convict the shall have his yet if he prosecute the felon, so far as justice re- the thief. If he quireth, that is, to have him arraigned, indicted, thief of the and found guilty, though he be not hanged, nor same felony, he have judgment of death, or have him outlawed goods again by upon the indictment; in all these cases he shall a writ of restihave 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 mens grounds straying from the owners, then the party or lord into whose grounds or manors they come, causeth them to be seised, and a wythe put about their necks, and to be cried in three markets adjoining, shewing 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 began to sink escaped 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 intitle himself unto them by custom, or by the king's charter. tution. 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 licence, all the goods he had at the judgment, he forfeiteth to the crown; except some lord by charter can claim them. 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. VIII. By executorship. For By executorship goods are thus gotten. When a man 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 the will and death of the parties, all the property of their goods, chattels, leases for years, wardships and extents, and all right concerning those things. Executors may Those executors may meddle with the goods, dispose of the and dispose of them before they prove the will, but goods, but not they cannot bring an action for any debt or duty be bring an action for any debt. fore they, have proved the will. before probat the will is, and What probat of The proving of the will is thus. They are to exin what man- hibit the will into the bishop's court, and there they Der it is made. 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 diocese, to dispose intestate had bona notabilia in archbishop of In † which controversy the rule is thus, that if the + Where the party dead had at the time of his death bona notabilia in diverse dioceses of some reasonable value, diverse diothen the archbishop of the province where he died ceses, then the is to have the probat of his will, or to grant administration of his goods, as the case falieth otherwise the bishop of the diocese where he is to do it. the that province out: where he died is to cominit died the administra tion. Executor may refuse before termeddled Executor ought to pay, 3. Debts by 4. Rent unpaid. If there be but one executor made, yet he may refuse the executorship, coming before the bishop, the bishop, if so that he hath not intermeddled with any of the he have not in goods before, or with receiving debts, or paying with the goods. legacies. And if there be more executors than one, so 1. Judgments, many as list may refuse; and if any one take it 2.Stat Recogn. upon him, the rest that did once refuse may, when bonds and bills they will, take it upon them; and no executor shall sealed. be farther charged with debts or legacies, than the 5. Servants value of the goods come to his hands; so that he wages. foresee that he pay debts upon record, first debts men. to the King, then upon judgments, statutes, recog and contracts nisances, then debts by bond and bill sealed, rent by words. unpayed, servants wages, payment to head work. men, and lastly, shop-books and contracts by word. For if an executor or administrator pay debts to others before debts to the King, or debts due by bond before those due by record, or debts by shopbooks and contracts before those by bond, arrearages 6. Head work 7. Shop-books Debts due in record, the ex of rent, and servants or workmens wages, he shall pay the same over again to those others in the said degrees. But yet the law giveth them choice, that where equal degree of divers have debts due in equal degree of record or ecutor may pay specialty, he may pay which of them he will, bewhich of them fore any suit brought against him; but if suit be suit com- brought he must first pay them that get judgment menced. against him. he please before if a debt be re Any one exe- Any one executor may convey the goods, or recutor may do as much as all lease debts without his companion, and any one by together but himself may do as much as all together; but one leased and as- man's releasing of debts or selling of goods, shall sets wanting, not charge the other to pay so much of the goods, if there be not enough to pay debts; but it shall charge the party himself that did so release or convey. he only shall be charged. Otherwise of administrators. Executor dieth making his executor, the second executor shall be execu testator. But otherwise, ing his execu But it is not so with 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. 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 adtor to the first ministrator shall not be executor or administrator to the first: but in that case the bishop, whom we call if the adminis-the ordinary, is to commit the administration of the trator die mak-first testator's goods to his wife, or next of kin, as if tor, or if admi- he had died intestate; always provided, that that nistration be which the executor did in his life-time, is to be allowed for good. And so if an administrator die and make his executor, the executor of the administra tor shall not be executor to the first intestate; but the ordinary must new commit the administration committed of his goods. In both cases of the goods of the first intestate again. the ordinary shall commit administration If the executor or administrator pay debts, or fu of the goods of nerals, or legacies of his own money, he may retain the first intes- so much of the goods in kind, of the testator or inExecutors or testate, and shall have property of it in kind. tate. administrators may retain. Executors or administrators X. Property by legacy. Property by legacy, is where a man maketh a will because the ex some debts be and executors, and giveth legacies, he or they to may retain; whom the legacies are given must have the assent ecutors are of the executors, or one of them, to have his legacy; charged to pay and the property of that legacy or other goods be-fore legacies. queathed 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. be paid before contracts by But this is to be understood by debts of record to Legacies are to the King, or by bill and bond sealed, or arrearages debts by shopof rent, or servants or workmens wages; and not books, bills debts of shop-books, or bills unsealed, or contract unsealed, or by word; for before them legacies are to be paid. word. And if the executors doubt that they shall not Executor may have enough to pay every legacy, they may pay which they list first; but they may not sell any spe- first. If the cial legacy which they will to pay debts, or a lease executors, do of goods to pay a money legacy. But they may sell any legacy any legacy which they will to pay debts, if they to pay debts. have not enough besides. sell pay which le gacy he will want, they may executor If a man make a will and make no executors, or When a will is if the executors refuse, the ordinary is to commit made and no administration, cum testamento anne.ro, and take named, admibonds of the administrators to perform the will, nistration is to and he is to do it in such sort, as the executor cum testamento should have done, if he had been named. annexo. |