hath interest in the use or intent of the fine, feoffment, or recovery, according to the use and intent of the parties.

4. Upon this statute is also grounded the fourth and fifth of the six conveyances, viz. bargains and sales, and covenants to stand seised to uses; for this statute, wheresoever it findeth an use, conjoineth the possession to the use, and turneth the possession into that quality of estate, condition, rent, and the like, as the use hath.

The use is but the equity and honesty to hold the land in conscientia boni viri. As for example, if 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 have made me no assurance: here, although the estate of the land be still in you, yet the equity and honesty to have the land is with me; and this equity is called the use. Upon which I had no remedy, but in Chancery, until this statute, made 27 H. VIII.; and now, this statute conjoining and conveying 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 this is called a bargain and sale.

But the same 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 money, be conveyed from them, peradventure in an alehouse or a tavern upon strainable advantages, [and]' did gravely provide another act, in the same parliament, that the land, upon the payment of this money, should not pass away except there were a writing indented made between the 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; [except it be in cities or corporate towns where they did use to enrol deeds, and there the statute extendeth not.] 2

3

5. The fifth conveyance is a conveyance to stand seised to uses. It is in this sort; a man that hath wife and children, brothers or kinsfolks, may by writing under his hand and seal agree that for their or any of their preferment he will stand seised of his land to their uses, either for life, in tail, or fee-simple, as he shall see cause; upon which agreement in

I have added this without authority.

2 Omitted in Sloane MS.

3 The MSS. have "The last conveyance of the [or, a] fine;" which, I suppose, indicates a reading "five," and that at first Wills were not treated of under this heading.

writing there ariseth an equity or honesty that the land should go according to this agreement, nature and reason requiring and allowing these provisions; which equity and honesty is the And the use being created in this sort, the statute of 27 H. VIII., beforementioned, conveyeth the estate of the land as the use is appointed.

use.

uses is at this day,

But this differeth

And so this covenant to stand seised to since the said statute, a conveyance of land. from a bargain and sale, in that this needeth no enrolment as a bargain and sale doth, nor is tied 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, child, or cousin, or one that he meaneth to marry, then will no use rise, and so no conveyance for although the law alloweth these weighty considerations of marriage and blood to raise uses, yet doth it not so of trifling considerations of acquaintance, schooling, service, and the like. 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 kindred, marriage, money, 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, or when he taketh anything, as in the cases of bargain and sale and covenant to stand seised to uses.

6. The last of the six conveyances is a will in writing; which course of conveyance was first ordained by a statute made 32 H. VIII. before which statute no man might give land by will, except it lay in some borough town where there was a special custom that men might give their lands by will; as it is in London, and many others.

The not giving land by will was thought to be a defect at common law, that men in wars, or suddenly fallen sick, had not power to dispose 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 further proof of their children or kindred, or increase of children, or debt, or desert of servants or friends.

For which causes it was reason that the law should permit him to reserve to the last instant the disposition of his lands,

and yet then also to give him a means to dispose it: which seeing it did not, men used this device:

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

By this course of putting lands into use there were many inconveniences, as this use that grew first of a reasonable cause, to give men liberty to dispose their own, was turned to defraud many of their just and conscionable 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 of her thirds defrauded; the husband of being tenant by the courtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for his debt; the poor tenant of his lease for these rights and duties were given by the law from him that was owner of the land and none other, which was now the feoffee in trust; and so the old owner, which we call the feoffor or cestui que use, should take the profits and have power to dispose the land at his direction to the feoffee, and yet he was not such a tenant or so seised of the land as his wife could have dower, or the land 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 lease of it.

Which frauds, by degrees of time as they increased, were remedied by divers statutes; as namely, by a statute of 11 H. VI. it was appointed that the action may be brought against him which taketh the profits, which was this cestui que use; by the statute of 1 R. III., leases and estates made by cestui que use are made good, and statutes by him acknowledged: by 4 H. VII. the heir of cestui que use is to be in ward: by 16 H.

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

use.

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 fcoffinent, 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