BURCESS v wheat a trust estate be not liable to escheat in the case of land  hold by descent from the paternal ancestor where the beneficiary and trust die  without heir ex part paternh the trustee shall retain they for his own benefit  as well against the heir ex part maternq as against the lord claim by escheat  march car one thousand year erm five hundred year mortgate term vest in  chandler S C Eden a see SC Eden er with note Tresent Lord keeper Henley chief  justice of the king bench Lord Mansfield sir Thomas clarke master of the roll  master of the roll the matter in question between 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 Blackstone er p 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 the case on which the matter arise be this Laurence  Bathurst be seize in fee of the manor of Lechlade c in come glouc and he have  a mind to raise a sum of money out of part of the estate by deed that march  car create a term of one thousand year and vest it in trustee in trust for  himself and his heir executor and administrator Blackstone Laurence Bathurst  in his lifetime as he have create a term to raise money make a mortgage for  five hundred year of that part of the premise for secure the payment of and  and that mortgage by several mesne assignment become vest in John chandler  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 his son subject to  the mortgage as to part the widow of Laurence Bathurst Q bow entitle b after  his death borrow a sum of money and assign over as a security the residue of  the one thousand year term sir Edward Bathurst die a infant in consequence of  which the estate descend to Ann and mary Bathurst his sister and coheir Ann  intermarry with John greening and mary with John Coxeter and thereupon the  husband and wife in right of the wife become entitle to this estate in  undivided moieties greening and his wife make a settlement of their moiety  August and covellanted to levy a fine to the use of such person c as the  husband and wife 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 mich Coxeter and his wife file a bill of 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 make a Blackstone exchange with her sister that be accord  accept and the allotment be exchange and conveyance execute march Ann greening  die not have join with her husband in any appointment in consequence of which  the husband by the settlement of become entitle to the inheritance of her  moiety and in December he die sans issue and the moiety descend to Elizabeth  greening his niece and heir ex part paternh be the only child of Thomas  greening his old brother she afterward marry with Nicholas Harding but  previous to that marriage a settlement c be make on the that and that August  of this moiety to the use of the husband for life then the wife for life  remainder to trustee to preserve contingent remainder remainder to trustee for  ninetynine year on a trust that never arise remainder to their 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  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 Coxeter die and his wife survive he  and release her interest in a moiety of the equity of redemption of the  premise mortgage to the mortgagee or some person in trust for he Harding and  his wife do not release their right in the mortgage premise but agree to  convey their moiety in the same way February and the mortgagee agree that in  consideration of l pay per Harding he or his trustee shall convey to Harding  his heir executor and administrator as he shall appoint the mill and close  with the appurtenance and the inheritance thereof Blackstone February Harding  and his wife perform their part of the agreement by convey a moiety of the  mortgage premise in trust for chandler and his heir but the mortgagee do not  convey the term and inheritance of the mill and two close to Harding and his  wife and the heir of the survivor d but there be a special covenant that till  a conveyance shall be execute he be to stand seize to the same use and Harding  and his wife continue in possession of the premise January there be no issue  male of the marriage a indenture be Blackstone er p make between Harding and  his wife of the one part and sir Francis page and Robert simmons of the other  part recite the settlement that August and covenant to levy a fine to assure  the premise to 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 as she shall by her will or other write  appoint and for no other use intent or purpose whatsoever e a fine be accord  levy there be in fact no daughter of the marriage but the wife survive the  husband and die without make any appointment and without heir on the part of  the father from whence the land descend but burgess the plaintiff in the  original cause be her heir on the part of the mother after the death of  Elizabeth Harding sir Francis page get into possession and in July this bill  be file against he by burgess and be die it be revive against his personal and  real representative bill pray that if there be any legal interest in sir f  page he shall be compel to convey to plaintiff deliver up possession and  account for the rend and profit sir f page by his answer insist that he be  Blackstone lawful seize of the inheritance of the estate and entitle to the  rend and profit on the July the cause come on to be hear and go off for want  of party the attorneygeneral be make a party and the cause come on again  before Lord Hardwicke chancellor the that February when a decree be make that  a case shall be settle and question state for the opinion of the judge in b r  the case be argue there and they have certify their opinion to the Lord keeper  queen whether by virtue of the indenture of the that January and the fine  therein mention any and what estate in law do pass to page and simmons or  either of they answ that by the indenture of the that January and fine the  reversion in feesimple after the death of Harding and his wife without issue  male do pass to pa and simmons queen in case no estate pass to page and  simmons or either of they by virtue of that indenture and fine whether though  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 answ in  case no estate have pass to page and simmons by virtue of the say indenture  and fine we be of opinion that the inheritance of the premise in question or  any part of they will not on the death of the say Elizabeth Harding have  descend to burgess as heir at law on the part of the mother queen in case the  say deed of the that January have not be execute or the fine levy but the same  be entire out of the case whether the inheritance 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 Blackstone answ in case the deed of the that 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 his wife and the  survivor of they and the heir of such survivor accord to the covenant in the  release of the d February they will have descend to the say burgess as heir at  law on the part of the mother 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  the information be now at hear and the original cause be now set down for far  direction this be the state of the case of the cause and of the several claim  of the party Blackstone er p I shall now proceed to consider these claim in  order first the claim of the plaintiff burgess as heir at law ex part maternal  in default of a heir ex part pattern a this claim I see no ground for consider  the certificate of the judge which Lord keeper propose to confirm the question  state for b r have leave the point open to the maternal heir if there be any  ground of right and Blackstone 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 be 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 that have the colour of equity is 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 pate riam will have go to  the heir on the part of the mother and that it be a rule in 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 f 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  honeycomb ur of every body but only of those who have a right to pray it may  be do the rule be that it shall either be between the party who stipulate what  be to be do or those who stand in their place here mrs Harding never pray 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 in 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 Blackstone 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 matelda 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 that 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 saint 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 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 they 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 thesubject as  one subject may with another it be clear the crown ray the office be  circuitous expensive and attend with the loss of mesne profit to the subject  the crown may refuse to alter the possession till the right be determine and  Blackstone only proceed by information of intrusion even where they 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 Blackstone er p Hardings seize conveyance to and the  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 rollands case alein but then it be answer  this 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 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 council for the crown in holland case and  he in sandy case Hardr show that the only proper 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 g objection 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  Blackstone court yet it may sue in what court it please finch h it may bring a  quare hinder or writ of escheat in b r it may have a quare hinder in b r  though there bag 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  but 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 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  jurdisdiction this bring I to consider the merit of the claim of the crown 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 first in what  situation it stand in respect to conveyance at commonlaw before the invention  of use second in what situation it stand with respect to conveyance to use  before the statute of Uoes be make three bow it stand since that 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 Blackstone 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 only have recourse to it occasional so far as I  find by our own writer 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 consider how escheat stand at commonlaw before use be invent a  escheat be in its nature feodal a feud be the right which a 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 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 Blackstone er p 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 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 escbeated or revert strict speak if there be a heir  and by legal impediment he can not take the land escbeated Bracton foe a  Edward pl bro escheat pl in short the reverter take place when the grant  expire natural and the heir fail in length of time in case of Blackstone  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 the tenant so be Spelman c the first variation be