c. 14. everal and respective sums of money in such schedules contained, and No. XXIV. het over as post fines to such lords proprietors or grantees respectively; which said surety or sureties shall respectively justify him or herself 32 Geo. II. efore the Baron taking such recognizance to be worth the sum of two ousand five hundred pounds, over and besides all just debts and inumbrances; and every such recognizance shall, with all convenient peed after the taking thereof, be transmitted by the Baron who shall ake the same to the King's Remembrancer of the Court of Exchequer, here to be filed and remain on record; and such receiver and his said sureties shall in all cases be respectively liable to the amount of such penal sum, to make satisfaction to each respective sheriff, and also to the respective lords of liberties proprietors or grantees, for all and every post fine and post fines which shall be received by such receiver his deputy or agent, on any fine levied of any lands tenements rents or hereditaments within their respective sheriffwicks or liberties; and in case of the death or insolvency of any of the said sureties at any time after the entering into such recognizance as aforesaid, then one or more surety or sureties, in the room or place of him her or them so dying or becoming insolvent as aforesaid, shall within the space of one month then next, enter into such recognizance as the said surety or sureties so dying or becoming insolvent had entered into, and justify himself herself or themselves in like manner as is before directed in this Act; in default of which the said office shall immediately cease determine and be utterly void. VII. And be it further enacted by the authority aforesaid, That from Time of Reand after the said first day of Trinity Term, every such receiver his clerk ceiver's attendor agent shall daily (Sundays and holidays excepted) attend at the said ance at Office, Alienation Office from nine of the clock in the morning till one of the and Delivery of clock in the afternoon, and shall deliver back every such writ of cove- the Writs. nant as aforesaid, when the same shall be called for at the said Alienation Office during the office-hours herein before appointed for such receiver's attendance at the said office, within two days after every such post fine shall be paid thereon respectively, unless the last of the said two days shall happen to be a Sunday or holiday, and then on the next succeeding day. VIII. And be it enacted by the authority aforesaid, That every such Receiver to pay receiver as aforesaid shall pay unto every sheriff of any of the counties the Post Fines cities or towns of England, his under-sheriff or lawful attorney, on his to the Sheriff, producing his quietus, the several and respective sums of money in the on producing said quietus mentioned to have been by him accounted for in the receipt his quietus, &c. of his Majesty's Exchequer, on the passing of his accounts as and for post fines of his Majesty's Court of Common Pleas at Westminster; and also in like manner pay unto all and every lords of liberties proprietors or grantees under the crown of such post fines, or his or their bailiff or lawful attorney, upon their producing the schedules of the foreign apposer or clerk of the estreats of the said Court of Exchequer, the several and respective sums of money in the said schedules set and allowed to them as post fines; the said receiver deducting and retaining to himself out of every twenty shillings which he shall so pay, the sum of six-pence only, for his trouble and attendance on the due execution of this Act, and so in proportion for any greater or less sum, and which he is hereby authorised and impowered to deduct and retain to his own use; but neither the said receiver nor any other person or persons whatsoever, for his or their attendance on such receiver, shall charge or be allowed any fee or reward for or on the account of doing any thing by this Act directed, except the said fees to such receiver in this Act particularly mentioned and expressed. IX. And be it further enacted by the authority aforesaid, That if any Penalty of person or persons from and after the said first day of Trinity Term one forging the thousand seven hundred and fifty-nine shall make forge or counterfeit, Receiver's hand or cause or procure to be made forged or counterfeited, the mark or or mark. hand of such receiver as aforesaid, whereby such receiver or any other person or persons shall or may be defrauded, or suffer any loss thereby; No. XXIV. every person or persons convicted of such offence, shall be deemed c. 14. Receiver made 32 Geo. II. guilty of felony, and shall suffer death as a felon without benefit of clergy. X. And be it also enacted by the authority aforesaid, That every such receiver refusing or neglecting to pay such post fines to the said respective sheriffs lords of liberties proprietors or grantees under the crown, or their lawful attornies or bailiffs, shall be subject to such order as the Barons of the said Court of Exchequer of the degree of the coif shall make for the payment of the same; and the said