometime temporary sometime hereditary and a temporary one end on the grantee  death sir Henry Spelman take notice only of hereditary feud nor do our own law  and though it may seem a paradox to modern ear a feoff to a and his heir do  not pass a feesimple original in the sense we now use it but only a estate to  be enjoy as a nerun kindness without the power of alienation in prejudice of  the heir or the lord and the heir take it successive as a usufructuary  interest and in default of heir the land escheat or revert strict speak if  there be a heir and by legal impediment he can not take the land escheat  Bracton foe a Edward pl bro escheat Pt in short the reverter take place when  the grant expire natural and the heir fail in length of time in case of  escheat it be cut off by civil law impediment and be a accidental  determination of it the heir take by purchase and independent of the ancestor  he can not alien nor can the lord alien the seignory without the consent of  the tenant afterward the right of the lord gradual undergo several variation  which tend to diminish the interest of the heir and the lord and to increase  that of tenant so be Spelman c l the first variation be when the power of  alienation with leave of the lord be introduce then the heir no Eden long take  independent of the ancestor but what the ancestor please to leave he and by  descent from he in bracton time a doubt arise how the heir take some think he  be coenfeoffed with the ancestor and that he take by purchase from the donor  other hold which opinion prevail in bracton time that he take by descent this  account for what be say in Inst that a formedon in descender do not lie at  commonlaw of a estate tail because the issue take by descent but though he lie  down the law he do not give the reason therefore if the ancestor alien the  heir be defeat and the effect to the lord be only in the chance of the escheat  from the change of the tenant videlicet from grantee to alienee the next step  in favour of the tenant be to alien without licence for which purpose a large  grant be necessary I e to he his heir and assign this give the stand right of  alienation Bracton c fol so the tenant can alien and change the escheat and  the lord be oblige to warrant such alienees the only restriction on the tenant  be that he can not prejudice the lord by lessen the service reserve Bracton  fol b the next privilege to the tenant be that he may alien where the grant be  only to he and his heir Inst give the reason that such tenant be not to be  restrain from alienation it be against the nature and purity of a estate feoff  at commonlaw this be in effect only a right of alienation sans notice the next  stop affect the right of escheat which be not only to alien but to charge and  encumber the feud and the lord be to take it subject to such encumbrance  wright ten spelm bract this power of incurnbering be more prejudicial to the  right of escheat than the power of alienation be that Eden only change the  chance but by the encumbrance more or less the escheat be in proportion defeat  however it be still only subject to the act of the tenant the lord right be  still further affect by act of parliament and judicial determination which  subject the land not only to the act of the tenant but of the law on the  tenant account stat Westminster subject the moiety of the tenant land to  elegit statute merchant and staple e and e affect the whole feud for the  tenant debt even in the hand of the heir bro dower pl it become also subject  to the dower of the wife the book have omit the title of original reverter but  the escheat be say to be a compensation to the lord for the loss of service  because homage et slavery to send away so be f n b title escheat a the right  of reverter be quite omit out of the definition this before the invention of  use second how escheat stand after the introduction of use when the tenant may  sever the legal from the beneficial interest then the two interest be consider  as two distinct sort of property in different person the beneficiary and use  be no long tenant at law nor be the land liable to be subject to his  encumbrance as dower execution c chudleighs case but though the land be not  liable at law on account Eden er p of the beneficiary and use yet it be still  liable on account of the feoff to use bro feoff to use pl Poph this defeat the  creditor of beneficiary and use and be find inconvenient person have action  against he be defeat tenancy by dower and by courtesy be go and therefore  several statute in favour of creditor be make to restore all the claim against  beneficiary and use Bacon vol two of use thus h that two c and other be make  to restore the fruit of tenure to the lord against beneficiary Eden and use as  wardship heriot relief yet none be make to restore the loss of escheat which  as Spelman observe be not only the fruit of tenure but the very tree itself  thus it be till the make of the statute of use that statute unite they but  they still continue under the name of trust as a divide interest it be do by  limit the use to the feoff who be declare a trustee there be one use which the  statute do execute and another which it do not so trust succeed use aliusque  et idem about to be born into being and as a use can not be on a use it take  the name of a trust and as the law will not meddle with a use on a use equity  therefore do this bring I to consider the nature of this use with respect to a  escheat it have be contend on the part of the crown that equity be to be  consider as a thing of yesterday that trust be not come to any maturity nor  govern by any settle principle even in that it be leave to the judge inequity  whether to observe the rule of law with respect to use or to depart from they  that as to tenancy by courtesy and tenancy in dower equity differ from itself  all this be to be consider and part of it be a melancholy representation of a  court of equity as to its pedigree one may with pleasure observe that equity  be as old as Bracton who foe b distinguish how it will be secundum quitatem  and how secundum stiffness law when once it exist it must have its rule and  principle like other artificial system it be not a perfect system new case  beget new but not contradictory rule to the old one when once a trust become  the object of equity the same govern principle be observe in trust as before  in use the analogy as to the outline of each be apparent Bacon law of use use  take place from a reasonable cause to give man Eden power to dispose of their  own so do trust from the convenience of family this be the only motive that  make mankind endure use and trust Bacon a conveyance with consideration  without notice bar a trust so do it a use roll Rep but it be not bar in  trustee hand or in the hand of purchaser with notice or without consideration  as to the construction of trust the intention of a person create a trust chief  govern where not against good policy in its construction hard Bacon so it be  as to use trust and use not only agree in these particular but in the  different construction of deed in law and equity at law the legal operation  control the intent but in equity the intent control the legal operation of the  deed it be not sufficient to single out a few instance and exception which no  rule be without and which beside in this case I think be sufficient account  for otherwise but it be say the rule of use be narrow and inconvenient and  that equity adapt to trust not so much the rule of use as the consequence of  law that trust be alienable will descend ab having made no will and be liable  to and capable of the same limitation and succession be valid and void on the  same principle except the case of dower which prove the rule and that in  tenancy by courtesy equity agree with the system of law these be objection all  find on one principle the analogy must be confine both in use and trust to  those case where they be consider as distinct from the legal estate in other  case both use and trust fall within the rule of law this be reasonable because  there be no necessity of depart from they it be say they be both alienable by  like conveyance c but this do not prove equity in construction of trust to go  by a different rule from the law in construction of use for Eden use go by  this rule and equity will not vary from the law unnecessary Anderson say in  chudleighs case Bacon there may be a possession fatris of a use note this be a  mistake the passage be as follow Anderson I in the argument of the same case  do true and profound contest the vulgar opinion collect from e that there may  be possession brother of a use for he say that it be no more but that the  chancellor will consult with the rule of law where the intention of the party  do not especial appear Bac on use h vide Mr row Eden er p note on this point  it be no more than say that the chancellor hold consultation with the rule of  law where there be no reason to go against they the instance prove the  agreement between use and trust they agree with the legal system and the case  of tenant by the courtesy be a exception to this rule equity do allow a tenant  by the courtesy of a trust contrary to the rule of law Perkins and but this  instance of deviation be not to be argue upon to consequence it seem to have  prevail unaccountable and against the opinion of the judge themselves it seem  to have take its rise in Lord some time Prec can lady Radnor v Rotheram in  Snell v clay vern tenancy per courtesy be allow of a trust though there be a  outstanding term brown v Gibbs Prec can in bank v Sutton p W sir Joseph Jekyll  make a observation upon Lord summer avoid the authority of his own  determination and that he intimate a disapprobation of his own distinction  between a use and a trust Sweetapple v bindon vern be the next take for grant  that there be no tenant per courtesy or in dower of a trust it be true Eden  Lord keeper wright hold otherwise and allow a tenancy per courtesy of money to  be lie out in land I think this precedent do not seem fit to be follow because  the will on which that determination be admit a doubt whether the wife be  tenant in tail it be a executory case to be lie out in land and settle it be  mention in bring Ch this have a correlate to the time of her die the brother  and sister then live in bank v Sutton sir Joseph Jekyll do not approve any  where of Sweetapple v bindon and though he hold the wife dowable there of a  equitable estate yet he do it on particular reason because it be a trust  create by the ancestor of the husband and not the husband himself this be too  precarious reason to go upon the husband find the estate subject to the trust  create by the ancestor who can say that be intend the wife not to be dowable  who can say that if he have not find the estate under a trust he may not have  create such a trust the next endeavour be to bring the husband down on a par  with the wife but this be deny in chaplin v chaplin p W attorneygeneral v  Scott for and in Godwin v Winsmore atk by Lord Hardwicke Casborne v scarf atk  husband deny to be tenant per courtesy by sir Joseph Jekyll but that be  reverse it be I own almost a reproach to a court of equity but shall not  equity therefore follow the rule of use shall it make another rule deviate  from that I think there ought to be a conformity between trust and use and  that this case of tenancy per courtesy which be different ought to be the only  one and that there the bind be fix hard attorneygeneral v Eden Scott Lord  Coventry case equity in determine trust have observe the rule of law touch use  unless there be a reason to the contrary and the instance of tenant per  courtesy do not furnish any reason note Lord Rosslyn call it the anomalous  case and not the rule that the wife shall not have dower Dixon v Saville bro c  c vide also Forder v wade bro c c have consider the right of escheat and how  affect at commonlaw by conveyance to use and since upon trust I shall now  apply the rule and principle collect from the forgo consideration to the case  in question and see what conclusion arise from thence and how far the  conclusion that I shall draw be warrant by law and reason and under this head  I will consider what argument have be urge against it suppose mrs Harding  feoff at commonlaw of a trust estate have alien to sir f page she will have  substitute he as a alienee instead of herself for service and escheat if a  escheat have fall which depend not upon her delinquency will the lord have be  entitle this be clear suppose mrs Harding attaint of treason or felony the  lord will not have be entitle but the crown say she have reserve to herself  the equitable interest it will be necessary then to consider how the crown  will be affect by a use suppose it have be a feoff to use make to sir f page  will the lord condition with respect to a escheat have be better by such a  conveyance at commonlaw I think it will have be worse he will not have be  entitle to a escheat on mrs Hardings felony Edward pl foe b be a authority in  point against the lord claim and question who shall have it if the lord be at  lax entitle to escheat on death without Eden heir or attainder of feoff to use  and not on the death c of beneficiary Eden er p and use it strengthen the  authority of the case that if it have be determine otherwise in favour of the  lord it will have give he a double chance for his escheat brook pl agree the  lord shall not have it nor the heir by reason of corruption of blood and that  feoff shall retain it to his own use and though this be introduce by a  therefore to see in a modest manner yet many of his opinion be so introduce  and have general be think of very great authority Lord Bacon confirm it for he  say the lord shall not have it because he have a tenant by title and then  differ from brook who give it to the feoff for his own use and say the feoff  shall retain it either in blessed dead use or the will of the feoff this seem  to arise from a old notion that a man estate shall be dispose of in blessed  dead use when there be no owner in like manner as the ordinary use to take a  intestate effect pro salute anim but brook notion be not so strange even by  Lord Bacon own account from these authority it be clear that if mrs Harding  have be beneficiary and use and attaint the lord will not have be entitle to  the escheat how then do the case stand as a trust it be clear that the crown  at law be not entitle in case of a use then if trust in equity be analogous to  use at law and I think they be neither will the crown be entitle in case of a  trust in equity yet the question will not mere depend on that analogy but on  other argument and authority in point sir George Sandss case hard Freem be in  point and that and the Edward I mutual strengthen each other freeman be rather  more accurate than Hardres as Lord hale Eden have a analytical head it will  give a clear idea of the strength of his argument to give a analysis of it he  first state several case where trust be forfeit as for treason by statute for  alienage by prerogative for a debt to the crown partly by statute partly by  prerogative and partly by cursits scaccharii or the course of revenue then he  distinguish these case from a escheat as