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The reason which follows, why "the statute meant not to execute contingent uses " is one which he also alleges in the Argument. Before Popham and others had given their judgment, one can conceive that Bacon was unaware or had forgotten that such a contingent use as the one in that case—a contingent remainder to an unborn child — might have been limited at common law by the feoffee; but the repetition of the opinion here after that judgment, of which Bacon certainly had a full report before him, is puzzling. The only attempt at explanation I can make (and that not satisfactory to my own mind) is that the contingent use seemed to Bacon essentially distinct from the contingent remainder, inasmuch as the former allowed the subsequent estates to vest and acted as a shifting use to devest them afterwards when the contingency arose, whereas the latter made all subsequent estates, like itself, to be in abeyance: the feoffee, therefore, before the statute could not create legal estates with incidents similar to those of the contingent uses until the contingency arose. See in the Division, p. 343.
NOTE E. (Page 330.)
HERE again I think there is a confusion between the estate of the feoffee and the right to the use. If any inference at all is to be drawn from the occurrence of the words "title" and " right" here, it would seem to be that (contrary to Bacon's former position) a right as well as an actual possession may be held to an
I HAVE already expressed my belief that this treatise is not Bacon's.
In point of external evidence the case stands thus:
1. The only two MSS. I am aware of, Harl. MS. 1201. and Sloane MS. 4263., have no name of the author. They are different texts, though more resembling each other than either does the first printed one.
2. The imprimatur for the first edition—at least it bears date the year of the first edition, is given by Archbishop Sancroft, cited in Blackburn's edition of Bacon, as follows:
"June 3rd, 1629. Sam. Maunsell, utter barrister of the Middle Temple, having perused this book, attested it to be very useful to all young students of the law and worthy to be imprinted:" and then, "Lambethæ Junii 4° 1629, ut in aliena arte alieno nixus judicio, libelli hujus imprimendi potestatem facio. "Johannes Jefferay."
This does not seem to me to be the way in which a work known or supposed to come from such an author would be spoken of or licensed; and, accordingly,
3. The first shape in which it appeared in that same