AN ESSAY ON T H E STATUTE O F FRAUDS
JAMES E .
COOK
Preface
The single phrase "Statute of Frauds" can have at least two
meanings.
First, and probably foremost to a historian, the Statute
of Frauds is a shortened name used to describe the Act of 29 Car. TI,
c. 3, entitled "An Act for Prevention of Frauds and Perjuries."
Second, for the practicing American attorney, that phrase refers to,
in a general way, the rule of law which regulates either the creation
or proof of specific legal documents in his jurisdiction.
Within this paper, both of the above mentioned meanings will be
used.
Hopefully the context within which they are placed will
alert the reader as to which one is intended.
Often it will be necessary to display passages from the original
Statute of Frauds or from its contemporary decendents.
Old style
spellings will be preserved as they appear in manuscript; however,
noticable misspellings will be followed by [sic].
89
i
Introduction
The original Statute of Frauds, 29 Car. II, c,3, is perhaps
one of the most important documents in English legal history.
In
many ways, it was a dramatic break with the past; in other v;ays, it
was but another step along the traditional path of the common law.
It is the goal of this essay to highlight the importance of the
Statute of Frauds by explaining the state of the law prior to its
enactment, the social and legal reasons for its proposal, and the
effect which its passage had on the early formation of American
jurIsprudence.
The Statute of Frauds has been claimed by some alternately to
be either a rule of evidence or a rule of substance.
Those who say
it deals only with evidence explain that the Statute of Frauds describes
what is necessary in order to prove in court that a writing concerning
Blackacre is or is not a devise of Blackacre.
On the other hand, those
who insist it is a rule of substance explain that the Statute of
Frauds sets forth the necessary elements for creating a valid devise
of Blackacre.
These are, however, merely two sides of the same coin.
The Statute of Frauds must be followed when one drafts any legal
instrument; otherwise, that instrument will be inadmissible as evidence
later, should litigation be required to enforce its provisions.
Because the English Statute of Frauds, as it was originally
passed, has been repealed and supplanted, it is primarily of historical
significance now.
This is not to deny that judicial interpretations
of that first Act find life even today in modern interpretations of
that law's offspring.
But in order to understand the Statute of Frauds
90
ii
and its place in Anglo-American legal history, more attention will
be directed upon the changes wrought by the Statute than upon the
provisions of the Statute themselves.
Naturally, one cannot be done
in the complete absence of the other.
Nonetheless, the emphasis
of this essay is intended to be upon the history of the Statute of
Frauds, and not \ipon judicial interpretation.
91
iii
I.
As the title "An Act for the Prevention of Frauds and Perjuries"
indicates, the Statute of Frauds was enacted to prevent fraud, not
to punish it.
This "fraud" was not, however, a factual misrepresentation
of one man to another, but rather was very nearly the same thing as
"perjury", or a willful misrepresentation to a court.
Perjury, said
Lord Coke, was "when a lawful oath is administered, in some judicial
proceeding; to a person who swears willfully, absolutely and falsely,
on a matter material to the issue or point in question."^
Hence, the
Statute was enacted to prevent a litigant from bringing a false claim
before the court, and seeking to support it by perjured testimony.
Official sanctions against perjury existed prior to the development
of formal judicial proceedings.
Anglo-Saxon ordinances and dooms
mentioned the offense of prejury, and frequently the punishment
allotted for the lawbreaker was banishment or, in some instances, df.ath,2
In medieval England, false swearing was not only a criminal offense,
but also an offense against the laws of the Church.
The combined
effect of banishment for the temporal crime and further religious
sanctions for the spiritual crime were often enough in themselves to
prevent perjury.
It is possible, however, that the passage of the Statute of
Frauds was a tacit admission that the effectiveness of the old punitive
laws had vanished, and that men were no longer deterred from committing
perjury.
Perhaps for this reason, the drafters of the Statute of Frauds
averted their attention from punishing perjury to creating barriers to
its commission.
92
pege 2
II.
As mentioned above, there have been tv;o predominant views of
the Statute of Frauds.
Some writers have seen it as a rule of evidence;
others have seen it as a rule of substance.
Determination of whether
either view is entirely correct will be taken up later.
But as a
foundation for that time, the development of the law of evidence
should be sketched briefly now.
The law of evidence began with the transformation of the jury
from a body of witnesses to a body of fact finders.
"Nov? that the
verdict of the jury was based, ncrl on their own knowledge, but on the
evidence produced to them in court, some law about this evidence
became n e c e s s a r y . T h i s process started in the sixteenth century,
and "as a result of this development, we begin, at the end of the
seventeenth century, to see in outline some of the main principles of
cur modern law of evidence.
In 1499j however, courts considered the presentation of evidence
a luxury rather than a necessity for the jury.
Thayer describes a case
wherein a verdict was returned before the parties had presented any
evidence, and the passage from that court's opinion is as follows:
Evidence is only given to inform their [the jury's]
consciences as to the right. Suppose no evidence given
on either side, and the parties do not wish to give
any, yet the jury shall give their verdict for one
side or the other. And so the evidence is not material
to help or harm the matter.5
During the Tudor period, courts remained reluctant to admit the
evidence of parties and witnesses.^
It was still thought that the jury
should settle contested matters on their own knowledge rather than rely
9q
page
94
on the statements of interested parties or their friends,"'' However,
in earlier days it had not been uncommon, in disputes over the
genuiness of a deed, for the jury to consult with the witnesses to the
g
deed.
At that time, a witness to a deed was not required to have been
present at its signing and delivery, but was merely expected to vouch
o
for it by lending the transaction the dignity of his name.
"This
may account for its turning out so often, when witnesses were questioned,
that they knew nothing about the matter"
When the contested issues
went beyond matters of which the jury
had personal knowledge, or which were memorialized by records or
documents, or which were such publicly notorious facts as seisin,
there came to be a need for outside help for the jury."1
this involved the oral evidence of witnesses.
Often
Up to this time
(1500 - 1550) the oral evidence of witness (in the modern cense) was
seldom used.
"There was no means of compelling a witness to come
forward to testify; and, if he came forward voluntarily, he might expose
12
himself to an action for maintenance."
The old common law courts
used a writ of subpoena as early as the 1300"s, but this writ was
13
directed toward the parties to the litigation, and.not to witnesses.
As the authority of the courts became more defined, it came to be
understood thab each court had the inherent power to call for adequate
proof of the facts in controversy, including the power to summon
witnesses before it.1^
"The ordinary summons is a writ of subpoena,
which is a judicial writ,directed to the witness, commanding him to
appear at the Court, to testify what he knows in the cause therein
described, pending in such Court, under a certain penalty mentioned
94!
page U
in the writ."1''
Note: 5 Eliz. c.9 required that a witness summoned
by subpoena be paid his reasonable expenses in going
to end returning from the trial, and provided that
this witness could not be compelled to testify before
his expenses had been paid.
Rule 179t TRCP, provides for the production of witnesses
by subpoena, but states that no fine shall be imposed and
no attachment shall issue in a civil suit for that witness'
failure to attend until it is shown to the court that all
lawful fees have been paid or rendered to that witness.
With the advent of oral evidence came also the problems of
determining what sort of evidence should be admitted for the jury's
consideration.
The English court had maintained "absolute
discretion as to what averments made by counsel it would admit."^
This control of pleadings carried over to control of the admission
17
an.d rejection of evidence.
Francis Bacon determined the role of
the trial judge to be as follows:
The parts of a judge in hearing are four: to
direct the evidence; to moderate length, repetition,
or impert-inency of speech; to recapitulate, select,
and collate the material points of that whichghath
been said; and to give the rule or sentence.
The direction of the evidence was usually limited to keeping from
the jury matters which went outside the cause plead, or matters which,
in the experience of reasonable men, were \mtrustworthy and would
orobably excite or confuse the jury.
The period from 1550 to 1640
saw the refinement of the art of pleading, but also gave birth to the
exaggeration of emphasis on the form of pleading, which later drew
criticism from Dickens and others.
Also during this time, the so-call
"Hearsay Rule" grew in importance and complexity, and became the most
exception-riddled rule in legal history.
95
page 96
Thus the stage was set for the Statute of Frauds.
be called a piece of remedial legislation.
It might new
The courts presumably,
had been beseiged by bogus land transfers, contracts for sale, and
wills, and suitors of all kinds sought by way of perjured testimony,
the courts' approval of these transactions.
beset by the same problems then as now.
The jury system was
The well-educated and
affluent used their positions to stay far away from the juries,
leaving only the uneducated and unsuccessful to sit on the panel.
Also, rumors of bribery, jury tampering, and partiallity lead many
19
to forsake the common law courts in favor of the Chancery.
Something
had to be done to bring uniformity to the lav/ of evidence, and to lighten
the load on the judicial system.
As will be shown later, the success of the Statute of Frauds
at accomplishing these above mentioned goals is questionable.
Yet
it did brigr. about an awareness of the problem and an attitude that
eventually it could be solved by sweeping legislative enactment.
III.
As mentioned above, commentators on the Statute of Frauds
have been prone to categorize it as either evidentiary or substantize,
one to the exclusion of the other.
