AN ESSAY ON THE STATUTE OF 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Because the English Statute of Frauds, as it was originally passed, has been repealed and supplanted, it is primarily of historical significance now.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 necessary.This 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 Often this involved the oral evidence of witnesses. 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. It might new be called a piece of remedial legislation. 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. The jury system was beset by the same problems then as now. 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 the2 2portreev e 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 contractuap /l remedies in English law were debt, detinue, account, and covenant."
"By far the commonest origin of an action of debt is a loan of 25 money." 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 27 compurgation to decide the matter.
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
29 of debt, and it appears that the tv;o forms were originally one.
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. But not many merchants or traders used a seal in their business. In fact, it was not until the latter of.par t 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. It is cbvic.-s that the opportunity for fraud presented itself. 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 i p 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 Q , and its existence was a matter of pleading and not of proof. If the charter was not denied- the plaintiff took
judgment. 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 mil in accordance with that Act, in that it required a written instrument.
But not until the Statute of Frauds were testators required to sign L V 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 Saxon5 0wil l 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.pi n 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. No agreement
was possible. "In November, 1655r a judge of the High Court of
Admiralty and the Court for the Probate of Wills published a pamphlet. . . 57 calling for a moderate approach to the question of legal reform."
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. T'heir findings do not always agree. 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 Lord 60 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, 1677. 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 Commons.If 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. It was characteristic
103! 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. Only copyhold tenure and customary interest are exempted. 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 Nine-
teen 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 courtr>Qs have, they shall nonetheless be subject to the Statute of Frauds. ~
In the Nineteenth Century, probate jurisdiction was finally wreste0d h from the church courts and bestowed upon a separate Probate Court, which jurisdiction was later consolidated with that of other special courts 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 Sectio90 n 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. But then it departs from the common law. 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.9 2 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 Codes96 , Uniform Trust 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," Harvard Law Review, V (1891-92), 302.
9. Ibid.
10. Ibid.
11. Plucknett, supra, at 160.
12. Holdsworth, supra, at 131.
13. Plucknett, supra, at 611. See also Colin Rhys Lovell, English Constitutional^ and Legal History (New York: Oxford University PrTsV^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: Harvard University Press," T9T3") , p. 122.
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]
29* PlucJqiett, sunra.j_ at 326.
30. Oliver Wendell Holmes, The_Comrn_onJ^aw (Boston: Little, Brown, & Co., 1963), pp. 213 and 144-46".
31. Plucknett, supra, at 326.
32. Black's, supra, at 35.
33. Ames, Lectures, supra, at 122.
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 Legis- lation and the Statute of Frauds," Illinois Law Review, XIV (1914), 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. vol. II, pp. 314-56.
81. See appendix.
82. See appendix.
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: West Pub. Co., 1973), Section 6b, p. 39*
91. Windham V. Chetwynd, 1 Burr. 420 (1757).
95. Joseph Story, Equity Jurisprudence, Vol. I (Boston: Little, 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 page 28
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Littleton, Sir Thomas. Treatise^of Tenures, T. E. Tomlins ed. New York: Russell FSussell" (reprintj, 1970.
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Story, Joseph. Commentaries on Equity Jurisprudence. 2 vols. Boston: Milliard, Gray, & Co., I836.
Sugden, Sir Edward Burtenshaw. A_Treatis_e _of the Lav? of Property. London: S. Sweet, 1849.
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30! Anno Regni Caroli 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 fixly- cnej 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 thir- teenth day of October one thoufand fix hundred feventy-fve.
An aft for the better and more enfy rebuilding the town of North- ampton. A court of record CO!"ftituted. How to proceed, and what to determine between landlord and tenant, 6:c. Defalcation or apportioning of resit. Bodies politick. Definitive order to be fin:'.'!. Power to make a decree to charge, kc. an efiate, or to order a new or longer ellate to be made, r.ouvithltanding infancy, coverture, $;c. Infants, Sec. Bifhops, &c. Cor- porations. To make rules and dilutions in the forms and orders cf buildings. To enlarge or alter ftrects, lanes, roads and palTages. To treat and compound for ground to be uf'cd for thole purpofes, In cu'.c of refufal or diiability by infancy, &c. then to impanel a jury. To make alterations in the foundations, if they fee caui'e. Satisfaftion to be awarded. A jury to be impanelled in cafe of diiability. A provifo not to take away any ground, but only for enlargement ot the frreets. The corner houfe taken away. Several other houlcs to be taken away. It' any perfon (hall not build within three years, then the court to clilpol'e of the ground to liich perfon as will build. Satisfaction to be made so the proprietor of the foil. In cal'c of refufal a jury to be impanelled. All houies to be covered with lead, llate or tile. Perilous trades prohibited. Penalty. To appeal from an order made by lefs than feven of liic judges. A review of the decree. Cods. All judgments and dee'rers ilia]t be good both in law and equity. 'There lhall iie no writ of error or certiorari. A regiiter-book for the orders to be kept by the mayor. Al! juliices of the county that inhabit in the town, (liall be jultices in the town. Any perfon that (hall build a houfe worth 300I. to luive thereby his freedom. Alt perfons that execute any power by this aft to take an oath. To plead the general ifl'ue.
