1833.

Doɛ dem.
SMITH
against
BIRD.

same unto my sister, Dame Mary Eyre, during the term of her natural life; and from and immediately after her decease, I devise and bequeath all my said real estates, and also all my said leasehold estates, unto and to the use of, and for the benefit of the said J. W. Smith and S. Trafford, their heirs, executors, administrators, and assigns, equally to be divided between them, share and share alike, as tenants in common, and not as joint tenants."

In 1816 Mrs. Warren died, being then, and having been, at the dates of her will and codicil, in possession of one undivided moiety of the several estates mentioned in the first and second counts of the declaration. She was also seised in fee of considerable freehold estates which passed by her will and codicil. Dame Mary Eyre died on the 18th of November 1825, whereupon Sir J. W. Smith, the lessor of the plaintiff, claimed to be entitled to one undivided fourth part of the said several messuages and lands in the first and second counts of the declaration mentioned, as devisee under the said codicil of Mrs. Warren. This case Trinity term 1833 (a).

was argued in

Preston for the lessor of the plaintiff. There are two parts of the case: one, as to the entailed lands; and the other, as to the lands not entailed. First, as to the entailed lands, it may be contended that a customary recovery of copyhold cannot be suffered by attorney; but, assuming that the recovery is in that respect irregular, it is not absolutely void, but voidable only by application to the Lord's Court, 2 Watkins on Copy

(a) Before Denman C. J., Littledale, Parke, and Patteson Js. June 4th.

holds,

holds, 24, 25.; Ash v. Rogle and the Dean and Chapter of
St. Paul's (a); Viner's Abr. tit. False Judgment B. pl. 10.
On principle the objection cannot be tenable, because
otherwise a common recovery, except by special custom,
could not be suffered in any case where the parties
were so circumstanced, from ill health or otherwise,
that they could not appear personally in Court. At
common law, a person under such circumstances might
appear per responsalem, Bracton, tit. De Essoniis,
c. 14. fol. 361. In Viner's Abr. tit. Recovery (A. a.),
"reversed, falsified, or stayed, for what and how,"
there is no instance in which it was merely objected
to a recovery, that it was suffered by attorney. In
Wymer v. Page (b) Lord Ellenborough was of opinion,
that an attorney might be appointed for suffering a
common recovery of copyhold lands, as of common
right, unless there were an express custom to the
contrary. [Parke J. There is sufficient evidence of a
custom here to appoint an attorney, if that be neces-
sary; the only question is, whether Mrs. Warren, a
feme covert, could appoint an attorney.] The stat.
47 G. 3. sess. 2. c. 8. enables femes covert to appoint an
attorney for the purpose of surrendering a copyhold,
of which a common recovery is proposed to be suffered.
But the recovery in this case was suffered before that
statute. The 59 G. 3. c. 80. was passed to enable femes
covert to appoint an attorney to appear for them as
tenants to the plaint or writ, or as vouchees, in courts
of ancient demesne, but that they might have done at
common law, as appears from the passage already cited
from Bracton. The general rule is, that every person

(a) Vernon, 367. Shower's P. C. 67. 1 Eq. Ca. Abr. 119.
(b) 1 Stark. N. P. C. 9.

1833.

Dox dem.
SMITH

against

BIRD.

1833.

Dox dem.
SMITH
against
BIRD.

may appoint an attorney ad prosequendum et defen-
dendum, and there is nothing to shew that it does not
apply to an inferior court (a). At common law the
husband might appoint an attorney for his wife, though
in some cases she might apply to the Court to appoint
an attorney for her, on a suggestion that her husband
was not doing his duty for her. The course in com-
mon recoveries in Westminster Hall is, that a writ of
dedimus potestatem de attornato faciendo is granted
to take the acknowledgment and examination of the
parties, and the form of the proceedings is, "that
A. B., and C. his wife, put in their place C. D. to be
their attorney against D. E., to gain or lose in a ple
of land;" and it is required by the rules of the Court
that commissioners should examine the wife apart from
the husband, and return a certificate to the Court
that they have done so. Here there has been a letter
of attorney executed by the husband and wife in the
most ample manner authorising the surrender of the
premises into the hands of the lord in order that he
might regrant them. If the wife had appeared in Court,
she could only have been asked by the Court if she con-
sented; her assent testified by deed is as solemn an act
as her declaration in open Court. It is true that a mar-
ried woman cannot execute a deed; but the letter of
attorney is not to be considered the deed of the wife,
but a certificate to the Court that she had consented
that another person should act as her attorney to suffer
a recovery for her. In Holland v. Jackson (b), one of
the errors assigned was, that the wife was within age
at the time of the appearance of her and her husband

(a) See Daubney v. Cooper, 10 B. & C. 237.
(b) Bridgman, 69.; and see p. 73, 74.

by

by attorney, and also at the time of the judgment, but
it was not assigned as error that she was a married
woman at that time. So in an Anonymous case in
Dyer, 262. upon a writ of false judgment, the objection
was, that the tenant being within age made an attorney:
but there never has been a case in which it has been
objected that husband and wife made an attorney.
The 10 & 11 W. 3. c. 14. enacts,
"that no common
recovery shall be reversed or avoided for any defect
unless suit be commenced within twenty years after
suffering the recovery." Equity would extend the
analogy of that statute to the present case.

Then assuming that the recoveries in the manor courts were well suffered, another question is, whether Mrs. Warren's will was a good execution of the power reserved to her by the surrender of the copyholds to the lord in 1781. The first objection (which applies to all the copyhold lands) is, that the will could not operate as an execution of the power, because it contains no reference to it. The answer to that is, that the uses in the surrender, which authorised a will, were not in strict propriety of language a power, but merely a mode of obtaining a devisable interest over copyhold lands; besides, Mrs. Warren was also owner of the fee, and might as such devise her copyhold lands.

Then assuming that the words of the devise were sufficient to pass all the copyhold lands which had been surrendered to the use of her will, another question is, whether they are sufficient to pass those to which she was admitted in 1790, and which were not so surrendered. As Mrs. Warren had the ultimate fee which now confers the right of possession, and as she was living when the 55 G. 3. c. 192. was passed, that statute was equivalent to Z z 4

or

1833.

DOE dem.
SMITH

against

BIRD.

1833.

Doɛ dem.
SMITH
against
Bird.

or superseded the necessity of a surrender to the use of her will, and rendered the language of her will as effectual as if there had been surrenders in the ordinary form to uses declared, or to be declared by her. Every disposition made or to be made by any will by any person who shall die after the passing of the act, is rendered valid without any previous surrender. It was doubted at one time, whether, since the statute, copyholds would pass under a general devise of real estate by a testator who had both freehold and copyhold lands, and who had made no surrender to the use of the will. But Doe dem. Clarke v. Ludlam (a) expressly decided that copyholds would pass under such a devise, and that it ought to receive the same construction as if the testator had made a surrender to the use of his will. The statute, therefore, places the testator in precisely the same situation as if he had made a surrender to the use of his will. And it is quite clear that if Mrs. Warren had made such a surrender, the copyhold lands to which she was admitted in 1790, would have passed under this devise.

Follett contrà. First, Mrs. Warren could not devise the land of which she was seised in tail. There was no valid recovery, not because Dr. and Mrs. Warren could not appear by attorney, but because she being a feme covert was incompetent to execute a deed, and the surrender to the lord made by the attorney was void, and consequently there was no good tenant to the plaint in the manor court. It is said that this recovery can only be avoided by application to the lord's court; but Roe v. Baldwere (b) shews that this Court will

(a) 7 Bing. 275.

(b) 5 T. R. 104.

examine