The great American jurist Dr. Simon
Greenleaf stated emphatically, "This statute introduced no new principle
into the law; it was new in England, only in the mode of proof, which
20
it required."
To test Greenleaf's announcement, we should briefly
examine the original status of the substantive law of the three main
subjects of the Statute of Frauds (contracts, conveyancing, and wills)
96!
page
97
before proceeding to the study of how these areas were affected by it.
The Anglo-Saxon Dooms and Ordinances reveal some of the earliest
regulations of commercial transactions, or sales of goods.
"If a
Kentishman buys property in London-wick, he must have as witnesses
21
two or three reliable freemen or the king's wick-reeve."
"And I
will that every man shall have his warrantor; and that no one shall
trade outside a prot, but shall have the witness of the
22portreeve or
of other trustworthy men whose word can be relied on." '
Apparently,
these laws, if broken, will not render the transaction void, but will
make the underlying contract unenforecable should dispute arise
over the legality of the deal.
"There is no evidence of any regular process of enforcing contracts,
but no doubt promises of any special importance were commonly made
by oath, with the purpose and result of putting them under the
23
sanction of the church."
In the centuries following the Dark Ages
forms of action concerning contractual obligations began to take
shape. 'Trior to the appearance of assumpsit the contractual
p / remedies
in English law were debt, detinue, account, and covenant."
"By far the commonest origin of an action of debt is a loan of
money."
25
But it was also used for the sale of goods.
Delivery of
goods, oaynent in whole or in part, or the giving of earnest money was
26
required to make a binding sale.~
Unless a written document was
available to prove up the sale, the contestants would have to resort- to
compurgation to decide the matter.
27
Detinue ley for the recovery, in specie, of goods sold to someone
23
who retained them without right.
It Is an offshoot from the action
97!
page- 7
of debt, and it appears that the tv;o forms were originally one.
29
Because the original distinction between these two forms was already
vague, and because any contract for the payment of money, which could
be proved in court, constituted a debt, the more definite form of
action for debt survived, while the action of detinue was supplanted
30
by trespass on thecase.
The action of account first appeared in 1232, but is perhaps
31
older than that.
It was "peculiar in the fact that two judements
[were] rendered, a preliminary judgment that the defendant do account
with the plaintiff . . . and a final judgment
. . . after the
accounting for the balance found due." 32 Like the action of detinue,
33
account was based upon a real contract.
But its importance to the
Ot
development of the law of contracts is minimal.
If a commercial transaction were memorialized by a scaled document,
35
the action of covenant would lie for its enforcement.
merchants or traders used a seal in their business.
But not many
In fact, it was not
until the latterof.part of the thirteenth century that such men began
to use the seal.
Nonetheless, the seal was important to such
transactions, for it was taken to be conclusive evidence of the formation
of the contract, whenever the original witnesses were- unavailable for
37
questioning.
Hence, by the time the Statute of Frauds was enacted, the English
courts had devised many forms of action concerning sales, and not all
of them required the formality of a writing or memorandum.
that the opportunity for fraud presented itself.
It is cbvic.-s
The law of contracts
needed something to standardize the forms of contracts, if for nothing
98
page
12
more than to males the work of the courts simpler.
The early law of conveyancing is even more complex than that of
contract.
"In medieval times the only estates fully recognized by the
lav/ and given protection in the King's courts v:ere the freehold estates:
38
the fee simple, the fee tail and the life estate."
Prior to the
Statute of Frauds there were only two requirements for conveying a
freehold estate: (l) \ise of limiting words, describing the estate
/
39
conveyed, and (2) livery of seisin.
When the common lav/ began to recoginse non-freehold estates, such
as the term of years, one could convey such estates by use of the
appropriate words coupled with entry by the lesses.^0
Livery of seisin and occupation of land were facts which could be
proved by questioning any adult in the county in which the land was
located.^" Memoranda need not be recorded, nor even exist, in order to
show a right to possession.
But these rules were outliving their
usefulness; for society was slowly growing more distant, and public
acts were less remembered.
In trials to establish rights in land, charters or other documents
ip
were occasionally exhibited to the jury.
They were not evidence,
though they were often so called. Rather, the charter was the very
ground of the Iaction,
and its existence was a matter of pleading and
Q
not of proof.
judgment.
If the charter was not denied- the plaintiff took
If it was controverted, then the writing's genuineness
was tested, but not its "truth or operative quality,
The Statute of Frauds, by coercion, brought changes in the law of
conveyancing.
As vail be shown below, the penalty provisions of the
12!
Act forced specified transfers of interests in land to be memorialised
and signed, lest the entire transfer be reduced to the lowest status of
estate lenown at that time.
Before the Statute of Frauds, testamentary disposition of property
was governed first by borough custom and later by the Statue of Wills.
The Statute of Wills (32 Hen. VIII, c.l) is perhaps the second most
important piece of legislation to issue from the Tudor era, excelled
only by the Statute of Uses (27 Hen. VIII, c.10).
By the Statute
of Wills, a landowner "was empowered. . . to devise all of his land
held in socage tenure and two-thirds of his lands held by knight service."
Also, the devisees were "liable for the various feudal dues as though
they took by descent."^
Some degree of formality was demanded in the execution of a m i l
in accordance with that Act, in that it required a written instrument.
But not until the Statute of Frauds were testators required to sign
LV
their will.
Seldom does one see "last will" without "testament".
"A common belief
is that this phrase [last will and testament] arose because a will
disposed of real property and a testament disposed of personal property,
;g
therefore one instrument disposing of both was a will and a testament."+
In addition, it is sometimes thought that the ecclesiastical courts
fostered the use of "testament" (coming from the Latin testamentum)^
to describe property over which they had jurisdiction, while conmon law
courts used the Saxon50will to describe property subject to their power.
Professor Mellinkoff
asserts that this pair of words was combined,
not to separate kinds of property of jurisdictions of courts, but merely
cut of a habit of coupling an Old English word (will) with its
100
page
14
synonym taken from Latin (testament), much like the combinations
51
"had and .received", "mxnd and memory", and "free and clear".
Whether or not this linguistic analysis is correct, it is
established that from the time of William I, ecclesiastical courts were
involved r.pin the probate of wills and the administration of decedents'
estates.''' The royal courts had been given jurisdiction over land
53
disputes as early as the reign of Henry I.
Thus, if a decedent's
estate involved a land dispute, a possible conflict of jurisdiction
between church and state could have arisen.
IV.
As mentioned above, the Statute of Frauds can be considered reform
legislation.
Its passage followed by only a few years the Restoration.
And the literature of the latter half of the seventeenth century
reflected a popular desire to rid the law of its outmoded and inefficient
ways.
Pamphleteers and other outspoken critics of the government of the
Interregnum had accused members of Parliament of favortisrn and the sale
of public offices, even places on the Court of Chancery.^
"Because of the mounting demands for a sweeping reform
in the existing system of justice and in the actual
content of the law as well, parliament was moved in
January, 1652, to establish aCornmission for Regulation
to review in detail the state of the law in the light
^
of these demands and to make recommendations to Parliament,"
Appointed to this Commission were, among others, Matthew Hale, Hugh
56
Peters, John Desborough, and Sir Anthony Ashley Cooper.
The Commission for Regulation met with little success. As soon
as it was formed, writers with a variety of views deluged the group with
14!
page
102
pamphlets and open letters urging reform as they saw it.
was possible.
No agreement
"In November, 1655r a judge of the High Court of
Admiralty and the Court for the Probate of Wills published a pamphlet. . .
calling for a moderate approach to the question of legal reform."
57
The writer suggested that "restauration" was the only salvation for
5S
England, though what he meant by this expression is not clear.
It might have been a plea for the return of the Stuarts.
But possibly
it was an invocation of the spirit of the common law to return and
restore the simplicity the judicial system once enjoyed.
V.
Legal historians have written extensively about the date and
59
authorship of the Statute of Frauds.
agree.
T'heir findings do not always
Nonetheless, some information is now held as established
concerning the Statute.
It is certain that the Act was the work of more than one author.
Sir Matthew Hale, Sir Leoline Jenkins, Sir Francis North, and Lord60
Nottingham have been credited with lending a hand to its drafting.
The entry of captions of early drafts of the Act in the jounal of the
House of Lords had added to the confusion, because one cannot be
sure what part others might have played in writing those drafts, and
how much, if anything, of those attempts were retained in the final
product. Nevertheless, it is safe to say that the Statute of Frauds
was the result of influences from both the bench and the bar.
The second mystery of the Act is the date of its passage.
Through-
out the body of the Statute is repeated the effective date thereof,
102!
page 103
namely, June 24, 1 6 7 7 .
But its enactment date has been disputed.
The Cambridge edition of the Statutes at Large (1763) gave the date
as 1676, while the Statutes of the Realm (1819) dated it 1677.
The
apparent contradiction is explained by Lord Chesterfield's Act, (1751)
which effected the change from the old calendar to the Gregorian
Calendar.
A dual system of numbering years (old style and new style)
existed for a short time, but eventually uniformity returned.
