penalty, with condition for payment of money, or to do or suffer some act or thing, &c. and a bill is most commonly taken for a single bond without condition.

estate which the assignor has in lands or tenements; but it is usually applied to the transfer of a term for years. An assignment of a term differs from a lease only in this, that by a lease, the lessor conveys an interest less than his own, reserving to himself a reversion; whereas by an assignment, the assignee parts with his whole interest and property in the thing assigned, and puts the assignee in his place. 2 Bl. Com. 326, 327. 4 Cru. Dig. 160, 161. Although an instrument purports to be a lease, yet if it does, in effect, comprise all the estate of the grantor, it amounts to an assignment, and is not an under-lease; and a right of entry, or reservation of rent will not change the nature of the estate. Palmer v. Edwards, Dougl. 187. And on the other hand, if it leaves any portion of the estate in the lessor, even a day, or an hour, or a minute, as a reversion, it is an under-lease; and therefore an instrument purporting to be an assignment for the residue of a term, reserving the last day or hour, will operate as a lease of this description. 2 Prest. Conv. 124, 125. The operative words of an assignment are, assign, transfer, and set over; but any other words which show the intention of the parties to make a complete transfer, will amount to an assignment. And there needs no consideration to support an assignment by a tenant for years, for the tenure and attendance, and the being subject to forfeiture, as also the payment of rent, if there is any, are sufficient to vest the term in the assignee. 1 Mod. 263. But since the Statute of Frauds, an assignment must be by deed. Every estate and interest in lands and tenements, and every present and certain estate or interest in incorporeal hereditaments, as rents, advowsons, &c. may be assigned and even though the interest be future, as a term for years, to commence at a subsequent period, it may be assigned, for it is vested in præsenti, though it is only to take effect in futuro. Perk. sect. 91. But no right of entry, or re-entry, can be assigned, so that if a person be disseised, and assigns over his right to another, before he has entered on the disseisor, such assignment is void. Ante, 214 a. p. 85. With respect to the assignment of choses in action, see ante, p. 113, n. (K 3). Delaney v. Stoddart, i T. R. 26. Winch v. Kealey, 1 T. R. 619. 3 T. R. 340. Innes v. Dunlop, 8 T. R. 595. And note, that an assignment of a chose in action may be by parol as well as by deed. Howell v. Mac Ivers, 4 T. R. 690. Heath v. Hall, 4 Taunt. 326. With respect to the distinctions as to when the assignee is bound by the covenants of the assignor, and when not, see ante, p. 330, 331, n. (G 3). That an assignee is liable for rent only, while he continues in possession under the assignment, see Staines v. Morris, 1 Ves. & B. 11; and that he is not guilty of a fraud, if he assigns over his interest to whom he pleases, with a view to get rid of a lease, although such person neither takes actual possession, nor receives the lease, see Taylor v. Shum, 1 Bos. & P. 21.

As to the nature and operation of a defeazance, see ante, 236 b. 237 a. p. 122, 123, and the notes there. Et vid. 2 Prest. Conv. 166, 167. 199. 203.

A bond or obligation is a deed whereby the obligor binds or obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to the obligee, at a particular day. If this be all, the bond is called a simple one, simplex obligatio. But there is generally a condition added, that if the obligor does some act, the obligation shall be void, or else shall remain in full force; as payment of rent, performance of covenants in a deed, or repayment of a principal sum of money, borrowed of the obligee, with interest; which principal sum is usually one half of the penal sum specified in the bond. 2 Bl. Com. 340. There are no technical words necessary to a bond, Cro. Eliz. 561. 729. 886; and if there be an evident mistake in the word expressing the sum in which the party is intended to be bound; as if it be for threty pounds, instead of thirty pounds; it will be so construed as to answer the intention of the parties. Cro. Jac. 203. 208. 607. Cromwell v. Grumsden, 1 Ld. Raym. 325. Et vid. Waugh v. Bussell, 1 Marsh. 311. So any words by which the intention of the parties can be discovered, are sufficient to make a condition of a bond: for if the words, though improper, should be construed void, and not a condition, then the obligation would be single, and of force against the grantor, although he had performed the condition of it according to the intention of the parties: and the condition being for the benefit of the obligor, shall he construed favourably. Butler v. Wigge, 1 Saund. 66. And the extent of the condition of an indemnity bond may be restrained by the recitals, though the words of the condition import a larger liability than the recitals contemplate. Parsall V. Summerset, 4 Taunt. 593. With respect to impossible or void conditions, the following distinction has been taken: that where the condition is under-written or indorsed, that is only void, and the obligation is single; but where the condition is part of the lien itself, 60

VOL. II.

and incorporated therewith (as in a recognizance by bail), if the condition be impossible, the obligation is void. 1 Saund. 66 n. Pullerton v. Agnus, 1 Salk. 172. Ante, 206 a. b. p. 21, 22. Where the condition of a bond is entire, and the whole is against law, it is void. But when the condition consists of several different parts, and some of them are lawful, and the others not, it is good for so much as is lawful, and void for the rest. Ibid. Et vid. ante, p. 24, 25, n. (p) and the cases there cited.

