Page images
PDF
EPUB

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.

By this course of putting lands into The incon- ., F ° .

veniences of use there were many inconveniences, as putting lanil tn;g use wn;ch grew first for a reasoning use. 1 &

able 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.

Which frauds by degrees of time, as

The frauds of )nev jncreasej were remedied by divers

conveyances'' J

to use, bvde- statutes: as namely, by a statute of 1 H.

Sufe^in!1"'' VI- and 4 H. VIII. it was appointed creased, were that the action may be tried against the statutes, him which taketh the profits, wrhich 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.

Which frauds nevertheless multiply

al^yVufse? in* dln>' in the end' 2? H- VIIL the reduceth the parliament, purposing to take away all

cient form o" those uses, and reducing the law to the

conveyances ancient form of conveying of lands by of land, by ... .. . . .'" ,'

feoffment, public livery ot seism, fine, and reco

cSlerayd re' veiT' o^ain, 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 Whatman- Bv ,he stKtnte of 27 H. VIII. the ner the stat. of power of disposing land by will is clear32 H. 8 giveth f . . f o 3

power to dis- ly taken away amongst those frauds; pose of lands 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 Iranian be j°'n,'y w'tn another; and then being seised of co- thus seised for all the land he holdeth

in socage tenure, he may give it by will, pUe lands and except he hold any piece of land in ctnnot'devise capile by knight's service of the king; ttn,e*wnD,*rts and then laying all together, he can The third part give but two parts by will: for the TMd third part of the whole, as well in soc- answer wardage as in capite, must descend to the anlFse'ism'to heir, to answer wardship, livery, and the crown, primer seisin to the crown.

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

And if a man that hath three acres A conveylln(.e

of land holden in capite by knight's by devise or

, . . .' , . ., capite lands to

service, do make a jointure to his wife the wife ror

of one, and convey another to any of herjoiniure, ....!, . , , , &c. void for a

his children, or to friends, to take the third part, by

profits, and to pay his debts, or legacies, 32 H'

or daughter's portions, then the third acre or any

part thereof he cannot give by will, but must suffer

it to descend to the heir, and that must satisfy

wardship.

Yet a man having three acres as „ ir ii . v —it But a convey

before, may convey all to his wife, or ance by act

children, by conveyance in his life-time fi"Hjih."m" 0r

as by feoffment, fine, recovery, bargain the party of

and sale, or covenant to stand seised to such uses'fo0

uses, and disinherit the heir. But if vo'd.: t"1 , ;. , ... , . . , . if the heir be

the heir be within age when his father within age, he

dieth, the king or other lord shall have S^vbee°ne

that heir in ward, and shall have one ward. Entail

of the three acres during the wardship, of the'thirds.'

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.

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 75* ki"B nor

• lord cannot

king, nor heir, nor lord, can intermed- intermeddle if

die with the rest; if it be not a full ^rt^leftto

third, yet they must take it so much as descend to the

it is, and have a supply out of the rest.

This supply is to be taken thus: if The manner of it be the king's ward, then by a com- TMyklvl?V!"the mission out of the court of wards, part of the whereupon a jury by oath must set nTiUUrd!1* 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.

But in all those cases, the statutes »pne gtatutes do give power to him that maketh the givepowerto will to set forth and appoint of himself set out the which lands shall go for thirds, and third himself, 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.

[merged small][table]

I. Property by gift.

By gift, the property of goods may orgoodsufde- De passed by word or writing; but if

ceive his ore- there be a general deed of gift made of ditorsis void ,. , . , , . . r . .

against them, all his goods, this is suspicious to be

againsuhe ^one uPon fraud> t0 deceive the cre

executors, ad- ditors.

ministrators, • j •* i_ • ■ j t . 1

or vendee of And if a man who is in debt make a

himselVy t'eec' °^ 8*" °^ a'^ ''is g°°ds to protect the taking of 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 afterwards he shall sell or convey them, it is good.

II. By sale.

What is a sale Property in goods by sale. By sale, bona fide and any man may convey his own goods to wlierJth'ere is another; and although he may fear

a private re- execution for debts, yet he may sell nervation of , - .

trust between them outright for money at any time the parties. before the execution served; so that there be no reservation of trust between them, that, repaying 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.