when the power of  alienation with leave of the lord be introduce then the heir no 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 coinfeoffed 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 estatetail because the issue take by descent but though he lie  down the law be do it 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 S fol so the tenant can alien andebange the escheat and  the lord be oblige to warrant such alienees the only restriction on the tenant  be that be can not prejudice the lord by lessen the service reserve bract foe  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 a 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  step effect the right of escheat which be not only to alien but to charge or  encumber the feud and the lord Blackstone be to take it subject to such  encumbrance wright ten spelm bract this power of encumber be more prejudicial  to the right of escheat than the power of alienation be that 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 far affect by act of parliament and judicial determination which subject  the land not only to 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 Edward and Edward 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 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 cestay and use be no  long tenant at law nor be the land liable   be subject to his encumbrance as  dower execution c chudleighs ease I but though the land be not liable at law  on account of the beneficiary and use yet it be still liable on account of the  feoff to use Blackstone er p bro feoff to use pl Poph king this defeat the  creditor of beneficiary and use and be find inconvenient person have action  against he be defeat tenancy in 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 of use thus h h c and other be make to restore  the fruit of tenure to the lord against beneficiary and use Blackstone 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 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 dascitur and as a use can vow 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 in equity 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 oequitatem and how secundum  rigorern 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 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 power to dispose of their own so do trust  from the convenience of families this the only motive that make mankind endure  Blackstone use and trust Bacon a conveyance with consideration without notice  bar a trust so it do 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 Hardr Bacon so it be as to  usestrusts 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 fool 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 will 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 it prove equity in construction of  trust to go by a different rule from the law in construction of use for 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 brother of a use king it be no  more than say the chancellor hold consultation with the rule of law where  there be no reason to go against they the instance prove the agreement  Blackstone between use and trust they agree with the legal system and the case  of tenant by 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 l 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 Blackstone er p  themselves it seem to have take its rise in Lord summer time bring Chanc in  Snell against clay vern tenancy per courtesy be allow of a trust though there  be a outstanding term brown against Gibbs m in bank against Sutton wms n sir  Joseph Jekyll make a observation on 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 Sweetap ple against bindon vern be the next take for  grant there shall be no tenancy per courtesy or in dower of a trust it be true  Lord keeper wright hold otherwise and allow a tenancy per courtesy of money to  be lie out in land I think this precedent do it seem fit to be allow because  the will on which that determination be admit a doubt whether the wife be  tenant in tail it be mention in bring Ch this have a correlate to the time of  her die the brother and sister then live in bank against Sutton sir Joseph  Jekyll do it approve any where of Sweetapple against 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 be may not have create such a trust the next endeavour be to  bring the husband down to a par with the wife but this be deny in chaplin  against Horner oh attorneygeneral against scot p and in Goodwin against  Winsmore Q per Lord Hadwicke Cas bear against lnglis r husband deny to be  tenant per courtesy by sir I Jekyll but that be reverse it be I own almost a  reproach to a court of equity Blackstone but shall not equity therefore follow  the rule of use shall it make another rule deviate from that I think that  there ought to be a conformity in 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 Hardr attorneygeneral against scot 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 have consider the right of escheat and how affect at commonlaw by  conveyance to usesand 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 bow far the conclusion I shall draw be  warrant by law and reason and under this bead I will consider what argument  have be urge against it suppose mrs Harding feoff at commonlaw of a trust  estate have alien to sir lb page she will have substitute he as a alienee  instead of herself for service and escheat if a escheat have fall which depend  not on 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 bow 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 oil mrs Hardings felony  Edward pl foe b authority in point against the lord claim and question who  shall have it if the lord be at law entitle to escheat on death without heir  or attainder of feoff to use and not on death c of beneficiary 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  Blackstone 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 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 mind but brook notion be  not so strange even by Lord Bacon own account from these authority it be  Blackstone er p 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 depend mere on that analogy but on other argument and  authority in point sir George sandy case S be in point and that and the Edward  mutual strengthen each other freeman be rather more accurate than Hardres as  Lord hale have a analytical bead 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 cursus  scacebarii or the course of revenue then be distinguish these case from a  escheat as find on a different ground for want of tenant then be 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 Blackstone as  to the inheritance the lord be entitle to service while tenant have the land  when no tenant to perform the one or bold the other the lord shall have it  here be a tenant de jure to perform they and so no forfeiture Trinity college  against brown I 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 sandy case it be say to be a compassionate ease 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 say he be a  young judge he have at that time a great deal of experience and his ability  werevery great I have see determination of the commissioner during the  interregnum that do he great honour the case of sir George Sandys be depend a  great many years argued by very great man p car m car and this add great  weight to the authority car hale and Trevor give their opinion it be say that  only two judge give opinions 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 he say that it be un  voice resolve so no doubt but all the judge of the court concur it plain  appear that it undergo his serious consideration on second think by the manner  be range his argument in his plea of the crown different from what be 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 the estate shall have  esebeated but I think escheat not find on want of heir but of tenant to  perform the service Fitzherbert V 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 power of aliellation want of tenant  and heir be the same thing Blackstone for at the death of the ancestor none  but the heir can be tenant another objection be that hale suppose the land  subject to trust will on the trustee attainder on death sans heir escheat to  the crown discharge of the trust whereas in equity it will be liable to the  trust and so 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 trust  without heir I think this position and inference not warrant by any judicial  determination Pawlett against attorneygeneral u and carter wonder and bring Ch  ten be cite to support it the first I shall consider by and by the other be  mere dictum of judge collateral and foreign to the matter in question in  carter the question be who shall be consider as occupant as to what Bridgman  say in Geary against 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 be may have relief in equity Bridgman say though equity may  relieve yet we must not take prejudice from knight against Lord Brid argument  at law the equitable part be not the opinion of Lord Bogmano plus only  anticipate a equitable objection that may be make against it whoever look  Blackstone er p into Geary against bearcroft will nine out of ten be of  opinion with the three judge against Bridgman now if he be mistake in his  legal point more likely 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  against England the same expression be not in Vernon that and this be a very  extraordinary medium of proof of which no precedent have ever be before he it  be prove incertum per eaque 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 Blackstone last case the question arise upon the  death of a trustee for l in the life of the testator whether the l legacy be  lapse Lord Trevor may have use many more similar and certain instance Pitt  against Pelham z must have occur to he where hold that death of trustee will  make no alteration in respect of the beneficial interest instance where  trustee for payment of legacy have die in testator life the estate have  descend to their heir and be consider as a trust and many much more similar  nun more difficult to prove and have be 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 be take but in respect of the consequence the crown take a estate by  forfeiture subject to the engagement and encumbrance of the petson forfeit a  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 regrant by the king the  grantee be a tenant in capite and all mesne tenure be extinct if land escheat  be regrant be 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 b 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 argument of  council who throughout confound forfeiture and escbeats 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 Blackstone when mortgagee be attaint and shall  halve equity of redemption when mortgagor be attaint for the trust charge the  land when non go out mask sir salathiel lovel case salk where 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 riot it be not every argument in law  or logic that hold e turning it fail here that the lord have as good 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 the  