1

Thomas (though disseised of the land) by bargain and sale enrolled conveyed the land settled on himself and his heirs to the plaintiff, on trust for the payment of his debts. He died; and the plaintiff filed his bill against Sir Moyle Finch and his wife for the land. The chancellor made a decree for the plaintiff. The defendants then petitioned the queen for a reversal of the decree.1 She referred the case to the judges, and on their report the decree was reversed.

It will be observed that there were two trusts in this casefirstly the trust to convey to Sir Thomas Heneage and Anne his wife and their heirs, and secondly the trust raised on the bargain and sale by Sir Thomas for the payment of his debts.

3

It

As to the first trust, it was, as Ames has said, an active trust. It was clearly not considered to be a trust to which the Statute of Uses applied, as the trustees thought it necessary to convey to Sir Thomas and his wife by bargain and sale. But it should be noted that the active duty in this case was simply to convey. is clear that the distinction between an active trust simply to convey to X, and a conveyance to the use of X, is a little thin; and the thinness of the distinction tended to become more apparent, because, as we have seen, the original reason for the rule that there could be no use upon a use was tending to be lost sight of. That being so, it would be only natural that in a case of fraud or great hardship-if, e.g., all the parties had acted in reliance on the carrying out of the trust-the chancellor should reconsider the rule that the second use could not be enforced. And it would seem from what the judges said in this case that they would not have disagreed. They said: 5 "If a man make a conveyance, and express an use, the party himself or his heirs shall not be received to aver a secret trust, other than the express limitation of the use, unless such trust or confidence do appear in writing, or otherwise declared by some apparent matter. Popham said that covin accident and breach of confidence were within the proper jurisdiction of this court"-i.e. the court of Chancery.

4

And

The second trust-that created by Sir Thomas Heneage in favour of his creditors on the bargain and sale-was not upheld on appeal. But it should be noted that the grounds upon which the chancellor's decision was reversed have nothing to do with

1 This was at that period the only way in which a decision of the chancellor in the exercise of his equitable jurisdiction could be questioned vol. i. 372-373. 2 Lectures on Legal History 245-246. 3 Vol. iv 471-472.

4" The spectacle of one retaining for himself a legal title, which he had received on the faith that he would hold it for the benefit of another, was so shocking to the sense of natural justice that the chancellor at length compelled the faithless legal owner to perform his agreement," Ames, Lectures on Legal History 247.

5 Fourth Instit. 86.

the rule that there can be no use upon a use.

The trust was

declared invalid on four grounds: firstly, because Sir Thomas, being disseised, could make no valid conveyance of the legal estate; secondly, because, though Sir Moyle Finch was (it would seem) the disseisor, he was not bound by the trust because he was in in the post; 2 thirdly, because the bare trust, which was all that was left to Sir Thomas, was incapable of assignment, and so could not be enforced by the plaintiff; and fourthly, because the title and the trust had descended to the daughter, so that the trust was merged in the legal estate.

It would seem that, according to the later rules of equity, the second and third grounds for this decision were bad. But, whether the decision was right or wrong according to the then received principles of equity, it is clear that the reasons on which it was based had nothing to do with the doctrine of the invalidity of a use upon a use. On the contrary, it is, as we have seen, clear that the judges admitted that there might be cases in which equity might properly uphold a second use. This view, which thus had the support both of the chancellor and of the common lawyers, was acted upon in 1633-1634 in the case of Sambach v. Dalston.3 Thus it is clear that the rule that there could be no use upon a use was weakening. But, as we have seen, it was hardly likely that it would be wholly abandoned so long as the king's financial interest in the incidents of tenure made its continuance necessary in order to prevent the evasion of these burdens. This was really the only cause for the maintenance of the rule; and so we shall see that, in the following period, when, in consequence of the abolition of the military tenures, the king had no further interest in perpetuating it, it silently disappeared. Family Law.

The two branches of family law in which important developments were made by the court of Chancery during this period were, firstly, the law as to married women, and, secondly, the law as to the guardianship of infants. It is in the first of these branches of the law that the most important developments took place. Although the court was ready to intervene in the second, its activities were fettered by the continued existence, during the

1 Fourth Instit. 85; I have paraphrased these grounds, and omitted that which turned on the views of the judges as to the limits of the equitable jurisdiction to examine the title to freehold.

