The inconveni

By this course of putting lands into ences of putting use, there were many inconveniences land into use. (as this use which grew first for a reasonable cause), viz. to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; as, namely, a man that had cause to sue 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 escheat; the creditor of his extent for debt; the poor tenant of his lease, 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 trust, and so the old owner, which we call the feoffor, should take the profits, and leave the power to dispose of the land at his discretion to the feoffee, and yet he was not such a tenant as to be seised of the land, so as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treason, or that his heir could be ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it.

The frauds of conveyances to use by degrees

of time is the

remehed by the

4 H. 8. I R. 3.

Which frauds, by degrees of time, as they increased, were remedied by divers statutes; as, namely, by a statute of 1 H. VI. and 4 H. VIII. it was appointed that the action may be tried against him which taketh the profits, which was then cesluy que use by a statute made 1 R. III. Leases and estates made by cestuy que use are made good, and statutes by him acknowledged. 4 H. VII. the heir of cestuy que use is to be in ward. 16 H. VIII. the lord is to have relief upon the death of any cestuy que use.

Which frauds nevertheless multiplying daily, 27 H. 8. taking in the end 27 H. VIII. the Parliament, purposing to take away all those uses, and reducing the law to the ancient of form of conveying of lands by public livery of seisin, fine, and recovery, did ordain, that where lands were put in trust or use, there the possession and estate should be presently carried out of the friends in trust, and settled and invested on him that had the uses, for such term and time as he had the use.

In what manner

the stat. of power to dis

32 H. S. giveth

pose of lands

If a man be

sesed of capite

lands and soc

power of disposing land by will is clearly taken away amongst those frauds; whereupon 32 H. VIII. another by will. statute was made, to give men power to give lands by will in this sort. First, it must be by will in writing. Secondly, he must be seised of an estate in fee-simple; for tenant for another man's life, or term in tail, cannot give land by will, by that statute, 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the land he holdeth in soccage tenure, he may give it by will, except he hold any piece of land in capite, by knight's service of the king; and then, laying all his lacks together, he can give but two parts by will, for the third part of the whole, as well in soccage as in capite, must descend to the heir, to answer wardship, livery, and primer seisin to the crown. And so if he hold lands by knight's service of a subject, he can devise of the land but two parts, and the third swerguardebit, the lord by wardship, and the heir by descent, is to hold.

cage, Le cannot parts of the

devise but two

whole.

The third part must descend to the heir to anlivery, sin to the

crown.

A conveyance by devise of c to the wife for her jointure, or to

preds

his children for

or

pay debts in

And if a man that hath three acres of land holden in capite, by kright's service, do make a jointure to his wife of one, and convey another to any of his children, or to friends, to take the pro- to ford fits and to pay his debts, or legacies, or part, by 32 11. 8. daughters' portions, then the third acre, or any part thereof, he cannot give by will, but must suffer it to descend to the heir, and that must satisfy wardship.

actexe

party of such lards to such uses is not void, but a third

part; but if the heir be within age, he shall have one of the acres to be in

Yet a man, having three acres as But a conveybefore, may convey all to his wife or an children, by conveyance, in his life-he time, as by feoffment, fine, recovery, bargain, and sale, or covenant to stand seised to uses, and to disinherit the heir. But if the heir be within age when his father dieth, the king or other ward. lord shall have that heir in ward, and shall have one of the three acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of it, but it shall go according to the conveyance made by the father.

Entailed lands thirds. The king nor lord cannot in. termeddle if

all third part bede

left to de.

It hath been debated how the thirds shall be set forth. For it is the use that part of the all lands which the father leaveth to descend to the heir, being fee-simple, or in tail, must be part of the thirds and if it be a full third, then the king, heir. nor heir, nor lord, can intermeddle with the rest; if it be not a full third, yet they must take it so much as it is, and have a supply out of the rest. This supply is to be taken thus; if it be the king's ward, then by a commission out of the court of wards, whereupon a jury by oath must set

The manner of when the part of the beir is pet a full bird.

making supply

III. By theft, or taking in jest.

Property of goods by theft, or taking rker shall be in jest. If any man steal my goods or chattels, or take them from me in jest, or borrow them of me, or as a trespasser or felon

carry them to the market or fair, and sell them, this sale doth bar me of the property of my goods, saving that if he be a horse he must be ridden two hours in the market or fair, between ten and five o'clock, and tolled for in the toll book, and the seller must bring one to avouch his sale, known to the toll book keeper, or else the sale bindeth me not. And for any other goods, where the sale in a market or fair shall bar the owner, being not the seller of his property, it must be sale in a market or fair where usually things of that nature are sold. As for example: if a man steal a horse, and sell him in sale ought to be Smithfield, the true owner is barred by this sale; but if he sell the horse in Cheapside, Newgate, or Westminster Market, the true owner is not barred by this sale, because these markets are usual for flesh, fish, &c., and not for horses.

Of markets, markets such a

and what

made in.

out remedy.

to

If the thief be couden.nod for folony, or out lawed, or forfeit the stolen goods to the crown, the owner is without remedy. But if he make fresh pursuit he may his goods

lakes

cuted lave

ad

convict him lony, he shall again by a writ of restitution.

bave he goods

Nevertheless, if fresh after the goods were stolen, the true owner maketh edhe pursuit after the thief and goods, and taketh the goods with the thief, he may take them again. And if he make no fresh pursuit, yet if he prosecute the felon so far as a justice requireth, that is, to have him arraigned, indicted, and found guilty (though he be not hanged, nor have judgment of death,) or have him outlawed upon the indictment; in all these cases he shall have his goods again, by a writ of restitution to the party in whose hands they are.

IV. By waving of goods.

By waving of goods a property is gotten thus. A thief having stolen goods being pursued, flieth away and leaveth the goods. This leaving is called waving, and the property is in the king; except the lord of the manor have a right to it by custom or charter.

But if the felon be indicted, adjudged, or found guilty, or outlawed at the suit of the owner of

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

ten.

V. By straying.

By straying property in live cattle is thus got 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.

What probate

of the will is, manner it is

and in what

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 usus.

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.

1. Judgments.

3. Debts bonds and bills unpaid.

wages.

6. Head work

men.

7. Shop book, by word.

And if there be more executors than Executor ought one, so many as list may refuse, and to if any one take it upon him, the rest arecogn that did once refuse may when they bonds a will take it upon them, and no execu- 14. Rent unp tor 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

But it is not so with administrators, administrators. for they have but one authority given them by the bishop over the goods, which authority 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 exeси

tor to the first testator.

But otherwise, if the adminis uator die

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.

administrator miny relain; be cause the exe cutors are

charged to pay

some debts be

Property by legacy is where a man Executors of 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.

Executor naf which h

art. if the

executors

sell any legacy

But

And if the executors doubt that they shall not have enough to pay everych legacy, they may pay which they list first; but they may not sell any special want they may legacy which they will to pay debts, to pay debts. or a lease of goods to pay a money-legacy. 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 executors, or if the executors refuse, the ordinary is to commit administration cum testamento annexo, and take 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.

When a will is

made, and no named, admi be committed