no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
a simple coÌ„tracte ¶ Doctoure To pay the dettes for that is certayne and the trespas is arbitrable ¶ Student Than for the playner declaracion of this matter and other lyke I praye the shewe me thy mynde by what lawe it is that a man maye make executours and that the executours if they take vpon them be bouÌ„de to perfourme the wyl and to dispose the goodê that remayne for the testatour ¶ Doctour I thynke that it is by the lawe of reason ¶ Student And me thynketh it shulde be rather by the custome of the realme ¶ Doctour In al coÌ„treys in all landes they make executours ¶ StudeÌ„t That semeth to be rather by a generall custome after that the lawe and custome of propertie was brought in than by the lawe of reason / for as longe as all thynges were in comon there were no executours ne wylles ne they neded nat thaÌ„ / and whan property was after brought in me thynketh that yet makynge of executours disposyng of goodê by wyll after a maÌ„nes deth folowed nat necessarely there vpoÌ„ / for it myght haue ben made for a law that a man shulde haue had the ê“pertie of his goodê only duryng his lyfe / that thaÌ„ his dettes payed / all his goodê to haue ben lefte to his wyfe clyldren or nexte of his kynne without any legacies makyng ther of so myght it nowe be ordeyned by statute / the statut good nat against reasoÌ„ / wherfor it appereth that executours haue no auctorite by the law of reasoÌ„ but by the lawe of man And by the olde lawe and custome of this realme a man may make executours and dispose his goodê by his wyl / than his executours shall haue the execucion therof his heyres shal haue nothiÌ„g / but if any particuler custome helpe / the executours shall also haue the hole possession ad disposicion of all his goodes and catels / as well reall as personal / thoughe no worde be expressely spoken in the wyl that they shall haue them / and they shall haue also accions to recouer al dettes due to the testatour thoughe all dettes and legacies of the testatour by payed byfore / and shall haue the disposicion of them to the vse of the testatour and nat to theyr owne vse / so me thynketh that the auctorite to make executours and that they shall dispose the goodes for the testatour is by the custome of the realme But than I thynke as thou sayest that by the lawe of god they shal be bounde to doo that fyrste / that is to the moste profite of the soule of theyr testatour where the disposicion therof is lefte to theyr discrecion / and that I agre wel is to pay dettes vpon contractes and to make amendes for wroÌ„ges done to the testatour thoughe they be nat compelled therto by the lawe and custome of the realme if ther be none other dette nor legacie that they be bounde to paye by the lawe / but if two seuerall dettes be payable by the lawe thaÌ„ which dette they shall do fyrst in conscieÌ„ce I am somwhat in doute ¶ Doctoure Let vs fyrste knowe what the comon lawe is therin ¶ Student The comon lawe is that if the testatoure owe .x. li. to two men seuerally by obligacion or by suche other maner that an accion lyeth agaynst his executours therof by the lawe / and he leueth goodes to pay the one and nat both / that in that case he that can fyrst optaine his iugement agaynst the executours shal haue execucion of the hole / and the other shall haue nothynge / but to whiche of them he shall in conscience owe his fauoure the comon lawe treateth nat ¶ Doctour Ther in muste be considered the cause why the dettes beganne / and than he must after coÌ„science bere his lawfull fauoure to hiÌ„ that hathe the clerest cause of dette / and if both haue lyke cause than in coÌ„science he muste bere his fauoure where is moste nede and greatest charite ¶ Student May the executours in that case delay that accioÌ„ that is fyrst taken if it stande nat with so good conscience to be payed as a nother dette wherof no accion is brought and procure that an accion may be brought therof and than to confesse that accion / that he maye so haue execucion / and thaÌ„ the executours to be discharged agaynst the other ¶ Doctour Why may he nat in that case pay the other without accion and so be discharged in the lawe agaynst the fyrste ¶ Sudent No verely for after an accion is taken the executoure maye nat ministre the goodes so / but that he leue so moch as shall pay the dette wherof the accion is taken / if he do he shall paye it of his owne goodes / excepte a nother recouer and haue iugement agaynst hym hangynge that accion and that without couyn ¶ Doctour ThaÌ„ to answere to thy question I thynke that by delayes that be lawfull as by Essoyne / emperlaunce / or by a Dilatory plee in abatement of the wrytte that is true / he may delay it / but he may plede no vntrue ple to preferre the other to his duetie But I pray the what is the lawe of legacies restitucions and dettes vpon coÌ„tractes that perease ought rather after charite to be payed thaÌ„ a dette vpon an obligacioÌ„ what may the fauoure of the executoures do in those cases ¶ Student Nothynge for if they eyther perfourme legacies / make restitucions / or paye dettes vpon contractes kepe nat sufficient to paye dettes whiche they are compellable by the lawe to paye / that shal be taken as a deuastauerunt bona testatoris / that is to saye / that they haue wasted the goodes of theyr testatour and therfore they shal be compelled to paye the dettes of theyr owne goodes / and so it is if they paye a dette vpon an obligacion wherof the day is yet to come thoughe it be the clerer dette that it be the more charite to haue it payed ¶ Doc. yet in that case if he to whome the dette is al redy owynge forbere tyl after the daye of the other obligacion is paste / than he may paye him without daunger ¶ Student That is true if there be no accion taken vpon it though there be / yet if that accioÌ„ may be delayd by lawfull meanes as thou hast spoken of byfore tyll after the day and than an accion is taken vpon it than may the executours confesse that accion and than after iugement he may paye the dette without dauÌ„ger of the lawe ¶ Doctour Is nat that confessyng of the accion so done of purpose a couyn in the lawe ¶ Student No verely / for couyn is where the accioÌ„ is vntrue / and nat where the executours bere a lawfull fauoure ¶ Doctour The ordinary vpon the accompte in all the cases byfore reherced wyl regarde moche what is best for the testatour ¶ StudeÌ„t
dyeth / where maye tho yssues be leuied vpon hym in the reuercion in coÌ„science as they may be by the lawe ¶ Doct. If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience StudeÌ„t For there is a maxime in the lawes of Englande / that where two tytles ronne togyther / the eldeste tytle shal be preferred And in this case the tytle of hym in the reuercion is byfore the tytle of the forfetour of the yssues And therfore I doute somwhat whether they maye be lawfully leuyed ¶ Doct. By that reason it symeth thou arte in doute what the lawe is in thê case / but that must necessarely be knowen / for els it where in vayne to argue what conscience wyll therin ¶ Stud. it is certayne that the lawe is suche / so it is lyke wyse if the husbande forfet yssues dye / tho yssues shal be leuyed on the landes of the wyfe ¶ Doct. And if the lawe be such it symeth that coÌ„science is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shal be iÌ„panelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemeÌ„t for his nat apperauÌ„ce for els the lawe shulde be clerely frustrate in that poynt And that payne as I haue herde is that he shal lese yssues to the kyng for his nat apperauÌ„ce / wherfore it semeth nat inconuenieÌ„t nor agaynste conscience though the lawe be that tho yssues shal be leuyed of hym iÌ„ the reuercion / for that coÌ„dicion was secretlye vnderstande in the lawe to passe with the lease whaÌ„ the lease was made And therfore it is for the lessour to beware and to preuent that daunger at the makynge of the lease / or els it shal be aiuged his owne defaute And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande froÌ„ that generall maxyme that thou haste remeÌ„bred byfore that is to say that where two tytles ronne togyther / that the eldest tytle shal be preferred / so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in coÌ„science / for by this perticuler maxime the strengthe of that generall maxime is restreyned to euery intent / that is to saye / as well in lawe as in coÌ„science ¶ The thyrde question of the student The .xxiii. Chapitre STudeÌ„t If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be bouÌ„de by the lawe to yelde to hym in the reuercion treble damagê And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / to restore the place wasted immediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages the place wasted be recouered in the kynges courte ¶ Doctour Byfore iugemeÌ„t gyuen of the treble damagê and of the place wasted he is nat bounde in conscience to pay them For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemeÌ„t be gyuen to yelde damages accordynge to the value of the waste / but after the iugement gyuen / he is bounden in coÌ„science to yelde the treble damages / also the place wasted And the same lawe is in all statutê penall / that is to saye / that no man is bouÌ„de in conscience to pay the penaltye tyll it be recouered by the lawe ¶ Stud. Whether maye he that hath offended agaynst suche a statute penal defende the accion hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single damagê ¶ Doctour If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the penaltie tyll it be recouered ¶ The fourth question of the studeÌ„t The .xxiiii. chapitre STudent If a man infeffe another in certayne lande vpon condicion that if he infeffe any other that it shal be lawfull for the feffour and his heyres to reentre cÌ„ whether is this coÌ„dicion good in coÌ„scieÌ„ce though it be voyde in the lawe ¶ Doctour What is the cause why this condicion is voyde in the lawe ¶ Stud. The cause is this / by the lawe it is incideÌ„t to euery state of fee simple / that he that hath that estate may lawfully by the lawe by the gyfte of the feffoure make a feffement therof And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the condicion had ben that he shulde nat haue infeffed suche a man / or such a man that condicion had ben good / for yet he myght infeffe other ¶ Doctour though the sayde coÌ„dicion be agaynst the effecte of the stande of a fee simple also agaynste the lawe Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / to that intent the feffe toke the estate after breke the intent it semeth that the lande in coÌ„science shulde returne to the feffour ¶ Stud. the intent of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe As if a man of his mere mocion without any recompence intendynge to gyue landes to another to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue to holde to hym for euer intendyng that by that worde for euer the feffe shuld haue the lande to hym to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe Also if a man gyue landes to another to his heyres for terme of .xx. yeres inteÌ„dyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme In this case his inteÌ„t is voyde / for by the lawe of the realme all chatellys reall and personall shall go to the executoures / and nat to the heyre Also if a man gyue landes to a man to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for
nat vouche for him excepte it be that he knoweth that the tenaunt hathe a true cause of voucher and of lyen / and that he doth it to brynge hym therto / in lykwyse he may nat pray in age for hym oneles he knowe the praye haue good cause of voucher and lyen ouer / or that he knowe that the pray hath somwhat to pleade that the tenaunt maye nat pleade as vyllen age in the demaundaunte or suche other ¶ Doctour Thoughe the playntyfe hath brought an accion that is vntrue and nat mayntenable in the lawe / yet the defendaunte dothe wronge to the playntyfe in the withholdynge of the profytes as wel byfore the accion brought as hangynge the accion / and that wronge as it semeth the couÌ„saylour doth mayntaine / and also sheweth hym selfe to fauoure the partie in that wronge whan he gyueth coÌ„cell agaynst the accion ¶ Sudent If the playntyfe do take that for a fauoure and a maynteynauÌ„ce of his wronge he iugethe ferther than the cause is gyuen / so that the couÌ„saylour do no more but gyue couÌ„sayle agaynst the accion / for though he gyue hiÌ„ couÌ„sayle to withstande the accioÌ„ for the vntruth of it / that he shulde nat coÌ„fesse it to make therby a fine to the kyng without cause / yet it may stande with that he may gyue counsayle to the partie to yelde the profytes / and therfore I thinke he may in this case of counsayle with hym at the comon lawe and be agaynst hym in the chauÌ„cery and in eyther courte gyue his couÌ„sayl without any contrariosite or hurte of conscience / and vpon this grounde it is that a man may with good conscience be of couÌ„sayle with hym that hath lande by discent or by a discontinuauÌ„ce withouten tytle / if he that hathe the ryght brynge nat his accion accordynge to the lawe for the recouerynge of his ryght in that behalfe ⧠The seuenth question of the studente The .viii. Chapitre STudent If a man take a distresse for dette vpon an obligacioÌ„ or vpon a coÌ„tracte or suche other thynge that he hath right title to haue but that he ought nat by the lawe to distrayne for it / and neuertheles he kepeth the same distresse in pounde tyll he be payed of his dutye / what restitucion is he bounde to make in this case / whether shall he repay the money bycause he is come to it by an vnlawfull menes or onely to restore the partye for the wrongfull takyng of the distres or for neyther I pray you shewe me ¶ Doctoure what is the lawe in this case ¶ Student That he that is distrayned may brynge a speciall accion of trespasse agaynst hiÌ„ that distreyned / for that he toke his beestê wroÌ„g fully and kept them tyll he made a fyne / therfore he shal recouer that fyne in damages as he shal do for the residue of trespas for that takyng of the money by suche coÌ„pulcion is taken in the lawe but as a fyne wrongfully taken / thoughe it be his duete to haue it ¶ Doctour yet though he may so recouer me thynketh that as to the repayment of the money he is nat bounde therto in coÌ„science so that he take no more thaÌ„ of ryght he ought to haue / for though he come to it by an vniust meane / yet whaÌ„ the money is payed hym it is his of ryght and he is nat bounde to repaye it oneles it be recouered as thou sayd / and than whan he hathe repayed it he is as me thynkethe restored to his fyrst accioÌ„ / but to the redelyuere of the beestes with suche damages suche hurte as he hathe by the distresse I suppose he is bounde to make recompence of them in conscience without compulcion or sute in the lawe / for thoughe he myght lawfully haue sued for his duete in suche maner as the lawe hathe ordred / yet I agre well that he maye nat take vpon hym to be his owne iuge and to come to his duty agaynst the order of the lawe / and therfore if any hurte come to the partie by that disorder he is bounde to restore it But I wolde thynke it were the more doute if a maÌ„ toke such a distresse for a trespasse done to hym and kepeth the distresse tyll amendes be made for the trespasse / for iÌ„ that cas the damages ben nat in certayne but be arbitrable eyther by assent of the parties or by .xii. men / and it semeth that there is no asseÌ„t of the partie in this case specially no fre assent / for that he dothe is by compulcion and to haue his dystres agayne / and so his assent is nat moche to be pondered in that case / for all is the assessynge of hiÌ„ that toke the distresse / and so he hathe made hiÌ„ selfe his owne iuge / and that is prohibited in all lawes / but in that case where the distresse is takeÌ„ for dette he is nat his owne iuge / for the dette was iuged incertaine by fore by the fyrst contracte / therfore some thynke great diuersite betwene the cases ¶ Student By that reason it semeth that if he that distrayneth in the fyrste case for the dette take any thynge for his damagê that he is bounde in conscience to restore it agayne / for damagê be arbitrable and nat certayne no more than trespasse is / me semeth that both in the case of trespasse and dette he is bouÌ„de in coÌ„scieÌ„ce to restore that he taketh / for thoughe he ought in ryghte to haue lyke suÌ„me as he resceyueth / yet he ought nat to haue that money that he receyueth / for he came to that money by an vniust menes / wherfor it semeth he ought to restore it agayne ¶ Doctour And if he shuld be coÌ„pelled to restore it againe shuld he nat yet for that he receyued it ones be barred of his fyrst accion nat withstaÌ„dyng the repaymeÌ„t ¶ Stud. I wyll nat at this tyme clerely assoyle the that question / but this I wyll say that if any hurte come to hym therby it is through his owne defaut for that he wolde do agaynst the lawe / but neuertheles a lytell I wyll say to thy questioÌ„ / that as me semeth whaÌ„ he hath repayed the money that he is restored to his first accioÌ„ As if a maÌ„ coÌ„deÌ„pned in an accion of trespasse pay the money / after the defendauÌ„t reuers the iugement by a wrytte of errour and haue his money repayed / than the playntyfe is restored to his fyrst accioÌ„ And therfore if he that iÌ„ this case toke the money restored that he toke by the wrong full distresse or that he ordred the mater so liberally that the other murmure nat necoÌ„playne nat at it / me semethe he dyd verey well to be sure in conscience and therfore I wolde aduyse euery man to be wel ware howe he distrayneth in suche case agaynst the lawe ¶ Doctoure Thy counsayle is good / and I note moche in