These difficulties have given scholars much to debate with respect
to the enactment date. One writer has seemingly solved the problem by
extensive study of the journals of the House of C o m m o n s . I f the
entries therein are taken as correct, all evidence tends to show that
the Statute of Frauds was first read in the House on March 13, 1677.
It was read a second time on April 2, 1677.
On april 12, 1677, it was
reported from committee with arnenderaents which were also read twice.
And on April 16, 1677, the Statute of Frauds became law.
VI.
The lav: of real property conveyancing was possibly the hardest bit
by the Statute of Frauds.
In the first section thereof it is announced
that, beginning June 24, 1677, all "leases, estates, interests of
freehold, or term of years"
which were "created by livery of seisin
62
only, or by parol" ~
had to be written and signed by both grantor and
.grantee, or else they would be conclusively held to be estates at will
only.
At common law, an estate at will was created by implication, and
arose whenever one took possession of another's land.
103!
It was characteristic
page 13
oi' this estate that it could be terminated by either party vdthout
notice.
And it would end automatically if either party died or if
one attempted to convey his interest.^
The effect of this penalty provision was the loss of all the
advantages presumed to accompany the freehold and non-freehold estates.
Instead of enjoying the potentially infinite terra of a fee simple
estate, one who failed to comply with the Statute of Frauds would have
a fragile estate at will which could end at any moment.
And instead
of the security and predictability of duration afforded by a term of
years, one would face the prospect of having his estate vanish because
of the unforeseen early death of his landlord.
It should be noted,
therefore, that the changes wrought by this first section were more
than mere verbal alterations:
they were changes with a substantial
practical impact.
By the third section, a written deed or note, signed by the
concerned parties, was required for a valid assignment, grant, or
surrend of an estate listed in Section One.
and customary interest are exempted.
Only copyhold tenure
The reason for this exemption
was the fact that, unlike the other mentioned estates, copyhold and
customary interest were not created by feoffment and grant, but by
surrender and admittance.
The surrender and admittance were recorded
on the manorial court rolls and a copy thereof delivered to the new
tenant.
From this procedure came the name "copyhold".
In order to declare or create a trust in land, the seventh section
of the Statute of Frauds requires the same to be "manifested and proved"'
by a written, signed instrument," or else [it] shall be utterly void and
page
105
of none effect."^
It is the use of language such as this that
seduces scholars into agrument whether the Statute is evidentiary
or substantive.
The first quoted expression appears to be concerned
with proof; the second quotation seems to establish a substantive
sine qua non for the creation of an enforceable trust.
This is
further evidence, if any is needed, that the Statute of Frauds
suffered from the effects of too many authors.
Section Eight
exempted trusts which arose by implication, construction, or operation
65
of law.
Section Nine applied therequirement of a signed writing to
66
grants and assignments of trusts.
The effect of these sections of the Statute of Frauds was to
require better substantiation of interests in land than that afforded
by the memory of man.
Nothing is said about the content of the required
writing, or recording it, once it was vrritten. Nonetheless, something
should be written down describing the transaction and identifying
the parties thereto.
VII.
It is in the field of commercial lav;, especially the law of sales,
modern lawyers have dealings with what they know to be the "statute
of frauds".
These are laws that require particular sales agreements
to be in writing if they are to be enforceable.
The first of such
provision appeared in the fourth section of the original Statute
of Frauds.
That section declares
. . . [No] action shall be brought. . . (4) upon any
contract or sale of lands, tenements, or hereditaments,
or any interest in or concerning them . . . (5) or upon
any agreement that is not to be performed within the
105!
page 17
to the general requirement of a writing:
(l) partial delivery and
acceptance of the gcods sold, and (2) earnest money paid to bind the
bargain.
These items were held over from early common law, and were
by themselves thought to bind a sale. 75
One author states that th;^ seventeenth section was not viewed
by the business community as an aid to commerce, but rather as an
7 f>
impediment.
He found from his experience that many merchants
were reluctant to ask for either partial delivery or partial payment
out of fear of insulting the other party, who might regard such a
request as an intimation that he could not be trusted to keep
his word.
Nonetheless, Section Seventeen was generally seen as an inept
attempt by non-businessmen to regulate the subleties of every-day
commerce and viewed as successful only in creating more work for
attorneys.
VII.
The law of testamentary disposition of property is the final
major subject affected by the Statute of Frauds.
The fifth section
requires all wills involving interests in land to be in writing,
77
signed by the testator, and attested by three or four witnesses.
Section Seven extends these provisions to testamentary trusts of
78
interests in land.
Section Six states that any will made valid by Sections Five and
Seven shall continue to be valid until revoked either by physical act
79
or a later valid wall.
17!
page 18
Separate from the provisions on Written wills are Sections Nineteen through Twenty-one, which pertain to nuncupative wills.
A nun-
cupative will is sjmply a will made by the oral declaration of the
testator.
One can easily see the opportunity for fraud and perjury
present in trying to establish a dying man1s words as his will.
Thus,
nuncupative wills are a proper subject for regulation by the Statute
of Frauds.
By the second paragraph of Section Nineteen one learns that only
those nuncupative wills that bequeath an estate in excess of thirty
pounds are touched by this provision.
This seems to by an arbitrary
figure, as are most of the amounts cited by this statute.
Commen-
tators fail to discuss why a man might lie on a contract dealing with
more thsn ten pounds, but might not with regard to an estate under
thirty pounds. Perhaps the force of superstition would tend to make
men more honest when dealing with the property of the dead.
It is
more likely, however, that the choice of different amounts for contracts
and wills resulted from diverse authorship and not deliberate choice.
At least three witnesses who were present at the making of the
asserted nuncupative will must swear on oath as to the truth of the
matter.
Moreoverf they must prove that the decedent specially asked
some of his audience to bear witness that the words he spoke were
his last will.
This is included in the Statute of Frauds probably
as some objective evidence of the state of mind of the decedent
during the making of the supposed will, for a testamentary intent
80
was required at common law for the making of any vail.
As an added measure of fraud prevention, the fourth paragraph
18!
page 19
of Section Nineteen required that the alleged will be made during
the time of last illness of the decedent and in his or her own home,
or in another's home where the deceased had resided for at least ten
days.
The only exception to these rules was in the case of sudden
illness, when the decedent died before he could return home.
As with other provisions of this Act, doubt arose concerning the
requirements for witnesses.
It was finally announced by 4 Ann. c. 16,
6 14, that anyone who could be a witness at a trial could also be a
witness to prove a nuncupative will.
The effective limit of a nuncupative \-dll was set at six months
81
by Section Twenty.
If more than that time had elapsed since the
testator spoke his will, it could not stand as a valid will unless
it had been set down In writing within six days of its making.
Section Twenty-one makes rules for probate procedure with respect
82
to a nuncupative will.
It and Section Twenty vere probably intended
as safeguards and as direct evidence that the nuncupative will was
clearly an exception to the general rule requiring a writing for any
testamentary disposition.
As mentioned above, scholars are not in agreement about the
split of probate jurisdiction between ecclesiastical and secular
courts.
Section Twenty-four does nothing to settle the dispute,
but it does say that whatever jurisdiction the ecclesiastical courts
r>Q
have, they shall nonetheless be subject to the Statute of Frauds. ~
In the Nineteenth Century, probate jurisdiction was finally wrested
0h
from the church courts and bestowed upon a separate Probate Court,
which
was later
consolidated
with that of other special
courtsjurisdiction
by the Judicature
Act (1873).
Or
19!
page 20
VIII.
Although the original Statute of Frauds has been supplanted by
more modern legislation,^ its spirit lives on in American law by
its early adoption by the legislatures of the American colonies and
states. Either by specific reference or by general inclusion in the
entire body of common law, the Statute of Frauds found its way into
87
the laws of Virginia, Delaware, New York, and other colonies.
The American law of probate tended to follow English examples,
88
usually the Statute of Frauds or the Wills Act of 1837.
The
English law of contract was also closely copied, especially in
89
highly commereialized states such as New York.
And even in Texas the English Statute of Frauds had made its
presence felt.
In the field of contract lav?, Texas adopted Section
90
Four of the Act as its earliest form of commercial regulation.
The first Texas Statute of Frauds tracked the language of its ancestor
exactly, and even added a clause to bring the sale of slaves within
the Act.
The rules governing wills and probate were taken out of the
English Statute of Frauds by the first Texan legislators and placed
91
in a separate statute entitled "An Act Concerning Kills,"
This law
empowered everyone of sound mind and at least twenty-one years of age
to make a will.
It calls for a writing and the signature of the testator,
along with those of his witnesses.
law.
But then it departs from the common
Texas, of course, had been under the civil law influence of
Spain and France.
And from the civil law came the notion of the
holographic will.92
A holographic will is a testamentary writing
111
page 21
wholly in the testator's handwriting.
The Texas lav; declared that no
witnesses were needed for such a will.
Surprisingly enough, that is
93
still the law in Texas.
Thus, Texas requires attestation by two or more witnesses only
when the instrument is not written wholly in the testator's handwriting,
whereas the English law required three or four witnesses in every
instance. One might conclude that experience demonstrated to the
Texas lawmakers that there is little opportunity for fraud or perjury
where it is shown that the decedent personally wrote every word of
his will.
