Lord Bacon does not allude to a conveyance to uses; but that he means a delivery of the deed to one as an attorney in behalf of another.-If he meant a conveyance to uses, his observations would not be reconcileable; for in the third or fourth line below he informs us, that the person to whose use the deed is delivered, that is to say, the person who takes by the deed, must be a party to the words of the grant-in other words, that he must be named in the deed, &c. and immediately after it is said, that in the case of an use so as the party trusted be declared it is not material to whom the publication be, that is to say whether the cestui que use be named in the deed or not; but, by giving to the passage the signification above suggested the whole is rendered consistent with itself as well as consistent with the law.

NOTE 22. p. 15. (a).

Although the policy of the common law was to encourage as much as possible, a supply of commodities necessary for the consumption of the people; and to that end ordained, that all sales and contracts of any thing vendible in fairs or markets, should bind not only the parties themselves to such sales, but others who had right to those commodities; yet there were as Coke informs us in his exposition of the 31st Elizabeth c. 12. many exceptions; one of which goes directly to disprove the above opinion of Lord Bacon.-". If the buyer" (observes Coke) " doth know whose goods they were, and that the seller thereof hath at the most but a wrongful possession, this shall not bind him that right hath." See 2 Inst. 713.

The cases in as well the 14 Hen. VIII, as the 33 Hen. VI. are decidedly against Lord Bacon's dọc

trine; for in each of them, it was held, that the property was not changed, by the sale. See the Year book, 14 Hen. VIII. 8. Bro. Abr. tit. Collusion and covin, pl. 4.

NOTE 23. p. 15. (b).

The entry must be understood to be upon collusion between the person who enters and the stranger; for otherwise, the stranger not being particeps criminis, there would not be any material difference between this case and that next following, with which Lord Bacon contrasts it. See Liber Assisarum 25, pl. 1.

NOTE 24. p. 15. (c).

It was so held as early as the 5 Edw. IV. See Bro. Abr. feoff. al uses, pl. 32. Fitz. Abr. tit. subpœna 2.

NOTE 25. p. 16. (d).

The words in case of use are important, for the subpana was never assignable in cases of bare trust and confidence. See the case of Sir Moyle Finch in Coke's 4th Inst. 85.

NOTE 26. p. 16. (e).

In all the other editions it is written 27 Hen. VIII. fol. 10. pla. 9. and fol. 30. and pla. 21. but should be as altered. See the Year book.

NOTE 27. p. 16. (ƒ).

The point which was decided in Delamere's case was, that the feoffment of cestui que use in remainder was not within the statute of 1 Rich. III. and that that statute ought to be intended of cestui que use in possession. The difficulty however to which Lord Bacon alludes, was not as to the point adjudged; but upon another

point which was debated in the argument of the case, and which depended upon the question-whether a right of use could be given by a feoffment or not? Perhaps the case and question which Lord Bacon states, will, with less difficulty be understood by its being put in the manner following.-A. was enfeoffed, to the use of B. in tail, remainder to the use of C. in fee.-B. the cestui que use in tail enfeoffed D. in fee; then D. enfeoffed C. the remainder-man in use, who enfeoffed E. Now we are to observe, that by the feoffment of B. the cestui que use in tail, the use in remainder to C. was discontinued, because the seisin of A. to that use was devested; but that C.'s use would be revived upon the entry of A:-A. did afterwards enter, and the question was in whom the use in remainder should be revived? whether in A. whom Lord Bacon distinguishes by the title of the first feoffee? or in E. distinguished by the title of the second feoffee? or in C. the original cestui que use in remainder? but upon this point the court was not agreed. See Plow. Comm. 352, 353.

In all the cases cited by Lord Bacon the judges were divided in opinion, whether a right of use was assignable or not.

NOTE 28. p. 18. (g).

In all the other editions it is right out of land, but should be rent, &c. as here altered. See the case in the Year book, 14 Hen. VIII. 4.

NOTE 29. p. 19. (h).

Lord Chief Baron Gilbert was of opinion, that the original of uses was from a title in the civil law, which allows of an usufructuary possession distinct from the

substance

substance of the thing itself. See Gilbert's law of uses, page 3. Lord Bacon however, observes, that the use is nothing like in matter to the usus fructus of the civil law, but that it beareth the greatest resemblance to the fidei commissio of that law.-If the editor might without the imputation of arrogance exhibit to the reader his sentiments upon the subject, he would say, that to his mind the use appears to partake the nature of as well the usus fructus as the fidei commissio-that both are necessary to make up the idea of an use.As far as concerns the trust or confidence which is reposed in the tertenant, the use resembles the fidei commissio.-In relation to the object meant to be effected by placing that trust and confidence, viz. the possession and disposition of the rents and profits whilst the land or substance of the thing remains in another, the use resembles the usus fructus.

The usus fractus, then, signifying in the civil law the enjoyment of the profits by one, whilst the substance of the thing itself was in another, in all probability gave the title of an use to a similar taking of the profits in our law.

As the statutes of mortmain had prevented the clergy from having the land itself, it seems likely, since they were masters of the civil law, that the usus fructus of that law suggested to them the possibility of their still being able to have the benefit of the land although they were debarred from having the land itself; and that the plan which they hit upon was, to take shelter under the laity and get feoffments made to laymen to their own use; and by that mean they enjoyed the profits of the land; but still they had no mode of enforcing an execution of the trust which had been reposed in the feoffee-like the hæres fidei commissarius in the infancy

of

of the fidei commissio, the cestui que use was at first wholly dependant on the good faith of his feoffee. The fidei commissio is more like the special trust lawful than the use or trust unlawful; inasmuch as the trust reposed in the hæres fiduciarius was not to retain the land and suffer another to take the profits, but to give the inheritance or land itself to the hæres fidei com. missarius as is evident from the request which accom panied the nomination of the heir in such cases "Rogo te Luci Titi (the hæres fiduciarius) ut cum primum poteris hæreditatem meam adire, eam Caio Scio (the hæres fidei commissarius) reddas' (et) restituas' See Just. Inst. Lib. 2. tit. 23. De Fideic. Hered. s. 2. Neither did the usus fructus resemble the use in all respects, because the trust or confidence was want. ing; for as the usus fructus of the civil law conferred on the usufructuary an absolute legal right to the profits there was no need of placing a confidence in other persons. See Just. Inst. Lib. 2. tit. 4. De usu fructu.

NOTE 30. p. 19. (i).

It is to be observed, that the books of the civil law do not call him cestui que use, (as the words of our author seem to imply) but the hæres fidei commissarius.If he had been called cestui que use, there would have been a stronger reason for the opinion that the fidei commissio bore a greater resemblance to the use than did the usus fructus.

NOTE 31. p. 20. (k).

See Gilbert's Tenures 212, 213, and 214, 4. edition, and Mr. Watkins's note, (note 92).

NOTE 32. p. 20. (1).

When uses were first introduced the court of chancery could not give remedy in many cases, if it could in any

case,