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
free gifts which proceede merely of a mans good will and beneuolence others may be called Compensatorie because they are giuen for some cause or consideration Gifts or graunts of the first kinde are such as I nowe shall recite out of our bookes First the Queene may graunt 2 What is wrought by the Queenes graunt ex mero motu to one lande ex mero motu and though her highnesse doe rehearse some consideration in the patent of her graunt which is not true as if the consideration bee that whereas the grauntee hath done her Maiestie good seruice on the Sea or beyond the Sea or in her Maiesties warres or in some other busines though the consideration be meerley supposed and not true and therefore no good consideration in Law yet the words ex mero motu do make the grant good g 26. H. 8. 1. per Fitz. and whereas the Queene ex certa scientia mero motu doth confirme a graunt supposing that a graunt was made before where in truth there was no such thing it is held that her highnes shall be concluded to say that no such graunt was made otherwise it had bin if this worde informamur had 3 What is wrought by her Maiesties graunt by words of Informamur bin vsed in reciting the graunt h 9. H. 7. 2. For if her highnesse graunt any thing vpon the false suggestion of the partie this graunt is voide because shee is deceiued in her graunt i 11. E. 4. 1. per Littlet ' and wee haue a rule Si suggestio non sit vera literae patentes sunt vacuae k 3. H. 7. 6. For when the graunt is made vpon the suggestion of the partie the wordes of the graunt shal be taken strictely but when it is ex mero motu it must be construed and interpreted according to the Kings intent and as fauorably for the grauntee as reason will permitte l 21. E. 4. 25. Abbe de Walthams case per Browne Genney and if a common person do without consideration giue to I. S. his goods indefinitly al his goods do passe and if a common person doe by deede enrolled enfeofee the Queene of his lands without any consideration the Queene shal be seised to her owne vse as hauing such prerogatiue in her person that she shall not bee seised to the vse of any other m 28. H. 8. 7. Dyer Bokenhams case per Knightley Gifts made vpon consideration may be explained by cases likewise drawne out of our bookes though in a common persons case the consideration which is mencioned be false yet the vse shall be to the feoffees as appeareth by Wilkeses case who reciting by his deede falsely 4 Whether vpon a false consideration expressed an vse shal be raised in a common persons case that in consideration of 700. li. payed he had enfeoffed A. and B. to haue and to holde to them and to their heires to the proper vse and behoofe of the said A. and B. in perpetuum afterwarde by Office it was founde that Wilkes was seised of the lande and that he helde in Capite and I. was founde to bee his heire and of full age yet it was helde that the heire should not be receiued to auerre the consideration false against the acknowledgement of his auncestor n 1. Eliz. 169. Dy. Wilk case and so it hath beene helde in Villiers his case that where money is the consideration expressed an other consideratioÌ„ shal not be auerred neither shal a Causa 5 That a consideration may be auerred which is not repugnant to the vse expressed matrimonij prelocuti be auerred where an other consideration is expressed but where no consideration is expressed there a consideration may be auerred or where the consideration auerred is not repugnant to the consideration expressed in the deed o 4. Mar. 146. Dy Villier case And though the consideration be not valuable yet it may bee a good consideration to raise or to alter an vse for in Sharingtons case it hath bin adiudged that the affection of the father for the prouision for the heires males which he may beget and the affection which he hath that the lande may remaine in his bloud and name be 6 That an vse may be altered by a consideration not valuable causes sufficient to make vses in the lande for as it is there said Naturae vis maxima Natura bis maxima p 8. Eliz. 298. ComÌ„ Sheringtons case And so betwixt brethren pro fraterno amore is a good consideration to raise an vse q 13. Eliz. 302. Dyer and a man leuied a fine to the vse of himselfe and such wife or wifes as he should marry and after hee tooke to wife A. she shal take in iointure being by way of vse otherwise it had beene by estate executed r 10. Eliz. 274 Dy. per Wray Mead Plowden Ownslaw 3. Eliz. 100. Dame Brayes case Conono By our law a man cannot giue any thing to the common weale without consideration but to a priuate person he may rr l. hoc iure in princi ff de donat Gl. in d l. hoc iure et l. Campanus ff de oper libert Ganonal By the Cannon Lawe nudum pactum doth binde the partie especially being confirmed by an othe much more a bare donation rrr c. 1. de pact Nomom As to the point of consideration wee 3. Diuision shall better perceiue the strength and properties 1 In what cases graunts shal be taken most beneficially for the grauntee therof when we enter into discourse of bargains and sales now let me knowe in what cases and how farre forth graunts shal be taken most beneficially for the grauntee Anglonomoph When a graunt is non-certaine 2 That a grant non certaine must be taken most strongly against the grauntor it must be taken most strongly against the grauntor for if a man graunt an annuitie out of certaine lande and he hath no lande at the â—ime of the graunt yet the graunt shal charge his person Å¿ 9. H. 6. 12. p Babingt and if a deede of graunt be good in parcell and 3 That a graÌ„t may be good in part and for parcel not for parcel not that which is for the aduantage of the grauntee shal be taken to be good as if a man graunt vnto me an annuity prouiso that it shall not charge his person the prouiso is voide and the graunt is good t 20. E. 4. 8. p Towns 14. H. 4. 30. p Hank And if an annuitie be graunted pro consilio impendendo though the grauntee be well skilled in diuerse sciences or faculties yet counsel shal be giuen in that facultie only which was intended at the time of the graunt u 41. E. 3. 6. Annuitâ—e 19. But in some cases the graunt must be construed according to a reasonable and indifferent intendment as if a man make
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.
