What is a sale bona fide and

there is a pri

the parties.

II. By sale.

Property in goods by sale. By sale what not, when any man may convey his own goods to Vate reservation another: and although he may fear exeof trust between cution for debts, yet he may sell them outright for money at any time before the execution served, so that there be no reservation of trust between them; paying the money, he shall have the goods again; for that trust, in such case, doth prove plainly a fraud to prevent the creditors from taking the goods in execution.

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 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 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, Newgate, or Westminster Market, the true owner is not barred by this sale, because these markets are usual for flesh, fish, &c., and not for horses.

Of markets,

and what

markets such a

sale ought to be

made in.

felony, or outlawed for the same, or outlawed in any personal action, have committed a forfeiture of goods the crown, then the true owner is without remedy.

medy. But if he make fresh pursuit he may

from the thief.

take his gonds Or if he prose against the thief of the same fe have his goods

cuted the law

and convict him

lony, he shal!

again by a writ of restination.

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 fresh pursuit, yet if he prosecute the felon so far as a justice requireth, that is, to have him arraigned, indicted, and 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 a 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 withe 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 laden is cast away upon the coasts, so that no living creature that was in it when it began to sink escapeth 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 entitle himself unto them by custom, or by the king's charter.

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 license, all the goods he had at the judgment he forfeiteth to the crown, except some lord by charter can claim them. For in those cases prescripts 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

What probate of the will is, and in what

made.

The proving of the will is thus. They are to exhibit the will into the bishop's court, and there they are to bring the manner it is 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 diocess, to dispose for the good of his soul that died, he first paying his funerals and Pii unus. debts, and giving the rest, ad 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 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 some other, will take it as the bishop's officers shall think meet. It groweth often in question what bishop shall have the right of proving wills, and granting administration of goods.

rest

Executor ought

to pay 2. Stat. recogn. boned.

1. Judgments.

3. Debts by bonds and bills

. Rent unpaid.

5. Servants'

6. Head work

men.

Shop book, and contracts

by word.

And if there be more executors than one, so many as list may refuse; and if any one take it upon him, the that did once refuse may when they will take it upon them, and no executor shall be further charged with debts or legacies than the value of the goods come to his hands. So that he foresee that he pay debts upon record, first debts to the king, then upon judgments, statutes, recognizances, then debts by bond and bill sealed, rent unpaid, servants' wages, payment to head workmen, and, lastly, shop-books, and contracts by word. For if an executor, or administrator pay debts to others before to the king, or debts due by bond before those due by record, or debts Ꮓ

cond executor shall be executor to the first testator.

But otherwise, if the adminis trator die

cutor, or if ad

committed of

his goods.

But if an administrator die intestate, then his administrator shall not be executor or administrator to the first. But making his exe in that case the bishop, whom we call ministr be the ordinary, is to commit the administration of the first testator's goods to his wife, or next of kin, as if he had died intestate. Always provided, that that which the executor did in his lifetime is to be allowed for good. And so if an administrator die, and make his executor, the executor of the alministration administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the goods of the first intestate again.

In both cases the ordinary shall comunit

of the goods of the first intes. tate.

administrators may retain; because the executers are

charged to pay fore legacies

some debts be

Property by legacy is where a man Executors or maketh a will and executors, and giveth legacies, he or they to whom the legacies are given must have the assent of the executors, or one of them, to have his legacy, and the property of that lease, or other goods bequeathed 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.

But this is to be understood by debts of record to the king, or by bill and bond sealed, or arrearages of rent, or servants' or workmen's wages; and not debts of shop-books, or bills unsealed, contract by word; for before them legacies are to be paid.

or

Executor may pay which le

gacy he will

the

executors do want they may seil any legacy

pay debis.

But

And if the executors doubt that they shall not have enough to pay every legacy, they may pay which they list first; but they may not sell any special legacy which they will to pay debts, to or a lease of goods to pay a money-legacy. they may sell any legacy which they will to pay debts, if they have not enough besides. If a man make a will, and make no when a will is executors, or if the executors refuse, the ordinary is to commit administration cum testamento annexo, and take bonds of the administrators to perform to annero the will, and he is to do it in such sort as the executor should have done, if he had been named.

made, and no

executor named, administration is to

be committed

cum talamen

THE case needs neither repeating nor opening. The point is, in substance, but one, familiar to be put, but difficult to be resolved; that is, Whether, upon a lease without impeachment of waste, the property of the timber trees, after severance, be not in him that is owner of the inheritance?

The case is of great weight, and the question of great difficulty: weighty it must needs be, for that it doth concern, or may concern all the lands in England; and difficult it must be, because this question sails in confluentiis aquarum, in the meeting or strife of two great tides. For there is a strong current of practice and opinion on the one side, and there is a more strong current, as I conceive, of authorities, both ancient and late, on the other side. And, therefore, according to the reverend custom of the realm, it is brought now to this assembly; and it is high time the question receive an end, the law a rule, and men's conveyances a direction.

This doubt ariseth and resteth upon two things to be considered; first, to consider of the interest and property of a timber tree, to whom it belongeth: and, secondly, to consider of the construction and operation of these words or clause, absque impetitione vasti: for within these two branches will aptly fall whatsoever can be pertinently spoken in this question, without obscuring the question by any other curious division.

For the first of these considerations, which is the interest or property of a timber tree, I will maintain and prove to your lordships three things. First, That a timber tree, while it groweth, is merely parcel of the inheritance, as well as the soil itself.

And, secondly, I will prove, that when either nature or accident, or the hand of man hath made it transitory, and cut it off from the earth, it cannot change the owner, but the property of it goes where the inheritance was before. And thus much by the rules of the common law.

And, thirdly, I will show that the statute of Gloucester doth rather corroborate and confirm the property in the lessor than alter it, or transfer it to the lessee.

And for the second consideration, which is the force of that clause, absque impetitione vasti, I will also uphold and make good three other

assertions.

First, That if that clause should be taken in the sense which the other side would force upon it, that it were a clause repugnant to the estate and void.

Secondly, That the sense which we conceive and give is natural in respect of the words; and for the matter agreeable to reason and the rules of law.

And, lastly, That if the interpretation seem ambiguous and doubtful, yet the very mischief itself, and consideration of the commonwealth, ought rather to incline your lordships' judgment to our construction.

My first assertion therefore is, that a timber tree is a solid parcel of the inheritance; which may seem a point admitted, and not worth the labouring. But there is such a chain in this case, as that which seemeth most plain, if it is sharply looked into, doth invincibly draw on that which is most doubtful. For if the tree be parcel of the inheritance unsevered, inherit in the reversion, severance will not alien it, nor the clause will not divest it.

To open, therefore, the nature of an inheritance; sense teacheth there be, of the soil and earth, parts that are raised and eminent, as timber trees, rocks, houses. There be parts that are sunk and depressed, as mines, which are called by some arbores subterraneæ, because that as trees have great branches and smaller boughs and twigs, so have they in their region greater and smaller veins; so if we had in England beds of porcelain, such as they have in China, which porcelain is a kind of a plaster buried in the earth, and by length of time congealed and glazed into that fine substance, this were as an artificial mine, and no doubt part of the inheritance. Then are the ordinary parts, which make the mass of the earth, as stone, gravel, loam, clay, and the like.

Now, as I make all these much in one degree, so there is none of them, not timber trees, not quarries, not minerals nor fossils, but hath a double nature; inheritable and real while it is contained within the mass of the earth, and transitory and personal when it is once severed. For even gold and precious stone, which is more durable out of earth than any tree is upon the earth, yet the law doth not hold of that dignity as to be matter of inheritance if it be once sever