Page images

but two parts of the whole

The inconveniences of

into use.


32 H. VIII.

should appoint them; and if he appointed none, | in socage tenure, he may give it by will, pite lands and then the use should go to the heir, as the estate except he hold any piece of land in canube devise itself of the land should have done ; for the use was capite by knight's service of the king ; to the estate like a shadow following the body. and then laying all together, he can The third part

By this course of putting lands into give but two parts by will : for the must descend

use there were many inconveniences, as third part of the whole, as well in soc- answer wardputting land

this use, which grew first for a reason age as in capite, must descend to the ship, livery,

able cause, namely, to give men power heir, to answer wardship, livery, and the crown. and liberty to dispose of their own, was turned to primer seisin to the crown. deceive many of their just and reasonable rights ; And so if he hold lands by knight's service of a as namely, a man that had cause to sue for his land, subject, he can devise of the land but two parts, and knew not against whom to bring his action, nor who the third the lord by wardship, and the heir by was owner of it. The wife was defrauded of her descent is to hold. thirds ; the husband of being tenant by courtesy ;

And if a man that hath three acres

A conveyance the lord of his wardship, relief, heriot, and escheat; of land holden in capite by knight's by devise of

to the creditor of his extent for debt; the poor tenant service, do make a jointure to his wife the wile for of his lease ; for these rights and duties were given of one, and convey another to any of her jointure, by law from him that was owner of the land, and his children, or to friends, to take the third part, by none other; which was now the feoffee of trust; | profits, and to pay his debts, or legacies, and so the old owner, which we call the feoffer, or daughter's portions, then the third acre or any should take the profits, and leave the power to dis- part thereof he cannot give by will, but must suffer pose of the land at his discretion to the feoffee ; and it to descend to the heir, and that must satisfy yet he was not such a tenant as to be seised of the wardship. land, so as his wife could have dower, or the lands Yet a man having three acres as

But a conveybe extended for his debts, or that he could forfeit it before, may convey all to his wife, or ance by act for felony or treason, or that his heir could be in children, by conveyance in his life-time executed in ward for it, or any duty of tenure fall to the lord by as by feoffment, fine, recovery, bargain the party of his death, or that he could make any leases of it. and sale, or covenant to stand seised to such uses is Which frauds by degrees of time, as uses, and disinherit the heir. But if not void: but

if the heir be The frauds of they increased, were remedied by divers the heir be within age when his father within age, he to use, by de statutes: as namely, by a statute of 1 H. dieth, the king or other lord shall have shall have one gese of time, VI. and 4 H. VIII. it was appointed that heir in ward, and shall have one ward. Entailcreased, were that the action may be tried against of the three acres during the wardship, of the thirds. remedied by

him which taketh the profits, which was and to sue livery and seisin. But at

then cestuy que use ; by a statute made full age the heir shall have no part of it, but it 1 R. III. leases and estates made by cestuy que use shall go according to the conveyance made by the are made good, and estates by him acknowledged. father. 4 H. VII, the heir of cestuy que use is to be in It hath been debated how the thirds shall be set ward ; 16 H. VIII. the lord is to have relief upon forth. For it is the use, that all lands which the the death of any cestuy que use.

father leaveth to descend to the heir, being feeWhich frauds nevertheless multiply- simple, or in tail, must be part of the 27 H, 8. taking ing daily, in the end, 27 H. VIII. the thirds : and if it be a full third, then the The king nor all uses,

parliament, purposing to take away all king, nor heir, nor lord, can intermed- intermeddle if lisent corne an those uses, and reducing the law to the dle with the rest; if it be not a full att behierd

ancient form of conveying of lands by third, yet they must take it so much as descend to the of land, by seoftment, public livery of seisin, fine, and reco it is, and have a supply out of the rest.

very, did ordain, that where lands were This supply is to be taken thus : if The manner of put in trust or use, there the possession it be the king's ward, then by a com- making supe

the and estate should be presently carried out of the mission out of the court of wards, part of the friends in trust, and settled and invested on him whereupon a jury by oath must set that had the uses, for such term and time as he had forth so much as shall make up the

thirds, except the officers of the court of wards can In what man

By the statute of 27 H. VIII. the otherwise agree with the parties. If there be no 32 H. 8. mes the state of power of disposing land by will is clear-wardship due to the king, then the other lord is to

ly taken away amongst those frauds; have this supply by a commission out of the chan

whereupon 32 H. VIII. another statute cery, and jury thereupon. by will.