therin ¶ What is a nude contracte or naked promyse after the lawes of Englande / and whether any accion may lye thervpon The .xxiiii. Chapitre ¶ STudent Fyrste it is to be vnderstande that contractes be grounded vpon a custome of the realme and by the law that is called Ius gentium and nat dyrectely by the lawe of reason / for whan all thynges were in comon it neded nat to haue contractes / but after ê“perty was broughte in they were ryght expediente to all people / so that a man myght haue of his neyghboure that he had nat of his owne / and that coulde nat be lawfully but by his gyfte / by way of lendynge / concorde / or by some lease / bargaine / or sale / and suche bargaynes and sales be called contractes / and be made by assent of the parties vpon agrement bytwene them of goodes or landes for money or for for other recompence / but of money vsuell / for money vsuell is no contracte Also a concorde is properly vpoÌ„ an agremeÌ„t bytwene the parties with diuers artycles therin / some rysyng on the one ê‘t and some on the other / as if Iohan at style letteth a chambre to Henry herte and it is ferther agreed bytwene them that the said HeÌ„ry herte shall go to borde with the sayd Iohan at style / and the sayd Henry herte to paye for the chaÌ„bre and bordynge a certayne suÌ„me cÌ„ this is ê“perly called a concorde / but it is also a contracte and a good accion lyeth vpoÌ„ it / howe beit it is nat moche argued in the lawes of EnglaÌ„de what diuersitie is bytwene a coÌ„tracte / a coÌ„corde / a ê“myse / a gyfte / a loue / or a pledge / a bargayne / a couenaunt / or suche other / for the intente / of the lawe is to haue the effecte of the mater argued and nat the termes / and a nude contracte is where a man makethe a bargayne or a sale of his goodes or landes wtout any recoÌ„pence appoynted for it As if I saye to a nother I sell the all my lande or all my goodes and nothyng is assigned that the other shall gyue or pay for it / that is a nude contracte / and as I take it it is voyde in the lawe and conscience / and a nude or naked promyse is where a man promyseth an other to gyue hym certayne money suche a day or to buylde hym an house / or to do hym suche certayne seruyce / and nothynge is assigned for the money / for the buyldynge / nor for the seruyce / these be called naked promyses / bycause there is nothyng assigned why they shuld be made / and I thynke no accion lyethe in those cases thoughe they be nat perfourmed Also if I promyse to a nother to kepe hym suche certayne goodes sauely to such a tyme / and after I refuse to take theÌ„ ther lyeth no accion againste me for it / but if I take them and after they be lost or empeyred throughe my negligent kepynge / there an accion lyeth ¶ Doctour But what opinion holde they that be lerned in the law of EnglaÌ„de in suche promyses that be called naked or nude promyses / whether doo they holde that they that make the ê“myse be bouÌ„den in coÌ„science to perfourme theyr promyse thoughe they can nat be compelled therto by the lawe or nat ¶ Student The bokes of the lawe of EnglaÌ„de treate lytell therof / for it is lefe to the determinacion of doctoures / and therfore I pray the shewe me somewhat nowe of thy mynde therin / and than I shall shewe the therin somwhat of the myndes of diuerse that be lerned in the lawe of the realme ¶ Doctoure To declare that mater playnly after the saynge of doctoures it wolde aske a longe tyme and therfore I wyl touche it briefly to gyue the occasion to desyre to here more therin here after Fyrste thou shalte vnderstande that there is a promyse that is called an aduowe / that is a promyse made to god / and he that dothe make suche a vowe vpon a deliberate mynde entendynge to perfourme it is bounde in conscience to do it / thoughe it be onely made in the herte without pronouncynge of wordes / and of other promyses made to man vpon a certayne consideracion / if the promyse be nat agaynste the lawe As if A. promyse to gyue B. xx pounde / bycause he hathe made hym suche a house or hathe lente hym suche a thynge or suche other lyke / I thynke hym bouÌ„de to kepe his promyse But if his promyse be so naked that there is no maner of coÌ„sideracioÌ„ why it shulde be made / than I thynke hym nat bounde to perfourme it / for it is to suppose that there was some errour in the making of the promyse / but if suche a promyse be made to an vniuersitie / to a citie / to the churche / to the clergy / or to pore men of suche a place / and to the honoure of god or suche other cause lyke / as for mayntenaunce of lernynge / of the comon welthe / of the seruyce of god / or in relyefe of pouertie or suche other / than I thynke that he is bounden in conscience to perfourme it thoughe there be no coÌ„sideracion of worldly profite that the grauntour hath had or enteÌ„deth to haue for it / and in all suche promyses it must be vnderstande that he that made the promyse intended to be bounde by his ê“myse / for els comoÌ„ly after al doctoures he is nat bounde / oneles he were bounde to it byfore his promyse As if a man promyse to gyue his father a gowne that hathe nede of it to kepe hym fro colde / and yet thiÌ„keth nat to gyue it hym / neuertheles he is bouÌ„de to gyue it for he was bounde therto byfore Also after some doctours a man may be excused of suche a promyse in conscience by a casualite that cometh after the promyse if it be so that if he had knowen of that casualite at the makyng of the ê“myse he wolde nat haue made it And also suche promyses if they shall bynde they muste be honeste / lawful / and possible / and elles they are nat to be holden in conscience though there be a cause c. And if the promyse be good and with a cause thoughe no worldly profyte shall growe therby to hiÌ„ that maketh the promyse but onely a spirituall profyte as in the case byfore rehersed of a ê“myse made to an vniuersitie / to a citie / to the churche / or suche other and with a cause / as to the honoure of god other / there it is moste comonly holden that an accion vpon those promises lyeth in the lawe canon ¶ Stu. Whether dost thou meane in suche promyses made to a vniuersite / to a citie / or to suche other as thou haste reherced byfore / with a cause / as to the honoure of god or suche other That the
partie shal be bouÌ„de by his promyse if he inteÌ„ded nat to be bouÌ„den therby ye or nay ¶ Doctour I thynk naye no more than vpon ê“myses made vnto comon persones ¶ Student And than me thinketh clerely that no accion can lye agaynst hym vpon suche promyses / for it is secrete in his owne coÌ„cience whether he entended for to be bounde or naye And of the entente inwarde in the herte mannes lawe cane nat iuge / and that is one of the causes why the lawe of god is necessarye that is to say to iuge inwarde thynges / and if an accion shulde lye in that case in the lawe Canon / than shulde the lawe Canon iuge vpon the inwarde intente of the herte / whiche can nat be as me semeth And therfore after diuerse that be lerned iÌ„ the lawes of the realme all promyses shall be taken in this maner That is to say If he to whome the promyse is made haue a charge by reason of the promyse whiche hath also perfourmed than in that case he shall haue an accion for that thynge that was promysed thoughe he that made the promyse haue no worldly profite by it As if a maÌ„ saye to a nother / hee le suche a pore maÌ„ of his dissease / or make suche an hyghe waye / and I shall gyue the thus moche / and if he do it I thynke an accion lyeth at the comon lawe And more ouer thoughe the thynge that he shall do be al spirituall yet if he perfourme it I thynke an accion lyethe at the comon lawe As if a man say to a nother / fast for me all the next Lent and I shall gyue the .xx. pounde / he perfourmethe it / I thynke an accion lyeth at the comon lawe And in lyke wyse if a maÌ„ saye to a nother mary my doughter and I wyll gyue the .xx. pounde Vpon this promyse an accion lyeth if he mary his doughter / and in this case he cane nat discharge the promyse thoughe he thought nat to be bounde therby / for it is a good contracte / and he maye haue Quid pro quo / that is to saye / the prefermente of his doughter for his money But in those promyses made to an vniuersite or such other as thou hast remembred byfore / with such causes as thou hast shewed / that is to say / to the honoure of god / or to the encrease of lernynge / or suche other lyke / where the ê‘tie to whome the promyse was made is bounde to no newe charge by reason of the ê“myse made to hym but as he was bouÌ„de to byfore / there they thynke that no accion lyeth agaynst hiÌ„ though he perfourme nat his promyse / for it is no contracte / and so his owne conscience must be his iuge whether he intended to be bounde by his promyse or nat And if he intended it nat than he offended for his dissimulacion only / but if he intended to be bounde than if he perfourme it nat vntrouthe is in hym / and he proueth hym selfe to be a lyer whiche is ê“hibited as well by the lawe of god as by the lawe of reason / and ferthermore many of that be lerned in the lawe of Englande holde that a man is as moche bounden in conscience by a promyse made to a comon persone if he intended to be bounde by his ê“myse as he is iÌ„ the other cases that thou haste remembred of a promyse made to the churche / or to the clergie / or such other / for they say that as moche vntrouth is in the brekynge of the one as of the other / they say that the vntrouthe is more to be pondered than the persone to whome the promyses be made ¶ Doctoure But what holde they if the ê“myse be made for a thiÌ„g paste / as I promyse the .xl. pouÌ„de for that thou hast buylded me suche a house / lyethe an accion there ¶ StudeÌ„t They suppose nay / but he shal be bounde in conscience to perfourme it after his entente as is byfore sayd ¶ Doctour And if a man promyse to gyue a nother .xl. pounde in recompeÌ„ce for suche a trespas that he hathe done hym / lyeth an accion there ¶ Student I suppose nay / and the cause is for that suche ê“myse be no perfite contractes / for a contracte is properly where a man for his money shall haue by asseÌ„t of the other partye certayne goodes or some other profite at the tyme of the contracte or after / but if the thynge be ê“mysed for a cause that is past by way of a recompeÌ„ce theÌ„ it is rather an accorde then a contracte / but then the lawe is that vpon suche accorde the thynge that is ê“mysed in recompence muste be payde or delyuered in hande / for vpon an accorde there lyeth no accion ¶ Doct. But in the case of trespas whether holde they that he be bounde by his promise though he inteÌ„ded nat to be bounde thereby ¶ Student They thynke nay no more theÌ„ in the other cases that be put before ¶ Doct. In the other cases he was nat bounde to that he promysed but onely by his promyse / but iÌ„ this case of trespas he was bouÌ„de iÌ„ conscience before the promise to make recoÌ„pence for the trespas and therfore it semeth that he is bounde in conscience to kepe his promyse thoughe he inteÌ„ded nat to be bouÌ„den thereby ¶ Stu. Though he were bounde before the promyse to make recompeÌ„ce for his trespas yet he was nat bounden to no suÌ„me in certayne but by his promyse / and bycause that the suÌ„me may be to moche or to lytel and nat egal to the trespas / and that the party to whome the trespas was done natwithstaÌ„dyng the promyse is at lyberty to take his accioÌ„ of trespas if he will therfore they holde that he maye be his owne iuge in coÌ„science whether he inteÌ„dyd to be bounde by his promyse or nat as he may in other cases / but if it were of a dette / then they holde that he is bounden to performe his promyse in conscience ¶ Docctoure What if in the case of trespas he afferme his promyse with an othe ¶ Student Then they holde that he is bounde to performe it for sauinge of his outhe thoughe he intended nat to be bouÌ„den but if he inteÌ„ded to be bounde by his promise / then they say that an othe nedeth not but to enforce the ê“myse for they say he breketh the lawe of reasoÌ„ whiche is that we may do nothyng agaynste the trouthe / as well when he breketh his promyse that he thought in his owne herte to be bouÌ„de by as he dothe wheÌ„ he breketh his othe thoughe the offence be not so greate by reasoÌ„ of the periury more ouer to that thou sayste that vpon suche promyses as thou hast rehersyd before shal lye an accyoÌ„ after the lawe canon verylye as to that in this realme there caÌ„ no accioÌ„ lye theron in the spiritual courte if
the grouÌ„de of the sayde processe is to be referred onely to the maximes customes of the realmes And I haue shewed the these maximes before reherced / nat to the inteÌ„t to shew the specially what is the cause of the law in theÌ„ / for that wolde aske a great respite / but I haue shewed them onely to the inteÌ„t that thou mayste perceyue that the sayde maximes other lyke may conueniently be sette for one of the groundes of the lawes of Englande / moreouer there be diuers cases / wherof I am in doute whether they be onely maximes of the lawe or that they be grounded vpoÌ„ the law of reason / wherin I pray the let me here thyn opinion ¶ Doctoure I pray the shewe those cases that thou meanest I shall make the answere therin as I shall se cause ☞ Hereafter foloweth diuers cases wherein the Student douteth whether they be onely maximes of the law or that they be grounded vpon the lawe of reason The .ix. Chapitre STudeÌ„t The law of EnglaÌ„de is that if a man coÌ„maunde another to do a trespasse he doth it / that the coÌ„mauÌ„dour is a trespasser And I am in doute whether that be onely by a maxime of the law / or that it be by the law of reason ⧠Also I am in doute vpon what law it is grounded that the Accessory shall nat be put to answere before the principal cÌ„ ⧠Also the lawe is that if an Abbot bye a thyng that commeth to the vse of the howse dyed that his successours shal be charge / I am somwhat in doute vpon what grounde that lawe dependeth ⧠Also that he that hathe possession of lande though it be by disseason hath right agaynste all men / but agaynste hym that hath ryghte ⧠Also that if an accion reall be sued agaynste any man that hath nothyng iÌ„ the thynge demaunded he writte shall abate as at the coÌ„mon lawe ⧠Also that the alienacioÌ„ of the tenauÌ„t hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman take an husbaÌ„de hangyng the writ / that the writ shall nat abate ⧠Also if lande rent that is goyng out of the same laÌ„de come in to one maÌ„nes haÌ„de of lyke estate lyke suertye of tytle / the rent is extincte ⧠Also if lande discende to hiÌ„ that hath right to the same lande before / he shal be remitted to his better tytle if he wyll ⧠Also if two tytles be concurraÌ„t togyther / the eldest tytle shal be preferred ⧠Also that euery man is bounde to make recompence for suche hurte as his beastes shall do in the corne or grasse of hys neyghboure though he knowe nat that they were there ⧠Also if the drmaundauÌ„t or playntyfe hangynge his writte wyll entre in to the thynge demauÌ„ded this writte shall abate And it is many tymes very harde and of great difficultie to knowe what cases of the lawe of Englande be grounded vpon the law of reason / what vpon custome of the realme / thoughe it be harde to discusse it yet is very necessary to be knoweÌ„ for the knowele of the parfyte reason of the lawe / if any man thynke that these cases before reherced be grounded vpon the lawe of