But it is also possible that the change in formalities
was due to feelings similar to those expressed by Lord Mansfield
when he said, "I am persuaded many more fair wills have been overturned
for want of the form, than fraudulent have been prevented by introducing
IX.
The success of the Statute of Frauds, or at least the concept
of a law to prevent fraud, can be measured not only by the comments
of judges and authors who, in their turn, applied and criticized the
Act, but also by the number of other jurisdictions which followed the
Statute as a model for their own laws.
Every jurisdiction which follows
the English tradition has its own statute of frauds, though not always
in the same form.
What was expressed in twenty-five sections of one
law is now, dur to the complexity of modern society, scattered throughout
the entire body of the laws of most states.
It was remarked by Stephen and Pollock that the Statute of Frauds
did nothing more than hinder the efforts and disappoint the expectations
21!
page 22
of honest men who failed to follow the law to the letter-
Though
this mighl have been true in some cases, the Act was generally successful
despite its weaknesses.
It was in many respects a stark and sudden
change from the common law.
As such it was bound to meet with oppo-
sition, for as Justice Story said, "Changes in the law, to be safe,
95
must be slowly and cautiously introduced, and thoroughly examined."
As mentioned above, many of the provisions of the Statute of
Frauds now endure in modern codes — Probate Codes,
Uniform Trust
96
Acts, Business and Commerce Codes, and others.
They have been
revised to fit modern society, but yet bear an undeniable resemblance
to their ancestor.
Time has shown the reforms brought about by the
Statute of Frauds were beneficial and much needed.
Perhaps those
who once criticized it would now agree that the Statute of Frauds
is one of the greatest legal innovations in history.
113
page 23
NOTES
1.
William Blackstone, Commentaries on the Laws of England, Vol. IV
(London: Dawson's oT'Pall Mall, I966)", "pp. 06-13"f." '
2.
]The_ Laws of the Kings of England from Edmund to Henry I,
A. J. Robertson, trans. (Cambridge: University Press, 1925).
See especially, II Canute cap, o; II Canute cap. 36; The
(So-Called) Laws of William I, cap. 23; VI Aethelred, cap. 7.
3.
William Holdsworth, A History_of English Law. Vol. IX (London:
Macmillan & Co,, 1935), p. 126. [Hereinafter cited as Holdsworth]
A.
Ibid.
5.
James Bradley Thayer, A J? reliminaryJTre at i se on Evidence, at the
Comrnon Law (Boston: Little,"Brownand Co". 7 "lS9S)"7"p."" 133. " *
[Hereinafter cited as Thayer, Treatise]
6.
Theodore F, T. Plucknett, AjConcise History of the_Common Law, 3d ed.
(London: Butterworth & Co., 1940)» p. 160. [Hereinafter cited as
Pluxknett]
7 • Ibid.
8.
James Bradley Thayer, "The Jury and its Development,"
Law Review, V (1891-92), 302.
9.
Ibid.
10.
Ibid.
11.
Plucknett, supra, at 160.
12.
Holdsworth, supra, at 131.
13.
Harvard
Plucknett, supra, at 611. See also Colin Rhys Lovell, English
Constitutional^ and Legal History (New York: Oxford University
P r T s V ^ T . P. 102."
14.
Simon Greenleaf, A Treatise on _the _Law_of Evidence (reprint) (New
York: Arno Press, 1972)) p. 358. [Hereinafter cited as Greenleaf]
15.
Greenleaf, supra, at 358.
16.
Holdsworth, supra, at 132.
17.
Ibid.
18.
Francis Bacon, "Of Judicature," collected in Essays and Hew /,tlantis
(New York: Walter J. Black, 1942), p. 22?.
23!
page
13
19.
Plncknett, supra, at 160.
20. Greenleaf, supra, at 229.
21.
Sources of English Constitutional History;, Carl Stephenson and
Frederick George Marcblm'v""eds, C Mew Yorkf Harper &*Row, 1937)
p. 5-
22. Op. cit., at 12.
23.
Sir Frederick Pollock and Frederic William Maitland, The History
of English Law, Vol. I (Cambridge: University Press, 196s),
pp. 57-58. [Hereinafter cited as P & M]
2A. James Barr Ames, Lectures on Legal History (Cambridge:
University Press," T9T3") , p. 122.
Harvard
25. P & M, Vol. II, p. 207.
26.
Ibid.
27«
P & H, Vol. II, p. 214.
28.
Henry Campbell Black, Law Pict.ionary,. 4th rev. ed. (St. Paul:
West Pub. Co., 1968), p.'537. [Hereinafter cited as Black's]
2
PlucJqiett, sunra.j_ at 326.
9*
30. Oliver Wendell Holmes, The_Comrn_onJ^aw (Boston:
1963), pp. 213 and 144-46".
31.
Plucknett, supra, at 326.
32.
Black's, supra, at 35.
33.
Ames, Lectures, supra, at 122.
Little, Brown, & Co.,
34. P_&.M» Vol. II, p. 222.
35.
Ames, Lectures, supra, at 122.
36.
P_jk.I1, Vol. II, p. 224.
37.
Ibid.
38.
Cornelious J. Moynihan, Introduction to the Law of Real Property
(St. Paul: West Publ. Co., 19S25", p."28.
~
"
39.
Kenelm Edward Bigby, An Introduction to jthe History of the Law of
Real Property (Oxford: Clarendon Press, T§75), pp.~104-105. ~
lis
page 25
40. Op. ext., at 168.
4-1. See generally Paul Vinogradoff, "Transfer of Land in Old English
Law," Harvard Lav? Review, XX (1906), 532-548.
42.
Thayer, The Jury, supra, at 307.
43.
Ibid.
44.
Ibid.
45. Moynihan, Introduction, suora, at 195) note 2.
46.
Ibid.
47. Plucknett, supra, at 666.
43. Jesse Dukeminier, Jr. and Stanley M. Johanson, Family Wealth
Transactions (Boston: Little, Brown, & Co., 1972)", p. 11.
49.
Cassell' s New Latin Dictionary, D. P. Simpson ed. (New Yorir:
Funk & Wagnalis, 1959), p7 601.
50. D. Mellinkoff, The Language of the Law ( "Sost^
> Bw""1!
/kWti Co
51.
0£.
Cit., at
331.
52. Lovell, History, supra, at 69.
53.
Harcham, supra, at 49•
54. Stuart E. Prall, The Agitation for Law Reform during_the JPuritan
Revolution I64O-l^TTThe Hague: MartinuT'Nijhoff, "1966) ,"p"~51.
[Hereinafter cited as Prall]
55. Prall, supra, at 52.
56. IbicL
57-
P.rallt supr_a, at 121.
58. Ibid.
59. George P. Costigan, "The Date and Authorship of the Statute of
Frauds," Harvard Law Review, XXVI (1913), 329-346; James Schouler,
"The Authorship of the Statute of Frauds," American Law Review,
XVIII (1884), 442; Joseph Brightman, "The Statute "of Frauds'","
Ohio J,aw Bulletin, LVIII (1946), 331.
60.
Costigan, sugra, at note 59'
25!
page 26
61. Ihicl.
62. See copy attached as Appendix.
63.
John E. Cribbet, Principles of the Lav/ of Property (Brooklyn:
Foundation Press, I962), p. 56.
64.
See appendix.
65.
See appendix.
66. See appendix.
67.
See appendix.
68. Martin W. Cook, "The Seventeenth Section of the Statute of Frauds
and Perjuries," Albany Law Journal, XXXVII (1888), p. 494.
69.
See appendix.
70. James F. Stephen and Frederick Pollock, "Section Seventeen of the
Statute of Frauds," Law Quarterly Review, I (1885), pp. 1-24,
For sinilar articles see George P. Costigan, "Judicial Legislation and the Statute of Frauds," Illinois Law Review, XIV
( 1 9 1 4 ) , p. 1; Hiram Lilienthal, ".Judicial'Repeal of the Statute
of Frauds," Harvard Law Review, IX (1899), p. 455.
71.
Stephen, supra, at 2.
72. Op. cit., at 4.
73-
Ibid.
74. Ibid.
75>
See note 26, supra, and accompanying text.
76.
Martin VJ. Cooke, "The Seventeenth Section of the Statute of Frauds
and Perjuries." Albany Law Journal, XXXVII (1888), p. 494.
77.
See appendix.
78.
See appendix.
79.
See appendix.
80.
v
81.
See appendix.
82.
See appendix.
ol. II, pp. 314-56.
26!
page 27
83.
See appendix.
84.
20 & 21 Vict., c. 77.
85.
Stephenson and 14archain, _supra,_ at 750.
86.
Sections Seven, Eight, and Wine of the Statute of Frauds were
repealed by the Lav; of Property Act of 1925, and were
re-enacted by Section 53 of that Act.
87.
Lawrence M. Friedman, A History of American Law (Hew York:
Simon and Schuster, 1973)*; pT 96.
88.
Friedman, supra, at 219.
89.
Op. cit., at 246.
90.
The Laws of Texas, compiled and arranged by H. P. N. Gammel,
Vol. if "(Austin: Gammel Eook Co., 1893), p. 28.
91.
