TyrreVs Case and Modern Trusts. only apply to a use upon a use." 1 But if the cestuy que use here referred to were the second cestuy, he would not proceed against the feoffees, for the Statute of Uses would have already transferred the legal estate from them to the first cestuy. It would seem that Coke was merely referring to the old and familiar relation of cestuy que use and feoffees to use as an analogy for the case before him, which was an action on the case by a copy holder against the lord for not admitting him. The earliest reported instance in which a use upon a use was supported as a trust seems to have been Sambach v. Dalton, in 1634, thus briefly reported in Tothill :2 " Be cause one use cannot be raised out of an other, yet ordered, and the defendant ordered to passe according to the intent." The con veyance in this case was probably gratuitous. For in the "Compleat Attorney," published in 1666, this distinction is taken : " If I, without any consideration, bargain and sell my land by indenture, to one and his heirs, to the use of another and his heirs (which is a use upon a use), it seems the court will order this. But if it was in consideration of money by him paid, here (it seems) the express use is void, both in law and equity."3 On the next page of the same book the facts of Tyrrel's Case are summarized with this addition : " Nor is there, as it seems, any relief for her [the second cestuy que use] in this court in a way of equity, because of the consideration paid; but if there was no consideration, on the contrary, Tothill, 188." As late as 1668, in Ash v. Gallen,4a Chan1 Digby, Prop. (3 ed.), 328. See 1 Spence, Eq. Jur. 491. 2 Page 188; Shcp. Touch. 507 s. c. 3 Page 265. Compare also pages 507 and 510 of Shep. Touch. ♦ I Cb. Ca. 114.
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cery case, it was thought to be a debatable question whether on a bargain and sale for money to A to the use of B, a trust would arise for B. Even in the eighteenth cen tury, nearly two hundred years, that is, after the Statute of Uses, Chief-Baron Gil bert states the general rule that a bargain and sale to A to the use of B gives B a chan cery trust with this qualification : " Qucere tamcn, if the consideration moves from A." 1 In the light of the preceding authorities, Lord Hardwicke's oft quoted remark that the Statute of Uses had no other effect than to add three words to a conveyance must be admitted to be misleading. Lord Hardwicke himself, some thirty years afterwards, in Buckinghamshire v. Drury,2 put the matter much more justly : " As property stood at the time of the statute, personal estate was of little or trifling value; copyholds had hardly then acquired their full strength, trusts of estates in land did not arise till many years after (I wonder how they ever hap pened to do so)." The modern passive trust seems to have arisen for substantially the same reasons which gave rise to the ancient use. 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. 1 Gilbert, Uses, 162. But in 1700 the limitation of a use upon a use seems to have been one of the regular modes of creating a trust. Symson v. Turner, 1 Eq. Ab. 383. The novelty of the doctrine is indicated, however, by the fact that, even in 1715. in Daw v. Newborough, Comyn. 242, the court, after saying that the case was one of a use upon a use, which was not allowed by the rules of law, thought it worth while to add: "But it is now allowed by way of trust in a court of equity." 2 2 Eden, 65.
