discretioÌ„ or ful age Codicgn I thinke it shal be meant of his ful age 1. That by the Ciuil law wheÌ„ maintenance is deuised to one till the ripenes of age is intended of full age for that is the coÌ„mon intendmeÌ„t the authorities of our bookes do sway to that point o l. Mela. ff de aliment ciâ—a leg Anglono In our law though there be but two ages for the heire male namely the age of 14. which is the age of discretion and the full age 2. The diuersities of ages by the Common law which is the age of 21. yeares oo Littlet lib. 2. c. 4. Sect. 8. 9. yet the heire female hath in our Lawe many ages namely at 7. yeares to haue aide to be maried and 9. yeares to deserue dower and 12. yeares to consent to mariage and 14. yeares to be out of warde and 16. yeares for the lord to tender vnto her a mariage and 21. yeares to make a feofmeÌ„t or a deed which may bind her p 35. H. 6. 4â— but by coÌ„mon intendment ripenes of age is fulnes of age full age by constitution of our law is the age of one and twentie Nomom Then I know your opinioÌ„ as touching 20. Diuision this question now let me demaund an other If the testator do deuise his maÌ„sion house which he hath in the parish of S. Andrew and that hath some appurtenaunces lying in the parishe of S. Giles whether doe these appurtenances passe by the deuise or no Codicgn The appurtenances do passe we 1. That by the Ciuill law wheÌ„ a mansion house that is in one parishe is deuised the appurtenances in an other parishe doe passe by the deuise haue good authoritie for it in our Law q L. patronus §. Sempronio ff de legat 3. Anglonomoph And me thinks the appurtenances being in an other parish doe not passe by this deuise for not to aid my self with ancient authoritie of law it hath bin lately fully vpoÌ„ ample discourse of this verie point ruled that nothing shall be said to bee appurtenant to a house saue onely the garden the curtilage and the close adioyning to the house and no other lande though other lande haue bene occupied with 2. That by the Common law land cannot be appurtenant to land the house r 23. H. 8. Br. Feosm 53. for land caÌ„not belong to a house because they be of seuerall natures for the house is a place to inhabite land is a thing to be plowed or sowed or improued so caÌ„not properly be appurtenant to a house no more then one liberty may be appurtenant to an other liberty of seueral nature as a warren to a leete or a leete to a hundred Å¿ 3. Mar com 168. Hilles case per Walpoole Rastall Morgan and all the Iustices but Cooke who spake not to this point in Patridges case agreed that land cannot appertaine to a house and this Mountague said was a ground in the law but Hales there said that a garden may containe 11. acres in quantitie and by such speciall meane be parcell of a house t 6. 7. E. 6. Comm. 85. Partriges case this is sufficient to prooue that the appurtenances doe not in this case passe by the deuise of the house without the authoritie of 27. H. 6. where it is consonantly auouched that though a man may giue an acre of land vnto me by the name of a carue a carue by the name of a Manor yet by a deede of feofment of a house land cannot be coÌ„ueied as parcel of the house u 27. H. 6. 2. Nomomath Ye haue remoued all the doubtes touching deuises which perplexed my mind we haue bin long in coÌ„ference of this title now froÌ„ reall things let vs passe to personall in which I pray yee continue your paines according to your former diligence and first ye are to speake of borowing and lending The eight Dialogue of Borowing and Lending NOmomath I would knowe the perfite 1. Diuision difference by the Ciuill lawe betwixt Mutuum and Commodatum I pray you Codicgn let me vse your help herein Codicgn They differ in our Law many waies 1. That which wee call Mutuum doth consist 1. The difference in the Ciuill law betwixt mutuum and Commodatum onely in things which are consumed by the very vse which consist in nuÌ„ber weight or measure as corne spices salt and such like CoÌ„modatum is that which by vsing is not speÌ„t as it is not deliuered by weight nor measure so neither is it restored by weight or measure as bookes apparel the like 2. In lending that which we cal mutuum the very propertie of the thing leant doth passe a L. 2. §. appellata ff si cert pet but wee doe still retaine the propertie of that which wee call Commodatum b L. rei commodatae cum l. seq ff commod 3 That which wee call Mutuum is leant for euery vse in generall as if the lender should say vnto him that boroweth Vtare fruare pro tuo arbitrio sicut dominus c L. in re maÌ„data C. mandat but CoÌ„modatum is leant for a certaine prescript vse d L. in coÌ„modato §. sicut ff commod and if any man doe vse it otherwise he coÌ„mitteth theft e L. 5. §. quin imo ff eo §. placuit instit de oblig quae ex delicto nasc 4. If the thing which we call Mutuum be made worse or perish he to whom the loane is made shall not susteine any dammages otherwise it is of Commodatum if through his faulte defaulte couin or negligence the thing leant doe perishe or become worse f L. si vt certo §. nunc viden vers quod vero l. cum qui in princ l. ad eos l. argentum cum l. sin ff commod Nomomath What persons may be bound by 2. Diuision borowing and lending Codicgnost Euery particular person euerie 1. That particular persons corporations and Churches parochial may be bound by contract of borowing and lending by the Ciuill law church being parochiall or conuentuall g In authent hoc ius porrectum C. de sacros Eccles euery vniuersitie comminaltie or corporation h L. ciuitas ibi plene per Baâ—tolum ff si cert pet yet with this restreint if the monie be conuerted to the vse of the Citie or Church i Innocent in c. 1. Ext. de pos per Ferrar in form libell de act hypoth in glos super verb. sub ead obligati Anglonomoph Indeed thereto doth our Lawe accord for before the dissolution of Abbeys monasteries the successor of a Prior should haue 2. That by the Common law Abbots Priorâ— and such religious persons might charge the house by their contract and by recognisans bene charged with an annuitie graunted by his predecessor pro consilio
