use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of law.

1 But if the husband discontinue the wife's land; although the feme join with him by deed, yet the husband's declaration is good of the inheritance.

When divers in remainder join with the tenant of the freehold in a lawful conveyance wherein all remainders do concur, and they sever in declaration of the use, every man's declaration shall be good for his own estate. But if they do not all concur that have estate, but that the conveyance is tortious in any part, then the déclaration of the tenant of the freehold is only good. As, if tenant for life be, the remainder in tail, the remainder in fee; and they join in a fine and declare uses severally; tenant for life to I. S., tenant in tail to I. D., and tenant in fee to I. N.: I. S. hath pour vie of the tenant for life, I. D. hath to his heirs as long as tenant in tail hath heirs of his body, and I. N. hath the absolute fee.

Contrary law, if tenant for life or in tail and he in the remainder in tail join in a fine without him in the remainder in fee, and tenant in possession declareth, to I. S. and tenant in remainder to I. D.: I. S.2 hath the whole fee simple; and it shall not enure by way of declaration of use of several moieties, as if they had been jointly seised.

So, if tenant in possession and he in the remainder in fee join in a fine, where there is a mean remainder in tail who joineth not, and they sever in declaration; the tenant in possession's declaration is good only.

1 From here to the end is taken from Harl. MS. 829. f. 140 b. It appears never to have been printed.

2 The MS. omits I. S. here; obviously by a clerical error.

So, if tenant in tail suffer a common recovery, wherein he in the reversion is vouched and joins; yet the declaration of tenant in tail is only good.

But if tenant for life, the remainder in tail, be; and tenant for life suffer a common recovery, wherein he in remainder is prayed in aid or vouched; there the declaration is good, of tenant for life only for his life, and of tenant in tail for the rest: but if it had not been an immediate remainder in tail, then the tenant for life's declaration had been good for the whole fee-simple.

If two tenants join in conveyance and sever in declaration, it is good severally for their moieties.

But if disseisor and disseisee join in a fine and sever in the declaration of the use, the declaration of the disseisor is only good.

If the feoffee to use and cestui que use before the statute join in feoffment to one that hath notice, and sever in the declaration of the use; the declaration of cestui que use is only good.

The feoffor or grantor that hath the use is the only person that may declare the use, and the declaration of the feoffee is utterly void. As, if I make a feoffment in fee, and the feoffee by his deed declare it to be to the use of I. S.; it is void.

But you must intend this rule of those that are feoffor and feoffee upon the original conveyance, and not upon a perfective conveyance which was induced. As if I covenant that I will infeoff I. S. upon condition to re-infeoff me, or covenant that I will levy a fine with a render to myself, and this re-feoffment or this render shall be to the use of I. D.: now, upon the matter, I declare an use upon a conveyance wherein I was grantee or feoffee; but yet it is good. So, if I cov

yet

enant with divers persons, and the words are "It is covenanted and granted between the parties : if the rest declare new uses before the execution of the estate, it is nothing: but if I declare new uses without their assent to it, it is a good countermand': as shall be more fully shewed in my division of countermands and revocations of uses.

NOTES.

NOTE A. (Page 284.)

BACON has nowhere told us what he considered to be the true result of Chudleigh's case; and I confess I have not been able fully to satisfy myself as to his opinion.

The majority of the judges, and Coke, the reporter, certainly maintained the doctrine of the scintilla juris; viz. that in all cases where there were limitations of uses not at the time vested, the ultimate execution of them depended on a certain right or vestige of estate remaining in the original feoffees, and was therefore liable to be suspended by any event which put this right in abeyance, and destroyed by anything which absolutely barred their reentry. This doctrine, it may be observed, would apply equally to shifting and springing uses as to those in the nature of contingent remainders; the question in all cases would be, when the time or contingency arrived, whether the feoffees had then a right to enter, or were barred by their own act or otherwise.

This doctrine Bacon urged in his Argument, but I think there are indications that he doubted its soundness; 1 at all events, he emphatically repudiates it in this Reading as a "conceit."

Neither does he in the least incline to the opinion of some of the judges (which was also Coke's, pp. 129b. and 132a.), that the decision tended to invalidate all limitations which are contrary to the rules of the common law: for the whole drift of this treatise is to maintain uses, not as "imitations of possession," but as guided by the intention of the settlor; and moreover he puts many cases of shifting uses in his Division.

1 See his observations on the law before the statute, as remarked on below.

But neither is there any indication of his holding the doctrine that has ultimately prevailed, and founds itself, as to one branch, on Chudleigh's case; viz. that where the use limited is one that might take effect as a remainder at common law, it shall have the incidents of a common law remainder, and is liable to fail on the determination of the preceding estate; but that when it is in its creation independent of particular estates and therefore does not resemble a common law remainder, it shall, if not void at the first as a perpetuity, be indefeasible. There is no indication whatever of his having distinguished between these two classes of limitations, and there is one case at least (p. 344.) which absolutely negatives such a supposition. He there states that on a feoffment to the use of the feoffor's wife for life, remainder to his unborn child, remainder to B. in fee, although the wife die before the birth of this child and B. comes into possession; yet on the subsequent birth of a child by another wife the estate shall devest from B. and come to the child.

I think a comparison of this supposed case with Chudleigh's, viewed in connexion with some passages of Bacon's Argument, may help us to his real opinion.

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In the supposed case the first estate determined naturally, and B. was in under the limitations of the settlement: in Chudleigh's case the trustees' estate was forfeited, and the plaintiff was in by wrong and without privity with the settlement. Now Bacon argued that "the statute succeeds in office to the feoffees," and unquestionably this remained his deliberate opinion in opposition to the theory of the scintilla. But he also argued that "the statute did not alter the law as to the raising of uses, but only to draw the possession after them," and that therefore as a contingent use could not rise at common law if the possession of the feoffees was estranged, no more can it now." Now, putting these two passages together, the "estrangement of the possession of the feoffees" before the statute seems to answer to the estrangement of privity of estate at the time when the statute should (as expressed in other passages in the Argument, though with the intermixture of language adapted to the doctrine of the scintilla he was there supporting) receive the estate from the existing cestui que use, and deliver it over to the person entitled on the contingency. short, I incline to think Bacon held that all uses not vested in possession or remainder at their creation stood on the same footing,

In