not depend upon particular estates as remainders do, neither did then before the statute draw any tenures as reversions do,) yet the statute intends that there is a difference, when the particular use and the use limited upon the particular use are both new uses, in which case it is an use in remainder; and where the particular use is a new use, and the remnant of the use is the old use, in which case it is an use in reverter.

al use, 10.

The next material word is "from henceforth; which doth exclude all conceit of relation, that cestui que use shall [not]1 come in as from the time of the first feoffment to use; as Brudnell's conceit was in 14 H. VIII., that, if the feoffee had granted Bro. Feoffm. a rent charge, and cestui que use had made a feoffment in fee by the statute of 1 R. III., the [latter] feoffee should have held it discharged, because the act of cestui que use shall put the feoffee in as if cestui que use had been seised from the time of the first use limited. And therefore the statute doth take away all such ambiguities, and expresseth that cestui que use shall be in possession from henceforth; that is, from the time of the parliament for uses then in being, and from the time of the execution for uses limited after the parliament.

The third material words are "lawful seisin, state, and possession; " not a possession in law only, but a seisin in fact; not a title to enter into the land, but an actual estate.

The fourth words

are,

"of and in such estates as

1 I think this word should be left out. The meaning is, that in cases of feoffments before the statute and any intermediate charges, feoffments, &c. made by the feoffees, the statute should not relate back to avoid them.

2 I have without authority changed "is" into "if," and inserted "lata little below.

ter"

they had in the use;" that is to say like estates, feesimple, fee-tail, for life, for years, at will, in possession, and reversion; which are the substantial differences of estates, as was said before. But both these latter clauses are more fully perfected and expounded by the branch of the fiction of the statute, which follows.

This branch of fiction hath three material words or clauses. The first material clause is, that the estate, right, title, and possession, that was in such person, &c. shall be in cestui que use: for that the matter and substance of the estate of cestui que use is the estate of the feoffee, and more he cannot have. So as, if the use were limited to cestui que use and his heirs, and the estate out of which it was limited was but an estate for life, cestui que use can have no inheritance: so if, when the statute came, the heir of the feoffee had not entered after the death of his ancestor, but had only a possession in law, cestui que use in that case should not bring an assize before entry, because the heir of the feoffee could not. So that the matter whereupon the use must work is the feoffee's estate. But note here: whereas before, when the statute speaks of the uses, it spake only of uses in possession, remainder and reverter, and not in title or right; now, when the statute speaks what shall be taken from the feoffee, it speaks of title and right: so that the statute takes more from the feoffee than it executes presently in cases where there are uses in contingence, which are but titles.1

The second word is, "clearly," which seems properly and directly to meet with the conceit of scintilla juris, as well as the words in the preamble, of extirp

1 See Note E. at the end.

ing and extinguishing such feoffments: so as their estate is clearly extinct.

The third material clause is, "after such quality, manner, form, and condition, as they had in the use: so as now, as the feoffee's estate gives matter, so the use gives form; and as in the first clause the use was endowed with the possession in points of estate, so [there it is endowed with the possession]1 in all accidents and circumstances of estate.

Wherein first note, that it is gross and absurd to expound the form of the use any whit to destroy the substance of the estate as to make a doubt, because the use gave no dower or tenancy by the courtesy, that therefore the possession when it is transferred would do so likewise: no, but the statute meant such quality, manner, form, and condition, as [it] is not repugnant to the corporal presence and possession of the estate. Next for the word "condition," I do not hold it to be put in for uses upon condition, though it 2 be also comprised within the general words; but because I would have things stood upon learnedly, and according to the true sense, I hold it but for an explaining, or word of the effect as it is in the statute of 26 H. VIII. of Treasons; where it is said that the offenders shall be attainted of the overt fact by men of their condition :-in this place, that is to say of their degree and sort:-and so the word condition in this place is no more but in like quality, manner, form, and degree or sort; so as all these words amount but to modo et forma. Hence, therefore, all circum

1 Some such sense is required as: "here the possession is endowed with the qualities of the use.'

2 Quære: "that" or "they?"

stances of estate are comprehended; as sole seisin or joint seisin; by intierties or by moieties; a circumstance of estate to have age as coming in by descent, or not age as purchaser; a circumstance of estate descendable to the heir of the part of the father or of the part of the mother; a circumstance of estate conditional or absolute, remitted or not remitted, with a condition of intermarriage or without: all these are accidents and circumstances of estate, in all which the possession shall ensue the nature and quality of the

use.

And thus much of the first case, which is the general case.

The second case, of the joint feoffees, needs no exposition; for it pursueth the penning of the general case. Only this I will note, that, although it had been omitted, yet the law upon the first case would have been taken as that case provided; so that it is rather an explanation than an addition. For turn that case the other way, that one were infeoffed to the use of himself and others, (as that case is, that divers were infeoffed to the use of one of them ;) I hold the law to be, that in the former case they shall be seised jointly; and so in the latter case cestui que use shall be seised solely for the word "other it shall be qualified by the construction of cases, as shall appear when I come to my Division. But because this case of co-feoffees to the use of one of them was a general case in the realm, therefore they foresaw it, expressed it precisely, and passed over the case e converso, which was but especial and rare. And they were loth

1 Quære: "the?"

case, Plowd.

to bring in this case, by inserting the word "only" into the first case, to have penned it "to the use only of other persons;" for they had experience what doubt the word "only" bred upon the statute of [Delamere's 1 R. III. After this second case, and before 350.j the third case of rents, comes in the two savings: 2 and the reason of it is worth the noting, why the savings are interlaced before the third case. The reason of it is, because the third case needeth no saving, and the first two cases did need savings. And [that] is the reason of that again: it is a general ground, that where an act of parliament is donor, if it be penned with an ac si, it needs not a saving, for it is a special gift, and not a general gift which includes all rights. And therefore in 11 H. VII. where, upon the alienation of women, the statute entitles the heir or him in remainder to enter, you find never a saving, because the statute gives entry not simpliciter, but within an ac si as if no alienation had been made, or if the feme had been naturally dead. Strangers that had right might have entered; and therefore no saving needs. So in the statute of 32 H. VIII. of leases, the statute enacts that the leases shall be good and effectual in law, as if the lessor had been seised of a good and perfect estate in fee-simple; and therefore you find no saving in the

1 This is obscurely expressed: but Mr. Rowe seems rightly to understand Bacon to mean, "they were loth to make three cases by inserting the word 6 only' ' into the first section, which would have made it more symmetrical; but they used words sufficient, probably, to include all cases in one, and then added the second case ex abundanti."

2 I have substituted this for "second saving." If the original had the Arabic numeral the difference is very slight.

8 Quære: "here" or "this?"

4 "Needs" for " is," following Mr. Rowe.

5 I have, with Mr. Rowe, substituted "saving" for "stranger."