with a kisse greeted such as made the like protestation of obedience and loyaltie vnto him e Plutarth in Alexand. and long before that as it seemeth it was vsed in Iudaea for vpoÌ„ these words of the Psalme ee Psalm 2. r. 12. kisse the sonne our english glosse addeth by way of interpretation in signe of homage and Tremellius and Iunius in signe of fealty sithence these times this respectiue humiliation hath spred it selfe into other countries and territories for the Duke of Gelderland did conceiue an oath in these words to Charles King of Fraunce Ego deuenio vassallus ligeus Caroli regis Francorum pro ratione quinquaginta millium scutorum auri ante festum diui Rhemigij mihi soluendorum c. e Bodin lib. 1. de repub c. 9. Nomom I desire greatly to know the originall 3. Diuision and first blossoming of other seignories Anglonomoph The most common seignorie of 1. What a Manor is and whereof it coÌ„sisteth accompt which wee haue in our Law is a seignorie by reason of a Manor which may be thus defined A Manor it an inheritance of ancient continuance coÌ„sisting of demesnes and seruices perquisites casualties things appendant and regardant customes liberties c. Nomoma What do so many things concurre to make a Manor will not demesnes and seruices serue Anglono Yes demesnes seruices will suffice as material causes to make a Manor f 26. H. 8. 4. but it is a naked Manor which hath nothing els Nomom I would gladly heare somewhat of the commencement and first creation of a Mannor Anglonomo M. Parkins doth very well originally 2. The originall of a Manor describe it in this manner The originall of a Manor was when the King did giue a thousand acres of lande or a greater or lesse parcell to one of his subiectes and his heires to holde of him and his heyres and the donee edifieth a house vpon this lande as his mansion place and of 20. acres or lesse or greater parcell he doth enfeoffe a straunger before the Statute of Quia empto terrar to holde of him and of his heires as of the same house by the plowing of 10. acres of arable laÌ„d parcell of that which remaineth in his owne possession and enfeoffeth and other of an other parcell to hold of him by carying ordure to his arable land and enfeoffeth a third man of a third parcell to goe with him in the warre against the Scots and so by continuance of time saith he a Manor is made g Park Reseruat fol. 128. Sect. 670. Yet by his fauour somewhat els goeth to the making of a Manor namely suite of Court at his house or mansion place h 33. H. 8. Br. Comprise 31. Mannor 5. and this suit must be the suite of more freeholders then one so that some doubt may be made of M. Kitchins assertion wheÌ„ he saith that in some Manors there be no tenaÌ„ts but copiholders and yet in such Mannors be Court barons i Kitch Court Leete Baron tit Manerâ—um fol. 4. for if all the freeholds do eschete vnto the Lord beside one or if he purchase al but one the maÌ„nor is extinct for it can not be a maÌ„nor vnlesse there be a Court baron belonging to it and a Court baron must be helde before suitors and not before one suitor therfore one freehold can not make a mannor k Br. Ca. Sect. 210. 23. H. 8. Br. Court baron 22. in fi 33. H. 8. Br. Suit 17. Nomom You haue well delared vnto me the 4 Diuision beginnings of Seignories and mannors but haue there bene no lawes made for the strengthning preseruing of theÌ„ for me thinks they be good meanes to increase support the wealth puissance and florishing estate of the Realme Anglono Yes our law in this case hath not either sluÌ„berd or winked For in the ancieÌ„t Statute of Magna Charta it is prouided that Nullus liber homo Statutes made for the preseruation of seignoties and Mannors det de caetero amplius de terra sua vel veÌ„dat de caetero quà m vt de residuo terrae suae possit sufficienter fieri domino feodi seruitium ei debitum quod pertinet ad feoduÌ„ illud l Magna charta c. 31. which statute as M. StaÌ„ford auoucheth is but a confirmation of the CoÌ„mon law he a most diligent and exquisite searcher of the reasons of Lawe so that I may boldly speake of him that which I shall not say impudently vntruly Faelix qui potuit rerum cognoscere causas sifteth out the reason of this Lawe For saith he if one that held by Knights seruice might haue bene suffered to haue aliened the greatest part of his land he would haue aliened the same peraduenture to holde of him but in Socage or by some small rent and then hauing so little a liuelod lefte to himselfe how had he bene able to haue done the seruice of a Knight or man of warre or what should his Lord haue had in warde to haue found one to haue performed the seruice surely little or nothing m Stamf. praerog c. 7. tit Alienati sans licence But it seemeth doubtfull notwithstanding the Statute of Magna Chart. whether the tenaunt might alien his whole tenancie or not whereupon the Statute of Quia emptores terrarum was made which permitted euerie free man to sell his lands or tenements or any part therof at his pleasure to hold of the chief Lord by the same seruice that the feoffer held prouided alwaies that by any such sale there come no lands to mortmain This Statute as M. Stamford noteth remedieth the mischief which was before found in the wardship but not the other mischiefe touching the defence of the Realme for when one mans liuing is so dismembred neuer a one of the feoffees nor the feoffor is able to doe the seruice of a warrior for want of liuelode there being so little quantity of land in euery of their hands yea much more vnable sithence this statute is the feoffor then before for before when he gaue it to hold of himselfe he reserued somewhat in lieu of the land which went from him whereas now he can reserue nothing of common right n Stamf. ibid. And the land which he retaineth in his owne hands may perhaps be of small value Nomom What is the most generall and most common seruice of all 5. Diuision Anglonomoph Fealtie for that is incident to euery 1. Fealtie is the most generall seruice in the Common law 2. And in the Ciuill law tenure vnles it be tenure in frankalmoign o Littlet lib. 2 c. 3. Sect. 13. c. 5. Sect. 22. Codicgn So it is with vs for fealtie which of vs is called fidelitas is due to euerie Lord to whom any seruice is to be performed and euery â— That by the Ciuill law the Common law and the Canon law a
