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 Because the English Statute of Frauds, as it was originally passed, has been repealed and supplanted, it is primarily of historical significance now.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. New York: Walter J. Black, 1942. Black, Henry Campbell. Law Dictionary. West Pub. Co., 1968."" 4th rev. ed. St. Paul: Blackstone, Sir William. Commentaries, on the Laws of England. Oxford: Clarendon Pr'ess'7 17*69. Bogert, George Gleason. Handbook of the Jlav.' of Trusts. West Pub. Co., 1921/"" ~~ Brightman, Joseph. "The Statute of Frauds." 58 (1946), 331. 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. "Judicial Legislation and the Statute of Frauds" 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 and Perjuries" Albany_^WjJonrnalT 37 (1888), 494. 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?" States Law Review 12 (1938) , 195-20/+. 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 page 30 Prall, Stuart E. The Agitation for Lav? Reform During theJPuritan Revolution I6l0-'l6~60. "The Hague": Martinus Nijhoff, "19557' Reeves, John. History of the English Law, E. Brooke,"1787» 4 vols. 2d ed. Roberts, William. A Treatise on the Statute of Frauds. I. Riley & Co.", 1807 London: London: Schouler, James. "The Authorship of the Statute of Frauds" American Law Review, 18 (1884), 442. Sources of English Constitutional History. Carl Stephenson and Frederick George Marcham eds. New York: Harper and Row, 1937. Stephen, James F. and Frederick Pollock. "Section Seventeen of the Statute of Frauds" Law Quarterly Review, 1 (1885), 1-24. Storke, F. P. "Collateral Effects of the Statute of Frauds." Rocky Mountain Law Review, 13 (1941), 233-241. Story, Joseph. Commentaries on Equity Jurisprudence. Boston: Milliard, Gray, & Co., I836. 2 vols. Sugden, Sir Edward Burtenshaw. London: S. Sweet, 1849. A_Treatis_e _of the Lav? of Property. Texas Probate. Code. West Pub. Co., 1973. St. Paul: Thayer, James Bradley. "The Jury and its Development" Law Review, 5 (1891-92), 302. Law. Boston: Harvard . A .Preliminary. Treatise on Evidence at _Common Little, Brown, and Co., 1898. Vinogradoff, Paul. "Transfer of Land in Old English Law." Lav; Review, 20 (1906) , 532-548. 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