' himself which was or might have been molested or grieved because or by colour of any such outlawry. And that this ordinance shall have relation and force by authority aforesaid for the executors of every testa'tor as well of every outlawry pronounced against any person at any time before this Parliament as of all manner of outlawries to be pronounced against any person in time to come.' [ No. IX. ] 33 Henry VI. c. 1.—A Remedy for Executors against Servants that imbezzle their Master's Goods after his Death. No. VI 9 Hen. c. 4. Regist. 19 FIRST, our foresaid Lord the King considering how that of late time 33 Henry VI. divers houshold-servants as well of lords as of other persons of. c. 1. "good degree shortly after the death of their said lords and masters vio- 3 Inst. 104. "lently and riotously have taken and spoiled the goods which were of Qu. If in use? "their said lords and masters at the time of their death and the same See 33 H. VI. "distributed amongst them to the impediment of the execution of the 7 c. ❝ will of their said lords and masters and to the great displeasure of Rast. Ent. 29. "GOD, and also contrary to the duty and truth which they ought to have "had towards their said lords and masters and to a perilous example in "time to come, unless due remedy in this behalf be provided." Wherefore the same Lord the King, by the advice assent and authority aforesaid hath ordained and established, That after full information made to the Chancellor of England for the time being, by the executors of any such lord or person or two of the said executors of such riot taking and spoil made or hereafter to be made by the houshold-servants of their or his said testator after his death, the same Chancellor, by the advice of the Chief Justices of the King's Bench and of the Common Bench and Chief Baron of the Exchequer for the time being or two of them, shall have power to make so many and such writs to be directed to such sheriffs by their discretion as to them in this behalf shall seem necessary to make open proclamation in such cities boroughs towns or places two market-days within twelve days next after the delivery of the same writs as to the same Chancellor, by the advice aforesaid, shall seem reasonable, That the said offenders shall appear before the same our Lord the King or his heirs in his bench at such a day as by the said writ shall be limited, so that the said last proclamation be made by fifteen days before the same day of appearance; and if any such writ be returned at the day contained in the said writ and the writ be executed that proclamation is thereupon had and made according to the said ordinance, and then if the said person or persons which should appear by reason of the said proclamation make default at the day specified in the said writ and do not appear then he or they so making default shall be attainted of felony.' II. And if any such persons or person do appear at the same day then the Justices of the said King's Bench shall have power by the said ordinance to commit such person or persons so appearing to prison there to remain according to the said justices discretion, until the said offenders in the said bench do answer to the said executors in such actions which the said executors will declare against them or any of them by bill or by writ for the riot, taking and spoiling aforesaid and that the same actions be determined; so that the same actions be pursued with ef⚫fect and not slackly to the intent to keep the same person or persons in prison' III. And if such persons or person be set at liberty out of prison by A Gaoler's Forthe said justices that then the same persons or person shall find suffi- feiture for setcient persons to be bounden with them to the said executors by way of ting at Liberty a recognisance in the said bench by discretion of the justices to keep such Prisoner comdays as he or they shall have by the same court; and if the keepers of mitted to his the prison whereunto the said person or persons be committed do let Custody by them go at large out of the prison of his own authority without the con- Force of this sideration and order of the said justices, then the said keeper shall forStatute. feit and lose forty [four hundred] pounds to the said executors; and that no protection be allowed in any action to be taken upon the said • ordinance.' [No. X. ] 21 Henry VIII. c. 4.-The Sale of Lands by Part of the Executors lawful. [Inserted ante Part II Class I. No. XI.] [ No. XI. ] 21 Henry VIII. c. 5.-What Fees ought to be taken for Probate of Testaments. WHERE in the Parliament holden at Westminster in the thirty-first year of the reign of the noble King of famous memory Edward the Third, upon the complaint of his people for the outrageous and grievous fines and sums of money taken by the ministers of bishops and of other ordinaries of holy church for the probate of testaments and for the acquittances by the said ordinaries to be made concerning the same, the said noble King in the same Parliament openly charged and commanded the Archbishop of Canterbury and the other bishops for the time being that amendment thereof should be had; and if none ' amendment were thereof had, it was by the authority of the same Parliament accorded, That the King should thereof make inquiry by his justices of such oppression and extortions; and that the same justices should hear and determine them