one case may lose therefore in his turn it be say he ought to gain but there  shall be a reciprocal right to have a reciprocal equity and this will be allow  a 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  sandy case attorneygeneral against 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 c 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 be take it for the benefit of the crown  by prerogative after use invent it necessary to settle where the use shall go  purchase for the benefit of a alien therefore stat r c and r be make to  enforce the commonlaw prerogative which else have be evade by 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 death of beneficiary  and trust the difference between take by prerogative and escheat be material  and Lord hale make the distinction Blackstone er p as to Pawlell against a  MorneyGeneral d it never come on upon the merit it be ademurrer only to a bill  bring by Blackstone 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  mortgage money 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 attorney 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 that be a matter of high nature  but be hold the executor and not the heir entitle to the mortgage money these  be the circumstance of the case what say Lord hale in Pawletts case that  though by the attainder of treason the estate be forfeit yet it be liable to  redemption in the band of the crown what do he hold in sandy 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 sandy case one be escheat 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 it be  dispute the other distinction between a mere trust and a equity of redemption  be rational take by hale in Pawletts case Hardr I conceive a mortgage be not a  mere trust but a title in equity d he say a trust be collateral to the land  and create by contract of the party and therefore one that 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  Blackstone 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 sandy case who son be beneficiary and trust of a term and attaint  of felony it resolve that the term be not forfeit because inheritance not  forfeit unde sequitur where inheritance be forfeit term be forfeit I therefore  think sir George sandy 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 result to he the trust of the legal estate can  only be coextensive with that 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 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 it be execute where no intent appear to create it save by  operation of law and a trust can it 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 it 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 Blackstone this be invert the  law itself for he claim in the post not in the per e it make the lord bold 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 feud increase the lord  diminish I admit the lord by escheat be call in some place quasi Blackstone er  p haeres 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 diminution  heir send near hindrance continuous to have loco lizeredis 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 eseb 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 death of tenant for  life or in tail shall be in without office and 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 f at commonlaw only feoff or his heir  can enter for breachn of condition grantee or assignee can not therefore the  stat Henry g 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 by escheat may distrain for rend  reserve to a and his heir   Litt sect as in the place of heir and so have  privilege equal with the heir I can it admit this right of distrain be a  privilege for his right of distrain be not as heir but as incident to his  Blackstone reversion and the same book say the lord can it 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 be do it  take it as heir but where he take the inheritance as escheat he take the term  as attendant upon and follow the fate of the inheritance accord to Sandys 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 roll  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 in other respect the deed can it 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 tenure as well as  the last at least why shall not the lord have the rend in equity every  Blackstone body know the land shall be discharge of the rend rather than the  lord shall have it h 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 rule of descent be  positive the instance put from the feodal 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 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 it 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 I shall the trustee hold  both against the crown and the beneficiary and trust whether be can keep it  against the crown be the case I in question but the detain it from the crown  where the beneficiary and trust have no relation be different from detain it  against the beneficiary and Blackstone er p trust himself if trustee shall set  up such a title it be a case that 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 king then it be say suppose mortgagor die without  heir shall the mortgagee hold the estate absolute and if he demand his money  too against the personal representative shall he have both land and money if  the mortgagor die without heir or creditor I see no inconvenience if the  mortgagree hold it absolute in the case of a forfeiture for treason it be  certain the Crovrn may redeem as in sir salathiel lovel ease l and as to the  supposition that the mortgagee may demand his money too that must 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 Blackstone as come in lieu of the personalty and as asset to answer  even simple contract creditor under these circumstance where be the great  inconvenience m 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 he have be pay for and keep the money too I think the lord can not pray  a conveyance to say be 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 band of the vendee n 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 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 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 be accrueing to the crown by the forfeiture but do 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 it 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 Blackstone can not complain here she  have pqt 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 on 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 oh but have no occasion now to enter into the merit of  defendant defence in bill of interpleader it be necessary to decide the right  because the money be bring into court so where trustee disclaim or desire to  be discharge and it be a contest between volunteer for trust money or trust  estate 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 bold 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 Blackstone er p many other case may be take notice of as the  mortmain Act where use be give to a corporation aggregate the stat r give the  lord a right to enter so where give to a body not corporate it be void but do  it say for who benefit it be void the lord can not claim it nor the party  against his own act so purchase by papist p 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 Q where  rend can not be recover c so Cowper against Cowper wms Blackstone 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 against Cowper before sir I 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 I Jekyll say I own I can forbear declare  that be I 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 so far from it that this declaration of his  be only a prelude to the determination he make I shall conclude with what be  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 patruni 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 or  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 deep imprint on the  mind of every judge r Blackstone these be my sentiment my Lord and as such  they be submit to your lordship judgement Lord Mansfield on the ground of the  case on the certificate the whole turn 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 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 on 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 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 by the deed of in this court as well as at law and  have the trustee convey to mrs Harding after her 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  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  and as if the deed of have never be make Blackstone er p Blackstone 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  paternh and oppose the king right because it have change the right of escheat  both 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 matern can inberit 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 and that will depend on argument  draw from the nature and effect of a conveyance in trust and from the to hand  over of the right of escheat I will follow the method that be use at the bar  under the four follow head saint the nature of trust of land and the rule that  govern they dly the nature of that right by which the king claim in the  present case dly 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 thly  apply the result of this enquiry as between the king and the trustee to the  particular point in immediate in judgement I as to the nature of trust of land  and the rule by which they be govern by a enquiry 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 Blackstone say right and interest in case where there be no  remedy but by bill in a court or 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 metaphysical  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 of chancery if use  before the statute of Henry 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 it bind where  the 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 S the law of use before the statute  be the doctrine that give rise to trust after the statute the struggle  afterwards 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  Blackstone conusance 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 Rome 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 second 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 Blackstone er p be  drive to chancery by breach of faith there be not six case of use before  Edward this time Tle dourt 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 kelw Subpcena lie only  against trustee himself till Henry and then fortescue change it Edward foe pl  this be against the heir but upon a reason that 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 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 rd the king though trust as a  private man and come in the place of trustee who be a Blackstone 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 f pl because the lord there 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 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 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 there be so many  inconvenience that use from a reasonable foundation be turn to a mean