2 It is not stated that Sir Moyle Finch was the disseisor; but it seems to me that it is necessary to suppose this to make sense of the report; he must have been in seisin or the bill would not have been brought against him, so that he was either the disseisor or acquired the seisin from him.

3"Because one use cannot be raised out of another, yet ordered and the defendant ordered to pass according to the intent," Tothill 188.

4 Vol. iv 472.

5 Vol. vi c. 8,

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whole of this period, of the feudal rights of wardship, which were controlled by the court of Wards and Liveries.

(1) I have already described the status of the married women at common law;1 and we have seen that that status was not materially modified by the ecclesiastical chancellors. But during the sixteenth and early seventeenth centuries we can see the gradual growth of a feeling that these rigid rules ought to be modified. The total incapacity of the married woman to own personal property, and to deal with her real property, naturally appeared more and more unsatisfactory to the women of the wealthier classes and their relations-in 1590 George, earl of Shrewsbury, made a legacy to his daughter conditional on her surviving her husband. Hence we find attempts to modify her proprietary incapacity; and the partial success of these attempts naturally introduced modifications of her other disabilities which had followed from this proprietary incapacity.

The methods adopted to modify her proprietary incapacity seem to have been two in number. Firstly, an attempt was made to use the machinery of a contract or contracts entered into before marriage; and secondly, use was made of the machinery of the trust. Sometimes there was a combination of these two

devices.4

(i) There are, during this period, one or two cases in which effect was given to a contract entered into before marriage to allow a married woman a limited power of disposition; and contracts of this kind appear in the conveyancing precedents of this period. 6 In the case of Avenant v. Kitchin (1581-1582)

the report runs as follows:- "The bill is as well for certain legacies given them [the plaintiffs] by the late wife of the said Kitchin, and also to have the said Huet ordered not to release a Recognizance of 2000 marks, wherein the said Kitchin is bound unto him in trust before marriage with his said wife, that she might by the will dispose of £500 of goods besides her jewels. Kitchin demurred upon the bill, and sued the said Huet in the court of Requests to release the said Recognizance; and ordered, if cause be not showed by such a day, then a subpoena to Kitchin to make a better answer, and to Huet not to release the Recog

2 Vol. iv 428-429.

1 Vol. iii 520-533. 3"Unto my daughter Grace, now wyfe of Henrie Cavendishe, esquier, one thowsand poundes, to be payde within one quarter of a yeare after the death of her husband, yf she fortune to survive him, or else she to not take anie proffytt of the legacie," North Country Wills (Surt. Soc.) ii 148-149.

4 See Castillian v. Castillian (1612), Monro, op. cit. 164-166-the husband entered into a recognizance with the wife's friends to make a jointure of £400 a year, and conveyed to them in trust a manor and all her jointure from former husbands, and by deed of gift gave them all his goods to her use.

5 Pt. II. c. I § 10.

6 Choyce Cases 154.

nizance." It appears therefore that the court was inclined to uphold the validity of such an agreement; and in 1637-1638, in the case of Palmer v. Keynall1 a similar agreement was in fact upheld. But the Chancery decisions are not uniform. Many of them seem to go no further than the common law decisions of this period.

The question of the validity of an ante-nuptial agreement by a husband to leave his wife property by his will had already come before the courts of common law. They had held that, though an agreement between a man and a woman was avoided by their intermarriage,2 yet it might be upheld if the obligation only arose after the determination of the marriage. Thus an agreement by a man to bequeath to a woman £100 if she married him, would be enforceable by her if she married him and survived. Of course these decisions do not go the length of the Chancery decisions, which allowed a married woman to acquire by contract an active disposing power over property, even during the marriage. They only allow that the wife might acquire by contract a capacity to receive on the termination of the marriage. But they do evidence a disposition to relax slightly the strictness of the technical rules of the common law.