receiver and every person or persons who shall be guilty of any wilful default extortion or misdemeanour, contrary to the true intent and meaning of this Act, shall forfeit and pay to the party aggrieved treble damages with full costs, which shall and may be ordered and awarded by the Barons of the Court of Exchequer, upon application made to and on due proof thereof made before them, in such summary way and method as to them shall seem meet; provided every such application or prosecution be made within the space of two years next after any such offence shall have been committed, and not otherwise, and such orders of the said Court of Exchequer so to be made as aforesaid, shall have the same force virtue and effect, and the observance thereof shall be inforced by such ways and means as any other orders of the same court. Limitation of Orders of the Court inforced. Operation of Fines in the Court of Com- altered by this 47 Geo. III. Sess. 2. c. 8. Persons may appoint Attor nies, &c. for surrendering Copyholds, &c. of which Com XI. Provided always, and be it enacted by the authority aforesaid, That this Act shall not any way alter the operation of any fine which after the said first day of Trinity Term one thousand seven hundred and fifty-nine, shall be levied in the Court of Common Pleas at Westminster, or the course of passing fines in that court, otherwise than is in and by this Act directed. XII. And be it further enacted by the authority aforesaid, That this Act shall be deemed and taken to be a public Act, and shall be judicially taken notice of as such by all judges justices and other persons whatsoever, without specially pleading the same. [ No. XXV. ] 47 George III. Sess. 2. c. 8.-An Act concerning Common Recoveries, suffered in Copyhold or Customary Courts by Attorney.-[17th July 1807.] WHEREAS it is expedient that persons who can now suffer common recoveries of copyhold or customary tenements in person but not by attorney, should be enabled to suffer the same by attorney as well as in person' May it therefore please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That it shall and may be lawful for every person not being under coverture, and for every feme covert, (such feme covert being solely and secretly examined by the lord or lords lady or ladies of the manor or manors whereof the copyhold or customary tenements, a common recovery or common recoveries of which is or are proposed to be suffered, shall be holden, or by his her or their steward or stewards, or by the deputy or deputies of such steward or stewards,) to appoint any person or persons to be his her or their attorney or attornies for the purpose of be suffered, &c, surrendering the copyhold or customary tenements a common recovery or common recoveries of which shall be proposed to be suffered, to the use of any person or persons to make him or them tenant or tenants to the plaint; and also to appoint any other person or persons to appear for the person or persons so appointing as vouchee or vouchees, and to enter into the usual warranty, and to do all other lawful and necessary Acts for the suffering and perfecting of such common recovery or common recoveries respectively, and to direct the demandant or demandants in such common recoveries respectively to surrender the tenements so recovered, when or after such recovery or recoveries shall be suffered and perfected, to such uses as shall be declared in the instrument by which such attorney or attornies shall be respectively appointed; and mon Recoveries are intended to that the surrender and surrenders and common recovery and common No. XXV. recoveries which shall be had acknowledged and suffered as aforesaid, c. 8. shall have the like effect but no other as such surrender and surrenders 47 Geo. III. and common recovery and common recoveries would have had if the party or parties who shall acknowledge such surrender or surrenders, and suffer such common recovery or common recoveries by attorney, and give such directions as aforesaid, had appeared in court in his her or their person or respective persons, and acknowledged the said surrender or surrenders, and suffered the same recovery or recoveries, and had joined in the surrender or surrenders to be made by such demandant or demandants. [No. XXVI. ] 59 Geo. III. c. 80.-An Act concerning Common Recoveries to be suffered by Attorney in Courts of Antient Demesne; and to explain an Act of his present Majesty relative to the Sale or Mortgaging of Estates of Lunatics.-[6th July 1819.] 450 32 H. VIII. c. 1. 2 Roll. 383, 425, 427. PART II. CLASS XI. Wills. [ No. I. ] 32 Henry VIII. c. 1.-The Act of Wills Wards and Primer Seisins, whereby a Man may devise two Parts of his Land.