practice of the Court, these writs had been duly returned and filed, so as to save the statute of limitations; and the Master having now reported that they had been duly returned for that purpose, Campbell now excepted to the report, and contended, that a writ was not duly returned by having a return indorsed upon it, but by being delivered out of the secondary's office as returned. Here, therefore, no return was made till 19th March, 1821, a period after the statute of limitations had actually run. In this case, then, when the docket was struck, the petitioning creditor's debt was barred by the statute, and the validity of the commission is to be made subsequently to depend upon the will of the under-sheriff, in delivering or refusing to deliver out the writs; it being clearly in his power, after the sheriffs have been six months out of office, to refuse to make any return to the writs. In Harris v. Woolford (a) it was held, that, in order to save the statute of limitations, it was necessary to shew, not only that a writ was sued out in time, but also that it was returned. The Court, however, thought, that there was no good reason for altering the established practice, which was, to consider such returns as regular, and the rule was discharged. (a) 6 T. R. 617. Rule discharged. 1822. TAYLOR against HIPKINS. 1822. 1 Friday, By marriage settlement certain lands were limited to the husband for life, remainder to the wife for life, and remainder to their issue. Afterwards certain freehold land rish descended to the husband in fee. There DOE on the Demise of THOMAS NETHERCOTE against FRANCIS BARTLE. EJECTMENT, to recover ten acres and a half of arable land, in the parish of Soham, in the county of Cambridge, three acres, part thereof, being copyhold of the manor of Mildenhall, and the residue freehold, At the trial, before Dallas C. J. at the Summer assizes, 1821, the jury found a verdict for the plaintiff, subject # in the same pa- to the opinion of the Court, on the following case. Thomas Nethercote (the great uncle of the lessor of was no issue of the plaintiff) being seised in fee simple of six acres and a half, part of the freehold lands above mentioned, by an indenture of the 2d October, 1741, settled the same. to the use of himself for life, with remainder to the use the marriage, and the husband being in possession of the freehold lands under the the other land of which he was seised in fee, devised to his settlement, and of Mary his wife, for life; remainder to the use of the heirs of his body, on the body of the said Mary to be begotten. After this settlement, the remaining acre, of his freehold and freehold descended to him in fee simple. On the 19th copyhold lands February, 1758 (being then in possession of the said wife for life all of which he was then in the im mediate posses sion, and also all his reversionary estate, expectant on the death of his mother, in certain other lands therein mentioned, and after the decease of his wife, he devised the same to his daughter in fee, and all other his real and personal estate he devised to his wife, her executors and administrators: Held, that the freehold land which the husband held under the settlement, passed under the particular devise in the will to the wife for life, and after her death to his daughter in fee, although the wife would have taken the same estate in those lands under the settlement. Where, by the custom of a manor, a feme covert was allowed by will to pass her copyhold lands, the same having been previously surren-. dered by husband and wife, (the wife having been examined separate and apart from her husband, and consenting thereto,) to use of her will; and a feme covert being seised of copyhold lands in the manor, made her will subsequently to the 55 G. 5. c.192., and there was no surrender to the use of her will: Held, that the copyholds did not pass by the will, the 55 G. 3. c. 192. having only supplied the want of a formal surrender, and the surrender in this case being matter of substance, and requiring to be accompanied by the separate examination of the wife, six and a half acres, under the settlement, and also of other land in the same parish, of which he was seised in fee) he made his will, and devised as follows: "I devise unto Mary, my wife, all my freehold and copyhold lands, of which I am now in the immediate possession, lying in the several parishes of Soham and Fordham, in the county of Cambridge, and also all my reversionary estate, expectant on the death of Mary Nethercote, my mother, of and in certain other freehold and copyhold messuages, lands, &c., situate in Soham and Fordham aforesaid; to hold the said freehold and copyhold premises unto my wife, and her assigns for her life, (charged as in the will mentioned ;) and after the decease of my wife, then I devise the said freehold and copyhold messuages, lands, &c., unto my daughter, Mary Nethercote, her heirs and assigns for ever. And all other my real and personal estate, subject to the payment of my funeral expenses and just debts, I devise and bequeath unto my said wife, her heirs, executors, and administrators." T. Nethercote died soon after making his will, leaving Mary Nethercote, his widow, and Mary Nethercote, his daughter and only child, him surviving. The daughter, who survived the mother, afterwards married William Chatteris, and died in 1790, leaving issue one child only, viz. Mary, afterwards the wife of Robert Young. Upon the death of her mother, Mrs. Young entered into the possession of the freehold lands, and continued seised thereof till her death. The copyhold lands descended to Mrs. Young from her mother, and she was admitted thereto in fee simple, according to the custom of the manor of Mildenhall. After her marriage, she made her will, bearing VOL. V. K k date 1822. Doɛ dem. NETHERCOTE against BARTLE 1822. Dox dem. against BARTLE date the 29th of January, 1817, by which, with the consent of her husband, testified by his signature thereto, NETHERCOTE she devised all her copyhold lands in the manor of Mildenhall, to which she had been admitted (which included the copyhold lands in question) to William Pollett Chatteris and his heirs, for ever, and in case of his death under age, then to her husband and his heirs, for ever. The will was signed both by Mr. and Mrs. Young, in the presence of, and attested by three witnesses, but there was no surrender passed to the use of Mrs. Young's will. In the manor of Mildenhall, there is a custom enabling a feme covert to pass by her will copyhold lands which have been surrendered to the use of the wife's will, by the husband and wife, the wife being examined by the steward, separate and apart from the husband, and consenting. The lessor of the plaintiff is the heir at law, ex parte materra of Mary Young on the part of her grandfather, but not on the part of her grandmother, and the heir, according to the custom of the manor of Mildenhall, of Mrs. Young. The question for the opinion of the Court, as to the six and a half acres of freehold, was, whether they were included in the particular devise in the will of Thomas Nethercote, and passed under that devise to his wife, for life, and after her decease to his daughter, in fee. And as to the copyholds, whether by virtue of the act of the 55 Geo. 3. c. 192., the will of Mrs. Young was effectual to pass them, though there had been no surrender to the use thereof. Biggs Andrews, for the lessor of the plaintiff. The freehold land passed, under the particular devise in this will, to the wife for life, and after her death, to the 1822. DoE dem. against BARTLE. daughter in fee, and consequently the lessor of the plaintiff, as the heir at law of Mrs. Young, is entitled to recover. The question is not between the devisee and NETHERCOTE the heir, but between two devisees. By the particular clause, the testator devises the lands of which he is in the immediate possession. Now he was in the immediate possession of the freehold land in question, and consequently, there can be no doubt that this land would pass under this clause, had it not been that the wife took the same interest, and the daughter nearly the same interest under the settlement. That circumstance, however, is not sufficient to shew, that the testator intended this land not to pass, where the words of the particular clause are clear and unambiguous. Besides, there is no inconsistency between the settlement and the will, for the testator had the full control over the fee, with the exception of the life estate to his wife, and he might there fore naturally suppose, that he might devise it, subject to that estate as he pleased. The will, as far as it relates to the only interest which was not in the testator, is confirmatory of the settlement. It is clear, that these lands would not have passed by a devise of " All the lands of which the testator was not in the possession." And if so, they must pass by the devise in this will, of "All the lands of which he was in the possession." The question as to the upon the 55 G. 3. c. 192. tute recites, that by the copyhold estates of such manors passed by the last will and testament of the copyhold tenants thereof, declaring the uses of surrenders made for that purpose, and that much inconvenience had arisen from the necessity of making such surrenders; and then it enacts, that where Kk 2 copyhold premises, depends any |