No. 24. gree 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 32 Gen. II. c. 14. any wilful Default, Extortion, or Misdemeanor, 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 Prosecutions. two Years next after any such Offence shall have been committed, Limitation of and not otherwise, and such Orders of the said Court of Exchequer, Orders of the so to be made as aforesaid, shall have the same Force, Virtue, and Court inforced. Effect, and the Observance thereof shall be inforced by such Ways and Means, as any other Orders of the same Court. Operation of not altered by this XI. Provided always, and be it enacted by the Authority aforesaid, That this Act shall not any way alter the Operation of any Fine Fines in the Court which after the said first Day of Trinity Term one thousand seven of Common 'leas, hundred and fifty-nine, shall be levied in the Court of Common Pleas Act. 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 publick Act, and shall be judicially taken Notice of as such, by all Judges, Justices, and other Persons whatsoever, without specially pleading the same. Publick Act. No. 25. 47 George III. Sess. 2. c. 8.-An Act concerning Common WHEREAS it is expes of Copyhold or Customary Tenements HEREAS it is expedient that Persons who can now suffer 47 G. III. Sess. 2, c. 8. appoint Attornies, Recoveries are in 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 Persons may be lawful for every Person not being under Coverture, and for every &c. for surrenderFeme Covert, (such Feme Covert being solely and secretly ex- ing Copyholds, &c. amined by the Lord or Lords, Lady or Ladies of the Manor or of which Common Manors whereof the Copyhold or Customary Tenements, a Com- tended to be sufmon Recovery or Common Recoveries of which is or are pro- fered, &c. posed 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 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 No. 25. 47 Geo. 111. c & 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 that the Surrender and Surrenders, and Common Recovery and Common Recoveries which shall be had, acknowledged, and suffered as aforesaid, shall have the like Effect but no other, as such Surrender and Surrenders 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 acknowJedged the said Surrender or Surrenders, and suffered the same Recoverv or Recoveries, and had joined in the Surrender or Surrenders to be made by such Demandant or Demandants. 473 PART II. CLASS XI. WILLS. No. 1. 32 Henry VIII. c. 1.-The Act of Wills, Wards, and Primer Seisins, whereby a Man may devise two Parts of his Lands* THERE the King's most Royal Majesty in all the time of his 32 H. VIII. c. 2. WHERE his loving, benevolent and most gracious Sovereign Lord, unto all and 2 Roll 383, singular his loving and obedient Subjects, and by many times past 425, 427. hath not only shewed and imparted to them generally by his many, often, and beneficial Pardons heretofore by Authority of his Parlia 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 the Note notwith last Number of It is agreed that Copyhold Lands+ are not within the Statute of Wills, and I have thought that they can only be the Subject of Devise through the Medium of a Surren- it eligible to reder to the Use of the Will, or in consequence of those Rules of Courts of tain this Part of Equity by which the Want of a Surrender is in certain Cases supplied, and standing the reupon which it would be foreign to the present Purpose to enlarge. The Power cent Alteration of of devising Copyholds through the Medium of a Surrender, was originally the Law. See the wholly dependent upon special Custom; but in Pike v. White, 3 Bro. Ch. 286, this Class. 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 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 No. 1. 32 II. VIII. c. Dyer 292. 'ment granted, but also by divers other Ways and Means many great 1. and ample Grants and Benignities, in such wise as all his said Sub'jects been most bounden to the uttermost of all their Powers and Graces by them received of God, to render and give unto his Majesty 'their most humble Reverence and obedient Thanks and Services, with their daily and continual Prayer to Almighty God, for the con 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, 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 Ob. servation; 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 enquire, 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 JointTenancy, is of no Effect. See Swift v. Roberts, 3 Bur. 1488. 1 Black. Rep. 476, and the Statute 34 & 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. And a Possibility, by Virtue of an executory Devise, or a springing Use, is devisable. Roe v. 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, 652, 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 No. 1. ⚫tinual Preservation of his most Royal Estate in most Kingly Honour and Prosperity; yet always his Majesty being repleat and endowed 32 H. VIII. e. t. by God with Grace, Goodness and Liberality, most tenderly considering, that his said obedient and loving Subjects cannot use or ⚫ exercise themselves according to their Estates, Degrees, Faculties • and Qualities, or to bear themselves in such wise, as that they may 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 harrassed 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 founded, are fully stated in the Cases of Brydges and the Duchess of Chandos, 2 Ves. jun. 417, 7 Bro. P. C. 505-Goodtitle v. Otway, 1 Bos. & P. 576, 7 T. R. 399—S. C. in Equity by the Name of Cave v. Holford, 3 Vesey, 682, 7 Bro. P. C. 593. See also Harmood v. Oglander, 6 Ves. 199, 8 Ves. 106. It is very unnecessary to enter into the Consideration of the technical Principles upon which the Law in this Respect is founded, or to take Part either with those who charge the leading Cases with shocking Absurdity, or with those who consider the Doctrine as necessarily emanating from the essential Principles of the Subject. The Question for Consideration, as a Matter of legislative Interference, is, whether it would be more conducive to Utility that the Law should continue as it is, or that it should be reformed. The Disappointment of the Intention of the Testator is an undisputed Ingredient in the |