320 READING ON THE STATUTE OF USES. 



named not, but seemed well to allow of the opinion, is not 

 sound ; which was, that a use was but a limitation, and did 

 ensue the nature of a possession. 



27 H. 8. 9, 10. This very conceit was set on foot in 27 H. VIII. in the lord 

 Darcie s case, in which time they began to heave at uses : 

 for thereafter the realm had many ages together put in 

 action the passing of uses by will, they began to argue that 

 a use was not devisable, but that it did ensue the nature 

 of the land : and the same year after this statute was made ; 

 so that this opinion seemeth ever to be a prelude and fore 

 runner to an act of parliament touching uses ; and if it be 

 so meant now, I like it well : but in the meantime the opi 

 nion itself is to be rejected; and because, in the same case 



i Rep. 88. of Corbet and Corbet, three reverend judges of the court of 

 Common Pleas did deliver and publish their opinion, though 

 not directly upon the point adjudged, yet obiter as one of 

 the reasons of their judgment, that a use of inheritance 

 could not be limited to cease ; and again, that the limitation 

 of a new use could not be to a stranger ; ruling uses merely 

 according to the ground of possession; it is worth the labour 

 to examine that learning. By 3 H. VII. you may collect, 

 that if the feoffees had been disseised by the common law, 

 and an ancestor collateral of cestuy que use had released 

 unto the disseisor, and his warranty had attached upon 

 cestuy que use, yet the chancellor, upon this matter showed, 

 would have no respect unto it, to compel the feoifees to 

 execute the estate unto the disseisor: for there the case 

 being, that cestuy que use in tail having made an assurance 

 by fine and recovery, and by warranty which descended 

 upon his issue, two of the judges held, that the use is not 

 extinct ; and Bryan and Hussey, that held the contrary, 

 said, that the common law is altered by the new statute ; 

 whereby they admit, that by the common law that warranty 

 will not bind and extinct a right of a use, as it will do a 

 right of possession ; and the reason is, because the law of 

 collateral warranty is a hard law, and not to be considered 



5 E. 4. 7. in a court of conscience. In 5 E. IV. it is said, that if 

 cestuy que use be attainted, query, who shall have the land, 

 for the lord shall not have the land ; so as there the use doth 

 not imitate the possession ; and the reason is, because the 

 lord hath a tenant in by title ; for that is nothing to the 

 subpana, because the feoffor s intent was never to advance 

 the lord, but only his own blood ; and therefore the query 

 of the book ariseth, what the trust and confidence of the 

 feoffee did tie him to do, as whether he should not sell the 