When the condition of a bond is not performed, it becomes forfeited, or absolute at law; and is a charge on the personal estate and chattels real of the obligor, but not on his freehold lands; and therefore any settlement or disposition, which he makes in his life-time, of his lands, whether voluntary or not, will be good against bond creditors. For a bond being no lien on lands in the hands of the obligor, much less can it be so when they are given away to a stranger. Parflow v. Weedon, 1 Ab. Eq. 149. 4 Cru. Dig. 168. If the obligor in a bond binds himself, without his heirs, executors, and administrators, the executors and administrators are bound, but not the heir. Shep. T. 369. But if he binds himself and his heirs, it will be alien on his heir, who, in default of personal assets, will be bound to discharge it, provided he has real assets of the obligor by descent: so that a bond is said to be a collateral, though not a direct charge on lands. But, properly speaking, it is not an incumbrance upon land; for it does not follow the land like a recognizance and a judgment; and even if the heir at law aliens the land, the obligee in the bond, by which the heir is bound, can have his remedy only against the person of the heir, to the amount of the value of the land, stat. 3 W. & M. c. 14. s. 5; but he cannot follow the land when it is in the possession of a bona fide purchaser. Bull. N. P. 175. By stat. 3 W. & M. c. 14. s. 2. all devises of lands are fraudulent and void, as against bond creditors, who may sue the heirs of the obligor, and also his devisees jointly. An estate in reversion is within this act; and so is a devise of the reversion by the heir of the obligor; and in such case the lands devised are liable. Kinaston v. Clarke, 2 Atk. 204. With respect to what shall be assets for payment of bond debts, see ante, p. 152. n. (R). On the forfeiture of a bond, or its becoming single, the whole penalty was formerly recoverable at law; but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained upon non-performance of covenants; and the like. And a similar practice having gained some footing in the courts of law, the stat. 4 & 5 Ann. c. 16, enacted, that, in case of a bond, conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited, and a suit commenced thereon, shall be a full satisfaction and discharge. In general there can be no remedy at law beyond the penalty, for a man can have no more than his debt; and the penalty is the utmost of his debt. Wilde v. Clarkson, 6 T. R. 303. Shult v. Proctor, 2 Marsh. 226. Et vid. M'Clure v. Dunkin, 1 East. 136, in which it was determined, that in an action on a judgment recovered on a bond, interest might be recovered in damages beyond the penalty; but Lord Kenyon admitted, that if the action had been upon the bond, it would have been otherwise. And where the obligee is plaintiff, equity in general will not carry the debt beyond the penalty: he having made himself the judge of his own recompense. See Hale v. Thomas, 1 Vern. 360, Anon. 1 Salk. 154. Steward v. Rumball, 2 Vern. 509. Galway Corporation v. Russell, 2 Bro. P. C. 275. Bromley v. Goodere, 1 Atk. 75-80. Tew v. Earl of Winterton, 3 Bro. C. C. 489. Knight v. Maclean, 3 Bro. C. C. 496. Grosvenor v. Cook, Dick. 305. Gibson v. Egerton, Dick. 408. Kettleby v. Kettleby, Dick. 514. Lloyd v. Hatchet, 2 Anstr. 525. Sharp v. Earl of Scarborough, 3 Ves. 557. Mackworth v. Thomas, 4 Ves. 329. But it is otherwise where the obligee is defendant for then the maxim applies, that he who will have equity must do equity. 1 Eq. Ab. 92, pl. 7. Hale v. Thomas, supra. And equity will, under special circumstances, carry a debt beyond the penalty, as where a man is kept out of his money by an injunction, or is prevented from going on at law, Duval v. Terry, Show. P. C. 15. Hale v. Thomas, supra; or where an advantage is made of money, Lord Dunsany v. Plunkett, 2 Bro. P. C. 251; or where a bond is only taken as a collateral security, Kirwane v. Blake, 2 Bro. P. C. 333; or where the recovery of the debt is delayed by the obligor, Pulteney v. Warren, 6 Ves. 192; or there are some other special circumstances. Clarke v. Seaton, 6 Ves. 416. Bonds being choses in action, are assignable in equity. But the assignee takes them, subject to all the obligee's equity. Coles v. Jones, 2 Vern. 692. Tarton v. Benson, 2 Vern. 765. But time and circumstances may strengthen the case of an assignee. Hill v. Caillorel, 1 Ves. 122. As to the presumption of satisfaction of a bond from length of time, see ante, vol. 1. p. 13. n. (E).

