substance or thing itself was transmissible by will, therefore they were not perverted by the use, that is to say, nothing was turned out of the ordinary course by the devise of the use of them, so that there was no necessity for uses of chattels to be executed by the statute in order to remit the common law as to them; and hence the reason why some words applicable to chattel interests were not made use of as well as words applicable to freeholds.

NOTE 69. p. 42. (h).

Therefore, supposing that future uses are limited to arise upon any given event, if before the happening of that event the estate of the feoffees has been devested and turned to a right of entry, the statute will not carry that right to the persons intended to take the new uses, so as to enable them to enter and to acquire the possession'; but the feoffee himself must first enter and revest before any thing will be executed by the statute: And as uses are not executed when in contingency (for which see pages 42 and 43, and note 71,) this constitutes an answer to those who contend, that where the estates have been so devested and turned to a right, the re-entry of the feoffees is not in any case necessary in order to give effect to future uses, and to their being executed by the statute, but that the future cestui que use may well enter without any such previous entry by the feoffees; for as the statute does not transfer rights, and as by reason of the disseisin there is nothing left in the feoffees but a right of entry, it follows, that when the event happens upon which the new use was. to have arisen, there is not any thing in the feoffee which the statute can carry to the use, and consequently the statute could not give the intended cestui que use any

right to enter until the feoffee has entered and revested his estate, when immediately that estate would be executed to the use by the statute. See notes 89. and 90.

NOTE 70. p. 42. (i).

The word not was first inserted in the last edition, and was clearly necessary since Lord Bacon is observing that rights are excluded in other words not executed by

the statute.

NOTE 71. p. 42. (k).

That is-so long as they continue contingent-when they come in esse the statute will execute them. The reason here given by Lord Bacon against the execution of uses whilst in contingency, viz. that the fee simple cannot be but to (in other words, that it cannot be to more than) the fee simple of an use, would not be satisfactory in all cases; as for example, where a feoffment in fee is made to the use of one for life with a contingent remainder to his eldest son, the nonexecution of the use to the son, would not be accounted for by the reason that the present uses draw away from the feoffees all the fee simple of the land; because, in the supposed case, the uses limited do not comprize the whole fee simple of the use. And in cases where the present uses amount to the whole fee simple of the use, as if in the above case,-the remainder of the use had been limited over to one and his heirs after the contingent remainder to the eldest son-the reason above given by Lord Bacon, would not satisfactorily account for the non-execution of the contingent use, since had that use as well as the other uses been in esse, the fee simple of the feoffees would have been competent

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petent to supply the whole with the possession, according to the measure of the different estates in the

use.

A better ground and a sufficient one in every case is, that, which was relied on by a great majority of the judges in Chudleigh's case, that the statute only executes the possession to the use where the cestui que use is in esse in consequence of the words of the statute, which say, that the estate and possession, &c. shall be in such person who hath the use, and that said eight of the judges cannot be till the person and the use also be in esse. See 1 Rep. 136. b.

The other reason assigned by Lord Bacon, viz. that 'the feoffee could only execute to uses present' is a reason why the legislature might have declined to cause the execution of contingent uses, rather than a reason why the statute does not admit of being extended to them.

NOTE 72. p. 43. (1).

The word raised hath been in this edition substituted for seised. Our author having said, that in consequence of the word hereafter conveyances to uses which had been made before, disturbed by disseisin at the time of, and re-continued after, the statute, were brought in, obviously intends to impress his reader with the opinion, that there is nothing to prevent their being so brought in; inasmuch as there are not other words coupled with the word hereafter similar to those which he states and which if used would have the effect of excluding them." For it is not said enfeoffed to an use hereafter-" Lord Bacon could not have intended to add the word seised for the passage would be without meaning; or if it could be said to carry any meaning

meaning at all, it must be this-enfeoffed to uses to which the feoffees had been already seised, and to which they should be again thereafter seised; and then the words would have gone directly to bring in uses, the seisin to which had been disturbed before the statute, and recontinued after, whereas he evidently intended to set down words, which if inserted in the statute would have prevented the word hereafter from extending to a subsequent seisin to such uses. Now had it been said enfeoffed to an use hereafter raised, then the statute could not have extended to conveyances to uses made before the statute; but only to those uses which should be raised by conveyances made after the statute; and Lord Bacon is supposing words which if used would have confined the statute to uses afterwards raised-For these reasons the editor conceives, that Lord Bacon wrote raised and not seised.

NOTE 73. p. 43. (m).

In all the other editions it is said which is to be understood;' but it is apprehended, that our author's meaning was, that the word hereditament did not confine the operation of the statute to inheritances in esse; but that it applied also to other things whereof there was no inheritance in being; and on that account the editor hath given a different turn to the signification of the passage, by an addition to it of the words not solely. Indeed the observation made by our author upon the case which he hath stated immediately after by way of example, proved, that the addition was necessary; for after saying, that a rent charge granted de novo to an use is good he observes, " yet there is no inheritance in being of this rent."

It was deemed proper to say not solely because if no other word besides the word not had been inserted, the passage would have implied, that the word heredita ment had no reference to inheritances in esse; but to those things merely, whereof there was no inheritance in esse; which would have been wrong, the meaning being, that the word hereditament is not confined to inheritances in esse, but that it applies to other things of an inheritable nature as well,

NOTE 74. p. 43. (n).

The position that " an use cannot be upon an use, hath in the introduction to a recent publication been made the subject of much intemperate though impotent censure intemperate it may well be considered, when with the view of ridiculing the profoundly learned character by whom it was advanced, such observations are made respecting it as that "the declaration was made by some wise man in the plenitute of legal learning," that this very wise declaration must have surprised every one who was not sufficiently learned to have lost his common sense, &c." and-impotent will the censure be found, when the solid basis is examined upon which the position rests:-With the view of pointing out the principle, why, an use which is limited upon an use, cannot be executed by the statute, let us suppose, that a feoffment in fee had been made before the statute to A. to the use of B. to the use of, or in trust for C.; now A, was not seised to the use of C. but of B.; whatever equitable claims C. had were on B.; but B. had in law no hereditament when therefore the statute 27 Hen. VIII. c. 10. came and executed the possession of hereditaments, and of hereditaments only (in the legal signification of that word) to the use,