land, as recognised in the English jurisprudence, though exactly analogous to the Roman In bonis habere, is historically connected with the Roman fideicommissum.

A conveyance of land to one person on trust or in confidence that he would permit another to enjoy it originally created no legal obligation. Trusts, like fideicommissa, in their origin, nullo vinculo juris, sed tantum pudore eorum qui rogabantur, continebantur (Institutes, lib. 2, tit. 23, 1. 1). The trust or confidence was not recognised or enforced at law on the ground that it was repugnant to the conveyance. The Equitable jurisdiction of the Chancellor was either not yet in existence, or did not yet recognise and enforce trusts. The trust or confidence therefore, in its origin created merely a moral obligation. But in the latter part of the fourteenth or the early part of the fifteenth century, the Chancellor took upon himself to enforce trusts or confidences. The ground of his interference was the confidence reposed, and the breach of faith committed. Hence it followed, that the trust was enforced only against the person to whom the conveyance was made in confidence; for it was in him only that confidence was reposed, and by him only that a breach of faith could be committed. The trust was not, therefore, at the period of which we are now speaking, enforced against the heir of a person to whom a conveyance was made in confidence, nor against his alienee (Year Books, 8 Edw. IV., 6; 22 Edw. IV., 6). At this period, therefore, the right of the person for whose benefit the trust was created was not in the nature of ownership, or jus in rem, but was obligation, or jus in personam, merely (See Spence's Equitable Jurisdiction, vol. 2, p. 875).

It was, however, soon held that the right created by the trust or confidence originally reposed might be enforced against other persons than him in whom the confidence was reposed, namely, against his heir, and also against alienees

from him who did not give valuable consideration, or who took with notice of the trust. The right then ceased to be mere jus in personam and became jus in rem; it ceased to be a mere obligation and became a right of ownership. This stage in the history of the Equitable ownership or Use seems to have been reached in or soon after the reign of Edward IV., and at the time of the passing of the Statute of Uses, the Use was a right enforceable, not only against the person to whom the land was originally conveyed upon trust, but also against persons claiming through or under him (persons in in the per), either without giving value, or with notice of the trust. In much more modern times it appears to have been established that the right created by the trust or confidence prevails against persons who acquired the Legal ownership, not through or under the trustee, but by title paramount to him (persons in in the post); but it does not prevail against a person who has acquired the Legal ownership for valuable consideration and without notice of the trust.

The history of the Equitable ownership or Use may be briefly summarised thus: it is a movement from mos tó jus, and from jus in personam to jus in rem.

The practice of conveying lands to one person to the use of another (or, as it was technically termed, of putting lands into Use) prevailed so extensively that in the fifteenth century the greater part of the land in the kingdom was held in Use. This practice was extremely prejudicial to the king and the great feudal lords, whom it deprived of the profits of their feudal seigniories, for the Use, as has been already mentioned, was not the subject of tenure, and, by vesting the Legal ownership in a number of persons, the happening of any feudal incidents to the lord was, to a great extent, prevented. The extensive severance of the beneficial interest from the Legal ownership was, moreover, attended with some serious practical inconveniences. The

Use was not extendible, and, therefore, the creditors of the real owner of the land could not make it available for payment of their debts. Purchasers of lands from the Equitable owners were defrauded by latent legal estates produced by feoffees to Uses. Persons claiming the land knew not against whom to bring their real action for the recovery thereof. Treasons were encouraged, for the Use

was not liable to forfeiture.