retractetur l. ea quae §. quaed ff de cōtrahen emp. but if it bee a secrete fault then a distinction must be vsed for eyther it was in beginning and growing at the time of the sale so that it may easily be cured and yet not easily perceiued then the seller is not any way to be charged or els the secrete fault was some festered and inueterate disease and in such case the seller is to be charged n L. mortis C. de per com rei vend but if the thing that is sold be liquide and gustable and the buyer doth taste of it or if it be measurable and hee doth measure it as corne or if it be ponderable and he doth wey it as mettall or if he marke a beast which hee hath bought and the beast be afterward chaunged in all these cases the dammage resteth vpon 4. That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault hee is bound by the warranty by the Ciuill law the buyer o L. 1. l. q◠si neque §. si ff de per com rei vend l. 2. C. eo but if the things aforesaid be not tasted measured weyed or marked but be sold at a venture as if a man sell all his wine or oyle in such a house and doth warrant it to be good and merchantable or if he warrant the beasts that he selleth to be sound the seller in such cases is punishable p l. si vna ff de per com rei vend but if he had not warrāted it then the lawe is otherwise q d. l. 1. §. 1. C. eo l. quod saepe §. in his ff eo Anglonomoph In these cases which you haue now put our Lawe as I take it differeth very little or nothing from yours for whereas you 5. That bargaines sales matters in writing and obligatory may be auoyded by alleaging that they were made or done per menasse or by duresse say that a bargaine or sale enforced by terror may be auoyded in our Lawe euen matters in writing obligatory may be for the same cause defeated and frustrated and if a man seised of an acre of lande doe giue it in taile by deed and maketh a letter of Attourney to deliuer seisin and al this is done by duresse of imprisonment and liuerie of seisin is made this is a disseisin to the donor and the deed of gift and liuerie may by Law be auoided r 41. E. 3. 9. 2. E. 4. 19. per Littl. Park tit Graunts Sect. 17. and if a man menasse me to kill me if I wil not grant to him an annuitie of xx s. for doubt of death I grant it vnto him this graunt is voidable ſ 11. R. 2. Duresse 13. But if a man grant an annuitie to an other by threatning him that he wil cary away his goods whereupō he granteth vnto him the annuitie this grāt is not voidable by reason of such menacing because he may haue an actiō to recouer the goods if they be takē away t 7. E. 4. 21. Park tit Grāts Sect. 18. but a threatning of battery is a good cause to auoid a deed u 4. E. 2. Duresse 9. and so is the threatning of imprisonment a good cause to auoid a bonde x 8. H. 6. 12. but otherwise it is of a threatning to burne my house a 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at an other place b 38. H. 6. 13. ◠Moyle 33. H. 6 24. 2. H. 5. 10. as to that which you haue spoken of fraud deceite in bargaines and sales the warranting of a thing to be good and sound which is nought corrupt I could put many cases agreing with your assertiōs diuersities 6. That by the Common law a warrantie made vpō the concluding of a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine concluded If a mā sell vnto one certaine cloth warrant it to be of such a length and it is not of that lēgth he which buieth the cloth may haue an actiō of disceit against him by vertue of the warrātie but if the warrantie be made at some other time after the bargain he may not haue a writ of disceite c Fitzh N. B. 98. K. if a ma sell to an other seeds warrant thē to be of a certaine coūtrie if they be not so a writ of disceit will lie otherwise it had bin if he had warrāted that they should haue growne or if he should warrant that the horse which he selleth should go 50. miles in a day and a writ of deceite lieth for selling corrupt victuale without warrātie but not for selling rottē sheepe though it be with warrātie the warrāting of a thing to 7. That the warranting of a thing which is euident to the sense is no cause to bring a writte of disceite by the Common law be black which is blew where the colours is euident to sense is no cause of bringing a writ of disceit but is merely void otherwise it is if the buyer be blind or the thing that is bought be absēt d 11. E. 4. 7. 13. H. 4. 1. if a man sell a horse which hath a disease in his body or if he sel certain quarters of corne which is ful of grauel a writ of disceite will lie without warrātie e 20. H. 6. 36. ◠Paston 11. H. 6. 22. if one sell to an other certaine tūnes of wine warrāt thē to be good they be corrupt the vendee may haue an actiō vpō the case against the vendor f Fitz. N. B. 94. the actiō wil lie without warrātie g 7. H. 4. 14. according to the opiniō of some but M. Fitz. saith that there ought to be a warrātie or els no actiō will lie for in such case his taste may be his iudge h Fitz. N. B. 94. C. but where it is with warrātie the writte must say that the defend at the time of the warrantie made knew that the wine which he sold was corrupted i 9. H. 6. 53. Nomom You haue spokē enough of this matter 5. Diuision now shew me whether by a bargain sale of of the profites of land the land it selfe do passe Anglono The grant or bargaine sale of the 1. That by the Common law the graunt or sale of the profits of land is the grant of the lād it self profits of the land is the grant of the lād it self k 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy. if a mā do lease to one an acre of lād for life reseruing to himselfe the herbage this reseruation is void for he hath reserued the same thing in substance l 38. H. 6.