* WHERE the King's most Royal Majesty in all the time of his most gracious and noble reign hath ever been a merciful loving benevolent and most gracious Sovereign Lord unto all and singular his loving and obedient subjects, and by many times past hath not only shewed and imparted to them generally by his many often and beneficial par In adverting to the system of the law at present existing with respect to testamentary dispositions, I shall take the liberty of suggesting certain legislative alterations which I conceive would tend materially to its amelioration and improvement. By the abolition of the feudal tenures, the restrictions which are the principal objects of this and the following statute have become inoperative; and the power of a disposition by will of freehold lands of inheritance is general and undefined. It is agreed that copyhold lands† are not within the Statute of Wills, and that they can only be the subject of devise through the medium of a surrender to the use of the will, or in consequence of those rules of courts of equity by which the want of a surrender is in certain cases supplied, and upon which it would be foreign to the present purpose to enlarge. The power of devising copyholds through the medium of a surrender, was originally wholly dependent upon special custom; but in Pike v. White, 3 Bro. Ch. 286, it being alleged, that according to the custom of a manor, copyhold lands holden thereof, could not be surrendered to the use of the will of the tenant, and were not devisable by virtue of any custom subsisting in such manor, Lord Thurlow said, that it was totally impossible to say that a copyhold surrendered to the use of a will should not pass thereby; and therefore he must declare the custom, if there were such an one, bad. This opinion is certainly very conducive to public convenience, with regard to its effects; but it seems very difficult to support it upon the principle of mere legal reasoning; or to discover upon what correct principles a custom according with the general common law, and not affected by any legislative provision, could be controuled or superseded by mere judicial authority. Certain customary estates are still not susceptible of devise, otherwise than by the medium of deeds of trust; and which in some instances must I have thought it eligible to retain this part of the Note, notwithstanding the recent alteration of the law. See the last Number of this Class. be renewed annually, or after certain periodical intervals, so that if the time of renewing them is suffered to elapse, or the testator falls into a state of incapacity, the devise becomes inoperative. In Church v. Munday, 12 Ves. 426, and on Appeal, 15 Vesey, 396, the question arose, amongst others, Whether the reversion or remainder of a copyhold expectant on an estate tail, could be surrendered to the use of a will?-The Lord Chancellor directed inquiries; but after stating Lord Thurlow's opinion above cited, said, the Court would hold that there might be a surrender to the use of the will, though no instance could be found upon the records of the manor; or if there could be no such custom, there must be some mode of disposition by deed, as in the case of customary freeholds, the want of which the Court would supply. These cases shew the strong opinion of the courts, and which certainly are in accordance with the general feelings of mankind, in favour of extending the right of testamentary disposition; and it cannot be pretended that any real benefit results from the necessity of the circuitous course of a surrender or deed with respect to copyhold or customary estates, and the invalidity of wills, for want of those ceremonies, is a disappointment of the intention of a testator, upon which his general arrangements are founded. I conceive that much advantage, unaccompanied with any inconvenience, would result from a general provision that all lands and hereditaments, of whatever tenure, might pass by devise, with proper regulations for preserving to the Lords the emoluments to which they are entitled in respect of the Acts, by which, according to the existing law, such dispositions are rendered valid. The provisions of the Statute of Frauds, 29 Car. II. c. 3. with respect to the attestation of wills of real estates, has been adverted to in commenting upon that statute in a former part of this collection, accompanied by some observations on the inconvenience of a certain mode of attestation being necessary in respect of certain descriptions of property, and not universally so; and in consequence of which the same general plan of disposition is partially supported, No. I. dons heretofore by authority of his Parliament granted, but also by divers other ways and means many great and ample grants and benignities, in such wise as all his said subjects been most bounden to the 32 H. VIII. ' uttermost of all their powers and graces by them received of God to render and give unto his Majesty their most humble reverence and c. 1. ⚫ obedient thanks and services, with their daily and continual prayer to Dyer, 292. Almighty God, for the continual preservation of his most royal estate 2 Anders. 