of  dispossess many of their legal right as the man who have occasion to sue for  the land do not know who to sue the wife be deprive of her dower the husband  of his tenancy by the courtesy the lord of his escheat the creditor of their  extent and the tenant of his lease for these right be give by law from the  true owner to the feoff t Blackstone many act be make to cure these mischief  in part and all look on beneficiary and use as the true owner in 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 put after the  statute that the use c by h v 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 stat Henry trust may be declare of that m to be execute in  chancery by the advice of the judge in dyer such trust be Blackstone er p 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 limit different way the real use shall not be raise out of the  nominal one Blackstone after this be force into chancery trust long fluctuate  under great uncertainty Inst in Elizabeth a trust be decree in chancery to be  a mere right of action and therefore not assignable in James sts time a  bingdows case u 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 fol 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 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 art use the  statute will 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 I Ch Cas circ car he hold a 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 coll against coll I Ch Rep it be hold the  widow shall not have dower of a trust in this court car Freem Ch Cas Pratt  against colt hold that the trust of a fee descend shall not be liable to  judgement creditor so the heir take it free from all encumbrance ten this to  car may show how they reason in Westminster hall upon trust Pitt against  Pelham that 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 any body he do not give any body power to sell be 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 precedent then a trial be order  in common plea to see whether Blackstone 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 cause 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 z in my apprehension 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 exigence of family and all purpose without produce one inconvenience fraud  or private mischief which the statute Henry mean to avoid the forum where it  be adjudge be the only difference between trust and legal estate trust here be  consider as between the beneficiary and trust and trustee and all claim by  through or under they or in consequence of their estate as the ownership and  as 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 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 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 and reason but because that wrong determination have mislead in too  many instance to be now alter and set right Radnor against Vandebendy a be  deter Blackstone er p Blackstone mine on that principle only in the house of  lord in bank against Sutton the argument of sir I Jekyll prove there ought to  have be dower of a trust and he stretch there to make a distinction in  attorneygeneral against Scott b that be not follow because it will shake so  many settlement in Casborn against inglis c 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 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 imitation every  thing I have hear read or think of it since have confirm that principle in my  mind in bank and Sutton d sir I Jekyll boggle at imitate the legal right which  depend upon a actual seize of the freehold 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 it will descend may be grant  devise entail and that equitable entail be bar by a common recovery 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 it come at but by subpoena 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 fix principle for it make 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 Blackstone 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 to conclude this bead 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 case of a purchaser for valuable consideration without notice the trustbe  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 it now subsist the principle upon which the question must now be argue  have no relation to it whichever 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 Dever interpose in case where Blackstone the claim be in the post and  there in Edward this time it be take for grant that the lord shall not have it  it be a fix principle that be shall not because be be in the post two this  bring I to consider the nature of this right by escheat it have be true say in  the beginning of feodal 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 no fruit but the extinction of tenure as Mr  justice wright say it the fee return this definition hold equal whether the  investiture be to special or general heir for original by Blackstone er p  feodal law 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 title any man 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 call tanquam haeres Craig c Lord take as transalpine haeres c  the resemblance of the lord right by escheat to the heir by descent do not  bold 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 Blackstone  reserve rend to he and his heir the rend will go to the lord as well as the  inheritance Thruxton against attorneygeneral I 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 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 III 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 escbeated shall be subject to the trust seem to I most consistent  with the king 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 S  Consideringit 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 another way of show the trustee to have be his tenant at all  the possession be with mrs Harding   the time of her death every alienation of  a fee have some investiture the land descend in the alienees blood and when  that fail the lord take but the lord can it claim against his own Blackstone  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 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 corporation  dissolve the land return to donor or his heir e the king can it claim by  escheat contrary to the term or condition which the tenant hold under two  thing that there be equity against the king 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 can 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 f  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  Blackstone er p that the lord by escheat ought to be subject to the trust Lord  Bridgman think so g in sir I Treyor upon the same principle think so in bale  against England h yet sir I Trevor certain know there can be no escheator 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 down by any erroneous opinion which have  prevail so far in practice that property will be shake by a alteration of  Blackstone they argument of convenience and inconvenience be always to be take  into consideration all the great estate of this kingdom almost be now limit in  trust the trustee be man of business probable concern for the family and at a  little distance of time their pedigree be not to be trace and if the survive  trustee be to die without heir it will be think very bare if that shall 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 now 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 consider as much his heir as his  heir by blood and be as much liable to all the disposition suppose a devise  ineffectual in 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 I be all these charge to be go and not carry into  execution and the estate to escheat free frome to be 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 take to subject the escheat to trust objection from copyhold  and the custom of manor there the lord can it be subject to trust but take the  estate on the death of the tenant without heir Blackstone 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 those copyhold the lord be not bind by debt  alienation or trust they be all void against he but if he consent to a  condition or trust on the courtroll then he be bind by it for he can it claim  against his own act king but in freehold the form of his concurrence not be  necessary be 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 it be permit to  consider he as tenant in case of heriot and relief brown case vern l 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 it be  hurt for a conveyance in trust will be void and fraudulent against the lord in  respect to 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 beriots 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 the estate and then no  colour for court of equity to interpose the trustee can it object because by  his own agreement he have make himself liable to the burden annex to the  estate and he can it be prejudice as the estate be a pledge in his hand to  reimburse he and where Blackstone 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 coin on the mortgagor door  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 object it say a mesne lord by  death of mortgagee without heir can take Blackstone er p 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 m 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 occur that the lord may continue the tenure  by accept the beneficiary and trust as tenant if the lord admit his 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 bold 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 it reconvey it but this will bold equal in the case  of mortgage and the 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 IV if what I have say he right  little be leave for I to say upon this head if 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 Blackstone entitle to a enquitable 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 ticestuy 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 Henry 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 sandy case n it have great weight but I can it 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  r freeman be all in the same interest if they have be adverse perhaps it may  have be argue that it result to lady Sandys the daughter all 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 on 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 that 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 Blackstone 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 the 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 on a principle that fail and  whatever be build upon it fail with it it be a matter of importance to settle  on 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 escbeats subject to the mortgage and the money must be pay  to the personal representative but suppose mortgagor die sans heir shall the  mortgagee bold the land absolute oh if he demand the money of the personal  representative shall be 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 analogy I  do it say on any ground establish what the determination Blackstone er p must  be in that case it must be upon reason not upon principle yet settle whether  it may not be reasonable