find on a different ground for want  of tenant then he go to a term and give reason why a trust of a term can be  forfeit then come to his conclusion if not a chattel then not forfeitable if a  chattel freeman never have it to forfeit I think this good sense as well as  good law as to the inheritance the lord be entitle to service while the tenant  have the land when there be no tenant to perform the one or hold the other the  lord shall have it here be a tenant de jure to perform they and so no  forfeiture Trinity college v brown vern go on the same principle the legal  tenant be then live therefore the best beast of beneficiary and trust not  liable some objection be make to Sandss case it be say to be a compassionate  case much may be say of the charity of Lord hale he be oblige to mention the  relation of the person murder but I meet with it only once so far be he from  include any thing to conciliate the passion of mankind as a ingredient to his  determination it be say he be a young judge he have at that time a great deal  of experience and his ability be very great I have see determination of the  commissioner during the interregnum that do he great honour the case of sir  George sand be depend a great many year argue by very great man pasch car and  mic car which add weight to the authority car hale and Trevor give their  opinion it be say that only two judge give opinion Eden but no one can suppose  that there be but two judge during four year in that court if they differ hale  will never have give his opinion without mention it in his plea of the crown  Vol p he say it be One voice resolve so no doubt but all the judge of the  court concur it plain appear it undergo his serious consideration on second  think by the manner he arrange his argument in his plea of the crown different  from what he do before it be say hale go on wrong principle for right of  escheat be not find on want of a tenant but of a heir and as a heir be want  that the estate shall have escheat but I think escheat not find on want of  heir but of tenant to perform the service Fitzherbert who be most accurate  express put it upon that foot some book may use the expression for want of  heir but I believe its promiscuous use be owe to this that before the power of  alienation want of tenant and heir be the same thing for at the death of the  ancestor none but the heir can be tenant another objection be that hale  suppose the land will on the trustee attainder or death sans heir escheat to  the crown discharge of the trust whereas in equity it will be liable to the  trust and then it be say if the lord take the estate subject to the trust he  ought to have in return a reciprocal benefit on the death of beneficiary and  Eden er p trust without heir I think this position and inference not warrant  by any judicial determination Pawlett v attorneygeneral hard Geary v bearcroft  cart and eales v England Prec can be cite to support it the first I shall  consider by and by the other be mere dictam of judge collateral and foreign to  the matter Eden in question in carter the question be who shall be consider as  occupant as to what Bridgman say in Geary v bearcroft the whole must be take  together the other three judge have urge the argument ab inconsistency and  Bridgman answer they they say a man convey land to trustee and they commit  felony his land shall be forfeit though he may have relief in equity Bridgman  say though equity may relieve yet we must not take prejudice from equity  against argument at law the equitable point be not the opinion of Lord  Bridgman it be only anticipate a equitable objection that may be make against  it whoever look into Geary v bearcroft will nine out of ten be of opinion with  the three judge against Bridgman now if he be mistake in his legal point it be  more likely that he shall in equity be recent bring into that court from be a  chamber conveyancer and on a writ of error in b r bring on Bridgmans opinion  the court affirm the judgement of the three as to bring Chan eales v England  the same expression be not in Vernon and this be a very extraordinary medium  of proof of which no precedent have ever be before he it be prove incertum per  and incertum if not much incertius both the say of Bridgman aforesaid and of  Trevor here have not the least relation to the matter in question in this last  case the question arise upon the death of a trustee for pound in the life of  the testator whether the pound legacy be lapse Lord Trevor may have use many  more similar and certain instance Pitt v Pelham Ch can Ch Rep must have occur  to he where it be hold that the death of trustee can make no alteration in  respect of the beneficial interest instance where trustee for payment of Eden  legacy have die in the testator life the estate have descend to their heir and  be consider as a trust and many much more similar none more difficult to prove  and have he be call upon to prove his medium I believe be can not have do it  on the contrary I believe on the death of feoff to use sans heir the book say  the lord shall take the fruit this accidental accruer of a benefit come in  lieu of another benefit and beneficiary and trust seem no more relievable in  this case than on a sale without notice by the trustee I think the contrary  notion have be introduce by consider a escheat on the foot of a forfeiture but  they differ material not only in the manner of the crown take but in respect  of the consequence the crown take a estate by forfeiture subject to the  engagement and encumbrance of the person forfeit the crown hold in this case  as a royal trustee for a forfeiture itself be sometime call a royal escheat  but in general I apprehend a escheat be take free from any equitable claim if  a forfeiture be regranted by the king the grantee be a tenant in capite and  all mesne tenure be extinct if land escheat be regranted he shall hold in  honour therefore the position that the lord take the escheat subject to the  trust seem not warrant though it be not necessary I think to give a opinion  upon it note since the late statute Geo c it be not probable that this  question will arise in the case of the king either upon the felony or treason  of a trustee the case of a subject claim as lord by escheat have not be direct  determine sander on use but suppose the position allege to be true why ought  the lord to have a reciprocal equity on the death of beneficiary and trust  without heir what be cite out of Lord Nottingham be the opinion of counsel who  Eden throughout confound forfeiture and escheat and speak of attainder in  general without distinguish whether of felony which will create a escheat or  of treason which will create a forfeiture it have be say the king may be  subject when in the post as when mortgagee be attaint and shall have equity of  redemption as when mortgagor be attaint for the trust charge the land when non  go out mask sir salathiel lovel case salk when there be a save of blood it be  contend forfeiture do not take place but hold that in treason it will though  in case of escheat it will not it be not every argument in law or in logic  that hold e turning it fail here that the lord have as good a right as the  other have against the lord on a conveyance of land at commonlaw if tenant  contract a debt and the land be extend the lord take it subject to the debt  but do that give the lord any other right upon that account the lord in one  case may lose therefore in his turn it be say he ought to gain but Eden er p  there shall be a reciprocal right to have a reciprocal equity and this will be  allow reciprocal equity without a reciprocal right therefore I think the  inference draw be not warrant by the case several case have be mention to  encounter Sandss case attorneygeneral v holland in alein c be cite to show the  king shall have the benefit of a trust as well as of a legal estate that be  not determine upon the merit but alein and also style suppose a trust for a  alien do go to the crown that the crown take by prerogative at commonlaw if a  alien purchase and take a conveyance he take it for the benefit of the crown  by prerogative after use be invent it be necessary to settle where the use  shall go purchase for the benefit of a alien therefore the statute r c and r  be make to enforce the commonlaw prerogative which else have be evade by Eden  the introduction of use the ground of it be original a commonlaw right and if  a trust have be create the king will have be entitle to the trust the same as  to the land but do it hold therefore that a trustee take for the crown on the  death of beneficiary and trust the difference between take by prerogative and  escheat be material and Lord hale make the distinction as to Pawlett v  attorneygeneral it never come on upon the merit it be a demurrer only to a  bill bring by mortgagor the mortgage be make to Edmund ludlow father and  descend from he to Edmund the secretary and in consequence of his attainder be  seize to the use of the crown the executor of the father be entitle to the  mortgagemoney and they put in suit a recognizance enter into as a collateral  security for pay the money the crown seize the land and mortgagor file a bill  and make the attorneygeneral and Ludlow party the attorneygeneral demurrer say  the remedy take be improper it shall have be by petition of grace and favour  as they call it but mean of right hale say equity of redemption lie against  the crown but as to the remedy or manner of sue it that be a matter of high  nature but he hold the executor and not the heir entitle to the mortgagemoney  these be the circumstance of the case what say Lord hale in Pawletts case that  though by attainder of treason the estate be forfeit yet it be liable to  redemption in the hand of the crown what do he hold in Sandss case that a  trust estate do not escheat on the attainder of beneficiary and trust for  felony the consequence be that if the trustee be attaint for felony or die  sans heir the estate will escheat to the crown there be a distinction between  the case a double difference between this and Sandss case one be escheat Eden  for felony the other forfeiture for treason the one a trust only the other a  equity of redemption the distinction between a escheat and a forfeiture can be  dispute the other distinction between a mere trust and a equity of redemption  be rational take by hale in Pawletts case I conceive a mortgage be not a mere  trust but a title in equity he say a trust be collateral to the land and  create by contract of the party and therefore one who come in en Le post shall  not be liable to it but the power of redemption be a equitable right inherent  in the land and bind all person in the post or otherwise in this Lord hale be  not singular Lord Nottingham ms say a equity of redemption charge the land not  a trust therefore though for this particular purpose as to allow husband to be  tenant per courtesy there be no difference between a trust and a equity of  redemption yet it do not follow that they run quatuor foot note vide Lord  eldoms observation in Tucker v Thurston Ves the difference be rely upon and  urge by some of the counsel for the defendant in the late case of Lord  Cholmondeley v Lord Clinton it be not however notice in the judgement it have  be hint that Lord Nottingham seem to think it deserve further consideration  but I think he rather approve the case his word be ms in sir George Sandss  case who son be beneficiary and trust of a term and attaint for felony it be  resolve that the term be not forfeit because the inheritance be not forfeit  unde sequitur where the inheritance be forfeit term be forfeit I therefore  think sir George Sandss case be unimpeached but then it be endeavour to bring  the lord within the trust of the deed of there be no trust express or declare  for he be there any imply or Eden result to he the trust of the legal estate  can only be coextensive with the legal estate so that I think mrs Harding have  not power to create a trust to give the lord a right after her heir her  interest end where his begin she can not create a trust Eden er p that can not  be execute by a legal limitation if there have be a limitation to the lord in  default of her heir it will have be void and the lord will have take by his  own title which be paramount to that and not by her title the intent be to  prevail it be say can mrs Harding be suppose to have the lord in view the  legal estate may be extend to answer the purpose of the trust declare there  can be no trust where there be not a legal estate create coextensive with it  and a trust can be execute where no intent appear to create it save by  operation of law and a trust can result by operation of law but for those for  who the trust may have be declare by the party create the trust the deed  express no trust for the lord therefore the court can execute one but it be  say the limitation to trustee be in trust for her and her heir and subject to  her appointment she make none the lord be to be consider as heir or appointee  that before the power of alienation the lord have a strict reversion but since  it be become a kind of heirship or assignment this be invert the law itself  for he claim in the post not in the per it make the lord hold of the tenant  not the tenant of the lord can the power of alienation give the lord a great  power than he have before before the power of alienation tenant or heir take  by purchase as a mere usufructuary and the lord take what the ancestor leave  before as well as after the power the lord and tenant have the whole interest  and as the tenant power over the fend increase the lord diminish I admit the  lord in some place be call quasi hres Eden but it be always to his prejudice  where he be so say to take and never to his benefit bract a item cum see  revertor  land non pro defect hredis send near hindrance continuous to have  loco hredis ad warrantizandum c which show that before the power of alienation  the tenant can not demise but the lord be oblige to warrant to the lessee as  much as the heir bro Esch be a very obscure case and not to be find in the  yearbook where the crown make a grant to a for life or to the heir of his body  the king on the death of tenant for life or in tail shall be in without office  whether he enter or not as be heir of the person who die seize so far be the  lord from be entitle to a benefit as heir or assignee that he be on the  contrary exclude from privilege that the heir or assignee be entitle to at  commonlaw only feoff or his heir can enter for breach of condition grantee or  assignee can not therefore the statute of Henry be make to cure that defect  and give the grantee a right of entry   Litt b yet the lord can not claim that  benefit under the statute so that so far from the lord take benefit as heir or  assignee he be distinguish from both and exclude from the privilege which the  heir have by commonlaw and the assignee by statute yet it be say the lord may  distrain for rend reserve to a and his heir vide the argument in Fairclaim v  Shamtitle burr   Litt sect as in the place of heir and so have privilege equal  with the heir I can admit this right of distrain be a privilege for his right  of distrain be not as heir but as incident to his