III. By theft, or taking in jest.

, . Property of goods by theft, or taking How a sale in . . ' ' 8 '.' 5

market shall in jest. If any man steal my goods or

owne?art°the cha«els, 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 pro

P1^"1?!^TM.,. Perty, it must be sale in a market or

and what mar- K . \ t.

ket such a sale fair where usually things of that nature

made in! be are s0^- As f°r 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.

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 6hop, 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 , .° . r f 1' . mav seiie his

that the owner may seize them again goods after

wheresoever he findeth them, except stoier>re

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 iftrie thief be

felony, or outlawed for the same, or condemned for ,! _ , , ... , felonv, or out

outlawed in any personal action, or have tawed, or for

committed a forfeiture of goods to the ^>fe to the"

crown, then the true owner is without crown, the

j_ owner is with

remedy. out remedy.

Nevertheless, if fresh after the goods When the were stolen, the true owner maketh "ake^histXrt pursuit after the thief and goods, and {ftTM ^^cf taketh the goods with the thief, he may the thief of the take them again: and if he make no ^"shaU hare

fresh pursuit, yet if he prosecute the his g°«ts ,, . .. .,, again bv a

felon, so far as justice requireth, that w rit or r •

is, to have him arraigned, indicted, and tlon"

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 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 entitle himself unto them by custom, or by the king's charter.

VIT. 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. For 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.

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 Those executors may meddle with

probafd?TM g00<'s> a"d dispose of them before

poscorthe they provethe will, butthey ennnotbring rlring'an'ac"01 an action for any debt or duty before they tion Tor any nave proved the will, debt mi • • i ... . ,

What probat The Pr°TMg of the wlB 18 *rtfor the will is, They are to exhibit the will into the mannerWit Is bishop's court, and there they are to made. 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 diocess, to dispose for the good of his soul that died, he first Pti Hu Pay'nf> his funeral and 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 requireth 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.

In * which controversy the rule is intestate had thus, that if the party dead had at the

time of his death bona notabilia in »»»«no«<i«/£o

in diverse dio

diverse diocesses of some reasonable cesses.thenthe

value, then the archbishop of the pro- ,^1 ^vTnre

vince where he died is to have the he di^d

probat of his will, or to grant the the adminis

administration of his goods, as the case ,ratlon

falleth out: otherwise the bishop of the diocess

where he died is to do it.

If there be but one executor made, Executor may

. refuse before

yet he may refuse the executorship, the bishop, if

coming before the bishop, so that he Ijfienneddfcit

hath not intermeddled with any of the with the

(roods

goods before, or with.receiving debts, or paying legacies.

And if there be more executors than Executor

one, so many as list may refuse; and if °UjifugnTs.

any one take it upon him, the rest that 2. Stat. Re

j-j r L A. -u cogn. 3. Debts

did once refuse may, when they will, bv bonds and

take it upon them; and no executor J'''^"^!!;

shall be farther charged with debts or paid. 5. Serv

legacies, than the value of the goods 6.nHead8wwk

come tohis hands; sothatlieforeseethat me"- J-Shop

, books and

he pay debts upon record, nrstdebts to the contracts by king, then upon judgments, statutes, re- wordscognisances, 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 debts to the king, or debts due by bond before those due by record, or debts by shop-books and contracts before those by bond, arrearages of rent, and servants' or workmen's wages, he shall pay the same over again to those others in the said degrees. But yet the law giveth them choice, Debts due in

that where divers have debts due in equal degree , , - , . ... , of record, the

equal degree of record or speciality, he executor may

may pay which of them he will, before {Jf^,,"^'011 of

any suit brought against him; but if please before

suit be brought he must first pay them menced"

that get judgment against him.

Any one executor may convey the Anyone exe. , . . , . , . . cutor mav do

goods, or release debts without his com- ns much as all

panion, and any one by himself may do jf^"'^^ be"'

as much as all together; but one man's released and

releasing of debts or selling of goods, ing-, tie only"

shall not charge the other to pay so shall becharg

i r , i ed Othermuch of the goods, if there be not wise of admi

enough to pay debts; but it shall charge "istra,orsthe party himself that did so release or convey.