Op. cit., at I67.
92.
Friedman, sup£a, at 219, note 36.
53.
Texas Probate Code, 1973 ed. (St. Paul:
Section 6b, p. 39*
West Pub. Co., 1973),
91. Windham V. Chetwynd, 1 Burr. 420 (1757).
95.
Joseph Story, Equity Jurisprudence, Vol. I (Boston:
Brown, & Co., 1834), p. 61.
96.
The early statute of frauds provisions referred to at note 90
have under gone many revisions, but are now contained much as
they began in the Texas Business and Commerce Code, Article 26.
113
Little,
page 28
BIBLIOGRAPHY"
Agnew, William Fisher. A Treatise, on the Statute of Frauds.
London: Wildy and Sons, I876.
Ames, James Barr. Lectures_on Legal History.
University Press, 1913-
Cambridge:
Harvard
Bacon, Francis. "Of Judicature." Es_s_ays and New Atlantis.
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Black, Henry Campbell. Law Dictionary.
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4th rev. ed.
St. Paul:
Blackstone, Sir William. Commentaries, on the Laws of England.
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Bogert, George Gleason. Handbook of the Jlav.' of Trusts.
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Brightman, Joseph. "The Statute of Frauds."
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4 vols.
St. Paul:
Ohio Law Bulletin,
Browne, Causten. A Treatise on the Statute of Frauds.
Boston: Little, Brown, and Co., 1880.
Conard, A. F. "Easements and the Statute of Frauds"
Law Quarterly, 15 (1941), 222-240.
4th ed.
Temp],e University
Costigan, George P. "The Date and Authorship of the Statute of Frauds."
Harvard Law Review, 26 (1913), 329-346.
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Illinois Law Review, 14 (1914), 1.
Cribbet, John E. Principles of the Law of Property.
Foundation Press,"1962.
Brooklyn:
Cook, Martin W. "The Seventeenth Section of the Statute of Frauds
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Digby, Kenelm Edward. An Introduction to the History of the Law of
Real Property. Oxford: Clarendon Press, 1875.
Dukeminier, Jesse and Stanley M. Johanson. Family Wealth Transactions.
Boston: Little, Brown, and Co., 1972.
Finch, Sir Henry.
1759.
Law, __or a_ Discoursehereof.
28!
London:
Henry Lintot,
Friedman, Lawrence M. A History of American_Law.
and Schuster, 1973-
New York:
Greenleaf, Simon. A^Treatise on the Law of Evidence.
Arno Press (reprint), 1972.
Simon
New York:
Hawkins, William. An Abridgment of the First J5art of Lord Cokejs
Institutes. Sth~ed7 ~ Dublin:TT'Watts," 1132.
Holdsworth, William; A Historyof English^Law. 15 vols,
Methuen & Co., 1937
Holmes, Oliver Wendell.
and Co., 19&3-
The Common Law.
Boston:
London:
Little, Brown,
Ireton, R. E. "Should We Abolish the Statute of Frauds?"
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The Laws of the Kings _of_ England_From Edmund to Henry_I.
ed. Cambridge: University Press, 1925.
United
A. J. Robert
Laws; of_TexaSj__ 1822-1897. Compiled and arranged by H. P. N, Gammel.
Austin; Gammel Book Co., I898.
Lilienthal, Hiram W. "Judicial Repeal of the Statute of Frauds"
HarvardJLaw Review, 9 (1896), 455-463.
Littleton, Sir Thomas. Treatise^of Tenures,
T. E. Tomlins ed.
New York: Russell FSussell" (reprintj, 1970.
Lovell, Colin Rhys. English Constitutional and Legal History.
New York: Oxford University Press," 1962,"
McKeehan, Joseph P. "The Statute of Frauds"
25 (I92.O), 63-71.
Haiti and, F. W.
Cambridge:
DickinsonJLaw Review,
Equity..
A. H. Chayton and J. Whittaker eds.
University Press, 1936.
Hellinkoff; David. TheLanguage^of_the_Law.
Brown, and Co., I963.
Boston:
Little,
Moynihan, Cornelious J. Introduction to the Law of Real Property.
St. Paul: West Publ, Co.~1962."
Plucknett, T. F. T. A Concise History of the Common Law. 4th ed.
London: Butter-.-orth & Co. , 1948.
Pollock, Sir Frederick and Frederic William Maitland. The_ History of
English Lsw. 2 vols. Cambridge: University Press, 1968.
31
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Prall, Stuart E. The Agitation for Lav? Reform During theJPuritan
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Reeves, John. History of the English Law,
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4 vols.
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American Law Review, 18 (1884), 442.
Sources of English Constitutional History. Carl Stephenson and
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1937.
Stephen, James F. and Frederick Pollock. "Section Seventeen of the
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Storke, F. P. "Collateral Effects of the Statute of Frauds."
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Story, Joseph. Commentaries on Equity Jurisprudence.
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Sugden, Sir Edward Burtenshaw.
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. A .Preliminary. Treatise on Evidence at _Common
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30!
Harvard
Anno Regni C a r o l i IT. Regis Anglia,
Scotia,
Francis?, & Hibernian, viccfinw fcptimo.
T the parliament begun at Weftminfter the eighth day
jTk of May, Anno Doir.. one thcufavd fix hundred fixlycnej in the thirteenth year cf the reign cf cir moji gracious
fever cign lord Charles, by the grace of Cod, of England,
Scotland, France and Ireland, King defender of the faith,
&c. and there continued by fever al'prorogations to the thirteenth day of October one thoufand fix hundred feventy-fve.
A n a f t f o r the better and m o r e enfy rebuilding the t o w n o f Northampton.
A court o f record CO!"ftituted. H o w to proceed, and what to determine
between landlord and tenant, 6:c. Defalcation or apportioning of resit.
B o d i e s politick. Definitive order to be fin:'.'!. P o w e r to make a decree
to charge, k c . an efiate, or to order a new or l o n g e r ellate to be made,
r.ouvithltanding i n f a n c y , coverture, $;c. I n f a n t s , Sec. Bifhops, &c. Corporations. T o m a k e rules and d i l u t i o n s in the f o r m s and orders cf
buildings. T o enlarge or alter ftrects, lanes, roads and palTages. T o
treat and compound for g r o u n d to be uf'cd f o r thole purpofes, In cu'.c
of refufal or diiability by i n f a n c y , & c . then to impanel a jury. T o make
alterations in the f o u n d a t i o n s , if they fee caui'e. S a t i s f a f t i o n to be
a w a r d e d . A jury to be impanelled in cafe of diiability. A provifo not
t o take away any g r o u n d , but only f o r enlargement ot the frreets. T h e
c o r n e r houfe taken a w a y . Several other houlcs to be taken away. It'
a n y perfon (hall not build within three years, then the court to clilpol'e
of the g r o u n d to liich perfon as will build. Satisfaction to be made so
t h e proprietor of the foil. I n cal'c of r e f u f a l a j u r y to be impanelled. All
houies to be covered with lead, llate or tile. Perilous trades prohibited.
P e n a l t y . T o appeal f r o m an order made by lefs than feven of liic
j u d g e s . A review of the decree. C o d s . A l l j u d g m e n t s and dee'rers
ilia]t be good both in law and equity. 'There lhall iie no writ of error
o r certiorari.
A regiiter-book for the orders to be kept by the mayor.
A l ! juliices of the county that inhabit in the town, (liall be jultices in
the town. A n y perfon that (hall build a houfe worth 300I. to luive
thereby his f r e e d o m . A l t perfons that e x e c u t e any power by this a f t to
t a k e an oath. T o plead the general ifl'ue.
Anno
Regni
C a r o l i I I . Regis
o
o Aiwlia,
o ' Scot he,
Francicc,
& Hibernicv,
viccfnno nono,
f\ T the parliament begun at Weftminfter the eighth dcy
i~.%. of May Anno Dom. one thoufand fix hundred finiyone. in the thirteenth year of the reign of our moji gracious
fovereign lord. Charles, by the grace of God, of England,
Scotland, France and Ireland, King, defender of the faith,
ccc, and from thence con tinned by fever al prorogations re
the fifteenth cf February one thoufand fix hundred fevcutv-/?x,
CM'.
C A ]'. 1.
An "ft for railing the I"11'!1 cl~ live hnmlrcd eifdiiv-fytr thoufaiid nine
liM:n!r'.-.l (evrmy ci";'nt jk>«.v5; two ;1>ii!in£S and n>o-):vu<c !..;'• I-pvi.y,
{;:: v!is Jpeccly bui! •'•'"j thi.-ty fta>-; of war. K X I ' .
C A P . II.
An aft for an additional excite upon beer, ale and otlicr bipicrs, for three
years. HX1'.
C A P . III.
An c.of for prevention cffrauds av.d
-perjuries.
7 7 0 1 1 prevention of nuv:y fraudulent profilces^ ',dub ere csmmsr- iRo!!.Abr.i.>.