reversion and the same book  say the lord can enter because he be not heir and this answer another  observation that the lord may take the benefit of a term limit to the owner  and his heir but the answer be he do not take it as heir but Eden where he  take the inheritance as escheat he take the term as attendant upon and follow  the fate of the inheritance accord to Sandss case Pawletts case and Lord  Jeffriess determination but if the lord be not within the reach of the deed of  yet it be say that this be but a mode of conveyance for a particular purpose  to give a feme covert a power to dispose of her estate if she please and as it  have never answer that purpose it be to be consider as if it have never exist  and if so then the estate will have escheat on her death sans heir this be  contrary to what the heir on the part of the mother insist on the maternal  heir be for have another deed I e a suppose reconveyance from the trustee to  mrs Harding the court can do neither but it be beg the question to say that  the deed of shall be lie out of the case voidable deed shall not be lie out of  the case but shall bind the escheat bowl r Rep b a infant deed shall bind  against the lord and that in roll be a lease by the husband of the wife land  without her join she die sans heir question whether it shall bind the lord  escheat and it be hold that it do so for the purpose of bind the lord in  escheat deed have be hold good against he that will have be void Eden er p in  other respect the deed can be lie out of the case the effect of it be such as  legal to exclude the Lord while there be a tenant if the escheat be legal go  where be the equity to revive or restore it be it such a right as shall induce  the court to go out of its way in its support escheat be become notional and  positive and the reason a good deal cease since the tenant power of alienation  and the heir become dependent on the ancestor why shall not a rend escheat as  well as a trust the first lie in Eden tenure as well as the last at least why  shall not the lord have the rend in equity every body know the land shall be  discharge of the rend rather than the lord shall have it the equity be as good  in one case as in the other I admit most of our law as to its foundation be  positive the instance put from the feudal law deserve no favour in prefer the  uncle to the father as heir to the son and prefer the lord by escheat rather  than one of the half blood if the uncle in the one case and the lord in the  other have a legal right equity will not take it away but when any of these  right be go at law I think a court of equity can interpose to restore they  argument be use ab inconsistency they say the consequence will be mischievous  as if one be convict of felony who estate be in trustee the beneficiary and  trust forfeit for felony and be restore by pardon shall the trustee hold both  against the crown and the beneficiary and trust whether he can keep it against  the crown be the case in question but the detain it against the crown where  the beneficiary and trust have no relation be different from detain it against  beneficiary and trust himself if trustee shall set up such a title it be a  case which never yet happen if it do I shall think court of equity will go as  far as they can and I think trustee estopped against set up that claim vide  Eden then it be say S see mortgagor die without heir shall the mortgagee hold  the estate absolute and if he demand his money too of the personal  representative shall he have both land and money if the mortgagor die without  heir or creditor I see no inconvenience if the mortgagee hold it absolute vide  Eden and note at the end of the case in the case of a forfeiture for treason  it be certain that the crown may redeem as in sir salathiel lovel case and as  to the supposition that the mortgagee may demand his money too that must Eden  be where the mortgagor die without heir therefore the demand must be against  the personal representative by virtue of some bind or covenant for payment of  the money and if the mortgagee take his remedy against the personal  representative I think the court will compel the mortgagee to reconvey not to  the lord by escheat but to the personal representative and if necessary will  consider the estate reconvey as come in lieu of the personalty and as asset to  answer even simple contract creditor under these circumstance where be the  great inconvenience another case be put of a purchase and the money pay by the  purchaser who die without heir before any conveyance here it be say if the  lord can not claim the estate and pray a conveyance the vendor will hold the  estate which he have be pay for and keep the money too I think the lord can  not pray a conveyance to say he can be beg the question and as to the vendor  keep both the estate and the money it be analogous to what equity do in  another case as where conveyance be make premature before money pay the money  be consider as a lie on that estate in the hand of the vendee so where money  be pay premature the money will be consider as a lie on the estate in the hand  of the vendor for the personal representative of the purchaser which will  leave thing in position quo vide Mr Sugdens observation upon this case but by  the master of the roll vend and Purch also sim and stuff but now what be the  inconvenience on the other side this interposition pray will change the law  and that too in the case of a legal tenant it will give the lord a double  chance for this determination will be a precedent for a equitable escheat on  the death of Eden beneficiary and trust and there be other case to warrant  escheat on the death of trustee unless the court shall interpose and that let  we in another objection that it be bring both into a court of equity if the  inconvenience be great than they be and not overbalance by those on the other  side yet I think argument ab inconsistency ought not to prevail but where the  case be doubtful in Pawletts case inconvenience appear to Lord hale that the  tenure will be destroy by the estate accrueing to the crown by the forfeiture  but do Eden er p he object to the right of redemption on that account or that  any recompense shall be make to the crown in lieu of it in the present case I  do not think the balance so near the lord take escheat subject to particular  encumbrance and even to the devise of the tenant if she have contract debt to  the value and the estate have be extend or if tenant devise it the lord can  not complain here she put a end to her own tenancy to prevent the estate from  escheat by her death without heir I be for follow the analogy of the legal  escheat as well as of the legal descent and for pursue legal principle because  the law give the escheat only for want of a tenant equity must do the same if  it do not it will be make law instead of administer equity I give no opinion  of the right of the trustee I give my opinion that neither the maternal heir  nor the crown have any right if the trustee come into a court of equity I may  be of opinion that he have no right vide William v Lord Lonsdale Ves and note  at the end of this case but have no occasion at present to enter into the  merit of the defendant defence in bill of interpleader it be necessary to  decide the right because the money be bring into court so Eden where trustee  disclaim or desire to be discharge and it be a contest between volunteer for  trustmoney or trustestate there the court frequent determine the right of the  defendant to see to who the estate be to be convey where the plaintiff be not  entitle but even in that case they sometime will not do it but order a  conveyance to a six clerk not to prejudice the cause if plaintiff have no  right defendant may hold till a better right appear the possibility of that  happen show the impropriety of enter into consideration of the right of the  trustee I be clear of opinion that the invidiousness impute to his defence  ought not to give the plaintiff a better right many other case may be take  notice of as the mortmain act where a use be give to a corporation aggregate  the statute r give the lord a right to enter so where give to a body corporate  it be void but it do not say for who benefit it be void the lord can not claim  it nor the party against his own act so purchase by papist so a lease by one  jointtenant to a reserve rend lessor die the survive jointtenant can have the  rend it enures to the benefit of the lessee so the case of tenant before the  late act Geo c vide jenner v Morgan p W where rend can not be recover c so  Cowper v Cowper p wms in all these case it be to the last degree invidious yet  equity never interpose in any of they though they lie under the high  temptation to do it before the late act for the man hold the land and but for  a accident must have pay the rend there can be a strong instance than Cowper v  Cowper before sir Joseph Jekyll that be a demand set up by Mr S Cowper in a  court of equity and as unfavourable a one as can come before a court sir  Joseph Jekyll say I own I can forbear declare that if Eden be to consider the  matter not sit in a judicial capacity but take in all consideration honour  gratitude a man private conscience c I must think that this claim ought never  to have be set up but do this invidiousness prevent the success of the claim Q  so far from it that this declaration of his be only a prelude to the  determination he make I shall conclude with what he conclude with there  concern the province of a court of equity and the boundary of its jurisdiction  upon the whole matter my opinion be this title shall not have be set up but  now it be so it appear a plain and a subsist one the law be clear and court of  equity ought to follow it in their judgement concern title to equitable estate  otherwise great uncertainty and confusion will ensue and though proceed in  equity be say to be secundum separation good man yet when it be ask man bone  be quis the answer be who consulta father who law juraque watch over and as it  be say in rook case Rep b that discretion be a science not to act arbitrary  accord to man will and private affection so the discretion which be to be  execute here be to be govern by the rule of law and equity which be not to  oppose but each in its turn to be subservient to the other this discretion in  some case follow the law implicit in other assist it and advance the remedy in  other again it relieve against the abuse or alley the rigour of it but in no  case do it contradict or overturn the ground and principle thereof as have be  sometime ignorant impute to this court that be a discretionary power which  neither this nor any other court not even the high act in a judicial capacity  be by the constitution entrust with this description be full and judicious and  what ought to be imprint on the mind of every judge Eden er p these be my  sentiment my lord and as such they be submit to your lordship judgement Eden  Lord Mansfield c I on the ground of the case on the certificate the whole  turner on the effect and operation of the deed of in a court of equity the  first question that arise be between the heir and the trustee only sir f page  enter and July burgess as heir of Elizabeth Harding bring his original bill  against the trustee on the that of July the cause come on to be hear on the  plead be open and the nature of the question appear the Lord chancellor  himself object to the attorneygeneral not be a party in respect of the king  right by escheat both party be extreme desirous that there shall be no  question upon the escheat and the attorneygeneral do not insist upon it but  the chancellor ask he if he waive any right the crown may have and will  consent it may be so enter the cause stand over the attorneygeneral be then  make a party and the information be file on behalf of the crown note Lord  Rosslyn observe in Barclay v Russell Ves that a court of law can give  judgement nor can a court of equity decree against the title of the crown  appear upon the record even though it be not insist upon at the hear there be  three competitor before the court two claim as plaintiff and pray relief the  three a defendant object to any relief the heir on the part of the mother  claim by a alteration have be make in the deed of in this court as well as at  law and have the trustee convey to mrs Harding after the husband death the  only purpose for which the trust be create be then end the heir on the part of  the mother have undoubted be entitle the king claim as the deed of be a  conveyance Eden only of legal form and have in this court make no alteration  in the beneficial estate but have leave it to go in this court as it will have  go before at law as if the deed of have never be make the trustee object to  the heir claim because he say the deed of have make no alteration as to the  beneficial estate of which mrs Harding die seize ex part of a father and  oppose the king right because it have change the right of escheat Ch at law  and in equity and upon a general objection that the plaintiff must recover  upon their own strength to entitle they to relief for it be not enough for the  plaintiff to show that the defendant have no right but that they have a better  upon equitable ground and in the case of a trust must show a better right  within the term of the creation of the trust it seem agree in this case that  the heir ex part of a mother can inherit the trust because the trust ensue the  nature of the land which before the deed of can not have descend in the  maternal line and I be at present of that opinion the doubtful question be  whether the king be entitle to this trust Q and that will depend upon argument  draw from the nature and effect of a conveyance in trust and from the nature  of the right of escheat I will follow the method which be use at the bar under  the four follow head first the nature of trust of land and the rule which  govern they second the nature of that right by which the king claim in the  present case three whether if the trustee have die sans heir the king must not  in that case have take the land in a court of equity subject to the trust  fourthly I shall apply the result of this inquiry as between the king and the  trustee to the particular point immediate in judgement Eden first as to the  nature of trust of land and the rule by which they be govern by a inquiry into  the nature of a use or trust of land no more be or can be mean than as to use  to find out historically on what principle court of equity before h receive  jurisdiction in modify or give relief in right or interest in land which can  not be come at but by sue a subpoena as to trust what the court do in modify  direct and give relief in the say right and interest in case where there be no  remedy but by bill in a court of equity whoever show that the relief give now  be more extensive that it be consider by different or opposite rule that the  right be consider in different or opposite light will show the difference and  contrast between use and trust the opposition be not from any material  difference in the essence of the thing themselves a use and a trust may  essential be look upon as two name for the same thing but the opposition  consist in the difference