as well at the suit of the King as of the party as of old time hath been used as by the same statute plainly appeareth. And where at the Parliament holden at Westminster in the third year of the reign of King Henry the Fifth, it was recited, That the Commons of the realm had oftentimes complained them in divers Parliaments for that divers ordinaries do take for the probation of testa⚫ments and other things thereunto belonging sometiine xl. s. sometime lx. s. and sometimes more against right and justice, where in the time of King Edward the Third men were wont to pay for such causes but ii. s. vi. d. or v. s. at the most by which unlawful exactions the testa'ments of the testators might not be executed according to their last wills; it was then enacted for the avoiding of such oppressions, That no ordinary from thenceforth should take for the probation of any testament or inventory or for any other thing to the same belonging any more than was accustomed and used in the time of the said noble King Edward the Third, upon pain to yield to the party so grieved three times as much as the said ordinaries did so receive; which Act did endure but to the next Parliament following by reason that the ordinaries did then promise to reform and amend the said oppressions and exactions; and for that the said unlawful exactions of the said ordinaries and their ministers be nothing reformed nor amended, but greatly augmented and increased against right and justice and to the great impoverishing of the King's subjects :' II. The King our Sovereign Lord, by the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by the authority of the same, hath ordained established and enacted, That from the first day of April in the year of our Lord M.D.XXX. that nothing shall be demanded received nor taken by any bishop ordinary archdeacon chancellor commissary official or any other manner of person or persons whatsoever they be which now have or which at any time hereafter shall have authority or power to take or receive probation insinuation or approbation of testament or testaments by himself or themselves nor by his or their registers scribes praisers summoners apparators or by any other of their ministers for the probation insinuation and approbation of any testament or testaments, or for writing sealing praising registering fines making of inventories and of giving acquittances or for any other manner of cause concerning the same where the goods of the testator of the said testament or person so dying do not amount clearly over and No. XI. 21 H. VIII. c. 5. above the value of c. s. sterling, except only to the scribe to have for writing of the probate of the testament of him deceased whose goods shall not be above the same clear value of c. s. vi. d. and for the commission of administration of the goods of any man deceasing intestate not being above like value of c. s. clear vi. d. and that nevertheless the bishop ordinary or other person or persons having power or authority to take or receive Commission of the probation or approbation of testaments refuse not to approve any such Administration testament being lawfully tendered or offered to them to be proved or where the approved, whereof the goods of the testator or person so dying amount not Goods exceed above the value of c. s. sterling, so that the said testament be exhibited to not the Value him or them in writing with wax thereunto affixed ready to be sealed, and of C. s. that the same testament be lawfully proved before the same ordinary (before the scaling) to be true whole and the last testament of the same testator in such form as hath been commonly accustomed in that behalf. where the Goods do ex ceed c. s. and not xl. li. III. And when the goods of the testator do amount over and above The Fees of the clear value of c. s. and do not exceed the sum of xl. li. sterling; that the Probate of then no bishop ordinary nor other manner of person or persons whatso- a Testament, ever he or they be now having or which hereafter shall have authority to take probation or approbation of any testament or testaments as is aforesaid by themselves nor any of their said registers scribes praisers summoners apparators nor any other their ministers for the probation insinuation and approbation of any testament or testaments or for the registring sealing writing praising making of inventories giving of acquittances fines or any other thing concerning the same shall take or cause to be taken of any person or persons but only three shillings vi. d. 2 Roll. 158. and not above, whereof to be to the said bishop or ordinary or to any 263. 