A recognizance is an obligation of record, which a man enters into before some court of record, or magistrate duly authorized, (Bro. Abr. tit. Recognizance, 24), with condition to

CHAP. XLIII.*

SAME SUBJECT.

OF CONVEYANCES UNDER THE STATUTE OF USES, ETC.

*(570)

272 b.

an us at

case, and

352 b.

NOTA, an use is a trust or confidence reposed in some other, which is not issuing out of the land, but as a thing collateral, annexed in Definition of privity to the estate of the land, and to the person touching the common law. land, scilicet, that cesty que use shall take the profit, and that the inDelamere's terre-tenant shall make an estate according to his direction. So as cesty que use had neither jus in re, nor jus ad rem, but only confidence and trust, for which he had no remedy by the common law, but for breach of trust his remedy was only by subpoena in fol. 58. 78. Chancery (A).

a

3191. Lib. 1.

fol. 121, 122. 127. 140, in Chudleye's case. Lib. 2.

Lib. 6. fol. 64.
Lib. 7. fol. 13.

& 34.

do some particular act; as to appear at the next assizes, to keep the peace, to pay a sum of money, or the like. It is in most respects similar to a bond, the difference being chiefly, that the bond is the creation of a new debt or obligation: whereas a recognizance is the acknowledgment upon record of a former debt: the form whereof is, "that A. B. doth acknowledge to owe to our lord the king, or to C. D. the sum of ten pounds," with condition to be void on performance of the thing stipulated. This being either certified to, or taken by the officer of some court, it is witnessed only by the officer of that court, and not by the party's seal, so that it is not in strict propriety, a deed, though the effects of it are greater than those of a bond, being allowed a priority in payment. 2 Bl. Com. 341. A recognizance is a lien upon all the lands which the cognizor has at the time he acknowledges it, and also upon all those which he afterwards acquires; so that no alienation by the cognizor will prevent the cognizee from extending the land. And where a reversion expectant on an estate tail falls into possession, it then becomes liable to the recognizances, not only of the original donor, but also of all the intermediate heirs who were entitled to such reversion, because it is a direct lien on lands, and differs in that respect from a bond. Ante, p. 152. n. (R). But by the statute 29 Cha. 2. c. 3, it is enacted, that no recognizance shall bind lands in the hands of bona fide purchasers, but from the time of the inrollment. Et vid. 8 Geo. 1. c. 25. There are two other kinds of recognizances of a private sort, which are said to be in the nature of a statute merchant and statute staple, as to which, see post, Book II. Chap. XI. Of Execution.-[Ed.]

(A) We purpose, in this note, to consider the doctrine of uses under three general heads, viz. 1st. With respect to the origin and nature of uses before the stat. 27 H. 8. c. 10; 2dly. Of uses since that statute; and, 3dly. Of the rules applicable to limitations of uses since the statute. The different kinds of conveyances derived from the statute of Uses, and the doctrine relating to uses which are not executed by the statute, and to trusts, will be explained in the subsequent notes to this chapter.

1st. With respect to the origin and nature of uses before the stat. 27 H. 8. c. 10. The original simplicity of the common law admitted of no immediate estate in lands, which was not clothed with the legal seisin and possession thereof. But, in process of time, a right to the rents and profits of lands, whereof another person had the legal seisin and possession, was introduced; and, though not recognized for a long time by the courts of common law, was, notwithstanding, supported by the court of chancery, and became well known by the name of a use. The introduction of this novelty, though, at first, it appears to have been but a trivial innovation, has, in its progress, produced a revolution in the system of real property, and given rise to a mode of transferring land very different from that which the old law had established. A use was created in this manner:-The owner of lands conveyed them by feoffment, with livery of seisin, to some friend; with a secret agreement, that the feoffee should be seised of the lands, to the use of the feoffor, or of a third person. Thus the legal seisin was in one; and the use, or right to the rents and profits in another. It is uncertain when this distinction between the legal seisin, and the right to the rents and profits, was first introduced. But it is clear that the practice of conveying lands to one per

(571)* 271b. (572)*

*A feoffee to the use of A. and his heirs, before the statute of 29 H. 8. for money bargaineth and selleth the land to C. and *his heirs.

