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and then they would, by their wills, declare how By this statute of 27 H. VIII. the their friends should dispose of their lands; and power of disposing land by will is seen if those friends would not perform it, the Court clearly taken away amongst those pour produs of Chancery was to compel them, by reason of frauds; whereupon 32 H. VIII. another by will. the trust; and this trust was called the use of the statute was made, to give men power to give land, so as the seoffees had the land, and the party lands by will in this sort. First, it must be by himself had the use; which use was in equity, to will in writing. Secondly, he must be seised of taise the profits for himself, and that the feoffees an estate in fee-simple ; for tenant for another should make such an estate as he should appoint man's life, or term in tail, cannot give land by them; and if he appointed none, then the use will, by that statute, 32 H. VIII. he must be solely should go to the heir, as the estate itself of the seised, and not jointly with another; land should have done ; for the use was to the and then being thus seised, for all the sad of capie estate like a shadow following the body. land he holdeth in soccage tenure, he case, le came

By this course of putting lands into may give it by will, except he hold any parts of the enses of putting use, there were many inconveniences piece of land in capite, by knight's ser

(as this use which grew first for a rea- vice of the king; and then, laying all his lacks sonable cause), viz. to give men power and liberty together, he can give but two parts by will, for to dispose of their own, was turned to deceive the third part of the whole, as well in soccage as many of their just and reasonable rights; as, in capite, must descend to the heir, to answer namely, a man that had cause to sue for his land, wardship, livery, and primer seisin to the crown. knew not against whom to bring his action, nor And so if he hold lands by knight's The third part who was owner of it. The wife was defrauded service of a subject, he can devise of the police centre of her thirds; the husband of being tenant by the land but two parts, and the third over and bei courtesy; the lord of his wardship, relief, heriot, the lord by wardship, and the heir by and escheat; the creditor of his extent for debt; descent, is to hold. the poor tenant of his lease, for these

And if a man that hath three acres duties were given by law from him that was of land holden in capite, by kright's owner of the land, and none other, which was service, do make a jointure to his wife joife from both a now the feoffee of trust, and so the old owner, of one, and convey another to any of his here to for which we call the feoffor, should take the profits, children, or to friends, to take the pro- fold for a wird and leave the power to dispose of the land at his fits and to pay his debts, or legacies, or part, by 32 11. . discretion to the feoffee, and yet he was not such daughters' portions, then the third acre, or any a tenant as to be seised of the land, so as his wife part thereof, he cannot give by will, but must could have dower, or the lands be extended for suffer it to descend to the heir, and that must his debts, or that he could forfeit it for felony or satisfy wardship. treason, or that his heir could be ward for it, or Yet a man, having three acres as any duty of tenure fall to the lord by his death, or before, may convey all to his wife or curezin met that he could make any leases of it.

children, by conveyance, in his life- ture of the Which frauds, by degrees of time, as time, as by feoffment, fine, recovery, borte monturbid, one by degrees they increased, were remedied by di- bargain, and sale, or covenant to stand beauty is creien vers statutes; as, namely, by a statute seised to uses, and to disinherit the lives he remunten by the of 1 H. VI. and 4 H. VIII. it was ap- heir. But if the heir be within age acres to be in 13. : pointed that the action may be tried when his father dieth, the king or other ward.

against him which taketh the profits, lord shall have that heir in ward, and shall have which was then cestuy que use by a statute made one of the three acres during the wardship, and to 1 R. III. Leases and estates made by cestuy que sue livery and seisin. But at full age the heir use are made good, and statutes by him acknow. shall have no part of it, but it shall go according ledged. 4 H. VII. the heir of cestuy que use is to to the conveyance made by the father. be in ward. 16 H. VIII. the lord is to have relief It hath been debated how the thirds upon the death of any cestuy que use.

