trust or equitable right. The necessary consequence of CHAP. III, limiting a use not beneficial, is to create a trust; for

the taker of such a use, having no right to hold for

his own benefit, must of course hold as a trustee for some other person.

character.

The use, whether beneficial or not, has ceased to rest Uses have lost their equitable on personal confidence, and has, under the influence of character, and the statute, become to all intents a legal right to which assumed a legal the possession is joined. Consequently, where land is conveyed to A., to uses, it is no longer possible that any act to be done by him, as, for instance, his conveyance to a purchaser without notice, can defeat the uses, because the conveyance to A. is no sooner completed than the uses are converted into permanent legal rights, differing from similar interests of common law origin only in the mode and form of their creation and limitation. The effect of the statute upon beneficial uses, and upon uses not beneficial, is the same:-all uses are regarded by courts of law with an equal eye. The legal judge never inquires whether the person to whom the use is limited has any beneficial right or not-an inquiry proper to another jurisdiction. Hence since the statute, uses prove nothing in regard to the beneficial ownership, but are merely the moulds by means of which the legal ownership may be be designed to take beneficially cast with facility into almost any given form. Although or not. fashioned after uses before the statute, they may be as destitute of the equitable principle as their prototypes were always destitute of the legal possession. If the person taking the use be also entitled to the beneficial enjoyment, he becomes legal owner for his own benefit; if not, he becomes legal owner in trust for the person so entitled. As the beneficial interest is no longer of the essence of a use, it follows, that uses may be created as

Immaterial at law whether the object of the use

CHAP. III. well by a person who has the legal ownership without

Alleged inapplicability of the statute, where no use would

have arisen in equity, denied.

Examination of

the beneficial interest, as by a person in whom these are
united. So that when a mere trustee of the legal owner-
ship, without the consent of the beneficial owner, con-
veys to uses, such uses, even though unsupported by any
consideration, or limited to persons having full notice
of the trust, confer legal interests by force of the statute;
yet it is clear that, under similar circumstances, they
could not have been sustained as uses before the statute.
It has been suggested, (a) however, that the statute can
operate only in those cases in which the uses would have
been good as uses in equity before the statute ;-
trine unquestionably sound in theory, but which, if ad-
mitted in practice, would shake the established system
of conveyancing to its centre. Equity has ceased to be a
necessary ingredient in the composition of an use. The
legal interpreters of the statute, taking for their guide
the narrowest rule of literal construction, referred con-
science to the keeping of chancery.

--

-a doc

Until some explanation had been given of the general the doctrine of a state of the legal ownership under the statute, it would scintilla juris to feed future and have been premature to examine another doctrine procontingent uses. duced by the judicial glosses upon a very intelligible enactment; a doctrine which far exceeds in subtlety that of the use upon the use. We read that a certain doctor having challenged the learned world to dispute with him upon any given topic, an English student proposed the question, whether "goods taken in withernam are irreplevisable?" (b)—a question which, of course, confounded the schoolman. His pride of universal knowledge might

(a) Butl. Fearn. C. R. 8th ed. p. 327, n. (¿).

(b) 3 Black. Com. 149, n.

have been yet more effectually put to shame by propound- CHAP. III. ing the point which we are about to discuss.

effect before the statute.