206. and partially defeated; whereas it must always be desirable that the same entire system of disposition should be either wholly valid or wholly void, which has frequently been the subject of judicial observation; and it certainly would be beneficial to apply one and the same rule of attestation to every subject of testamentary disposition, and to extend the present regulations to the disposition of personal estates, and to the devise of copyholds when such devises are in other respects valid, and to the testamentary execution of powers. One of the leading features of the present statute is that the testamentary power only attaches to lands belonging to the testator at the devise, either by actual seisin or a vested right; and that no disposition can be made by will of freehold property to be afterwards acquired. Whether it might not be beneficial to give the same general right of testamentary disposition over future acquisitions of freehold property, which subsists with respect to personality, I do not think it material to inquire, as I apprehend that the balance of public convenience on either side would not be very considerable. It was established previous to the Statute of Wills, that a devise by a joint-tenant of lands devisable by custom was void ;-and it is clear that a will by a joint-tenant who survives, or who afterwards severs the joint-tenancy, is of no effect. See Swift v. Roberts, 3 Bur. 1488. 1 Black. Rep. 476, and the statute 34 and 35 Henry VIII. But a devise made by tenant in tail, after making tenant to the præcipe, and before suffering the recovery thereon, is good. Selwin v. Selwin, 1 Black. Rep. 222-251. 2 Bur. 1131. Roe v. And a possibility by virtue of an executory devise, or a springing use, is devisable. Jones, 1 H. Bl. Rep. 30. 3 T. Rep. 88. It is a general rule that a right of entry is not devisable, the authorities for which are fully expounded in the case of Goodright v. Forrester, 8 East, 552, in which it was held that the fine of tenant for life divested, the estate of tenant in fee in remainder, and turned it to a right which was not devisable; and Lord Ellenborough, after delivering the opinion of the Court to that effect, observed, that whatever mischief or hardship might attend the decision of the case, or might be expected to arise from the application of the same rule to other cases, it was an inconvenience which could, if their judgment was well founded, only be remedied by positive law ;-and that the propriety of applying such a remedy, whereby the same rights of entry and action which belonged to the heir might be extended to the devisee, was a question particularly for the consideration of the legislature. Upon the case coming before the Court of Exchequer Chamber upon writ of error, 1 Taunton, 578, it was decided upon the ground of non-claim, as to which see note to stat. 4 H. 7. c. 24. ante Class X. No. 7. the Court declining to give any opinion upon the point decided in the Court of King's Bench: as to which, Mansfield, Ch. J. observed, that since it would be unnecessary to decide on any of the points argued in the Court of King's Bench, it need not be inferred or supposed that the judgment of that Court was in any respect impeached by the decision: the Court would not at present give judgment upon those points, because it would first be necessary minutely to examine the old authorities, which, upon the present grounds of their decision, it would be superfluous to do. If the doctrine of estates arising by disseisin was such as had been stated by the defendant's counsel, they must lament that the law was such. Our ancestors got into very odd notions on these subjects, and were induced by particular causes to make estates grow out of wrongful acts. The reason was the prodigious jealousy which the law always had of permitting rights to be transferred from one man to another, lest the poorer should be harassed by rights being transferred to more powerful persons. It is evident that the reasons of this principle of the law are not applicable to the present state of society; and the opinions which have been cited seem sufficient authority to shew that it might be desirable to extend the power of devise to all interests which, without such devise, would be descendible to the heir; and at any rate the interests of justice demand that the testamentary power of the person in remainder should not be affected by the wrongful acts of the particular tenant.-See some observations upon this subject in the notes to the Statute of Uses 27 H. 8. ante Class IX. No. 3. But perhaps there are few settled doctrines of law, to which it would be more desirable to apply the correction of legislative authority, than that by which a devise is rendered inoperative, in consequence of a subsequent conveyance of the estate, contrary to the admitted intentions of the testator. It would be superfluous to enter into the detail of a subject which has, within a recent period, been so fully elucidated. The positions that a devise is annulled at law by a subsequent conveyance of the estate, although the testator by the effect of the Statute of Uses continues seised of the ancient estate, and even although the conveyance is inoperative for want of legal requisites, and that when there is a revocation at law a court of equity will not controul the legal operation of the conveyance, except in certain definite cases, are fully established as settled rules of property. The history of the law upon this subject, and the grounds and principles upon which it is |