far from proving that the limitation to the heirs of the body gave the husband an estate in remainder, expressly negatives such conclusion; for it states, that for the cause there assigned, it was as much (meaning the same) as if the husband had had a remainder in tail, expectant on an estate for life.

And Mr. Fearne (r) observes, that in instances of this sort, the estates are so far executed in, or blended with, the possession, as not to be grantable away from or without the freehold, by way of remainder. And in the case of the Queen v. Marquis of Winchester, which seems to be decisive of the point under consideration, a gift was to Lionel Norries and Ann Mills, and the heirs of the body of the said Lionel; and it was held, that a common recovery suffered by him alone, in the life-time of Ann Mills, with single voucher, was good for one moiety; so that this case must have been determined on the ground, that in one moiety of the land he had an estate-tail in possession, as part of and connected with his estate of freehold, and not by way of remainder as a distinct interest. When the inheritance is distinct from the freehold, the intail cannot be barred, unless there be a voucher of the donee in tail, or of the heir in tail, and a voucher over.

From these determinations, and in particular

for the reasons assigned for the decision of

(r) Essay on Remainders, p. 41; Wiscot's case, 2 Rep. 41; 3 Rep. 1.

Owen and Morgan (s), it must be concluded that the last-mentioned case owes its decision to the fact, that the husband had his estate by way of possession, and not of remainder. Clithero v. Franklin (t), which recognizes Owen and Morgan to be an unquestionablə authority, does not, by its determination, carry the law one point farther. For in Clithero v. Franklin, the inheritance was clearly and expressly limited by way of remainder, and distinct from the estate of freehold.

An estate is then said to arise by limitation of the legal estate, when it is conveyed by some or one of those modes of assurance, which wholly depend for effect on the rules of the common law, and have their effect entirely under these rules; and,

By limitation of use, when the estate arises by bargain and sale enrolled; or a covenant to stand seised to uses (being assurances which have their effect, as giving a legal right and a legal estate, wholly and merely by the Statute of Uses); or by limitation of use, on some conveyance at common law, or will. In cases of the latter description, the assurance gives a legal title, through the medium and by the operation of the Statute of Uses.

An use (u) was formerly the right, in equity, of having a conveyance of the land, or a collateral interest out of the land, for some time.

(s) 3 Rep. 5.
(t) 2 Salk. 568.
(u) 2 Eunomus, 103.

Even at this day this use is, in most cases, executed into estate by the act of the law, without any act of the party; or mediately only by the act of the party.

The doctrine of uses, forms a copious and intricate branch of legal knowledge, too extensive to be considered at large in the present Work.

Frequent reference must, of necessity, be made to this doctrine. Many of the most curious distinctions in our books, are founded on the difference between an estate taken by the common law, and estates taken through the medium of a conveyance to uses, or under uses without any conveyance: and it will be worth the inquiry to go so far into the learning on uses, as may be a means of rendering intelligible the cases to be noticed in different parts of this Essay, respecting the measure and quantity of estates.

Prior to the statute (x) which transferred the estate to the use, or, in other terms, the use into estate, the use consisted in a confidence reposed by one person in another, that he would suffer him, or some person whom he had named or should name, to take the profits of the land, till a conveyance should be made thereof, according to the trusts; and that he would make a conveyance of the land when that conveyance should be required from him. And if the feoffee or other donee refused to

(*) 27 Hen. VIII. c. 10.

permit the profits to be taken by the person on whose behalf he was entrusted to make, when required, a conveyance to him, the Court of Chancery, (in which alone matters of this sort, as depending on conscience, were properly cognizable) would compel him to do that which, in honesty and good faith, he ought to have done without any coercion or suit..

It must be understood, that, in the several instances which have been noticed, the cestui que use was entitled to the use of the land, or to some interest out of the land, as a rentcharge. As often as the trust was for the payment of debts, or for like purposes, to be performed by the trustee, no person could call for a conveyance of the land. No creditor was entitled to the use of the land. His only remedy was, to require a sale, and by that means enforce a performance of the trusts. Hence the difference at the common law, between uses and trusts. Every use was a trust, but every trust was not necessarily an use. And, even at this day, those trusts which are not uses, are left unaffected by the statute of 27 Hen. VIII. and remain subject to the jurisdiction of courts of equity. They never can become legal estates, except through the medium of a conveyance, even in those instances in which they can, from their nature, be the subject of a conveyance.

The law, as distinguished from equity (y), did not take any notice of the interest, even (y) Kielw. 42 b, 1 and 314. 318.

of the cestui que use, or person entitled to take the profits and call for the conveyance.

When he obtained the possession, he was deemed tenant at will to the trustee, as the owner of the legal estate; and the trustee might eject the cestui que use from the possession, whenever he thought proper: and an action of trespass might have been maintained against the cestui que use, for a continuance in possession against the will of his trustee (z).

If the trustee thought proper to take the profits, then, in point of law, the cestui que use had not any right to interrupt him. And if the cestui que use made a lease, which did not conclude the lessee by estoppel, the plea of nil habuit in tenementis, was a bar to his action of debt for the rent, in like manner as it was to the action of a mere stranger, or person who had not any estate in the land, or in the use of the land (a).

So when the cestui que use levied a fine, without first acquiring the legal freehold by disseisin, or by a feoffment operating by disseisin, the fine was void, on the ground that partes finis nihil habuerunt tempore finis levati (b).

Also, at this day, a fine by cestui que trust, without first acquiring the freehold, cannot

(z) Shep. Touch. 502.

(a) Plow. 349; 15 Hen. 7, 1 Co. 140 a; 1 And. 320; Bart. on the Statutes, 388; 1 And. 320; 2 H. 7.4; Corbet's case, 2 And. 18.

(b) 1 Burr. 95; Sand. 309; 1 Cruise, 290. 310; 27 H. 8. 20; Bac. on Uses, 6, 7; See Basket and Pieree, 1 Verg. 226.