The second use being then a nullity, both before and after the Statute of Uses, that statute could not execute it, and the commonlaw judges are not justly open to criticism for so deciding. Nor is there any evidence that the second use received any recognition in Chancery be fore 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.1 There is, on the other hand, positive evidence to the contrary. Thus, in Crompton, Courts:2 "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 considera tion in itself, as Harper, Justice, vouched the case." Harper was judge from 1567 to 1577As 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 trea son. 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 for feited." 3 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 1 Br. Ab. Feff. al Uses, pi. 54; Anon. Moore, 45, pi. 138; Dillon v. Freine, Poph. 8t; Stoneley v. Bracebrid;;e, 1 Leon. 6; Read v. Nash, 1 Leon. 148; Girland v. Sharp, Cro. El. 382; Hore v. Dix, 1 Sid. 26; Tippin v. Cosin, Carth. 273. 2 f 54, a; Cary, 19 s C, where the reporter adds : " And such a consideration in an indenture of bargain and sale seeineth not to be examinable, except fraud be objected, because it is an estoppel." 8 1 And. 294.

find great difficulty in understanding these opinions.1 If, however, the modern passive trust was not known at the time of these opinions, the difficulty disappears; for the freehold trust referred to must then have been a special or active trust, which was always distinct from a use,2 and therefore neither executed as such by the Statute of Uses nor forfeitable by Stat. 33 Henry VIII. In Finch's Case,3 in Chancery, it was re solved, 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 re ferred to was probably the special or active trust, and not the passive trust. The prob ability becomes nearly a certainty in the light of the remark of Walter, arguendo, twenty years later, in Reynell v. Peacock.4 "A bargain and sale and demise may be upon a secret trust, but not upon a use." And the case of Holloway v. Pollard 6 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 fol lowing remark of Coke in Foord v. Hoskins,6 as showing that Chancery had taken juris diction of the use upon a use as early as 1 61 5 : "If ccstny 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 1 Lewin, Trusts (8 ed.), 819. - Bacon, Stat, of Uses (Howe's ed.), 8,9, 30; 1 Sanders, Uses (5 ed.), 2, 3; I Rep. 139 A, 140 a. 8 Fourth Inst. 86.

• 2 Rolle, R. 105. See also Crompton, Courts, 58, 59.

5 Moore. 761, pi. 1054. 6 2 Bulst. 336, 337.