449. other person or persons having power and authority to take the probation or approbation of any testament or testaments for him and his ministers ii. s. vi. d. and not above, and rii. d. residue of the said iii. s. vi. d. to be The Fees of to the scribe for the registring of the same; and where the goods of the the Probate of testator or person or persons so dying do amount over and above the a Testament, clear value of xl. li. sterling, that then the bishop nor ordinary nor other where the person or persons now having or which hereafter shall have authority or Goods do expower to take probate of testaments as is aforesaid by him or themselves ceed xl, li. nor any of his or their said registers scribes praisers summoners apparators or any other their ministers for the probation insinuation and approbation of any testament or testaments, or for the registring sealing writing praising making of inventories fines giving of acquittances or any thing concerning the same probate of a testament shall from the first day of April take or cause to be taken of any person or persons but only v. s. and not above, whereof to be to the said bishop ordinary or other person having power to take the probation of such testament or testaments for him and his ministers ii. s. vi. d. and not above, and ii. s. vi. d. residue of the said v. s. to be to the scribe for registring of the same or else the same scribe to be at his liberty to refuse those ii. s. vi. d. and to demand and have for writing of every ten lines of the same testament whereof every Jine to contain in length ten inches, i. d. and that every such bishop or ordinary and other person or persons so having or which hereafter shall have authority or power to take or receive the probation or approbation of any testament or testaments as is abovesaid their registers scribes and mi- Testaments nisters shall approve insinuate seal and register from time to time the shall be sealed said testaments and deliver the same scaled with the seal of their office and delivered to the executor or executors named in any such testaments for the said without delay. sum or sums abovesaid and in manner and form as is above rehearsed to deliver it with convenient speed without any frustratory delay; and in Hob. 250. case any person die intestate or that the executors named in any such Administration testament refuse to prove the said testament, then the said ordinary or granted of the other person or persons having authority to take probate of testaments as is abovesaid shall grant the administration of the goods of the testator or person deceased to the widow of the same person deceased or to the next of his kin or to both as by the discretion of the same ordinary shall be min, 47. 3 Co. 40. 9 Co. 39. Cro. El. 163. Cro. Car. 9. 106. VOL. II. 2 A Goods of the Moore 871. pl. No. XI. 21 H. VIII. c. 5. To whom Ad ministration shall be granted. How much the take. 3 Inst. 148. thought good, taking surety of him or them to whom shall be made such commission for the true adininistration of the goods chattels and debts which he or they shall be so authorised to minister; and in case where divers persons claim the administration as next of kin which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administration as next of kin where indeed divers persons be in equality of kindred as is aforesaid, that in every such case the ordinary to be at his election and liberty to accept any one or mo making request where divers do require the administration.* IV. Or where but one or more of them, and not all being in equality of degree, do make request, then the ordinary to admit the widow and him or them only making request or any one of them at his pleasure, taking nothing for the same unless the goods of the persons so deceased amount above the value or sum of c. s. and in case the goods of the person so deceased amount to above the value of c. s. and not above the value or sum of xl. li. then the said bishop ordinary or other person or persons so having authority to take probate of testaments as is aforesaid, their ministers and officers shall take only i. s. vi. d. sterling and not above; and that the executor and executors named by the testator or person so deceased or such other person or persons to whom such administration shall be committed where any person dieth intestate or by way of intestate, calling or taking to him or them such person or persons, two at the least, to whom the said person so dying was indebted or made any legacy, and upon their refusal or absence two other honest persons being next of kin to the person so dying, and in their default and absence two other honest persons, and in their presence and by their discretions shall make or cause to be made a true and perfect inventory of all the goods chattels wares merchandises as well moveable as not moveable whatsoever, that were of the said person so deceased, and the same shall cause to be indented, whereof the one part shall be by the See 3 Bur.1923. said exccutor or executors administrator or administrators, upon his or their oath or oaths to be taken before the said bishops or ordinaries their officials or commissaries or other persons having power to take probate of testaments upon the Holy Evangelists to be good and true, and the same one part indented shall present and deliver into the keeping of the said bishop ordinary or ordinaries or other person having power to take probate of testaments, and the other part thereof to remain with the said executor or executors administrator or administrators; and that no bishop ordinary or other whatsoever person having authority to take probate of testament or testaments as is abovesaid, upon the pain in this estatute hereafter contained, refuse to take any such inventory or inventories to him or them presented or tendered to be delivered as is aforesaid. Inventary, by whom it shall be made, &c. 1 Roll. 358. Profits of Lands to be sold shall not be account ed the Testator's Goods. Dyer 264. 310. Fitz. Exec. 1. 