Use in United Kingdom

Concept of Use

The following is an old definition of Use [1], a term which has several meanings:1, (verb) To employ, hold, occupy, enjoy, take the benefit of.0 In insurance law, ” to use a port ” means to go into a harbor or haven for shelter, commerce, or pleasure, and to derive advantage from Its protection.

Alternative Meaning

(Noun)Appropriation, application, employment; enjoyment, benefit, profit. See Abuse. ” For the use of,” in conveyancing, expresses the right of appropriation or enjoyment, rather than the purpose or mode of use. A grant of “the use of the timber” on a tract of land was held to convey an incorporeal right, not the timber itself nor the soil. Riding a stray horse about, trying to find the owner, is not such using as is intended by the rule that’ one who “uses anestray” becomes liable in trover. A ” change in use ” in insurance includes a change from occupancy to ” disuse.” Actual use. Wearing apparel may be “in actual use ” without having been actually worn. ” In use ” means in employment; and ” actual ” means real as opposed to nominal and present. For use. Describes a suit or proceeding, a decree or judgment, had for the benefit of another person than the, nominal plaintiff; as, ” A, for use, etc. v. B.” Misuse; Misuser. Wrongful use; abuse. Non-use; non-user. Failure to use; neglect. An office may be forfeited by misuser or abuse, as when a judge takes a bribe; or by non-user or neglect. Public use. A use which is for the benefit of the public, or which concerns the whole community in which it exists, as distinguished from a particular individual or number of individuals. The power of taxation cannot be used in aid of enterprises for the benefit of individuals, though in a remote or collateral way the local public may be benefited thereby.0 A public use of an invention, permitted by the inventor, for more than two years prior to the date of a patent avoids the patent. To constitute such use it is not necessary that more than one of the patented articles be publicly used.1 See Dedication; Domain, Eminent; Take, 8. Usage. General and uniform practice. See Umal, p. 1071. In English law, “usage” is local practice, and must be proved; “custom “is general practice, judicially noticed without proof. Usage is the fact; custom the law. There may be usage without custom: there can be no custom without usage to accompany or precede it. Usage consists in a repetition of acts; custom arises out of this repetition. The usage leading to a custom may be proved by public writings, by the testimony of aged persons, or by two concurring judgments upon the matter. Usage of trade. A. course of dealing; a mode of conducting transactions of a particular kind. The custom or usage of a trade is the law of that trade, and obligatory if ancient (sufiiciently old to be generally known), certain, uniform, and reasonable. Usage of trade and custom are part of the common law. They help interpret the otherwise indeterminate intention of parties, where their acts and expressions are doubtful; but they are never admissible to contradict what is plain. A general usage may be proved in proper cases to remove ambiguities and uncertainties in a contract or to annex incidents, but it cannot destroy, contradict, or modify what is otherwise manifest. Where the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant. Usage cannot make a contract where there is none, nor prevent the effect of the settled rules of the law. See Custom; Usus, Malus, etc. Usance. The period which, in early times, it was usual to appoint between different countries for the payment of bills. When usance is a month, half usance is always fifteen days, notwithstanding the unequal length of the months. Use and occupation. A species of assumpsit, when one has used another’s realty under a contract, express or implied, to pay therefor, and for the value of which an action of rent cannot be maintained, as for want of a lesise, or of an agreement to pay a specified sum. The law implies a promise to pay what the benefits accruing from the possession are worth. This is the fomidation of the cause of action. In certain cases the value of lasting and valuable Improvements may be deducted. Not maintainable where the occupation has been tortious, as that forbids the implication of a promise; nor where the relation of landlord and tenant does not exist. Useful. Is employed in patent statutes incidentally, distinguishing that which is beneficial from that which is mischievous or immoral; does not intend that which is superior to other modes in use for the same purpose. A “useful invention” is such as may be applied to some beneficial use in society, in contradistinction to an invention which is injurious to the morals, the health, or the good order of society. The law does not regard the degree of utility. Useful is here opposed to “frivolous” or “nox- ious.” Unless the invention is shown to be absolutely frivolous and worthless, the patent is valid. The fact that a patent has been issued