The course

ed before

For which cause, it was reason that the law that invent- should permit him to reserve to the last instant the the stat. of disposing of his lands, and to give him means to dispose of it; which seeing it did not fitly serve, men used this devise:

32 H. 8.

first gave

power to devise

lands by

convey

ance of lands to

feoffees in trust, to

such pershould de

sons as they

They conveyed their full estates of their lands, in will, was a their good health, to friends in trust, properly called feoffees in trust; and then they would by their wills declare how their friends should dispose of their lands; and if those friends would not perform it, the court of chancery was to compel them by reason of trust; and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he should appoint them; and if he appointed none, then the use should go to the heir, as the estate itself of the land should have done; for the use was to the estate like a shadow following the body.

clare in their will.

The inconveniencies of putting

land into use.

as

By this course of putting lands into use there were many inconveniences, as this use, which grew first for a reasonable cause, namely, to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; 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 feoffer, 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 in

.

ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it.

of convey

grees

time, as

creased,

Which frauds by degrees of time, as they increas- The frauds ed, were remedied by divers statutes: as namely, by a ances to statute of 1 H. VI. and 4 H. VIII. it was appointed use, by dethat the action may be tried against him which of taketh the profits, which was then cestuy que use; by they a statute made 1 R. III. leases and estates made by cestuy que use are made good, and estates by him died by the 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.

were reme

statutes.

away all

eth the law

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

that cient form pos- ances of out land, by fe

of convey

offment,

stat. of

power to

lands by

will.

By this statute of 27 H. VIII. the power of dis- In what posing land by will is clearly taken away amongst manner the those frauds; whereupon 32 H. VIII. another sta- 32 H. 8. tute was made, to give men power to give lands by giveth will in this sort. First, it must be by will in writing. dispose of Secondly, he must be seised of an estate in feesimple; for tenant for another man's life, or tenant 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 If a man be land he holdeth in socage tenure, he may give it by capite lands will, except he hold any piece of land in capite by and socage, knight's service of the king; and then laying all he cannot together, he can give but two parts by will: for the two parts of third part of the whole, as well in socage as in capite, must descend to the heir, to answer wardship, livery, The third and primer seisin to the crown.

seised of

devise but

the whole.

part must descend to

answer

And so if he hold lands by knight's service of a the heir to subject, he can devise of the land but two parts, wardship,

livery and and the third the lord by wardship, and the heir by seisin to the descent is to hold.

crown.

A convey

vise of

to the wife

And if a man that hath three acres of land holden ance by de- in capite by knight's service, do make a jointure to his capite lands wife of one, and convey another to any of his children, for her join. or to friends, to take the profits, and to pay his debts, ture, etc. or legacies, or daughters' portions, then the third acre third part, or any part thereof he cannot give by will, but must by 32 H. suffer it to descend to the heir, and that must satisfy wardship.

void for a

VIII.

But a conveyance by

life-time of

to such uses

Yet a man having three acres as before, may conact execut- vey all to his wife, or children, by conveyance in his ed in the life-time, as by feoffment, fine, recovery, bargain the party of and sale, or covenant to stand seised to uses, and such lands disinherit the heir. But if the heir be within age is not void: when his father dieth, the king or other lord shall have that heir in ward, and shall have one of the three within age, acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of third to be it, but it shall go according to the conveyance made Entailed by the father.

but if the

heir be

he shall

have one

in ward.

lands part

of the thirds.

The king cannot intermeddle

nor lord

if a full

third part

be left to descend to

the heir.

The manner

supply,

when the

It hath been debated how the thirds shall be set forth. For 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 thirds: and if it be a full third, then the king, 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 of making king's ward, then by a commission out of the court of wards, whereupon a jury by oath must set forth part of the so much as shall make up the thirds, except the heir is not a officers of the court of wards can otherwise agree with the parties. 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.

full third.

Thestatutes

But in all those cases, the statutes do give power give power to him that maketh the will, to set forth and aptator to set point of himself which lands shall go for thirds, and

to the tes

neither king nor lord can refuse it. And if it be out the third not enough, yet they must take that in part, and himself, etc. only have a supply in manner as before is mentioned

to deceive

By gift, the property of goods may be passed by a deed of word or writing; but if there be a general deed of gift gift of goods made of all his goods, this is suspicious to be done his crediupon fraud, to deceive the creditors.

tors is void

against

good

against the

And if a man who is in debt make a deed of gift them, but of all his goods to protect the taking of them in execution for his debt, this deed of gift is void, as executors, against those to whom he stood indebted; but as tors, or

administra

against himself, his own executors or administrators the party

or any man to whom afterwards he shall sell or convey himself. them, it is good.

II. By sale.

fide and

where there

is a private

Property in goods by sale. By sale, any man may What is a convey his own goods to another; and although he sale bona may fear execution for debts, yet he may sell them what not, out-right for money at any time before the execution whe served; so that there be no reservation of trust be- reservation tween them, that, repaying the money, he shall have the goods again; for that trust, in such case, doth parties. prove plainly a fraud, to prevent the creditors from taking the goods in execution.

of trust be

tween the

How a sale in market

shall be a bar to the

owner.

III. By theft, or taking in jest.

Property of goods by theft, or taking 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 tollbook-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 Of markets, usually things of that nature are sold. As for exammarket such ple; if a man steal a horse, and sell him in Smithfield, a sale ought the true owner is barred by this sale; but if he sell to be made 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, etc. and not for horses.

and what

in.

The owner

his goods

So whereas by the custom of London in 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 but a goldsmith's, this sale barreth not the true owner, et sic in similibus.

Yet by stealing alone of goods, the thief getteth not may seize such property, but that the owner may seize them after they again wheresoever he findeth them, except they were are stolen. sold in fair or market, after they were stolen, and that bona fide without fraud.

If the thief be con

demned for

But if the thief be condemned of the felony, or outlawed for the same, or outlawed in any personal acfelony, or tion, or have committed a forfeiture of goods to the crown, then the true owner is without remedy.

outlawed,

or forfeit

the stolen

goods to the crown,

Nevertheless, if fresh after the goods were stolen, the true owner maketh pursuit after the thief and the owner goods, and taketh the goods with the thief, he may take them again; and if he make no fresh pursuit,

is without

remedy.