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father could not put it from him, it made the son to be disobedient, negligent, and wasteful, often marrying without the father's consent, and to grow insolent in vice, knowing that there could be no check of disinheriting him. It also made the owners of the land less fearful to commit murders, felonies, treasons, and manslaughters; for that they knew none of these acts could hurt the heir of his inheritance. It hindered men that had entailed lands, that they could not make the best of their lands by fine and improvement, for that none, upon so uncertain an estate as for term of his own life, would give him a fine of any value, nor lay any great stock upon the land, that might yield rent improved.

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The stat. 4 H.

VII. and 32 H. VIII. to bar

estates tail by

fine.

These inconveniencies were all remedied by acts of parliament; as namely, by acts of parliament later than the act of entails, made 4 H. VII. 32 H. VIII. a tenant in tail may disinherit his son by a fine with proclamation, and may by that means also make it subject to his debts and sales. By a statute made 26 H. VIII. a tenant in tail doth forfeit his lands for treason; and by another act of parliament, 32 H. VIII. he may make leases good against his heir for one and twenty years, or three lives; so that it be not of his chief houses, lands, or demesne, or any lease in reversion, nor less rent reserved than the tenants have paid most part of one and twenty years before, nor have any manner of discharge for doing wastes and spoils: by a statute

26 H. VIII. 32 H. VIII.

made 33 H. VIII. tenants of entailed 33 H. VIII. 13 et 39 Eliz. lands are liable to the king's debts by Entails two extent; and by statutes made 13 and privileges; 1. Not forfeitable 39 Eliz. they are saleable for the arfor felony. 2. Not extend- rearages upon his account for his office; so that now it resteth, that entailed party after his lands have two privileges only, which death provi- be these: First, not to be forfeited for felonies. Secondly, not to be extended for debts after the party's death, except the entails be cut off by fine and re

able for the debts of the

so, not to ex

clude his next to forfeit his estate, and the

next heir must enter.

Of a perpetuity, which is an entail with

an addition. These perpe

former incon

estates tail.

covery.

But it is to be noted, that since these notable statutes, and remedies provided by statutes, to dock entails, there tuities would is started up a devise called perpetuity, bring in all the which is an entail with an addition of veniencies of a proviso conditional, tied to his estate, not to put away the land from his next heir; and if he do, to forfeit his own estate. Which perpetuities, if they should stand, would bring in all the former inconveniencies subject to entails, that were cut off by the former mentioned statutes, and far greater: for by the perpetuity, if he that is in possession start away never so little, as in making

tuities.

a lease, or selling a little quillet, forgetting after two or three descents, as often they do, how they are tied; the next heir must enter, who peradventure is his son, his brother, uncle, or kinsman; and this raiseth unkind suits, setting all the The inconkindred at jars, some taking one part, veniencies of some another, and the principal parties those perpewasting their time and money in suits of law; so that in the end they are both constrained by necessity to join in a sale of the land, or a great part of it, to pay their debts, occasioned through their suits. And if the chief of the family, for any good purpose of well seating himself, by selling that which lieth far off, to buy that which is near, or for the advancement of his daughters, or younger sons, should have reasonable cause to sell, this perpetuity, if it should hold good, restraineth him. And more than that, where many are owners of inheritance of land not entailed, may, during the minority of his eldest son, appoint the profits to go to the advancement of the younger sons and daughters, and pay debts; but by entails and perpetuities, the owners of these lands cannot do it, but they must suffer the whole to descend to the eldest son, and so to come to the crown by wardship all the time of his infancy.

strain men by these perpe

tuities from alienations, or

to hazard the houses by unthrifty půs

undoing of

terity.

