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and then they would, by their wills, declare how their friends should dispose of their lands; and if those friends would not perform it, the Court of Chancery was to compel them, by reason of the trust; and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he 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.
land into use.
By this course of putting lands into ences of putting use, there were many inconveniences | (as this use which grew first for a reasonable cause), viz. 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 feoffor, 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 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 conveyances to
statutes 1 H. 6.
4 H. 8. IR. 3.
Which frauds, by degrees of time, as by degrees they increased, were remedied by diof time, as they vers statutes; as, namely, by a statute remehed by the of 1 H. VI. and 4 H. VIII. it was apAH.. 16H.S. pointed 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 statutes 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 multiplying daily, in the end 27 H. VIII. the Parliament, purposing to take away all those uses, thea and reducing the law to the ancient a form of conveying of lands by public reef, and 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.
27 H. 8. taking away all uses refoceth the
cient form of
lani by feoff
In what manner
eat of power to dis by will.
32 H. S. giveth
pose of lands
If a man be
By this statute of 27 H. VIII. the power of disposing land by will is clearly taken away amongst those frauds; 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 term in tail, cannot give land by will, by that statute, 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the seed of cape land he holdeth in soccage tenure, he may give it by will, except he hold any parts of the piece of land in capite, by knight's service of the king; and then, laying all his lacks together, he can give but two parts by will, for the third part of the whole, as well in soccage as in capite, must descend to the heir, to answer wardship, livery, and 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 by descent, is to hold.
lands and soc cage, he cannot devise but two
The third part must descend to vergade
the heir to an
livery, sei. sin to the crown.
A conveyance pite lands to wife for her jointure, or to their good, or to pay debts is
for for third part, by 32 II. &
And if a man that hath three acres of land holden in capite, by kright's the service, do make a jointure to his wife of one, and convey another to any of his children, or to friends, to take the profits and to pay his debts, or legacies, or daughters' 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.
ance by act exe cuted in the fe party of such lards to such
uses is not void, but a third
part; but if the
Yet a man, having three acres as But a convey before, may convey all to his wife or children, by conveyance, in his life-time of the time, as by feoffment, fine, recovery, bargain, and sale, or covenant to stand seised to uses, and to disinherit the heir. But if the heir be within age as to be in when his father dieth, the king or other ward. 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.
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 fee-simple, or in tail, must be part of the thirds; and if it be a full third, then the king, heir. 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 The manner of it be the king's ward, then by a com- when the part mission out of the court of wards, ofthe heirs pet whereupon a jury by oath must set
a full bird.
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.
and what sue ought to be
markets such a
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 of gold or pearl that is stolen or borrowed, be sold in a draper's or scrivener's shop, or any others but a goldsmith, this sale barreth not the true owner, et sic in similibus.
after they are
Yet by stealing alone of goods the The owner may thief getteth not such property, but that seize his goods the owner may seize them again where- stun. soever he findeth them; except 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 felony, or outlawed for the same, or outlawed in any personal action, or have committed a forfeiture of goods to the crown, then the true owner is without remedy.
If the thief be condemned
el for the stolen goods the crown, without re
lawed, or forfeit
the owner is
medy. But if he make fresh pursuit be mey take bus goods
from the thief. Orih prose against the thief
cuted the law
and convict him
of the same fe have hoods
lony, he shall
again by a writ of restitution.
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 gotWhen 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.
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
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 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.
If there be but one executor made, Executor may yet he may refuse the executorship the bishop. if he coming before the bishop, so that he led the hath not intermeddled with any of the goods. goods before, or with receiving debts, or paying legacies.
1. Judgments. 2. Stat. recogn 3. Debts by
bond and bills 4. Rent unpaid.
6. Head work.
And if there be more executors than one, so many as list may refuse; and to pay 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 further charged with debts or legacies than the value of the goods come to his hands. So that he foresee and contracts 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
cutor, the se
cond executor shall be executor to the first testator.
But otherwise, if the adminis urator die
making his exe ministration be
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 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 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 administration administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the
In both cases the ordinary shall commit
of the goods of the first intes. tate.
goods of the first intestate again.
may retain; be cause the esecut. rs are
charged to pay foe legacas
some debts be
Property by legacy is where a man maketh a will and executors, and giveth distrators 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.
Legacies are to braid before
deb's by shopbooks, bills da seled, or eon
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 tracis by word not debts of shop-books, or bills unsealed, or contract by word; for before them legacies are to be paid.
Executor may y which a first. If tha
gacy he will
executors do want they may sell any legacy
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 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.
when a will is
de, and o named, admibed
nistration is to
THE ARGUMENTS IN LAW
SIR FRANCIS BACON, KNIGHT,
THE KING'S SOLICITOR-GENERAL,
IN CERTAIN GREAT AND DIFFICULT CASES.
TO MY LOVING FRIENDS AND FELLOWS,
READERS, ANCIENTS, UTTER-BARRISTERS, AND STUDENTS OF GRAY'S INN.
I Do not hold the law of England in so mean an account, but that which other laws are held worthy of should be due likewise to our laws, as no less worthy for our state. Therefore, when I found that, not only in the ancient times, but now at this day, in France, Italy, and other nations, the speeches, and as they term them, pleadings, which have been made in judicial cases where the cases were mighty and famous, have been set down by those that made them, and published; so that not only Cicero, a Demosthenes, or an Æschines hath set forth his orations, as well in the judicial as deliberative, but a Marion and a Pavier have done the like by their pleadings; I know no reason why the same should not be brought in use by the professors of our law, for their arguments in principal cases. And this I think the more necessary, because the compendious form of reporting resolutions, with the substance of the reasons lately used by Sir Edward Coke, Lord Chief Justice of the King's Bench, doth not delineate or trace out to the young practisers of law a method and form of argument for them to imitate. It is true, I could have wished some abler person had begun; but it is a kind of order sometimes to begin with the meanest. Nevertheless, thus much I may say with modesty, that these arguments which I have set forth, most of them are upon subjects not vulgar; and therewithal, in regard of the commixture which the course of my life hath made of law with other studies, they may have the more variety, and perhaps the more depth of reason: for the reasons of municipal laws, severed from the grounds of nature, manners, and policy, are like wall flowers, which, though they grow high upon the crests of states, yet they have no deep root: besides, in all public services I ever valued my reputation more than my pains; and, therefore, in weighty causes I always used extraordinary diligence; in all which respects I persuade myself the reading of them will not be unprofitable. This work I knew not to whom to dedicate rather than to the Society of GRAY'S INN, the place whence my father was called to the highest place of justice, and where myself have lived and had my procedure so far as, by his majesty's rare, if not singular grace, to be of both his councils; and therefore few men so bound to their societies by obligation, both ancestral and personal, as I am to yours, which I would gladly acknowledge, not only in having your name joined with mine own in a book, but in any other good office and effect which the active part of my life and place may enable me unto toward the society, or any of you in particular. And so I bid you right heartily farewell.
Your assured loving Friend and Fellow,
FRANCIS BACON 267