these goods, he shall have restitution of these goods as before.

V. By straying.

By straying property in live cattle is thus gotten. When they come into other men's grounds, straying from the owners, then the party or lord into whose grounds or manors they come causeth them to be seized, and a withe put about their necks, and to be cried in three markets adjoining, showing the marks of the cattle; which done, if the true owner claimeth them not within a year and a day, then the property of them is in the lord of the manor whereunto they did stray, if he have all strays by custom or charter, else to the king.

VI. Wreck, and when it shall be said to be.

By shipwreck property of goods is thus gotten. When a ship laden is cast away upon the coasts, so that no living creature that was in it when it began to sink escapeth to land with life, then all those goods are said to be wrecked, and they belong to the crown if they be found; except the lord of the soil adjoining can entitle himself unto them by custom, or by the king's charter.

VII. Forfeitures.

By forfeitures goods and chattels are thus gotten. If the owner be outlawed, if he be indicted of felony or treason, or either confess it, or be found guilty of it, or refuse to be tried by peers or jury, or be attainted by judgment, or fly for felony, although he be not guilty, or suffer the exigent to go forth against him, although he be not outlawed, or that he go over the seas without license, all the goods he had at the judgment he forfeiteth to the crown, except some lord by charter can claim them. For in those cases prescripts will not serve, except it be so ancient, that it hath had allowance before the justices in eyre in their circuits, or in the King's Bench in ancient

time.

VIII. By executorship.

By executorship goods are gotten. When a man possessed of goods maketh his last will and testament in writing, or word, and maketh one or more executors thereof, these executors have by the will and death of the parties all the property of their goods, chattels, leases for years, wardships, and extents, and all right concerning those things.

Executors may, Those executors may meddle with before probate, the goods, and dispose them before Foods, but coon they prove the will, but they cannot for any debt. bring an action for any debt or duty before they have proved the will.

What probate and in what

of the will is, manner it is

made.

The proving of the will is thus. They are to exhibit the will into the bishop's court, and there they are to bring the witnesses, and there they are to be sworn, and the bishop's officers are to keep the will original, and certify the copy thereof in parchment under the bishop's seal of office, which parchment so sealed, is called the will proved.

IX. By letters of administration.

By letters of administration property in goods is thus gotten. When a man possessed of goods dieth without any will, there such goods as the executors should have had if he had made a will were by ancient law to come to the bishop of the diocess, to dispose for the good of his soul that died, he first paying his funerals and debts, and giving the rest, ad pios usus.

Pii unus.

This is now altered by statute laws, so as the bishops are to grant letters of administration of the goods at this day to the wife if she require it, or children, or next of kin; if they refuse it, as often they do, because the debts are greater than the estate will bear, then some creditor, or some other, will take it as the bishop's officers shall think meet. It groweth often in question what bishop shall have the right of proving wills, and granting administration of goods.

If there be but one executor made, Executor may yet he may refuse the executorship refuse before coming before the bishop, so that he have pod inter hath not intermeddled with any of the goods. goods before, or with receiving debts, or paying legacies.

1. Judgments. by bonds and bills

3. Debrecogn bonds Rent unpaid. Shop-book,

5. Servants' 6. Head work.

by word.

And if there be more executors than Executor ought one, so many as list may refuse; and if any one take it upon him, the rest that did once refuse may when they will take it upon them, and no executor shall be further charged with debts or legacies than the value of the goods come to his hands. So that he foresee and contracts that he pay debts upon record, first debts to the king, then upon judgments, statutes, recognizances, then debts by bond and bill sealed, rent unpaid, servants' wages, payment to head workmen, and, lastly, shop-books, and contracts by word. For if an executor, or administrator pay debts to others before to the king, or debts due by bond before those due by record, or debts

Z

may retain

But it is not so with administrators, administrators. for they have but one authority given them by the bishop over the goods, which author ity being given to many, is to be executed by all of them joined together.

Executor dieth making his exe

cutor, the se

cond executor

shall be execu

And if an executor die making an executor, the second executor is executor to the first testator.