reason / then he maye referre them to the fyrste grounde of the lawe of Englande whiche is the lawe of reason / wherof is made mencion in the .v. Chepi And if any man thynke that they be grouÌ„ded vpon the law of custome / then he may referre them to the maximes of the lawe / whiche be assigned for the thyrde grounde of the law of Englande / wherof mencion is made in the .viii. Chapitre as before appereth ¶ Doctoure But I praye the shewe me by what auctoritie is it proued in the lawes of EnglaÌ„de that the cases that thou haste put before in the .viii. Chapitre / and suche other whiche thou callest maximes oughte nat to be denyed / but ought to be taken as maximes / for sythe they can nat be proued by reason as thou agreest thy selfe they can nat / they may as lightly be denied as affermed onles there be some sufficient auctoritie to approue theÌ„ ¶ Student Many of the customes maximes of the lawes of Englande be knowen by the vse and the custome of the realme so apparantly that it nedeth nat to haue any law written therof / for what nedeth it to haue any law written that the eldest sone shall enherite his father / or that all the doughters shall enherite togyther as one heyre / if there be no sone / or that the husbande shall haue the goodes chatels of his wyfe that she hath at the tyme of the spouselles or after / or that a bastarde shall nat enheryte as heyre / or that executours shall haue the disposicion of all the goodes of theyr testatoure if there be no executours that the ordinarie shall haue it / that the heyre shall nat medled with the goodes of his auncestre but any particuler custome helpe hym The other maximes customes of the law that be nat so openly knowen amonge the people maye be knowen partly by the lawe of reason partly by the bokes of the lawes of EnglaÌ„de called yeres of termes / partly by diuers recordes remaynynge in the kynges courtes in his tresorie And specially by a boke that is called the regestre / also by diuers statutes wherin many of the sayde customes / maximes be ofte resited / as to a diligeÌ„t sercher wyll euideÌ„tly appere ☞ Of the .v. grounde of the lawe of Englande The .x. Chapitre STudent The .v. grouÌ„de of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / lordshyppes in this realme / the whiche ê‘ticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaiÌ„st the sayde generall customes or maximes of the law yet neuertheles they stande in effecte and be taken for law / but if it ryse iÌ„ question in the kynges courtes whether there be any suche ê‘ticuler custome or nat it shal be tryed by .xii. men / nat by the Iuges / except the same particuler custome be of recorde in the same courte Of whiche particuler customes / I haue hereafter noted some for an example ⧠Fyrste there is a custome in KeÌ„t that is called Bauelkynde / that al the bretherne shall enherit togyther as systers at the common lawe ⧠Also there is another particuler custome / that is called burgheÌ„glisshe wher the yoÌ„ger sone shall enheryte before the eldest that custome is in Notynghame ⧠Also there is a custome in the cytie of LoÌ„don that fre meÌ„ there / may by theyr testameÌ„t inrouled byqueth theyr laÌ„des that they be seased of to whome they wyll / except to mortmayn And if they be cytizieÌ„s
moste parfite knowlege of any lawe or cunnyng And of the most parfite and moste true applyenge of the same / to any particuler acte of man / foloweth the moste ê“fite / the most pure / the most beste conscieÌ„ce And if therebe defaute in knowynge of the trouthe of suche a lawe / or in the applyenge of the same to any ê‘ticuler acte / than therupon foloweth an errour or defaute in conscience / as it may appere by this example Sinderesis ministeryth a vniuersal principle that neuer erreth / that is to say / that an vnlawful thiÌ„ge is nat to be done And than it myght be taken by some man that euery othe is vnlawful / bycause our lorde saythe Matth. v. Ye shall in no wyse swere And yet he that by reason of the sayde wordes wyll holde that it is no lawfull in no case to swere / erreth in conscieÌ„ce / for he hath nat the ê“fite knowlege and vnderstandynge of the trouth of the sayd gospel / nor he reduceth nat that sayeng of scripture / to other scriptures / in whiche it is grauÌ„ted that iÌ„ some case an othe may be lawfull and the cause why conscience maye so erre in the sayd case and in other lyke / is bycause conscience is formed of a certayne particuler ê“posicion or question grouÌ„ded vpon vntuersal rewles ordeyned for suche thynges as are to be done And bycause a particuler proposicion is nat knowen of hymselfe / but must appere beserched by a diligeÌ„t serche of reason / therfore in that serche in the conscience that shulde be formed therupon may happen to be errour / therupon it is sayd that there is errour in coÌ„science / whiche errour commeth eyther bycause he dothe nat assente to that he ought to assent vnto / or els bycause his reason wherby he dothe referre one thynge to another is disceyued For further declaracion wherof it is to vnderstande that errour in coÌ„scieÌ„ce coÌ„meth .vii. maner of wayes Fyrste is throughe ignorance and that is whan a man knoweth nat what he ought to do / what he ought nat to do and than he ought to aske conceyll of them that he thynketh moste experte in that science wherupon his doute ryseth And if he can haue no conceyll / thaÌ„ he muste holly coÌ„myt hym to god he of his goodnes wyll so ordre hym / that he wyll saue hym from offence The seconde is through necligence / as whan a man is necligent to serche his owne conscience / or to enquere the trouthe of other The thyrde is throughe pryde / as whan he wyll nat mekyn hym selfe ne beleue them that be better and wyser than he is The fourthe is throughe singularitie as when a man foloweth his owne wyt / and wyll nat conferme hym selfe to other / nor folowe the good common wayes of good men The fyfth is through an in ordinat affeccion to hym selfe / wherby he maketh coÌ„sciensce to folowe his desyre / so he causeth her to go out of her ryght course The sixte is throughe pusillaminite whereby some persone dredeth oft tymes suche thinges as of reasoÌ„ he ought nat to drede The seuynth is throughe perplexitie / that is when a man beleueth hym selfe to be so set betwyxte two sinnes that he thynketh it vnpossible / but that he shall fall in to the one but a man can neuer be so proplexed iÌ„ dede but through an Erour in conscience if hy wyll put away that errour he shal be deliuered Therfore I praye the that thou wylte alwayes haue a good conscience if thou haue so / thou shalt always be mery / if thyne owne herte reproue the nat thou shalte alwayes haue inwarde peace The gladnes of rightewyse men is of god in god / theyr ioye is always in trouth and goodnes There be many diuersities of coÌ„science / but there is none better then that / wherby a man truely knoweth hym selfe Many men know many great hygh coÌ„nynge thynges yet know nat them selfe truely he that knoweth nat hym self knoweth no thyng wel Also he hath a good a clene conscience / that hath puritie clennes in his herte / trouth in his worde / and rightwysenes in his dede And as a lighte is sette in a lanterne that all that is in the house maye ben seen therby so almyghty god hath sette conscience in the myddes of euery resonable soule as a lyght wherby he may discerne know what he ought to do / what he ought nat to do Therfore for as moche as it behoueth the to be occupyed in suche thynges as perteyne to the lawe It is necessary that thou euer holde a pure a clene coÌ„scieÌ„ce / specially in suche thyngê as coÌ„cerne restitucion for the synÌ„e is nat forgyuen / but the thynge that is wrongfully taken be restored And I conceyll the also that thou loue that is good / and flye that is euyll / and that thou do to another as thou woldest shulde be done to the that thou do no thinge to other that thou woldest nat shulde be done to the. That thou do no thyng agaynste trouth / that thou lyue peasablye with thy neyghboure / that thou do iustice to euery man as moche as in the is And also that in euery generall rule of the lawe / thou do obserue kepe equite and if thou do thus I trust the lyght of thy lanterne / that is thy conscience shall neuer be extyneted ¶ Stud. But I pray the shewe me what is that equitie that thou haste spoken of byfore / that thou woldest that I shulde kepe ¶ Doctour I wyll with good wyll shewe the somwhat therof ☞ What is Equytie The .xvi. Cha. Doctoure Equytie is a ryghtwystnes that considereth all the ê‘ticuler circuÌ„stances of the dede / the whiche also is tempered with the swetnes of mercy And suche an equytie muste alway be obserued in euery lawe of man / and in euery generall rule therof / that knewe he well that sayd thus Lawes couet to be rewled by equytie And the wyse man sayth Be nat ouer moche ryghtwyse for the extreme ryghtwysenes is extreme wronge / as who sayth yf thou take all that the wordes of the lawe gyueth the / thou shalte somtyme do agaynste the lawe And for the playner declaracion what equytie is thou shalte vnderstaÌ„de that syth the dedes and actes of men / for whiche lawes ben ordeyned happen in diuers maners infinitlye It is nat possible to make any general rule of the lawe / but that it shal fayle in some case And therfore makers of lawes take hede to suche thynges as may often come nat to euery particuler case / for they coulde nat though they wolde And therfore to folowe the wordes of the lawe / were in some case both agaynst Iustice the comon welth wherfore in some cases it is necessary to leue the wordes of the lawe / to folowe that reason
grouÌ„de to make reparacions But the cause there as I suppose is for that the mynde of the makers of the sayde estatute shal be taken to be that / that case shulde be excepted And in all these cases the parties shal be holpen in the same courte by the comon lawe And thus it appereth that somtyme a man may be excepted fro the rigoure of a maxine of the lawe by another maxime of the lawe And somtyme fro the rigoure of a statute by the lawe of reason and som tyme by the intent of the makers of the statute but yet it is to be vnderstande that moste coÌ„monly where any thynge is excepted fro the generall customes or maximes of the lawes of the realme By the lawe of reason the partie must haue his remedie by a wryt that is called Sub pena yf a Subpena lye in the case but where a Subpena lyeth / and where nat it is nat our intent to treate of at this tyme. And in some case there is no remedye for suche an equytie by way of compulsion / but all the remedye therin muste be coÌ„mitted to the coÌ„science of the partie ¶ Docto r but in case where a Sub pena lyeth to whom shal it be directed whether to the Iuge or to the partie ¶ Stud It shall neuer be directed to the Iuge / but to the ê‘tie pleintyfe or to his attorney therupon an iniuÌ„ction coÌ„maundynge them by the same vnder a certayne payne therin to be coÌ„teyned that he ê“cede no ferther at the comon lawe / tyll it be determined in the kynges chauncerye whether the pleyntyfe hathe tytle in conscience to recouer or nat And whan the pleyntife by reason of suche an iniuÌ„ction seasseth to aske any ferther processe the Iuges wyll in lykewyse seasse to make any ferther ê“cesse in that behalfe ¶ Doctour Is there any mencion made in the lawes of Englande of any suche equyties ¶ Stud Of this terme equytie to that intent that is spoken of here there is no mencion made in the lawes of Englande / but of an equytie dyriuyed vpon certayne statutes mencion is made many tymes often in the lawe of Englande But that equytie is all of another effecte then this is / but of the effecte of this equytie that we nowe speke of meÌ„cion is made many tymes / for it is ofte tymes argued in the lawe of Englande where a Sub pena lyeth where nat and dayly bylles be made by men lernyd in the lawe of the realme to haue Sub penas And it is nat prohybite by the lawe / but that they may well do it so that they make them nat but in case where they ought to be made nat for vexacion of the partie / but accordynge to the trouth of the mater And the lawe wyl in many cases that there shal be suche remedye in the chauncerye vpon diuers thynges groundyd vpon suche equyties / and than the lorde Chanceller must ordre his conscieÌ„ce after the rules grouÌ„des of the lawe of the realme / in so moche that it had nat ben moche inconuenient to haue assigned suche remedye in the chauncerye vpon suche equyties for the .vii. grouÌ„de of the lawe of Englande / but for as moche as no recorde remaynethe in the kynges courtes of no suche bylle ne of the wrytte of Sub pena or Iniunction that is suyd thervpon therfore it is nat sette as for a speciall grouÌ„de of the law / but as a thinge that is suffred by the lawe ¶ Doc. Then sythe the parties oughte of ryght in many cases to be holpen in the chauncerye vpon suche equyties It semeth that if it were ordeyned by stutute / that there shulde be no remedye vpon suche equyties in the chauncerye nor in none other place / but that euery mater shulde be orderyd onely by the rules grouÌ„des of the comon lawe that that statute were agaynst ryght and coÌ„science ¶ StudeÌ„t I thynke the same / but I suppose there is no suche statute ¶ Doc. There is a statute of that effecte as I haue herde saye / wherin I wolde gladly here thy oppinion ¶ Student Shewe me that statute I shall with good wyll saye as me thynketh therin ¶ Whether the statute herafter reherced by the doctoure be agaynste coÌ„scieÌ„ce or nat The .xviii. Chapitre DOctoure There is a statute made in the .iiii. yere of kynge Henry the fourth the .xxii. chapitre / wherby it is enacted that iugementes gyuen in the kynges courtes / shall nat be examined in the chauncerye / parliameÌ„t / nor els where / by whiche statute it apperyth that if any iugement be gyuen in the kynges courtes agaynst an equytie or agaynst any mater of conscience / that there can be had no remedye by that equytie / for the iugement can nat be reformed wtout examinacion / and the examinacion is be the sayd statute prohibit wherfore it semyth that the sayd statute is agaynst coÌ„science / what is thyn oppinion therin ¶ Stud If iugemeÌ„tes gyuen in the kynges courtes shuld be examined in the chauncerye byfore the kyngê coÌ„ceyl or in any other place / the plaintifes or demandauntes shulde seldome come to the effecte of theyr suyte / ne the lawe shuld neuer haue ende And therfore to eschewe that incoÌ„uenice that statute was made And though peraueÌ„ture by reason of that statute / some singuler persone maye happen to haue losse Neuerthelesse the sayde statute is very necessarye to eschewe many great vexacions and iniust expences that wolde els come to many plaintifes that haue ryght wysely recouered in the kyngê courtes And it is moche more ê“uided for in the lawe of Englande that hurte nor damages shulde nat come to many than onelye to one And also the sayde statute doth nat ê“hybite equyte / but it ê“hybiteth only the examinacion of the iugement for the eschewynge of the incoÌ„uenieÌ„ce byfore reherced And so it semethe that the sayde statute standeth with good conscience And in many other cases where a man dothe wronge / yet he shall nat be coÌ„pellyd by waye of compulsion to reforme it / for many tymes it muste be lefte to the conscience of the partie / whether he wyll redresse it or nat And in suche case he is in coÌ„scieÌ„ce as well bounde to redresse it if he wyll saue his soule / as he were if he werre compellable therto by the lawe as it may appere in dyuers cases that maye be put vpon the same grounde ¶ Doctoure I pray the put some of those cases for an example ¶ Stud If the defendant wage his lawe in an accion of dette broughte vpon a true dette the pleintyfe hathe no meanes to come to his dette by waye of coÌ„pulsion / neyther by Subpena nor other wyse / yet the defendauÌ„t is bounde in conscieÌ„ce to pay hym Also if the grande Iury in attaynt afferme a false verdit gyuen by the pety Iurye there is no further remedy but the coÌ„scieÌ„ce of the
