could be ſeiſed to any uſe but their own; that is, they might hold the lands, but were not compellable to execute the truſt. And, if the feoffee to uſes died without heir, or committed a forfeiture, or married, neither the lord who entered for his eſcheat or forfeiture, nor the huſband who retained the poſſeſſion as tenant by the curteſy, nor the wife who was aſſigned her dower, were liable to perform the uſe[1]; becauſe they were not parties to the truſt, but came in by act of law: though doubtleſs their title in reaſon was no better than that of the heir.
On the other hand the uſe itſelf, or intereſt of ceſtuy que uſe, was learnedly refined upon with many elaborate diſtinctions. And, 1. It was held that nothing could be granted to a uſe, whereof the uſe is inſeparable from the poſſeſſion; as annuities, ways, commons, and authorities, quae ipſo uſu conſumuntur[2]: or whereof the ſeiſin could not be inſtantly given[3]. 2. A uſe could not be raiſed without a ſufficient conſideration. For where a man makes a feoffment to another without any conſideration, equity preſumes that he meant it to the uſe of himſelf[4]: unleſs he expreſſly declares it to be to the uſe of another, and then nothing ſhall be preſumed contrary to his own expreſſions[5]. But, if either a good or a valuable conſideration appears, equity will immediately raiſe a uſe correſpondent to ſuch conſideration[6]. 3. Uſes were deſcendible according to the rules of the common law, in the caſe of inheritances in poſſeſſion[7]; for in this and many other reſpects aequitas ſequitur legem, and cannot eſtabliſh a different rule of property from that which the law has eſtabliſhed. 4. Uſes might be aſſigned by ſecret deeds between the parties[8], or be deviſed by laſt will and teſtament[9]: for, as the legal eſtate in the ſoil was not transferred by theſe tranſactions, no livery of ſeiſin was neceſſary; and, as the intention of the parties was the leading principle in this ſpecies of property, any