But if an administrator die intestate, then his administrator shall not be executor or administrator to the first. But making his exe in that case the bishop, whom we call ministration be the ordinary, is to commit the adminishis goods. tration of the first testator's goods to his wife, or next of kin, as if he had died intestate. Always provided, that that which the executor did in his lifetime is to be allowed for good. And so if an administrator die, and make his executor, the executor of the administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the goods of the first intestate again.

debts, or funerals, or legacies of his administrators own money, he may retain so much of the goods in kind, of the testator or intestate, and shall have property of it in kind.

X. Property by legacy.

administrators may retain; bo cause the executors are

charged to pay

some debts

Property by legacy is where a man Executors or maketh a will and executors, and giveth legacies, he or they to whom the legacies are given must have the assent of the executors, or one of them, to have fore legacies. his legacy, and the property of that lease, or other goods bequeathed unto him, is said to be in him; but he may not enter nor take his legacy without the assent of the executors, or one of them, because the executors are charged to pay debts before legacies. And if one of them assent to pay legacies, he shall pay the value thereof of his own purse if there be not otherwise sufficient to pay debts.

Legacies are to debts by shop

be paid before books, bills un

But this is to be understood by debts of record to the king, or by bill and bond sealed, or arrearages of rent, or servants' or workmen's wages; and tracts by word. not debts of shop-books, or bills unsealed, or contract by word; for before them legacies are to be paid.

exec

they

le

And if the executors doubt that they Executor may shall not have enough to pay every pary which le legacy, they may pay which they list first. If the first; but they may not sell any special waterma legacy which they will to pay debts, to pay debis. or a lease of goods to pay a money-legacy. But they may sell any legacy which they will to pay debts, if they have not enough besides.

If a man make a will, and make no when a will is executors, or if the executors refuse, made, and no the ordinary is to commit administra- named, admition cum testamento annexo, and take be committed bonds of the administrators to perform the will, and he is to do it in such sort as the executor should have done, if he had been named.

the sense which the other side would force upon it, that it were a clause repugnant to the estate and void.

The case is of great weight, and the question of great difficulty: ficulty: weighty it must needs be, for that it doth concern, or may concern all the lands in England; and difficult it must be, because this question sails in confluentiis aquarum, in the meeting or strife of two great tides. For there is a strong current of practice and opinion on the one side, and there is a more strong current, as I conceive, of authorities, both ancient and late, on the other side. And, therefore, according to the reverend custom of the realm, it is brought now to this assembly; and it is high time the question receive an end, the law a rule, and men's conveyances a direction.

Secondly, That the sense which we conceive and give is natural in respect of the words; and for the matter agreeable to reason and the rules of law.

And, lastly, That if the interpretation seem ambiguous and doubtful, yet the very mischief itself, and consideration of the commonwealth, ought rather to incline your lordships' judgment to our construction.

My first assertion therefore is, that a timber tree is a solid parcel of the inheritance; which may seem a point admitted, and not worth the labouring. But there is such a chain in this case, as that which seemeth most plain, if it is sharply looked into, doth invincibly draw on that which is most doubtful. For if the tree be parcel of the inheritance unsevered, inherit in the rever

For the first of these considerations, which is the interest or property of a timber tree, I will maintain and prove to your lordships three things. First, That a timber tree, while it groweth, is merely parcel of the inheritance, as well as the soil itself.

And, secondly, I will prove, that when either nature or accident, or the hand of man hath made it transitory, and cut it off from the earth, it cannot change the owner, but the property of it goes where the inheritance was before. And thus much by the rules of the common law.

And, thirdly, I will show that the statute of Gloucester doth rather corroborate and confirm the property in the lessor than alter it, or transfer it to the lessee.

And for the second consideration, which is the force of that clause, absque impetitione vasti, I will also uphold and make good three other assertions.

arbores subterraneæ, because that as trees have great branches and smaller boughs and twigs, so have they in their region greater and smaller veins; so if we had in England beds of porcelain, such as they have in China, which porcelain is a kind of a plaster buried in the earth, and by length of time congealed and glazed into that fine substance, this were as an artificial mine, and no doubt part of the inheritance. Then are the ordinary parts, which make the mass of the earth, as stone, gravel, loam, clay, and the like.

Now, as I make all these much in one degree, so there is none of them, not timber trees, not quarries, not minerals nor fossils, but hath a double nature; inheritable and real while it is contained within the mass of the earth, and transitory and personal when it is once severed. For even gold and precious stone, which is more durable out of earth than any tree is upon the earth, yet the law doth not hold of that dignity as to be matter of inheritance if it be once sever

Nevil's case proving there

which are not local.

able inheritances, as villains in gross, and dignities which are judged hereditaments; but because by their severance they lose their nature of perpetuity, which is of the essence of an inheritance.