the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed o Exo. 21. ver 26. 27. which lawe Constant the Emperor did put in practise p l. 1. de EmeÌ„d seruor C. but all the lands goods purchased possessed by the villaine the law frankly giueth to the Lord if he wil seise claime theÌ„ q Litt ' lib. 2. c. 11. sect ' 8. 10. wretched I coÌ„fesse is the estate of such men but yet paciently to be tollerated because quaÌ„ potestateÌ„ alijs deferre voluimus ferre debemus and they whose auncestors or theÌ„selues haue acknowledged theÌ„selues to be villains must now duetifully beare the yoake though Cui plus licet quà m parest plus vult quà m licet r Gellius lib. 17. c. 14. and let the Lords of such villaines harken to that which is spoken of an heathen man diuinely Boni moderatoris est restringere potestatem Å¿ Ammian lib. 29. but to leaue these particulers to proceed more generally as one man may hold lands of another by euery of these 4 The tenure wherby a man holdeth of an honor or Manor is discribed and by examples illustrated abouesaid seruices as of his person so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any Honor which is come to his highnes by disceÌ„t from any of his auÌ„cestours he shall not holde in Capite for by the words in the first Chapter of Prerogatiua regis it is euident that if it shal be said a tenure in Capite it must be holden of the Crowne of a long time the words be ab antiquo de Corona and that cannot be when it is but newly comen to the Crowne and the statute of Magna Charta cap. 31. did as Master Stamford saith helpe this matter by expresse words if such an Honor came to the Crowne by way of escheate but not if it came by way of discent or any other way and that statute doth set 5 Certain honors which be not of the auncientnes of the Crowne forth certaine honours by name which be not of the auncientnes of the Crowne that is to say the honor of Wallingford NotinghaÌ„ Bullingbrook and Lancaster therefore he that holdeth of the King as of these Honors holdeth not of the king in chiefe t Stamfords Praerog c. 7. but other honors there be which of so long time haue been annexed to the Crowne that to hold of theÌ„ is to hold in chiefe for wheras one held of the king as of a certaine honor to 6 Some honors which are annexed to the Câ—owne yeeld a certaine rent to the keeping of the Castell of Douer this hath beene taken to be a tenure in chiefe and so it hath been thought if one held of his highnes as of the Honour of the Abbe of Marle u Fitz. nat bre 256. and Anno vndecimo of king Henry the seuenth the honor of Ralegh was annexed to the Crowne therefore if any man hold as of that honor it is a tenure in capite x 34. H. 8. â—r Cas 230. and therefore there is a good rule in the Register of Writtes that a man shall not make a fine for alienation of lands helde of the King as of his honor but for lande helde in Capite onely for there be certaine honors which be held in Capite there is a certain writ that the Eschetor shal not greeue any maÌ„ for alienation of land held as of an Honor for that is as of an honor and not as of the kings person no Fine shall be paied for the alienation of such lande a Regist ' 184. Br. Alienac ' 33. And whereas it was found by Office that lande was helde of the Queene as of her principalitie of Wales by the seruice of goinge with the Prince in Warre at the charge of the Prince per CuriaÌ„ b 18. Eliz. Dy. per Curiam This is no Tenure in capite and Master Finchden putteth this diuersity that where an Honour is seised into the Kings handes if a Manor held of the Honor do escheat to the king by a common Escheate if the King alien the Manor to holde of him the tenant shall hold by the same seruices as hee helde by before of the Honour for the Honour seemeth to bee vice domini in this case and as a meane Lord but if it come to the King by forfaiture of warre or by some other treasoÌ„ or by some other cause which toucheth the Kings person and the King seiseth and enfeoffeth an other the feoffee shall holde of the King as of his Crowne c 47. E. 3. 21. per Finchden and though the Statute of Magna Charta Cap. 31. before recited doe say Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingforde Bolen c. non faciet aliud seruitium quam fecit praeante yet this is to be intended of a common Escheate and not otherwise d 19. H. 8. 〈◊〉 Ca. 114. So a man may holde of the King as of his Manour and yet not holde in Capite for it was found by office that one helde land of the King as of his Manor of Plimpton and other landes as of his Manour of Darington which came to the king by the attainder of treason of the Marquesse of Exetor this hath beene thought to be no Tenure in capite for tenures in chiefe did begin in auncient time vpon the graunts of Kings to defende them against rebelles and enemies and at this day the Queene may create a tenure in Capite if shee giue lande to holde of her person otherwise it is if it be giuen to hold of an Honor Manour c. for a Tenure in chiefe must be immediatly of the King and is created by the King onely for a tenure created by a subiect cannot be a tenure in chiefe nor haue any prerogatiue annexed vnto it and if the tenants of an Honour should holde of the King in Capite the Honour when it came to the King should bee destroyed which may not be and there is no reason that the tenant in whom there is no default should be preiudiced in his tenancie by the offence of the Lorde e 30. H. 8. 44. Dyer and if the Q. purchase a Manour of which I. S. holdeth by knights seruice the tenant shall holde as he helde before and he needeth not to tender his liuerie nor primer seisin for he doth not hold in Capite but as of a Manour and if his heire be in ward by reason thereof he may haue an Ouster le maine at his ful age and if the Queene graunt the Manour afterward to W. N. in fee excepting the seruices of I. S. now I. S. holdeth of the Queene as of her highnesse person yet hee shall not holde in Capite but by such seruices as he
tenancie of whom fealtie is demaunded and he refuseth to perfourme it ſ C. vnico que fuit prima causa §. sed non est alia so that the Lorde doe demaunde fealtie at due times and allowed by Lawe because if he should demaund it euerie yere the vassalle should not loose his tenancie t §. si vastallus si de feud de funct ' §. licet vastallus c. domino guerrā in tit hic finit lex c. also the vassall looseth his tenancie if 2 Many causes of the tenants forfaiture in the ciuil Law being at full age he be not in expedition with his Lord or if he doe not depute some able person for the discharge of the duetie or if he doe not pay to his Lord stipendia militiae pro quantitate feodi when he is lawfully demaunded u de pace iuram firm §. fin and that is said to be a due quantitie of a knights see whē the vassall which goeth not in war nor sendeth a sufficient man doth yeelde the halfe part of the yerely value of his tenancy to the Lord. x C. Imperialem § firmiter de prohi feud alien p Freder Angonomo There be many conclusions in our 3 Some cause of forfaiture at the common Law Lawe aunswerable to that which you haue said for it hath bin affirmed that if a man holde his land of his Lord by homage and fealtie and he hath done homage and fealtie to his Lorde and the Lorde hath issue a sonne and dyeth and the seignorie discendeth to the sonne in this case the tenaunt which hath