¹ Palmer, V.V., The Paths to Privity (San Francisco 1992)Google Scholar (hereafter Paths to Privity). The second chapter is substantially the same as Palmer, V.V., “The History of Privity—The Formative Period (1500–1680)” (1989) 33 American Journal of Legal History 3CrossRefGoogle Scholar (hereafter History of Privity). For the work's importance see reviews by Girvin, S.D., (1995) 13 Law and History Review 164Google Scholar, and Yale, D.E.C., (1995) 39 American Journal of Legal History 111CrossRefGoogle Scholar. See also Seabourne, G., (1994) 23 Anglo-American Law Review 129.Google Scholar

² Paths to Privity, p. 29; History of Privity, p. 6.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Corbin, A.L., “Contracts for the Benefit of Third Persons” (1930) 46Google Scholar L.Q.R. 12 at 20 n. 15 (referring in particular to the word “trustee”). Cf. Sugden's note to Gilbert, The Law of Uses and Trusts: “It has frequently been observed by high authority, that there is no magic in words” (referring to the rule that a use upon a use is void): Gilbert, J., The Law of Uses and Trusts, 3rd ed., by Sugden, E.B. (London 1811), p. 348.Google Scholar

⁷ Milsom, S.F.C., “Reason in the Development of the Common Law” (1965) 81Google Scholar L.Q.R. 496 at 500.

⁸ Milsom, S.F.C., Historical Foundations of the Common Law, 2nd ed. (London 1981), p. 150.Google Scholar

⁹ See p. 192 below.

¹⁰ Maitland, F.W., Equity, 2nd ed., by Brunyate, John (Cambridge 1936), p. 24.Google Scholar Palmer notices this sense of “use” in his discussion of the benefit theory: History of Privity, p. 20; Paths to Privity, p. 46.

¹¹ Sir Frederick Pollock and Maitland, F.W., History of English Law Before the Time of Edward I, vol. 2, 2nd ed. (Cambridge 1898), p. 230.Google Scholar

¹² See Birks, P., An Introduction to the Law of Restitution (Oxford 1985), p. 80.Google Scholar

¹³ The question of uses of leasehold land is not here addressed.

¹⁴ 27 Hen. VIII, c. 10(1536).

¹⁵ Maitland, F.W., Equity, 2nd ed., by Brunyate, John (Cambridge 1936), p. 38.Google Scholar

¹⁶ Bacon, F., reading on the Statute of Uses in The Works of Francis Bacon, Spedding, J., Ellis, R.L. and Heath, D.D. (eds.), vol. 7 (London 1859), p. 425.Google Scholar See Milsom, S.F.C., Historical Foundations of the Common Law, 2nd ed. (London 1981), p. 236;Google Scholar Sir Hale, Matthew, History of the Pleas of the Crown, vol. 1 (London 1736), p. 248;Google Scholarper Holt, C.J. in Broughton v. Langley (1702)Google ScholarHolt, K.B. 708 and in Lord Altham v. Lord Anglesea (1709)Google Scholar 11 Mod. 210 at 211, and per Powell J. Ibid, at 213; Jones, G.H., History of the Law of Charity (Cambridge 1969), p. 6Google Scholar n. 5.

¹⁷ Yale, D.E.C. (ed.), Lord Nottingham's “Manual of Chancery Practice” and “Prolegomena of Chancery and Equity” (Cambridge 1965), pp. 236–238Google Scholar. Discussed in Yale, D.E.C., “The Revival of Equitable Estates in the Seventeenth Century: An Explanation by Lord Nottingham” “1957” C.L.J. 72. See also Sugden's comments in Gilbert, The Law of Uses and Trusts, 3rd ed., p. 69.Google Scholar

¹⁸ See also Ames, J.B., “The Origin of Uses and Trusts” (1907–1908) 21Google Scholar Harvard L.R. 261 at 272; Barton, J.L., “The Statute of Uses and the Trust of Freehold” (1966) 82 L.Q.R 215 at 216–217;Google ScholarSweet, Charles, “The True Doctrine of the Old Use” (1918) 63 Solicitors' Journal 79Google Scholar at 80; Cornish, W.F., An Essay on Uses (London 1825), p. 14;Google ScholarSanders, F.W., An Essay on the Nature and Laws of Uses and Trusts (London 1791), p. 233.Google Scholar

¹⁹ German, Christopher St., Doctor and Student, Plucknett, T.F.T. and Barton, J.L. (eds.) (London 1974), Selden Society vol. 91, p. 222Google Scholar (spelling and punctuation modernised).