37.51. The Testator's Seal shall be defaced. Fee for Search and Copies. V. Provided always, That if the person so deceased will by his testament or last will any lands tenements or hereditaments to be sold, that the money thereof coming nor the profits of the said lands for any time to be taken, shall not be accounted as any of the goods or chattels of the said person so deceased; and that the same bishop ordinary or other person or persons having authority to take probate of testament or testaments as is aforesaid, upon the delivery of the scal and sign of the testator do cause the same seal to be defaced, and thereupon incontinent redeliver the same seal unto the said executor or executors without claim or challenge thereunto to be made. And in case any person or persons at any time hereafter require a copy or copies of the said testament so proved, or of the said inventories so made, that then the said ordinary or ordinaries and the other persons having authority to take probate of testaments or their ministers shall from time to time with convenient speed without any frustratory delay deliver or cause to be delivered a true copy or copies of the same to the said person or persons so demanding them or any of them, taking for the search and for the making of the copy of either of the said testament or inventory but only such fee as is before rehearsed for the registring of the said testament; or else the * See Notes to No. 4, supra. No. XI. 21 H. VIII. c. 5. scribe or register to be at his election and liberty to demand have and take for every ten lines thereof, being of the proportion before rehearsed, i. d. VI. Provided alway, That where any person or persons having power or authority to take probate of testaments have used to take less sums of money than is abovesaid for the probate of testaments or commissions of administrations or other cause concerning the same, shall take and Custom to take receive such sum or sums of money for the probate of testaments and less Money for commissions of the administrations and other causes concerning the Probate than is same, as they before the making of this Act have used to take and not aforesaid. above. VII. And it is enacted, That every bishop ordinary archdeacon chan- Forfeiture of cellor commissary official and other person or persons having or which the Ordinary,: hereafter shall have authority to take probate of testaments, their regis- &c. ters scribes praisers summoners apparators and all other their ministers whatsoever they be that shall do or attempt or cause to be done or attempted against this Act or ordinance in any thing shall forfeit and lose for every time so offending to the party grieved in that behalf so much money as any such person abovesaid shall take contrary to this present Act; and over that shall lose and forfeit r. li. sterling; whereof the one Co. pl. f. 166. moiety shall be to the King our Sovereign Lord, and the other moiety to Rast, pl. f. 603 the party grieved in that behalf that will sue by action of debt bill information or otherwise in any of the King's courts for the recovery of the same; in which action no essoin protection nor wager of law shall be admitted or allowed. And that every of the same bishops and other persons which shall hereafter incur or fall into the dangers of such penalty or forfeiture shall be charged only by himself and none of them to be chargeable to that penalty for other's offence. VIII. Provided alway, That this present Act be not prejudicial to any ordinary or any other person which now have or hereafter shall have authority for probate of testaments, but that every of them shall and may convent before them all and every person or persons made and named executor or executors of any testament to the intent to prove or refuse the testament or testaments of their testator or testators, and to bring in inventories and to do every other thing concerning the same, as they might do before the making of this Act; so that always any such ordinary or other person or persons having such authority by themselves their commissaries scribes registers or other ministers aforesaid, shall not in any wise take for the same above the fees limited by this Act, ne in any wise attempt any thing contrary to any part of the same Act. [ No. XII. 1 32 Henry VIII. c. 37.-For Recovery of Arrearages of Rents by Executors of Tenant in Fee-simple. [Inserted Part IV. Class XIX.j [No. XIII. ] 43 Elizabeth, c. 8.—An Act against fraudulent Administration of Intestates Goods. FORASMUCII as it is often put in ure to the defrauding of creditors, that such persons as are to have the administration of the goods of others dying intestate committed unto them, if they require it will not accept the same, but suffer or procure the administration to be granted to some stranger of mean estate, and not of kin to the intestate, from whom themselves or others by their means do take deeds of gifts • and authorities by letter of attorney, whereby they obtain the state of the intestate into their hands, and yet stand not subject to pay any debts owing by the same intestate, and so the creditors for lack of knowledge of the place of habitation of the administrator, cannot arrest him nor sue him; and if they fortune to find him out, yet for lack of ability in him to satisfy of his own goods for the value of that he hath An Ordinary may convent Executors to prove the Testator's Will, and to bring in their Inventary. 43 Eliz. c. 8. Fraud practised ministrations to in taking of Addeceive others of their lawful Debts. |