called the use, upon which I had no remedy but in chancery, until this flatute was made of 27 H. VIII. and now this ftatute conjoineth and conveyeth Before 27 H. the land to him that hath the ufe. I for my money paid to you, have the no remedy land it felf, without any other conveyance from you; and it is called a bar- for a use, but gain and fale. 8. there was in chancery. not pass land ney without BUT the parliament that made that ftatute did foresee, that it would be The ftat. of mischievous that mens lands fhould fo fuddenly upon the payment of a little 27 H.8. doth money be conveyed from them, peradventure in an alehoufe or a tavern up-upon the payon ftrainable advantages, did therefore gravely provide another act in the ment of mo fame parliament, that the land upon payment of this money fhould not pafs a deed indentaway, except there were a writing indented, made between the faid two ed and enrolparties, and the faid writing alfo within fix months inrolled in fome of led. courts at Westminster, or in the feffions-rolls in the fhire where the land ly- 27 H. 8. exeth; unless it be in cities or corporate towns where they did ufe to enroll tendeth not deeds, and there the statute extendeth not. the pre The stat. of to places where they deeds. to stand seised 5. THE fifth conveyance is a covenant to stand feised to ufes it is in did enroll this fort; a man that hath a wife and children, brethren, and kinsfolks, may by writing under his hand and feal agree, that for their or any of their A covenant ferment he will ftand feifed of his lands to their ufes, either for life, in to a use. tail, or fee, fo as he fhall fee caufe; upon which agreement in writing, there arifeth an equity or honefty, that the land fhould go according to thofe agree-greement in ments; nature and reafon allowing these provifions; which equity and ho- writing to nefty is the use. And the ufe being created in this fort, the ftatute of the ufe of any 27 H. VIII. before mentioned, conveyeth the eftate of the land, as the ufe is of his kinappointed. Upon an a -ftand feifed to dred, a use may be cre to a ufe need AND fo this covenant to ftand feifed to uses, is at this day, fince the faidated, &c. ftatute, a conveyance of land; and with this difference from a bargain and A covenant fale, in that this needeth no enrollment as a bargain and fale doth, nor need- to land feifed eth it to be in writing indented, as bargain and fale muft and if the party eth no enrollto whose use he agreeth to stand seised of the land, be not wife, or child, ment as a coufin, or one that he meaneth to marry, then will no use rife, and fo no fale to a ufe conveyance; for although the law alloweth fuch weighty confiderations of doth, &c. marriage and blood to raise uses, yet doth it not admit fo trifling confiderations, as of acquaintance, fchooling, fervices, or the like. recovery a BUT where a man maketh an estate of his land to others, by fine, feoff- Upon a fine, ment, or recovery, he may then appoint the ufe to whom he lifteth, with-feoffment, or out refpect of marriage, kindred, or other things; for in that cafe his own man may liwill and declaration guideth the equity of the eftate. It is not fo when mit the ufe to he maketh no eftate, but agreeth to ftand feifed, nor when he hath taken eth, without any thing, as in the cafes of bargain and fale, and covenant to ftand feifed confideration to uses. whom he lift of blood, or money. O fale, or cove veyance of land by will. 6. THE laft of the fix conveyances is a will in writing, which course of con- therwife, in a veyance was firft ordained by a ftatute made 32 H. VIII. before which ftatute bargain and no man might give land by will, except it were in a borough town, where nant. there was an efpecial custom that men might give their lands by will; as in Of the conLondon, and many other places. THE not giving of land by will, was thought to be a defect at common The not diflaw, that men in wars, or fuddenly falling fick, had no power to difpofe of pofing of their lands, except they could make a feoffment, or levy a fine, or fuffer a lands by will, which lack of time would not permit : and for men to do it by to be a defect recovery; thefe means, when they could not undo it again, was hard; befides, even to at the comthe laft hour of death, mens minds might alter upon further proofs of their mon law. VOL. IV. The courfe children or kindred, or encrease of children or debt, or defect of fervants or friends. FOR which cause, it was reason that the law fhould permit him to referve that was in- to the laft inftant the difpofing of his lands, and to give him means to difpofe the ftat. of 32 of it, which feeing it did not fitly ferve, men ufed this devife. vented before H. 8. firft to devife veyance of THEY Conveyed their full eftates of their lands in their good health, to gave power friends in truft, properly called feoffees in truft; and then they would by lands by will, their wills declare how their friends fhould difpofe of their lands; and if thofe was a con- friends would not perform it, the court of chancery was to compel them by lands to feof-reafon of truft; and this truft was called the use of the land, fo as the feoffees in truft, fees had the land, and the party himself had the ufe; which ufe was in equifons as they ty, to take the profits for himself, and that the feoffees fhould make such an fhould de- eftate as he fhould appoint them; and if he appointed none, then the ufe clare in their should go to the heir, as the eftate it felf of the land fhould have done; for will. the ufe was to the estate like a fhadow following the body. to fuch per niences of putting land into ufe. The inconve- By this courfe of putting lands into ufe there were many inconveniences, as this ufe which grew first for a reasonable cause, viz. to give men power and liberty to difpofe of their own, was turned to deceive many of their just and reafonable rights; as namely, a man that had caufe