READING OX THE STATUTE OF USES. 317 



before the statute, and this coming in question since the 

 statute upon an averment by the plaintiff quod partes foils 

 nihil habueruntyit is said that the defendant may show the 

 special matter of the use, and it shall be no departure from 

 the first pleading of the fine ; and it is said farther, that 

 the form of averment given in 4 H. VII. quod partes foils 

 nihil habueriint, nee in possessione, nee in usu, was ousted by 

 this statute of 27 H. VIII. and was no more now to be ac 

 cepted ; but yet it appears, that if issue had been taken 

 upon the general averment, without the special matter 

 showed, it should have been found for him that took the 

 averment, because a use is nothing. But these books are 

 not to be taken generally or grossly ; for we see in the same 

 books, that when a use is specially alleged, the law taketh 

 knowledge of it ; but the sense of it is, that a use is nothing 

 for which remedy is given by the course of the common 

 law, so as the law knoweth it, but protects it not; and, 

 therefore, when the question cometh, whether it hath any 

 being in nature or in conscience, the law accepteth of 

 it ; and therefore Littleton s case is good law, that he that Co. Lit. 272. 

 had but forty shillings freehold in use, shall be sworn of an 15 l \- 7 - ia - 

 inquest, for that is ruled secundum dominium naturale, and per 

 not secundum dominiam legitimum, nam natura dominus est, 

 quifructum ex re pereipit. And so, no doubt, upon subsi- 21 II. 7. 6, 

 dies and taxes cestuy que use should have been valued as 

 an owner ; so, likewise, if cestuy que use had released his 

 use unto the feoffee for six pounds, or contracted with a 

 stranger for the like sum, there was no doubt but it was a 

 good condition or contract whereon to ground an action 

 upon the case for the money : for a release of a suit in the 

 chancery is a good quid pro quo; therefore, to conclude, 

 though a use be nothing in law to yield remedy by course 

 of law, yet it is somewhat in reputation of law and in con 

 science ; for that may be something in conscience which is 

 nothing in law, like as that may be something in law which 

 is nothing in conscience; as, if the feoffees had made a 

 feofftnent over in fee, bona jide, upon good consideration, 

 and, upon a subpoena brought against them, had pleaded 

 this matter in chancery, this had been nothing in conscience, 

 not as to discharge them of damages. 



A second negative fit to be understood is, that a use is 

 no covin, nor it is no collusion, as the word is now used ; 

 for it is to be noted, that where a man doth remove the 

 estate and possession of lands or goods, out of himself unto 

 another upon trust, it is either a special trust, or a general 

 trust. 