under particular circumstance can it 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 trustee hold  against the felon if pardon or against the heir of the ancestor execute  although the king will restore it p can it 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 shock common sense that the heir of a  attorney or the 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  Blackstone Thruxton against attorneygeneral show a right by escheat be a  ground to come into equity against a trustee to pay conveyance palmer against  attorneygeneral before Lord Nottingham after state the case be conclude note  if a forfeit mortgage in fee escheat to the king yet mortgagors concerning  horses of redemption be not lose though the king coin in the post if then  there be equity against the king escheat why shall there not be equity for it  and so before order a case to be make and argue and deereed 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 intent of the deed of the 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 bold  to no other purpose it have be say the declaration and agreement can it extend  to the lord for that the trustee hold it subject only to the trust create by  or arise from the deed and if so here the lord take a interest which can t r  have be even give by express limitation for it be say that the trust can not  be limit to the lord on failure of heir to mrs Harding because it will be a  fee on a fee and therefore void Vaugh S 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 Blackstone as bet  ween the heir ex part matern and the trustee I think the heir be entitle to a  preference and a decree before Henry if a man convey to 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 trustee Elizabeth Harding be seize ex part of a  father and whether she have acquire a new fee can only be isputed by the lord  of the fee   Litt the feoff can it restrain the rend or condition to the  paternal line t suppose trustee covenant to convey to mrs Harding or her heir  he can it say that it be restrain to her heir ex part paternh 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 a conveyance create a benefit to himself  though be 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 stat h 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 paternal 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 derive under this deed and  Blackstone er p 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 Blackstone 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 the book before or  since h 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 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 Lord keeper there be one objection and two claim upon which I be now  to give my opinion I agree with the Lord chief justice and his honour as to  the objection as to the other point I think myself very much oblige to Lord  chief justice and his honour and return they my 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 first I shall  take notice of the claim of the crown because several of the argument I shall  make use of on that will tend to support the opinion I shall give on the other  claim the question on the information be whether the beneficiary and trust die  without heir the trust be escheat to the crown so that the land may be recover  in a court of equity by the crown or whether the trustee shall bold they for  his own benefit state the case Blackstone on that January mrs Harding 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  estate thereout and to such person as she shall think proper mrs Harding die  without make any appointment and without heir ex part paternh the information  charge that the trustee take no benefit but only for Elizabeth Harding and to  be subject to her appointment and that she be dead sans heir on the father  side and have make no disposition of the estate that sir f page can take no  estate for his own benefit by the deed or the fine but take it for the benefit  of his majesty who stand in the place of the heir and that the premise be  escheat to his majesty the question therefore be entire a question of tenure  and not of forfeiture I shall consider first the right of lord to escheat at  law second whether they have receive a different modification in a court of  equity three the argument use in support of the information and from the whole  draw this conclusion that the crown have in this case no equity I shall  consider the law of escheat as settle by the municipal writer in the law and  reporter and shall not regard what the law be in other country as they seem  find and calculate for empire and vassalage to which I hope in this country we  shall never be subject I will just give a specimen of the feodal law Craig  Causaa loss feudi these cause be incestuous marriage parricide fratricide  friendship contract with the lord enemy reveal the lord secret if they affect  his life or reputation outlawry not reverse and all other cause in the  discretion of the proator I cite this to relieve I from the doctrine of the  fendists the legal right of escheat with we arise from the law of feoff to the  tenant and his heir and then it return Blackstone to the lord if the tenant  die without heir the extension of the feoffinerit from the person of the  tenant to the heir special of his body and then to his heir and assign be  accurate trace in a treatise of tenor by a learned hand v this reduce the  condition of the reversion to this single event videlicet ob diminution to  hold de jure f n b a writ of escheat lie where tenant in fee of any land or  tenement hold they of another and the tenant die seize u without heir general  or special the lord shall have the land because he shall have it in lieu of  his service the book be uniform that in the case only of tenant die without  heir the escheat take place as long as tenant or his heir or by his imply  assent another continue in possession by title that Blackstone er p prevent  escheat the law have no regard to the tenant right to the land but in right of  his seize all these instance show that where there be a tenant actual seize  though he have no right to the tenement and though the person who have the  right die without heir yet the escheat be prevent for if the lord have a  tenant to perform the service the land can revert in demesne roll Abr  Whittinghams case wonder Henry heir of seize I Inst b feoff of seize upon  these case I will observe that the lord consent have nothing to do with  establish the right of the tenant be duly seize because in every one of these  case they all come in with the lord consent unless it may be say that the lord  be a virtual assenter as well to the disseizins as the legal conveyance and  then if that be so it will operate to the establish the right of the trustee  here who will say be be entitle under a conveyance in law by the very consent  of the lord which be a strong case than a seize from these case and authority  it must be allow to be settle that the law do not regard the tenant want of  title as give the lord right to escheat Blackstone the next consideration be  whether a court of equity can consider it in a different light now when the  tenant do not die seize and a proper legal tenant by title continue and  consequent the lord seignory and service continue can this court say to the  lord your seigiiory be extinguish and to the tenant your tenancy be so too  though both be legal right now subsist at law in consideration of use with  regard to escheat equity have proceed on the same principle as the law where  there be a tenant of the land that perform the service and I do it find this  court have any regard to the nerun law of the tenant now the reason why there  be no escheat on the death of beneficiary and use in equity seem to be this  and it be a reason equal applicable to use and trust that the court have  nothing to issue a subpoena upon no equity nothing to decree upon and every  person must bring a equity with he for the court to find its jurisdiction upon  it seem to I he can have no equity in the case of a use or as owner of a trust  for this plain reason a use before the statute can not be extend far than the  interest in the estate which the creator of the use can have enjoy as if the  creator of the use have a feesimple in the land he can take back oh more  interest in the use either declare or result than he have in the land if be  make a feoffnient and declare no use it result to he in fee which be to he his  heir and assign the consequence be that the moment he die without heir or  assign there be no use remain how then can you come here for a subpoena  whether he take back the same or a different use to execute a use or trust  which be absolute extinct that seem to I the plain and substantial reason why  in tlis case whether you call it a use or a trust there be no basis on which  to find a subpoena Lord chief justice system be very great and noble and very  equitable intention such a system as I shall ready lie hold of upon every  occasion if I think I can do it consistent with the rule of law Blackstone  what scintilla of equity be give to the Lord Lord chief justice suppose that  by feoff to two trustee for mrs Harding her heir and assign and for no other  use the lord be include in her heir and assign that expression can do so I  think the conveyance will have be the same if assign have be leave out then it  be say the express declaration be to her heir and assign and that there be a  imply trust on this for as the trustee be to take to no other use and the  express trust be serve therefore a trust in fee result to the lord upon the  extinguishment of heir ex part of a father to that conclusion I have two  objection I think such a trust will if declare be entire void and whether  declare by way of trust or use it be the same thing for when you have limit a  estate to a man in fee or declare the trust to he in fee you have no more to  dispose of in either case and can limit one fee on another it be say in answer  to this that she can not have limit it to sir f page and his heir in default  of her own heir but that a person may limit any thing accord to the course of  law and there be a reverter to a person in fee in the court of law therefore  you may limit it so but it revert by operation of law on extinguishment of a  estate that be a feesimple incapable of any far limitation the donor can not  have limit it so with regard to the result trust there be this objection which  seem to I unanswerable what be the estate convey to the trustee it be mrs  Hardings estate her husband and she be party to the deed and fine they pass  all the Blackstone er p estate that go to the trustee can any thing result by  way of trust or use to a person not privy to the estate that passes by the  deed where you have pass the estate without consideration there in modern  language a use result or a trust result because it be unequitable that a man  shall have a interest in the estate when he have pay no consideration for it  but where a person be not party to a deed nor privy to the estate I do it see  how any thing call result for his benefit that this be the Blackstone notion  in respect to a use appear from authority