To correct these and other inconveniences, many Statutes were passed relating to Uses before that of the twentyseventh year of Henry VIII. Thus, by the 21 Rich. II., c. 3, and other Statutes, Uses were made forfeitable for treason. By the 1 Rich. III., c. 1, the conveyances of the Equitable owner (called the cestui que Use) were made valid as against persons claiming any legal estate in the land to the use of the conveying party. By the 1 Henry VII., c. 4, it was enacted that real actions might be brought against the pernor of the profits of the lands demanded whereof any person was seised to his Use. By the 4 Henry VII., c. 17, the lord of the fee was entitled to wardship of the heir of the cestui que Use, if such heir was under age; or to a relief, if the heir was of full age; in the same manner as if the cestui que Use had had the Legal ownership. And by the 19 Henry VII., c. 15, the judgment creditors of cestui que Use were enabled to obtain execution of their judgments against lands in which their debtor had only the Use.

These Statutes, however, failed to accomplish their object, as appears by the preamble of the Statute which we shall presently state; and in the year 1535, the twenty-seventh year of Henry VIII., an Act was passed, the 27 Henry VIII., c. 10, concerning Uses and Wills, the design of which appears to have been to extirpate Uses, and prevent the existence of the Equitable or beneficial ownership apart from the Legal ownership, by always annexing the Legal ownership to the beneficial ownership. The enactments

of this celebrated Statute, so far as they are important for our present purpose, may be briefly stated follows:

as

"That when any person or persons shall be seised of any lands, tenements, or hereditaments to the Use, confidence, or trust of any other person or persons, or of any body politick, the person or persons or body politick that have such Use, confidence, or trust, shall be deemed to be seised and possessed of such lands, tenements, and hereditaments, to all intents and purposes, of and in the like estates as they had in Use, trust, or confidence, of or in the same. And that the estate, title, right, and possession that was in the person or persons seised of such lands, tenements, or hereditaments, to the Use, confidence, or trust of any other person or persons, or any body politick, shall be deemed and adjudged to be in him or them that have such Use, confidence, or trust, after such quality, manner, form, and condition as they had before in or to the Use, confidence, or trust that was in them."

The design of this Statute, as has been already stated, was to prevent the existence of the Equitable or beneficial ownership separate and apart from the Legal ownership, by always uniting the Legal to the beneficial ownership. This design, however, has not been effectuated; for at the present moment, as we all know, the Equitable or beneficial ownership may, notwithstanding the Statute, be severed from the Legal ownership, and exist as a distinct and separate right.

This circumstance was chiefly, if not entirely, due to the construction which the common lawyers, upon whom the duty of construing the Statute devolved, put upon the Statute. Thus, it was held that the Statute does not annex the Legal estate to the Equitable estate where the severance of the latter from the former takes place by virtue of some Equitable doctrine which has been established since the passing of the Statute; for the common lawyers took the

doctrines of Equity as to the creation of Uses as they existed at the time of the passing of the Statute, and (so to speak) crystallised them. In this manner the cases to which the Statute applied were fixed, and its application has not since been extended so as to include cases which have arisen subsequently. If, therefore, at the present day an owner of land without any consideration of money or money's worth, or of natural love and affection, or marriage, executes a simple declaration of trust in favour of another absolutely, the Legal ownership remains in the person declaring the trust, although the Equitable ownership passes to the person in whose favour the trust was declared, and the two rights remain separate and distinct, the Statute of Uses not operating in such a case; for at the time of the passing of the Statute of Uses, the Equitable doctrine was that an Use could not be raised without transmutation of the possession, except upon the consideration of money or money's worth, or that of natural love and affection, or marriage; and this Equitable doctrine was, after the passing of the Statute, transplanted to the Courts of Law; but when, in more modern times, it was established that a declaration of trust was valid, although purely voluntary, the legal doctrine was not modified in like manner, nor was the Statute held to transfer the Legal ownership to him who, in this manner, had acquired the Equitable ownership. In such a case, therefore, and in all other cases of the same class, the Equitable ownership exists separately and distinctly from the Legal ownership, contrary to the design of the Statute.

Again, since the Statute speaks only of the case of one person being seised to the Use of another, it was held that it did not apply where one person held a mere term, or an estate in lands of copyhold tenure, in trust for another; for in such a case the person is not said to be seised. In such cases, also, the Equitable ownership exists separately