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 executor, the second executor is execu- jiieth making

, , c , , his executor,

tor to the first testator. the second

But if an administrator die intestate, executor shall

., . . 'be executor to

then his administrator shall not be the first testaexecutor or administrator to the first: thehad

but in that case the bishop, whom we ministrator

ii .1. j- . •» ^x. j die making

call the ordinary, is to commit the ad- his executor,

ministration of the first testator's goods ^o^be"'8*

to his wife or next of kin, as if he had committed of

died intestate; always provided, that b soods*

that which the executor did in his life-time, is to be

In both cases allowed for good. And so if an admi

the ordinary nistrator die and make his executor, the shall commit . .'

administra- executor of the administrator shall not

KoSdsofthe be executor to the first intestate; but first intestate, the ordinary must new commit the administration of the goods of the first intestate again.

Executors or " exec,ltor or administrator pay administra- debts, or funerals, or legacies of his own tainTM35"6 money, he may retain so much of the goods in kind, of the testator, or intestate, and shall have property of it in kind.

X. Property by legacy.

( Property by legacy, is where a man

administra- maketh a will and executors, and giveth tain "because legacies, ne or 'hey to whom the legathe executors cies are given must have the assent of pa*yCsom|edt0 the executors, or one of them, to have debts before his legacy; and the property of that "'"" legacy 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 i

to pay debts.

But this is to be understood by debts pe?!c'es?^. , . ... , , • „ to be paid t».

of record to the king, or by bill ana fore debts by

bond sealed, or arrearages of rent, or bd^unsMk

servants' or workmen's wages; and not orcomractsby

debts of shop-books, or bills unsealed,

or contract by word; for before them legacies are

to be paid.

And if the executors doubt that they „

, , , Executor may

shall not have enough to pay every pay which legacy, they may pay which they list g^"^^11 first; but they may not sell any special executorsoo legacy which they will to pay debts, or mly'seiiany a lease of goods to pay a money legacy. Jj^?t0 W "But 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 executors, or if the executors refuse, Whenawiili<

.. . .... made and 00

the ordinary is to commit administra- executor

tion, cum testamento annexo, and take nfs"raticfnTMto

bonds of the administrators to perform becommittfj the will, and he is to do it in such sort, as the executor should have done, if he had been named.

AN

ACCOUNT OF THE LATELY ERECTED SERVICE,

CALLED, TUB OFFICE OF

COMPOSITIONS FOR ALIENATIONS.

WRITTEN [ABOUT THE CLOSE OF 1508] BY MR. FRANCIS BACON.

AND PUBLISHED FIIOM A MS. IN THE INNER-TEMPLE LIBHAKY.

The sundry ^LL tbe nnances or revenues of the sorts ol the" imperial crown of this realm of Engroyal revenue, he either extraordinary or ordinary.

Those extraordinary, be fifteenths and tenths, subsidies, loans, benevolences, aids, and such others of that kind, that have been or shall be invented for supportation of the charges of war; the which as it is entertained by diet, so can it not be long maintained by the ordinary fiscal and receipt.

Of these that be ordinary, some are certain and standing, as the yearly rents of the demesne or lands; being either of the ancient possessions of the crown, or of the later augmentations of the same.

Likewise the fee-farms reserved upon charters granted to cities and towns corporate, and the blanch rents and lath silver answered by the sheriffs. The residue of these ordinary finances be casual, or

uncertain, as be the escheats and forfeitures, the customs, butlerage, and impost, the advantages coming by the jurisdiction of the courts of record and clerks of the market, the temporalities of vacant bishoprics, the profits that grow by the tenures of lands, and such like, if there any be.

And albeit that both the one sort and other of these be at the last brought unto that office of her Majesty's exchequer, which wc, by a metaphor, do call the pipe, as the civilians do by a like translation name it Viscus, a bas- c f"f" ket or bag, because the whole receipt is finally conveyed into it by the means of divers small pipe* or quills, as it were water into a great head or cistern ; yet nevertheless some of the same be first and immediately left in other several places and courts, from whence they are afterwards carried by silver The hanaper.

streams, to make up that great lake, or sea, of money.

As for example, the profits of wards and their lands be answered into that court which is proper for them; and the fines for all original w rits, and for causes that pass the great seal, were wont to be immediately paid into the hanaper of the chancery: howbeit now of late years, all the sums which are due, either for any writ of covenant, or of other sort, whereupon a final concord is to be levied in the common bench, or for any writ of entry, whereupon a common recovery is to be suffered there j as also all sums demandable, either for licence of alineation to be made of lands holden in chief, or for the pardon of any such alienation, already made without licence, together with the mean profits that be forfeited for that offence and trespass, have been stayed in the way to the This office is hanaper, and been let to farm, upon the"hed °Ut °f assurance °^ 'hree hundred pound of 'yearly standing profit, to be increased over and above that casual commodity, that was found to be answered in the hanaper for them, in the ten years, one with another, next before the making of the same lease.