of the practice of the court Eden er p of chancery  if use before the statute of h be consider as a pernancy of the profit as a  personal confidence as a choose in action and now trust be consider as real  estate as the real ownership of the land so far they may be say to differ from  the old use though the change may be not so much in the nature of the thing as  in the system of law make use of upon it have define the term I will first  show negative what be not the law and nature of trust I apprehend the old law  of use do not conclude trust now where the practice be find on the same reason  and ground the practice be now follow its positive authority do Eden not bind  where its reason be defective more especial that part of the old law of use  which do not allow any relief to be give for or against estate in the post do  not now bind by its authority in the case of trust the law of use before the  statute be the doctrine that give rise to trust after the statute the struggle  afterward all that be present to our view be a series of thing that give we  perhaps a history of fact and why they be but give we no plan consistent  deduce from any system of natural justice or public policy trust from the  nature of the thing may be leave to the honour and faith of the trustee in  that case they be not the object of law otherwise than as they may be  fraudulent and void in respect of three person or a court of justice may take  cognizance and compel the execution of they in that case trust retain only the  name of trust in substantial ownership the disposition in trust become the  mere form of a legal conveyance trust in England under the name of use begin  as they do in row under no other security than the trustee faith they be find  in fraud to avoid the statute of mortmain Lord Bacon think they little know  before Richard the ms time though the first hint of use be probable to avoid  the mortmain act yet they be innocent apply soon after to other purpose a  benefit to issue out of land can only be make by the interposition of use will  of land can only be make that way natural justice say he who break his trust  do wrong so beneficiary and use be drive into chancery by breach of faith  there be not six case of use before Edward the this time the court first  interpose on very narrow ground so far as a personal confidence be place in  the trustee they decree he to perform the trust but the heir of trustee or  grantee be not liable Eden Keilw Subpna lie only against trustee himself till  Henry and then fortescue change it Edward fol pl this be against the heir but  upon a reason which equal hold with respect to the grantee the chancellor  afterward extend his remedy unless the alienee purchase for valuable  consideration without notice while heir or alienee be not liable the plan  though narrow be consistent and be adhere to through all its consequence but  when these two exception be make it be absurd not to give remedy in all other  case within the same reason till Henry the this time the widow of trustee hold  her dower the husband his courtesy the lord his escheat and the king his  forfeiture free from the trust yet their title be not in reason better than  the heir in the time of Richard d the king though trust as a private man and  come in the place of trustee who be a villain alien or traitor may keep the  estate or give it away free from the use corporation though express trust may  keep the estate themselves thus stand the jurisdiction of chancery with  respect to those against who it be to give relief the jurisdiction be as  narrow in respect of the person to who relief be to be give the widow the  husband the creditor by real lie the lord the king can not sue as stand in the  place of beneficiary and use or be owner of the estate where the confidence be  to a intent that can not be execute it never be settle what shall be do with  the estate Edward foe pl because the lord can not have it as he claim in the  post query who shall have it bro say the heir shall not have it because of the  corruption of blood and therefore to see c Bacon say it shall go to Eden the  will or in blessed dead use if a man appoint a use by his will to one for life  remainder in fee to another and the beneficiary and use for life refuse  because there be no confidence for the heir nor for he in reversion the  appointee or feoff shall hold the estate for life some way or other for the  benefit of the feoff and not of the feoff h cite there Eden er p great  inconvenience arise from so narrow and contract a system that the beneficiary  and use shall enjoy and dispose and yet not be owner to all purpose and that  the feoff who real have nothing shall be deem owner so as to convey estate out  of his seize by legal conveyance not subject to the trust Bacon use of the law  sum it up very emphatical in these word by this course of put land into use  there be many inconvenience as this use which grow first from a reasonable  cause namely to give man power and liberty to dispose of their own be turn to  deceive many of their just and reasonable right as namely a man that have  cause to sue for his land know not against who to bring his action nor who be  owner of it the wife be defraud of her three the husband of be tenant by  courtesy the lord of his lordship relief heriot and escheat the creditor of  his extent for debt the poor tenant of his lease for these right and duty be  give by law from he that be owner of the land and none other which be now the  feoff of the trust page in the report in Blackstone the passage be quote very  incorrect apparent from memory it be the same passage which the learned  commentator cite command many act be make to cure these mischief in part and  all look on beneficiary and use as the true owner in Eden the case provide for  in respect to demander creditor lord and beneficiary and use alienees of all  kind on the same plan at last the h be make that the use shall be the  universal legal ownership Lord Bacon say it be plain the statute mean to  remedy the matter because use trust confidence be use as description of the  beneficial interest throughout the act h ascertain the forfeiture for treason  not with a view to trust unexecuted for h have the word trust as synonymous to  use this statute only mention use Lord hale say on a case just after the  statute that the use c by h beneficiary and use forfeit for his own treason  and not for the treason of his trustee in bro hold on a sale a use can not be  declare to the vendor but from the nature of the transaction and the price pay  the use must be to the vendee and in dyer on a bargain and sale enrol no  estate can be declare out of the use of the bargainee from hence it grow to be  a maxim that a use can not be on a use when this be establish there be no idea  that a second use can have any existence or effect but if it be a use trust or  confidence it be execute if it can not be execute it be nothing term for year  be not within the statute h trust may be declare of they to be execute in  chancery by the advice of the judge in dyer such trust be hold not assignable  be as a right of action and nothing at law but be mere to be execute in  chancery this notion arise from the practice of limit term in trust and it be  strange after a trust be consider in chancery as a interest the judge do not  say it shall be execute as a use a confidence within the statute or  distinguish between trust execute and executory but because the whole trust  can not be Eden limit different way the real use shall not be raise out of the  nominal one after this be force into chancery trust long fluctuate in great  uncertainty Inst in Elizabeth a trust be decree in chancery to be a mere right  of action and therefore not assignable in James the sts time abington case  vide Lord hale observation on abington case p c all the judge hold the trust  of a freehold estate be not forfeitable for treason they must therefore  consider it as a mere choose in action roll Abr c pl f trustee of a term for  year be attaint of treason the term be forfeit to the king free of the trust  because the king come in the post and can be seize of a use James cro James  hob trust of a term hold forfeit trust of a freehold not and they argue that  the king shall not have the trust too as it be forfeitable by the trustee the  argument which give the forfeiture in treason hold not in the case of a trust  if it be the same as a use the statute will not have extend to it after the  restoration hale on the subject of trust follow to a degree the error of the  time and apply to trust what have make use intolerable Ch can circ car he hold  the trust of a fee descend to the heir shall not be liable in chancery to  specialty debt of the ancestor so that it descend free from debt in car colt v  colt Ch Rep it be hold the widow shall not have dower of a trust in this court  car Freem Ch can Pratt v coal hold that the trust of a fee descend shall not  be liable to judgement creditor so the heir take it free from all encumbrance  Eden er p Eden this to car may show how they reason in Westminster hall upon  trust Pitt v Pelham Ch can Ch Rep the testator appoint his land to be sell and  the purchasemoney to be divide among four person one of who be his heir at law  but he do not devise his land to anybody be do not give anybody power to sell  he place no express confidence in the heir to sell the master of the roll make  a case to be hear before Lord keeper diligent search be make for percedents  then a trial be order in c b to see whether the executrix of the testator or  her executor she be dead have a legal power to sell by implication upon a  special verdict be find the judge negative any such power the case come back  into equity and after all the Lord keeper hold the heir not liable as a  trustee to perform the devise or make any conveyance to a purchaser and so  dismiss the bill in my opinion trust be not on a true foundation till Lord  Nottingham hold the great seal by steady pursue from plain principle trust in  all their consequence and by some assistance from the legislature a noble  rational and uniform system of law have be since raise trust be make to answer  the exigency of family and all purpose without produce one inconvenience fraud  or private mischief which the statute of h mean to avoid the forum where they  be adjudge be the only difference between trust and legal estate trust be here  consider as between beneficiary and trust and trustee and all claim by through  or under they or in consequence of their estate as the ownership or legal  estate except when it can be plead in bar of the exercise of this right of  jurisdiction whatever will be the rule of law if it be a legal estate be apply  in equity to a trust estate the statute of fraud speak of devise Eden only of  land and tenement yet the trust be consider in this court as the land and  tenement can only be devise as land and tenement may pursuant to that statute  how different be it from a use that be neither land nor tenement this act give  sanction to trust divide from the estate and guard they from the danger of  parole proof it will be endless and unnecessary to enumerate the various  consequence through which the principle have be pursue that a trust in  chancery be the estate at law since car among other it have be declare that  the husband shall be tenant per courtesy of a trust the case of dower be the  only exception and not on law or reason but because wrong determination have  mislead in too many instance to be now set right Radnor v Vendebendy be  determine on that principle only in the house of lord in bank v Sutton the  argument of sir Joseph Jekyll prove there ought to have be dower of a trust  and he stretch there to make a distinction in attorneygeneral v Scott that be  not follow because it will shake so many settlement in Casborn v scarf atk  Lord Hardwicke say how it come to be so settle at first be a different  consideration and difficult to find out a sound reason for but now we must  adhere to it as establish the dissatisfaction have not be from allow the  tenancy per courtesy but from deny the tenancy in dower of a trust and if a  alteration be to be introduce the best way to set it right will be to allow  the wife dower of the trust estate Eden twenty year ago I imbibe this  principle that the trust be the estate at law in this court and govern by the  same rule in general as all real property be by limitation every thing I have  hear read or think of since have confirm that principle in my mind in bank v  Sutton sir Joseph Jekyll boggle at Eden imitate the legal right which depend  upon a actual seize during the coverture and of apply it to a equity of  redemption in the eye of this court Lord Hardwicke think the equity of  redemption be the feesimple of the land note the word of Lord Hardwicke which  be here refer to be in Casborne v scarf atk they be a equity of redemption  have always be consider as a estate in the land c it will descend may be grant  devise entail and that equitable entail be bar by a common recovery Casborne v  scarf atk this prove it be consider as such a estate whereof in consideration  of this court there may be a seize for without such a seize a devise can not  be good of a trust he who have the equity of redemption be consider as the  owner of the land he say it be a settle right in equity which a man can come  at but by subpoena note the observation of sir W grant in Lord Cholmondeley v  Lord Clinton be not quite consonant to the above although the equitable  ownership be in the mortgagor yet his ownership be of a Eden er p more  precarious nature than that of any other beneficiary and trust in general a  trustee be not allow to deprive the beneficiary and trust of the possession  but a mortgagee may assume the possession whenever he please and therefore the  mortgagor be call tenant at will to the mortgagee and in point of possession  he be so even in equity for a court of equity never interfere to prevent the  mortgagee from assume the possession Meriv that the husband and wife be in  perception of the rend and profit during the coverture be seize of a freehold  by imitation of the law the allow tenancy per courtesy of a trust be find on  the maxim that equity follow the law which be a safe as well as a fix  principle for it make Eden the substantial rule of property certain and  uniform be the mode of follow it what it will so that I take it by the great  authority of this determination on clear law and reason beneficiary and trust  be actual and absolute seize of the freehold in consideration of this court  and therefore that the legal consequence of a actual seize of a freehold shall  in this court follow for the benefit of one in the post note Lord Thurlow in  Shrapnell v Vernon bro c c observe that in many act of parliament a equitable  be consider the same as a legal estate the word seize in law or in equity in  the qualification Act show that the word seize be applicable to both and again  the only question be whether the word seize will extend to be seize of a  estate in equity which unless I be mistake in point of law it will so also in  the judgement of sir W grant in Lord Cholmondeley v Lord Clinton his honour  consider it clear that there