shall be set forth. For it is the use that part of the Which frauds nevertheless multiplying daily, all lands which the father leaveth to the kingdom

in the end 27 H. VIII. the Parliament, descend to the heir, being fee-simple, call third put 27 H. S taking

purposing to take away all those uses, or in tail, must be part of the thirds ; bien en open and reducing the law to the ancient and if it be a full third, then the king, heir. for form of conveying of lands by public nor heir, nor lord, can intermeddle with the rest ; recoverings, and livery of seisin, fine, and recovery, did if it be not a full third, yet they must take it so

ordain, that where lands were put in much as it is, and have a supply out of the rest, trust or use, there the possession and estate should This supply is to be taken thus; if be presently carried out of the friends in trust, and it be the king's ward, then hy a comsettled and invested on him that had the uses, for mission out of the court of wards, offre un pat such term and time as he had the use.

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forth so much as shall make up the thirds, except carry them to the market or fair, and sell them, the officers of the court of wards can otherwise this sale doth bar me of the property of my goods, agree with the parties. If there be no wardship saving that if he be a horse he must be ridden two due to the king, then the other lord is to have this hours in the market or fair, between ten and five supply by a commission out of the chancery, and o'clock, and tolled for in the toll book, and the jury thereupon.

seller must bring one to avouch his sale, known But in all those cases the statutes do to the toll book keeper, or else the sale bindeih me poater to give power to him that maketh the will not. And for any other goods, where the sale in a en el sector to set forth, and appoint of himself, market or fair shall bar the owner, being not the parabe et heurd which lands shall go for thirds, and seller of his property, it must be sale in a market

neither king nor lord can refuse it. or fair where usually things of that

And if it be not enough, yet they must nature are sold. As for example: if a ard what out of the rent. take that in part, and only have a sup- man steal a horse, and sell him in si og til to be ply in manner as before is mentioned out of the Smithfield, the true owner is barred by

this sale; but if he sell the horse in Cheapside, Property in goods.

Newgate, or Westminster Market, the true owner

is not barred by this sale, because these markets 1. By gift.

are usual for flesh, fish, &c., and not for horses. 2. By sale.

So, whereas, by the custom of London, in 3. By stealing. every shop there is a market all the days of the Of the several ways 4. By waving.

week, saving Sundays and holidays. Yet if a whereby a man may 5. By straying.

piece of plate or jewel that is lost, or chain of get property in goods 6. By shipwreck. gold or pearl that is stolen or borrowed, be sold or chattels.

7. By forfeiture. in a draper's or scrivener's shop, or any others 8. By executorship. but a goldsmith, this sale barreih not the true

9. By administration. owner, et sic in similibus. (10. By legacy.

Yet by stealing alone of goods the

thief getteth not such property, but that we have 1. Property by gift.

the owner may seize them again where- stuhn. By gift the property of goods may soever he findeth them; except they were sold in centre his credito be passed by word or writing; but if fair or market, after they were stolen, and that

there be a general deed of gift made of bona fide without fraud.
all his goods, this is suspicious to be

But if the thief be condemned of the nuoret over de upon fraud, to deceive the cre- felony, or outlawed for the same, or other eventi in der of the party ditors.

outlawed in any personal action, or the student rent And if a man who is in debt make a have committed a forfeiture of goods to the crown deed of gift of all his goods to protract the taking the crown, then the true owner is with these for of them in execution for his debt, this deed of gift out remedy. is void, as against those to whom he stood in

Nevertheless, if fresh after the goods from libe thiet. debted; but as against himself, his own executors were stolen, the true owner maketh Or if the more or administrators, or any inan to whom afterwards pursuit after the thief and goods, and as the thief he shall sell or convey them, it is good.

taketh the goods with the thief, he of the same fe

may take them again. And if he make have his gads II. By sale.

no fresh pursuit, yet if he prosecute Property in goods by sale. By sale the felon so far as a justice requireth, that is, to

have him arraigned, indicted, and found guilty what not, it hen any man may convey his own goods to another: and although he

(though he be not hanged, nor have judgment of fear exe

may en w een cution for debts, yet he may sell then death,) or have him outlawed upon the indict

outright for money at any time before ment; in all these cases he shall have his goods the execution served, so that there be no reserva

again, by a writ of restitution to the party in tion of trust between them; paying the money,

whose hands they are. he shall have the goods again; for that trust, in

IV. By waving of goods. much case, doth prove plainly a fraud to prevent the creditors from taking the goods in execution.