J.' ly endeavoured to he upheld by perjury and ji' .-.-nation of perjury ; ( 2 ) be it c n a & c d by the K i n g ' s m o d excellent M a j e f t y ,
'by and with the advice unci content of the l o r d ; fpiritual and
temporal, and the c o m m o n s , in this prefonr parliament a f fembled, and by the authority of the f a m e , T i i u t iron) and 'after the f o u r and twentieth day of June, which shall be in the
year of our L o r d one ihoufand fix hundred feventy and fever),
all leafes, eftatcs, interefts of freehold, or terms of years, or Parol leafes
any uncertain intercft o f , in, to or our of any ineffuagcs, m a - and imertil
norSj lands, tenements or hereditaments, made or created by
'jJpJ1^, e
livery and feiftn only, or by parol, and not put in writing, and forcc oftfiatcs
ligr.cd by the parties fo making or creating tire fame, or their a t will only,
agents thereunto lawfully authorized by writing, lhali have the
forcc and effect of leafes or eftatcs at will o n l y , and (hail not
either in law or equity be deemed or taken to have any other
or greater forcc or e f f e c t ; any coniideration for making any
fuch parol leafes or eftatcs, or any former law or ufage, to the
contrary notwithftanding.
I I . E x c e p t nevertheiefs all leafes not exceeding the term of Except leafes
three years f r o m the making thereof, whereupon the rent re- potexecedferved to the landlord, during fuch term, fhall amount unto two
third parts at the lead of the full improved value of the thing ' ' '
demited.
I I I . A n d moreover, T h a t no leafes, eftates or interefts, cither No leafes or
of freehold, or terms of years, or any uncertain intercft, not states ot treebeing copyhold or cuftomary intercft, o f , in, to or out of any
m e f f u a g e s , manors, lands, tenements or hereditaments, (hall l u r V i - i u h b y
at any time after the (aid four and twentieth day of June be word,
afligncd, granted or furreudrcd, unlefs it be by deed or note in
writing, figncd by the party fo affigning, granting or furrendring
the f a m e , or their agents thereunto lawfully authorized by
writing, or by adt and operation of law.
I V . A n d be it further enafted by the authority aforefaid, Promifcs and
T h a t from and after the faid four and twentieth day of June no
?d':on fly!! be brought whereby to charge any executor or ad- " J 1 '
miniftrutor upon any fpccial prornife, to anfwer damages out
of his own eftate ; (?.) or whereby to charge the defendant
upon any fpccial prornife to anfwer for the debt, o 'fault or ruifcarriages f-t another penon ; ( 7 ) or to charge any parfon upon any . g !
(
sgrcetncnt made upon confidei ation of m a r r i a g e ; (,j.) or upon si-';,,,,
Pel 3
"
'
;uiyH3,
.|0()
/uino vlerfimo ucno C / R O M II. en;.
f iG-f,.
a
i
•
>!•••!. sic. any contrail or fa!c of hnc's, tenements or hereditaments, or
\ .-.ut.
iijiercO; in or concerning t h e m ; ( 5 ) 0 1 - upon any :»»»rccany
i'r- c- Ci J ' n, -' lU 1 hat
not to be performed within the fpace of one yc .r
v^tk. sGj. f r o m the making t h e r e o f ; ( 6 ) unlcfs the agreement upon which
f « c h action (hall be brought, or fome tnernnvuhm or note
thereof, (hall be in writing, and figned by the party to l.»
charged therewith, or fome other perfon thereunto by hi:n
lawfully authorized.
j\.vifcs of
V . A n d be it further cna&cd by the authority aforefaid, T h a t
lands 1 liall be from and, after the laid four and twentieth day of "June all doi:i '.Mating and v j f c s n i i c j bequeds of any lands or tenements, devifable either
t!u''U'o-''o'il- '°y f ° r c e ° f the Aate.te of wilis, or by this Aatute, or by force
\vitneif'.''
of the cuftom of Kent, or the cuftom of any borough, or any
31.ev. sfi.
other particular cuftorn, (hall be in writing, and figned by thlCarthc.Y 35. party fo devifing the fame, or by fome other perfon in his prei'di- v Smith tbnee and by his exnrefs directions, and fiiall be attelled and
in chan. iiiijV* fubferibed in the prefenee of the laid devifor by three or four
j ^54..
credible witncfTes, or elfe they (hall be utterly void and of none
en eel.
How the fame
V I . A n d moreover, no devife in writing of lands, tenements
liiail be revo- or hereditaments, nor any elaufe thereof, (hall at any time
after the faid four and twentieth day of June be revocable, othcrt - r i '-Jco.'^' v , ' ' l c than by fome other will or codicil in writing, or other
writing declaring the fame, cr by burning, canccIling, tearing
or obliterating the fame by the tefhtor himlelf, or in his prefenee and by his directions and confent ; ( 2 ) but all devifes
and bcqucfts of lands and tenements (hall remain and continue
in force, until the fame be burnt, cancelled, torn or obliterated
by the teftator, or his directions, in manner aforefaid, or unlcfs the fame be altered by fome other will or codicil in writing,
or other writing of the devifor, figned in the prefenee of three
or four vwtnefies, declaring the f a m e ; any former Jaw or ufage
to the contrary notwithstanding.
A!! declaraV I I . A n d be it further enabled by the authority aforefaid,
tiuin: or o ca- T h a t from and after the faid four and twentieth day of June all
i'nlVb" i n " ' ' declarations or creations of tsv.fts or confidences of any lands,
wririug.'
tenements or hereditaments, (hall be manifefted and proved by
j:\ftuiKtJh
feme writing finned by the party w h o is by law enabled to deAnn. c. 16. c j s r c f u c h truff, or by his laft will in writing, or elfe they lliall
'' 1 5 '
be utterly void and of none eftech
Trot*:? arifing,
V I I I . Provided always, T h a t where any conveyance lhall he
rram-serrctl or n -, ac ] e of any lands or tenements by which a truft or confidence
or ma
or re u t
bV'i'no'• c-r'ion
y
f ' by the implication or conftru&ion. of
r.f h'.v, are
l a w , or be transferred or extinguished by an adl or operation
excepted.
of l a w , then and in every fuch cafe fueli truft or confidence
Ih-;/:! V. Spillit |1 1S ]1 be of the like force and cfFeft as the fame would have been
j!.™^'
' if this Aatute had not been m a d e ; any thing, herein before
contained to the contrary notwithstanding. "
Aifi^nments
I X . A n d be it further enactrd T h a t all grants and afFgnott-uito'h.;;!b° rr.ents of any trufc orconiidcp.ce .hall likewife be in writing,
;•) ',v.-i'.::i;;.
figned by the party granting or afiigning the f.im?, or by fuch I a It
v/illordevifcj or elfe (hall likewife be utterly void and of none effect.
.X. And
:6'/(>.]
Anno vkcl'vr.o nor.o C a k o m jl. c.j.
X . A n d be it f u r t h e r enabled bvJ the authority
r ,
r
f
•
407
aforefaid, T.am-', .v.-.
1 1 ' ' ' '
T h a t f r o m a n d aft'.'.- d i e (aid f o u r n . i J twentieth day of 'J.//:c it
J.^/'f;'^'
.".tall and m a y be lawful f o r every iherifF or ether cli.eer to ^ . - • V ' k - c V
w h o m any writ or precept is or fhall be dire.-Vd, at the f.r.r
.«,....;.
of any perfon or perfon::, o f , for and upon any jut1.;-.menu
:lute or r e c o g n i s a n c e hereafter to be made or h a d , to d o , m a k e
and deliver execution unto the party in that behalf filing, of all
f u c h l a n d s , tenements, rectories, tithes, r e n t , and hereditam e n t s , as any other perfon or pcrfons be in any m a n n e r oi wife
feifed or pofielTed, or hereafter fhall he feifed or poffefied, in
trufl for h i m againfl: w h o m e x e c u t i o n is f o f n e d , like as the flu >'iff
or other oiliccr m i g h t or o u g h t to have done, it the raid party
a g a i n f l w h o m execution hereafter fhall be fo fried, had been
feifed of fuch l a n d s , tenements, rec'lories, tithe-;, rents o r
other hereditaments of f u c h eftate as they be feifed of in truft
for h i m at^thc t i m e of the laid execution fued ; ( a ) wliich lands, A-.u'. held free
llv in
t e n e m e n t s , rectories, tithes, rents and other hereditaments,
- ; .
by forcc and virtue of fuch execution, lliall accordingly be held X ' P - ' i I m w ° f
and enjoyed freed a n d difcharged f r o m all i n c u m b r a n c e s of f u c h iciiw: in truft.
perfon or perfons as fhall be fo feifed or poffeffed in trufl f o r t!;e
p e r f o n a g a i n f t w h o m f u c h execution fhall be fued ; ( 7 ) and if T n r t
be
a n y ctfiuy que trufl hereafter fhall die, leaving a t i n ft in fee- h-usds oVlll^rs
fimple to defccnd to his heir, there and in every fuch. cafe f u c h l Veni. •..a.
truft fhall be deemed and t a k e n , and is hereby declared to h e ,
a Acts by defcent, and the heir fliall be liable to and chargeable
w i t h the obligation of his a n c c f l o r s f o r and by reafon of f u c h
affets, as f u l l y and a m p l y as he m i g h t or ought to have b e e n ,
if the eftate in law had dcfcendcd to h i m in poflefiion in like
m a n n e r as the t r u l l ciel'ccnded ; any l a w , c u f t o m or ufage to
t h e contrary in any w i f e n o t w i t h f t a n d i n g .