may be what be deem a seize of a equitable estate  though his opinion upon the three point in that case be find upon the  impossibility of the equitable ownership be the subject of seize vide Lord  Grenville v blithe Ves to conclude this head a use or trust heretofore be  while it be a use understand to be mere as a agreement by which the trustee  and all claim from he in privity be personal liable to the beneficiary and  trust and all claim under he in like privity nobody in the post be entitle  under or bind by the agreement but now the trust in this court be the same as  the land and the trustee be consider mere as a instrument of conveyance  therefore be in no event to take a benefit and the trust must be coextensive  with the legal estate of the land and where it be not declare it result by  necessary implication because the trustee be exclude except where the trust be  bar in the Eden case of a purchaser for valuable consideration without notice  the trustee can transmit no benefit his duty be to hold for the benefit of all  who will have be entitle if the limitation have not be by way of trust there  be no distinction now between those in the per and post except in that case of  dower which be find not upon reason but practice as the trust be the land in  this court so the declaration of trust be the disposition of the land  therefore a essential omission in the legal disposition shall not destroy the  trust as where trustee die before testator or be incapable upon the old notion  of a agreement a subpoena can not lie against the heir where the legal  limitation be void the ground why the lord by escheat neither take nor be  subject to a use do not now subsist the principle upon which the question must  now be argue have no relation to it which ever way it ought to be determine or  rather none of those principle be make or can ever be consider in the law of  use for this court never interpose in case where the claim be in the post and  there in Edward the this time it be take for grant that the lord shall not  have it it be a fix principle that he shall not because he be in the post this  bring I to consider the nature of this right by escheat it have be true say in  the beginning of feudal tenure this right be a strict reversion the grant  determine by failure of heir the land return as it do upon the expiration of  any less temporary interest it be no fruit but the extinction of tenure as Mr  justice wright say it be the fee return this hold equal whether the investure  be to general or special heir for original by the feudal law Eden the tenant  can not alien in any case without the lord concurrence the reversion take  effect in possession for want of a heir unless the lord have do or permit what  in point of law amount to a consent to a new investiture or change of his  vassal this be the meaning of the distinction take in the book which mention  that nothing escheat where the tenant be in by the title Eden er p Anylman in  possession by be tenant to the lord can not strip he of the reversion hence it  follow that the land return in the state in which it be grant free from  encumbrance as soon as a liberty of alienation be allow without the lord  consent this right change its name it become a sort of caducary succession  thence the lord be call tanquam hres Craig l c S Lord take as transalpine hres  c the resemblance of the lord right by escheat to the heir by descent do not  hold throughout and therefore the lord by escheat be in   Litt b with accuracy  consider as assign in law he take no possibility or condition or right of  action which can not be grant he can not elect to avoid voidable act as feoff  of a infant with livery but every right preserve to the heir which can be  grant go to the lord by escheat as if tenant make lease for life reserve rend  to he and his heir the rend will go to the lord as well as the inheritance  Thruxton v attorneygeneral vern the benefit of a trust term in a estate be  decree to the king by escheat for say the court the term go with the  inheritance by express limitation of the party the inheritance be escheat in  the same manner as if it have descend or be grant where the former owner have  make no disposition or leave no heir by blood it must go somewhere it be  arbitrary Eden before settle when settle it be as favourable as any other  positive rule from the original nature of the tenure the lord take it in  personal estate which be allodial by law the king be last heir where no kin  and the king be as well entitle to that as to any other personal estate this  bring I to the three head whether fail heir of the trustee the king must not  in this case have take the estate in a court of equity subject to the trust  this seem in the present case to be a very material consideration for if the  king be not to be subject to the trust there be no colour that he shall claim  the trust by escheat though bare be in the post seem no objection now that  land escheat shall be subject to the trust seem to I most consistent with the  lord right whether the escheat be consider as a reversion as it once be or a  caducary possession ab having made no will as it now substantial be consider  it as a reversion the king as a reversioner can not claim it in this case but  under the deed of as the investiture under which his tenant die seize there be  no other way of show his trustee to have be tenant at all the possession be  with mrs Harding to the time of her death every alienation of a fee have some  investiture the land descend to the alienees blood and when that fail the lord  take but the lord can claim against his own grant he be bind by the term of  the alienation if mrs Harding have make a will how can the king claim against  the deed make by the grantee to empower her to make a will the king can set up  no right by escheat to defeat the execution of that power there be but one  case in which a possibility of reverter can remain after a fee grant and that  be where land be grant to a corporation if the corporation be dissolve the  land return to donor or his heir the king can claim by escheat contrary to the  term or condition which the tenant hold under two thing Eden first that there  be equity against the king second that the lord be bind as much in a court of  equity by the equitable term of his tenant investiture as he be in a court of  law by the legal term take the estate as a caducary possession the lord can  only take it ab having made no will absolute so far as the tenant have not  dispose of the estate he can take and no far the tenant power of dispose be  absolute without the lord privity without any determine form of conveyance the  trustee have by his declaration of trust in make a valid conveyance of his  trust in equity and therefore a court of equity can I apprehend suffer the  land to go as undisposed of by the tenant because in the consideration of this  court there be a valid disposition make by he but even at law the escheat will  not be free from the trust the statute of fraud make a trust estate asset in  the hand of the heir of beneficiary and trust consequent for that purpose the  estate descend to the heir in car before trust be put on the rational foot  they now be the apprehension of the judge be that the lord by escheat ought to  be subject to the trust Lord Bridgman think so note the editor have consult  the report of Lord c I Bridgmans judgement in Geary v bearcroft from his own  notebook hark ms from whence it appear that he do not express the opinion  attribute to he see it refer to Fonb on Eq in Eden er p sir I Trevor upon the  same principle think so in eales v England yet sir I Trevor certain know there  can be no escheat of a use if it be not to be subject to the trust I think the  inconvenience will be very great and where we be not tie clown by any  erroneous opinion which have prevail so far in practice that property will be  shake by a alteration of they argument of convenience and inconvenience be  always to be take into consideration Eden all the great estate of this kingdom  almost be now limit in trust the trustee be general man of business concern  for the family and at a little distance of time probable their pedigree be not  to be trace and if the survive trustee be to die without heir it will be think  very hard if that be to lose the estate but I rest upon this it seem to I a  contradiction in term that he who have no claim but ab having made no will  where the owner have not dispose of his property shall take contrary to and in  prejudice of his disposition the heir of blood may as well claim the estate in  contradiction to the equitable charge a escheat be as much a title under the  former owner by consequence of his former seize as the heir why else shall the  lord be deem the assignee or heir of the tenant I think the lord may be as  much consider his heir as his heir by blood and be as much liable to all the  disposition suppose a devise ineffectual at law but good in equity will the  estate escheat free from the trust suppose a devise to a trustee in trust to  pay debt and legacy and trustee die without heir be all these charge to be go  and not carry into execution and the estate to escheat free from they to bind  the lord there be no distinction between voluntary and meritorious limitation  the lord by escheat must in consequence of the tenant disposition be a trustee  for all or none but objection have be make to subject the escheat to trust  objection from copyhold and the custom of manor there the lord can be subject  to trust but have the estate on the death of the tenant without heir this  objection proceed from not distinguish between freehold and copyhold manor in  all manor where admission be necessary to alienation the escheat be absolute  the lord consent be still necessary in Eden those copyhold the lord be not  bind by debt alienation or trust they be all void against he vide the Lord  chancellor observation in peachy v the duke of Somerset stram but if lie  consent to a condition or trust on the court roll then he be bind by it for he  can claim against his own act vide the king v Haddenham east but in freehold  the form of his concurrence not be necessary he be always consider as much  bind as if he be a party to the deed of alienation which make the trust  because the power which the tenant now have by law be equivalent to the lord  consent to the grant when it be a strict reversion objection if the trustee be  not to be consider as tenant without regard to the trust in the case of  escheat then the lord can be permit to consider he as tenant in case of heriot  and relief brown case vern Eden if the objection be apply to copyhold manor it  receive the same answer the roll show the tenure if apply to freehold hold of  the king or mesne lord the case of heriots and relief be of no great  consequence but however the lord can be hurt for a conveyance in trust will be  void and fraudulent against the lord in respect of they the beneficiary and  trust be the visible possessor and I shall think in the present case if a  heriot be due from the tenant the deed of be void against the lord in respect  of heriots and relief see how it stand mrs Harding keep possession till her  death the lord can not know of this secret deed make by her in trust for  herself or where the deed be and she will be consider as his tenant but  suppose he know it and choose to consider the trustee as his tenant at law I  think he may do it in all case where the trustee be party to the conveyance  and have accept Eden the estate and then no colour for a court of equity to  interpose the trustee can object because by his own agreement he have make  himself liable to the burden annex to the estate and he can be prejudicial as  the estate be a pledge in his hand to reimburse he and where trustee be the  visible tenant the lord can only consider he as tenant the mortgagee in fee  will be tenant to the lord in respect of his heriots and relief and he can not  come on the mortgagor for they while the estate remain unredeemed but where a  escheat happen it do not follow but that the court may interpose to  substantiate the agreement of the party though they do not when there be no  agreement Eden er p objection it be say a mesne lord by death of mortgagee  without heir can take the escheat in preference to the personal representative  who be entitle to the money and in opposition to the mortgagor who be entitle  to the redemption this will be glare injustice Pawletts case seem settle on a  true foundation and this precise objection be in term overrule Lord hale say  the tenure be extinguish but it be overrule another answer be that the lord  may continue the tenure by accept the beneficiary and trust as tenant if the  lord admit the title there will be no escheat the king and the lord together  may revive the tenure another answer that occur be that if the tenure be  destroy any benefit arise from it to the lord may be secure by a decree to  hold and enjoy the last answer be that if it shall extinguish the tenure the  law never think that sufficient to abridge the tenant absolute right of  alienation so in the case of a grant in mortmain it be say that the king must  take it free from the trust because the king can reconvey it but this will  hold equal in the case of mortgage and the Eden purpose may be answer another  way there may be a decree to hold and enjoy if it be so it be strange to say  that therefore he shall lose the whole estate and have no relief at all  fourthly if what I have say he right little be leave for I to say upon this  head if the lord take a escheat as heir or assignee in law then the king be  within the express declaration of trust which be to Elizabeth Harding her heir  and assign if the king will take it subject to trust he must of course be  entitle to a equitable estate by escheat he can be subject to the trust on no  other ground than that beneficiary and trust the true owner in the  consideration of a court of equity die sans heir the escheat be to arise for  else it will be a fee on a fee it will be to beneficiary and trust and his  heir and for want of such heir to the trustee and his heir which be void in  law because of the lord escheat if the trust be the land mrs Harding die seize  of the old use of that land the king right by escheat stand on the same ground  as every other legal right it arise out of the seize and Lord Bacon say they  who come in by justice and consideration of law be of all other most favour on  that principle stand the forfeiture by escheat the tenancy by courtesy and in  dower h express recite this grievance and a wise plan in equity be establish  by consider the trust as the land to avoid every inconvenience that arise from  a use as to sir George Sandss case it have great weight but I can agree when a  trust descend to the heir that the heir shall take the land free from the  specialty debt of the ancestor there the trustee the heir of blood to the  felon and sir b freeman be all in the same interest if it have be adverse  perhaps it may Eden have be argue that it result to lady sand the daughter and  heir of sir Ralph the trustee can take nothing to himself against the former  owner and his heir the circumstance of that case be compassionate if