²⁰ 2 Leo. 14, pl. 25 at 16, as emended in Baker, J.H. and Milsom, S.F.C., Sources of English Legal History (London 1986), p. 135.Google Scholar

²¹ Bacon, , Reading, p. 425. See also The Elements of the Common Laws of England (London 1630), part II, p. 65:Google Scholar “For this Statute [of Uses], wheresoever it findelh an use, conjoineth the possession to it, and turneth it into like quality of Estate, Condition, Rent and the like, as the use hath”. The second part of this volume, entitled The Use of the Law, has been attributed to Francis Bacon, but it seems likely that only the first part, entitled Maxims of the Law, was Bacon's work. See Baker, J.H. with Ringrose, J.S., A Catalogue of English Legal Manuscripts in Cambridge University Library (Woodbridge 1996), p. 257.Google Scholar

²² D[urfee], E.N., “The Statute of Uses and Active Trusts” (1918) 17Google Scholar Michigan Law Review 87. For “thinglikeness” see Sir Frederick Pollock and Maitland, F.W., History of English Law Before the Time of Edward I, 2nd ed. (Cambridge 1898), vol. 2, p. 125.Google Scholar

²³ Coke upon Littleton, 271 b.

²⁴ Parsons, J.], “A Use upon a Use” (1864) 17Google Scholar Law Magazine and Review (n.s.) 18.

²⁵ British Library (BL) MS. Hargrave 33, fo. 155v.

²⁶ Baker, J.H., The Reports of Sir John Spelman, vol. 2 (London 1978), Selden Society vol. 94, p. 196.Google Scholar

²⁷ Anon. (1502) Keil. 42, pi. 7, per Serjeant Frowyk.

²⁸ Simpson, A.W.B., A History of the Common Law of Contract (Oxford 1975), p. 335.Google Scholar See also Baker, J.H., An Introduction to English Legal History, 3rd ed. (London 1990), p. 287.Google Scholar

²⁹ Printed in Baker, J.H. and Milsom, S.F.C., Sources of English Legal History (London 1986), pp. 105 ff.Google Scholar

³⁰ 30 Per Baldwin C.J.C.P., Lyster C.B., and Luke J.K.B.

³¹ Per Fitzjames C.J.K.B., Spelman J.K.B., and Shelley and Fitzherbert JJ.C.P. Port J.K.B. was of this view too, but spoke so softly that he was misunderstood.

³² BL MS. Harley 4998, fo. 22, pi. 5 (translated). The report is undated, but reference is made to Perrot's Case (1594) Moo. K.B. 368.

³³ Moo. K.B. 368 at 380 (translated).

³⁴ According to the provisions of the Statute of Enrolments, 27 Hen. VIII, c. 16 (1536). For the relationship between the Statute of Enrolments and the mechanism of the bargain and sale see Jones, N.G., “Tyrrel's Case (1557) and the Use upon a Use” (1993) 14 Journal of Legal History 75 at 78–79.CrossRefGoogle Scholar

³⁵ The point is apparent within 10 years of the Statute of Uses: Brooke, R., La Graunde Abridgment, Feffements al Uses, pl. 52 (1544–1945).Google Scholar

³⁶ Baker, J.H., The Reports of Sir John Spelman, vol. 2 (London 1978), Selden Society vol. 94, p. 197.Google Scholar

³⁷ Printed in Baker and Milsom, Sources, pp. 105 ff.

³⁸ The writ causa matrimonii praelocuti lay to enable a woman to recover from a man land which she had conveyed to him in anticipation of a marriage which did not take place.

³⁹ 39 Cole v. More (1607), Chancery and Supreme Court of Judicature, Chancery Division: Six Clerks' Office and successors: Decree Rolls (C 78): C 78/113/7.