partie Also where there can be had no sufficieÌ„t prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌ„scieÌ„ce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌ„ce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌ„dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌ„s after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌ„scieÌ„ce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌ„science so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌ„scieÌ„ce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌ„cion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌ„science for of suche a lawe made by man coÌ„scieÌ„ce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌ„de of a lawe made by man coÌ„maundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌ„science and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌ„sideracion punysshe hym that dothe it / but leuyth it onely to his coÌ„science And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌ„scieÌ„ce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌ„science to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌ„scieÌ„ce to the halfe ê“fittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌ„science / for the lawe neyther wyllyth ne coÌ„maundyth that one shulde take all the ê“fittes / but leuyth it to theyr coÌ„science so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌ„ce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌ„science all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌ„scieÌ„ce / but the lawe is nat to be lefte for conscience ☞ Addicion ⧠Also many men thynke that if a man haue laÌ„de that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ„ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌ„scieÌ„ce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
seconde question of the Student The .xxii. chapitre Fo. 50. ¶ The thyrde question of the Student The .xxiii. chapitre Fo. 51. ¶ The fourth question of the Student The .xxiii. chapitre Fo. 52 ¶ The .v. question of the Student The .xxv. chapitre Fo. 54. ¶ A question made by the Doctoure / how certayn recoueries that be vsed in the kinges courtes to defete rayled lande maye stande with coÌ„scieÌ„ce The .xxvi. cha fo 55 ¶ The fyrst questioÌ„ of the studeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxvii. chapi Fo. 65. ¶ The .ii. questioÌ„ of the studeÌ„t / coÌ„cerning tayled laÌ„des The .xxviii. chapi Fo. 66. ¶ The thyrde question of the Student / concernynge tayled landes The .xxix. chapitre Fo. 68. ¶ The .iiii. question of the StudeÌ„t / coÌ„cernynge recoueries of enheritauÌ„ce entayled The .xxx. chapitre Fo. 70. ¶ The .v. question of the StudeÌ„t / concernynge tayled landes The .xxxi. chapitre Folio 72. ¶ The .vi. questioÌ„ of the StudeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxxii. chapi Fo. 74. Addicion Fo. 77. ¶ Finis Tabule ¶ Thus endeth the fyrste Dialogue in Englisshe / with the Addicions bytwene a Doctoure of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LondoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC XXXii The fyrst day of the moneth of Iuly ∴ Robert Redman ¶ The seconde dyalogue in englysshe / bytwene a doctour of diuynyte and a student in the lawes of Englande / newly corrected and imprinted with newe addycions HEre after foloweth the Seconde dyaloge in englisshe bytwene a doctour of diuinite a student in the lawe of EnglaÌ„de In the begynnynge of which dyalogue the doctour answereth to certayne questions / whiche the student made to the doctoure before the makynge of this dyalogue concernynge the lawes of Englande conscieÌ„ce / as appereth in a dyalogue made bytwene them in latin the 24. chap. And he answereth also to diuers other questions that the studeÌ„t maketh to hym in thê dyaloge of the law of EnglaÌ„de and conscieÌ„ce And in diuers other chapiters of this present dyalogue is touched shortly / howe the lawes of Englande are to be obserued kepte in this realme / as to temporall thyngê as well in lawe as in conscieÌ„ce before any other lawes And in some of the chapitres therof is also touched that spirituall Iuges in diuers cases be bounde to gyue theyr iugemeÌ„tes accordynge to the kyngê lawe And in the later ende of the boke the doctoure moueth diuers cases concernynge the lawes of England / wherin he douteth howe they may stande with conscience / wherunto the student maketh answere in suche maner as to the reder wyll appere ¶ The introductyon STudent In the later ende of our fyrste dyalogue iÌ„ latyn / I put dyuers cases grounded vpon the lawes of EnglaÌ„de / wherin I douted and yet do what is to be holden therin in conscyence But for as moche as the tyme was than farre paste / I shewed the that I wolde not desyre the to make answere to theÌ„ forthwith at that tyme / but at some better leyser whervnto thou saydest thou woldest nat only shewe thyne opinyon in tho cases / but also in suche other cases as I wolde put wherfore I pray the now for as moche as me thinkethe thou haste good leyser that thou wylte shewe me thyne opinyon therin ¶ Doctour I wyll with good wyll acomplysshe thy desyre but I wolde that whan I am in doute what the lawe of this realme is in suche cases as thou shalte put / that thou wylte shewe me what the lawe is therin for though I haue by occasyon of our first dyalogue in latyn / lerned many thiÌ„ges of the lawes of this realme / which I knew nat before yet neuerthelesse there be many mo thynges that I am yet ignorant in / that peraueÌ„ture in these selfe cases that thou haste put / and entendest here after to put and as I sayd in the first dyalogue in latyn / the .xx. chapyter / to serche conscyence vpon any case of the lawe / it is in vayne / but where the lawe in the same case is perfytely knowen ¶ Student I wyll with good wyll do as thou sayest / I entende to put dyuers of the same questyons that be in the laste chapytre of the sayde dyalogue in latyn and somtyme I entende to alter some of them and to adde some newe questyons to them / suche as I shall be moste in doute of ¶ Doctour I pray the do as thou sayest / I shall with good wyll eyther make answere to them forthwith as well as I can / or shall take lenger respyte to be aduysed / or els perauenture agre to thyne opinyon therin / as I shall se cause But fyrst I wolde gladly know the cause why thou hast begon this dyalogue in the englysshe tonge / nat in the latyn toÌ„ge / as the fyrst cases that thou desyredest to knowe myne opinyon be in / or in frenche as the substaunce of the lawe is ¶ Student The cause is this It is ryght necessary to all men in this realme / bothe spirituall temporall for the good orderiÌ„ge of theyr coÌ„scieÌ„ce to knowe many thyngê of the lawe of Englande that they be ignoraunt in And thoughe it had ben more pleasaunt to them that be lerned in the latyne tonge to haue had it in latyne rather than in englysshe yet neuerthelesse for as moche as many can rede englysshe that vnderstaÌ„de no latyn / some that can nat rede englysshe by heriÌ„ge it redde may lerne diuers thynges by it that they shulde nat haue lerned if it were in latyn Therfore for the ê“fite of the multitude it is put into the englysshe tonge rather than into the latyn or freÌ„che tonge For if it had ben in frenche fewe shulde haue vnderstande it / but they that be lerned in the lawe / and they haue leste nede of it / for as moche as they knowe the law in the same cases wtout it / can better declare what conscieÌ„ce wyll therupon / than they that knowe nat the lawe nothiÌ„ge at all To them therfore that be nat lerned iÌ„ the lawe of the realme this treatice is specially made / for thou knowest well by suche studyes thou haste taken to some knowlege of the law of the realme that is to them moste expedient ¶ Doctoure It is true that thou sayest therfore I praye the nowe procede to thy questions ¶ The fyrst question of the Student The fyrste chapitre STtudent If tenant in tayle after possibilitie of issue extincte do wast / whether dothe he therby offende in conscience thoughe he be nat punysshable of waste by the lawe ¶ Doctoure Is the lawe clere that he is nat punysshable for
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ„ this case that he shulde be coÌ„pelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌ„pted to offeÌ„de the lawe it semeth reasoÌ„ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ„ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ„ were vntrue / the defendauÌ„t nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌ„ce in lawe also in conscieÌ„ce / that for this cause / the kyng as souereyne hed of the lawe is bouÌ„den of iustice to grauÌ„t such writtes and such ê“cesses as be oppoynted in the lawe to euery ê‘sone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ„ he is nat gyltye as whan he is gyltie / thaÌ„ whaÌ„ there is no maxime in the lawe that if a man be outlawed in suche maner as before apê‘eth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ„ whether the accioÌ„ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌ„science as wel as if the accion were true And than the ê‘tie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ„ ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌ„t of the owner it is to coÌ„sydre that the ê“pertie of goodê be nat gyueÌ„ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ„ / but after they were brought by the lawe of man into a certeyne ê“pertie so that euery man myght knowe his owne thaÌ„ whan such ê“pertie is gyueÌ„ by the law of maÌ„ the same lawe may assigne such coÌ„dicioÌ„s vpoÌ„ the ê“pertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ê“perty shall continue And one coÌ„dicioÌ„ that goeth with euery ê“perty iÌ„ this realme is if he that hathe the ê“perty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ„ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ„ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ„ was made vpoÌ„ a better coÌ„sideracion than this forfayture of outlagary was For if no especiall punisshemeÌ„t shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ„ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ„ to the kyng therby is good in coÌ„scieÌ„ce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ„ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌ„pence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌ„des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
though it were as thou sayst / yet thou cannest nat say but that there is as great defaut in hiÌ„ as is in hym in the reuercion / that there is as great reason why he shulde be charged with the waste as that he in the reuercion shulde be disherited and haue no maner remedy ne yet no profytte of the lande as the other hathe / and thoughe he sayd maxime may be thought very streyt to the sayd tenauntes yet is it for to be fauoured as moche as may be reasonably / bycause it helpeth moche the comon welthe / for it hurteth the comon welthe greately whan wodes and houses ben destroyed / if they shulde answere for no waste / but for waste done by them selfe there myght be waste done by straungers by theyr coÌ„mauÌ„demeÌ„t or assent in suche colourable maner that they iÌ„ the reuercion shulde neuer haue ê“fe of theyr assent ¶ Doctoure I am coÌ„tent thyne opinion stande for this tyme / and I praye the nowe procede to a nother question ⧠The fourth question of the student The .v. Chapitre STudente If he that is the very heyre be certified by the ordinarie bastarde and after bryng an accion as heyre agaynste an other ê‘sone / whether may any man knowyng the trouthe be of counsayle with the tenaunt and plede the sayd certificate agaynst the demaundaunt by conscience or nat ¶ Doctoure Is the lawe in this case that al other against whome the demaundaunt hathe tytle shall take aduaÌ„tage of this certificate as well as he at whose sute he is certified bastarde ¶ Student ye verely / that for two causes / wher of the one is this There is an old maxime in the lawe that a mischyfe shal be rather suffred thaÌ„ an inconuenieÌ„ce / than in this case if a nother writte shuld afterwarde be sent to a nother bysshope iÌ„ an other accion to certifie wether he were bastarde or nat / peraduenture that bysshope wolde certifie that he were mulier / that is to say lawfully begotten and than he shulde recouer as heyre / and so he shulde in one selfe court be taken as mulier bastarde / for auoydynge of whiche contrariosyte the lawe wyll suffre no mo wrytes to go forth in that case / and suffreth also all men to take aduauntage of that certificate rather thaÌ„ to suffre suche a contradicion in the courte whiche in the lawe called an inconuenieÌ„ce / the other cause is bycause this certificate of the bysshope is the hyest trial that is iÌ„ the law iÌ„ this behalfe But this is nat vnderstaÌ„de but where bastardy is layde in one that is ê‘ty to the wryt / for if bastardy be layde in one that is estraÌ„ge to the writ as iÌ„ a vouch pray en ayde or suche other / than that bastardy shal be tried by .xii. meÌ„ by which triall he iÌ„ whome the bastardy is layde shall nat be coÌ„cluded bycause he is nat priue to the trial may haue no attaiÌ„t / but he that is ê‘ty to the issue may haue attaint / therfore he shal be coÌ„cluded none other but he for as moche as the sayd maxime was or deyned to eschewe an incoÌ„uenieÌ„cy as byfore apê‘eth it semeth that euery man lerned may with coÌ„scieÌ„ce plede the said certificate for auoydyng therof / gyue couÌ„saill therin to the ê‘ty accordyng vnto the lawe for els the sayd incoÌ„uenieÌ„cy must nedely folowe But yet neuertheles I do nat meane therby that the party may after whan he hath barred the demauÌ„daÌ„t by the sayd certificate reteine the lande in coÌ„scieÌ„ce by reason of the sayd certificate / for though ther be no lawe to coÌ„pel hym to restore it / yet I thynke well that in coÌ„science he is bounde to restore it / if he knowe that the demaundauÌ„t is the very true heyre wherof I haue put diuerse cases lyke in the .xvii. chapi of our fyrst dialogue iÌ„ latyn but my enteÌ„t is that a maÌ„ lerned iÌ„ the lawe iÌ„ this case other lyke may with coÌ„scieÌ„ce gyue his counsayle accordynge to the lawe in auoydyng of such thyngê as the lawe thynke it shuld for a resonable cause be eschewed ¶ Doc. Though he that doth nat know whether he be bastarde or nat may gyue his counsayle also plede the sayd certificate yet I thynke that he that doth knowe hym selfe to be the very true heyre may nat plede it / that is for two causes Wherof the one is this Euery man is bounde by the lawe of reason to do as he wolde be done to / but I thynke that if he that pledeth that certificate were in lyke case he wold thynke that no maÌ„ knowyng the sayd certificate to be vntrue myght with conscience plede it agaynst hiÌ„ / wherfore no more may he plede it agaynst none other The other cause is this / although the certificate be pleded yet is the tenaunt bouÌ„den in conscience to make restitucion therof as thou hast sayd thy selfe / thaÌ„ in case that he wolde nat make restitucion / than he that pleadeth the plee shulde renne therby in lyke offence / for he hathe holpen to set the other man in suche a liberty that he may chose whether he wil restore the laÌ„de or nat / and so he shulde put hym selfe to the ieoparty of a nother mannes conscience And it is wryten Ecclesiasti .iii. Qui amat periculum peribit in illo That is / he that wylfully wyll put hiÌ„ selfe in ieoparty to offende shal perysshe therin / and therfore it is the surest way to eschew perylles / fro hym that knoweth that he is heyre nat to plede it / and as for the inconuenience that thou sayest must nedely folowe but the certificate be pleded as to that it may be answered that it maye be pleded by some other that knoweth nat that he is very heyre / and if the case be so farre put that there is none other lerned there but he than me thynketh that he shall rather suffre the sayd inconuenience than to hurt his owne conscience / for alwaye charite beginneth at him selfe so euery man ought to suffre all other offences rather than he hym selfe shulde offende And nowe that in this case I pray the procede to thou knowest myne opinion a nother question ⧠The .v. question of the student The .vi. Chapitre STudent Whether may a man with coÌ„science be of counsayle with the playntyfe in an accion of the comon lawe knowynge that the defendaunt hathe sufficient mater in conscience wherby he may be discharged by a Sub pena in the chauÌ„cery whiche he can nat pleade at the comoÌ„ lawe or nat ¶ Doctoure I praye the put a case therof in certeyne for els the questioÌ„ is very generall ¶ Student I wyll put the same case that thou puttest iÌ„ our fyrste dialogue in latyne the .x. Chapitre that is to say / if a man bounde in an obligacion / pay the money taketh none acquitaunce so that by