done homage to the father shal not do homage to the sonne because when a tenaunt hath once done homage to his Lorde hee is excused for tearme of lyfe to doe homage to any other heire of the Lord a Litt ' lib. 2. c. 7. sect 13. But if a man bee seised of a Mannour and an other man holdeth lande of him as of the foresayde Mannour by homage and hath done his homage vnto him and a straunger bringeth a Precipe quod reddat against the owner of the Mannour and recouereth the Mannour against him and sueth execution in this case the tenaunt shall agayne doe homage to him that recouered the Mannour though he haue done homage before because the estate of him who receiued the first homage is defeated by the recouerie and it lyeth not in the mouthe of the tenaunt to falsifye or defeate the recouerie which was against his Lorde b Litt ' ibid ' sect ' 17. And if if a tenaunt which ought by his tenure to doe homage to his Lorde come to his Lorde and say vnto him that hee is readie to doe him homage for the tenements which hee holdeth of him and the Lorde doth then refuse to receiue it after such refusall the Lord cannot distreigne the tenaunt for the homage before the Lorde require him to doe homage vnto him and he refuseth c Litt ' lib. 2. c. 7. sect ' 19. 20. and he that holdeth by Knights seruice of the King neede not goe to warre with him if hee will finde a sufficient person conueniently armed and fitte to goe with the King and this seemeth good reason For it may bee that hee that holdeth by such seruices doth languishe in sickenesse so that he cannot goe nor ryde And a Feme sole which holdeth by such seruices may not in such case goe in proper person and it hath beene said that Escuage shall not bee graunted vnlesse the King goe to warre himselfe in proper person and after such a voyage royall it hath beene likewise affirmed that by authoritie of Parliament Escuage shall be assessed and put in certaine how much euery one that holdeth by an entier fee of Knightes seruice which was not with the King by himselfe or by an other for him shall pay to his Lord of whom he holdeth by Escuage as if it be ordeigned by authoritie of Parliament that euery one which holdeth by an entier fee of Knights seruice that was not with the King nor any other c. for him shall pay to his Lord fortie shillinges then euery one that holdeth of his Lord by the moitie of a Knights fee shall pay to his Lorde fortie shillinges and he that holdeth by a fourth parte tenne shillinges and soe pro rata d Litt ' lib. 2. e. 3. sect ' 5. 6. 8. 7. E. 3. 29. Nomom Resolue me I pray you whether when 9. Diuision the tenant hath committed treason or felonie and thereof is conuicted and attainted he shal as to his tenancie incurre any preiudice Codicgn In such case either the offence is 1 Whether when the tenant hath cōmitted felony or treason and is attainted he shall suffer any preiudice in his tenancie 2 A diuersitie in the Ciuil law where the offence is committed against the person of the Lord and where against the person of a straunger committed against the person of his Lord and so he doth preiudice all these that are to succeede him in the land by order and course of Law depriuing them of the aduantage of inheritance e Cap. vnico §. denique in si in illis verbis si tamen fuerit paternumt it que fuit prima causa ben amitt or he hath offended against some other person and not against the person of the Lord then the children onely and such as were to take benefit by the person of the father as issuing from his bodie are repulsed from the inheritance f §. Si vassallus culpam si de feud◠defunct ' and then it goeth to them of the kinred which are nearer in degree g Gloss super verbo reuocabuntur in d. si vassallus culpam Anglonomoph By our Lawe where the tenant is outlawed of felonie it is in the Lords election to haue a writ of Escheate supposing that his tenant was outlawed of felony or that he dyed without heire for by the attainder the bloud is corrupted h 48 E. 3. 2. But it seemeth by Nicholses case 3 That by the common law by attainder of felonie or treason the bloud is corrupted and in the one case the land shall eschete to the king and in the other to the immediate Lord. that the partie attainted ought to bee dead before the lande can escheate for according to the opinion of Dyer and Barham in the Kinges case after the attainder and till Office be found the see simple shall bee in facto in the person attainted so long as he shall liue for as he hath a capacitie to take land of a new purchase so he hath power to hold his auncient possessions and he shall be tenant to euery Precipe and if he died before office found and the land be held of the King the lande shall goe to the King in nature of a common eschete i 18. Eliz. Com̄ 477. Nichols case but this is to be intended in
but it is a question with vs if one deuise to his wife the third part of all his goods and chattels whether this shall be intended as they shall be after the legacies or debts paid or as they were at the time of the deuise d 30. H. 8. 59. Dyl But this doubt of later time hath receiued decision for where a man deuised the 2. That by the Common law if a man deuise the third parte of his goods to his wife it shal be so rated as they weare at the time of the death of the testator 3. That the Queene may graunt a thing in action moitie of his goods to his wife and died it was ruled that she shall haue the goods as they were at the time of the death of the testator if the testator be not indebted e 5. Mari. 164. and as for graunting things in action we haue this positiue grounde in law that the Queene may grant ouer her rent and condition of reentrie for the nonpaiment of it and her action or any thing that her highnes hath in action but contrariwise it is of a common person f 2. H. 7. 8. Nomom Now shew me of what thinges and 4. Diuision in what sorte iointenancie or tenancie in common may be Codicgn It may be of all such things as lie in 1. That iointenancie by the Ciuil law may be of all such things as lie in contract contract as lambe milke woll cheese and corne and whatsoeuer is gained by the labour of oxē or the harrowing of horses or the letting to gift of kine g L. si nō fuerint ff pro soc and by the nature of the contract when two are agreed to be tenants in common of the profites comming and rising of beasts the losse of the beastes perteyneth onely to him in whom the very propertie of the beastes be but the charge of the pasture and labour which is to be taken about thē belongeth onely to him who is admitted to be tenant in common for the profites 2. That the limitation of tenancie in cōmon is by the partie but the construction of it by the law The possession in cōmon of beasts doth cōtinue vntill they haue yong if the possessiō were limited at the first vntill they had yoong and if two be agreed to be tenants in common of all the profites of a certaine ground the tenancie in cōmon ceaseth not till all the profites be taken and therefore if two be agreed to be tenants in common from the Calends of March vntill such time as their fields are new to be tilled sowne they shal be tenants in common vnto the Calendes of Nouember because betwixt both the Calendes the fields may be tilled sowne or suppose that they haue contracted a tenancie in common of kine from the Calendes of Iuly vntill they haue yonge this tenancie in cōmon shall continue till the Calends of Aprill next ensuing because for the most part they are wont to calfe betwixt both the Calends h L. si conuenerit in princ ff pro socio Anglono A parson may grant to another the moitie of his tithes for years whether it be lamb wooll or corne yet he hath no possession of them because they are not yet in esse i 38. E. 3. 