Anno Regnio Caroli II. Regiso 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 finiy- one. 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 fevcu- tv-/?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
Ann. c. 16. cjsrc fuch truff, or by his laft will in writing, or elfe they lliall '' 15' be utterly void and of none eftech Trot*:? arifing, VIII. Provided always, That where any conveyance lhall he
rram-serrctl or n-,ac]e of any lands or tenements by which a truft or confidence bV'i'no'• c-r'ion or may or refu't by the implication or conftru&ion. of r.f h'.v, are law, or be transferred or extinguished by an adl or operation excepted. of law, then and in every fuch cafe fueli truft or confidence
Ih-;/:! V. Spillit |11S]1 be of the like force and cfFeft as the fame would have been j!.™^' ' if this Aatute had not been made; any thing, herein before contained to the contrary notwithstanding. " Aifi^nments IX. And be it further enactrd That all grants and afFgn- ott-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 Cakom jl. c.j. 407
X. And be it further enable d bvJ the authority aforefaid, T.am-', .v.-. r , r f • 11'''' That from and aft'.'.- die (aid four n.iJ twentieth day of 'J.//:c it J.^/'f;'^' .".tall and may be lawful for every iherifF or ether cli.eer to ^.-•V'k-cV whom any writ or precept is or fhall be dire.-Vd, at the f.r.r .«,....;. of any perfon or perfon::, of, for and upon any jut1.;-.menu :- lute or recognisance hereafter to be made or had, to do, make and deliver execution unto the party in that behalf filing, of all fuch lands, tenements, rectories, tithes, rent, and heredita- ments, as any other perfon or pcrfons be in any manner oi wife feifed or pofielTed, or hereafter fhall he feifed or poffefied, in trufl for him againfl: whom execution is fofned, like as the flu >'iff or other oiliccr might or ought to have done, it the raid party againfl whom execution hereafter fhall be fo fried, had been feifed of fuch lands, tenements, rec'lories, tithe-;, rents or other hereditaments of fuch eftate as they be feifed of in truft for him at^thc time of the laid execution fued ; (a) wliich lands, A-.u'. held free tenements, rectories, tithes, rents and other hereditaments, llv-in; . by forcc and virtue of fuch execution, lliall accordingly be held X'P-'iImw °f and enjoyed freed and difcharged from all incumbrances of fuch iciiw: in truft. perfon or perfons as fhall be fo feifed or poffeffed in trufl for t!;e perfon againft whom fuch execution fhall be fued ; (7) and if Tnrt be any ctfiuy que trufl hereafter fhall die, leaving a tin ft in fee- h-usds oVlll^rs fimple to defccnd to his heir, there and in every fuch. cafe fuch l Veni. •..a. truft fhall be deemed and taken, and is hereby declared to he, a Acts by defcent, and the heir fliall be liable to and chargeable with the obligation of his anccflors for and by reafon of fuch affets, as fully and amply as he might or ought to have been, if the eftate in law had dcfcendcd to him in poflefiion in like manner as the trull ciel'ccnded ; any law, cuftom or ufage to the contrary in any wife notwithftanding. XI. Provided always, That no heir that fliall become charge- N'o heir fliall able by reafon of any cftatc or trufl: made affets in his hands by tills law, fhall by reafon of any kind of plea or confeftion of C0lj,„ c|,:„"rc_ the action, or fullering judgment by wait dcdlre, or any other able of hi*° matter, be chargeable to pay the condemnation out of his own ovvn ellate. eflate \ (?.) but execution fhall be fued of the whole eftate fo made aflets in his hands by defcent, in whofo hands foever it fhall come after the writ putchafcd, in the fame manner as it is to be at and by the common law, where the heir at law pleading a true plea, judgment is prayed againft him there- upon ; any thing in this prcfent ail contained to the contrary notwithftanding. XII. And for the amendment: of the law in the particulars Eftatcs//.r following ; (2) be it further enacted by the authority nforcfaid, {"'/'.''^'V.^i1'.1
That from hencefort. h anyJ cftatc *fur nutcr Sic. fliall be .devifabl e 1 J.v.i ,1. V •' ? • O» by a will in writing, figncd by the party fo deviling the fame, or f.n. by fome other perfon in his prcfcncc and by his exprefs direc- tions, attcfted end '"bferibed in the prelen.ee of the devifor by three or more wit:,cf.es ; (3) and if no fv.eh '.• thereof be ^...n lv. made, the fame fliall be chargeable in the hand.: <;•! the heir, if :„r,.(st!.„. it. flv.dl come to him by reafon of a fpeciai occupancy as aulas by bcire ha:;.!. D d 4. def.-enr, .•OB Anno VI^CFT'TIO nrno CAROLI !I. C-%, YTC.-' A r! v.vc-.-e '•'"> in cafe of bm'.s in fec-fimple ; (4) and in cafe there he r,> '•:• " 110 fpecia! occupant thereoi, ii Avail go to the executors or ndmini- ftrators of the pat tv that hau the eftate thereof by virtue of the lo'thVcxecu- Srnnr> ;1IK- fhall he'adi.'ts in their hands, vers. Car'Jr.av 376. » Saik. 464.. 5 Vera. 719. 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 lands from 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 purdx- The day or fcrs find! hemfelves agrievrd: iisninr; any XIV. JJc it enabled by the authority aforefaid, That from 111 dTbe'^en arK'1 after the faiu four and twentieth day of June any judge or tred on the officer of any of his MajeAy'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 cn- 0'.;o 1. c". tred upon the margent of the roll of the record where the laid *'• judgment fliall beentred- A1'-