was made, to give men power to give But in all those cases, the statutes lands by will in this sort. First, it must be by will do give power to him that maketh the give power to in writing. Secondly, he must be seised of an estate will to set forth and appoint of himself set out the in fee-simple; for tenant for another man's life, which lands shall go for thirds, and third himself, or tenant in tail, cannot give land by will; by that neither king nor lord can refuse it. statute 32 H. VIII. he must be solely seised, and not And if it be not enough, yet they must take that in

jointly with another; and then being part, and only have a supply in manner as before is thus seised for all the land he holdeth mentioned out of the rest.

the statutes.

reduceth the



fine, and recovery.

heir is not a full third.

the use.

power to dispose of lands

The statutes

If a man be seised of ca



owner is with


this sale; because these markets are usual for flesh, Property in Goods.

fish, &c. and not for horses.
I. By gift.

So whereas by the custom of London in every
By sale.

shop there is a market all the days of the week,
III. By stealing. saving Sundays and holidays; yet if a piece of
Of the several ways
IV. By waving.

plate or jewel that is lost, or chain or gold or pearl whereby a man may

By straying. that is stolen or borrowed, be sold in a draper's or get property in

By shipwreck. scrivener's shop, or any other but a goldsmith's, this goods or chattels. 'VII. By forfeiture. sale barreth not the true owner, et sic in similibus.

VIII. By executorship. Yet by stealing alone of goods, the
IX. By administration. thief getteth not such property, but The owner
X. By legacy.

that the owner may seize them again goods after
wheresoever he findeth them, except stolen.

they are I. Property by gift.

they were sold in fair or market, after By gift, the property of goods may they were stolen, and that bona fide without fraud. A deed of gist of goods to de. be passed by word or writing; but if But if the thief be condemned of the if the thief be ceive his cre

there be a general deed of gift made of felony, or outlawed for the same, or condemned for ditors is void against them, all his goods, this is suspicious to be outlawed in any personal action, or have lawed, or for but good against the

done upon fraud, to deceive the cre committed a forfeiture of goods to the feit the stolen executors, ad- ditors.

crown, then the true owner is without crown, the ministrators, or vendee of And if a man who is in debt make a remedy.

out remedy. the party deed of gift of all his goods to protect himself.

Nevertheless, if fresh after the goods When the the taking of them in execution for his were stolen, the true owner maketh take his goods debt, this deed of gift is void, as against those to pursuit after the thief and goods, and frohe then thick whom he stood indebted; but as against himself, taketh the goods with the thief, he may the thief of the his own executors or administrators, or any man to take them again: and if he make no he shall have whom afterwards he shall sell or convey them, it is fresh pursuit, yet if he prosecute the his goods good.

felon, so far as justice requireth, that writ of restitu

is, to have him arraigned, indicted, and II. By sale.

found guilty, though he be not hanged, nor have What is a sale

Property in goods by sale. By sale, judgment of death, or have him outlawed upon the bona fide and any man may convey his own goods to indictment; in all these cases he shall have his where there is another; and although he may fear goods again, by a writ of restitution to the party in a private re execution for debts, yet he may sell whose hands they are. servation of trust between them outright for money at any time the parties.

before the execution served; so that IV. By waving of goods. there be no reservation of trust between them, that, By waving of goods, a property is gotten thus. repaying the money, he shall have the goods again; A thief having stolen goods, being pursued, flieth for that trust, in such case, doth prove plainly a away and leaveth the goods. This leaving is called fraud, to prevent the creditors from taking the goods waving, and the property is in the king; except the in execution.

lord of the manor have right to it, by custom or

charter. III. By theft, or taking in jest.

But if the felon be indicted, adjudged, or found How a sale in

Property of goods by theft, or taking guilty, or outlawed, at the suit of the owner of these market shall in jest. If any man steal my goods or goods, he shall have restitution of these goods, as be a bar to the chattels, or take them from me in jest, before.

or borrow them of me, or as a trespasser or felon carry them to the market or fair, and sell V. By straying. them, this sale doth bar me of the property of By straying, property in live cattle is thus gotten. my goods, saving that if he be a horse he must be When they come into other men's grounds straying ridden two hours in the market or fair, between from the owners, then the party or lord into whose ten and five o'clock, and tolled for in the toll grounds or manors they come, causeth them to be book, and the seller must bring one to avouch his seized, and a wythe put about their necks, and to be sale, known to the toll-book-keeper; or else the cried in three markets adjoining, showing the marks sale bindeth me not. And for any other goods, of the cattle ; which done, if the true owner claimwhere the sale in a market or fair shall bar the eth them not within a year and a day, then the

owner, being not the seller of his pro- property of them is in the lord of the manor whereof markets, and what mar.

perty, it must be sale in a market or unto they did stray, if he have all strays by custom ket such a sale fair where usually things of that nature or charter, else to the king. ought to be

are sold.