6. but yet he hath an interest in them may grant the moitie of them as wel as one may grant to another that it shall be lawfull for him to take euery yeere a Deare or a Hare or a Cony within his soile this is a good grant k 10. H. 7. 30. and by the same reason that he may grant his tithes he may grant the moitie of them and so make a tenancy in common Nomoma Suppose the case to be this that two 5. Diuision iointenants or tenants in common haue agreed to make a common wall about their ground or that they should plant a certain number of trees in their common soile and one of them alieneth his part whether is his assignee bound to performe the couenant 1. That an assignee in the Ciuill lawe is bound by the the couenant of his grauntor Codicgn In our law there be many authorities that he ought to performe the couenant l L. quaesit §. quod a Titio ff de praeca arg l. in hoc iudiciū §. penult ff de cōmun diuid ff de damn infect l. fluminū §. adducitur ff pro soc l. 1. demque Anglonomoph To that our law agreeth for if a man lease a house and land for yeares by deed indented and the lessee doth couenant that he 2. That by the Common law in such case the assignee is bound by the couenant and his assignees shall repaire the house and after the lessee granteth ouer his terme and the assignee doth not repaire it an action of couenāt lieth against the assignee for this is a couenant which runneth with the land m 25. H. 8. Br. couen 32. Deputie 16. and according to M. Brookes opinion it lieth also against the lessee after that he hath assigned ouer his terme if he bring seueral writs of couenāt against thē both there is no remedie till he haue had execution against one of them and then if he sue the other he may haue an Audit a querela n Br. Couen 32. Nomom I will content my selfe at this time with your instructions touching iointenants tenants in common will passe ouer to the examining of the course of exchaunges The sixth Dialogue of Exchaunges NOnomath What if two do deale together 1. Diuision after this sort the one of thē giueth a horse and x. s. for the horse of an other man whether is this a bargaine and sale or an exchaunge Codicgn In such case either it is intended and 1. That by thē Ciuill law cōtracts for a certaine price are not exchaunges vttered betwixt the parties that the one shal haue such a thing for a certaine price as namely that A. shall haue the horse of B. for ten pounds and B. taketh of A. sixe pounds and an other horse in full paiment and satisfactiō this is cleerely a bargaine and sale a L. tenetur §. 1. de action emp. but if A. had giuen B. a horse for a horse that had bene an exchaunge b Ar. I. item si pretio §. 1. ff locat Anglonom By our Law there must bee the expresse 2. That by the Common law the word Excambium must be vsed in the exchaunge word of exchaūge mētioned otherwise a thing cā not be said to passe by exchaūge for the word excambiū only maketh an exchaūge as the words liberūmaritagiū onely doe make frankmariage for if I giue to one an acre of land by deed indented and he by the same deed giueth to me an other acre for this acre nothing passeth except liuerie be made and then the
liuerie onely transferreth the land otherwise it had beene if the word exchaunge had beene vsed in the deede and the estate which the parties are to haue in the land exchaunged ought to be equal 3. That the estates most be equall and Choke saith that both the things exchanged ought to be in esse at the time of the exchaunge and therefore an exchange of land for rent granted de nouo is not good but an exchaunge betwixt 4. That the things exchaūged must be in Esse a rent and a common which are in esse at the time of the exchaunge is good and so it is of land and rent c 9. E. 4. 21. p Brian Choke Nedham And according to his opinion an exchange of the right which the dissesee hath to the land wherof the disseisin is committed for an acre of land in which the disseisor hath right is no good exchaunge d 3. E. 4. 10. p Choke And where the worde exchaunge is mentioned though the conueyance be but an Indenture of couenants yet it shall amount to a good exchaunge for an Indenture of couenants was made betwixt a Prior and the Maister of Gunnell hall in Cambridge that the Maister should haue three acres of land to him and to his successors in perpetuall exchaunge for one chamber of two chambers to be assigned by the said Maister at his election to the said Prior and his successors this hath beene held to be a good exchaunge though it be by way of couenant e 9. E. 4. 38. And though it be auouched for lawe that if by a deed of composition it be agreed betwixt two that the one shall haue such landes in allowance of other lands belonging to him that this is a good exchaunge f 3. E. 3. 19. yet I doubt whether an exchange may be accōplished by such counteruaileable words but a man may 5. That an exchaunge is good though the one parte of it doe mure by way of extinguishment giue land in exchāge for a release which cannot mure but only by way of extinguishmēt though there be some authoritie against it g 7. E. 3. 37. therefore Nortons opiniō is iustly denied by Thorpe wheras he held that in euery exchaūge there must be a mutuall transmutation of the possession h 16. E. 3. Exchaunge 2. for if a man release to an other his estouer of wood which he is to take yeerely in his wood in exchaunge for land giuen to him in exchaunge for the same release this is a good exchange though the release take effect by way of extinguishmēt but it is as great a profite and aduauntage to the tenant to be discharged of the estouers as if so much had bene graunted vnto him out of an other mans wood i Park tit Exchaun 53. 31. E. 1. Exchange 16. and the Law well perceiueth the profite which a man may haue by way of extinguishment for if the father being tenant in taile doe alien the land entailed with warrantie and hath a rent charge in fee issuing out of the lande of his Sonne which doth discend vnto the sonne this is a good assets in value notwithstanding the extinguishment k 31. E. 3. Garrantie 29. Nomomath Whether may Ecclesiasticall benefices 2. Diuision promotions and liuings bee exchaunged or no. Canonolog The incumbents may not by their 1. That incūbents may not exchaunge their benefices by the Canon law sole authoritie chaunge their benefices but they may exchaunge them Interueniente authoritate Episcoporum ad quos pertinet collatio but there is a question in the glosse whether the Chapiter 2. That the Chapiter may warrant permutations sede vacāte in such benefices wherein they haue interest or authoritie may authorise such permutations sede vacante l C. quaesitū de rer permut glos in Clem vnica E. tit and it resolueth briefly that in such things wherein they haue a common collation either by reason of authoritie or by reason of interest and consent it may authorise exchanges sede vacante but in other cases not m Glos in d. Clem. vnic super verbo Conferantur Anglonomophylax The reason in our Lawe 3. That by