to fue for his land, knew not against whom to bring his action, nor who was owner of it. The wife was defrauded of her thirds; the husband of being tenant by courtesy; the lord of his wardship, relief, heriot, and efcheat; the creditor of his extent for debt; the poor tenant of his leafe; for these rights and duties were given by law from him that was owner of the land, and none other; which was now the feoffee of truft; and fo the old owner, which we call the feoffor, fhould take the profits, and leave the power to dispose of the land at his difcretion to the feoffee; and yet he was not fuch a tenant as to be feised of the land, fo as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treafon, or that his heir could be in ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leafes of it. The frauds WHICH frauds by degrees of time as they encreased, were remedied by of conveyan- divers ftatutes; as namely, by a ftatute of 1 H. VI. and 4 H. VIII. it was apces to use, by degrees of pointed that the action may be tried against him which taketh the profits, time, as they which was then ceftuy que ufe by a ftatute made 1 R. III. Leafes and estates made by ceftuy que ufe are made good, and eftates by him acknowledged. H. VII. the heir of ceftuy que ufe is to be in ward; 16 H. VIII. the lord is to have relief upon the death of any ceftuy que ufe. increased, were reme died by the ftatutes. 27 H. 8. ta all uses, re 4 I WHICH frauds nevertheless multiplying daily, in the end 27 H. VIII. the king away parliament purpofing to take away all thofe ufes, and reducing the law to the duceth the ancient form of conveying of lands by publick livery of feifin, fine, and recolaw to the an-very, did ordain, that where lands were put in truft or ufe, there the pofcient form of feffion and eftate fhould be prefently carried out of the friends in truft, and of land, by fettled and invested on him that had the uses, for fuch term and time as he had the use. conveyances feoffment, fine, and recovery. ner the ftat. of 32 H. 8. By this ftatute of 27 H. VIII. the power of difpofing land by will, is clearIn what man-ly taken away amongst those frauds; whereupon 32 H. VIII. another ftatute was made, to give men power to give lands by will in this fort. First, it giveth power must be by will in writing. Secondly, he must be feifed of an eftáte in feeto difpofe of fimple; for tenant for another man's life, or tenant in tail, cannot give land by will; by that ftatute 32 H. VIII. he must be folely feifed, and not jointly with another; and then being thus feifed, for all the land he holdeth in focage lands by will. 2 focage tenure, he may give it by will, except he hold any piece of land in can If a man be fo- pire lands and and focage, he feifed of ca cannot devife but two parts of of the whole. The third AND fo if he hold lands by knight's-fervice of a fubject, he can devife the land but two parts, and the third the lord by wardship, and the heir by descent is to hold. part muit defcend to anfwer ward AND if a man that hath three acres of land holden in capite by knight's the heir to fervice, do make a jointure to his wife of one, and convey another to any fhip, livery of his children, or to friends, to take the profits, and to pay his debts, or and feifin to legacies, or daughters portions, then the third acre or any part thereof he the crown. cannot give by will, but muft fuffer it to defcend to the heir, and that muft ance by defatisfy wardship. A convey vife of capite lands to the YET a man having three acres as before, may convey all to his wife, or wife for her children by conveyance in his life-time, as by feoffment, fine, recovery, bar- jointure, &c. void for a gain and fale, or covenant to ftand feifed to uses, and difinherit the heir. third part,by But if the heir be within age when his father dieth, the King or other lord 32 H. VIII. fhall have that heir in ward, and fhall have one of the three acres during But a conthe wardship, and to fue livery and feifin. But at full age the heir fhall act executed have no part of it, but it shall go according to the conveyance made by the in the lifefather. veyance by time of the party of fuch IT hath been debated how the thirds fhall be fet forth. For it is the lands to fuch ufes is not ufe, that all lands which the father leaveth to defcend to the heir, being void; but if fee-fimple, or in tail, must be part of the thirds; and if it be a full third, the heir be then the king, nor heir, nor lord, can intermeddle with the reft; if it be within age, not a full third, yet they must take it fo much as it is, and have a fupply out of the reft. he shall have one third to be in ward. Entailed The King nor lord can THIS fupply is to be taken thus; if it be the King's ward, then by a lands part of commiffion out of the court of wards, whereupon a jury by oath muft fet the thirds. forth fo much as fhall make up the thirds, except the officers of the court of wards can otherwife agree with the parties. If there be no wardship not interdue to the King, then the other lord is to have this fupply by a commiffion meddle if a out of the chancery, and jury thereupon. BUT in all those cafes, the ftatutes do give power to him that maketh to defcend to the will, to fet forth and appoint of himself which lands fhall for thirds, go and neither King nor lord can refufe it. And if it be not enough, must take that in part, and only have a supply in manner as before tioned out of the reft. full third part be left the heir. yet they of making 1. Property the part of the heir is not a full third. The ftatutes give power to the teftator to set out the third himfelf, &c. A deed of gift of goods to deceive his creditors is void against them, but the execu BY 1. Property by gift. gift, the property of goods may be paffed by word or writing; but if there be a general deed of gift made of all his goods, this is fufpicious to be done upon fraud, to deceive the creditors. AND if a man