is made to say, that copyhold lands are not within the statute of frauds; standing on the statute of llen. VIII.; whereas it is perfectly clear that they are not within that statute. Here inust be some mistake. The Court then intimated, that this appeared the only difficult point in the case, and that, if it should be necessary, they would call for another argument as to that point only. ' MARRYAT, contrà. "As to the question upon the statute of limitations; the entry must be made within twenty years after the right or title accrues, and there are many exceptions expressly stated in the statute, but this of an outstanding term is not one. And if the party cannot prosecute his claim by ejectment, he must resort to his real action by writ of right or writ of entry, but he must proceed within the twenty, the thirty, or the sixty years. The party accepts seisin from the lord, and could not plead non tenure in a real action." LAWRENCE, J. "There are remedies to enforce the payment of rent under the statute of attornments, but he could not have entered. The question is, whether he could have entered? Could he have entered and made a lease to another man; the statute says, that he must enter." MARRYAT. "It must be admitted, that he would have been nonsuited upon an ejectment, but he must proceed to obtain the investiture of the tenure by some other mode. The case of Orrell v. Maddor is distinguishable; for the question there was, whether the plaintiff should in the first instance prove the receipt of rent within twenty years by herself or her ancestor, and it was held not to be necessary; but here the question is very different, for it is actually proved that the defendant has received rent for twenty years." He then mentioned another case, of which I took the ful 1806. Соок versus DANVERS 1806. lowing note, as he stated that it was not in print, but Doz dem. referred for some account of the facts to the parliamen Cook versus tary cases, and also to Frazer's Election Reports, DANVERS. p. 87, before the Horsham Committee. "Onslow v. Thornton and Smith, tried at Sussex, 1793: There was a verdict for the defendant, and then a motion for a new trial, which being granted, the plaintiff failed and brought a writ of right. Onslow, 10th Nov. 1699, granted a lease to Waterton for 1000 years at 1s. 6d. rent. He or his descendants paid rent to 1783; several years were paid at a time. Thornton was in possession for above twenty years, and had paid no rent to Waterton nor to the Onslows. Waterton paid rent to the Onslows till 1783, but how Thornton came into possession did not appear. The Onslows never entered during their term of 1000 years; 22d of April, 1791, Waterton surrendered the residue of the term to Onslow for three guineas, and he brought his ejectment. I contended before HOTHAM, J. that as the title accrued on the surrender of the term, till that happened he was in no situation to bring his ejectment. The demise was laid a few days short of the date of the surrender; he had received rents from Waterton, and Hotham was of opinion that we were entitled to recover. There was a motion for a new trial; of which I can obtain no account. But the event of the motion was, that the court granted a new trial, and the plaintiff failed in his ejectment; whether he went down to trial or abandoned it, I do not know, but I afterwards drew the proceedings in a writ of right, for Mr. Onslow, and after some delay the tenant died." LAWRENCE, J. "You do not know what the decision was. It must have been in Lord Kenyon's time when he knew of Orrell v. Maddox. There although Onslow the plaintiff had received rent, yet his tenant was not in possession." The SOLICITOR GENERAL observed upon this case as follows; "Onslow's ancestor, upon the statement, leased for 1000 years; Waterton paid rent till 1783; Smith was tenant in possession, and paid to Waterton; then Waterton surrendered. As between Waterton and Smith, the statute of limitations operated, because he had got into possession wrongfully. But possibly the court might say, you going upon Waterton's title by the surrender, shall not stand in a better situation than he; but to say that, if the lease had expired, Onslow could have been barred, would have been absurd." Lord ELLENBOROUGH, C. J." In that way every man might have his lands taken from him by granting a lease for twenty-one years, receiving rent all the time, and not having his attention turned to the fact of who was in the actual possession." Cur, ado. vult. And now the opinion of the court was delivered to the following effect, by 6 Lord ELLENBOROUGH, C. J. after stating the case. In the several arguments on the case, many points. were argued with much ingenuity, on several questions about which the court has not entertained any doubt. 1st, Whether the estate was copyhold or customary freehold? 2dly, Whether, if not strictly copyhold, it passed by the will by the description of all that copyhold land,' &c. or, whether a will making use of such a description is sufficient to direct the use of the surrender? 3dly, Whether the right of entry was tolled by a descent cast? And lastly, Whether the ejectment is barred by twenty years' possession, during all which time the defendant and his father received the rent? And it was said that, although there was a subsisting lease, yet, by not paying rent, the tenant permitted a forfeiture more than twenty years ago, and the lessor of the plaintiff was entitled to enter, and not having done 1806. DOE den. versus DANVERS. 1806. DoE dem. `versus so within twenty years, he was also barred on that ground from bringing his ejectment. These points were sufficiently answered in the argument, and it is not necesDANVERS. sary to go into them at length. The estate is parcel of the manor held by copy of court-roll which passed by surrender, and was demised with licence from the lord, and was surrendered by T. Taylor, according to the custom of the manor, to such uses as she should appoint by her will in writing. So circumstanced, it appears to us, the freehold was in the lord, and not in the tenant. As to this case, therefore, it is copyhold. It is called all her copyhold' in the will, and it is not contended that she had any other estate to which it could apply, and supposing it to be a misdescription, there cannot be a doubt, if by such description she meant that estate, it could pass. So, as to the other objection, that the right of entry is tolled by the descent, two satisfactory answers have been given: that the objection does not apply to customary estate, where the estate is actually in the lord, nor where the party has no remedy but by entry. Inlike manner as to the statute of limitations, the estate being let to a tenant under a lease granted by the devisor, the devisee could not enter to support the ejectment during that lease, and if there was a forfeiture, he was not obliged to take notice of it. But the point most material is, whether the will is in writing under the terms of the surrender, and whether it does not come within the 7th section of the statute of frauds, and should not be signed according to the opinion of Lord Kenyon, in Doe d. Tempest v. Dancer, and the expressions used in Tuffnell v. Page. On this we had some strong doubts, but we are now satisfied that a will to direct the uses of a copyhold or customary estate passing by surrender is not within the statute of frauds, and need not be signed, unless it is required by the custom of the manor. We are not now to inquire whether immediately after the 1806. Doɛ dem. versus Statute it would not have been best to have held that copyholds were within the statute; for the uniform current of authorities is that they are not within it, because they do not pass by the will, but by the surrender, and DANVERS. it is therefore not a devise within the 5th and 6th section of the act. The 7th section requires a creation of trust or confidence to be manifested by writing signed by the party, or by his last will in writing. And the 9th section requires any assignment of a trust or confidence to be in writing, signed by the party or by such last will. It was contended on the part of the defendant, that under these clauses a declaration or creation of a trust, and also a grant or assignment of any trust must be in writing signed by the party or by a will signed, and that a will declaring the uses of a surrender was a declaration of a trust. The gentlemen who agued this felt a difficulty as to the particular will required. If they put it as a will attested by three witnesses, they had to encounter every deci sion which held that in this case a will with three witnesses was not necessary: yct in no clause of the statute is there a will of land mentioned, which does not require it to be so attested. And a will of such customary lands is no grant of any trust nor assignment of any trust; for there is no separation of the legal and equitable estate. The statute itself looked to no will of lands, but such as is executed as there directed; and having done this, as to devises of lands, it proceeds to protect declarations of trust, evidently alluding to the equitable interest in lands; and the terms in the 7th and 9th section must refer to such will of lands. This will is therefore not within the statute of frauds. The next and last question then is, whether this will is within the terms of the surrender, a will in writing. Now the 32 H. VIII. statute of wills, gave power to dispose of lands whereof the |