the comon lawe he shal be compelled to pay the money agyne for suche coÌ„sideracion as appereth in the .xv. chapitre of the sayd dialogue where it is shewed euidently howe the lawe in that case is made vpon a good reasonable grouÌ„de moche necessary for all the people / howe be it that a man may somtyme throughe his owne defaut take hurte therby / wherin I pray the shewe me thyne opinion ¶ Doctoure this case semeth to be lyke to the case that thou haste put nexte byfore this / that he that knoweth the payment to be made doth nat as he wolde be done to if he gyue couÌ„sayle that an accion shulde be taken to haue it payd agayne ¶ Sudent If he be sworne to gyue counsayle accordynge to the lawe as sergeauntes at the lawe be it semeth he is bounde to gyue counsayle accordyng to the lawe / for els he shulde nat ê‘fourme his othe ¶ Doctour In those wordes accordyng to the lawe is vnderstande the lawe of god and the lawe of reason as well as the lawe customes of the realme / for as thou hast said thy selfe iÌ„ our fyrst dialogue in latyn that the lawe of god and the lawe of reason be two especiall groundes of the lawes of EnglaÌ„d Wherfore as me thiÌ„keth he may gyue no couÌ„saile sauing his othe neyther agaynste the lawe of god nor the lawe of reason / and certayne it is that this article that is to say / that a man shall do as he wolde done to is grouÌ„ded vpon both the sayd lawes And fyrst that it is grounded vpon the lawe of reason it is euideÌ„t of it selfe And in the .vi. Chap. of saynt Luke it is said Et prout vultis vt faciant vobis homines et vos facite illis similiter That is to saye / all that ye wyll that other men shulde do to you do you to them / so it is grouÌ„ded vpon the lawe of god / wherfore if he shulde gyue couÌ„sayle agayne the defendauÌ„t in that case he shulde do agaynst both the sayd lawes ¶ Stu. If the defendaunt had none other remedy but at the comon lawe I wolde agree well it were as thou sayest / but in this case he maye haue good remedy by a Sub pena / this is the waye that shall induce hiÌ„ directly to his Sub pena / that is to say / whaÌ„ it appereth that the playntyfe shal recouer by the law ¶ Doc. Though the defeÌ„daÌ„t may be discharged by Sub pena / yet the bryngyng iÌ„ of his ê“fes there wyll be to the charge of the defeÌ„daÌ„t / also the ê“fes may dye or they come in Also ther is a grouÌ„de iÌ„ the lawe of reasoÌ„ / qd nihil possimê° coÌ„tra veritatem / that is / we may do nothiÌ„g agaiÌ„st the trouth / syth he knowethe it is trouthe that the money is paid he may do nothiÌ„g agaiÌ„st the trouth if he shuld be of coÌ„sayle with the plaiÌ„tyf he must suppose auerre that it is the verey due det of the plaiÌ„tyfe / that the defeÌ„dauÌ„t withholdeth it fro hiÌ„ vnlawfully / which he knoweth hiÌ„ selfe to be vntrue / wherfore he may nat with coÌ„scieÌ„ce iÌ„ this case be of couÌ„sayle with the plaiÌ„tyfe / knowyng that the plaiÌ„tyf is paied al redy / wherfor if thou be contented with this answere I praye the procede to some other question ¶ Stud. I wyll with good wyll ⧠The .vii. question of the student The .vii. Chapitre STudent A man maketh a feoffement to the vse of hym and of his heyres / after the feoffour putteth in his beestes to manure the grounde and the feoffe taketh them as damages fesaunt and putteth them in pounde / and the feoffour bryngeth an accion of trespasse agaynste hym for entryng into his grounde cÌ„ whether may any man knowyng the sayd vse be of couÌ„sayle with the feoffe to auoyde that accion ¶ Doctoure Maye he by the comon lawe auoyde that accion seynge that the feoffour ought in conscience to haue the ê“fytes ¶ Student ye verely / for as to the comon lawe the hole interest is iÌ„ the feoffe and if the feoffe wyll breke his conscience take the profytes the feoffour hath no remedy by the comon lawe but is dryuen in that case to sue for his remedy by Sub pena for the profytes / and to cause hym to refeoffe him againe / and that was somtyme the moste comon case where the Sub pena was sued / that is to say / byfore the statute of Rycharde the thyrde but syth that statut the feoffour may lawfully make a feoffement But neuertheles for the profytes receyued the feoffour hathe yet no remedy but by Sub pena as he had byfore the said estatute And so the supposell af this accioÌ„ of trespasse is vntrue in euery poynt as to the comon lawe ¶ Doctoure Thoughe the accion be vntrue as to the lawe yet he that sueth it ought in conscience to haue that he demaundeth by the accion / that is to say / damages for the profytes / and as it semeth no man may with conscience gyue counsayle agaynste that he knoweth conscience wolde haue done ¶ Stu. Thouhe conscience wolde he shulde haue the profytes / yet conscience wyll that for the attayning therof the feoffour shulde make an vntrue surmyse Therfore agaynste that vntrue surmyse euery man may with conscience gyue his counsayle / for in that doyng he resysteth nat the playntyfe to haue the profytes / but he withstaÌ„deth hym that he shulde nat maintaine an vntrue accion for the profites And it suffiseth nat iÌ„ the lawe ne yet in conscience as me semethe that a man haue ryghte to that he sueth for / but that also he sue be a iust meanes / and that he haue bothe good ryght and also a good and a true coÌ„ueyauÌ„ce to come to his right for if a man haue ryght to landes as heyre to his father and he wyll bryng an accion as heyre to his mother that neuer had ryght / euery man may gyue couÌ„sayle agaiÌ„st that accion thoughe he knowe he haue ryght by an other meanes / so as me thynketh he may do in dilatories / wherby the partie may take hurte if it were nat pleaded / thoughe he knowe the plaintyfe haue ryght as if the ê‘tie or the towne be misnamed / or if the degrees in wryttes of entre be mistaken / but if the partie shuld take no hurte by admittynge of a dilatorye there he that knoweth that the playntyfe hath ryght may nat pleade that dilatorie with conscience as in a Forme done to pleade in abatement of the wrytte bycause he hathe nat made hym selfe heyre to hiÌ„ that was last seased / or in a wrytte of ryght for that the demaundaunt hath omitted one that tended right ne suche other / ne he may nat assent to the castyng of an Essoyne nor proteccion for hym if he knowe that the demaÌ„dauÌ„t hathe ryght / ne he maye
no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hiÌ„ whether they wolde paye it or nat And therfore to be out of peryll it is necessarye that he paye it hym selfe / and than is he surely discharged agaynst all men ⧠The .x. question of the student The .xii. Chapitre ¶ STudent A man seased of certayne lande in his demeane as of fee / hathe issue two sones and dyeth seased / after whose dethe a straunger abateth / taketh the profytes / and after the eldest sone dieth without issue and his brother bringeth an assise of MortdauÌ„cestre as sone and heyre to his father nat makynge mencion of his brother and recouereth the lande with damages fro the deth of his father as he may wel by the lawe / whether iÌ„ this case is the yonger brother bounde in coÌ„science to pay to the executours of the eldest brother the value of the profytê of the sayd lande that belonged to the eldest brother in his lyfe or nat ¶ Doctour What is thyne opinion therin ¶ Student That lyke as the said profytes belonged of right to the eldest brother in his lyfe / and that he had full auctorite to haue released as well the ryghte of the sayd lande as of the sayd ê“fytê / whiche release shulde haue ben a clere barre to the yonger brother for euer That the ryght of the said damages whiche be in the lawe but a chatell / bylonge to his executoures and nat to the heyre / for no maner of chatell neyther reall nor parsonall shall nat after the lawe of the realme discende vnto the heyre ¶ Doctoure Thou saydest to the case next byfore / that it is nat of the lawe of reason that a man shall may make executours / and dispose his goodes by his wyll / and that the executoures shall haue the goodes to dispose but by the lawe of man / and if it be lefte to the terminacion of the lawe of man ThaÌ„ in suche cases as the lawe gyueth suche chatelles vnto the executoures / they shall haue good ryghte vnto them / and in suche cases as the lawe takethe suche chatelles frome them they bene ryghtfully taken frome them And therfore it is thoughte by many that if a man sue a wrytte of ryghte of warde of awarde that he hathe by his owne fee and dyeth hangynge the wrytte / and his heyre sue a resomons accordynge to the statute of Westmester seconde / and recouereth that in that case the heyre shal enioye the wardeshype agaynste the executoures / and yet it is but a chatel / and they take the reason to be bycause of the sayd estatute / and so myghte it be ordeyned by statute that all wardes shulde go to the heyres and nat to the executoures Ryght so iÌ„ this case syth the lawe is suche that the yonger brother shall in this case haue an assyse of Mort dauncestre as heyre to his father nat makynge any mencion of his elder brother recouer damages as well iÌ„ the tyme of his brother as in his owne tyme it appereth that the lawe gyueth the right of these damages to the heyre / and therfore no recompence ought to be made to the executoures as me semeth / and it is nat lyke to a wryt of Ayel where as I haue lerned iÌ„ Latyn syth our fyrste dialogue the demaundauÌ„t shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demauÌ„t though his Ayel ouer lyued his father must of necessite make his coÌ„ueyauÌ„ce by his father muste make hiÌ„ selfe sone heyre to his father cosyn heyre to his Ayel / therfore in that case if the father ouer liued the Ayel the abatour were bouÌ„den in coÌ„science to restore to the executours of the father the profytes reÌ„ne in his tyme / for no lawe taketh theÌ„ fro hiÌ„ / but otherwyse is iÌ„ this case as me semeth ¶ Student If the yonger brother in this case had entred into the lande without takyng any assyse of Mort dauncestoure as he myght if he wolde / to whome were the abatour than bounden to make restitucioÌ„ for those profytes as thou thynkest ¶ Doctour To the executours of the eldest brother / for iÌ„ that case there is no law that taketh them from them / and therfore the general grounde whiche is that al chatels shall go to the executoures holdeth in that case / but in this case that grounde is broken and holdeth nat for the reason that I haue made byfore / for comonly there is no general grounde in the lawe so sure but that it fayleth in some particuler case ⧠The .xi. question of the student The .xiii. Chapitre STudent A man seased of lande in fee taketh a wyfe / and after alieneth the lande and dyeth / after whose deth his wyfe asketh her dower and the aliene refuseth to assigne it vnto her / but after she asketh her dower agayne and he assigneth it vnto her / whether is the alme in this case bounde in conscience to gyue the woman damages for the profites of the land after her thyrde parte fro the dethe of her husbande / or fro the fyrst request of her dower or neyther the one nor the other ¶ Doct. what is the lawe in this case ¶ Student By the lawe the woman shall recouer no damagê / for at the comoÌ„ lawe the demauÌ„daunt iÌ„ a wrytte of dower shulde neuer haue recouered damages But by the statute of Marton yt is ordeyned that where the husband dyeth seased that the womaÌ„ shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / suche damagê as she hathe by the forberynge of it / but in this case the husbande dyed not seased / where fore she shall recouer no damages by the lawe ¶ Doctour yet the lawe is that immediately after the dethe of her husbande the wyfe ought of ryght to haue her dower yf she aske it thoughe her husbande died not seased ¶ Student That is trewe ¶ Doctoure And sithe she ought to haue her dower fro the dethe of her husbande yt semeth that she ought in coÌ„science to haue also the profytes fro the dethe of her husbande though she haue no remedy to come to them by the lawe / for me thynketh that that this case is lyke too a case that thou puttest in our fyrste dyalogue in latyn the xvii chapytre That if a tenaunte for terme of lyfe be dysseased dye / the disseasoure dyeth / and his heyre entreth and taketh the profytes / after he in the reuercyon recouereth the laÌ„dê against the heyre as he ought too do by the lawe / that in that case he shall recouer no damages by the lawe And yet thou dydest agree that iÌ„ that case the heyre is bounde in concience to pay the damages to the demaundaunt so me
thynketh iÌ„ this case that the feoffe oughte in coÌ„scyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too haue her dower ¶ Student Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaunde her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande whervnto any womaÌ„ hath tytle of dower hath good auctorytye as agaynste her to take the ê“fytes tyll she requyre her dower for euery womaÌ„ that demaundeth dower affermeth the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyoÌ„ she leueth the reuercyon alwey in him agaynst whome she recouereth thoughe he be a dysseasour bryngeth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he appere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / so he shall nat be receyued to do iÌ„ a wryt ofcosynage nether iÌ„ the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe iÌ„ this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the requeste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon ¶ Doctour As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is required / but whan he refuseth to assigne it than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe And fyrste as for the tyme after the refusell it appereth euidentely that whan he denied to assigne her dower he dyd agaynste conscieÌ„ce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully ought in conscience to yelde damages therfore And as to the defaute that thou assignest in her that she toke nat her accioÌ„ / that forceth lytel for accioÌ„s nede nat / but where the partie wyll nat do that he ought to do of ryght And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye theÌ„ / for whan he was requyred to assygne dower and refused It appereth that he neuer inteÌ„ded to yelde dower fro the begynnyng / so he is a wrong doer in his owne coÌ„science / and more ouer if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womaÌ„ bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat iÌ„ that case after thyne opinioÌ„ to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here ¶ Studente The cause in that case that thou haste put is for that the statute is general that the demauÌ„dauÌ„t shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the tenaunt maye nat saye that he is and hathe ben alway redy to yelde dower cÌ„ that the demaundaunt shall recouer damages fro the dethe of her husbande But in this case there is no law of the realme that helpeth for the damaundauÌ„t neyther comon lawe nor statut / forthermore though it myght be proued by his refusell that he neuer entended fro the deth of the husbande to assigne her dower yet that proueth nat / but that he had good ryght to take the ê“fites of her thyrde parte for the tyme as well as he had of his owne two partes tyl request be made as is afore sayd / and so me thynketh that nat withstandyng the denyer he is nat bounde to yelde damagê in this case but fro the tyme of the request / and nat for the tyme byfore ¶ Doctoure For this tyme I am content with thy reason ⧠The .xii. question of the student The .xiiii. Chapitre STudent A maÌ„ seased of certayne landê knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in coÌ„scieÌ„ce as he may do by the lawe ¶ Doctoure By this question it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght that his ryght shulde than be extyncted by the fyne in conscience ¶ Student ye verely / for thou dydest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth But if he that leuyeth a fyne and that wolde extyncte the ryghte of an other / knowynge that the other hathe more ryghte than he than I doute therin for I take thyne opinion in our fyrste dialogue to be vnderstaÌ„de in conscience where he that wolde extincte former ryghtes by suche a fyne with proclamacioÌ„ knoweth nat of any former tytle but for his more surety if any suche former ryght be he taketh the remedy that is ordeyned by the lawe ¶ Doctoure Whether dost thou meane in this case that thou puttest now that he that hath right knoweth of the fyne and wylfully lettethe the .v. yere pas without claime or that he knoweth nat any thynge of the fyne ¶ Student I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat ¶ Doctour I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a lytell sparyng and procede nowe for this tyme to some other question ⧠The .xiii. question of the student The .xv. Chapitre STudent A man seased of certayne landes in fee hath a doughter whiche is his heyre apparauÌ„te / the doughter taketh a