son to the use of another, did not become general until the reign of Edw. 3, when the ecclesiastics adopted it, in order to evade the statutes of mortmain, by procuring conveyances of land to be made, not directly to themselves, but to some lay persons; with a secret agreement that they should hold the lands for the use of the ecclesiastics, and permit them to take the rents and profits. The idea of a use, and the rules by which it was first regulated, are now generally admitted to have been borrowed by the ecclesiastics, from the fidei commissum of the civil law. Bac. Read. 19. 2 Bl. Com. 327, 328. 1 Cru. Dig. 393. And by analogy thereto, the clerical chancellors assumed the jurisdiction of compelling the execution of uses in the court of chancery; and enforced this jurisdiction by devising, or rather adopting from the common law courts, the writ of subpoena, to oblige the feoffee to attend in court, and disclose his trust. 3 Reev. Hist. 192. The use, of which a definition has been given above, consisted of three parts:-that the feoffee should suffer the feoffor to take the profits; that the feoffee, upon request of the feoffor, or notice of his will, would execute the estates to the feoffor, or his heirs, or any other by his direction; that if the feoffee had been disseised, and so the feoffor disturbed, the feoffee would re-enter, or bring an action to recontinue the possession. Bac. 10. 1 Sand. 2. This right in equity to the rents and profits of the land, which constituted a use, was not issuing out of the land, but was collateral thereto, and only annexed in privity to a particular estate in the land; that is to say, the use was not so attached to the land that when once created, it must still have existed, into whose hands soever the lands passed, as in the case of a rent, a right of common, or an advowson appendant; but it was created by a confidence in the original feoffee, and continued to be annexed to the same estate, as long as that confidence subsisted, and the estate of the feoffees remained unaltered. So, that, to the execution of a use, two things were absolutely necessary; namely, confidence in the person, and privity of estate. 1 Co. 122 a. Plowd. 352. Poph. 71, 72. Confidence in the person, signified that trust which was reposed in the feoffees, and arose from the notice which was given them of the use, and of the persons who were intended to be benefited by the feoffment. Ibid. The idea of confidence in the person was at first extremely limited, for it only extended to the original feoffee; but it was settled, in the reign of Hen. 6. that a subpoena would lie against all those who came in in the per, without paying a valuable consideration; and also against all those who had notice of the former uses, although they did pay a valuable consideration. Keil, 42. But if a feoffee to uses enfeoffed a stranger of the land for valuable consideration, who had no notice of the use, as there was no confidence in the person, either expressed or implied, the use was destroyed, and the new feoffee could not be compelled to execute it. 1 Co. 122 a. With respect to privity of estate, it is observable, that a use was a thing collateral to the land, and only annexed to a particular estate in the land, not to the mere possession thereof; so that, whenever that particular estate in the land, to which the use was originally annexed, was destroyed, the use itself was destroyed. Therefore the disseisor, the lord by escheat or forfeiture, or tenant by curtesy or in dower, although they had full notice of the use, yet they were not liable to perform the trusts because they were not in in the per, that is, in privity of the estate to which the use was annexed; but claimed an estate paramount to that which was liable to the use. Ibid. With respect to the persons who were capable of being feoffees to uses, all private persons whom the common law enabled to take lands by feoffment, might be seised to a use, and were compellable in chancery to execute it. A feme covert and an infant, though under years of discretion, might be seised to a use. Bac. Read. 58. But no corporate body could be seised to a use, because the court of chancery could not issue any process against them to execute the use; and a corporation cannot be intended to be seised to any other's use. Plowd. 102. Neither could the king, nor the queen regnant, on account of their royal capacity, be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the use. Bac. 56. So a queen consort could not be seised to a use. Bac. 57. With respect to the species of property which might be conveyed to uses, it was held, that nothing whereof the use was inseparable from the possession, such as annuities, ways, commons, &c. quæ ipso usu consumuntur, could be granted to a use; but that all corporeal hereditaments, as also incorporeal inheritances, which were in esse, as rents, advowsons in gross, local liberties and franchises, might be conveyed to uses. W. Jones, 127. The rules by which uses were governed, were derived from the civil law, and differed materially from those by which real property was regulated in the courts of common law. Hence, Lord Bacon observes, that used stood upon their own reasons, utterly differing from cases of possession. Read. 13. Thus, by

who hath no notice of the former use; yet no use passeth by this bargain and sale, for there cannot be two uses in esse, of one and

(272)* Cannot be

two uses in esse of the same land.