By waving of goods a property is gotten thus.

A thief having stolen goods being pursued, fiieth III. By theft, or taking in jest.

away and leaveth the goods. This leaving is

called waving, and the property is in the king; Property of goods by theft, or taking except the lord of the manor have a right to it by nuk shall be in jest. If any man steal my goods or custom or charter.

chattels, or take them from me in jest, But if the felon be indicted, adjudged, or founul or borrow them of me, or as a trespasser or felon guilty, or outlawed at the suit of the owner of

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are to exhibit the will into the bishop's of the will is

court, and there they are to bring the manner it is V. By straying.

witnesses, and there they are to be

sworn, and the bishop's officers are to keep the By straying property in live cattle is thus got- will original, and certify the copy thereof in ten. When they come into other men's grounds, parchment under the bishop's seal of office, straying from the owners, then the party or lord which parchment so sealed, is called the will into whose grounds or manors they come causeth

proved. them to be seized, and a withe put about their necks, and to be cried in three markets adjoining,

IX. By letters of administration. showing the marks of the cattle; which done, if By letters of administration property in goods the true owner claimeth them not within a year is thus gotten. When a man possessed of goods and a day, then the property of them is in the dieth without any will, there such goods as the lord of the manor whereunto they did stray, if he executors should have had if he had made a will hive all strays by custom or charter, else to the were by ancient law to come to the bishop of the kiny

diocess, to dispose for the good of his soul that VI. Wreck, and when it shall be said to be.

died, he first paying his funerals and

debts, and giving the rest, ad pios usus. By shipwreck property of goods is thus gotten. This is now altered by statute laws, so as the When a ship laden is cast away upon the coasts, bishops are to grant letters of administration of the so that no living creature that was in it when it goods at this day to the wife if she require it, or began to sink escapeth to land with life, then all children, or next of kin; if they refuse it, as often triose goods are said to be wrecked, and they be they do, because the debts are greater than the long to the crown if they be found; except the estate will bear, then some creditor, or some other, lord of the soil adjoining can entitle himself unto will take it as the bishop's officers shall think thern by custom, or by the king's charter. meet. It groweth often in question what bishop

shall have the right of proving wills, and granting VII. Forfeitures.

administration of goods.

In which controversy the rule is By forfeitures goods and chattels are thus got- thus : That if the party dead had, at the states him boma. ten. If the owner be outlawed, if he be indicted the time of his death, bona notabilia in een die ersten of felony or treason, or either confess it, or be divers diocesses of some reasonable bishop of that found guilty of it, or refuse to be tried by peers value, then the archbishop of the pro- commit the ad. or jury, or be attainted by judgment, or fly for vince where he died is to have the profelony, although he be not guilty, or suffer the bate of his will, and to grant the administration exigent to go forth against him, although he be of his goods as the case falleth out; otherwise, not outlawed, or that he go over the seas without the bishop of the diocess where he died is to do it. license, all the goods he had at the judgment he If there be but one executor made, forfeiteth to the crown, except some lord by char- yet he may refuse the executorship here are ter can claim them. For in those cases prescripts coming before the bishop, so that he moved be will not serve, except it be so ancient, that it hath not intermeddled with any of the goods hath had allowance before the justices in eyre in goods before, or with receiving debts, or paying their circuits, or in the King's Bench in ancient legacies. time.