If a man bye laÌ„de or take it of the gyfte of an other it is reason that he take it with the peryll though he be ignorauÌ„t that a nother hath ryght / for it were nat standynge with reason that his ignoraunce shulde extyncte the ryght of a nother / but in this case ther is no doute of the ryght of the lande / but al the doute is howe the rent shal be ordred in conscience if he that hathe the rente take parte of the lande / and therin is great diuersite bytwene hym that is ignoraunt in the lawe / and him that knoweth the lawe / and knowethe well also that he hathe a rent out of that land and other For I put case that he asked counsayle of the grauntour hym selfe therin and he saynge as he thought tolde hiÌ„ that the takyng of the one acre shuld nat extyncte the rent but for the porcion and so he thynkynge the lawe to be toke the other acre of his gyfte Is it nat reasonable in that case that that ignoraunce shulde saue the rent in conscience ¶ Student yes / for there the grauntour hym selfe is partie to his ignoraunce and is in maner the cause therof ¶ Doctour And me thynkethe all is one if any other had shewed hym so / or if he had asked no counsayle at all / for me thynkethe it suffiseth in this case that he be ignorauÌ„t of the lawe / for why / it is more harde in this cas to proue that the rent shulde be extyncte in conscience thoughe he knowe it shal be extyncted in the lawe than to proue that it continueth in conscience after the porcion if he be ignoraÌ„t / thou thy self were of the same opinion / as it appereth in the begynnynge of this present Chapitre / but if that opinion were true it wolde be hard to ê“ue but that the sayd generall maxime were holly agaynste reason / thaÌ„ it were voyd / but I haue sufficiently answered therto as me semethe / and that it is extyncte in the lawe and also in conscience / excepte ignoraunce helpe it to be apporcioned And more ouer for as moch as apporcionemeÌ„t is suffred in the lawe where ê‘te of the land discendeth to the grauntee bycause no defaute can be assigned in hym / so me thynketh no defaute can be assigned in hym in conscience whaÌ„ he is ignorauÌ„t of the lawe or of the dede thoughe suche ignorauÌ„ce do nat excuse in the lawe of the realme ¶ Student I am contente with thyne opinion in this behalfe at this tyme. ⧠The .xv. question of the student The .xvii. Chapitre STudent A maÌ„ grauÌ„teth a reÌ„t charge out of two acres of lande / and after the grauntour enfeoffeth Henry hert in one of the sayd two acres to the vse of the sayd Henry herte and of his heyres / after the sayd Henry herte entendynge to extyncte all the rent causeth the sayd acre to be recouered agaynste hym to his owne vse in a wryt of entre in the post in the name of the grauntee and of other after the comon course / the grauntee nat knowyng of it / and by force of the sayd recouere the other demaundauÌ„tes entre and dye / lyuyng the grauntee / so that the grauÌ„tee is seased of al by the surueiour to the vse of the sayd Henry herte / whether is the sayd rent extyncte in conscience in parte nor in all or iÌ„ no parte ¶ Doctour I am in doute of the lawe in this case ¶ Student In what poynt ¶ Doctoure whether the hole rent be goynge out of the acre that remayneth in the handes of the grauÌ„tour bycause the grauntee cometh to the lande by waye of recouere / or that it shal be extyncte in the law / but after the porcioÌ„ by cause the grauÌ„tee hathe nat the acre to his owne vse / or that the hole reÌ„t shal be extincte iÌ„ the lawe ¶ Student The rent can nat be hoole goynge out of the acre that the grauntoure hathe / for this recouere is vpon a fayned tytle / the grauÌ„tour bycause he is strauÌ„ge to it shal be well resceyued to falsifie it But if the recouerye had ben vpon a true tytle than it had ben as thou sayest / for if the grauntee recouer the one acre agaynst the grauntour vpon a true tytle / the grauÌ„tour shall pay the hole rent out of that laÌ„de that remayneth in his haÌ„de / and as to the vse it maketh no mater to the grauntoure as to the lawe in whome the vse be / for the possession without the vse extynguyssheth the hole rent as agaynst hym in the lawe as well as if the possession vse were both ioyned to gether in the grauntee ¶ Doct. Than me thynkethe that the sayd Henry herte is bounden in conscience to paye the grauÌ„tee the rent after the porcion of that acre that was recouered / for it caÌ„ nat staÌ„de with conscience that he shulde lose his rent and haue no profites of the lande ¶ Student Than of whome shall he haue the other porcion of his rente ¶ Doctoure Is the lawe clere that the acre that the grauntour hath shal be in this case discharged in the lawe ¶ Student I take the lawe so ¶ Doctour And what in conscience ¶ Student As agaynste the grauntoure me thynketh / also it is extyncte in conscience for the reason that thou hast made in the .xvi. Chapitre / for it is all one in conscience in this case as agaynst the grauÌ„tour whether the recouere were to the vse of the grauntee or nat / especially seynge that the grauntoure is nat priuey to the recouery / for the vnite of possession is the cause of extinguisshemeÌ„t of the rent against the grauÌ„toure bothe in lawe and conscience where so euer the vse be / but if the grauntour had ben priuey to the cause of the extynguisshement as he was in the case that I put in the laste Chapitre where the grauntoure enfeoffed the grauntee of one of the acres to the vse of the grauntee there it is nat extyncte in conscience in that acre that remayneth in the handes of the grauntoure thoughe it be extyncted iÌ„ the lawe / bycause he was pryuey to the extynguisshement hiÌ„selfe / but he is nat so in this case / and therfore it is extyncte agaynst hym iÌ„ lawe and conscience And therfore me thynkethe that the grauntee shall in conscience haue the hoole rente of the sayd Henry herte that caused the sayd recouere to be had in his name / for in hym was all the defaute / but it is to be vnderstande that in all the cases where it is sayd byfore in this Chapitre or in the Chapitre nexte byfore that the rent is extincte in the lawe nat in conscience that in suche case all the remedies that the partie myght fyrste haue had for the rent at the comon lawe by distres assyse or otherwyse are determined / and the partie that ought to
is nat partie to the dede and therfore it can nat be taken by waye of graunte of the reuercion / for no graūte can be made but to hym that is partie to the dede excepte it be by way of remayndre / and therfore if a mā make a lease for terme of life / and after the lessour graunt to a staūger that the tenaūt for terme of lyfe shal haue the lande to him and to his heyres / that graunt is voyde if it be made onely of his mere mocion without recompence And in lyke wyse if a mā make a lease for terme of lyfe after graūt the reuerciō to one for terme of lyfe / the remayndre ouer in fee / and the renaūt atturneth to hym that hath the state for terme of lyfe onely / intēdyng that he onely shulde haue aduauntage of the graūte his entēt is voyde / and both shall take aduauntage therof / and the atturnament shal be taken good accordynge to the graunte / and so in this case though the feoffoure entended that if the rente were nat payed that the straūger shulde entre / yet bycause the lawe gyuethe hym no entre in that case that intent is voyde / and the same staunger shall neyther entre into the lande by lawe nor conscience ¶ Doctour What shal than be done with the lande as thou thynkest after the cōdicion broken ¶ Student I thynke that the feoffour in this case may lawfully reentre / for whan the feoffemēt was made vpon condicion that the feoffe shulde pay a rent to a straunger in tho wordes is concluded in the lawe that if the rent were nat payed to the straunger that the feoffoure shulde reentre for tho wordes vpon condicion / implie so moche in the lawe thoughe it be expressed And than whā the feoffour went ferther and sayd that if the rēt were nat payed that the straunger shulde entre / those wordes were voyde in the lawe / and so the effecte of the dede stode vpon the fyrst wordes wherby the feoffour maye reentre in lawe and conscience but if the fyrst wordes had nat ben cōdicionall I wolde haue holden it the greater doute ¶ Doctour I praye the put the case therof in certayne with suche wordes as be nat condicionall that I may the better perceyue what thou meanest therin ⧠The .xix. question of the studente The .xxi. Chapitre SSudent A man maketh a feoffement by dede indetted / and by the same dede it is agreed that the feffe shal pay to A.B. to his heyres a certayne rēt yerely at certayn dayes / that if he pay nat the rēt thā it is agreed that A.B. or his heyres shall entre into the lande / and after the feoffe payeth nat the rent / than the question is who ought in cōscience to haue this lande and rent ¶ Doctoure Or we argue what conscience wyll let vs knowe fyrste what the lawe wyll therin ¶ Student I thynke that by the lawe neyther the feoffoure ne yet the sayd A.B. shall neuer entre into the lande in this case for nat paymente of the rent for there is no reentre in this case gyuen to the feoffour for nat payment of the rent as there is in the case next byfore / and the entre that is gyuen to the sayd A. B. for nat paymēt therof is voyde in the lawe bycause he is estraūge to the dede as it appereth also in the next Chapitre byfore And therfore me thynketh that the greatest doute in this case is to se to what vse this feoffement shal be taken ¶ Doctour There appereth in this case as thou haste put it no consideracion ne recompence gyuen to the feoffour whervpon any vse may be deriuied / if the case be so in dede that the feoffour declared neuer his mynde therin / to what vse shall it thā be takē ¶ Stu. I thynke it shal be taken to be to the vse of the feoffe as longe as he payeth the rente / for there is no reason why the feoffe shulde be busied with paymēt of the rent hauyng nothynge for his labour / ne it may nat cōueniently be taken that the intent of the feoffour was so / excepte he expressed it / thā it must be taken that he intended to recōpense the feffe for the busynes that he shuld haue in the payment ouer / and by the wordes folowyng his intent appereth to be so as me thynketh / for if the rēt were nat payed he wolde that A.B. shulde entre / and so it semeth he entended nat to haue any vse hym selfe and thus as me semeth this case shulde varye fro the comō case of vses / that is to saye / if a man seased of lande make a feoffement therof and it apperethe nat to what vse the feoffement was made ne it is nat vpon any bargayne or other recompence than it shal be taken to be to the vse of the feoffoure / excepte the contrarie can be proued by some bargaine or other lyke / or that his intēt at the tyme of the lyuerey of season was expressed that it shulde be to the vse of the feoffe or of some other / than it shall go accordynge to his entent / but in this case me thynketh it shal be taken that his entent was that it shulde fyrst be to the vse of the feoffe for the cause byfore reherced excepte the contrarie can be proued / so the knowlege of the intēt of the feoffour is the greatest certaynte for knowelege of the vse in this case as me semeth / but whā the feoffour goeth ferther and sayeth that if the rent be nat payed thā the sayd A.B. shulde entre into the lande / thā it appereth that his entent was that the rente shulde cease / and that A. B. shulde entre into the lande / and thoughe he maye nat by those wordes entre into the lande after the rules of the lawe / and to haue freholde / yet those wordes seme to be sufficient to proue that the intēt of the feoffour was that he shulde haue the vse of the lande / for sythe he had the rente to his owne vse and nat to the vse of the feoffoure so it semeth he shal haue the vse of the lande that is assigned to hym for nat paymente of the rente ¶ Doctour But I am somwhat in doute whether he had the rente to his owne vse / for the intēt of the feoffour myght be that he shuld pay the rēt for hī to some other or some other vse myght be appoynted therof by the feoffour ¶ Student If suche an entēt can be proued than that intent must be obserued / but we be ī the case to wete to what vse it shal be taken if the entēt of the feoffour can nat be proued / thā me thynketh it can nat be otherwyse takē but that it shal be to the vse of hī to whome it shulde be payed / for though it be called a rent yet
feoffour was seased iÌ„ that case to his owne vse I shall shewe the afterwarde The seconde case is this A man maketh a feoffement in fee / and it is agreed vpon the feoffement that the feoffe shal pay a yerely reÌ„t to a strauÌ„ger / and if he pay it nat that thaÌ„ the straunger shall entre into the lande In this case I sayd as it appereth in the sayd .xxi. Chapitre / that if the feoffe payed nat the rent that the straunger shuld haue the vse of the lande thoughe he maye nat by the rules of the laÌ„de entre into the laÌ„de / the diuersite bytwene the cases me thynkethe to be this In the fyrste case it apperethe as I haue sayd byfore in the sayde xx Chapitre / that the feoffour myght lawfully reentre by the lawe for nat payment of the rent / and than whaÌ„ he entred accordynge he by that entre auoyded the fyrste lyuery of season / in so moche that after the reentre he was seased of the lande of lyke estate as he was byfore the feoffemente And soo remaynethe noo thynge / whervpon the straunger myght grounde his vse / but onely the bare graunte or entente of the feoffour whaÌ„ he gaue the land to the feoffe vpon condicion that he shulde pay the rente to the straunger / and if nat / that it shulde be lawful to the straunger to entre / for the feoffement is auoyded by the reentre of the feoffour as I haue sayd byfore / and as I sayd in the last Chapitre as I suppose a nude or bare graunte of hym that is seased of lande is nat sufficiente to begynne an vse vpon ¶ Doctour A bare graunte maye chaunge an vse as thou thy selfe agredest in the last Chapitre why thaÌ„ may nat an vse as well begyn vpon a bare graunt ¶ Student Whan an vse is iÌ„ Esse he that hathe the vse may of his mere mocion gyue it awaye if he wyll without recompence as he myght the lande if he had it in possession / but I take it for a grounde that he can nat so begynne an vse without a lyuerey of season or vpon a recompence or bargayne / that there is suche a grouÌ„d in the lawe that it maye nat so begynne it appereth thus / it hath ben alwaye holden for lawe that if a man make a dede of feoffement to a nother and delyuer the dede to hym as his dede / that in that case he to whome the dede is delyuered hath no tytle ne medelynge with the lande afore lyuerey of season be made to hym but only that he may entre and occupie the laÌ„de at the wyll of the feoffour / and there is no boke saythe that the feoffour in that case is seased there of byfore lyuerey to the vse of the feoffe And in lykewyse if a man make a dede of feoffement of two acres of lande that lye in two shyres intendyng to gyue them to the feoffe and maketh lyuerey of season in the one shyre nat in the other / in this case is it comonly holden in bokes that the dede is voyde to that acre where no lyuerey is made excepte it lye within the viewe saue onely that he maye entre occupie at wyl as is aforsayde / and there is no boke that sayth that the feoffe shulde haue the vse of the other acre / for if an vse passed therby than were nat the dede voyde to all intentes / and yet it apperethe by the wordes of the dede that the feoffour gaue the landes to the feoffe / but for lacke of lyuerey of season the gyfte was voyde and some thynketh it is here without lyuerey of seasoÌ„ be made accordynge But in the seconde case of the sayd two cases the feoffe may nat reentre for non payment of the rente / and so the fyrste lyuerey of season continueth and standeth in effecte / and thervpon the fyrste vse maye wel begynne take effecte in the straunger of the lande whaÌ„ the rent is nat payed vnto hym accordynge to the fyrst agrement And so me thynketh that in the fyrst case the vse is determined by cause the lyuerey of season where vpon it coÌ„menced is determined / and that in the seconde case the vse of the lande taketh effecte iÌ„ the straÌ„ger for nat paymeÌ„t of the reÌ„t by the grauÌ„t made at the fyrste lyuerey whiche yet continueth in his effecte / and this my thiÌ„keth is the diuersite bytwene the cases ¶ Doc. yet natwithstandyng the reason that thou haste made me thynketh that if a man seased of landes makethe a gyfte therof by a nude promyse without any lyuerey of season or recompeÌ„ce to hym made and grauÌ„t that he shal be seased to his vse that thoughe that ê“myse be voyde in the lawe that yet neuertheles it muste holde and stande good in conscience and by the lawe of reason / for one rule of the lawe of reason is / that we may do nothynge against the trouthe / and syth the trouthe is that the owner of the grounde hathe graunted that he shall be seased to the vse of the other that grauÌ„t muste nedes stande in effecte or els there is no trouth in the grauntour ¶ Student It is nat agaynste the trouthe of the grauÌ„tour in this case thoughe by that graunte he be nat seased to the vse of the other / but it proueth that he hathe grauÌ„ted / that the lawe wyll nat waraunt hym to graunte / wherfore his graunte is voyde But if the grauntour had gone ferther and sayd that he wolde also suffre the other to take the ê“fites of the landes without let or other interupcion / or that he wolde make hiÌ„ estate in the lande whan he shulde be requyred / than I thynke in those cases he were bouÌ„den in conscience by that rule of the lawe of reason that thou hast remembred to perfourme them / if he intended to be bounden by his ê“myse / for elles he shulde go agaiÌ„st his owne trouthe and agaynste his owne ê“myse But yet it shal make no vse in that case / nor he to whome the promyse is made shall haue no accion in the lawe vppon that promyse althoughe it be nat perfourmed / for it is called in the lawe a nude or a naked promyse And thus me thynkethe that in the fyrste case of the said two cases the graunte is nowe auoyded in the lawe by the reentre of the feoffoure / feoffour / and that the feoffour is nat bounden by his graunte neyther in lawe nor coÌ„science but that iÌ„ the secoÌ„d case he is bouÌ„d / so that the vse passethe froÌ„ hym as I haue sayd byfore ¶ Doctoure I holde me content with thy conceite for this tyme / but I pray the shewe me somwhat more at large what is taken for a nude coÌ„tracte or a naked promyse in the lawes of EnglaÌ„de / and where an accion maye lye there vpon and where nat ¶ Student I wyll with good wyll say as me thynketh