The last and

Wherefore, seeing the dangerous Query. times and untowardly heirs, they might whether it be prevent those mischiefs of undoing their better to rehouses, by conveying the land from such heirs, if they were not tied to the stake by those perpetuities, and restrained from forfeiting to the crown, and disposing it to their own, or to their children's good; therefore it is worthy of consideration, whether it be better for the subject and sovereign to have the lands secured to men's names and bloods by perpetuities, with all the inconveniencies above mentioned, or to be in hazard of undoing his house by unthrifty posterity. 4. The last and greatest estate of lands is fee-simple, and beyond this greatest estate there is none of the former for lives, in land is feesimple. years, or entails; but beyond them is fee-simple. For it is the greatest, last, and uttermost degree of estates in land; therefore he that maketh a lease for life, or a gift in tail, may appoint a remainder when he maketh another A remainder for life or in tail, or to a third in fee- cannot be limited upon simple; but after a fee-simple he can an estate in limit no other estate. fee-simple. And if a man do not dispose of the fee-simple by way of remainder, when he maketh the gift in tail, or for lives, then the fee-simple resteth in himself as a reversion. The difference between a reversion and a remainder is this. The remainder is always a succeeding estate, appointed between a reupon the gifts of a precedent estate at mainder and a the time when the precedent is appointed. But the reversion is an estate left in the giver, after a particular estate made by him for years, life, or entail. Where the re- A reversion mainder is made with the particular cannot be estates, then it must be done by deeds granted by

The difference

reversion.

Atturnment

the grant of

the reversion.

compellable to atturn, but where the reversion is granted by fine.

in writing, with livery and seisin, and cannot be by words; and if the giver will dispose of the reversion after it remaineth in himself, he is to do it in writing, and not by word, and the tenant is to have notice of it, and to atturn to must be had to it, which is to give his assent by word, or paying rent, or the like; and except The tenant not the tenant will thus atturn, the party to whom the reversion is granted cannot have the reversion, neither can he compel him by any law to atturn, except the grant of the reversion be by fine; and then he may by writ provided for that purpose: and if he do not purchase that writ, yet by the fine the reversion shall pass: and the tenant shall pay no rent, except he will himself, nor be punished for any waste in houses, woods, &c. unless it be granted by bargain and sale by indenture enrolled. These fee-simple estates lie open to all perils of forfeitures, extents, encumbrances, and sales.

5.

Lands are conveyed by these six

means:

Lands may be conveyed, 1. By feoffment. 2. By fine. 3. 1. By feoffment, which is, where by By recovery. deed lands are given to one and his 4. By use. By covenant. heirs, and livery and seisin made ac6. By will. cording to the form and effect of the deed; if a lesser estate than fee-simple be given, and livery of seisin made, it is not called a feoffment, except the fee-simple be conveyed, but is otherwise called a lease for life or gift in tail, as above mentioned.

What a fine 2. A fine is a real agreement, beginis, and how ning thus," Hæc est finalis concordia," lands may be conveyed etc. This is done before the king's hereby. judges in the court of common pleas, concerning lands that a man should have from another to him and his heirs, or to him for his life, or to him and the heirs males of his body, or for years certain, whereupon rent may be reserved, but no condition or covenants. This fine is a record of great credit; and upon this fine are four proclamations made openly in the common pleas; that is, in every term one, for four terms together; and if any man having right to the same, make not his claim within five years after the proclamations ended, he loseth his right for ever, except he be an infant, a woman covert, a madman, or beyond the seas, and then his right is saved; so that the claim be within five years after full age, the death of her husband, recovery of his wits, or return from beyond the seas. This fine is called a feoffment of record, because that it includeth all the feoffment doth, and worketh farther of its own nature, and barreth entails peremptorily, whether the heir doth claim within five years or not, if he claimed by him that levied the fine.

Five years non-claim barreth not, 1. An infant. 2 Feme co3. Mad4. Beyond sea.

vert.

man.

Fine is a feoffment of record.

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Common

of the court.

warranted unto him, and pray that I. H. may be called in to defend the title, which I. H. is one of the criers of the common-pleas, and is called the common vouchee. This I. H. shall appear and make as if he would defend it, but vouchee one shall pray a day to be assigned him in of the criers his matter of defence; which being granted him, at the day he maketh default, and thereupon the court is to give judgment against him; which cannot be for him to lose his lands, because he hath it not, but the party that he hath sold it to hath that, who vouched him to warrant it. Therefore the demandant who hath no defence made against it, must have judgment to have the land against him that he sued, who is called the tenant, and the tenant is to have judgment against I. H. to recover in value so much land of his, where in truth he hath none, nor never will. And by this device, grounded upon the strict principles of law, the first tenant loseth the land, and hath nothing for it; but it is by his own agreement for assurance to him that brought it.

Judgment for the demandant against the tenant in

tail.

