Response or Comment
To explain the survival of uses, alias trusts, after the Statute of Uses, one is probably justified in assuming a sympathetic attitude toward this Equitable institution on the part of the Common Law Judges. Maitland, Equity, 29. But, however predisposed the Judges might be, they would have to satisfy themselves, perhaps others as well, that they were interpreting rather than nullifying the Statute. Only such uses could be saved as could be "distinguished." The case of the use raised upon a chattel interest is clear enough, as it was without the letter, and fairly without the mischief, of the Statute. The case of the use upon a use, while obscure at an earlier day, was elucidated by Mr. Ames, who found the key to the riddle in the fact that, at the time of the enactment and for a century thereafter., there was no such thing as a use upon a use, the declaration of a second use being void for repugnancy, in Equity as well as at Law. Lectures on Legal History, 243. The case of the active use, however, seems to the writer to need further explanation than it has yet received.
Durfee, Edgar N. "The Statute of Uses and Active Trusts." Mich. L. Rev. 17 (1918): 87-90.