„ ( r they received the fame. XVII. And be it further ena&etl by the authority aforefaid, for tea pounds That 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. for t|le pr;ce often pounds flerling or upwards, fliall be allowed 39' •• »S' to be good, except the buyer fhall accept part of the goods fo- ible!, 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 vkefhic nor;o CAROLI II. c.3. 400 XVIII. And be it further ma-fhd by the authority aforesaid, The day of That the day of the month and year of the enrolment of tin. «'»'olii»nir J , ' • , - , ,, ol reei•.' !!- recognizances than be let down in the margent ot Hie roil;n,,lij | s where the faid recognizances are enrolled ; (?.} ;.:id th.\: from d-i down, and and after the faid four and twentieth day of '/';' court, laved. •>"° Anno vlcclnr.o nono CAROLI II. c.4,5.' [10 fnall extend to alter or change the jurisdi&ion or right of prcl v cf wills concerning pcrfona) ctb.res, but that the prcr;.-^-., court of the arehbifhop of Canterlary, and other ecckf.V,'......
courts, and other courts having right to the pn.' v.e j'L, wills, fhall retain the fame right and power as they had before, in ever)' relpect; fubjeel neverrhclcfs to the rules and ti.-ccil.,-; of this act. si &sj Car. XXV. And for the explaining one aft of this prefent p:ir- -• c. 10. liamcnt, intituled, An act for the Latter fitting cf inteflcus tfla-::; (a) be it declared by the authority aforefaid, That neither the make'diitri"-10 !aid act, nor any thing therein contained, lhall be confirmed to . 'oution ct'the extend totheeftatcs of feme coverts that fhall die inteltate, hut pei fonal that their hufbands may demand and have adminiftration t1' thdr'vtfvcs t~ien" rio'lts' credits, and other perfonal cftates, and recover and t Mod, 5-1. enjoy tbe fame, as they might hive done before the making of the faid ach Made perpetually 1 Jac. 2. c. 17.fi 5. C A P." IV. An aft for ercfting a judicature to determine differences touching houft; , burnt and deinoiifhed by tho late dreadful fire in South-,vark. Who rti-.il 1 be commiflioners. Their power and manner of proceeding. Their decrees (hall be binding and conclufive, Their fummons of p'u . tits and witr.eil'es how to be granted. And how to be ferved. b'-o71 default tlicy may proceed to determine the controverfy. If the pericr.i cannot be found to be fummoncd, no proceedings (hall be tlureo.i ,.':! after fix months. Tofts of fuch as will not begin to build within r,u, years, &c. may be difpofed of to fuch as will build. And 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 more, Such appeals robe fmiflicd within fix months. Such or- ders and decrees Ml be effectual, and conclude all perfons. And not reverfed by writ ofcrror or artiorari. Such judgments and decrees how to be entred. The books to be kept by the town clerk of London. The powers given by this aft to continue for three years. An 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 for ItuUbcard; notwithftanding. Differences concerning party-walls and other walk, and lights, palfages, &c. how to be mediated. The court fhall order what fees their officers fin!! take. Affidavits of ferving procefs how to betaken. The penalty of committing perjury in the fame. Decrees may be figned by the fhrvivorr, of thole that made them. Lea lis and agreements fince the fire fhall be of force, and may be corroborated by decree of the cou: t. Perfons inlcreftcd (hall not have votes. Dauiagrs may be recovered at law for non-performance of r.ny decrcc, or a hill in equity maintained for a performance in fprcie. Perfons not abating unnoyances may be indiftca. An action at law given for money de- creed, the decree may be given in evidence. Perfons profecuteo may plead the genera! itlue, &cc. Southwark market fiiall be kept where it anciently has been. CAP. 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?OR
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 .fj'i" r/.'ar matters and caufes what fever dtp,v.,.'.';\? /. /.• depe::d:>;~ <•• ill or a<") of the courts ofc-refr.d, ccv-
III. Provided, That for the taking of cvorv fu.li abidnvir. the.,., r ,. . , , , . 1 .• ,,.,.. I in- 1111 "on r :"cn or perions fo impowei'cd and taking the lame, fna., tor 1.0 l;>«..1): doing receive oniy the fumor 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 - flutty to his Mr.ie:.-J J. ...an. not be pai1 d lo the laid O'.niir.hfa.'Uer,• ; ell!'-.