the Common law Ecclesiasticall persons their patrons and ordinaries ioyning together can not make any good exchange of Ecclesiasticall benefices wherefore such ecclesiasticall persons nor their patrons and ordinaries though they all agree can not exchaunge the inheritances of spirituall liuings is because the statute strictly prouideth that no alienation be made in mortmaine for a thing which was amortised before may be again amortised and therefore if a religious person do appropriate a Church which is of his owne presentation without the kings licence it is forfeited though it were amortised before n 19. E. 3. Mortmain 8. and in such case where one Abbot did alien to an other the collusion was to bee enquired of as well as in the alienation of land made by a secular man to a religious corporation o 16. Assis pl. 1. for the wordes of the Statute of Mortmaine bee very 4. That the statute of Mortmain is most strict and pregnant in wordes strong and large against such purchasors which are thus Prouisum est quòd nullus religiosus emere vel sub colore donationis aut termini aut alterius tituli cuiuscunque ab aliquo recipere aut arte vel ingenio sibi appropriare praesumat per quod terrae tenementa huiusmodi ad manum mortuam quocunque modo deueniant p Statut. de religios 7. E. 1. Mortmain 3. and therefore the case was that a femme sole purchased lande in fee and tooke to husbād the villaine of a Bishop which he had in right of his Bishoprike and the Bishop entred and this was adiudged a mortmain for according to Wickinghams opiniō the words of the Statute of Mortmaine are quocunque modo otherwise it shall be if the tenant of the Bishop do die without heire q 41. E. 3. 21. but 19. Henr. 6. the contrarie is held to be Lawe but if the villaine himselfe purchase lande it is helde there that in such case a Bishop or an Abbot can not enter r 19. H. 6. 56. but Thorpes opinion is 41. E. 3. that though hee may not enter in the case aforesaid yet hee may reteigne the land against the villaine and the king may afterward ratifie his estate which is no more in plaine tearmes then that an estate so gained is voidable onely and not voide and as to the exchaunge of benefices betwixt parson and parson it is seuerely punished by edict of Parliament in our realme ſ 31. Eliz. Nomomathes I will not stay longer vpon the inquirie of exchaunges for you haue opened vnto mee the nature of them and how farre they extende in these few cases now let vs passe to a larger examination of the doubts and pointes of deuises and legacies The
that the deuisee be capable at the time of the death of the testator so it is likewise by our law for though a man may not graunt nor giue lands to his wife during the couerture because they both are but one persoÌ„ in law yet by custome heretofore which the CoÌ„mon law did fauour and now by statute he might or may deuise his lands to his wife to haue in fee simple or otherwise because such deuise taketh not effect till the death of the deuisor p Littl. lib. 2. c. 10. Sect. 8. 27. Assis pl. 60. and then they are not one person q 24. H. 8. Br. Deuis 34. Nomom Now let me know what things may 3. Diuision be deuised Codicgn Whatsoeuer things the testator hath 1. That by the Ciuill law all such things may bee deuised as the testator hath in his owne right at the time of the deuise as in his owne right r ff de legat 2. l. vinum §. si reÌ„ tuam if he happen to deuise a thing which is not his owne but an other maÌ„s the executor is by our Lawe compelable to buy it and to giue it to the deuisee by vertue of the will or if the owner will not sell it hee ought to pay the very value and full estimation of it to the deuisee Å¿ ff de legat 3. l. dubium §. vlti and if lande bee bought by the deuisor for which he hath not payed any monie or not all the monie if he died and the deuisee will haue the land hee must pay the monie and so enioy the land t L. 39. §. IdeÌ„ Iulianus de legat 1. but if the deuisor haue solde lande and hath not receiued the monie and he deuiseth the lande so solde to I. S. the deuisee in this case shall not haue the lande solde but the monie that is to bee payed for it for an argument is rightly drawne ab augmento ad diminutionem u L. si ex toto eo tit so that this conclusion may bee made is the thing bought due to the deuisee then the deuisee ought to pay the monie is the thing not solde not due to the deuisee then hee must haue the monie that is to bee payed for it Anglonomoph In our Lawe the making of a testament 2. The three degrees of a testament by the Common law hath three partes Inception which is the writing of the testament Progression which is the publication of it Consummation which is the death of the partie and when after the deuise the deuisor purchaseth other lands it caÌ„not 3. A differeÌ„ oâ— in the CoÌ„mon law where a man deuiseth a thing wherof he is not seised particularly and by name and where not be intended by any possibilitie that hee would haue them to passe by the deuise for there is nothing conteined in the will which doth purport such intent but it was held in Brettes case that if a man deuise land in certaintie as the mannor of Dale or white acre and he hath no interest nor possession in them at the time of the making of the will and after the doth purchase it in such case it shall passe to the deuisee for then it shall be taken that his intent was to purchase it as it is said 39. Henr. 6. 13. and it was likewise sayd that the statutes of 32. and 34. Henr. 8. required that the deuisors should bee seised of the land deuised at the time of the deuise for the words be Euerie person hauing or which after this acte shall haue c. a 10. Eli. ComÌ„ Brets case per Louel touts les Iust Nomom I pray you let me know more particularly what things may be deuised Codicgn A thing may be deuised which is not 4 That things which are not in esse at the time of the deuise made may be deuised in rerum natura at the time of the deuise if afterwarde it may be as the corne which shall grow in such a soyle or the lambes which shall come of his flocke of sheepe in such a field b Instit de legat §. ea quoque res ff de legat 1. l. quod in rerum but if the testator doe deuise tenne quarter of corne comming of the corne which shall growe in such a soyle or two tunnes of wine of his grapes in such a vineyard or tenne lambes of such a flock though so much corne or wine or so many laÌ„bes doe not arise of the thinges abouesaid yet the heire or executor is compellable by law to make them good integraliter because he may seeme to haue mencioned the soile the vineyard and the flocke rather by way of demonstration then by way of condition c l. quid testamento in prin ff de leg 1. l. Paulo Callimacho §. Iullanus Seuerus ff de legat 3. l. Lucius ff de alim leg but if the testator doe deuise certaine goods or a certaine summe of money to I. S. and in his life time after recouerie of his health he giueth the goods or payeth the money to the said I. S. now without any alteration of the deuise in the will the executors shall bee discharged of perfourming the deuise after the death of the testator d l. Lucius Titius in testamento in prin ff de legat 2. gl in Clem. dudum de Sepultur Angonomoph It is said in our bookes that if a 5 That the deuise of tenaÌ„t for terme of life or tenant iâ— dower of corne growing at the time of their death is good man which hath estate for life or tenaunt in dower doe deuise their corne growing vpon the lande at the time of their death this is a good deuise and hee in the reuersion shall not haue the Corne e 4 H. 3. Deuis 26. But if a man seised of lande in fee as in right of his wâ—fe doe lease the same land for yeares to a straunger and the lessee soweth the lande and after the woman dyeth the corne being not ripe in this case the lessee may deuise the corne growing vppon the lande and yet this estate is determined and it was certaine but a thing non-certaine was the cause of the determination of it f 7. E. 3. 