And if there be more executors than
VIII. By executorship.

one, so many as list may refuse; and to pay,

if any one take it upon hiin, the rest By executorship goods are gotten. When a that did once refuse may when they benide and billo man possessed of goods maketh his last will and will take it upon them, and no execu- : Bent unpaid. testament in writing, or word, and maketh one or tor shall be further charged with debts i altres more executors thereof, these executors have by or legacies than the value of the goods .eshop brok, the will and death of the parties all the property come to his hands. So that he foresee and contracts of their goods, chattels, leases for years, ward that he pay debts upon record, first ships, and extents, and all right concerning those debts to the king, then upon judgments, statutes, things.

recognizances, then debts by bond and bill sealed, Those executors may meddle with rent unpaid, servants' wages, payment to head

the goods, and dispose them before workmen, and, lastly, shop-books, and contracts Es been they prove the will, but they cannot by word. For if an executor, or administrator

bring an action for any debt or duty pay debts to others before to the king, or debis brfore they have proved the will.

due by bond before those due by record, or debts VOL. III.-31

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by shop-books and contracts before those by bond, If the executor or administrator pay Executors ar arrearages of rent, and servants’, or workmen's debts, or funerals, or legacies of his armio eratora wages, he shall pay the same over again to those own money, he may retain so much of others in the said degrees.

the goods in kind, of the testator or intestate, and But yet the law giveth them choice, shall have property of it in kind. equal tegree of that where divers have debts due in faktor many equal degree of record or specialty, he

X. Property by legacy. may pay which of them he will, before Property by legacy is where a man

any suit brought against him; but if maketh a will and executors, and giveth a'r testimonie suit be brought he must pay them that get judg- legacies, he or they to whom the legament against him.

cies are given must have the assent of chaos Any one executor may convey the the executors, or one of them, to have foie legacna bouchas all too goods, or release debts without his com- his legacy, and the property of that lease, or other be it a panion, and any one by himself may do goods bequeathed unto him, is said to be in him;

as much as all together ; but one man's but he may not enter nor take his legacy without releasing of debts or selling of goods, the assent of the executors, or one of them,

shall not charge the other to pay so because the executors are charged to pay debis much of the goods, if there be not enough to before legacies. And if one of them assentio pay debts; but it shall charge the party him- pay legacies, he shall pay the value thereof of his self that did so release or convey.

own purse if there be not otherwise sufficient to But it is not so with administrators, pay debts. administrators. for they have but one authority given

But this is to be understood by debts Liguries are to them by the bishop over the goods, which author- of record to the king, or by bill and leadl dore ity being given to many, is to be executed by all bond sealed, or arrearages of rent, or borok, illos of them joined together.

servants' or workmen's wages; and tracis lg wird And if an executor die making an not debts of shop-books, or bills unsealed, or executor, the second executor is exe-contract by word ; for before them legacies are cutor to the first testator.

to be paid. But if an administrator die intestate,

And if the executors doubt that they Execuiet nos then his administrator shall not be exe- shall not have enough to pay every parisheshin

cutor or administrator to the first. But | legacy, they may pay which they list Grote mabing his teams in that case the bishop, whom we call first; but they may not sell any special event coinistration be the ordinary, is to commit the adminis. legacy which they will to pay debts, to pay debts.

tration of the first testator's goods to or a lease of goods to pay a money-legacy. But his wise, or next of kin, as if he had died intes- they may sell any legacy which they will to pay tate. Always provided, that that which the exe- debts, if they have not enough besides. cutor did in his lifetime is to be allowed for good.

a man make a will, and make no When a willie And so if an administrator die, and executors, or if the executors refuse, butter and to

make his executor, the executor of the the ordinary is to commit administra. namel, adini. s'ministration administrator shall not be executor to tion cum testamento annexo, and take about the centered

the first intestate ; but the ordinary must bonds of the administrators to perform

new commit the administration of the the will, and he is to do it in such sort as the guods of the first intestate again.

executor should have done, if he had been named.

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cum festa LO Q...

THE ARGUMENTS IN LAW

OF

SIR FRANCIS BACON, KNIGHT,

THE KING'S SOLICITOR-GENERAL,

IN CERTAIN GREAT AND DIFFICULT CASES.

TO MY LOVING FRIENDS AND FELLOWS,

THE

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 haih 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 owu 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 heartiiy farewell. Your assured loving Friend and Fellow,

Francis BACON

267

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