the law be that the lord can not  have the escheat of a use so be Edward for I take that to be the report of a  case then it have all the authority the yearbooks carry with they and this  have be adopt by all the writer since Bacon do not question the authority of  this case he give a reason of his owl which he substitute as a better than  that in the book that there be a tenant in by title which be a strong reason  in law but it do not mention that as a reason with regard to the subpcena it  be not a conclusive reason that the lord shall not have subpoena because there  be a person in possession he shall have it for that reason if that person be  liable to he in equity therefore he give a better reason because say he it  never be his intent to advance the lord but his own blood therefore that be  the reason it will not be within the intention of that trust that any beside  the blood of the covenantor shall take nobody can imagine the tenant intend to  provide a trust to answer the lord escheat mrs Harding never think of escheat  I suppose but have it be suggest to her if you die without heir that can  possible take your estate will you rather have your friend you have choose to  make your trustee take it or that it shall go to be killy she must have be a  subject of more zeal than I can suggest if she have say she will give it to  the king as I be now state the law and equity of esebeats with regard to use  and trust I will here take notice of a objection that seem equal to affect the  opinion of lawyer with regard to the doctrine of use and trust and that be the  dilemma which be urge at the bar as the basis of the equity in the present  case though I do it think it a necessary dilemma videlicet that the lord must  have the estate by escheat either on the death of beneficiary and trust  without heir or of the trustee without heir discharge of the trust but if be  can it have it while the trustee life while there be a tenant it will be  monstrous that the beneficiary and trust shall be prejudice by put the estate  in the trustee band for the benefit of the family Blackstone one part of this  be a dangerous conclusion the other be not my answer be that if the law be so  that the lord shall in that case take it discharge of the trust I must suppose  it no injury or absurdity at all willing non fit in an unjust manner the  creator of the trust determine to take the convenience of the trust with its  inconvenience it be most certain every man who create a trust put his estate  in the power of his trustee if the trustee sell it for a valuable  consideration without notice no court car relieve the owner from this  misfortune it be the result of his own act and yet that be as shock a perfidy  in the trustee as can be but the court can interpose as it will affect the  right of other of three person but I do it know it have be determine that it  shall escheat discharge of the trust I shall give no positive opinion upon it  so far I may say that unless a trust can be distinguish from a use the most  learned judge say the right come as a reversion fail heir and that the time of  escbeating be when there be a want of a tenant the right of the lord be  paramount the trust can be affect by it I   chudleighs case ten the lord come  in the post and not in the per that Popham SC z say that be the reason why the  law be so and I do it doubt the law but there be no occasion to give a precise  opinion upon it till necessary but I do it think this be at all a necessary  dilemma the lord may not be entitle on death of beneficiary and trust without  heir because there be no equity for he have his tenant as he have before but  possible there may be a equity in the other case against the lord for if  trustee die without heir and the lord have the estate this court may say you  shall bold to compensate yourself for your rend and service but we will  embrace the rest for the beneficiary and trust a difference be attempt to be  make between use and trust I have see trust invent for the black purpose in my  experience and to subvert the very constitution of this kingdom but this be  nothing but the abuse of both but to try if there be or be not any difference  between they the best way be to define both Blackstone er p as in order to  show the difference between one thing and another it be usual to define the  one and the other and by compare Blackstone the definition find the difference  finch c foe b say a use be where a man have any thing to the use of another  upon confidence that the other shall take the profit he who have the profit  have a use the other book say a use be neither law in re nor ad remember c now  what be a trust a confidence for which the party be without remedy but in a  court of equity Lord chief justice do not state any difference in the  metaphysical essence between a use and a trust but that there be a difference  in the law by which the one and the other be direct and I think there be no  difference in the principle but there be a wide difference in the exercise of  they it be as much a principle of this court that the use shall be consider as  the land or as imitate the land former as now though the rule be not carry  former so far nor the reason nor direction when they be less understand as at  present to give a familiar instance the element and principle of geometry be  the same in euclid time as in sir Isaac Newton though in the latter time the  use of they be much enlarge it be say the difference consist in this that  equity have shape they much more into real estate than before when they be use  as now there be tenancy per courtesy of a trust they may be entail and those  intails bar by a recovery but why not from any new essence they have obtain  but from carry the principle far because eaquitas sequitur law for as between  the trustee and the beneficiary and trust this court have jurisdiction and I  think they shall have equal extend in this court the rule and principle of use  as well as trust this therefore be the effect of the equitable jurisdiction  grow to maturity Lord Bacon say they grow to credit and strength by degree he  say a use be nothing but a general trust where a man will trust to the  conscience of another rather than to his own estate and possession that a use  and trust be the same seem adopt by all the great person who have preside in  this court grey against grey car a Lord Nottingham in a case whether a  purchase Blackstone make in the name of the son be a trust or a advancement  hold it the latter and that there shall be no constructive trust he ground  himself upon this observation all the book agree that a feoff to a stranger  without consideration raise a use to the feoff by implication b how can this  court justify it to the world if it shall make the law of trust differ from  the law of use in the same case they think they be so strict bind by it they  can not depart from it they act under rule and check I e a discretion put upon  they as in attorneygeneral against Seolt c Lord Talbot of same opinion in  Goodwin against Winsmore d Lord Hardwicke of same opinion this court have  consider the trust as between the trustee and beneficiary and trust and those  claim under they as imitate the possession and much more than a use be  consider in this court but not more than the court will have model use if use  have exist at this day I do not see why the same determination shall not be of  a use as imitate the possession as there be now upon trust will it not be a  bold stride to say this court have consider trust as a mere nullity and  notional and that they be to be treat just the same as if they continue in the  seize of the creator of they or the person for who they be make rule of  property be not to be question even by the judge while the people continue  satisfy and acquiesce in they nun but the legislature can alter they trust  have imitate land accord to the strength of this jurisdiction always my  objection to the claim in the information be not that it be to have a trust  execute as if it be land but it be to claim the execution of a trust that do  not exist if there be a trust I shall consider it mere as a estate and  determine accord but the creation of a trust can never affect the right of a  three person the trustee have the burden and the legal privilege can this  court say it be a nullity and yet it must be so say to take it from the  trustee to make safe ad the lowest but it can be say it be a nullity in that  respect as to a trust accept the Blackstone conveyance shall subject the  trustee to all the fruit of tenure though he have continue subject to all  burden when the trust subsist yet now it be say ag mrs Harding be dead you  shall be consider so no long as between trustee and beneficiary and trust to  say it be a nullity must be with this restriction that he shall take no  teneficial interest that the beneficiary and trust can en oy but any other he  may and therefore in respect to member sheriff coroner the trustee be the  Blackstone er p person who have the right to exercise it and the legislature  be force to interpose before the beneficiary and trust can have or enjoy that  valuable privilege e I can assign but one reason why that distinction between  tenancy by courtesy and in dower have prevail and it be applicable to the  reason of this case I have hear the house of lord be startle at the  distinction and they be tell the opinion of conveyancers be so and that if it  be alter it may load purchaser with dower who think they have purchase free  from it and the lord will not reverse the judgement because they will not let  it affect the right of a three person now it appear to I that at law there can  be no escheat while there be a tenant de jure in equity there can be none  while trust be call use and a trust and a use be exacCly the same how then can  I say the lord shall lose his escheat when any man for his own convenience put  his estate in trust it seem if I be to do so that I shall give law and equity  and not pronounce upon law and equity two century have pass since use and  trust have be admit and f I can find a dictum that the crown shall have a  escheat of a trust but I find in other book the contrary and by one of the  most learned judge that ever adorn the profession hale every writer of  learning have transcribe and adopt this position so that it be confirm by they  videlicet by attainder of felony of the feoff the lord shall have the land by  escheat Stanford PC pine case g palmer h Blackstone in sir George Sandys case  I the court have no doubt upon that part of the case applicable to the present  videlicet upon forfeiture of the feesimple the doubt be whether the forfeiture  shall take place on a term in gross or attendant upon the inheritance it  object there who shall have the trust the court say sir George Sandys shall  hold the land discharge of the trust of the term as in the case of a grantee  of a rend die without heir and this be a answer to a objection for want of  right and title in the defendant the grantee there have purchase a perpetual  rend and pay for it the grantor have sell it the grantee die without heir  there be nobody to call upon the person in possession for the