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VIII. the lord is to have relief upon the death of any cestui que


Which frauds multiplying nevertheless daily, in the end the parliament of 27 H. VIII., purposing to take away all those uses, and reduce the law to the ancient form of conveying land by public livery and 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 vested in him that had the use, for such term and time as he had the use.

By this statute of 27 H. VIII. the power of disposing land by will was clean taken away amongst those frauds; and so the statute did, disperdere justum cum impio: whereupon, 32 H. VIII., another 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 tenant in tail, cannot give land by will by that statute: thirdly, he must be solely seised, and not jointly with another; and then being thus seised, for all the land he holdeth in socage tenure, he may give it by will; except he hold any piece of land in capite by knight-service of the King, and then, laying all together, he can give but two parts by will; and the third part of the whole, as well socage as in capite, must descend to his heir, to answer wardship, livery, and primer seisin to the crown.

And so if he hold lands by knight-service of a subject, he can of that land give but two parts by will; and the third the lord by wardship, and the heir by descent, is to hold.

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

Yet a man, having three acres, as before, may convey all to his wife or children by conveyance in his life time, as by feoffinent, fine, recovery, bargain and sale, or covenant to stand seised to uses, and so disinherit the heir. But if his heir be within age when the father dieth, the King or other lord shall have that heir in ward, and shall have one of these three acres

during the wardship, and to sue livery and primer 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.

It hath been doubted how the thirds shall be set forth for that it is the use that all lands which the father leaveth to descend to the heir, being fee-simple or in tail, must be part of the third; and if it be a full third, then the King, nor lord, nor heir, can intermeddle with any of the rest; if it be not a full third yet they must take 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 out so much as will make up the third, except the officers of the court of wards and the parties can otherwise agree: if there be no wardship due to the King, then the other lord is to have this supply by a commission out of the Chancery, and jury thereupon.

But in all those cases the statute doth give power to him that maketh the will to set forth and appoint of himself which lands shall go for thirds, and neither King nor lord can refuse it. And if it be not enough, yet they must take that in part, and only have a supply, in manner as before is mentioned, out of the rest.

Property in goods and chattels is gained in ten ways: 1. by gift; 2. by sale; 3. by stealing; 4. by waiving; 5. by straying; 6. by shipwreck; 7. by forfeiture; 8. by executorship; 9. by administration; 10. by legacy.

1. By gift, property of goods may pass by words or writing. But if there be a general deed of gift made of all his goods, this is suspicious to be done upon some fraud, to deceive the creditors. And if a man that is in debt make a deed of gift to prevent the taking them in execution for his debt, this deed of gift is void as against those to whom he stood indebted; but as against himself, his own executors, or administrators, or any man to whom he shall afterwards sell or convey them, the deed is good.

2. By sale, any man may convey his own goods to another. And although he fear executions for debts, yet he may sell them outright for money at any time before the execution served, so there be no reservation of trust between the parties that, paying the money, he shall have the goods again; for that trust, in

such case, doth plainly prove a fraud to prevent his creditors from taking the goods in execution.

3. If a man steal my goods or chattels, or take from me in jest, or borrow them of me, or as trespasser and not felon take them away, and carry them to a market or fair, and there sell them; this sale doth bar me of the property of my goods: saving that, if it be a horse, he must be ridden two hours in the open market or fair, between ten and five of the clock, and tolled for in the toll book, and the seller must bring one to avouch the sale known to the toll-book keeper, or else the sale bindeth me not. And for any other goods, where the sale in market or fair shall bar the true 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 Smithfield, the true owner is barred by this sale; but if he sell the horse in Cheapside, or Newgate market, or Westminster market, the true owner is not barred, because these markets are usual for herbs', flesh, fish, &c. and not for horses. So, whereas by the custom of London every shop there is a market all the days of the week, saving Sundays and holidays; yet if a piece of plate or jewel that is lost, or chain of gold or pearl that is stolen or borrowed, be sold in a draper's or scrivener's shop, or any other's but a goldsmith, this sale barreth not the true owner; et sic in similibus.

Yet by stealing of goods alone the thief getteth no such property but that the owner may seize them again wheresoever he findeth them, except they have been sold in fair or market after they were stolen, and that bonâ fide without fraud.

But if the thief be condemned of the felony, or outlawed for the same, or outlawed in any personal action, or any way commit a forfeiture of goods to the crown, then the true owner is without remedy for those goods.

Nevertheless, if freshly after they were stolen the true owner make fresh pursuit after the thief and goods, and take the goods with the thief, he may take his goods again: and if he make no fresh pursuit, yet if he prosecute the felon so far as justice requireth, that is, if he get him indicted, arraigned, and found guilty, though he be not hanged nor have judgment of death, or have him outlawed upon the indictment, or to have judgment of death; in all these cases he shall have his goods

1 So in the two MSS.: omitted in the printed text.

again by a writ of restitution to the party in whose custody they be.

4. By waiving, the property of goods is thus gotten. A thief having stolen goods, and being pursued, flying away and leaving the goods, this leaving is called waiving; and the property is in the King, except the lord of the manor have right to them by custom or charter.

But if the felon be indicted and judged, or found guilty, or outlawed at the suit of the owner of these goods, he shall have restitution of the goods as before.

5. By straying, property in live cattle is thus gotten. When they come into other men's grounds, straying away from the owners, then the party or lord into whose grounds or manor they come causeth them to be seized, and a withe to be put about their necks, and to be cried in the markets adjoining, showing the marks of the cattle; which done, if the true owner claim 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 estrays by custom or charter, else in the King.

6. By wreck, property is thus gotten. When a ship laden is cast away upon the coast, so that no living creature that was in it when it began to sink escapeth to the 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 by custom, (which we call prescription2,) or the King's charter.

7. By forfeiture, goods and chattels are thus gotten. If the owner be outlawed; if he be indicted of felony, or treason, and either confess it or else 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 if he go beyond seas without license; all the goods he hath at the judgment be forfeited to the crown; except some lord by charter can claim them. For in those cases prescription 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.

1 So Harl. MS. The printed text has "three markets," and the Sloane MS. "three market days." Two proclamations in two several markets are required.

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8. By executorship goods are gotten thus. When a man that is possessed of goods maketh his last will and testament in writing or by word, and maketh one or more executors thereof, these executors have by this will and the death of the party the property of all his goods, chattels, and leases for years, wardships of lands and body, extents of statutes, judgments, and recognisances, and all debts and specialities, as bills, bonds, and covenants of debt, and all conditions upon sale of leases for years, wardships, or extents, and all right concerning those things.

These executors may meddle with the goods and dispose them before they prove the will; but they cannot bring an action for any debt or duty belonging to their testator before they have proved the will.

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

9. By letters of administration property is thus gotten. When a man possessed of goods dieth without any will, there such things as executors should have had if he had made a will were by the ancient law to come to the bishop of the diocese, to dispose for the good of his soul that is dead, he first paying his funeral and debts, and giving the rest in pios 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 to 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 other will take it as the bishop's officers shall think meet.

It groweth often in question what bishop should have the right of proving wills, and granting administration of goods. In which controversy the rule is thus: that if the party dead had at his death known goods of some reasonable value, called bona notabilia, in divers dioceses, then the Archbishop of the province where he died is to have the probate of his will, or to grant the administration of his goods, as the case falleth out; otherwise, the bishop of the diocese where he died is to do it.

If there be but one executor made, yet he may refuse the

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