67. 7. E. 4. 17. Park 99. sect 513. 10. E. 3. 29. And if a man bee seysed of lande in the right of his wife and sowe it ad deuiseth the corne growing vpon the lande and dyeth before it bee seuered the deuisee shall haue it and not the wife but otherwise it is of hearbes or meadowe growing vpon the lande and not seuered at the time of the death of the deuisour g 7. Ass pl. 16. And if tenaunt in taile of lande lease the lande for life and the lessee soweth the lande with Corne and the tenaunt in tayle dyeth and the issue recouereth in a Formedon in discender before the
14. Diuision a common coÌ„tingent The testator ordeigneth by his will that his daughters shall be married by the appointment and disposall of Titius his brother the Testator dieth Titius also dieth before he hath disposed any thing of the maryage whether may the mariage and the portion be arbitrated disposed by some other or no as namely by the executor of Titius Codicgn I thinke the executor of Titius may 1 That by the Ciuil law if a man ordeigne by his wil that his daughters shall marry by the appointment of Titius that Titius his executor may dispose of the mariage well enough order and accomplishe this matter according to the degree of the daughters the wealthe of the father and the number of the children a l. si filiae pater ff de legat 3. Anglonomoph I thinke quite contrary because there is a confidence reposed specially incommunicably in the person of Titius and there be many cases in our Lawe to proue this assertion Cesty que vse before the statute of 27. of king H. 8. did deuise that A. B. and C. his feoffees should 2. That by the Common law where a confidence is reposed in certaine persons it is incommunicable to others sell his land whereof they were seised to his vse A. dieth it was helde that B. and C. could not sell the land otherwise it had beene if he had spoken generally of his feoffees without naming them specially b 2. Elizab. 177. Dy. Likewise a man deuised that after the death of his wife his land should be sold by his executors together with the assent of A. and maketh his wife and a stranger his executors and dieth the wife dieth A. dieth the authoritie of selling the land is fully determined and gone c 5. Eliz. 219. Dy. and so it was held per curiam that if a man did declare his will that B. and C. his executors should sell his land and the testator dieth and B. dieth and C. maketh M. his executor and dieth and M. selleth it this sale is void for the trust is strict but M. Brudnell saith that if a man deuise by his will that H. and N. his executors shall sell his land and they refuse to be executors yet they may sell the land because they are named by their proper names d 19. H. 8. 9. But where the executors are not specially named for the sale of the land there one of them onely may well enough sell the land for the case was that a man did deuise all his lands to his sister except one manor which he appointed to pay his debts and he made two executors and died the one executor died yet the other may sell the mannor and pay the debts per intentionem testatoris the words of the deuise as touching the sale were generall which I appointe to pay my debts e 23. Eliz. 371. Dy. Nomomath I haue often heard that a deuise 15. Diuision shall be taken most largely and beneficially for the profite and auaile of the deuisee I praie yee let me heare some cases which may coÌ„firme this vnto me Codicgnostes If the testator doe deuise all his 1. That by the Ciuill law deuises are for the most parte construed for the deuisce horses to one all his horses and mares shall passe by the deuise f L. legatis seruis §. iuÌ„ctis ff de legat 3. and if the testator doe deuise all his beastes all fourefooted cattaile which are beasts of pasture doe passe by this deuise g D. l. legatis §. pecoribus if a flocke of Sheepe bee deuised the Lambes and the Rammes are conteined in the deuise h L. seruis legat §. si ff but if he deuise his Sheepe without saying his flocke of sheepe his lambes do not passe i D. l. legatis seruis §. ouibus and if a man deuise his plough horses to one and after the deuisor selleth the horses and buyeth and vseth mares for his plough and dieth now the mares shall passe by the deuise k L. qui duos mulos ff de legat 3. and if the testator doe deuise to one all his woolle all his woâ—lle as wel washed as not washed spunne as not spunne generally al his woolle which is not wrought into clothe is deuised l L. si cui lana in princip in §. lanae ff de legat 3. and herein it differeth from lyne because vnder the name of lyne euen lyne that is wrought or linnen is conteined m D. l. si cui lana §. lino so if a man deuise all his siluer to one his siluer cuppes and all his other vessels of siluer doe passe n L. cum aurum ff de auro argent leg in princip l. lana §. fi ff de legat 3. but no siluer coine doth passe o L. Quintus in prin ff de aur argent leg otherwise it had beene if he had deuised all his siluer wrought or laboured p Ibid. for if the testator deuise to one all his cloth which is in such a cheste no garments nor apparell are contained within the deuise but onely the rude and plaine matter of clothe because when marble is deuised the imageries of marble are not meant but the grosse matter of marble q L. quaesitum §. illud fortassis ff de legat 3. and if wood be deuised onely wood fit to be burnt is comprehended in the deuise but not timber r L. ligna ff de legat 3. yet the testator his meaning is in these later cases to be examined by circumstances Å¿ L. pediculi §. labeo ff de aur arg leg Anglonomoph And by our Lawe the fauour of which is equally diuided betwixt the aduantage of the deuisee and the intent of the deuisor Deuises are often times ampliated and extended by beneficiall construction for the helpe and profite of the deuisee if they be not repugnant to 2. That the Common law so fauoureth deuises that it vpholdeth equitie the correspoÌ„dence of reason law but if they bee repugnant the Lawe then as a Lady iealous of her Iustice doth vtterly frustrate and make voide the deuises That which I affirme shall by cases and examples better appeare The L. Latimer did deuise to his Ladie and wife the third part of all his goods and chattels and great question was made whether this deuise should be intended of the third part of the goods and chattels as it should be after the dettes and legacies paied or as it was at the death of the testator and whether the third parte of the dets due to the testator doe passe by this deuise but it was agreed by the Iustices that by the woord vtensils Plate and Iewels doe not passe and if a man deuise to his daughter fiue huÌ„dred pouÌ„ds for and towarde her mariage and she dieth before the mariage by the opinion of the greater parte