⁴⁰ 29 Car. II, c. 3.

⁴¹ See sections 7 and 8.

⁴² 43 Eliz. I, c. 4(1601).

⁴³ In the Statute of Charitable Uses the word trust appears in the context of “breaches of trust” by those “being put in trust”.

⁴⁴ Cro. Eliz. 619, 652; Cambridge University Library (CUL) MS. Dd.8.48, p. 65; CUL MS. Ii.5.26, fo. 210v; CUL MS. Ll.3.10, fo. 33; Harvard Law School (HLS) MS. 1004c, fo. 6; Yale MS. GR 29.10, fo. 211; Yale MS. GR.29.12, fo. 167v; Inner Temple MS. Pet. 516.5, fo 298; sub nom. Lever v. Heys Moo. K.B. 550. Court of King's Bench: Plea and Crown Sides: Coram Rege Rolls (KB 27): KB 27/1350 m 677. Though Palmer treats the two cases as distinct, the case reported at p. 176 of Hetley's reports as Hadves v. Levit seems to be the same as Levett v. Hawes. For the authorship of Hetley, see Baker, J.H., “The Dark Age of English Legal History 1500–1700” in Jenkins, D. (ed.), Legal History Studies (Cardiff 1975), p. 17.Google Scholar For manuscript references I am indebted to the appendix to Ibbetson, D.J., “Consideration and the Theory of Contract in Sixteenth Century Common Law”, in Barton, J.L. (ed.), Towards a General Law of Contract (Berlin 1990), p. 67Google Scholar (hereafter Ibbetson, Consideration).

⁴⁵ Cro. Eliz. 652; CUL MS. Ll.3.10, fo. 33; HLS MS. 1004c, fo. 6. Gawdy J. was absent. The report in HLS MS. 1004c records Clench J. as having been in agreement with Popham and Fenner, but according to all the other reports he either doubted their view or disagreed with it.

⁴⁶ On natural love and affection and marriage consideration see Ibbetson, Consideration, pp. 79–83.

⁴⁷ Yale MS. GR.29.12, fo. 167v (translated).

⁴⁸ See p. 192 below.

⁴⁹ 1 Keb. 44, 63.

⁵⁰ Henry Rolle was Chief Justice of the Upper Bench 1649–1655. The reports referred to have not been identified.

⁵¹ Simpson, History of the Common Law of Contract, p. 480.

⁵² 1 Keb. 63 at 64.

⁵³ Palmer dates the case 1674, but the date in the reports is 1675.

⁵⁴ 1 Freem. KB. 284; 2 Lev. 119; 1 Vent. 297; 3 Kebl. 359, 434, 489.

⁵⁵ Paths to Privity, pp. 26–27; History of Privity, p. 12.

⁵⁶ Paths to Privity, p. 48 n. 79; History of Privity, p. 22, n. 79. 3 Keble 434, sub nom. Courteis & Corny v. Collingwood

⁵⁷ According to Ventris it was held that it must be intended that the bishop made absolution at the plaintiffs' request, while according to Levinz it was held to be sufficient that the mother had a benefit from the absolution, which the bishop would not have made had it not been for the daughter's promise to pay the plaintiffs: 1 Ventris 297; 2 Lev. 119.

⁵⁸ 3 Keble 434 at 435.

⁵⁹ W.S. Holdsworth, History of English Law, vol. 7, p. 358.

⁶⁰ E. Coke, The Second Part of the Institutes of the Laws of England, p. 672.

⁶¹ Winch 59 at 61. See also the Case of Sutton's Hospital (1613) 10 Rep. 1 at 34; H. Rolle, Abridgment, vol. 2, p. 784, pi. 6 and 7; Sharrington v. Strotton (1565) 1 Plowd. 298 at 307 (arguendo); Viner, C., A General Abridgment of Law and Equity, vol. 5 (Aldershot 1751), p. 407.Google Scholar

⁶² 3 Keb. 786, 814, 830, 836; Jones T. 102; 1 Vent. 318, 332; 2 Lev. 210; Raym. Sir T. 302.

⁶³ Yale MS. GR.29.12., fo. 167v (translated).

