An Introduction to the History of the Land Law

By A. W. B. Simpson | Go to book overview

VIII
Uses and the Statute

THE conception of a use of lands differs little from that of a deposit of a chattel, and both transactions will be actuated by much the same sort of motives. I may hand over a book to a friend because I feel that it is safer in his custody, or because I am going abroad and cannot take it with me, or indeed for a multitude of honest and understandable reasons. I may also do so for dishonourable or fraudulent reasons -- to keep a valuable book out of the hands of my creditors. Furthermore, I may hand over a book to a friend with some instructions requiring him to do something more positive with it -- to read it to my small son at bedtime. In the course of time the law has evolved a number of remedies which protect me against sharp practice in such situations when I bail a chattel, and these remedies are common law remedies, though they have to some extent been supplemented by the intervention of Equity. Unfortunately the medieval lawyers were incapable of devising suitable remedies when the same sort of transaction was carried out not with chattels but with land, nor did they find it easy to prevent such transactions being used for fraudulent purposes. In the Middle Ages it was the Chancellor who supplied the first defect and the legislature the second.

We meet with examples of uses of land back in Domesday Book;1 by the time we reach the thirteenth century the practice of putting lands in use has become fairly common. The essence of such a transaction is that lands are conveyed to a person or persons (called the feoffee or feoffees to uses) with a provision that they be held for the benefit (ad opus) of a beneficiary. The beneficiary is described in law french as 'cestui a que use le feoffment fait fait', and from this obtains his curious title 'cestui que use'. The plural of this term is often rendered charmingly

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1
For examples see Pollock and Maitland, II, p. 234, and, for the early history, II, pp. 228-9; also Maitland, Collected Papers, II, pp. 403-16, Plucknett, Concise History, pp. 575-8, Ames, Lectures in Legal History, Lect. XX.

-163-

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