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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, creased, were

conveyances

as they 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.

away all uses, reduceth the

cient form of conveyances of land, by feoflment, fine, and recovery.

Which frauds nevertheless multiply27 H. 8 taking ing daily, in the end, 27 H. VIII. the parliament, purposing to take away all law to the an- 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.

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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 ward. Entailof the thirds.

third to be in

ed lands part

The king nor intermeddle if part be left to descend to the

lord cannot

a full third

heir.

The manner of

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.

making supply, when the

part of the

heir is not a full third.

The statutes

the testator to

&c.

But in all those cases, the statutes do give power to him that maketh the give power to 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.

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II. By sale.

What is a sale bona fide and what not,

a private reservation of

Property in goods by sale. By sale, any man may convey his own goods to where there is another; and although he may fear execution for debts, yet he may sell 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.

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.

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 are 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 condemned for felony, or outoutlawed in any personal action, or have lawed, or for committed a forfeiture of goods to the crown, then the true owner is without remedy.

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,

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 again by a 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.

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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.

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. 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 may before probat dispose of the goods, but not bring an action for any debt. What probat of the will is,

and in what manner it is made.

Those executors may meddle with the goods, and dispose of them before they prove the will, but they cannot bring an action for any debt or duty before they have proved the will.

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 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.

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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

⚫ Where the

bona notabilia

in diverse dio

cesses, then the that province archbishop of where he died the adminis

time of his death bona notabilia in diverse diocesses of some reasonable value, then the archbishop of the province where he died is to have the probat of his will, or to grant the administration of his goods, as the case falleth out otherwise the bishop of the diocess where he died is to do it.

If there be but one executor made, yet he may refuse the executorship, coming before the bishop, so that he hath not intermeddled with any of the goods before, or with receiving debts, or paying legacies.

is to commit

tration.

Executor may the bishop, if he have not with the goods.

refuse before

intermeddled

Executor ought to pay, 1. Judgments. 2. Stat. Reby bonds and

Cogn. 3. Debts

bills sealed. 4. Rent un

paid. 5. Serv6. Head workmen. 7. Shopcontracts by

ants' wages.

books and

words.

And if there be more executors than one, so many as list may refuse; and if any one take it upon him, the rest that did once refuse may, when they will, take it upon them; and no executor shall be farther 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, recognisances, 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, that where divers have debts due in equal degree of record or speciality, he may pay which of them he will, before any suit brought against him; but if suit be brought he must first pay that get judgment against him.

them

Debts due in equal degree of record, the executor may pay which of please before

them he

suit commenced.

Any one exe

cutor may do as much as all

if a debt be

together: but released and ing, he only shall be chargwise of admi

assets want

ed. Other

nistrators.

Any one executor may convey the goods, or release debts without his companion, and any one by himself may do as much as all together; but one man's releasing of debts or selling of goods, shall 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. 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 execu- dieth making tor to the first testator.

But if an administrator die intestate, then his administrator shall not be executor or administrator to the first: but in that case the bishop, whom we call 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

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that which the executor did in his life-time, is to be | of his own purse, if there be not otherwise sufficient

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
tion of the
be executor to the first intestate; but
goods of the
first intestate. the ordinary must new commit the ad-
ministration of the goods of the first intestate again.
If the executor or administrator pay
debts, or funerals, or legacies of his own
money, he may retain so much of the
goods in kind, of the testator, or intes-
tate, and shall have property of it in kind.

Executors or administra. tors may retain.

X. Property by legacy.

Executors or administrators may retain; because the executors are charged to

pay some debts before legacies.

Property by legacy, is where a man 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 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

to pay debts.

shop-books.

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

word.

first. If the

executors do

want, they may sell any

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 legacy he will first; but they may not sell any special legacy which they will to pay debts, or a lease of goods to pay a money legacy. | 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, the ordinary is to commit administration, cum testamento annexo, and take bonds of the administrators to perform the will, and he is to do it in such sort, as the executor should have done, if he had been named.

legacy to pay

debts.

When a will is executor named, admi. be committed annero.

made and no

nistration is to

cum testamento

AN

ACCOUNT OF THE LATELY ERECTED SERVICE,

CALLED, THE OFFICE OF

COMPOSITIONS FOR ALIENATIONS.

WRITTEN [ABOUT THE CLOSE OF 1598] BY MR. FRANCIS BACON.

AND PUBLISHED FROM A MS. IN THE INNER-TEMPLE LIBRARY.

The sundry sorts of the royal revenue.

ALL the finances or revenues of the imperial crown of this realm of England, be 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 we, by a metaphor, do call the pipe, as the civilians do by a The pipe. like translation name it Viscus, a basket or bag, because the whole receipt is finally conveyed into it by the means of divers small pipes 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

streams, to make up that great lake, or sea, of or not so holden of the queen: so be these fines 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 writs, and for causes that pass the great seal, were wont to be immediately paid into the hanaper of the The hanaper. 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; 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 hanaper, and been let to farm, upon derived out of assurance of three hundred pound of the hanaper. 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.

This office is

The name of the office.

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 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.

But for a full institution of the serThe scope of the discourse, vice as it now standeth, howsoever and the parts some men have not spared to speak hardly thereof, I hold worthy my labour to set down as followeth.

thereof.

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, The first part of this treatise. be either immediately holden in chief,

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 charte, 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.

could never

So that I am hereby enforced, for The king's avoiding of confusion, to speak seve- tenant in chief rally, first of the fines for alienation of alien without lands held in chief, and then of the licence. fines 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."

1 E. 3. c. 12.

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. parl. 17 et 26, Ass. parl. 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

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