a view of confirming his testament and establishing his purpose. A recovery suffered, unless the will be republished, destroys it entirely, upon the nicety, quite consistent, I admit, with strict legal principle, that a new estate is taken back, different from that which was in the testator when he devised.* This happens frequently to frustrate the plain intent of parties. Lately in the Court of King's Bench, we had an instance of large property in this immediate neighbourhood, going any where rather than according to its owner's intention, because a recovery had been suffered; and a recovery, suffered for the express purpose of confirming the will, deprived Lord Erskine of a considerable estate in Derbyshire. So a conveyance, which divests an estate though but for an instant, to serve a use, with the intention of immediately taking back the former uses, which are accordingly taken back, totally revokes the will made before. Nay, no less a judge than Lord Hardwicke has expressly laid it down, that where a man, supposing he had only an estate tail on which a devise could not operate, suffers a recovery for the express purpose of taking back a fee in order that his will may be good, it is thereby revoked. The most notable part of these excessive refinements is, that they all proceed upon the act being evidence of a presumed intention, when no man can doubt that either there was no such intention, or one of the

*These things are now altered by the Wills Act.

† Goodtitle v. Otway, 7 T. R. 399.

Nor is it necessary to change

Sparrow v. Hardcastle, ib. in note. the estate, in order to operate a revocation, e. g. a feoffment by tenant in fee to another to his use and that of his heirs, 3 Ves. 6, and an ineffectual recovery by tenant for life (reversion in fee, disposed of by will). 2 Ves. jun. 430.

very opposite description. Thus, if I devise lands to a person, and afterwards, for the same reason of favour towards him, by way of making him more secure, give him a lease in the same, to commence after my death, he being perhaps tenant for years under me at the time, the will is gone.* It thus happens that, in the very act of his life, in which it is most important that a man should see clearly what he is about, and most likely that he should have no professional assistance, he is often wholly in the dark as to the effect of what he is doing.

Were I in want of further illustration for this matter, I might go at once to the doctrine of Powers, and show how the thing intended to be permitted is often prevented, and vice versa, by the view which courts have taken of what is and what is not a good execution, and which renders it unsafe to give an opinion upon any Power, the very words of which have not received a judicial construction. I might go to the still greater niceties in the rules respecting the construction of contingent and executory Uses, a chapter of our law, signalized by the utmost learning and ingenuity of those who have treated it. I might, indeed, at once ask what foundation in reason, or even in analogy, there is for holding that a purpose should be accomplished, by way of executory devise, which cannot be effected by way of contingent remainder; as the mounting a fee upon a fee, or directing a contingent use to spring and enure without any particular estate to support it; if, indeed, I ought not rather to ask why there should be any necessity in either case for a freehold interest to support an after-taken contingent estate, and why

* Cro. Jac. 40. 5 Ves. jun. 650.

there should be any horror of mounting a fee upon a fee, an idea so familiar to the feodists in the sister kingdom, that their strict settlements (always made by deed, for they, having their niceties like ourselves, though of another sort, allow no devise of real property at all) consist of a succession of fees, under restraints specifically prescribed as to alienation and incumbrances. But I will satisfy myself with what has been said on this head, and suggest, as the obvious corollary, for remedy of the great bulk of the mischief I complain of, the laying down by the Legislature of certain Formulas, couched in plain language, and of an import recognised by written law. You give this help to Justices, to prevent convictions and orders being set aside for technical error. Why not give it to men often less learned than they, for disposing of their property necessarily without professional assistance? Why not say, that whoever would give a fee, should use these words;-an estate for life these ;-that whoever would clothe the takers of that estate with certain powers, may do it thusand so forth-not stating that such are the only words which shall effect the same purpose, but that, at any rate, those shall.*

By such a plan, and by retrenching some refinements which the fund is ample enough to spare, in rules of construction, I know that much curious learning will be brushed away; but I also know that the law will be rendered accessible to those whose rights it is to govern, and that the lay people will gain far more than the learned lose. Thus much for amending the rules of construction. But for the

* The Wills Act has removed some of the defects here stated. It is

to be regretted that formulas were not added to it.

general establishment of sound rules of evidence, I should recommend, first of all, an introduction of one rule as to the manner of examining witnesses, instead of trying issues of fact in one court by written depositions, and in another by riva voce examination (whereby the same Will may be, and sometimes has been, supported in Doctors' Commons, upon personalty, which a Court of Nisi Prius afterwards set aside altogether),-in one court by affidavit, by sworn answers to unsworn bills, by yet more clumsy and ineffectual examination, on written interrogatories previously drawn; in another only by parole examination. I would have all matter of fact, wheresoever disputed, tried by a jury. For sifting the truth by such a trial, I would admit all records between the parties or their privies, and all instruments and writings of every kind of the parties against whom they are used; so much the law now permits; but I would let in whatever documents, written by persons deceased, appear plainly to have been made without any view to manufacturing evidence. In a word, excluding inferior evidence where better can be obtained, and, therefore, all hearsay absolutely, I would admit whatever could not be deemed to have been done with a view to the fabrication of proof, by the knowledge that such would be receivable. Allowing objections from interest in the event, as well as from interest in the question, to weigh only in estimating a witness's credit, I would make no man incompetent to give evidence in any cause, civil or criminal, who was not either an unbeliever in God and a future state, or convicted of some infamous offence. In examining the witnesses, I would suffer a person to be contradicted as to matters directly affecting his credit, and on

which he had been questioned ;* and in the event of a witness turning out hostile to the party calling him, there can be no sound reason why, subject to the Judge's discretion, he should not be treated as adverse, and even contradicted, without which the latitude at present given by some Judges, only amounts to a power of putting leading questions. Of nonsuits for variance, and other technical defects, I have already spoken.

The law respecting Limitations comes as an appendix to the chapter of Evidence. No branch of our jurisprudence is more important, and hardly any more demands revision. Why should there be no statutory limitation of a bond or other specialty? + For want of it the Courts have adopted a sort of rule, founded upon presumption of payment, that where the instrument is twenty, or even eighteen years old, sometimes less (so accurate is the rule), and no interest has been paid, or other acknowledgment made of the subsistence of the debt, it may be assumed to be satisfied; that the instrument is cancelled they cannot presume, for there it is, seal and all, staring them in the face; but there being no receipt or discharge, and the bond being in the obligee's hand, is surely quite enough to rebut any presumption of payment-so that the courts have really made a law, though a bad and uncertain one, to meet the case. It would be far better to fix at once a period of ten years, after which no action should be maintainable upon specialties.

But even in cases where we have a statute of

This is really only a nominal relaxation of the rule in Spencely v. de Willet; the spirit of that rule is preserved, for the credit of the witness is not a collateral issue. 7 East, 108.

This is now provided by the late Acts of 1833.