rend the reason  why he shall bold it be here be nobody to call upon he therefore no man can  have a better right than he how come it not to be consider in that case that  it be a casualty that shall come to the crown as transalpine haeres yet it  never be for confiscation be bare thing and contrary to the genius of a free  country and the law of England seem to have make a confiscation in no case but  where there be a vacant possession and there it be for peace sake and that  quarrel may not ensue but where a person be possess of a thing without get it  against law he have a title the judgement in sir George Sandys case be a  authority in point great effort be make to weaken the validity of it Lord hale  ability have be question in equity then call a case of compassion and that the  family be concern in it that the contend party be the Crown that the  attorneygeneral can not drop the right c but Lord hale determine on great  principle of law and I can it help remark neither bar nor bench be ever  frighten at the in consequence which may follow which have be now mention  perhaps they consider that it be the act of the party himself they may carve  out what estate they please and reserve the limitation in fee do this court  sit here to guard against the oscitancy or inattention of conveyancers in make  use of trust and not prevent a escheat to the lord wherever the king be not  Lord his pardon will not signify the escheat arise on the judgement if the  king Blackstone pardon the felon what hinder he from sue his trustee attain on  to prevent his assign his trust it be determine in outlawry it do not it be  say the king on a legal escheat shall be liable to the equity of redemption  and it be say to be hold so by Lord hale king but I do it know that have be  determine and I observe though they agree in opinion they can not agree on the  remedy though they agree in equity I hope the exchequer have now ascertain the  remedy I see a original equity impress upon that case the mortgage be make on  condition I will not have it understand that there be any equity for the  subject that the king be not equal entitle to but I think the arm of equity be  very short against the prerogative it say if a mortgagor die without heir  shall the mortgagee hold the land free I answer shall it escheat to the crown  No because in that case the lord have a tenant to do his service and that be  the whole he be entitle to in law and equity what the justice may be between  the mortgagee and executor I shall Blackstone er p not trouble myself about I  think the crown have not a equity on which to sue a subpoena as to the claim  of the heir ex part maternft the estate be convey and the use execute in page  and Simons and their heir a declare trust upon it to mrs Harding her heir and  assign with a general declaration which in my opinion operate no more than  this that as between the beneficiary and trust and trustee they shall have the  trust to no other use or purpose upon this I concur with the judge certificate  that if no estate have pass to the trustee or if that deed have never exist  the inheritance can not have descend to the heir on the part of the mother  another question may have be put to the judge I e if a use by this new  conveyance have be limit and not a trust whether it will have descend to the  heir on the part of the mother but the law be clear and plain and a use  whether declare or result must ensue the nature of the land and retain the  same quality and whether it be express Blackstone or result make no manner of  difference therefore they do not encumber the judge with that it have be  settle in Martin and Irachan l I abbot m and freestone n roll Abr use at  commonlaw and trust now must ensue the nature of the land as in the case of  borough English and gavelkind land oh they must ensue the nature of those  inheritance in the case of a result use the true reason be that it be never  out of the grantor in the case of trust it be the sametis the old trust  therefore I think the trust will not go to the heir of the part of the mother  in land descend ex part paternh which without a reconveyance can never have a  different descendible quality in this case prima fancy it be consider that  nothing descend to the maternal heir for the information say nothing descend  to the heir of the mother side but then it be say if you will not make the  deed of and fine a mere nullity it alter the use and that it vest a use and  trust in mrs Harding as a purchaser I wish I can find a ground to say the use  be change but I can say it because the way in which this bar the lord right be  not by change the use but by bring a tenant on the land which change the lord  escheat and though the old use be extinct and no new one raise yet that  interposition will bar the lord of his escheat but then it be say if the old  use be not alter then the echeat take place on its extinction because it be  engraft upon it when one fail the other take place but that use may be  determine and no new use raise and yet the lord shall not have a escheat  suppose mrs Harding have never execute this conveyance and be seize and the  disseizsor die seize or make a feoff and mrs Harding have die without heir ex  part paternq the old use will have be determine and yet the lord will not have  be any near his escheat for if p the heir of the seize or the feoff of the  seize have be Blackstone in the old use have determine and escheat will not  take place it may be say there be a new use obtain by the seize by operation  of law which will bar the escheat if that can be say I can with a better grace  say here be a new estate 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 the estate except the mill and close under the  deed of original bill dismiss as to all the rest and the information on the  part of the crown dismiss total Q ex relation mri fazakerly mediant mro  gascoigne a in which report the judgement of the master of the roll and Lord  Mansfield be precise the same as those give here but there be a considerable  difference in the judgement of the Lord keeper which be give there more at  large but be in substance the same b by his will he make his widow Susannah  his sole executrix who thereby become etitled to the residue of the term of  year c this must have be make by fine though no fine be state therefore it  must be impliedj that there be a fine and what foGws show it Blackstone er p d  by indenture hear date the that and that of February n Harding and e his wife  convey their moiety of the say mortgage premise to the trustee and their heir  in trust for the mortgagee James chandler son of John chandler and his heir  who with the personal representative of John chandler covenantee that they  will at any time thereafter at the request and charge of the say n h and e his  wife assign and convey the say several term and the inheritance of the say  mill c to the say n h and e his wife or the survivor of they and the heir and  assign of such survivor No assignment be ever make nor do the trustee make any  conveyance of the inheritance I Eden No alteration be make by the settlement  of except give Harding a estate for life because the IaA limitation to the  right heir of e h be her old estate ms serj hill e the rule of law be as to  the estate in this deed determine accord to clarke argument in abbot v Buiton  all the report of which be cite in vin Abr pl salk Mod Com r and long before  in roll Abr use d or vin Abr use d pl and even as to a equitable estate also  ib pl the estate by this deed be therefore to go to the paternal heir except  as to the mill and close without alteration of the course of descent and there  be no need of any argument and it be strange that Lord Hardwicke shall have  send it to b r and still more so that it shall have be so much argue in  chancery after the case of abbot v Burton and Godbolt v freestone lie direct  in point and many other authority find on the like principle vin Abr use  notwithstanding all which it appear that the principle of the determination of  this case accord to clarke opinion have be doubt add to these authority above  refer to that of jenk which I apprehend be clear right that the course of land  can be alter but by Act of parliament and that it be also clear that the heir  take either by express limitation or for want of a limitation or disposition  from he of a reversion after particular estate which be call by some a result  use take by descent and not by purchase though if the heir have take by  purchase I e by description under a devise in a will to the testator heirat  commonlawor even in a deed of use perhaps it may have be otherwise vern ms  sergeant hill see also Allen v Heber ante and the case there refer to d e and  hark   light a et seq f a fine with grant and render be by some authority say  to be tantamount to a feoff and refeoffment vin Abr pl but the principal case  there be contra but all the authority be agree as to a feoff and refeoffinent  TR Boe v Baldwere and note that it do change the descendible quality on the  otber band all the latter authority be that a fine if it be not sur grant et  render will not change the descendible quality and that there be no difference  whether the use result or be express declare hob Counden v Clerkel to the  contrary be deny in p wms Harris v bishop of Lincoln yef though there be a  fine and use declare to make a tenant to the prmcipe and a recovery against  the tenant to which the tenant in tail come in as vouchee the course of  descent will not be alter by the express declaration of the use to the tenant  in tail and his heir salk abbot v Burionl vin Abr pl ll  M S serj hill that a  fine sur do grant et render alter the descent see price v Langford show salk  Carth holt if a tenant in tail by purchase under a marriage settlement make by  his maternal ancestor with the reversion in fee by descent ex part of a mother  suffer a common recovery to the use of himself in fee the estate will descend  to his heir ex paterDA because the fee acquire by the recovery will descend in  the same manner as the estate tail acquire by purchase from the maternal  ancestor that be to his paternal heir Martin v Strachan TR d ante d e see also  Goodright v well Doug do v Morgan TR I g where the king tenant be in  possession and die without heir the king bath not only a legal seize as in the  like case subject have but be bath a actual seize therefore if any enter and  take the profit though no office be find yet a information of intrusion may be  prefer against he who enter but when another be in seize and possession at the  time of the escheat as if the king tenant be seize and die without heir or if  a alien bear or the alienee in mortmain be seize and all this be find by  office in these case the king shall not be in possession till the possession  and seize of the terretenant be remove Rep a Blackstone er p Comminally of  saddler in the present case the heir of the survive trustee be in seize and  possession and therefore the want of a office find will have be a good  objection if the crown be title have be legal for wherever a office be  necessary to vest the estate in the crown as in the case of a purchase by a  alien