⁶⁴ 2 Lev. 210 at 211.

⁶⁵ Palmer does not quote the words before the first semi-colon in the passage from Levinz quoted above: Paths to Privity, p. 43; History of Privity, p. 18.

⁶⁶ 2 Lev. 210 at 211–212.

⁶⁷ See p. 192 below.

⁶⁸ Stoljar, S.J. and Downer, L.J. (eds.), Year Books of Edward II, 14 Edward II (Selden Society vol.104) (London 1988), p. 39,Google Scholar and discussion at p. xi. This is the case from which precedent C266B in Shanks, E. and Milsom, S.F.C. (eds.), Novae Narrationes (London 1963) (Selden Society vol.80) is taken.Google Scholar

⁶⁹ Shanks, E. and Milsom, S.F.C. (eds.), Novae Narrationes (London 1963),Google Scholar p. clxxxi (legal introduction by S.F.C. Milsom).

⁷⁰ Ames, J.B., Lectures on Legal History (Cambridge, Mass. 1913), p. 119.Google Scholar

⁷¹ Ames, J.B., “Parol Contracts Prior to Assumpsit” (1894–1895) 8 Harvard Law Review 252 at 258.Google Scholar

⁷² Dyer 20; Baker, J.H., The Reports of Sir John Spelman, vol. 1 (London 1977), Selden Society vol. 93, p. 132 pi. 2, record in vol. 2, p. 327.Google Scholar

⁷³ Langdell, C.C., “A Brief Survey of Equity Jurisdiction” (1888–1889) 2 Harvard Law Review 241 at 255.Google Scholar

⁷⁴ See Baker, J.H., “The Use of Assumpsit for Restitutionary Money Claims” (1995) 15 Comparative Studies in Continental and Anglo-American Legal History 31 at 47–48 (hereafter Baker, The Use of Assumpsit).Google Scholar

⁷⁵ Cro. Jac. 687.

⁷⁶ 2 Bulst. 41; BL MS. Lansdowne 1110, fo. 6.; HLS MS. 105f, fo. 156v; LI MS. Maynard 22, fo. 23v.

⁷⁷ Per Lord Campbell C.J. in Lowndes, Edwards v. (1852) 1 El. & Bl. 81 at 89. Baker, The Use of Assumpsit, 31 at 48.Google Scholar

⁷⁸ Milsom, Historical Foundations, p. 317. For a revision of thinking on the Case of the Humber Ferryman see Palmer, R.C., English Law in the Age of the Black Death, 1348–1381 (Chapel Hill and London 1993), pp. 173–176.Google Scholar

⁷⁹ Lincoln's Inn Misc. MS. 576, p. 92. The Commissioner was most likely John Lisle, see Busch, A.J., “The John Lisle Chancery Manuscripts: The ‘Abridgments’” (1989) 10 Journal of Legal History History.317.CrossRefGoogle Scholar

⁸⁰ 21 Jac. I, c. 16 (1623).

⁸¹ Ames, J.B. (1894–1895)Google Scholar 8 Harvard L.R. 252 at 258.

⁸² J.H. Baker, The Use of Assumpsit, 31 at 48.

⁸³ Paths to Privity, p. 38–39; History of Privity, p. 14.

⁸⁴ KB 27/1298 m 342; KB 27/1299 m 57. Though Dr. Ibbetson (Consideration, pp. 96–97) gives the case as Megod v. Love, it is clear from the record that the names given in the text are correct. The case is here referred to by its traditional name.

⁸⁵ Godbolt 64; 4 Leonard 225; BL MS. Add. 25195, fo. 61v; BL MS. Lans. 1095, fo. 28; HLS MS. 16, fo. 338; Baker and Milsom, Sources, p. 497. The case is reported on a point of procedure in Cro. Eliz 106 (sub nom. Meggot v. Broughton), 2 Leonard 54 (sub nom. Megot and Broughton and Davie's Case), and 4 Leonard 60 (sub nom. Megot and Davies Case).