the king  have restore the estate to the family and the trustee have insist upon keep it  it will have undergo a different examination from what it do the principal  reason be that escheat be for want of a tenant a trust be like a rentcharge  when it fail it extinguish in the estate for the benefit of the owner there  can be no escheat of a use the second reason seem incorrect the escheat be for  want of a tenant the lord be assignee here be a tenant at law it do not prove  but that there may be a estate in the trustee it be say the escheat be in lieu  of service true but it do not conclude but the tenant may be a trustee there  be a declaration that trust do not extinguish for benefit of the trustee but  of the true owner which be clear settle the reason with regard to those who  claim in the post do not conclude one way or other but in fact the true  foundation of trust be not then lie Lord hale himself have hold a trust  descend to the heir be not liable to debt he go upon a principle that fail and  whatever be build upon it fail with it it be matter of importance to settle  upon what principle the present determination be make because many consequence  may hereafter be draw from it if mortgagee in fee die without heir it be now  settle the estate escheat subject to the mortgage and the money must be pay to  the personal representative but suppose mortgagor die sans heir shall the  mortgagee hold the land absolute if he demand the money of the personal  representative shall he have the money and the land too if not to who shall he  convey it if to the king then a right of escheat follow in equity by old woman  Eden logy I do not say on any ground establish what must be the deter Eden er  p mination in that case vide Eden the master of the roll opinion upon this  point and Eden it must be upon reason not upon principle yet settle whether it  may not be reasonable under particular circumstance can be question this court  do not act arbitrary but by a system of equity which be as much the law as  that on the other side of the hall in case of felony shall the trustee hold  against the felon if pardon or against the heir of the ancestor execute  although the king will restore it vide l Eden can answer it upon principle I  can find no clear and certain rule to go by and yet I think equity shall  follow the law throughout yet I be satisfy it must shake common sense that the  heir of a attorney or trustee shall take the estate from the family of the  owner the king and every body else the least analogy to any legal right ought  to be prefer to the trustee who be the mere form and instrument of conveyance  Thruxton v attorneygeneral show a right by escheat be a ground to come into  equity against a trustee to pray conveyance palmer v attorneygeneral before  Lord Nottingham after state the case he concludesNote if a forfeit mortgage in  fee escheat to the king yet mortgagors equity of redemption be not lose though  the king come in the post if then there be equity against the king escheat why  shall there not be equity for it and so he order a case to be make and argue  and decree that there be a equity for the king escheat the exclusion of the  trustee from all benefit be sure in the contemplation of the party to  determine otherwise will be to contradict the deed of the Eden death of  beneficiary and trust sans heir be not at all think of they have declare the  trust and that there shall be no other whatever result necessary from the  agreement be the intent of it the hold to other purpose than on the trust can  never be intend he be to hold to no other purpose it have be say the  declaration and agreement can extend to the land for that the trustee hold it  subject only to the trust create by or arise from the deed and if so the lord  here take a interest which can not even have be give he by express limitation  for it be say that the trust can not have be limit to the lord on failure of  heir to mrs Harding because it will have be a fee on a fee and therefore void  Vaugh but I apprehend that the limitation of a trust to the lord fail heir of  mrs Harding will have be good because such a limitation will have be good in  law and be imply in the conveyance of every legal fee upon the whole I think  the king be entitle to a decree but if I be wrong in the principle I go upon  or as be possible in the application of they if the deed of have convey a new  fee and change the line of heir upon which the escheat be to arise in this  court as well as at law then as between the heir ex part of a mother and the  trustee I think the heir be entitle to a preference and a decree before Henry  if a man convey to the use of himself and his heir the chancery think that no  change of the seize be intend by such conveyance and they decree the estate to  go as the old use will the court never decree against estate in the post the  trust shall ensue the nature of the use execute but if settle that the lord  shall not be entitle by escheat as if the old estate continue and then a new  question arise between the heir of the old purchase and the Eden trustee  Elizabeth Harding be seize ex part of a father and whether she have require a  new fee can only be dispute by the lord of the fee   Litt the feoff can  restrain the rend or condition to the paternal line suppose trustee covenant  to convey to mrs Harding and her heir he can say that it be restrain to her  heir ex part of a father if he have reconvey to her in this case it will have  descend to the heir of purchase and consequent in the event that have happen  to the maternal heir and there be no instance where a trustee can by delay  conveyance create a benefit to himself though he be never call upon so to do  when the blood of the grantee fail the lord be entitle in justice to the  maternal heir entitle under the old investiture it be before the statute of  Henry and be now presume in equity that the owner mean no alteration of the  old seize by the conveyance in trust which leave the estate and ownership as  it be so that the conveyance leaves the estate just as it be I think the  reason shall not be confine to the heir under the old investiture but shall be  extend to the lord but if the lord be out of the case there seem no reason to  confine it to the maternal line as between the heir and the trustee as between  mrs Harding and her trustee the deed of be a original act and the trustee  title be whole Eden er p derive under this deed and every reciprocal  engagement on his part to mrs Harding and her heir be confine to that deed  both line be of her blood and within the term heir in the agreement and within  the express term of his undertake and not only by necessary implication but  the trustee be intend to take no benefit himself from the natural affection  which mrs Harding may be suppose to have for all the heir of her blood there  be no case that the feoff shall exclude the heir by purchase for his own  benefit no say in Eden the book before or after Henry to this purpose and in  my apprehension it be as much against conscience as law upon the reciprocal  agreement to establish a trust for his own benefit and to restrain his  engagement make to Elizabeth Harding and her heir to the paternal line seem  unreasonable with regard to the preliminary point they be so clear that I  shall say nothing upon they I be sorry to have take up so much time I think it  necessary to do it as I differ from so great authority the Lord keeper there  be one objection and two claim upon which I be now to deliver m I agree entire  with the Lord chief justice and his honour as to the objection as to the other  point I think myself very much oblige to the Lord chief justice and his honour  and return they many thank for their learned assistance and their free and  unreserved communication of their sentiment to I during all the time that this  matter have be under consideration I shall first take notice of the claim of  the crown because several of the argument which I shall make use of on that  will tend to support the opinion which I shall give on the other claim the  question upon the information in this case be whether the beneficiary and  trust die without heir the trust be escheat to the crown so that the land  maybe recover in a court of equity or whether the trustee shall hold the land  for his own benefit it arise on this case mrs Harding be seize in fee ex part  of a father January convey to trustee of who sir f page be the survivor the  land in question in trust for mrs Harding her heir and assign to the intent  that she shall appoint such Eden estate and to such person as she shall think  proper and to no other use intent or purpose whatsoever mrs Harding make no  appointment but die without heir ex part of a father upon which case the  information charge that the trustee have not any beneficial interest by the  indenture and fine but be only nominal trustee for the benefit of Elizabeth  Harding or such person as she shall appoint and in default of such appointment  for her heir on the father side and she be dead without any heir on the father  side and without make any disposition by will or otherwise sir f page take no  estate for his own benefit but be a trustee and hold for the benefit of his  majesty who stand in the place of the heir and that the say premise be escheat  to his majesty the question therefore be a question mere of tenure and the  right result therefrom ob diminution to hold and not a question of forfeiture  the method in which I shall consider it be this first what be the right of the  crown and other lord with regard to escheat at law second whether they can or  have receive different consideration or modification in a court of equity and  in the course of this argument and in the conclusion of it I shall give such  answer as occur to I to the reason which have be urge in support of the  information and from the whole will be see the ground from whence I draw this  conclusion that the crown have in this case no equity I will be as little  tedious as I can consider how large and able this subject be discuss at the  bar and the less so because I shall as much as possible consider this right as  it be settle and describe by our municipal writer and reporter without examine  or regard what it be in other country where the law Eden seem to have be  calculate for empire and vassalage neither of which will I hope ever creep  into our system and I think I be warrant in this observation by the feudists  themselves one of who I shall quote to justify I in neglect all the rest Craig  enumerate the cause of amission of the feud thus incest or incestuous marriage  fratricide parricide in a large sense friendship contract with the lord enemy  reveal the secret of the lord if they may affect his life reputation dignity  or patrimony the nonproduction of any of his family to answer the lord last  all other cause in the discretion of the printer Eden er p the legal right of  escheat arise under the law of feoff by which with we the lord give the land  to the tenant and his heir under a tacit condition to revert if the tenant die  seize without heir Mr fazakerley in the observation allude to in the note at  the end of this case suggest a doubt as to the propriety of this doctrine  inasmuch as it suppose a priority of the dominion antecedent to the creation  of tenancies whereas manor court baron the old tenancies and escheat seem of  equal antiquity without any priority all of they take their rise from the  commonlaw that it be the very essence of a manor to have demesne and service  the want of either be a destruction of the manor and consequent there must  have be tenancy in be or create at the same time when the manor be first  create because a manor can not exist a moment without tenant subject to  service and further that court baron be incident to every manor and though the  court be hold before the lord or his steward yet the suitor videlicet the  tenant be the judge for these reason he conclude that some tenant be as  ancient as manor themselves and if so it be difficult to say that the law of  escheat arise under the law of feoff to the tenant and his heir which suppose  a priority of the domain before there be any tenant Cox ms this reason be open  to the same objection as that make by sir m wright n to the doctrine of brook  roll and finch videlicet that the like reason may have prevent any manor at  all for the court be dependent on the manor not the manor upon the court the  manor be the principal the court only the incident see also Watkins on  copyhold this be the Eden last and most liberal feoff for it be different at  different period of time the extension of the feudal donation or feoff from  the person of the tenant to the heir special of his body or to the heir of his  body in general and then to his heir and assign be curious trace and account  for in a book proper entitle a treatise of tenor by a learned hand wright  tenor this latitude give to the donee to hold to himself his heir and assign  reduce the condition of reverter to this single event ob diminution to hold de  jure in f n b title Writ of escheat to Edward foe it be say the writ of  escheat lie where the tenant who have a estate in feesimple of any land or  tenement and hold they of another die seize without heir general or special  the lord shall have the writ of escheat against he who be tenant after the  death of his tenant and by this writ he shall recover his land because he  shall have the same in lieu of his service now the book be uniform that in  this event alone except in the case of tortfaisors the escheat take place as  long as the tenant in fee stand by himself by his real representative as  tenant or by his own act or imply Eden assent to the seize of another supply  the lord with a tenant the land can never escheat the law seem to have have no  regard to the tenant right to the land but only to his right of seize and  therefore in every case where the tenant be seize de jure no escheat can  happen on the death of that person without heir who have undoubted right to  the land in roll ab cite from r if tenant be seize and the seize by fine grant  and render the land to one in tail remainder to another in fee and after the  tenant in tail die without issue and he in remainder enter and after the  disseizee die without heir this right shall not escheat to the lord because he  have another tenant by title if there be lord and infant tenant and the infant  make a feoff in fee and execute it by livery of seize with his own hand and  afterward die without heir the lord shall not take the benefit of any escheat  Whittinghams case Rep so in the two p bro ab title Ent Cong p Markham I pur  lie si signior et tenant be et tenant be disseizee et defy sans heir Le  signior poet enter pur leschete car ill be torcious faisor opposite direction  sur lheir Le seize you son feoff car ils be eins per title so in Inst foe b if  the seize make a feoff or die seize and after the disseizee die without heir  then there be no escheat for the lord have a tenant by title the answer give  by the Lord chief justice to these several case be that the lord by the  general grant or investiture to the tenant his heir and assign virtual assent  to and be party or privy to the introduction