As for example ; if a man

steal a horse, and sell him in Smith VI. Wreck, and when it shall be said to be. field, the true owner is barred by this sale ; but if By shipwreck, property of goods is thus gotten. he sell the horse in Cheapside, Newgate, or West. When a ship loaden is cast away upon the coasts, minster market, the true owner is not barred by so that no living creature that was in it when it


made in.


he have not


may before

began to sink escaped to land with life, then all time of his death bona notabilia in bona notabilia

in diverse diothose goods are said to be wrecked, and they belong diverse diocesses of some reasonable cesses, thenthe to the crown if they be found; except the lord of value, then the archbishop of the pro- that province the soil adjoining can entitle himself unto them by vince where he died is to have the where he died custom, or by the king's charter.

probat of his will, or to grant the the adminis

administration of his goods, as the case VII. Forfeitures.

falleth out: otherwise the bishop of the diocess By forfeitures, goods and chattels are thus gotten. where he died is to do it. If the owner be outlawed, if he be indicted of felony, If there be but one executor made,

Executor may

refuse before or treason, or either confess it, or be found guilty of yet he may refuse the executorship, the bishop, if it, or refuse to be tried by peers or jury, or be at coming before the bishop, so that he

intermeddled tainted by judgment, or fly for felony, although he hath not intermeddled with any of the with the

goods. be not guilty or suffer the exigent to go forth goods before, or with receiving debts, or against him, although he be not outlawed, or that paying legacies. he go over the seas without licence, all the goods And if there be more executors than Executor he had at the judgment, he forfeiteth to the crown; one, so many as list may refuse; and if ought to pay,

1. Judgments. except some lord by charter can claim them. For any one take it upon him, the rest that 2. Stat. Re. in those cases prescription will not serve, except it did once refuse may, when they will, by bonds and be so ancient, that it hath had allowance before the take it upon them; and no executor his sealed. justices in eyre in their circuits, or in the king's shall be farther charged with debts or paid. 5. Servbench in ancient time.

legacies, than the value of the goods 6. Head work

come to his hands; so that he foresee that men. 7. Shop VIII. By executorship.

he pay debts upon record, first debts to the contracts by By executorship goods are thus gotten. When a king, then upon judgments, statutes, reman possessed of goods maketh his last will and cognisances, then debts by bond and bill sealed, rent testament in writing or by word, and maketh one or unpaid, servants' wages, payment to head workmen, more executors thereof; these executors have, by and lastly, shop-books and contracts by word. For if the will and death of the parties, all the property an executor or administrator pay debts to others beof their goods, chattels, leases for years, wardships fore debts to the king, or debts due by bond before and extents, and all right concerning those things. those due by record, or debts by shop-books and Executors Those executors may meddle with contracts before those by bond, arrearages of rent, probat dis

the goods, and dispose of them before and servants' or workmen's wages, he shall pay the

they prove the will, but they cannot bring same over again to those others in the said degrees. goods, but not bring an ac

an action for any debt or duty before they But yet the law giveth them choice, Debts due in have proved the will.

that where divers have debts due in equal degree debt.

of record, the What probat

The proving of the will is thus. equal degree of record or speciality, he of the will is, They are to exhibit the will into the

may pay which of them he will, before pay which of bishop's court, and there they are to any suit brought against him ; but if please before made. bring the witnesses, and there they are suit be brought he must first pay

them to be sworn, and the bishop's officers are to keep that get judgment against him. the will original, and certify the copy thereof in Any one executor may convey the Any one exeparchment under the bishop's seal of office; which goods, or release debts without his com- as much as all parchment so sealed, is called the will proved. panion, and any one by himself may do together: but

as much as all together ; but one man's released and IX. By letters of administration.

releasing of debts or selling of goods, ing, he only By letters of administration property in goods is shall not charge the other to pay so shall be chargthus gotten. When a man possessed of goods dieth much of the goods, if there be not wise of admiwithout any will, there such goods as the executors enough to pay debts; but it shall charge should have had, if he had made a will, were by the party himself that did so release or convey. ancient law to

But it is not so with administrators, for they have dispose for the good of his soul that died, he first but one authority given them by the bishop over

paying his funeral and debts, and giving the goods, which authority being given to many is the rest ad pios usus.

to be executed by all of them joined together. This is now altered by statute laws, so as the And if an executor die making an