X I . P r o v i d e d a l w a y s , T h a t no heir that fliall b e c o m e charge- N'o heir fliall
able by reafon of any cftatc or trufl: made affets in his hands by
tills l a w , fhall b y reafon of any kind of plea or confeftion of C 0 l j,„ c |, : „" rc _
the action, or fullering j u d g m e n t by wait dcdlre, or any other able of hi*°
m a t t e r , be chargeable to pay the c o n d e m n a t i o n out of his o w n o v v n ellate.
eflate \ (?.) but execution fhall be fued of the w h o l e eftate fo
m a d e aflets in his hands by defcent, in w h o f o hands foever it
fhall c o m e after the writ p u t c h a f c d , in the f a m e m a n n e r as it
is to be at and b y the c o m m o n l a w , w h e r e the heir at l a w
pleading a true plea, j u d g m e n t is prayed againft him thereupon ; any thing in this prcfent a i l contained to the contrary
notwithftanding.
X I I . A n d f o r the amendment: of the law in the particulars Eftatcs//.r
f o l l o w i n g ; (2) be it f u r t h e r enacted by the authority nforcfaid, {"'/'.''^'V.^i1'.1
T h a t f r o m henceforth
anyJ cftatc *fur nutcr Sic. fliall be .devifable 1 J.v.i , 1 . V •'?• O»
.
b y a will in w r i t i n g , figncd b y the party fo deviling the f a m e , or f.n.
by fome other perfon in his prcfcncc and by his exprefs directions, attcfted end ' " b f e r i b e d in the prelen.ee of the devifor b y
three or more wit:,cf.es ; ( 3 ) and if no fv.eh
'.• thereof be
^...n l v .
m a d e , the fame fliall be chargeable in the hand.: <;•! the heir, if : „ r , . ( s t ! . „ .
it. flv.dl come to h i m by reafon of a fpeciai occupancy as aulas by bcire ha:;.!.
D d 4.
def.-enr,
.•OB
Anno
VI^CFT'TIO
nrno C A R O L I
! I . C-%,
YTC.-'
A r! v.vc-.-e
'•:• " 1 1 0
'•'"> in cafe of bm'.s in fec-fimple ; (4) and in cafe there he r,>
fpecia! occupant thereoi, ii Avail go to the executors or ndminiftrators of the pat tv that hau the eftate thereof by virtue of the
lo'thVcxecu- S r n n r > ; 1 I K - fhall he'adi.'ts in their hands,
vers. Car'Jr.av 376. » Saik. 464.. 5 Vera. 719.
The day or
X [II. And whereas it hath bent found vrfchievous, that judrnunu
in the King's courts at Wcilniinfter do many times re/ate to the f:r:>
diy efthe term ivhereoj they are erJred, or to (he day cf the return
the eric inn!, or fling the hi/, and bind the defendants landsfrom thai
time, although in truth they were acknowledged or ftffererl and f.g'i; I
in the vaection-tini; after the Jaid term, zvbtrcby many times purdxfcrs find! hemfelves agrievrd:
iisninr; any
X I V . JJc it enabled by the authority aforefaid, T h a t from
arK 1
111 dTbe'^en
' after the faiu four and twentieth day of June any judge or
tred on the
officer of any of his M a j e A y ' s courts (1 JVejlmiuj/cr, that lhall
mar^eiH of fign any judgments, fhall at the figning of the fame, without fee
the roll. ^
for dcing the fame, fet down the day of the month and year of
doing, upon the paper book, docket or record which he
puforiii- fy-Y fhall fign ; which day of the. month and year (hall be alfo cn0'.;o 1. c".
tred upon the margent of the roll of the record where the laid
*'•
judgment fliall beentredA 1 ' - <bch
XV. A n d be it cnacled, T h a t fuch judgments as againft
P u r c l i a ' V r s bona fide f o r valuable com'idcration of lands, teneaiu r- iii dVre- ments or hereditaments to be charged thereby, fliall in conlilate to fuch
deration of law be judgments only from fuch time as they fliall
time only.
be fo figned, and (hall not relate to the firft day of the term'
whereof they areentrcd, or the day of the return of the original
or filing the bail ; any lass', ufage 01' courfe of any court to the
contrary notsvi th fla nd ing.
Writs of exX V I . A n d be it further enacfted by the authority aforefaid,
n ter
b=iid°H ' " ^o
'"rom
^
f ° u r ; i n c i twentieth day of June no
pray of roods v , r ' t
fac'wi o r other writ of execution fliall bind the probvi't Vront the' pcrty of the goods againfl: w h o m fuc.h writ of execution is fued
time P? their forth, but from the time that fuch writ fhall be delivered to the
lheriff, under-flieril'f or coroners, to be executed : and for the
j s-ip 1 A j
better manifeftation of the fain time, the lheriff, undcr-fherilT
Can!>tw"4.15. and coroners, their deputies and agents, fliall upon the receipt
i Mi;d. lis', of any fuch writ, (without fee for doing the fame) cndorle upon
i k - . b . i<7.
the back thereof the day of the month or year whereon he or
„ ( r
they received the fame.
X V I I . A n d be it further ena&etl by the authority aforefaid,
for tea pounds T h a t from and after the faid four and twentieth day of June
' r more.
110 contrael: for the falo of any goods, wares and merchandizes,
:il
'-an.Jiirt. f o r t | l e p r ; c e o f t e n pounds flerling or upwards, fliall be allowed
39' •• »S' to be good, except the buyer fhall accept part of the goods foible!, and actually receive the fame, or give iomething in earned
to hind the .bargain, or in parr of payment, or that fome note or
tmn'ir.'.ndnrr. in writing of the faid bargain be made and figned
by the parlies to be charged by feeh contrary or their agent?
thereunto lawfully authorized,
XVIII. And
Anno v k e f h i c nor;o CAROLI II. c . 3 .
400
X V I I I . And be it further ma-fhd by the authority aforesaid, The day of
That the dayJ of the month and year of the enrolment of tin.
«'»'olii»nir
,
' • ,
- ,
,, ol reei•.' !!recognizances than be let down in the margent ot Hie r o i l ; n , , l i j | s
where the faid recognizances are enrolled ; (?.} ;.:id th.\: from d-i down, and
and after the faid four and twentieth day of '/'</,•/:• no reeognihulic
•zance (hall bind any lands, tenements or hereditaments in the
}'"'':
hands of any purchafer bona fide and for valuable eontiderafion, )•'.';''
but from the time of fuch enrolment; -any law, ulagc or courie.
only,
of any court to the contrary in any wife notwithstanding.
X I X . s/nd fir prevention of fraudulent prettier; in jetting up Nuncupative
nuneupatine wii/s, which have been the oceafion e-J muthpenny
; (•?.)
be .it cnadled bv the authority aforefaid, T h a r Iror.i and alter
the aforefaid four and twentieth day of June no nuncupative
will (hall be good, where the eftate thereby bequeathed (hall e x ceed the value of thirty pounds, that is not proved by the oaths
of three witnefles (at the leaft) that were prefent at the making
thereof; ( ? ) nor unlcfs it he proved that the tedalor at the lime E.rpMneAly
of pronouncing the fame, did bid the perfons prefent, or feme + -Vnn. c. 16.
of them, bear witnefs, that fuch was his will, or to that eftcct ; '*
(4) nor tmlefs fuch nuncupative will were made in the time of
the lad iicknefs of the dcceafed, and in the houfe of his or her
habitation or dwelling, or where he or flic hath, been refident
for the fpace of ten days or more next before the making of
fuch will, exccpt where fuch perfon was furpriy.cd or taken lick.,
being from his own home, and died before he returned to the
place of his or her dwelling.
X X . And be it further enacted, T h a t after fix months paded
after the fpeaking of the pretended teftamcntary words, no
teftimony (hall be received to prove any will nuncupative, except the fuid teftimony, or the fubftance thereof, were committed to writing within iix days after the making of the faid will.
X X I . And be it further enacted, T h a t no letters teftamen- p,. 0 i, ;if£S OTtary or probate of any nuncupative will (hall pals the feal of any mmaipauvc
court, till fourteen days at the leaft after the deeeale of the lef- wills,
tutor be fully expired; ( 2 ) nor lhall any nuncupative will he at
any time received ro be proved, unlefs procefs have (irll il'fued
to call in the widow, or next of kindred to the deeeafed, to the
end they may conteft the fame, if they pleafe.
X X I I . And be it further enaelcd, T h a t no will in writing Raymond3;.y.
concerning any goods or chattels, or pcrfona.I etlale, lhall be repealed, nor (hall any claufe, devil'e or beij'ueft therein, be altered
or changed by any words, or will by word of mouth only, except the fame be in the life of the tenator committed to writing,
and after the writing thereof read unto the teflator, and allowed
by him, and proved to be fo done by three witnelles at the leaft.