there there must be a office find before the title of the crown can be  determine Parker a g v Duplessisl M S serj hill see also reeve v a g atk vin  Abr office d pl Com dig Proorog d h vide cecil can in exchequer Rep b where  Cecil file a bill in the Exc la mb for relief against a bind to the queen for  which process be sue out of the Exch and his bill be find on stat h c S the  court be of opinion to relieve he but the a g perceive the opinion of the  court beyond attendance non vult ibidem a it be not mention who be the  defendant but it seem it must have be the a g only for the queen can not M S  serj hill see vin Abr Prearog z Com dig d d I Rep a king p earl of Bedford v  Russel see also Hardr Ves sen king Mr Eden observe that this be a mistake that  Anderson CJ do true and profound contest the vulgar opinion that there may be  a possession brother of a use Bac on use h l Watts v ball I p wms Hearle v  Greenbank I Ves sen atk hark   light a in m bring Chanc n p see also Forder v  wade bro c c hark   light b oh p wms forest atk atk vin Abr courtesy e pl very  full report it be the case of a equity of redemption and Lord Hardwicke decree  the husband to be tenant by courtesy of it overrule the decision of sir I  Jekvll S Hardr Freem side hale h p Cr cite also in a g v duplessis Parker I  Vol p u Hardr v f n b to Edward wonder Geary v bearcroft bale v England see  Fonbl Eq he that ed that SC vern z I Ch can Ch r a duke of Bedford v coke Ves  sen b by pound Geo c S the king be empower to direct the execution of any  trust or purpose to which any escheat manor c shall have be liable at the time  of their escheat and to make grant to trustee for the execution of such trust  by which it appear that it be think that the crown have not that power without  the interference of the legislature c pp r v holland d Hardr e see post p n  that f see Fairclaim v earl Gower post g h c see web v Russell TR Vernon v  smith b a h if a man seize in fee of a fair market common rentcharge rentseck  warren corrody or any other inheritance that be not hold and be attaint of  felony the king shall have the profit of they during his life but after his  decease see the blood be corrupt they can descend to the heir nor can they  escheat because they be not hold they perish and be extinct by act of law Inst  Hardr I see tomb v etherington I wms sand hawk PC c S king see post l salk sir  r Strickland have make a mortgage of his estate be afterward outlaw for high  treason on appeal to the house of lord the attorneygeneral on behalf of the  crown be admit to redeem pay what be due to the mortgagee a g v Crofts bro p c  Toml ed in the case of a attainder of the mortgagor the mortgagee shall hold  till the crown think fit to redeem reeve v a g atk so the king under a  outlawry may redeem a mortgage a g v basnett Parker m see Mr Coventry note to  his edition of Powell on mortgage vol I c ten p Blackstone er p n chapman v  tanner I vern Pollex/en v more atk Mackreth v simmons Ves I where Lord Eldon c  say that the doctrine of sir Thomas clarke be very sensible d ex part peak I  mad Blackburn v Gregson I bro c c but as a vendor have a lie also upon the  personal estate and may elect to resort to that fund upon the death of the  purchaser a question arise whether in this case a court of equity will marshal  the asset in favour of creditor and legatee that a marshal of asset shall take  place in favour of legatee against land descend see Herne v Meyrick I p wms  Clifton v burt d Bligh v earl of Darnley p wms haslewood v Po pe p wms these  indeed be not case where the charge on the land be a equitable lie but it be  submit that from parity of reason the asset will be marshal also in that case  see pollexfen v more atk where the Lord chancellor say he will direct the  vendor to take his satisfaction out of the purchase estate because he will by  so do leave the personal estate a available fund for a legatee who will then  have a chance of be pay out of the personal asset and the decree be that the  deficiency of asset for satisfy the purchasemoney and all his other debt  legacy and funeral expense so far as the personal estate of the purchaser be  apply in payment of the purchasemoney shall be make good out of the purchase  estate and a competent part be decree to be sell for that purpose Sugd v p  that ed the vendor in that case have also a equitable mortgage by retain the  titledeed and Mr Sugden be of opinion that that circumstance be the ground of  the decree but it be submit that the case hear out the position that where a  vendor have mere a equitable lie and resort to and exhaust the personal estate  a legatee or creditor may stand in his place so as to resort to the purchase  estate pro tanto in Austen v Halsey Ves I Lord Eldon c say that the lie for  the purchasemoney be in equity very like a charge and the case of marsballing  seem to have go this length that where there be a charge upon a estate descend  a legatee shall stand in the place of the person have that charge resort to  the personal estate S p trim v bayne Ves I see also Lord eldoms judgement in  Mackreth v simmons Ves I as the vendor have a lie for the purchasemoney if the  vendee become bankrupt and upon a resale the estate produce less be may prove  for the difference bowl v Roger I   b l ex part hunter Ves junr oh see William  v Lord Lonsdale Ves I p by saint pound W c S now repeal by g c see the Popists  can p wms Carrick v errington d Q g c S see jenner v Morgan I p wms r see I  Fonbl Eq that ed S Hardr t this passage be cite very incorrect see I Eden and  the editor note ibidem v c S see I hale h PC u but see hale h PC reeve v a g  atk ten this be remedy by the statute of fraud c c S see do v Greenhill b a  that Freem Ch r Ch can z but his decision be reverse in dom proc and it be  decree that the heir shall sell SC lie t Jon a I vern show PC b forest c or  scarf I atk see Dixon v Savile bro c c p wms that see n ten ante e vin Abr  corporation h pl g in Geary v bearcroft carter but it appear that that report  be erroneous see I Eden n a Fonbl Eq n that ed see also Stevens v Bailey Nels  and cruise dig title thirty S p I cruise dig title xi c two S p and n b ante h  Prec Ch I reeve v a g atk king anon Leon can r v Haddenham east see also  Peachey v duke of Somerset stram per Lord Macclesfield c SC Prec Ch vin Abr  copyhold d c pl Blackstone er p l Trin coll v brown I vern it appear by the  preamble to the statute of use that the lord loss of ware marriage relief  heriots and escheat be enumerate among the many mischief of use now many  statute have be before make at different period for remedy the mischief of use  in particular case and by the statute h c and h c the lord be to have relief  on the death of the heir of beneficiary and use if the use descend to he but  no remedy be provide for the loss of escheat and therefore as the law stand at  the time of the make of the statute of use if beneficiary and use in feesimple  have die without heir the land will not have escheat that mischief not be  provide against by any former statute and therefore that mischief if it  deserve that name continue with respect to such use and trust as be not  execute by the statute for with respect to they the law continue the same  since as it be before the statute of use the above mention statute of h be in    light b and a mention to be obsolete and they will have be so have the  statute of use annihilate all use and trust but by subsequent construction of  it since Lord coke time it have be settle that where in a feoff or other  conveyance there be a limitation of a use to the feoff or grantee and  afterward in the same deed another limitation of a use of the same land to  another person there the second use will not be execute by the statute queare  therefore why the above mention statute of Henry shall not still be consider  as operate on such second use yet those statute seem to have be consider in  the light they be view by Lord coke ever since the stat of use for in Trin  coll v brown no notice be take of the stat h c though the lord loss of heriots  be special provide against as well as the loss of relief it be true this  statute in term extend only to land hold in socage as the h do to those hold  by knight service and in the case in Vernon the land be hold of the college as  of their reversion but it do not appear to have be determine on that  distinction and it be cite here as a authority without take notice of any such  distinction and I do not recollect any argument from either of those statute  or so much as any notice of either since the Staute of use see also   light b  ms serj hill m ante p n ante p oh see ante p and post p also Coventry pow on  mortgage u that ed p a power to do which be reserve to the crown by I Ann  saint c S Q I vern r the word not be in I Eden and in sergeant hill ms and the  sense require it S gardener v Sheldon see Butl Fearne c r and do v holme post  t see ante p and post p v sir m wright u the word of f n b be so but with f n  b c in these words And if the tenant be seize and afterward die without heir c  it seem the lord shall have a writ of escheat because his tenant die in the  homage Contrh h a pl and so cite in Com dig escheat b and the distinction  there be that if the tenant be seize the lord may enter but not have a writ of  escheat but if the seize have die seize the lord can neither enter nor have a  writ of escheat ib and it seem by the reason of the court h a that the lord  can in no case have a writ of escheat except where his entry be lawful  ibid  MS serj hill wonder Rep b ten foe a that the lord by escheat be in in  the post hark   light a and n ibidem as to the per the per et who and the post  see f n b to ed Bla command and I roscoe on real action z I   Rep b a Ch can  finch b but a feoff to the son without consideration raise no use by  implication to the father I Eden c for d atk Blackstone er p e W c S f this  passage shall be as follow two century have pass since use be extinguish and  since trust have arise yet c ms serj hill I Eden g or Pimbs can more a Hixs  can Hardr and not palmer I ante p king see ante pp and hawk PC c S l stram TR  n see ante n m abbot v Burton salk ante n e n Godbold v freestone lie ante  ibidem oh Fawcett v Lord Lonsdale Ves sen py for if read in that case Q Lord  Loughborough observe in William v Lord Lonsdale Ves Jun that the only point  determine in burgess v wheat be that the crown entitle as it be suppose by  escheat upon the death of the beneficiary and trust have not a title by  subpoena in chancery to make the heir of the trustee have mere a legal estate  convey that there be no equity for that court to exercise jurisdiction the  point there determine be that the heir of the trustee of a copyhold have no  equity to compel the lord to admit he that case come the near to the principal  one of any that have be determine since the reader may also consult the can  say of Middleton v spicer bro c c Barclay v Russell Ves Jun both of which be  case of vacant possession as observe by Mr Eden and walker v den Ves Jun all  of which be critical examine and compare with the principal case by the  learned editor in I Eden Blackstone mich term geo two king b