5

4

In conformity with this view it was held in the Chancery that there could be no contract between husband and wife, that neither could sue the other, and that after marriage no variation of any settlement made before marriage could be effected by agreement. Similarly it was doubted in some cases whether a contract made before marriage could give the wife any active disposing power during the marriage. In 1631 the lord keeper and two of the judges declined to uphold a verbal agreement, made before marriage, that a wife should have the sole disposal of £600 a year due to her under a decree of the court.7 They said that "the verbal agreement in consideration of the said marriage was to subvert both the grounds of law, and the right

1 Ch. Rep. 118.

2Y.BB. II Hy. VII. Mich. pl. 15; 21 Hy. VII. Mich. pl. 4.

3 Smith v. Stafford (1618), Hob. 216, diss. Hobart; Clark v. Thomson (1620), Cro. Jac. 571; Lupert v. Hoblin (1657), 2 Sid. 58.

4 Stoit v. Ayloff (1632-1633), i Ch. Rep. 60.

5 Simpson v. Simpson (1627-1628), Tothill 97.

"A man having three daughters, entails his land upon them; after, one of them was married, and being a feme covert, with the consent of her husband, was contented and agreed to take one thousand pounds, in consideration and extinguishment of her right as coheir; the judges hold it to be no good bar to her," Dockwray v. Poole (1609) Tothill 98.

7 Lord Suffolk v. Greenvil (1631), Nels. 15; cp. Povy v. Peart (1590), Tothill 98; Atwood v. Stubbs, ibid 98-99; Flecton v. Dennys (1594), Monro, Acta Cancellaria 655-659, below 313-314: these were cases of trusts, but the principles applicable seem to be somewhat similar.

which was vested in him (the husband) by the intermarriage; and therefore if such agreement is not settled by some legal assurance to make it binding in law, it is not fit to be maintained in a court of equity, in order to give a feme covert such a power as is now pretended." In fact the court sometimes seems to have regarded devices used by the wife to withdraw her property from her husband's control, as frauds upon the husband's legal rights, unless the husband had received consideration for the abandonment of his rights. This feeling also affected attempts to improve the married woman's proprietary position through the machinery of the trust; but, as we shall now see, the comparative flexibility of that machinery made it possible, if under the circumstances it seemed to be equitable, to modify the married woman's proprietary position by arrangements made both before and during the marriage.

(ii) There are several illustrations, both in the reports and in the conveyancing precedents, of the growing practice of conveying property to friends of the wife for her use; and it is quite clear that the court of Chancery was prepared to give effect to them.1 At this period the common law judges justified this device on the ground that, if the estate so settled was equitable, it was a mere chose in action, and not property at all from their point of view. The court of Chancery was no doubt influenced in favour of these arrangements by the fact that many of them were part and parcel of a bargain as to the wife's jointure. The Statute of Uses had made a legal jointure in lieu of dower legally possible; and equity had soon improved upon this by upholding bargains for a jointure other than those contemplated by the statute.1 The need for such an extension was the more apparent since equity was inclining to refuse to permit dower out of equitable estates. A fair arrangement so made would no doubt be upheld by the court. But it would seem that the mere fact that a trust had been created for the benefit of the woman would not necessarily bar the husband, unless it could be shown,

3

5

1" Waterhouse, defendant, was grantee of a lease in trust to the use of the wife of Witham; she died, and made Waterhouse administrator; Witham complained, and would have had the lease in equity, the order and opinion of the court was, he should not, but the grantee and administrator should" (1595-1596), Tothill 91, S.C. Co. Fourth Instit. 87; FitzJames v. Hirsley (1590), Tothill 43; cp. Fleshward v. Jackson (1623-1624), ibid 94; for the conveyancing precedents see Pt. II. c. 1 § 10.

2 Co. Fourth Instit. 87-" This trust was a thing in privity, and in nature of an action, for which no remedy was but by writ of Subpoena;" this reasoning was overruled by the House of Lords in Sir Edward Turner's Case (1681), 1 Vern. 7, and it was decided that the husband could dispose of his wife's equitable estate unless settled on her with his consent; below 314-315.

3 Vol. iii 196.

4 Lacy v. Anderson (1581), Choyce Cases 155-156-copyholds settled and a demurrer that copyhold is no legal bar overruled.

5 Kempe v. Lord Reresby (1626), Tothill 99; vol. iii 196.