⁸⁶ This may have been Thomas Mounson, or Monson, of Belton in Axholme, a cousin of Robert Mounson J.C.P. 1572–1580. See Maddison, A.R. (ed.), Lincolnshire Pedigrees, vol. 2 (London 1903) (Harleian Society vol. 51), pp. 681–682.Google Scholar No reference to the conveyance has been found in the Monson papers in the Lincolnshire Archives.

⁸⁷ That is, in consideration of the facts as recited.

⁸⁸ For writs of error coram nobis see Baker, J.H., The Reports of Sir John Spelman, vol. 2 (London 1978), p. 119.Google Scholar

⁸⁹ There was further litigation arising out of the arrest of Davy and Broughton. Davy recovered damages for assault and false imprisonment against the sheriff's officer who had made the arrest, and the sheriff's officer then brought an action against Megott upon an assumpsit to save the officer harmless if he made the arrest: Smythe v. Megott (1587) KB 27/1302 m 60.

⁹⁰ Dr. Ibbetson has identified part of CUL MS. Ff.5.4 as consisting of reports by William Corderoy (or “Cowdrey”): D.J. Ibbetson, “Law Reporting in the 1590s” in Stebbings, C. (ed.), Law Reporting in Britain (London and Rio Grande 1995), p. 73 at pp. 85–86.Google Scholar There is no report of Megod's Case. See also Baker, J.H. with Ringrose, J., A Catalogue of English Legal Manuscripts in Cambridge University Library (Woodbridge 1996), pp. 246–248.Google Scholar

⁹¹ Paths to Privity, pp. 42–43; History of Privity, p. 17. He further takes it to have been an action in the Common Pleas. It may be that this attribution is based upon an assumption that the reported discussion arose out of proceedings in error from the Common Pleas.

⁹² Baker, J.H., An Introduction to English Legal History, 3rd ed. (London 1990), p. 409;Google Scholar Baker. The Use of Assumpsit, p. 32 n. 9.

⁹³ The printed reports of the procedural point in Megod's Case all refer to the action as assumpsit.

⁹⁴ Ibbetson, Consideration, p. 69.

⁹⁵ Cf. Coggs v. Barnard (sub. nom. Coggs v. Bernard) 2 Ld. Raym. 909 per Holt C.J. “it is objected that there is no consideration to ground this promise upon, and therefore the undertaking is but nudum pactum. But to this I answer that the owner's trusting him with the goods is a sufficient consideration to oblige him to careful management”.

⁹⁶ Baker, J.H., The Legal Profession and the Common Law (London and Ronceverte 1986), p. 391.Google Scholar

⁹⁷ SeeS.F.C. Milsom, “Not Doing is no Trespass: A View of the Boundaries of Case” [1954] C.L.J. 105.

⁹⁸ Gell's reports, MS. now in Derbyshire Record Office, Hopton Hall deposit, fos. 154v, 158v; printed in Baker and Milsom, Sources, p. 486. See J.H. Baker, “Origins of the ‘Doctrine’ of Consideration, 1535–1585” in Arnold, M.S., Green, T.A., Scully, S.A., and White, S.D. (eds.), On the Laws and Customs of England (Chapel Hill 1981), pp. 352–354.Google Scholar

⁹⁹ Ibbetson, Consideration, p. 70.

¹⁰⁰ Ibbetson, ibid, p. 70.

¹⁰¹ Ibbetson, ibid, p. 72.

¹⁰² Ibbetson, ibid, p. 71, and see also p. 102. Cf. fourteenth century arguments as to the availability of covenant for waste without a deed where the writ of waste would not lie, Ibbetson, D.J., “Words and Deeds: the Action of Covenant in the Reign of Edward I” (1986)Google Scholar 4 Law and History Review at 91.

¹⁰³ Baker, The Use of Assumpsit, p. 31 at p. 32 n. 9.

¹⁰⁴ Chancery Entry Books of Decrees and Orders (C 33): C 33/74 f 280v.