who is in debt make a deed of gift of all his goods to progood against tect the taking of them in execution for his debt, this deed of gift is void, tors, admini-as against those to whom he stood indebted; but as against himself, his ftrators, or own executors or adminiftrators, or any man to whom afterwards he shall vendee of the fell or convey them, it is good. party him felf. What is a fale bona fide and what not, P 2. By fale. ROPERTY in goods by fale. By fale, any man may convey his own goods to another; and although he may fear execution for debts, yet he when there is may fell them out-right for money at any time before the execution ferved; a private re fo that there be no refervation of truft between them, that repaying the motruft between ney, he shall have the goods again; for that trust in such case, doth prove the parties. plainly a fraud, to prevent the creditors from taking the goods in execution. fervation of How a fale in market fhall be a bar ro the owner. P 3. By theft or taking in jeft. me, ROPERTY of goods by theft, or taking in jeft. If any man steal my goods or chattels, or take them from me in jeft, or borrow them of or as a trefpaffer or felon carry them to the market or fair, and fell them, this fale doth bar me of the property of my goods, faving, that if he be a horfe he must be ridden two hours in the market or fair, between ten and five a clock, and tolled for in the toll-book, and the feller must bring one to avouch his fale, known to the toll-book-keeper, or else the fale bindeth me not. And for any other goods, where the fale in a market or fair fhall bar the owner, being not the feller of his property, it must be fale in a market or fair, where ufually things of that nature are fold. As for examOf markets; ple; if a man steal a horfe, and fell him in Smithfield, the true owner is baranarets fuch red by this fale; but if he fell the horse in Cheapfide, Newgate or Wefta fale ought minfter market, the true owner is not barred by this fale; because these marto be made kets are ufual for flesh, fish, &c. and not for horses. and what markets in. The owner may feife his goods after they are ftolen. If the thief be condemn So whereas by the custom of London in every shop there is a market all the days of the week, faving Sundays and Holidays; yet if a piece of plate or jewel that is loft, or chain of gold or pearl that is ftolen or borrowed, be fold in a draper's or fcrivener's fhop, or any other but a goldsmith's, this fale barreth not the true owner, & fic in fimilibus. YET by stealing alone of goods, the thief getteth not fuch property, but that the owner may feife them again wherefoever he findeth them, except they were fold in fair or market, after they were stolen; and that bona fide without fraud. BUT if the thief be condemned of the felony, or out-lawed for the ed for felony, fame, or out-lawed in any perfonal action, or have committed a forfeiture of or outlawed, goods to the crown, then the true owner is without remedy. or forfeit the ftolen goods NEVERTHELESS, if fresh after the goods were ftolen, the true owner to the crown, maketh purfuit after the thief and goods, and taketh the goods with the the owner is thief, he may take them again; and if he make no fresh pursuit, yet if he without re medy. profecute take his profecute the felon, so far as juftice requireth, that is, to have him arraigned, When the indicted, and found guilty (though he be not hanged, nor have judgment of owner may death) or have him out-lawed upon the indictment; in all these cafes he fhall have his goods again, by a writ of reftitution to the party in whofe the thief. hands they are. 4. By waving of goods. goods from If he convict the thief of the fame felony, he shall have his Y waving of goods, a property is gotten thus. A thief having stolen goods again by writ of B goods, being purfued, fieth away and leaveth the goods. This leaving patios. is called waving, and the property is in the King; except the lord of the manor have right to it, by custom or charter. BUT if the felon be indicted, adjudged, or found guilty, or outlawed, at the fuit of the owner of these goods, he shall have reftitution of these goods, as before. B 5. By fraying. Y straying, property in live cattel is thus gotten. When they come into other mens grounds ftraying from the owners, then the party or lord into whose grounds or manors they come, caufeth them to be feised, and a wythe put about their necks, and to be cried in three markets adjoining, fhewing the marks of the cattel; 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 ftrays by custom or charter, else to the King. 6. Wreck, and when it shall be faid to be. BY hipwreck, property of goods is thus gotten. When a fhip loaden is caft away upon the coafts, fo that no living creature that was in it when it began to fink escaped to land with life, then all those goods are faid to be wrecked, and they belong to the crown if they be found; except the lord of the foil adjoining can entitle himself unto them by cuftom, or by the King's charter. 7. Forfeitures. OY forfeitures, goods and chattels are thus gotten. If the owner be out-lawed, if he be indicted of felony, or treafon, or either confess it, or be found guilty of it, or refufe to be tried by peers or jury, or be attainted by judgment, or fly for felony (although he be not guilty,) or fuffer the exigent to go forth against him (although he be not outlawed,) or that he go over the feas without licence, all the goods he had at the judgment, he forfeiteth to the crown; except fome lord by charter can claim them. For in thofe cafes prescription will not ferve, except it be so ancient, that it hath had allowance before the juftices in eyre in their circuits, or in the King'sbench in ancient time. BY 8. By executorship. Y executorship goods are gotten. When a man poffeffed of goods maketh his laft will and teftament in writing or by word, and maketh VOL. IV. X one reftitution. |