the law that if a Bisshope be vouched to warrātie the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were graūted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaīdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ Studēt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the rēt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the assēt of the chapitre shall nat charge the chapitre ī that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience c̄ ☞ Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor consciēce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reētre / it forceth litle in the lawe in whome the defaute be that the cōdicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be excepte it be in the feffoure hīselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without cōdiciō / where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot
ne yet by conscieÌ„ce / no more for the sayd two causes than it may for any other cause / this case muste of necessitie be iuged after the rules groundes of the law of the realme after no other lawe as me semeth ☞ If the patrone present nat within .vi. monethes who shall presente The .xxxvi. Chapitre STudent In the sayde summe called Summa rosella in the title Beneficio in principio it is asked / if the patrone present nat within .vi. monethes who shal present within what tyme the presentement muste be made And it is answered there that if the patroÌ„ present nat within vi monethes that the chapitre shall haue vi monethes to pÌ„sent / if the chapitre present nat within .vi. monethes that thaÌ„ the Bisshope shall haue other .vi. monethes And if he be necligent / than the Metropolitane shall haue other .vi. monethes / if he present nat than the presentement is deuolute to the Patriarke And if the metropolitane haue no superiour vnder the Pope / than the presentemeÌ„t is deuolute to the Pope And so as it is sayde there the archebisshope shall supplye the necligence of the Bisshope if he be nat exempte / if he be exempte the presentement immediatly shall fall fro the Bisshope to the Pope An as I suppose these diuersities holde nat in the lawes of the realme ¶ Doctour ThaÌ„ I pray the shewe me who shall present by the lawes of the realme if the patron do nat present within his .vi. monethes ¶ StudeÌ„t Than for defaute of the patrone the Bisshope shall present / oneles the kyng be patrone / if the Bisshop present nat withiÌ„ vi monethes / than the metropolitane shal present whether the Bisshope be exempte or nat And if the metropolitane presente nat within the tyme limitted by the lawe / than there be diuers oppinions who shall present / for some say that the Pope shall present / as it is sayd before / some say the kiÌ„ge shall present ¶ Doctoure what reasoÌ„ make they that say the kyng shulde present in that case ¶ StudeÌ„t This is theyr reason they saye that the kynge is patrone peramounte of all the benifices within the real me And they say further that the kynge his progenitours kiÌ„ges of EnglaÌ„de without tyme of mynde haue had authoritie to determine the right of patronages in this realme in theyr owne courtes / are bounden to se theyr subiectes haue right in that behalfe withiÌ„ the realme / that in that case fro hym lieth no appele And than they say that if the Pope in this case shulde present that than the kynge shulde nat onely lese his patronage peramounte / but also that he shulde nat somtyme be able to do right to his subiectes ¶ Doctoure In what case were that ¶ Student It is in this case / the lawe of the realme is / that if a benefice falle voyde / that the patrone shal present within .vi. monethes if he do nat that thaÌ„ the ordinarie shal ê‘sent but yet the law is ferther iÌ„ that case that if the patroÌ„ presente before the ordinari put in his clerke that thaÌ„ the patroÌ„ of right shal inioye his presentement / so it is / thoughe the tyme shulde fall after to the metropolitane or to the Pope / if the presentement shulde fall to the Pope / than thoughe the aduouson abode styll voyde / so that the patrone might of right present / yet the patrone shulde nat knowe to whome he shulde present / oneles he shuld go to the Pope / so he shuld fayle of right within the realme And if percase he wente to the Pope presented an able clerke vnto hym / yet his clerke were refused another put in at the collacioÌ„ of the Pope or at the presentement of a strauÌ„ger yet the patrone coulde haue no remedie for that wroÌ„ge within the realme / for the encumbente myghte abyde stille out of the realme And therfore the lawe wyll suffre no title in this case to fall to the Pope And they say that for alyke reasoÌ„ it is that the law of the realme will nat alowe an excoÌ„mengemeÌ„t that is certified in to the kynges court vnder the popes bulles For if the partie offered sufficieÌ„t ameÌ„des / yet coulde nat obteyne his letters of absolucion / the kynge shulde nat knowe to whome to writ for the letters of absolucioÌ„ / and so the partie coulde nat haue righte / that the lawe wyll in no wyse suffre ¶ Doctoure The patrone in that case may present to the ordinarie as longe as the churche is voyde / if the ordinarie accepte hym nat / the patrone may haue his remedie agaynst hym within the realme But if the Pope wyll put in an encumbeÌ„t before the patrone present / it is reason that he haue the prefermeÌ„te as me semeth before the kynge ¶ Student Whan the ordinarie hath surcessed his tyme he hath loste his power as to that presentement / specially if the collacion be deuolute to the pope And also whan the presentement is in the Metropolitane he shall put in the clerke hym selfe nat the ordinarie / so there is no defaute in the ordinarie though he present nat the clerke of the patrone if his tyme be past / so there lieth no remedie agaynst hym for the patrone ¶ Doctour Though the encumbeÌ„t abyde styll out of the realme yet maye a Quare impedit lye agaynste hym within the realme / if the encuÌ„bent make defaute vpon the distresse appere nat to shew his title than the patron shall haue a writt to the Bisshope accordyng to the statute / so he is nat without remedy ¶ StudeÌ„t But in this case he can nat be sommoned / attached / nor distrayned / within the realme ¶ Doctoure He maye be somoned by the churche as the tenaunt may in a writte of right of auouson ¶ Student There the auouson is in demaunde / here the presentement is onely in debate / so he can nat be somoned by the churche here no more than if it were in a writte of annuitie / and there the comon returne is quod clericus est beneficiatus non habens laicum feodum vbi potest summoniri And thoughe he might be somoned in the church / yet he might nether be attached nor distrayned there / so the patrone shulde be withoute remedie ¶ Doctoure And if he were with out remedie / he shulde yet be in as good case as he shulde be if the kyng shulde preseÌ„t / for if the title shulde be gyuen to the kynge the patrone had lost his presentement clerely for that tyme though the churche abyde styll voyd For I haue herde saye that in in suche presentementes no tyme after the lawe of the realme renneth vnto the kyng ¶ StudeÌ„t That is true / but there the presentement shulde be takeÌ„ fro hym by right by the lawe here it
haue no couÌ„sayle / thaÌ„ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ„ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌ„ce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌ„science / for there is no lawe that byndeth them to iÌ„structe hym / but as they do comoÌ„ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌ„cell / if the appelle be pore haue no couÌ„cell the court muste assigne hym couÌ„cell if he aske it as they muste do iÌ„ all other plees / that me thynketh they are bouÌ„de to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ„ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌ„cell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌ„t hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌ„g of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ„ perciall / therfore as wel for the indeÌ„pnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌ„cell / but whaÌ„ that a maÌ„ is indicted at the kynges sute / the kiÌ„ge inteÌ„deth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌ„g them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâ—te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌ„sayle wyll be coÌ„tented And so there is no daunger therby neyther to the couâ—â— ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ„ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre â—oytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ„ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌ„iecture or informacioÌ„ I thynke they mighte nat then byd hym pleade at his peryll ☞ The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ„ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ„ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌ„t It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌ„ge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌ„tye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ„ conscieÌ„ce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ„ shuld haue a nother maÌ„nes laÌ„de no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌ„deth with conscience bycause it is ordeyned for ministracioÌ„ of iustice / but I caÌ„ nat ê‘ceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ„ law of wrecke of the see / that is to say that if a maÌ„nes goodes had beÌ„ wrecked vpoÌ„ the see that the goodes shuld haue ben iÌ„mediatly forfayted to the kyng And it is holdeÌ„ by all doctors that that law is agaiÌ„st coÌ„science except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he
shal be alowed for his reasonable expences in that behalfe as he shal be of goodes fouÌ„de / but he shall haue no property in theÌ„ no more thaÌ„ in goodes fouÌ„d And I wolde agre that if a maÌ„ prescribe that if he fynde any goodes withiÌ„ his maner that he shulde haue theÌ„ as his owne that that prescripcion were voyd / for there is no coÌ„sideracioÌ„ how that pÌ„scriptioÌ„ might haue a lawfull beginninge / but in this case me thiÌ„keth there is ¶ Doctor. what is that ¶ StudeÌ„t It is this The kyng by the olde custome of the realme as lord of the narow see is bouÌ„de as it is sayd to scour the see of pyrates petyt robbers of the see And so it is redde of the noble kyng saiÌ„t Edgare that he wolde twise in the yere scour the see of suche pyrattes / but I mean nat therby that the kiÌ„g is bouÌ„d to coÌ„duct his marchaÌ„tes vpoÌ„ the see agaiÌ„st al outward enemies but that he is bouÌ„d onely to put away such pyratê petite robers And bycause that can nat be done without greate charge it is nat vnreasonable if he haue suche goodes as be wrecked vpoÌ„ the see towarde that charge ¶ Doctour Vpon that reason I wyll take a respite tyll a nother tyme. ☞ The .v. question of the Doctoure whether it stande with conscience to prohibit a Iury of meate drinke tyll they be agreed The .lii. Chapitre DOctour If one of the .xii. men of an enquest know the very trouth of his owne knowlege instructeth his felowes thereof they wyll in no wyse giue credence to hym / and thereupon bycause meate and drynke is prohibit them he is dryuen to that poynte that eyther he must assente to them and gyue the verdyte agaynst his owne knowlege agaynste his owne conscience / or dye for lacke of meat / howe may that law than staÌ„de with conscieÌ„ce that will dryue an innoceÌ„t to that extremitie to be eyther forsworn or to be famisshed dye for lacke of meat ¶ StudeÌ„t I take nat the law of the realm to be that iury after they be sworne may nat eate nor driÌ„ke tyll they be agreed of the verdicte but trouth it is there is a maxime an olde custome in the lawe that they shall nat ease nor drynke after they be sworne tyll they haue gyuen theyr verdit without the assente â—â—tece of the iustice / that is ordeyned by the lawe for the eschewynge of diuers inconuenieÌ„ces that might folow thervpoÌ„ / that specially if they shulde eate or driÌ„ke at the costes of the partyes / therfore if they do the coÌ„trarye it may be sayde in areste of the iugement / but with the assente of the Iustices they may bothe ere driÌ„ke as it any of the Iurours fall sycke before they be agreed of theyr verdit to sore that he may nat comon of the verdit / thaÌ„ by the assent of the Iustices he may haue meate drynke also suche other thynges as be necessary for hym / and his felowes also at theyr owne costes or at the indifferent costes of the partyes if they so agre by the assent of the iustices may bothe eate driÌ„ke therfore if the case happeÌ„ that thou now spekest of that the Iuri can in no wyse agree in theyr verdit / that appereth to the Iustices by examinacioÌ„ the Iustices may in that case suffre them haue bothe meate drynke for a tyme to se wheter they wyll agre / if they wil in no wyse agre I thiÌ„ke that than Iustices may set suche order in the matter as shall seme to them by theyr discrecion to stande with reason conscience by awardynge of a newe enqueste by settinge sines vpon theÌ„ that they shal finde in defaute or otherwise as they shall thiÌ„ke best by theyr discrecion lyke as they maye do if one of the Iury dye before verdit or if any other lyke casualties fall in that behalfe But what the iustices ought to do in this case that thou haste put by theyr discrecioÌ„ I wyll nat tret of at this tyme. ☞ The .vi. question of the Doctour whether the colours that be gyueÌ„ at the comon lawe in assises / accions of trespas / diuers other accions stande with conscience bycause they be moste comonly feyned be nat trew The .liii. Chapitre DOctour I pray the let me here thy mynde to what intente suche colors be gyuen / syth they be comonly vntrue how they may stande mith conscience ¶ StudeÌ„t The cause why suche colours be gyuen is this / there is a maxime and a grounde in the lawe of Englande that if the defendant or tenant in any accioÌ„ plede a plee that amouÌ„teth to the generall issue that he shal be compelled to take the generall issue / if he will nat / he shal be condeÌ„pned for lacke of answere / the generall issue in assise is / that he that is named the disseasoure hath done no wronge nor no disseason And in a writte of entre in the nature of assise the general issue is that he disseased hym nat / in an accioÌ„ of trespas that he is nat gyltye so euery accioÌ„ hath his generall issue assigned by the lawe / the tenaunt muste of necessitie eyther take that generall issue / or plede some plee in abatement of the writt / to the iurisdiccioÌ„ / to the persone or elles some barre or some matter by way of conclusion And therfore if Iohan at style infeffe Henry herte of laÌ„de a straunger bryngeth an assise agaiÌ„st the sayd Henry herte for that lande whose title he knoweth nat In thê case if he shuld be coÌ„pelled to plede to the poynt of the assise / that is to say / that he hath done no wroÌ„ge ne no disseason the matter shulde be put in the mouthes of .xii. laye men whiche be nat lerned in the lawe / therefore better it is that the law be so ordered that it be put in the determinacion of the iuges than of lay men And if the sayd Henry hert in the case before reherced wolde plede in barre of the assise that Iohan at style was seased infessed hym / byforce whereof he entred asked iugement if that assise shulde lye agaynste hym that ple were nat good for it amouÌ„teth but to the general issue therefore he shal be compelled to take the generall issue or els the assise shal be awarded agaynst hiÌ„ for lacke of answere And therefore to the intente the matter may be shewed pleded before the iuges rather than before Iury / the tenantes vse to gyue the pleyntyfe a coloure / that is to say a colour of accion wherby it shall appere that it were hurtfull to the tenant to put that matter that he pleadeth to the iugemeÌ„t of .xii. meÌ„ / the moost eomon coloure that is vsed in suche case is this / whan he hath pleded that suche a maÌ„