¹⁰⁵ Wystan Broune or Browne (d. 1580), of South Weald in Essex, was great-nephew and heir of Sir Anthony Browne C.J.C.P. (d. 1567). His will is printed in Emmison, F.G., Elizabethan Life: Wills of Essex Gentry and Merchants (Chelmsford 1978), p. 60.Google Scholar Sir John Peeter or Petre, of Ingatestone in Essex, was son and heir of Sir William Petre (d. 1572); see generally Emmison, F.G., Tudor Secretary. Sir William Petre at Court and Home (London and Colchester 1961).Google Scholar The defendant in Chancery was Philip Browne, Wystan's cousin, and also a great-nephew of Sir Anthony.

¹⁰⁶ Yale, D.E.C. (ed.). Lord Nottingham's “Manual of Chancery Practice” and “Prolegomena of Chancery and Equity” (Cambridge 1965), p. 262;Google Scholar BL MS. Hargrave 48. fo. 80v.

¹⁰⁷ 2 Sid. 21; Yale, D.E.C. (ed.). Lord Nottingham's Chancery Cases, vol. 2 (London 1961). p. 889.Google Scholar case 1118;BLMS. Hargrave 48. fo. 101.

¹⁰⁸ KB 27/1797 m 1156. Cf Balysford, Whyle v. (1538)Google Scholar where assumpsit was brought against an executor for a legacy, and Morys, Kyng v. (1538)Google Scholar where no undertaking was alleged: Baker, J.H.. The Reports of Sir John Spelman, vol. 2 (London 1978) Selden Society vol. 94, p. 286Google Scholar n. 3. and references there.

¹⁰⁹ See, for example, Bush, Jevon v. (1685)Google Scholar 1 Vern 342 at 344; The Earl of Kildare v. Sir Morrice Eustace and Fitzgerald (1686) 1 Vern. 419. per John Holt arguendo; Eales v. England (1702) 1 Eq. Cas. Abr. 384. This line of cases was discussed by Dr. M.R.T. Macnair in a paper delivered at the Twelfth British Legal History Conference. Durham, 1995. 1 am grateful to Dr. Macnair for allowing me to see a copy of his paper.

¹¹⁰ Paths to Privity, p. 42; History of Privity, p. 17.

¹¹¹ Paths to Privity, p. 43; History of Privity, p. 18.

¹¹² Cro. Eliz. 466; Poph. 106. suh nom. Arthur Johnson's Case; Coke. Fourth Inst. 87; C 33/89 ff 181, 313, 857, 882v, C 33/91 ff 5l9v, 598. 648. 771. 878v. C 33/97 IT 296. 353, 526, 672.

¹¹³ Popham 106.

¹¹⁴ Style 20; Aleyn 14.

¹¹⁵ Yale, D.E.C., (1995) 39 American Journal of Legal History 111.CrossRefGoogle Scholar

¹¹⁶ Privity of Contract: Contracts for the Benefit of Third Parties, Law Commission report No. 242, July 1996.

¹¹⁷ Atiyah, P.S., The Rise and Fall of Freedom of Contract (Oxford 1979), p. 139.Google Scholar

¹¹⁸ Yale, D.E.C. (ed.). Lord Nottingham's Chancery Cases, vol. 2 (London 1961). p. 91.Google Scholar

¹¹⁹ For a recent re-examination see Langbein, J.H., “The Contractarian Basis of the Law of Trusts” (1995) 105 Yale Law Journal 625.CrossRefGoogle Scholar

¹²⁰ Maitland, F.W., Equity, 2nd ed. by Brunyate, J. (Cambridge 1936), p. 111.Google Scholar

¹²¹ Langbein, , (1995) 105 Yale Law Journal 625 at 627. It is noted that Langbein takes the “contractarian basis” of the trust to have intensified from the second half of the nineteenth century onwardsGoogle Scholar, ibid. p. 628.

¹²² Atiyah, P.S., The Rise and Fall of Freedom of Contract (Oxford 1979), p. 156.Google Scholar

¹²³ 20 N.Y. 268.

¹²⁴ Langbein, , (1995) 105 Yale Law Journal 625 at 646.CrossRefGoogle Scholar

¹²⁵ Per Wray C.J. in Megod's Case.

¹²⁶ Y.B. Pas. 21 Edw. IV, fo. 22, pi. 6, printed in Baker, J.H. and Milsom, S.F.C., Sources of English Legal History (London 1986), p. 513.Google Scholar