Cestui Que As A Method of Fraud
From the Doctor and Student (1518) "It will be somewhat long and peradventure somewhat tedious to show all the causes particularly." By the fifteenth century, cestui que use was a vehicle to defraud creditors. The main use was to leave land, or parts of land to members of the family other than the primary heir. This was a way to avoid primogeniture inheritance. While the use was intact, the occupant of the land could take advantage of the cestui que use to avoid the feudal payments and duties (incidents). Incidents such as wardship, marriage penalties and other gifts, taxes, fines, fees, and knight service were onerous. Common law did not recognize cestui que uses as such, and there was difficulty fitting these cases into the existing writs and case law. The incidents could not be enforced against a person who was on a Crusade, or other war, or business adventure. They were not present in the kingdom to be enforced to perform. Since the feudal oath was to the person, and not the land, there could be no lien against the land. A hallmark of medieval feudalism was the person to person oath of allegiance. The feudal incidents could not be enforced upon the beneficiaries of the cestui que use, since these were not the owners of the land. The users had not sworn an oath to the lord. Therefore, they owed the lord nothing. The cestui que use had no estate. They had no seisin, nor a trespass, and therefore, ejectment could not be effected. These required possession. Assumpsit was of no avail. In 1402, the Commons had petitioned the king for a remedy against dishonest feoffees to uses, apparently with no result. Cestui que use became a new kind of property and property use.
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