Judgment for tenant to re

cover SO

much land in common vou

value of the

chee.

estate tail and all rever

sions and rethereupon.

mainders

The reason

This recovery barreth entails, and all A recovery remainders and reversions that should barreth an take place after the entails, saving where the king is giver of the entail, and keepeth the reversions to himself; then neither the heir, nor the remainder, nor the reversion, is barred by the recovery. The reason why the heirs, remainders, and reversions are thus barred, is because in strict law the recompence adjudged against the crier that was vouchee, is to go in succession of estate as the land should have done, and then it was not reason to allow the heir the liberty to keep the land itself, and also to have recompence; and therefore he loseth the land, and is to trust to the recompence.

why a common recovethose in remainder and

ry barreth

reversions.

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Upon feoffments and recoveries, the estate doth settle as the use and intent of the parties is declared by word or writing, before the act was done: as for example, if they make a writing that one of them shall levy a fine, make a feoffment, or suffer a common recovery to the other: but the use and intent is, that one should have it for his life, and after his decease a stranger to have it in tail, and then a third in feesimple; in this case the land settleth in an estate

according to the use and intent declared: and that by reason of the statute made 27 H. VIII. conveying the land in possession to him that hath interest in the use or intent of the fine, feoffment, or recovery, according to the use and intent of the parties.

Bargains,

sales, and covenants to stand seised to a use, are all grounded upon one statute.

What a use is.

Upon this statute is likewise grounded the fourth and fifth of the sixth conveyances, namely, bargains, and sales, and covenants to stand seised to uses; for this statute, wheresoever it findeth a use, conjoineth the possession to it, and turneth it into like quality of estate, condition, rent, and the like, as the use hath. 4. The use is but the equity and honesty to hold the land in conscientia boni viri. As for example; I and you agree that I shall give you money for your land, and you shall make me assurance of it. I pay you the money, but you make me not assurance of it. Here although the estate of the land be still in you, yet the equity and honesty to have it is with me; and this equity is called the use, upon which I had no remedy but in chancery, until this statute was made of 27 H. VIII. and now this statute conjoineth and conveyeth the land to him that hath the use. I for my money paid to you, have the land itself, without any other conveyance from you; and it is called a bargain and sale.

Before 27 H. 8. there was no remedy for a use, but in chancery.

The stat. of 27 H. 8. doth not pass land upon the payment of money with

dented and enrolled. The stat. of 27 H. 8. extendeth not to

But the parliament that made that statute did foresee, that it would be mischievous that men's lands should so suddenly, upon the payment of a little out a deed in- money, be conveyed from them, peradventure in an alehouse or a tavern upon strainable advantages, did therefore gravely provide another act in the same parliament, that the land upon payment of this money should not pass away, except there were a writing indented, made between the two parties, and the said writing also within six months enrolled in some of the courts at Westminster, or in the sessions rolls in the shire where the land lieth; unless it be in cities or corporate towns where they did use to enrol deeds, and there the statute extendeth not.

places where they did enrol

deeds.

A covenant to stand seised to a use.

Upon an agreement in writing to stand seised to the use of any of his kindred, a use may be created, &c.

5. The fifth conveyance is a covenant to stand seised to uses. It is in this sort: A man that hath a wife and children, brethren and kinsfolks, may by writing under his hand and seal agree, that for their or any of their preferment he will stand seised of his lands to their uses, either for life, in tail, or fee, so as he shall see cause; upon which agreement in writing, there ariseth an equity or honesty, that the land should go according to those agreements; nature and reason allowing these provisions; which equity and honesty is the use. And the use being created in this sort, the statute of 27 H. VIII. before mentioned, conveyeth the estate of the land, as the use is appointed.

A covenant to

stand seised eth not enrolment as a barto a use doth,

to a use need

gain and sale

&C.

And so this covenant to stand seised to uses, is at this day, since the said statute, a conveyance of land; and with this difference from a bargain and sale, in that this needeth no enrolment, as a bargain and sale doth; nor needeth it to be in writing indented, as bargain and sale must: and if the party to whose use he agreeth to stand seised of the land, be not wife, or child, cousin, or one that he meaneth to marry, then will no use rise, and so no conveyance; for although the law alloweth such weighty considerations of marriage and blood to raise uses, yet doth it not admit so trifling considerations, as of acquaintance, schooling, services, or the like.

man may

Upon a fine, feoffment, or recovery, a limit the use listeth, without consider. ation of blood or money. a bargain and sale, or cove

to whom he

Otherwise in

nant.