a man at the comon lawe knowyng that he hath sufficient matter to be discharged in the chauncery that he may nat pleade at the comon lawe The .vi. chapitre Fo. 17. ¶ The .vi. questioÌ„ of the StudeÌ„t / whether a maÌ„ may with conscience be of counsayl agaynst the feoffour of truste in an accion of trespas that he bryngeth agaynste his feoffe of trust for takyng the profites The .vii. chapitre Fo. 19. ¶ The .vii. question of the StudeÌ„t if a maÌ„ that by way of distres cometh to his det / but he ought nat to haue distreyned for it what restitucion he is bounde to make The .viii. chapitre Fo. 21. ¶ For what thynge a man may lawfully distrayne The .ix. chapi Fo. 23. ¶ The .viii. question of the Student whether executours be bounde in conscience to make restitucion for a trespas done by the testatoure / and whether they be bouÌ„de to paye dettes vpon a contracte fyrste / or make the sayde restitucion The .x. chapitre Fo. 25. ¶ The .ix. question of the Student / whether he that hath goodes deliuered hym by force of a legaci be bounde in conscieÌ„ce to pay a dette vpon a contracte that the testatoure ought / if the executours haue none other goodes in theyr handes The .xi. chapitre Fo. 28. ¶ The .x. question of the Student if a maÌ„ haue issue two sones dyed seased of certayne landes in fee the eldest dyeth without issue the tongest recouereth by assise of mortdauncestre the lande with damages fro the dethe of the father / whether he be bounde in conscience to pay the damages to the executours of the eldest brother for the tyme he leued The .xii. cha Fo. 31. ¶ The .xi. question of the Student what damages the tenant in dower shall recouer in conscience where hyr husbaÌ„de dyed nat seased / but she demaunded hyr dower and was denyed The .xiii. chapitre Folio 33. ¶ The .xii. question of the Student if a man knowynge a nother to haue right to his lande causeth a fyne with proclamacion to be leuyed accordynge to the statute / and he that hath right maketh no clayme within .v. yeres whether he be barred in conscience as he is in the lawe The .xiiii. chapitre Fo. 36. ¶ The .xiii. question of the Student / if a man that hath had a chylde by his wyfe do that in hym is to haue possession of his wyfes landes and she dyeth or he caÌ„ haue it / whether in conscience he shal be tenauÌ„t by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a reÌ„te enfeffe the grauÌ„te of the rente of parte of the lande cÌ„ whether the hole rente be extincte in conscieÌ„ce as it is in the lawe The .xvi. chapitre Folio 41. ¶ The xv question of the Student / if he that hath a rent out of .ii. acres be named in a recouerye of the one acre he nat knowynge thereof cÌ„ whether his hole rente be extincte in conscience cÌ„ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth laÌ„des iÌ„ fee he that hath the villayn entreth / whether he may with coÌ„cieÌ„ce kepe the laÌ„des to hiÌ„ to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questioÌ„ of the StudeÌ„t if a maÌ„ in the case next before enforme hym that is in the reuercioÌ„ of the villayn that after the dethe of the villayn he hath right to the laÌ„de couÌ„sayleth hiÌ„ to entre / wherupoÌ„ great sute charges folowe / what dauÌ„ger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpoÌ„ a feffemeÌ„t made vpoÌ„ coÌ„dicioÌ„ that the feffe shall pay a rent to a strauÌ„ger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the StudeÌ„t is vpoÌ„ a feofement in fee / it is agreed that the feffe shall pay a rente to a straunger / howe that feffement shall way in law conscience The .xxi. chapitre Fo. 51. ¶ Howe vses in lande began by what law the cause why so moche laÌ„de is put in vse The .xxii. chapitre Fo. 54. ¶ The diuersite bytwene two cases wherof one is put in the .xx. chapitre and the other in the .xxi. chapitre of this present boke The .xxiii. chapitre Fo. 57. ¶ What is a nude coÌ„tracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupoÌ„ The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the StudeÌ„t if a maÌ„ that hath two sones one borne before espousels the other after espousels by his wyll byqueteth to his sone heyre all his goodes / whiche of the sones shall haue the goodes in conscieÌ„ce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with conscieÌ„ce present to an aduouson of a churche that belongeth to the howse without assent of the coueÌ„t The .xxvi. chapitre Fo. 72. ¶ If a maÌ„ fynde beestes in his corne doiÌ„g hurt / whether he may by his owne authorite take them and kepe them tyll he be satisfied for the hurt The .xxvii. cha Fo. 75 ¶ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. chapitre Fo. 76. ¶ If a man be conuicte of heresye before the ordinarie / whether his goodes be forfet The .xxix. chapitre Fo. 78. ¶ Where diuers patrons be of an aduouson the churche voydeth / the patrons varye in theyr presentementes / whether the Bisshop shall haue libertie to present whiche of the incumbentes that he wyll The .xxx. chapitre Fo. eodem ¶ Howe long tyme the patron shall haue to present to a benefice The .xxxi. chapitre Fo. 80. ¶ If a man be excoÌ„menged / whether he may in any case be assoyled withoute makynge satisfaccion The .xxxii. cha Fo. 83. ¶ Whether a prelate may refuse a legaci The .xxxiii. chapitre Fo. 84. ¶ Whether a gyfte made vnder a condicioÌ„ be voyde if the souerayne onely breke the condicion The .xxxiiii. cha Fo. 87. ¶ Whether a couenaunt made vpon a gift to the churche that it shall nat be aliened be good The .xxxv. chapi Fo. 89. ¶ If the patroÌ„ present nat within .vi. monethes who shall present The .xxxvi. chapitre Fo. 91. ¶ Whether the presentemente collacion of all benefices and dignities voydyng at Rome belonge onely to the Pope The .xxxvii. chapitre Fo. 95. ¶ If a howse by chaunce fall vpoÌ„ a horse that is borowed who shall bere the losse The .xxxviii. chapitre Fo. 97. ¶ If a preeste haue wonne moche money by saynge masse / whether he maye gyue those goodes or make a wyll of them The .xxxix. chapitre Fo. 99. ¶ Who shall succede to a clerke that dyeth intestate The .xl. chapitre Fo. 101. ☞ Addicion ¶ If a man be outlawed of felonye / or be attaynted for murdre or felony / or that is an Ascismus may be slayne by euery strauÌ„ger The .xli. chapitre Fo. 102. ☞ Addicion ¶ Whether a man shal be bouÌ„de by the act or offeÌ„ce of his seruaunt or officer The .xlii. chapitre Fo. 104. ♣ Addicion ¶ Whether a villayn or a bondeman may gyue a waye his goodes The .xliii. chapitre Fo. 106. ¶ If a clerke be promoted to the title of his patrimony after selleth his patrimony falleth to pouerty / whether he shall haue his title therin The .xliiii. chapitre Folio 108. ¶ Diuers questions takeÌ„ out by the Student of the summes called Summa rosella Summa angelica whiche me thiÌ„keth are necessary to be sene how they stande agree with the lawe of the realme The .xlv. chapitre Fo. 111. ¶ Where ignoraunce of the lawe excuseth in the lawes of Englande where nat The .xlvi. chapitre Fo. 115. ¶ Certayne cases groundes where ignorauÌ„ce of the dede excuseth in the lawes of Englande where nat The .xlvii. chapitre Fo. 119. ☞ Addicion ¶ The fyrst question of the Doctour how the law of Englande may be sayde reasonable that prohibiteth cÌ„ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takeÌ„ as heyre bycause it is nat knowen but that the eldest brother is ded be in conscience a barre to the eldest brother as it is in the lawe The .xlix. chapitre Fo. 124. ¶ The thyrde question of the Doctoure / whether if a maÌ„ procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in coÌ„science as it is in the lawe The .l. chapitre Fo. 127. ¶ The fourth question of the Doctoure / is of wreke of the see The .li. chapitre Folio 129. ¶ The fyft question of the Doctour / whether it stande with conscience to prohibite a Iurye of meate drynke tyll they be agreed of theyr verdite The .lii. chapitre Folio 131. ¶ The .vi. question of the Doctoure is / whether the colours that be gyuen at the comon lawe in assises / accions of trespas and diuers other accions stande with coÌ„science bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. ☞ Addicion ¶ The .vii. questioÌ„ of the Doctour / coÌ„cerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade iÌ„ suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questioÌ„ of the Doctour / how the statute that was made in the .xlv. yere of kynge Edwarde the thyrde concernynge the tythe of woode maye stande with conscience The .lv. chapitree Folio 140. ¶ Finis Tabule ¶ Thus endeth the seconde Dialogue in Englisshe / with the Addicions bytwene a Doctoure of of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LoddoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC.XXXii The fyrst day of the moneth of Iuly ⸫
/ yet I meruayle howe suche an vse may be reserued against a fyne that is one of the hyghest recordes that is in the law / and is taken in the lawe of so hyghe effecte that it shulde make an ende of all stryffes / or agaynst a recouere that is ordeyned in the lawe for them that be wronged to recouer theyr ryght by / and me thiÌ„keth that great encoÌ„uenience and hurte may folowe whan suche recordes may so lyghtly be auoyded by a secrete intente or vse of the ê‘ties and by a nude and bare auerment and mater in dede / and specially sythe suche a mater in dede maye be aleged that is nat true wherby may rise great strife bytwene the parties / and great coÌ„fusion and vncertaynte in the lawe / but neuertheles sythe our intente is nat at this tyme to treate of that mater I pray the touche shortly some of the causes why there hath ben so many persones put in estate of landes to the vse of other as there hathe ben / for as I here say / fewe men be sole seased of theyr owne landes ¶ Student There hath ben many causes therof / of the whiche some be put away by diuerse statutê / and some remayne yet / wherfore thou shalte vnderstande that some haue put theyr lande in feoffent secretely to the inteÌ„t that they that haue ryght to the lande shuld nat knowe agaynst whome to bryng theyr accion / that is moche what remedied by diuerse statutes that gyue accioÌ„s agaynst pernours and takers of the profites And somtyme suche feoffemeÌ„tes of trust haue ben made to haue mayntenaunce and berynge of theyr feoffes / whiche peraduenture were great lordes or rulers in the countreye / and therfore to put a way suche mayntenaunce treble damagê be gyuen by statute against theÌ„ that make suche feoffementes for mayntenauÌ„ce And soÌ„tyme they were made to the vse of mort mayne whiche myght than be made with out forfayture thoughe it were prohibite that the freeholde myght nat be gyuen in mortmayne But that is put away by the statute of Rycharde the seconde And somtyme they were made to defraude the lordes of wardê / relyefs / harryots / and of the landes of theyr vylleyns / but those poiÌ„tes be put away by diuerse statutes made iÌ„ the tyme of kynge Henry the .vii. Somtyme they were made to auoyde execucions vpon statutes Staple / Statute MarchauÌ„te / Recognisaunce / and remedy is prouided for that that a maÌ„ shall haue execucion of all suche landes as any persone is seased of to the vse of hym that is so bounde at the tyme of execucion sued iÌ„ the .xix. yere of H. the .vii. And yet remayne feoffementes / fynes / and recoueres in vse for many other causes / in maner as many as there dyd byfore the sayde estatutes And one cause is why they be yet thus vsed is to put away tenauncy by the curtesy and tytles of dower An other cause is for that landê in vse shall nat be put in execucion vpon a statute staple / statute marchaunt / nor recognisaunce / but suche as be in the handê of the recognisour tyme of the execucion sued And somtyme landê be put iÌ„ vse that they shulde nat be put in execucion vpon a wryt of Extendi facias ad valenciaÌ„ And somtyme suche vses be made that he to whose vse cÌ„ may declare his wyl theron / somtyme for surety of diuerse couenauntes in indentures / of mariage / other bargains / and these two last articles be the chyefe principal causes why so moche laÌ„de is put in vse Also landê in vse be no asses neyther in a Fourmedone nor in an accion of Det agaynste the heyre ne they shall nat be put in execucion by an Elegit sued vpon a recouere as some men say and these be the very chyefe causes as I nowe remeÌ„bre why so moche lande standeth iÌ„ vse as there doth / and all the sayd vses be reserued by the intente of the parties vnderstande or agreed bytwene them / and that many tymes dyrectely agaynst the wordes of feoffement / fyne / or recouere / and that is done by the lawe of reason as is aforesayd ¶ Doctour May nat an vse be assigned to a straunger as well as to be reserued to the feoffour if the feoffour so appoynted it vpon his feoffement ¶ Student yes as well / in lykewyse to the feoffe and that vpon a fre gyfte without any bargayne or recompence if the feoffour so wyl ¶ Doctour What if no feoffement be made but that a man grauÌ„t to his feoffe that fro thens forthe he shall stande seased to his owne vse / is nat the vse chaunged though there be no recompence ¶ Student I thynke yes for there was an vse in Esse byfore the gyfte whiche he may as lawfully gyue away as he myght the lande if he had it in possession ¶ Doc. And what if a man beynge seased of lande in fee graunte to a nother of his mere mocion without bargayne or recompeÌ„ce that he fro thens forthe shal be seased to the vse of the other / is nat that graunte good ¶ Student I suppose that it is nat good / for as I take the lawe a man can nat commence an vse but by lyuerey of seasoÌ„ or vpon a bargayne or some other recompence ¶ Doctoure I holde me contented with that thou haste sayd in this Chaphitre for this tyme and I pray the shewe me what diuersite thou putteste bytwene those two cases that thou hast byfore reherced in the xx Chapitre and in the .xxi. Chapitre of this present boke ¶ Student I wyl with good wyll ⧠The diuersite bytwene two cases here after folowynge / wherof one is put in the .xx. Chapitre and the other in the .xxi. Chapitre of this present boke The .xxiii. Chapitre ¶ STudent The fyrste case of the sayd two cases is this A man maketh a feoffement by dede indented vpon a condicion that the feoffe shall paye a certayne rente yerely to a straunger cÌ„ if he paye it nat that it shal be lawfull to the straunger to entre into the lande In this case I sayd byfore in the .xx. Chapitre that the strauÌ„ger myght nat entre bycause that he was nat pryuey vnto the condicion But I sayd that iÌ„ that case the feoffour myght lawfully reentre by the fyrste wordê of the indenture bycause they implye a condicioÌ„ in the lawe that the other wordes that is to saye that the straunger shulde entre be voyde in lawe and conscience And therfore I sayd ferther that whan the feoffour had reeÌ„tred that he was seased of the laÌ„de to his owne vse nat to the vse of the straÌ„ger / thoughe his entent at the makyng of the feoffement were that the straunger after his entre shuld haue had the laÌ„d to his owne vse if he myghte haue entred by the law And the cause why I thynke that the