of the new tenant but this seem  to be no answer to the co see of person come in by title under tortfaisors and  beside it prove too much because it prove the right of Eden the trustee who  hold against the lord as assignee of the legal estate I think from these  authority it be as well find as any proposition in law that the law do not  regard the tenant want of title as give the lord any claim by escheat the next  consideration be whether equity have consider or can consider the matter in  any other light that be to say whether when the tenant do not die seize but  there be at his death a legal tenant by title and consequent the lord seignory  and service still continue this court can say to the lord your seignory be  extinguish in equity to the tenant your tenancy be extinguish also though both  be legal right and both subsist at law it seem pretty certain that in the  consideration of use with regard to escheat court of equity proceed upon the  same principle as the law and if there be a tenant seize of the land to  perform the service have no regard to the nerun law of the tenant the reason  why there be no escheat on the death of beneficiary and use without heir in a  court of equity seem to have be that on such event no use remain and  consequent there be no ground for issue the subpoena a use can not be extend  further than the beneficiary and use can have hold the estate in possession to  he his heir and assign Eden er p mic t e signior et tenant be Le tenant feoff  un sans volunt express et fait felony et be attaint qure who avera Le subpoena  Le signior navera this be a express declaration as far as the authority of the  yearbooks go that the lord in this case have no equity for the subpoena Lord  Bacon in his read on the statute of use Eden foe cite this case and do not  question the authority of it but seem as far as I can conjecture his meaning  in that misprint passage to give this reason because the feoff intent note  shall be feoff and vide Mr row edition page and the ingenious note to it where  the whole passage be render complete clear be never to advance the lord but  his own blood that be as use be raise and direct by the intent of the party  and the party intent be confine to his own blood the use vanish with that and  the estate upon failure of heir be discharge of all equity and consequent of  all equitable I do believe that mrs Harding when she execute this conveyance  have no consideration of the preference of the trustee or the crown but have  the come be put to her whether on the event which happen the crown or trustee  shall have the estate I can but think she will have prefer her friend and  trustee before the crown but it be say by the Lord chief justice that the  crown will take as assignee the trust express under the word assign in the  deed or that a trust after the declare trust will result accord to the  incident on the estate at law if no conveyance in trust have be make as to the  first in our law the word assign be void it be expulsion out the dawn queen  tacit sew up and nothing service and must therefore be confine to the actual  assignee as to the second a trust can only result in lieu of the inheritance  convey without consideration but none in this can see be convey by the lord  ergo none can result to he nun can I think be declare for the grantor can not  limit a fee on a fee and a limitation and reverter be obvious different as I  be now state the law and equity of escheat with Eden respect to use I will  take notice of a objection urge with much force and which equal affect use and  trust a dilemma be advance in support of the information and as one great  basis of its equity videlicet that the lord must have the escheat either on  the death of beneficiary and trust without heir or on the death of the trustee  without heir discharge of the trust but if he can have the escheat in equity  while the trustee stand tenant it will be monstrous and absurd that the  beneficiary and trust shall be prejudice in put the estate in trust for the  convenience of his family if it be so that on that event the lord shall take  it discharge I must conclude there be nothing absurd or injurious in it the  law be know and willing non fit in juria the creator of the trust determine to  take the convenience of a trust with its inconvenience it be most certain that  every man who create a trust put his estate into the power of his trustee for  if the trustee sell for a valuable consideration without notice no court corn  relieve he from his misfortune the result of his own act as I do not however  know that the position that on the death of the trustee without heir the land  shall escheat discharge of the trust have be judicial determine I shall give  no unnecessary opinion upon that point note though the point have not be  judicial determine yet Lord Macclesfield in peachy v the duke of Somerset  stram have treat it as quite clear that if the trustee shall die without heir  the lord will be entitle by escheat without be subject to the trust but so far  be clear and certain that unless trust can be distinguish from use the most  learned judge see that the only stipulate point of reverter be the event of  default of a tenant in that event alone the escheat can take place in law or  equity and that the right of the lord be paramount the trust can not be affect  with it Rep foe chudleighs case the lord by escheat Eden shall not stand seize  to a use because he be in by title paramount to the use scilicet by force of a  condition in law tacit annex to the estate of the land at the time of the  creation of the seignory and the tenancy come in lieu of his seignory which he  have to his own use and also he be not in in the per that be to say in privity  of estate to which the use be annex and foe in the same case Popham c I say  the reason why the lord by escheat shall not stand seize to a use take it as  know law that he shall not be by reason of his elder title which title be high  and elder than the use and confidence be and therefore shall not be subject to  it it be here to be observe that the expression shall Eden er p not stand  seize to a use must mean shall not be responsible to the subpoena because a  use be a nullity and of no consideration in law but for my own part I do not  think this a necessary dilemma as the logician call it the lord may not be  entitle to the escheat on the death of beneficiary and trust without heir have  no equity because he have still his tenant and service he may perhaps I say  perhaps for I mean to give no opinion on this point be charge by the strength  and refinement of equity together with the legal reformation of tenor with the  trust because I can suggest a case where this court can not allow the lord to  retain a compensation for the service that now subsist at law and then no  injury be do to the lord it seem to I therefore clear that during the  existence of trust under the name of use to the time of their extinguishment  or rather new model after the statute h court of equity as well as court of  law confine escheat to the original compact ob diminution to hold and in truth  the concurrency in judgement of this Eden court and the court of law upon  escheat be so full establish and with such harmony in the book that it be  admit at the bar that if modern trust can not be distinguish from ancient use  the precedent will be too strong against the claim of the crown in this  information it be undertake therefore to show a difference and use be  represent as bad modification of property destine to ill purpose and  discountenance at law but in this respect trust may and often do resemble they  be form for the worst purpose I have see several make pure to promote fraud  and some to subvert the present constitution but this be not the essence of  the one or the other it be the abuse of both the Lord chief justice admit if I  understand he that in essence they be the same but that in the principle and  rule apply to they the difference be great I think on the contrary that there  be no difference in the principle or rule though there may be in the extent of  application of those inciples and rule geometry be the same in the time of  Euclid as in that of sir Isaac Newton though he apply the principle and rule  to effect great discovery and more important demonstration but let we see what  they be and we shall see wherein they differ Quant ascun home ad ascun choose  all auter use sur confidence and auter prendera less profit cesti who avera  less profit be dit daver un use Le quel use all common lie to be account riens  mes un matter en conscience et chancery solement finch deal lie b Ch f b a use  say the other book be neither law in re nor ad remember but a confidence rest  in privity of person and estate without remedy but in a court of equity what  else be a trust what other definition can be Eden give of it No other be  attempt but it be say since the existence of trust since the statute equity  have model they into the shape and quality of real estate much more than it do  in early time when they be call use it have make tenant by the courtesy permit  tenant in tail to suffer common recovery c and why because equity follow the  law and as between the beneficiary and trust and those claim by from and under  he it be equity that he shall be consider as formal possess of in that estate  of which he be and appear substantial owner but this be only the effect of the  equitable jurisdiction grow to maturity and be a accident that to a degree  accompany use as well as trust Lord Bacon observe that they grow to strength  and credit by degree and as the chancery grow more eminent the quality of they  be the same from their first existence to their extinguishment a use say that  great writer be nothing but a general trust where any one will trust the  conscience of another better than his own estate and possession which be a  accident or event of human society and will be in all law and be of the same  kind as the trust undertaking in the Roman law Lord Nottingham very great in  the knowledge of law and equity in the case of Lord grey v lady grey Ch can  finch car where the question be whether a purchase make in the name of a son  be a trust or advancement be of opinion it be the latter and that there can be  no constructive trust in such case he ground himself on this observation all  the book be agree that a feoff to a stranger without consideration raise a use  to the feoff but a feoff to the son without consideration raise no use by  implication to the father Eden and then he add this impressive question how  can this court justify itself Eden er p to the world if it shall be so  arbitrary as to make the law of trust differ from the law of use in the same  case Lord Talbot opinion as to the identity of use and trust concur in the  case of the attorneygeneral v Scott for mic Geo and Lord Hardwicke seem to  have entertain the same sentiment in the case of Goodwin v Winsmore atk mark  it be true this court have consider trust as between the trustee beneficiary  and trust and those claim under they as imitate the possession but it will be  a bold stride and in my opinion a dangerous conclusion to say therefore this  court have consider the creation and instrument of trust as a mere nullity and  the estate in all respect the same as if it still continue in the seize of the  creator of the trust or the person entitle to it I entire agree that the rule  and maxim relative to succession or other circumstance of property be by no  mean to be question by individual or judge while they be allow and acquiesce  in the consent of the people be the best testimony of their utility and wisdom  nun but the legislature can presume to examine or change they I have therefore  the strong propensity to direct equitable by a strict analogy to legal  property I think the nature of my reason show it and therefore I think it a  fallacy in this case to suggest that there be a doubt whether trust shall not  imitate land in my opinion they have do so from the early time without any  distinction but what arise from the imbecility or strength of this  jurisdiction my objection to the claim in the information be that it Eden be  for the execution of a trust that do not exist where there be a trust it shall  be consider in this court as the real estate between the beneficiary and trust  and the trustee and all claim by or under they and the trustee shall take no  beneficial interest that the beneficiary and trust can enjoy but for my own  part I know no instance where this court ever permit the creation of a trust  to affect the right of a three person the transmutation to a trustee be the  same in its consequence as the transmutation of possession without a trust it  convey to the trustee the legal burden and it invest the trustee with the  legal privilege the trustee be tenant to the praecipe and liable to all  onerous service a special privilege of the high benefit annex by the commonlaw  to the possession of land can not be separate retain or suspend by the creator  of a trust the right of vote for coroner sheriff and member of parliament the  legislature be oblige to interpose for that purpose W c can this court say the  conveyance be a nullity the trust alter the jurisdiction the substantial owner  the beneficiary and trust shall alone be sue in this court and the event in  the trustee family shall be barren of service heriots relief c to the lord and  to preserve the principle contend for with consistency it must be so say to  make safe ad the lowest it appear therefore to I certain that at law there can  be no escheat while there be a tenant de jure that in equity there be none  while trust be call use and that trust and use be essential the same can I  possible think that I have authority to say that every lord in England shall  lose his legal right of escheat in all case Eden where any man for his own  convenience have put his land in trust it strike I that this will be law dare  not law to dedicate more than two century have elapse since use have be  extinguish and trust have arise yet I find not a dictum in any book that  countenance the present claim of the crown on the contrary there be the  opinion of the able writer in the law and a judicial determination against the  right of the crown by a court in which preside one of the able and most  learned judge that ever adorn the profession hale p c foe speak of the  forfeiture of trust in treason say but where the king or a common person be  entitle to a escheat in felony there by the attainder of beneficiary and trust  neither land nor trust escheat for the escheat be only ob diminution to hold  and in this case the king or lord have his tenant as before namely the feoff  in trust who be attendant on the lord or king for his service and by the  attainder of felony of the feoff the lord shall have the land discharge of the  trust it be observable that this accurate writer say that by the attainder of  felony of the feoff the lord shall have the land discharge of the trust he tie  up the case to the attainder of felony which make a escheat ob diminution to  hold where the lord do not come in in the per but by title paramount for where  a person come Eden er p in in the per he take subject to