his own use; and the same law where a man sells his land for £20 by indenture, and executes an estate to his own use; this is a void limitation of the use; for the law, by the consideration of money, makes the land to be in the vendee."1 Neither here nor in Benloe's report of Tyrrel's Case is the reason for the invalidity of the second use fully stated. Nor does Dyer's reason, "because an use cannot be ingendered of an use,"3 enlighten the reader. But in Anderson's report we are told that "the bargain for money implies thereby a use, and the limitation of the other use is merely contrary." "And in another case in the same volume the explanation is even more explicit: "The use is utterly void because by the sale for money the use appears; and to limit another (although the second use appear by deed) is merely repugnant to the first use, and they cannot stand together." The second use being then a nullity, both before and after the Statute of Uses, that statute could not execute it, and the common law judges are not justly open to criticism for so deciding.

Nor is there any evidence that the second use received any recognition in chancery before the time of Charles I. Neither Bacon nor Coke intimates in his writings that a use upon a use might be upheld as a trust. Nor is there any such suggestion in the cases which assert the doctrine of Tyrrel's Case. the other hand, positive evidence to the contrary. Thus, in Cromp

1 Bro. Ab. Feff. al Uses, 40; ibid., 54; Gilb. Uses, 161 accord.

2 Benl., 1669 ed., 61.

3 Dyer 155, pl. 20.

4 I And. 37, pl. 96.

There is, on

"For

5 I And. 313. See also 2 And. 136, and Daw v. Newborough, Comyns, 242: the use is only a liberty to take the profits, but two cannot severally take the profits of the same land, therefore there cannot be an use upon an use."

This notion of repugnancy explains also why, in the case of a conveyance to A, to the use of A, to the use of B, the statute does not operate at all. The statute applies only to the chancery use, which necessarily implies a relation between two persons. But A's use in the case put is obviously not such a use, and therefore not executed. The words "to the use of A " mean no more than for the benefit of A. But it is none the less a contradiction in terms to say in the same breath that the conveyance is for the benefit of A and for the use of B. B's repugnant use is therefore not executed by the statute. Anon., Moore 45, pl. 138; Whetstone v. Bury, 2 P. Wms. 146; Atty.Gen. v. Scott, Talb. 138; Doe v. Passingham, 6 B. & C. 305. The opinion of Sugden to the contrary in his Treatise on Powers, 7 ed., 163-165, is vigorously and justly criticized by Prof. James Parsons in his "Essays on Legal Topics," 98.

• Bro. Ab. Feff. al Uses, pl. 54: Anon., Moore 45, pl. 138; Dillón v. Freine, Poph. 81; Stoneley v. Bracebridge, 1 Leon. 6; Read v. Nash, 1 Leon. 148; Girland v. Sharp, Cro. Eliz. 382; Hore v. Dix, 1 Sid. 26; Tippin v. Cosin, Carth. 273.

ton, Courts: "A man for £40 bargains land to a stranger, and the intent was that it should be to the use of the bargainor, and he in this court [chancery] exhibits his bill here, and he cannot be aided here against the feoffment [bargain and sale?] which has a consideration in itself, as Harper, Justice, vouched the case." Harper was judge from 1567 to 1577.

As the modern passive trust, growing out of the use upon a use, is in substance the same thing as the ancient use, it would seem to be forfeitable under the Stat. 33 Henry VIII, c. 20, § 2, by which "uses are forfeited for treason. Lord Hale was of this opinion, which is followed by Mr. Lewin and other writers. But it was agreed by the judges about the year 1595 that no use could be forfeited at that day except the use of a chattel or lease," for all uses of freehold are, by Stat. 27 Henry VIII, executed in possession, so no use to be forfeited." 2 There is also a dictum of the Court of Exchequer of the year 1618, based upon a decision five years before, that a trust of a freehold was not forfeitable under the Stat. 33 Henry VIII. Lord Hale and Mr. Lewin find great difficulty in understanding these opinions. If, however, the modern passive trust was not known at the time of these opinions, the dif ficulty disappears; for the freehold trust referred to must then have been a special or active trust, which was always distinct from a use, and therefore neither executed as such by the Statute of Uses nor forfeitable by Stat. 33 Henry VIII.

In Finch's Case,5 in chancery, it was resolved, in 1600, by the two Chief Justices, Chief Baron, and divers other justices, that "if a man make a conveyance, and expresse an use, the party himself or his heirs shall not be received to averre a secret trust, other than the expresse limitation of the use, unless such trust or confidence doe appear in writing, or otherwise declared by some apparent matter." But the trust here referred to was probably the special or active trust, and not the passive trust. The probability becomes nearly a certainty in the light of the remark of Walter, arguendo,

1 F. 54, a; s. c. Cary 19, where the reporter adds: "And such a consideration in an indenture of bargain and sale seemeth not to be examinable, except fraud be objected, because it is an estoppel."

Bacon, Stat. of Uses, Rowe's ed., 8, 9, 30; 1 Sanders, Uses, 5 ed., 2, 3; 1 Coke 139 b, 140 a.