Executor bishops are to grant letters of administration of the executor, the second executor is execu- dieth making

his executor, goods at this day to the wife if she requireth it, or tor to the first testator. children, or next of kin; if they refuse it, as often they But if an administrator die intestate, executor shall do, because the debts are greater than the estate then his administrator shall not be the first testawill bear, then some creditor or some other will take executor or administrator to the first : wise, if the ad it as the bishop's officers shall think meet. It grow but in that case the bishop, whom we ministrator eth often in question what bishop shall have the right call the ordinary, is to commit the ad- his executor, of proving wills, and granting administration of goods. ministration of the first testator's goods

In * which controversy the rule is to his wife or next of kin, as if he had committed of • Where the

thus, that if the party dead had at the died intestate ; always provided, that his goods.

pose of the

tion for any

executor may

them he

and in what manner it is

suit commenced.


Pii usus.

the second

or if administration be

intestate had

In both cases

bills unsealed,


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

allowed for good. And so if an admi. to pay debts. the ordinary

nistrator die and make his executor, the shall cominit

But this is to be understood by debts Legacies are administra executor of the administrator shall not of record to the king, or by bill and fore debts by tion of the goods of the be executor to the first intestate ; but bond sealed, or arrearages of rent, or

shop-books, first intestate. the ordinary must new commit the ad- servants' or workmen's wages; and not or contracts by

word. ministration of the goods of the first intestate again. debts of shop-books, or bills unsealed,

If the executor or administrator pay or contract by word; for before them legacies are Executors or administra debts, or funerals, or legacies of his own to be paid. tors may remoney, he may retain so much of the And if the executors doubt that they

Executor may goods in kind, of the testator, or intes shall not have enough to pay every pay which tate, and shall have property of it in kind. legacy, they may pay which they list legacy he will

first; but they may not sell any special executors do X. Property by legacy.

legacy which they will to pay debts, or

may sell any Property by legacy, is where a man a lease of goods to pay a money legacy. Legacy to pay administra maketh a will and executors, and giveth But they may sell any legacy which

legacies, he or they to whom the lega- they will to pay debts, if they have not enough tain; because the executors cies are given must have the assent of besides. are charged to the executors, or one of them, to have If a man make a will and make no debts before his legacy; and the property of that executors, or if the executors refuse, When a will is legacies.

legacy or other goods bequeathed unto the ordinary is to commit administra- executor him, is said to be in him; but he may not enter nor tion, cum testamento annexo, and take nisured ad nota take his legacy without the assent of the executors, bonds of the administrators to perform be committed or one of them; because the executors are charged the will, and he is to do it in such sort, to pay debts before legacies. And if one of them as the executor should have done, if he assent to pay legacies, he shall pay the value thereof had been named.

want, they

Executors or

tors may re







The sundry

All the finances or revenues of the uncertain, as be the escheats and forfeitures, the sorts of the imperial crown of this realm of Eng-customs, butlerage, and impost, the advantages comroyal revenue.

land, be either extraordinary or ordinary. ing by the jurisdiction of the courts of record and Those extraordinary, be fifteenths and tenths, clerks of the market, the temporalities of vacant subsidies, loans, benevolences

, aids, and such others bishoprics, the profits that grow by the tenures of of that kind, that have been or shall be invented for lands, and such like, if there any be. supportation of the charges of war; the which as it And albeit that both the one sort and other of is entertained by diet, so can it not be long main these be at the last brought unto that office of her tained by the ordinary fiscal and receipt.

Majesty's exchequer, which we, by a metaphor, do Of these that be ordinary, some are certain and call the pipe, as the civilians do by a

The pipe. standing, as the yearly rents of the demesne or like translation name it Viscus, a baslands; being either of the ancient possessions of the ket or bag, because the whole receipt is finally crown, or of the later augmentations of the same. conveyed into it by the means of divers small pipes

Likewise the fee-farms reserved upon charters or quills, as it were water into a great head or cisgranted to cities and towns corporate, and the tern ; yet nevertheless some of the same be first and blanch rents and lath silver answered by the sheriffs. immediately left in other several places and courts, The residue of these ordinary finances be casual, or from whence they are afterwards carried by silver

This office is

streams, to make up that great lake, or sea, of or not so holden of the queen: so be these fines money.

or sums respectively of two sundry sorts. For As for example, the profits of wards and their upon each alienation of lands, immediately held of lands be answered into that court which is proper her Majesty in chief, the fine is rated here, either for them; and the fines for all original writs, and for upon the licence, before the alienation is made, or causes that pass the great seal, were wont to be im- else upon the pardon when it is made without

mediately paid into the hanaper of the licence. But generally for every final concord of The hanaper.