But where a man maketh an estate of his land to others, by fine, feoffment, or recovery, he may then appoint the use to whom he listeth, without respect of marriage, kindred, or other things; for in that case his own will and declaration guideth the equity of the estate. It is not so when he maketh no estate, but agreeth to stand seised, nor when he hath taken any thing, as in the cases of bargain and sale, and covenant to stand seised to uses. 6. The last of the six conveyances Of the conis a will in writing; which course of veyance of land by will. | conveyance was first ordained by a statute made 32 H. VIII. before which statute no man might give land by will, except it were in a borough town, where there was an especial custom that men might give their lands by will; as in London, and many other places.

The not dislands by will, posing of was thought at the common law.

to be a defect

The not giving of land by will was thought to be a defect at common law, that men in wars, or suddenly falling sick, had no power to dispose of their lands, except they could make a feoffment, or levy a fine, or suffer a recovery; which lack of time would not permit: and for men to do it by these means, when they could not undo it again, was hard; besides, even to the last hour of death, men's minds might alter upon farther proofs of their children or kindred, or increase of children or debt, or defect of servants or friends.

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

The course that was inthe stat. of gave power to devise lands

vented before

32 H. 8. first

by will, was a conveyance

of lands to

feoffees in

trust, to such they should declare in

persons as

their will.

They conveyed their full estates of their lands, in 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.

The inconveniences of putting land into use.

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; 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 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.

The frauds of to use, by degrees of time, as they in

conveyances

creased, were remedied by the statutes.

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 cestuy que use; by a statute made 1 R. III. leases and estates made by cestuy que use are made good, and estates 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.

27 H. 8. taking

away all uses, reduceth the

law to the an

cient form of Conveyances of land, by feoffment, fine, and recovery.

Which frauds nevertheless multiplying daily, in the end, 27 H. VIII. the parliament, purposing to take away all those uses, and reducing the law to the ancient 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 man

ner the stat. of 32 H. 8. giveth power to dispose of lands by will.

By the statute of 27 H. VIII. the power of disposing land by will is clearly taken away amongst those frauds; 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 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised for all the land he holdeth

If a man be seised of ca

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But a convey

ance by act executed in the party of such lands to such uses is not void: but if the heir be

the lifetime of

Yet a man having three acres as before, may convey all to his wife, or children, by conveyance in his life-time as by feoffment, fine, recovery, bargain and sale, or covenant to stand seised to uses, and disinherit the heir. But if the heir be within age when his father dieth, the king or other 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.

within age, he shall have one third to be in ward. Entailed lands part of the thirds.

lord cannot

The king nor intermeddle if a full third part be left to descend to the

heir.

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 feesimple, 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 king's ward, then by a commission out of the court of wards, whereupon a jury by oath must set forth so much as shall make up the thirds, except the 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.

The manner of making supply, when the part of the full third.

heir is not a

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How a sale in market shall

owner.

Property of goods by theft, or taking in jest. If any man steal my goods or be a bar to the 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 tollbook, 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 proOf markets, perty, it must be sale in a market or ket such a sale 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, Newgate, or Westminster market, the true owner is not barred by

and what mar

ought to be

made in.

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this sale; because these markets are usual for flesh, fish, &c. and not for horses.

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 or 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 such property, but The owner may seize his that the owner may seize them again goods after wheresoever he findeth them, except stolen. they were sold in fair or market, after they were stolen, and that bona fide without fraud. But if the thief be condemned of the If the thief be felony, or outlawed for the same, or outlawed in any personal action, or have committed a forfeiture of goods to the crown, then the true owner is without remedy.

they are

condemned for felony, or outlawed, or for feit the stolen goods to the crown, the owner is without remedy.

When the take his goods from the thief.

owner may

If he convict

the thief of the same felony.

again by a

Nevertheless, if fresh after the goods were stolen, the true owner maketh pursuit after the thief and goods, and taketh the goods with the thief, he may take them again: and if he make no he shall have fresh pursuit, yet if he prosecute the his goods felon, so far as justice requireth, that writ of restituis, to have him arraigned, indicted, and tion. 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 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.

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 wythe 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 loaden is cast away upon the coasts, so that no living creature that was in it when it

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