the person whose signature it bears, bearing date 4th April, 24 Eliz. Now the fact was, that the defendant did deliver it as his deed on the 30th July, 23 Eliz., when he was alive, and not on the 4th April, 24 Eliz., when he was dead: therefore the jury, finding the whole transaction honest and otherwise unexceptionable, "prayed the advice of the Court, whether it was the defendant's deed." And it was adjudged by Anderson, Chief Justice, Periam, and Walmesly, that it was his deed; and the reason of their judgment was (observe, reader), “that although the obligee," (the plaintiff), "in pleading, cannot allege the delivery before the date," (why? because)—“ it was so adjudged in 1 Hen. 6, which case was affirmed to be good law, and" (another reason) "because the plaintiff is estopped to take an averment against any thing expressed in the deed; yet the jurors who are sworn to say the truth are not estopped" (this is lucky), "for an estoppel is to conclude one to say the truth" (i. e. to prevent one from saying it), "and therefore the jury cannot be estopped, because they are sworn to say what is true; vide 1 Hen. 4, 6 b, 35 Assis. 8, 17 Edw. 3, 6, Plowd. Comment. 515 a." Now the plain English of this is, that the plaintiff must say what is false, but the jury may find what is true,—which, all things considered, is an indulgence to reason seldom granted by our law. Why, indeed, the plaintiff was not allowed to state the truth, as well as the jury to find it, it is not easy to discover. It is quite conformable to plain sense (s), that if A. has induced B. to act in a certain way by alleging a particular state of facts, that if A. bring an action against B., he shall not be allowed to deny his own statement, whether in a deed or out of it. But why not (t) say the truth? Why not say, "Whether these facts are true or not is nothing to the purpose; you told me they were true, I acted upon your representation, and from that representation you must not now

(s) This is well illustrated by the case of Cox v. Cannon, 4 Bingham's New Cases, 454.

(t) It is now held that this may be done. Steel v. Mart, 4 B. & C. 280 ; Hall v. Cazenove, 4 East, 477,

depart." This is an estoppel. But how does this apply to an averment altogether immaterial? "The date of a deed is not of the substance of a deed, for if it has no date, or a false or impossible date, the deed is good, for there are but three things of the essence of a deed,-writing in paper or on parchment, sealing, and delivery." Ib. "And when a deed is delivered, it takes effect (t) from the day of the delivery, and not of the date." Yet still so great is the reluctance (u) to part with absurdity, which our legislators display, that though the facts are precisely the same, yet if the pleading be shaped in one technical form instead of another, though the meaning of the party be substantially the same, and so understood by his antagonist, the fact which is, and ought to be, necessarily conclusive for the plaintiff, ceases to be so (v). And thus it was decided in a very recent case (w), in which it was determined that a verdict which, if pleaded in bar, would be conclusive, when given in evidence is not conclusive.

In Ferrer's (x) case, vol. 3, p. 271, same edition, it was decided, that a recovery in one action is a bar as to that or the like action of the like nature for the same thing for ever. True, however, to its ruling genius, the law immediately proceeds, on technical grounds, to qualify this beneficial principle. "But if he be barred in a real action. he may have an

(t) All the matter of a deed must be written before sealing and delivery, for if a man seals and delivers a blank piece of paper, and gives directions for an agreement to be written above it, the deed is void. Shep. Touch. p. 54. Though a deed made with blanks, and afterwards filled up and delivered by the agent of the party, is good. Texeira v. Evans, 1 Anst. 229.

(u) The love of our legislators for absurdity, the tenacity with which they cling to every rag of the worn out garments of folly, reminds me of Aristotle's magnificent illustration of the eagerness with which we seize on the arguments for the existence of the soul after death. "The very

dress that a friend has worn," he says, "is dearer to us than the entire person of a stranger."

(v) Trevivan v. Lawrence, Salk. 276; Com. Dig. tit. "Estoppel," A. (w) Voogt v. Winch, 2 B. & Ald. 672.

(x) See Lord Ellenborough's remarks on this case. Outram v. Morwood, 3 East, 357; Lord Bagot v. Williams, 3 B. & C. 235.

action of a higher nature, and try the same right again." "As if a man be barred in an assise of novel disseisin, yet upon shewing a descent or other special matter, he may have an assise of mort d'ancestor, aiel, or bisaiel, entire sur disseisin to his ancestor. So it is said, if a man be barred in a formedon in discender, he may have a formedon in reverter or remainder, for that is an action of a higher nature." What a consolation for a man, ruined by incessant litigation, to know that the new action was called a "formedon in reverter." This case is of historical value, as it shews that actions in ejectment were becoming frequent. The old real actions were so oppressive and ruinous, and so pregnant with vexatious chicane, that in order to escape from them people had recourse to ejectment, by which, though not equally conclusive, possession could be obtained. Ejectment continues to be the disgrace of the law to the present hour. It is a curious proof of the hostility of lawyers to the simple and intelligible manner of obtaining justice. The plaintiff and defendant are both fictitious. It consists of a series of clumsy falsehoods, in the shape of a supposed letter from a nominal being to the real defendant, annexed to a statement that another shadowy being has done certain acts, which of course never happened; and this stupid, circuitous, barbarous proceeding, invented under the Plantagenets as a means of escaping from the snares of what were called real actions, and which were still more intolerable, continues to be law in England at the present hour. It was (y) carefully preserved by the reformers of the law and the inventors of the New Rules in 1830!