raises a presumption of utility. The burden of proving inutility is upon the contestant. See Novelty; Patent; Process; Utility. Compare Usns, Utile, etc. User. The exercise or enjoyment of a right, especially of a franchise right. Opposed, non-user, disuser. An uninterrupted possession and use of an incorporeal hereditament or easement, such as a way or a water-privilege, for twenty years, is prima facie, and, if unexplained, conclusive evidence of a right; under some circumstances the courts will entertain the presumption of a grant, even for a shorter period. A right thus acquired by “user” may, in like manner, be lost by ” disuser; ” in other words, discontinuance of the use for a long period affords a presumption of the extinguishment of the right. Adverse user. A user without license of permission.An adverse right of easement cannot grow out of a mere permissive enjoyment. The distinction is between a permissive or tolerated user, and a user claimed as a matter of right. Where, however, one has used a right of way for twenty years unexplained it is but fair to presume that the user is under a claim of right, unless it appears to have been by permission. In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an ” adverse ” use, and the burden is upon the owner of the land to show that the use was by license or contract inconsistent with a claim of right. An adverse use is such a use of property as the owner himself would make, asking no permission, and, disregarding all other claims so far as they conflict with this use. Continued for twenty years, such use is equivalent to a grant. When an easenient has once been acquired, mere non-user will not defeat the right: there must be an adverse use by the servient estate for a period sufficient to create a prescriptive right. See Dedication; Easement. Usual. According to general practice; conforming to common usage. “Usual and customary,” referring to a usage, import something more than casual or exceptional. – a fixed and established usage which has become general in the particular trade. ” Usual stopping place,” in a statute respecting the expulsion of a passenger from a railway train, means a regular station. A water-tank is not such place, although passengers get off there while trains are stopping. See Business; Dispatch; Negotiation. 3. ” Where a man has anything to the use of another upon confidence that the other shall take the profits: he who has the profits has an use.” Cestui, or cestuy, que use. He for whose benefit a use is created. Under the Statute of Uses, the legal owner of the estate, as opposed to the nominal grantee or holder. The forms of the plural, found in standard law works, are; cestuis que use, cestuis que uses, and cestui que uses. The first, like cestuis que trust, seems to be the preferred spelling. See further Cestui. Usee. Chancery gave the beneficial enjoyment to the person intended to be benefited, calling the first “usee “the legal-estate man, or trustee merely; the proper beneficiary being the second or last “usee,” the cestui que trust, and true owner in equity. A use is where the legal estate of lands is in A, in trust that B shall take the profits and that A will make and execute estates according to the direction of,B. . . Before the Statute of Uses, a use was a mere confidence in a friend, to whom the estate was conveyed by the owner without consideration, to dispose of it upon trusts designated at the time, or to be afterward appointed by the real owner. The feoflfee or trustee, to all intents and purposes, was the real owner of the estate at law, and the cestui que use had only a confidence or trust, for which he had no remedy at common law. A ” use ” regards principally the beneficial interest; a “trust,” the nominal ownership. A use is an estate vested since the Statute of Uses, and by virtue thereof. A trust is the relation between the holder of the legal estate, and the owner of the equitable estate – the beneficiary. Trusts are now what uses were before the Statute. Uses and trusts, in their original, are of a nature very similar, or exactly the same. They answer to the fidei-commissa of the Homan law, which were tnjsts ii^troduced by testators to evade the law which disabled certain persons, as, exiles and strangers, from being legatees or heirs. The property was given to a person in confidence that he would convey it or dispose of the profits according to the pleasure of anothter, the real object of the bounty. But every such gift was also a jus precarium, a right with a remedy in entreaty or request, not enf orcible in law, but depending solely upon the honor of the trustee. Augustus, having been frequently solicited in favor of persons toward whom trustees had broken faith, directed the praetor to afford a remedy in such cases. These fiduciary interests then increased so fast that special equity jurisdiction was created for them through the prsetor fidei commissarius, the ” chancellor for uses.” In English law, a use may be’ classed as a jus fidu- ciarum of