6 Fourth Inst. 86.

twenty years later, in Reynell v. Peacock.1 "A bargain and sale and demise may be upon a secret trust, but not upon a use." And the case of Holloway v. Pollard 2 is almost a demonstration that the modern passive trust was not established in 1605. This was a case in chancery before Lord Chancellor Ellesmere, and the defendant failed because his claim was nothing but a use upon a use.

Mr. Spence and Mr. Digby cite the following remark of Coke in Foord v. Hoskins, as showing that chancery had taken jurisdiction of the use upon a use as early as 1615: "If cestuy que use desires the feoffees to make an estate over and they so to do refuse, for this refusal an action on the case lieth not, because for this he hath his proper remedy by a subpoena in Chancery." "It seems," says Mr. Digby, "that this could only apply to a use upon a use. "4 But if the cestuy que use here referred to were the second cestuy, he would not proceed against the feoffees, for the Statute of Uses would have already transferred the legal estate from them to the first cestuy. It would seem that Coke was merely referring to the old and familiar relation of cestuy que use and feoffees to use as an analogy for the case before him, which was an action on the case by a copy-holder against the lord for not admitting him.

The earliest reported instance in which a use upon a use was supported as a trust seems to have been Sambach v. Dalton, in 1634, thus briefly reported in Tothill: 5 "Because one use cannot be raised out of another, yet ordered, and the defendant ordered to passe according to the intent." The conveyance in this case was probably gratuitous. For in the "Compleat Attorney," published in 1666, this distinction is taken: "If I, without any consideration, bargain and sell my land by indenture, to one and his heirs, to the use of another and his heirs (which is a use upon a use), it seems the court will order this. But if it was in consideration of money by him paid, here (it seems) the express use is void, both in law and equity."6 On the next page of this same book the facts of Tyrrel's Case are summarized with the addition: "Nor is there, as it seems, any relief for her [the second cestuy que use] in this court in a way of equity, because of the considera

1 2 Rolle 105. See also Crompton, Courts, 58, 59.

2 Moore 761, pl. 1054.

8 2 Bulstr. 336, 337.

Digby, Prop., 3 ed., 328. See I Spence, Eq. Jurisp., 491.

Page 188; s. c. Shep. Touch. 507.

• Page 265. Compare also pages 507 and 510 of Shep. Touch.

tion paid; but if there was no consideration, on the contrary, Tothill, 188." As late as 1668, in Ash v. Gallen,1 a chancery case, it was thought to be a debatable question whether on a bargain and sale for money to A to the use of B, a trust would arise for B. Even in the eighteenth century, nearly two hundred years, that is, after the Statute of Uses, Chief Baron Gilbert states the general rule that a bargain and sale to A to the use of B gives B a chancery trust with this qualification: "Quære tamen, if the consideration moves from A."2

In the light of the preceding authorities, Lord Hardwicke's oft quoted remark that the Statute of Uses had no other effect than to add three words to a conveyance must be admitted to be misleading. Lord Hardwicke himself, some thirty years afterwards, in Buckinghamshire v. Drury,3 put the matter much more justly: "As property stood at the time of the statute, personal estate was of little or trifling value; copyholds had hardly then acquired their full strength, trusts of estates in land did not arise till many years after (I wonder how they ever happened to do so)." The modern passive trust seems to have arisen for substantially the same reasons which gave rise to the ancient use. The spectacle

of one retaining for himself a legal title, which he had received on the faith that he would hold it for the benefit of another, was so shocking to the sense of natural justice that the chancellor at length compelled the faithless legal owner to perform his agreement.

1

1 Ch. Cas. 114.

James Barr Ames.

2 Gilbert, Uses, 162. But in 1700 the limitation of a use upon a use seems to have been one of the regular modes of creating a trust. Symson v. Turner, 1 Eq. Cas. Abr. 383. The novelty of the doctrine is indicated, however, by the fact that, even in 1715, in Daw v. Newborough, Comyns 242, the court, after saying that the case was one of a use upon a use, which was not allowed by the rules of law, thought it worth while to add: "But it is now allowed by way of trust in a court of equity."

8 2 Eden 65.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

EDWARD HENRY STROBEL, Bemis Professor of Law at the Harvard Law School from 1898 to 1906, died in Bangkok, Siam, on January 15, 1908, at the age of fifty-two. The career of Professor Strobel was of marked brilliancy and of exceptional interest. He graduated from Harvard College in 1877 and from the Law School in 1882. After practicing law for three years, he became secretary to the United States Legation at Madrid, which position he held for five years. In 1893 and 1894 he served as Third Assistant Secretary of State. Thereafter he became successively Minister to Ecuador and to Chili and served as arbitrator of the Ferrant claim between France and Chili. In 1898 he became Professor of International Law. In 1903 Professor Strobel entered the service of the King of Siam as legal adviser, and three years later he resigned his professorship in order to assume that office permanently. In June of 1906 the degree of LL.D. was conferred on him by his college in recognition of his ability and distinguished services abroad. His death will be deeply felt by those who were in any way brought in contact with him.

THE EFFECT OF DISCHARGE IN BANKRUPTCY ON ASSIGNMENTS OF FUTURE EARNINGS. - It rests in the nature of things that there can be no "title" to non-existent property. Nevertheless, where future property, if it come into existence at all, must come as the product of something presently owned, our law has, in certain instances, imputed to the owner a potential posses