(y) I may here remark, that in ejectment, where title to land is concerned, there is no special pleading, and the Commissioners of Law Reform give as a reason why there should be none, the reason that if special pleading were introduced in ejectment, the security of the possessors of landed property would be at end. Why then is it kept where personal property is at stake? Is not this making special pleading like Don Quixote's balsam of Fierabras, that was excellent for the knight, but poison to the squire? Posterity will wonder at an infatuation in clinging to these barbarities in 1830, and preserving them when the reform of the

Now, as the plaintiff in an action of ejectment is not a real being, of course the man who lurks under his assumed name may assume any other name, and if he be a rich man, may bring any given number of actions to recover the property he covets. If ejectment had been the law of Palestine, the murder of Naboth would have been useless. It is true, that at the present day the Courts will interfere to prevent the repetition of this action beyond a certain number of times, but this was not the rule in Coke's time; and, accordingly, in Ferrer's case, he complained that "the neglect of the ancient common law, by introducing trials of rights and titles of inheritance and freehold in personal actions, in which there is not any end or limitation of suits, has introduced four great inconveniences. 1. Infiniteness of verdicts. 2. Contrarieties of verdicts one against the other. 3. Continuance of suits twenty, thirty, or forty years, to the utter impoverishment of the parties. 4. All this tends to the dishonour of the common law." As a specimen of the jargon (z) in which

law was supposed to be accomplished, and also at the determination then exhibited of obliging the public to compensate for the loss of one absurdity by the renovation of another. Thus, in ejectment you have no special pleading, but a string of useless falsehoods, making the proceeding quite unintelligible to a layman;-so it is, disfranchising Grampound we keep Old Sarum. In other cases you have not the fictions of ejectment, but you have the chicane of special pleading and the New Rules, which, if devised for the purpose of enabling wrong to triumph over right, could not be more effectual. In a common law trial, the judges see and hear the witnesses, but besides the influence of special pleading, the jury must be unanimous. In Chancery, the suitor is free from the New Rules, but the judge does not see or hear the witnesses, &c. &c. &c. (z) Vide, reader, in my Preface to the fourth part of my Reports, f. i. b. for the inconveniencies which ensue on the breach of any of the ancient and fundamental rules of the common law. And by all these differences and reasons you will better understand your books, in 8 Ed. 2 ; Droit, 35; 4 Ed. 3; Droit, 31; 3 E. 3. 16; 7 Ed. 3. 19; 8 Ed. 3. 54; 9 Ed. 3. 13; 18 Ed. 3. 31. 35; 18 Ed. 3; Estoppel, 221; 30 Ed. 3. 19; 13 Ass. p. 1; 17 Ass. p. 27; 27 Ass. p. 21; 28 Ass. p. 14; 30 Ass. p. 8; 30 Ass. 51; 31 Ass. 28; 32 Ass. 13; 31 Ass. 14; 33 Ass. 5; 19 Ed. 3; Estoppel, 227; 40 Ed. 3. 21; 42 Ed. 3; 44 Ed. 3. 45; 45 E. 4; Br. 589;

Coke was bred, I subjoin the conclusion of this case in a

note.

Lord Cheyney's case (a) is reported vol. 3, p. 137, of the

7 H. 4. 15; 3 H. 6. 15; 22 H. 6. 27; 7 E. 4. 19; 2 R. 3. 14; 10 H. 6.5; 37 H. 6. 31, 32; 12 E. 4. 13; 9 H. 7. 23; 21 H. 7. 24; 29 H. 8; Br. Det. 174; 33 H. 8; Action sur le case, Br. 105; 7 Ed. 6; Estoppel, Br. 162; 23 Eliz.; Dyer, 371; Bracton, lib. 4, fol. 262. Note, reader, at the common law, if lands had been conveyed out of the degrees, so that the demandant could not have a writ of entry in the per, or per & cui, the demandant was put to his writ of right; for no writ of entry in the post was at the common law, and the reason thereof was as hath been said quod sit finis litium, and that he who had right should take his remedy by writ of entry, before there could be more than two alienations, and all this appears by the statute of Marlebridge, cap. 30. Vide F. N. B. 192; 7 Ed. 3, 25. & 325; 17 Ed. 3. 69; 22 Ed. 3. 1; 7 H. 4. 17, &c."

(a) "Sir Thomas Cheyney, Knight, Lord Warden of the Cinque Ports, 1 Eliz., made his will in writing, and thereby devised to Henry his son divers manors, and to the heirs of his body, the remainder to Thomas Cheyney of Woodley, and to the heirs male of his body, on condition 'that he or they, or any of them, shall not alien, discontinue, &c.' And it was a question in the Court of Wards, between Sir Thomas Perot, heir general to the Lord Warden, and divers of the purchasers of Sir Thomas Cheyney, if the said Sir Thomas should be received to prove by witnesses, that it was the intent and meaning of the devisor to include his son and heir within these words of the condition (he or they), and not only to restrain Thomas Cheyney of Woodley, and his heirs males of his body; but Wray and Anderson, Chief Justices, on conference had with other justices, resolved, that he should not be received to such averment out of the will, for the will concerning lands, &c., ought to be in writing, and the constructions of wills ought to be collected from the words of the will in writing, and not by any averment out of it; for it would be full of great inconvenience, that none should know by the written words of a will what construction to make, or advice to give, but it should be controlled by collateral averments out of the will: but if a man has two sons both baptized by the name of John, and conceiving that the elder (who had been long absent) is dead, devises his land by his will in writing to his son John generally, and in truth the elder is living; in this case the younger son may, in pleading or in evidence, allege the devise to him; and if it be denied, he may produce witnesses to prove his father's intent, that he thought the other to be dead; or that he at the time of the will made, named his son John the younger, and the writer left out the addition of the younger for in 47 E. 3. 16. b. the case was, Robert Peynel had issue two sons baptized by the name of William, and levied a fine to Sir John Fanningbridges and others come ceo, &c., who granted and rendered