the Koman law, that is, as a right in trust, with a remedy in conscience; a confidence reposed in another, tenant of land, tbat’ he would dispose of the laud according to the intentions of him to whose use it was granted, and suffer him to take the profits. About 1375 these uses were transplanted into Eng- land by foreign ecclesiastics, to evade the statutes of mortmain (q. v.) by obtaining grants of lands to third persons to the use of religious houses. The clerical chancellors of that day held that these grants were fidei cofnmiasa, and binding in conscience. The evasion was prevented by 15 Rich. II (1892), c. 5. The idea continued to be applied to a number of civil purposes; it removed restraints upon alienations by will, and permitted the owner of lands in his life- time to make such designations of their profits as prudence, justice, or family convenience might require. . . At length, through the desire to provide for children by will, and to secure estates from forfeiture in times of civil commotion When parties alternately attainted each other, uses grew almost universal, and the courts of equity reduced them to a system. About 1535 the greater part of the land of England was conveyed to uses: the property or the possession of the soil being vested in each case in one man, and the use, or the profits, in another, whose directions regarding the disposition thereof the former was in conscience bound to follow, and he could be compelled so to do by a court of equity. In 1536 the Statute of Uses (27 Hen. VIII, c. 10), the statute for transferring uses into possession, was passed, enacting that ” when any person shall be seized of lands, tenements, or other hereditaments to the use, confidence, or trust of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, for years, or other- wise, shall thenceforth stand and be seized or possessed of the lands, etc., of and in the like estates as they have in the use, trust, or confidence; and the estate of the person so seized to uses shall be deemed to be in him or them that have the use, in such quality, manner, form and condition as they had before in the use.” The statute “executes the use,” that is, it conveys the possession to the use, and transfers the use into possession; thereby making the cestui que use complete owner of the lands and tenements, as well at law as in equity. The statute did not abolish conveyance to uses: it only annihilated the intervening estate of the feoffee, and turned the interest of the cestui que use into a legal, instead of an equitable, ownership. Thereupon the courts of common law began to take cognizance of uses. As the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat; but they were no longer devisable. It was adjudged that if the use cannot take effect the instant the conveyance is made, the operation of the statute may wait till the use shall arise upon a contingency, to happen within a reasonable period. Which doctrine, when devises were again introduced, as equivalent to declarations to uses, was also adopted in favor of “executory devises,” which are contingent or springing uses, except that for such uses there must be a person seized to the uses when the contingency happens, else they can never be executed by the statute; and, therefore, if the estate of the feoffee be destroyed, before the contingency arises, the use is destroyed: whereas by an executory devise the freehold itself is transferred to the future devisee. ” Springing uses ” are limited to arise on a future event, where no preeediug estate is limited, and they do not take effect in derogation of any preceding interest. By means of powers, a use, with its estate, may spring up at the will of any given person. But future or contingent uses are limited to take effect as remainders, q. v. See Scintilla, Juris. Shifting or secondary use. A use which, though executed, may change from one person to another by circumstances ex post facto; as, if a man makes a grant to his intended wife and her eldest son for their lives, at marriage the wife takes the whole use in severalty, and upon the birth of a son the use is executed in them jointly. “Shifting” or “secondary” uses take effect in derogation of sqme other estate, and are limited by the deed creating them or are authorized to be created by a person named in it. They are common in all settlements. In marriage settlements the first use is always to the owner In fee till the marriage, and then to other uses. The fee thus remains with the owner until the marriage, when it “shifts” as uses arise. But it will be so confined as not to lead to a perpetuity, q. v. Resulting use. Whenever the use lim- ited by the deed expires, or cannot vest, but returns back to him who raised it, after such expiration, or during such impossibility. Thus, if a man makes a grant to the use of his intended wife for life, with remainder to the use of her first-bom son: till he marries, the use ” results back ” to the grantor him- self; after marriage, it is executed in the wife for life; and if