the common law, a feoffment was good without any consideration, but uses could not be raised without a consideration. Ibid. Uses were alienable, Id. 16; and by the stat. 1 R. 3. c. 1. cestui que use in possession might have conveyed the legal estate, without the consent of the feoffees. In the alienation of uses, which might be by any species of deed or writing, except a feoffment and livery, which was foreign to its nature, no words of limitation were necessary. 1 Co. 87 b. 100 b. Uses might be limited so as to change from one person to another, by matter subsequent, as upon the happening of some future event. For though the rules of the common law do not allow a fee simple to be limited after a fee-simple, yet the court of chancery admitted this species of limitation to be good in the case of a use. Bac. 18. So uses were revocable. Ante, 237 a. p. 123. 3 Ch. Ca. 66. Uses were devisable, although, at that time, lands were not Bac. 20. 1 Co. 123 b. Uses, however, were descendible according to the rules of the common law respecting estates of inheritance. Bac. 11. 2 Rol. Abr. 780. Ante, 14 b. p. 179. n. 40. A use not being considered as an estate in the land, was not an object of tenure; and was therefore freed from all those oppressive burthens which were the consequences of the feudal system, viz. wardship, marriage, relief, and escheat. Ante, 76 b. vol. 1. p. 299. But cestui que use, in respect to the legal ownership of the land, had neither jus in re, nor ad rem. 1 Co. 121 b. W. Jones, 127. Bac. Uses, 5. Therefore, when in possession, he was considered merely as tenant by sufferance. Bro. Feoff. al. Uses, 39. Plowd. 3 a. 22 Vin. 286. pl. 2 & 3. He could not bring an action, avow, nor justify for damage faisant in his own name. Bro. Feoff. al. Uses, pl. 39. 136. So his wife was not dowable of the use, Perk. s. 349; and the husband of feme cestui que use could not have his curtesy. Ibid. 463. 1 Co. 123 b. Cestui que use did not forfeit his lands for treason nor felony, Jenk. Cent. 190; and the use was not considered as assets in the hands of the heir nor executor, to satisfy creditors. 1 Co. 121 b. 1 Sand. 60, 61. Cestui que use, indeed, might have been sworn upon an inquest: but this rule was established under particular circumstances. See post, 272 a. As to the feoffee, he was complete owner of the land at law; he performed the feudal duties; his wife had dower, Bro. Feoff. al. Uses, pl. 10; and his estate was subject to wardship, relief, &c. He had power of selling the lands, and forfeited them for treason or felony. In short, he might have brought actions, and have exercised every kind of ownership over, or in respect of the lands. Dy. 96. Jenk. 190. 1 Sand. 62. Such was the state of uses

at the time when it was deemed expedient to pass the stat. 27 H. 8. c. 10, commonly called the statute of Uses; which enacts, "that when any person shall be seised of any lands, to the use, confidence, or trust, of any other person or persons, by reason of any bargain, sale, feoffment, fine, recovery, contract, agreement, will, or otherwise: then, and in every such case, the persons having the use, confidence, or trust, shall from thenceforth be deemed and adjudged in lawful seisin, estate, and possession, of and in the lands, in the same quality, manner, and form, as they had before in the use."

2d. Of uses since the stat. 27 H. 8. c. 10. Whatever might have been the intention of the legislature, the statute 27 H. 8. c. 10. certainly did not abolish the practice of conveying to uses it has merely destroyed the intervening estate of the feoffees or grantees; and thereby converted the equitable into a legal estate. 1 Saund. 80-82. With respect to the circumstances necessary to the execution of uses by this statute, there are, 1st. A person seised to the use of some other person: 2d. A cestui que use in esse; and, 3d. A use in esse in possession, remainder, or reversion. 1 Co. 126 a. 1st. As to the person seised to the use, the statute did not, nor indeed could, alter the nature of the use, Cowper v. Franklin, 3 Bulst. 185; and it therefore follows, that a person not capable before the statute of being seised to a use, cannot be a grantee after it. The several persons incapacitated to stand seised to uses have been already mentioned; and it is only necessary to remark in this place, that if an alien be enfeoffed to uses, or if a person having committed treason is made grantee to uses, and is afterwards attainted (Bac. 58, 59.), the statute executes the use until office found; but upon office being found, the use is destroyed by relation. Bac. 59. King v. Boys, Dy. 283 b. pl. 31. With respect to the estate of which a person may be seised to uses, it is observable, that the word "seised" extends to every estate of freehold; though it seems that, before the statute, all feoffees to uses must have been seised in fee. 1 Sand. 40. It was formerly much doubted whether a tenant in tail could be seised to a use, Cowper v. Franklin, 2 Co. 78 a. 3 Bulst. 184. Cro. Jac. 400. Moor. 848. 1 Rol. Rep. 384. 2 Rol. Abr. 780. Shep. Touch. 509. Jenk. 195; but it seems to be