chancery : howbeit now of late years, lands to be levied upon a writ of covenant, warall the sums which are due, either for any writ of rantia charte, or other writ, upon which it may be covenant, or of other sort, whereupon a final concord orderly levied, the sum is rated here upon the is to be levied in the common bench, or for any original writ, whether the lands be held of the queen, writ of entry, whereupon a common recovery is to or of any other person; if at the least the lands be be suffered there; as also all sums demandable, either of such value, as they may yield the due fine. And for licence of alineation to be made of lands holden likewise for every writ of entry, whereupon a comin chief, or for the pardon of any such alienation, mon recovery is to be suffered, the queen's fine is to already made without licence, together with the be rated there upon the writ original, if the lands mean profits that be forfeited for that offence and comprised therein be held of her by the tenure of trespass, have been stayed in the way to the her prerogative, that is to say, in chief, or of her

hanaper, and been let to farm, upon royal person. derived out of assurance of three hundred pound of So that I am hereby enforced, for the king's the hanaper.

yearly standing profit, to be increased avoiding of confusion, to speak seve- tenant in chief over and above that casual commodity, that was rally, first of the fines for alienation of alien without found to be answered in the hanaper for them, in lands held in chief, and then of the licence. the ten years, one with another, next before the fines upon the suing forth of writs original. That making of the same lease.

the king's tenant in chief could not in ancient time And yet so as that yearly rent of increase is now alien his tenancy without the king's licence, it apstill paid into the hanaper by four gross portions, peareth by the statute, 1 E. III. cap. 12, where it not altogether equal, in the four usual open terms of is thus written: “Whereas divers do

1 E. 3. c. 12. St. Michael, and St. Hilary, of Easter, and the Holy complain, that the lands, holden of the Trinity, even as the former casualty itself was wont king in chief, and aliened without licence, have to be, in parcel meal, brought in and answered there. been seized into the king's hands for such alien

And now forasmuch as the only ation, and holden as forfeit: the king shall not hold The name of the office.

matter and subject about which this them as forfeit in such a case, but granteth that,

farmer or his deputies are employed, is upon such alienations, there shall be reasonable to rate or compound the sums of money payable to fines taken in the chancery by due process.” her Majesty, for the alienation of lands that are So that it is hereby proved, that before this either made without licence, or to be made by statute, the offence of such alienation, without lilicence, if they be holden in chief, or to pass for cence, was taken to be so great, that the tenant did common recovery, or by final concord to be levied, forfeit the land thereby; and consequently that he though they be not so holden, their service may found great favour there by this statute, to be therefore very aptly and agreeably be termed the reasonably fined for his trespass. office of compositions for alienations. Whether the And although we read an opinion 20 lib. Assis. advancement of her Majesty's commodity in this parl. 17 et 26, Ass. parl. 37, which also is repeated part of her prerogative, or the respect of private by Hankf. 14 H. 4, fol. 3. in which year Magna lucre, or both, were the first motives thus to dissever Charta was confirmed by him, the king's tenant in this member, and thereby as it were to mayhem chief might as freely alien his lands without licence, the chancery, it is neither my part nor purpose to as might the tenant of any other lord : yet forasdispute.

much as it appeareth not by what statute the law But for a full institution of the ser was then changed, I had rather believe, with old The scope of the discourse, vice as it now standeth, howsoever judge Thorpe and late justice Stanford, that even at and the parts some men have not spared to speak the common law, which is as much as to say, as thereof.

hardly thereof, I hold worthy my labour from the beginning of our tenures, or from the beto set down as followeth.

ginning of the English monarchy, it was accounted First, that these fines, exacted for such alien- an offence in the king's tenant in chief, to alien withations, be not only of the greatest antiquity, but are out the royal and express licence. also good and reasonable in themselves : secondly, And I am sure, that not only upon the entering, that the modern and present exercise of this office, or recording, of such a fine for alienation, it is wont is more commendable than was the former usage : be said “pro transgressione in hac parte facta :" and lastly, that as her Majesty hath received great but that you may also read amongst the records in profit thereby, so may she, by a moderate hand, the Tower, Fines 6 Hen. Reg. 3, Memb. 4, a prefrom time to time reap the like, and that without cedent of a “capias in manum regis terras alienatas just grief to any of her subjects.

sine licentia regis,” and that namely of the manor As the lands that are to be aliened, of Coselescombe in Kent, whereof Robert Cesterton The first part of this treatise. be either immediately holden in chief, was then the king's tenant in chief. But were it

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