the term impose by  the forfeitor stand p c foe b Pimbs case more Hixs case palm the judicial  determination be the judgement in sir George Sandss case and car side more  full that report hard the case be in every body memory the court there have no  difficulty upon Eden that part of the case which be applicable to and in point  with the present all the difficulty arise on the devise of the term whether it  vest in the felon as a term in gross and become forfeit or whether upon the  whole will it attend on the inheritance and therefore after diverse argument  on the case Lord hale deliver his opinion thus there be no question concern  the forfeiture of the feesimple in trust for that must arise by escheat and  there can be no escheat but pro diminution to hold but here be a tenant in be  but whether sir George sand shall hold the land discharge of the lease or the  crown shall have the term be the sole doubt e t car it come on again the baron  hale and turner deliver their opinion and concur turner b find himself on    marq Winchester case   cro James it be then object as it be now as it be in e  who shall have the trust the chief baron answer sir George sand shall now hold  the land discharge of it as in the case of a grantee of a rend in fee who die  without heir the tenant of the land shall hold it discharge of the rend  because there be no other that have any title to it now this illustration by  the extinguishment of a rend the grantee die without heir or assign be a  answer to the objection much insist on of want of right and title in the  defendant the grantee purchase the rend for a full consideration pay the  grantor grant a perpetual rend out of his estate a event happen by which there  be no owner in existence to call for it the consequence be the grantor take  the rend without any other right than that there be nobody to demand it but  how come the law not to devolve it on the crown quasi transalpine hres because  confiscation be repugnant to the genius of a free country and the law of  England Eden seem to have confine they to the single case of a vacant  possession where they do not operate as penal forfeiture and that not so much  for the sake of the crown as to prevent disturbance of the public peace in  society the judgement that I have state be a authority in point great effort  have be make to weaken it Lord hale ability in equity a little question that  will not bear comment uponthen he must be suspect of a little undue compassion  and be determine a general important point with regard only to the  compassionate circumstance of that case but this observation be as little  warrant as that of his want of ability for his determination right or wrong be  find on large general principle and baron turner be pass by without the least  respect pay he and all the writer since who have adopt this determination as  law I can help here remark that not one of these great man in adhere to the  abovementioned opinion be frighten out of their determination or so much as  alarm with consequence that now appear so formidable and affect perhaps they  consider that no one will be liable to these dreadful event but by his own act  and election that every one may answer the exigency of his own family by the  use of trust and yet execute the limitation in fee and that a court of equity  do not sit to alter the law in order to cure the oscitancy or inattention of  conveyancers whether these consideration affect they or not I can say but I  profess they have that weight with I that have I the power I shall not have  the inclination to alter the law with respect to the point now under  consideration however I think it become I to examine particular the ground and  magnitude of the terror suggest Eden it be say upon the first conviction of  felony where the king regrants or pardon mankind will be shock that the  trustee run away with the estate vide Eden now let we see the extent of this  objection which suppose that if the crown can have the escheat of the trust  this direful calamity will be prevent in every case where the king be not lord  his pardon will signify nothing for the escheat arise on the judgement and if  any compassion be due to the felon it be the same whether his estate be  forfeit to the lord or trustee indeed where the king tenant be attaint of  felony and his estate be in trust it will not be forfeit pursuant to the  opinion that I hold and therefore can be regrant but if in that case the king  think prop to pardon the felon what hinder he from sue his trustee what hinder  he from instant assign his trust for the benefit of his family Eden er p which  be all he can have do in the case of a regrant have it be forfeit to the crown  for the king by his pardon can not have purge the corruption of blood or  restore the descent it be say the king upon a legal estate shall be liable to  a equity of redemption vide Eden I do not know that it have ever be so  determine Lord hale think the king shall because it be a ancient right which  the party be entitle to in equity baron Atkins think the same because he see  the same equity against the crown as against a common person yet it be  observable that there be in that case Pawlett v attorneygeneral a recognition  of the equity without any declaration of the remedy whether this remedy have  since be settle in the exchequer where alone it can I real do not know but I  hope it Eden be so settle for I see a great deal of equity to support the  opinion of hale and Atkins a mortgage be a assignment on condition the  condition be perform the conveyance be void ab beginning equity dispense with  the time and when the money be pay the conveyance be void in equity and  conscience I will by no mean have it understand that I think there be any  equity that the crown can avail itself of and I hope that there be no equity  that the subject be not entitle to against the crown but I own upon very  diligent inquiry and consideration of the case I at present think the arm of  equity be very short against the prerogative the next be a objection by invert  the case of a mortgage and it be ask suppose the mortgagor die without heir  shall the mortgagee hold it free of redemption I suppose the meaning of that  question S shall not the lord have the equity of redemption or else it be  nothing to the present purpose if that be the question it seem to I to be the  same with the present and admit of the same answer the lord have his tenant  and service in the mortgagee and he have no right to anything more perhaps it  will not be difficult to answer what will be the justice of that case but it  be not to the business in hand vide Fawcett v Lowther Ves and the observation  in Gordon v Gordon Swa and note at the end of this case for these reason and  authority I be of opinion that the information ought to be dismiss I shall be  very short as to the claim of the heir ex part of a mother because that claim  seem to I to depend on principle in a great measure examine under the precede  question the judge have in this case give their opinion in which I concur that  if no estate have pass to the trustee by this conveyance or if it have not  Eden be execute the inheritance will not have descend to the heir on the part  of the mother No question be refer to the judge whether if by this conveyance  a use have be limit and not a trust anything will have descend to the heir on  the part of the mother the law be clear and settle that a use must ensue the  nature of the land and retain the same quality and whether the use result or  be express since the case of abbot v Burton salk Godbolt v freestone lev and  Martin v Strachan stram will cit t r et vide row v Baldwere ib there be no  difference roll in his ab Vol foe insert this title use all common lie et  trust over and then add shall ensue the nature of land in descent whether  borough English gavelkind or of a seize ex part of a father and the technical  reason seem to be awery plain one that in such case the use be the old use  that remain in the grantor so a equity of redemption Fawcett v Lowther Ves the  trust and use be essential the same I can but consider this as a trust  descendible to the paternal heir only and that as it will not have descend to  the heir ex part of a mother have it be a use execute the plaintiff burgess  can have no right or claim to the trust in this court and therefore his bill  must be dismiss except as to the mill c my Lord chief justice be of this  opinion when he give on the first point his opinion for the crown but he  conclude that if the conveyance of operate so as Eden to bar the lord of his  escheat it give a right to the heir ex part of a mother but for my own part I  can possible see any such consequence for I conceive the conveyance make no  alteration in the use or trust but that the operation of it in bar the escheat  be by bring a legal tenant to the land which while the lord have get be retain  his service and can have no escheat in law or equity Eden er p the escheat  have no necessary but only a casual contingent accidental dependence upon the  old use that use may be determine and no new one raise and yet the lord have  no claim to his escheat for instance suppose mrs Harding have never execute  this conveyance but have be seize and the seize have die seize or make a feoff  and mrs Harding have die as in fact she do without heir ex part of a father  the old use in mrs Harding will have be determine yet the lord will have be no  near the escheat than if she have leave heir shall I be tell here be a new use  acquire by the seize by operation of law which will bar the escheat I will  answer and I think with a better grace here may be a new use acquire by the  trustee by operation of law and his own conveyance he have as much a use as a  seize there be no variance make in the use by mrs Harding she have make a  tenant to the estate that tenant in my opinion be a bar to the lord claim I be  therefore also of opinion there be no alteration of this use the consequence  be that the heir ex part of a mother can be entitle to any part of this estate  except the mill and close under the deed of that as to all the rest the  original bill must be dismiss and the information on the part of the crown  dismiss total this important case which divide the bench also cause great  difference of opinion in the profession there be among Mr Cox ms in Lincoln  inn library a elaborate discussion of the argument from the pen of Mr  fazakerley conclude in favour of the right of the crown upon the maxim of  equitas sequitur law he do not however advance any new objection to the  opposite opinion find on the strict nature of escheat ob diminution to hold  and the want of equity in the crown to compel a conveyance of the legal estate  in consequence of the determination of the trust before advertise to  subsequent case it may not be improper to notice the distinct opinion give by  Lord Macclesfield in peachy v the duke of Somerset stram that if the trustee  shall die without heir the lord will be entitle by escheat without be subject  to the trust the person who be the legal tenant be subject with regard to that  estate to all the imbecility of that estate if not he observe by the mean of a  trust a copyhold will be entire discharge from all those imperfection it  labour under and the lord interest be take away for the lord can take  advantage of nobody act but those of his tenant we may next remark that Lord  Hardwicke in a case which occur subsequent to his suggestion ante p of the  necessity of make the attorneygeneral a party to the suit Fawcett v Lowther  Ves though he desire to be understand as give no opinion upon the point yet  seem to have incline against the escheat he observe though it be a  considerable argument that otherwise there will be a end of escheat because  all the land in England will soon be in trust yet that be contrary to the old  doctrine it be contrary to the law before the statute of use when use be mere  trust Reg lib a fol Eden Eden er p the first case in which the determination  in burgess v wheat come to be consider be Middleton v spicer bro c c it be  general think Ves jun that the opinion of Lord Thurlow coincide with that of  Lord Mansfield but whatever may have be his private opinion upon the point the  decision at least in that case do not in any degree affect the authority of  burgess v wheat it relate to a different subject matter and be find Eden on  entire different principle the question be one of vacant possession and  therefore a question of prerogative in burgess v wheat it be a question of  tenure the claim of the crown be admit on both side to be seignioral and not  prerogatival the next case be walker v den Ves jun though burgess v wheat be  much rely upon by the counsel for the trustee yet the two case be entire  dissimilar in that case a testator have direct money to be lie out in manor  land tenement tithe or hereditament or very long term with limitation  applicable to real estate the money not have be lie out the crown be hold on  failure of heir to have no equity to have it array out on real estate in order  to claim by escheat the next case be Barclay v Russell Ves which however be  also like Middleton v spicer a case of vacant possession Lord Rosslyn there  remark without disapprobation that the ground of the present decision be there  be a terretenant the next case and the one which approach the near to the  present be William v Lord Lonsdale Ves that be a devise of copyhold duly  surrender to a and his heir in trust for b and his heir b die without heir  though it have since be determine in the king v Coggan east contrary to a  opinion there express by Lord Rosslyn that the court of king b will compel a  lord by mandamus to admit the heir of a trustee to enable he to try his title  yet that case have establish that as between the lord and the heir of the  trustee claim to be admit a court of equity can not interpose that a person  have the legal estate and only the legal estate can come into equity for any  purpose his lordship consider that case as the converse of burgess v wheat  which he rely upon as apply for the defendant that the ground of the decision  in that case be the want of jurisdiction in the Eden court the crown have no  title by subpoena and upon the same ground his lordship dismiss the bill in  that case the last case be henchman v attorneygeneral sim and saint in which  the doctrine be much discuss but which be decide like Middleton v spicer on  the ground of prerogative and not of escheat the above be the only opinion or  judicial decision which be at all connect with the present case it will be  observe that none of they impugn its authority and that some if they do not  express confirm it yet have tend very considerable to recognize and  countenance the principle upon which the master of the roll and the Lord  keeper find their opinion it have moreover be repeat state in argument Ves jun  sim and saint that Lord mansfield opinion have be treat by the profession as  erroneous and it may be remark that in the case of Gordon v Gordon Swa it be  consider by the party and seem also to have be the opinion of Lord Eldon ib  that in the event of a mortgagor die without heir the mortgagee will be  entitle to hold vide Eden