' X X I I I . Provided always, T h a t notwithstanding this ae;. any soldier- and
foldicr being in aiftual miiitary fcrviee, or any mariner or fc.i- mariners-.viils
man being at fea, may difpoie of his move.-'Yi:.?, wages and per- excep'ed.
ion a' eftate, as lie or they might have done before the making
of this a(51.
X X I V . And it is hereby declared, T h a t nothing in this nT The juiKd'.
(ion i>;' court,
laved.
^
•>"°
Anno vlcclnr.o nono C A R O L I II. c.4,5.'
[10
fnall e x t e n d t o a l t e r o r c h a n g e t h e j u r i s d i & i o n o r r i g h t o f p r c l v
c f wills c o n c e r n i n g p c r f o n a ) c t b . r e s , b u t t h a t t h e p r c r ; . - ^ - . ,
c o u r t o f t h e a r e h b i f h o p o f Canterlary,
a n d o t h e r ecckf.V,'......
c o u r t s , a n d o t h e r c o u r t s h a v i n g r i g h t t o t h e p n . ' v.e
j'L,
w i l l s , fhall r e t a i n t h e f a m e r i g h t a n d p o w e r a s t h e y had before,
i n e v e r ) ' r e l p e c t ; fubjeel n e v e r r h c l c f s t o t h e r u l e s a n d ti.-ccil.,-;
o f this a c t .
si & s j Car.
X X V .
A n d f o r t h e e x p l a i n i n g o n e a f t o f t h i s prefent p:ir-
-• c. 10.
liamcnt, intituled, An act for the Latter fitting
make'diitri"- 10
'oution ct'the
pei fonal
thdr'vtfvcs
t Mod, 5 - 1 .
( a ) b e it d e c l a r e d b y t h e a u t h o r i t y a f o r e f a i d , T h a t neither the
!aid
a c t , n o r a n y t h i n g t h e r e i n c o n t a i n e d , lhall be confirmed to .
e x t e n d t o t h e e f t a t c s o f f e m e c o v e r t s t h a t fhall die inteltate, hut
t h a t t h e i r h u f b a n d s m a y d e m a n d a n d h a v e a d m i n i f t r a t i o n t1'
t ~ i e n " r i o ' l t s ' c r e d i t s , a n d o t h e r p e r f o n a l c f t a t e s , a n d r e c o v e r and
e n j o y t b e f a m e , a s t h e y m i g h t h i v e d o n e b e f o r e t h e m a k i n g of
t h e faid a c h
Made perpetually
1 Jac. 2. c. 1 7 . f i 5 .
cf inteflcus
tfla-::;
C A P." I V .
A n a f t f o r e r c f t i n g a judicature to determine differences touching houft;
,
burnt and deinoiifhed by tho late dreadful fire in South-,vark.
W h orti-.il1 be commiflioners. T h e i r power and m a n n e r of proceeding.
T h e i r decrees (hall be binding and conclufive, T h e i r fummons of p'u .
t i t s and witr.eil'es how to be g r a n t e d . A n d how to be ferved. b'-o 71
default tlicy may proceed to determine the controverfy. If the pericr.i
cannot be f o u n d to be f u m m o n c d , no proceedings (hall be tlureo.i ,.':!
after fix months. T o f t s of fuch as will not begin to build within r,u,
years, & c . may be difpofed of to fuch as will build. A n d iatisfactien
awarded to the proprietors. Or afTellcd by a jury where the parties v,i:l
r.ot or cannot accept the fame. Decrees made by fewer than (even, sr.-l
excepted to within thirty days, may be reverfed or altered by any (even
or m o r e ,
Such appeals r o b e fmiflicd within fix months. Such orders and decrees M l be effectual, and conclude all perfons. A n d not
reverfed by writ o f c r r o r or artiorari. Such judgments and decrees how
to be entred. T h e books to be kept by the town clerk of London.
T h e powers given by this a f t to continue f o r three years. A n oath to
be taken by the judge., of the coe.it. Encroachments and purpv-jlbua;
upon the high itreet, how to be regulated. A provifo f o r ItuUbcard;
n o t w i t h f t a n d i n g . Differences concerning party-walls and other walk,
and lights, palfages, & c . how to be mediated. T h e court fhall order
what fees their officers fin!! take. A f f i d a v i t s of ferving procefs how to
b e t a k e n . T h e penalty o f committing perjury in the f a m e . Decrees
m a y be figned by the fhrvivorr, of thole that made them. L e a lis and
agreements fince the fire fhall be of force, and m a y be corroborated by
decree of the cou: t. Perfons inlcreftcd (hall not have votes. Dauiagrs
m a y be recovered at law f o r non-performance of r.ny decrcc, or a hill
in equity maintained for a performance in fprcie. Perfons not abating
unnoyances may be i n d i f t c a . A n action at law given for money decreed, the decree may be given in evidence. Perfons profecuteo may
plead the genera! itlue, &cc. S o u t h w a r k market fiiall be kept where it
anciently has been.
C A P . V.
An all for taking affidavits in the country, /•? be made ufe cf
in the courts cf King's bench, common fleas and exchequer.
T ? O R
ct
vi matters and things relating to bis Mayfly and his revenue, as m a
c:i.\
i£76.]
Aono vLr'lnvi r.or.o O.Y. om IT. i\/;V
r/.'ar matters and caufes what fever
ill or a<") of the courts ofc-refr.d,
hgs of <•'• in the J.nr.
.fj'i"
dtp,v.,.'.';\? /. /.• depe::d:>;~ <••
ccv-<t* ttueervi'g the prcceeJ-
[I. i!e it cnieVed by the King's nioO ev :e"cr.' ni::jt 1". by Wiwr.nv imam! with rhe -.cEvicc nut! confent of the lore's fpirituu! and tem- i w c r jivyiims
i-.orai, and commons, in this nre.cnt parliament nili.-i'nblcd, and bycouiiriilioii
by die authority of tb.c fame, T h a t the ehicf juf.icc, and other
"'*
tlic juflice.-; of the faid court of King's bench for the time b"ing,
or any two of their,, whereof the chicf juflice for -.lie time bvin^
to be one for the faid court of King's bench ; (?.) and the chief
juflice of thcconnr.cn picas, and the reft offliejulli-.es there lbr
the time being, or any two of them, whereof the civ •fjuuiee of
the fame court to be one for the faid court of common pleas;
( ? ) and alio the lord treafurer, chancellor and barons of the
court of exchequer for the time being, or any two or more of
them, whereof the lot'd treafurer, chancclJor, or lord chief baron for the time being, to be one for the faid court of exchequer; ( 4 ) fliall and may by one or more commiilion or cornmillions under the feveral foals of the faid rcfpe5tive courts, from
time to time as need fliall require, impewer what and as many
perfons as they fliall think lit and necefiary, in all and every :!ic
feveral (hires and counties within the kingdom of England and
dominion of
and town of Berwick upon Tvecc.l, to take » Sal!:.
and receive all and every fuch affidavit and affidavits as any perfon or perfons Avail be willing and defirous to make before any
of the perfons fo impovvered in or concerning any caufe, matter
or thing depending, or hereafter to be depending, or any wife
concerning any of the proceedings to be in the laid refpCiRive
courts, as.matters of chancery in extraordinary do ufe to d o ;
(5) and that it fliall and may be lawful for any judge of aftize .T.»<!gcs ofafin his circuit to take and receive any affidavit or affidavits as
j" tll " r _
any perfon or perfons fliall be willing and defirous to make be- i : i 'ic c .*iivits
fore him, in or concerning any caufe, matter or thing depend- ccncvniin:;
ing, or hereafter to be depending, or in any wife concerning matter* <icany proceedings to be had in the faid courts of King's bench,
common plea:, and exchequer, or any of t h e m ; ( 6 ) which faid hoTivh'.'^mn 35 davits taken as aforefaid fliall be filed in their feveral and re- wonpii-.rnml
fpedlive offices of the faid courts the fame do concern, and then exchequer,
be read and made ufe of in the faid courts, to all intents and
purpofes as other affidavits taken in the laid courts now are,
and that ail and every affidavit and affidavits taken as aforefaid,
fhall be of the fame forcc as affidavits taken in the faid rcipeiftive
courts now.are ; ( 7 ) and all and every perfon and perfons for- The penalty
fwear'mg him, her or them ft Ives in fuch affidavit or affidavits, [''VlrUp-r
lhr.ll incur and be liable unto the fame penalties', as i l'fuch uifi- j. u-.-- iu'VuV-k
d : r . o r affidavits had been made and taken in open ccu."..
:;i;i.l.',v:t>.
III. Provided, T h a t for the taking of cvorv fu.li abidnvir. the.,.,
r
,.
.
,
,
, .
1
.•
, , . , . .
I in- 1111 "on
r : " c n or perions fo impowei'cd and taking the lame, fna., tor 1.0 l;>«..1):
doing receive oniy the f u m o r fee o' : twelve pcnce, ami no more, lame Viae it.
b:fidcs the duty nr.".h' • 1 his Mnjef:; tor the
wb-'r'-.
cry. i—.s• 1 fluty
t to his Mr.ie:.-.
J J ...an. not be paid
1 lo the laid O'.niir.hfa.'Uer,•
; ell!'-.
in
W