The consent of the law with philosophy in

tual tran

And herein I do not a little admire the wisdom of the laws of England,

distinguishing and the consent which they have with bal and there the wisdom of philosophy and nature sitory. itself: for it is a maxim in philosophy that in regione elementari nihil est æternum, nisi per propagationem speciei, aut per successionem partium.

And it is most evident that the elements themselves, and their products, have a perpetuity not in individuo, but by supply and succession of parts. For example, the vestal fire that was nourished by the virgins at Rome was not the same fire still, but was in perpetual waste and in perpetual renovation. So it is of the sea and waters, it is not the same water individually, for that exhales by the sun, and is fed again by the showers. And so of the earth itself, and mines, quarries, and whatsoever it containeth, they are corruptible individually, and maintained only by succession of parts, and that lasteth no longer than they continue fixed to the main and mother globe of the earth, and is destroyed by their separation.

According to this I find the wisdom of the law, by imitation of the course of nature, to judge of ✓ inheritances and things transitory; for it allow eth no portions of the earth, no stone, no gold, no mineral, no tree, no mould to be longer inheritance than they adhere to the mass, and so are capable of supply in their parts; for by their continuance of body stands their continuance of time. Neither is this matter of discourse, except the deep and profound reasons of law, which ought chiefly to be searched, shall be accounted discourse, as the slighter sort of wits, Scioli, may esteem them.

And, therefore, now that we have opened the nature of inheritable and transitory, let us see, upon a division of estates, and before severance, what kind of interests the law allotteth to the owner of inheritance, and what to the particular tenant, for they be competitors in this case.

law

between heritance and particular estates,

The consent of First, In general the law doth assign the day with in to the lessor those parts of the soil conthe distinguish joined, which have obtained the reputation to be durable, and of continuhathrebicon to ance, and such as being destroyed are of dominium not but by long time renewed; and to and run the terminors it assigneth such intethe stat. 4 H. 7. rests as are tender and feeble against the

their division

Owner in

ceived upon the ancient statute of depopulations, 4 Hen. VII. which was penned, "that the owner of the land should re-edify the houses of husbandry," that the word owner, which answereth to dominus, was he that had the immediate inhe. ritance; and so ran the later statutes. Let us see therefore what judgment the law maketh of a timber tree; and whether the law doth not place it within the lot of him that hath the inheritance as parcel thereof.

The writ of

hasuppose

First, It appeareth by the register out of the words of the writ of waste, that felling tim the waste is laid to be ad exhæredation- ber to be ad ex hæredationem. em, which presupposeth hæreditatem : for there cannot be a disinherison by the cutting down of the tree, except there was an inheritance in the tree, quia privatio præsupponit actum.

The statute of quod recuperet rem vastatam, not locum vas

Gloucester,

Again it appeareth out of the words of the statute of Gloucester, well observed, that the tree and the soil are one entire thing, for the words are, quod tatum. recuperet rem vastutam; and yet the books speak, and the very judgment in waste is quod recuperet locum vastatum, which shows, that res and locus are in exposition of law taken indifferently; for the lessor shall not recover only the stem of the tree, but he shall recover the very soil, whereunto the stem continues. And therefore it is notably ruled in 22 H. VI. f. 13, that if the terminor do first cut down the tree, and then destroy the stem, the lessor shall declare upon two several wastes, and recover treble damages for them severally. But, says the book, he must bring but one writ, for he can recover the place wasted but once.

22 H. 6. 1. 13.

Co. p. 4, L. 62.

Nay, my lords, it is notable to consider what a reputation the law gives to the trees, even after they are severed by grant, as may be plainly inferred out of Herlackenden's case, L. Coke, p. 4, f. 62. I mean the principal case; where it is resolved, that if the trees being excepted out of a lease granted to the lessee, or if the grantee of trees accept a lease of the land, the property of the trees drown not, as a terni should drown in a freehold, but subsist as a chat. tel divided; which shows plainly, though they be made transitory, yet they still to some purpose savour of the inheritance: for if you go a little farther, and put the case of a state tail, which is