A use may be destined to commence at a future period, Future and contingent uses deas at Christmas next; or to arise upon a dubious event, scribed. as A.'s return from Rome; or to arise in favour of a person to be born or ascertained, as a future child of A. Inasmuch as a use of this nature is not a present disposition, the statute cannot convert it into a present legal estate in the land. These uses are called future, springing, or contingent. If, before the statute, A. had conveyed land to B. in fee, to the use of C. for life, and after C.'s death, to the use of his unborn sons for life or in tail, and, subject to those uses, to the use of D. and his heirs, it is clear that the whole use, or beneficial interest, how they took would have been divided between C. and D. till the birth of a son, which event would have drawn away from D. so much of the use or benefit as was designed for the son. Now, after the statute, which attracts the land in the direction of the use, it may be imagined that the legal estate would pursue exactly the same course-that, until a son came into existence, C. and D. would be the owners of the whole legal estate, which, on the birth of a son, would, to the extent of his interest, move to him from D., in whom it vested subject to be so partially divested. But this, it seems, was far too simple and intelligible an explanation; opposite theories were broached, and warm disputes arose-disputes which appear less justly referable to a laudable zeal for principle and consistency, than to a perverse desire that the imputation of craft and cunning, by which uses before the statute were sought to be discredited, should deservedly attach to their new condition. The difficulty started was upon the letter of the statute, which applies in terms only to a case where

E

difficulties concerning them after the

statute.

CHAP. III. one person is seised to the use of another person.

But

how, at the time of the conveyance, in the last example,
could B. (it was asked) be seised to the use of a non-
existing son?-and how, after the conveyance, when, by
the operation of the statute, C. and D. had become seised
between them of the whole estate in the land, could B.
continue to be seised at all? Instead of the solution
which plain reason suggests, and which regards the seisin
of D. as a qualified seisin, liable to give place to and
admit the future son-some of the judges "struck out
new sparkles of their own." They held that the words
of the statute would be best satisfied by a FICTION; by
holding that, although C. and D. had the whole estate
till the birth of a son, yet B. had a possibility of regain-
ing, in that event, (they did not show by what magic,) a
momentary seisin to the use of the son.
To this possi-
bility they gave the mysterious Latin appellation of
scintilla juris et tituli; apprehending, probably, that a
spark of right and title would kindle no future contro-
versies among the learned. Westminster Hall resounded
with the debate:-the speeches of the eleven judges,
who delivered their opinions seriatim, occupied six
days. (a) The Lord Chief Justice Popham declared
that not to cherish the scintilla would be "to cast the
whole commonwealth into a sea of troubles, and en-
or it with utter confusion and drowning." The
th had little to fear, but common sense was
in imminent danger of perishing between the conflicting
elements of fire and water. The scintilla has learned
advocates (b) and opponents (c) to this hour; yet the pro-

dang

commonwea

(a) Chudleigh's Case, 1 Co. R. 120, a; S. C. Poph. 70; 1 And.

309.

(b) Sand. Us. 4th ed. 110.

(c) Sugd. Pow. S. 3.

fession, by a sort of tacit convention, seems to treat the CHAP. III, point as purely speculative.

against the scin

But dropping down from the sublime metaphysics of Arguments the law, let us try the matter by the test of facts and tilla doctrine. principles familiarly known and understood. When A, makes a conveyance to B. in fee, to the use of C. for life, and, after C.'s death, to the use of his unborn sons for life or in tail, and, subject to those uses, to the use of D. in fee, we know practically that B. ceases, ere the wax is stiff, to have any concern with the land, which, passing through him with the swiftness of the electric fluid, leaves no scintilla behind. He is, in fact, a mere conductor. Now what is the condition of the contingent use limited to the unborn sons? In treating of uses before the statute, we have shown that B., who would then have continued the legal owner, might, by conveying to a purchaser without notice, have defeated all the uses, which were personal confidences reposed in him, but that C. could not have defeated the uses limited to his unborn sons. Now, since the statute, as we also know practically, the right of the unborn sons is so knit to the land that no disposition to be made by B. or D. before the birth of a son can prevent a son, afterwards coming into existence, from taking the interest destined for him; while it is equally certain that C., the tenant for life, may, by destroying his life estate, defeat the right of his unborn sons. The inference is plain-the destination in favour of the unborn sons has lost its primitive character of a use; for retaining that character, it would necessarily be affected by the acts of B. or D. (in the one or the other of whom the land must reside till the birth of a son,) and unaffected by the act of C. But it cannot have lost its original character unless it has acquired a legal character,