she dies without issue, the whole goes back to him in fee. If the use limited by deed expired, or could not vest, or was not to vest except upon a contingency, the use ” resulted back ” to the grantor. The rule is the same where no uses are declared by the conveyance. So much of the use as the owner does not dispose of remains in him. If he conveys without any declaration of uses, or to such uses as he shall there after appoint, or to the use of a third person on the occurrence of a specified event, in all such cases there is a use resulting back. By the equitable decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed; but one or two technical scruples restored it with tenfold increase. It was held (1) that ” no use could be limited on a use; ” that when a man bargains and sells his land for money, which raises a use, by implication, in the bargainee, the limitation of a further use to another person is repugnant, and therefore void; as, a grfint to A and his heirs, to the use of B and his heirs, in trust for C and his heirs. A use limited upon a use is not affected by the statute, which executes the first use only. The second use may be valid as a trust. In the case of a deed of bargain and sale the whole force of the statute is exhausted in transferring the legal title in fee-simple to the bargainee. It was held (2) that ” seized to the use,” in the statute, did not extend to a term of years or other chattel interest, whereof the termor is possessed. As to the distinctions above noted it may be observed that, in the first case, it was evident that the parties did not intend that B should have a beneficial Interest; and, in the second case, that the cestui que use of the term was expressly driven into chancery for a remedy. That court determined that though these interests were not ” uses ” which the statute could execute, they still were “trusts “in equity, which in conscience ought to be performed. Thus the doctrine of uses was revived under the name of “trusts; ” and thus, by the strict construction of the courts of law, the Statute of Uses has had little other effect than to make a slight alteration in the formal words of a conveyance. The statute imported into the rules of law some of the then existing doctrines of the courts of equity, and added ” to the use ” to every conveyance. The intent of the statute was to abolish chancery jurisdiction over landed estates, by giving actual possession at law to every person beneficially entitled in equity. The court of chancery, by the foregoing rulings, defeated this intent. The Statute of Frauds (q. v.) having required that every declaration, assignment, or grant of any trust in lands or hereditaments, except such as arise from implication, shall be in writing signed by the party, or by his written will, the courts now consider a trust estate, expressed or implied, as equivalent to the legal ownership, governed by the same rules of property, and liable in equity as the other is in law. In fine, the courts, assisted by statutes, now make trusts to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trust will descend, may be aliened, is liable to debts, executions, forfeitures, leases, incumbrances, curtesy, but not to dower, nor to escheat. Covenant to stand seized to uses. A species of conveyance by which a man, seized of lands, in consideration of blood or marriage, covenants that he will stand seized of the land to the use of his wife, child, or kinstnan, for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus ac- quired the use, is thereby put at once into corporal possession. The statute also introduced the species of conveyance known as bargain and safe; a liind of real contract, whereby the bargainor, for a pecuniary consideration, contracts to convey land to the bargainee; and becomes, by such bargain, a trustee for, or seized to the use of, the bargainee: and then the statute completes the purchase. The bargain vests the use, and the statute the possession. The English doctrines of uses and trusts, under 27 Hen. VIII, and the conveyances founded thereon, have been generally introduced into the Jurisprudence of this country. Charitable use. Such gift, conducive to the welfare of the public, as a, court of equity will take cognizance of; a charity, q. v. Executed use. The first use upon which the Statute of Uses operates, by joining the possession and the use, as seen above. Executory use. A springing use which confers a legal title analogous to an executory devise. Future use. A general name for any shifting or secondary, springing, contingent, or resulting use. Pious use. A gift to a religious house; a devise, bequest, or other donation to a religious organization. Superstitious use. Refers to old English legislation which restricted gifts in aid of religious doctrines deemed erroneous and pernicious, as, the tenets of dissenters, Roman Catholics, and Jews. See generally Charity; Raise; Trust, 1.

Resources

Notes and References

1. Meaning of Use provided by the Anderson Dictionary of Law (1889)