And yet so as that yearly rent of increase is now still paid into the hanaper by four gross portions, not altogether equal, in the four usual open terms of St. Michael, and St. Hilary, of Easter, and the Holy Trinity, even as the former casualty itself was wont to be, in parcel meal, brought in and answered there.

And now forasmuch as the only S^eoffiTM°f matter and subject about which this farmer or his deputies are employed, is to rate or compound the sums of money payable to her Majesty, for the alienation of lands that are either made without licence, or to be made by licence, if they be holden in chief, or to pass for common recovery, or by final concord to be levied, though they be not so holden, their service may therefore very aptly and agreeably be termed the office of compositions for alienations. Whether the advancement of her Majesty's commodity in this part of her prerogative, or the respect of private lucre, or both, were the first motives thus to dissever this member, and thereby as it were to mayhem the chancery, it is neither my part nor purpose to dispute.

The sco e of *°r 8 ^u'* institution of the ser

theVisoourse, vice as it now standeth, howsoever thereof PaftS some men have not spared to speak hardly thereof, I hold worthy my labour to set down as followeth.

First, that these fines, exacted for such alienations, be not only of the greatest antiquity, but are also good and reasonable in themselves: secondly, that the modern and present exercise of this office, is more commendable than was the former usage: and lastly, that as her Majesty hath received great profit thereby, so may she, by a moderate hand, from time to time reap the like, and that without just grief to any of her subjects.

As the lands that are to be aliened, orthi»rtriS!se. he either immediately holden in chief,

[ocr errors]

or not so holden of the queen: so be these fines or sums respectively of two sundry sorts. For upon each alienation of lands, immediately held of her Majesty in chief, the fine is rated here, either upon the licence, before the alienation is made, or else upon the pardon when it is made without licence. But generally for every final concord of lands to be levied upon a writ of covenant, warrantia chartte, or other writ, upon which it may be orderly levied, the sum is rated here upon the original writ, whether the lands be held of the queen, or of any other person; if at the least the lands be of such value, as they may yield the due fine. And likewise for every writ of entry, whereupon a common recovery is to be suffered, the queen's fine is to be rated there upon the writ original, if the lands comprised therein be held of her by the tenure of her prerogative, that is to say, in chief, or of her royal person.

So that I am hereby enforced, for The king's

avoiding of confusion, to speak seve- tenant in chief

. could never

rally, first of the fines for alienation of alien without

lands held in chief, and then of the licencefines upon the suing forth of writs original. That the king's tenant in chief could not in ancient time alien his tenancy without the king's licence, it appeareth by the statute, 1 E. III. cap. 12, where it is thus written: "Whereas divers do complain, that the lands, holden of the king in chief, and aliened without licence, have been seized into the king's hands for such alienation, and holden as forfeit: the king shall not hold them as forfeit in such a case, but granteth that, upon such alienations, there shall be reasonable fines taken in the chancery by due process."

So that it is hereby proved, that before this statute, the offence of such alienation, without licence, was taken to be so great, that the tenant did forfeit the land thereby; and consequently that he found great favour there by this statute, to be reasonably fined for his trespass.

And although we read an opinion 20 lib. Assis. pari. 17 et 26, Ass. pari. 37, which also is repeated by Hankf. 14 H. 4, fol. 3. in which year Magna Charta was confirmed by him, the king's tenant in chief might as freely alien his lands without licence, as might the tenant of any other lord: yet forasmuch as it appeareth not by what statute the law was then changed, I had rather believe, with old judge Thorpe and late justice Stanford, that even at the common law, which is as much as to say, as from the beginning of our tenures, or from the beginning of the English monarchy, it was accounted an offence in the king's tenant in chief, to alien without the royal and express licence.

And I am sure, that not only upon the entering, or recording, of such a fine for alienation, it is wont to be said "pro transgressione in hac parte facta:" but that you may also read amongst the records in the Tower, Fines 6 Hen. Reg. 3, Memb. 4, a precedent of a "capias in manum regis terras alienatas sine licentia regis," and that namely of the manor of Coselescombe in Kent, whereof Robert Cesterton was then the king's tenant in chief. But were it

« PreviousContinue »