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
legat 3. And if a house be deuised the Bathe belonging to the house and the orcharde also which belongeth to it doe passe if from the house there be a way to the Bathe or orcharde for then they may well be sayd to belong to the house and to be prouided for the benefit of the inhabitant l l. praedijs in §. balneas §. qui domum ff de legat 3. and if a man do by his last wil deuise land liue many daies after the testament made 2 That a mine of coale passeth with the land if it be iointly vsed with it otherwise it is if it be seuerally vsed and in his life time a myne of coale lead or tinne is opened and discouered in the soile then the testator dieth after that hee hath vsed the myne iointly with the land in this case the deuisee shal haue the mine but if he had demised for life or for yeres the mine to one and the land to an other so that they had beene seuered and disioined in particuler interest then the deuisee should not haue had the mine m l. cuÌ„ fundus nominatim ff de legat 2. but if the Testator deuise all his corne which he hath in such a barne and the deuisee being one of his housholde seruants of purpose bringeth a greater quantitie of corne into the barne the deuisee shall not haue this increase because it grewe by the fraude of the deuisee n cum ita legatur in princ ff de legat 2. Anglonomoph As to your two last cases deuises as I haue said before are so to be fauoured as dower and I thinke that if a man doe marrie a wife and die seised of lande and after his death a mine of coale is discouered in the ground and 3 That a woman shall be endowed of a mine of coale discouered after her husbands death then the woman bringeth a writ of dower she shal haue her dower as well of the mine being parcell of the lande as of the lande it selfe being the principal o 14. E. 3. Admeasurement 10. 13. E. 1. Itin North. 17. Fitz. na br 149. C. and as to your other case where the corne in such a barne is deuised and it is afterward increased the deuisee shall haue no more corne then was in the barne at the time of the deuise for it is as much as if he should haue said al the corne which he now hath in his barn for words of the present tense which hath a present beginning and ending may not be drawne either to a time past which hath had his beginning and 4 That words of the present tense in a deuise may not be extended to the future tense end or to a time future which hath neither beginning nor end and therfore if a man be bound to keepe the prisoners of the gaole of D. that they shall not escape this shall extende onely to the prisoners which are in the Gaole at the time of the making of the bonde and not to such which shall be afterwarde in the Gaole vnlesse it had beene expresly said which be or shall be in the Gaole p 21. H. 7. 37. and so if the Queene graunt to me visum franciplegij in omnibus terris meis feodis I shall not haue viewe of frankepledge in any landes but such as I haue at the time of the graunt q 38. H. 6. 10. so if a man be bound for the tenants of I. S. it shall be intended of these tenants onely which I. S. hath at the time of the obligation made r 39. H. 6. 6. and if a man graunt to another housewood and hedge-wood to be burnt in his houses in Dale this shal not extend to houses which are afterward built Å¿ Temps E. 1. Common 28. and though Wilbyes opinion be that if a man graÌ„t to another a way ouer his land with waines and the grauntee hath no freeholde at the time to which he may haue caryage yet if he purchase freehold afterward he may haue a way to it and Hankeford seemeth to be of this opinion 11. H. 4. t 21. E. 3. 2. per Wilby 11. H. 4 82. per Hank because in a generall graunt there needeth to be no naming of a certaine freehold yet in that very case dubito quid sit lex Nomomat Admitte that a man deuise the profittes of his lande for fiue yeres to I. S. the deuisee dyeth within two yeres next after the deuise then the deuisour dyeth whether shall the residue of the terme goe to the benefit of the executor 1 That by the ciuil law if the deuisee of a terme die before the deuisor the executor shal haue the terme or administrator of the deuisee Codicgn We haue expresse authoritie in our Law that it shall a l. vxori vâ—ufru §. quaesituÌ„ ff de vâ—ufru le Angonomoph Brettes case which is very famous in our law is to the coÌ„trary aa 10. Eliz. 46. ComÌ„ Brets case but if a man deuise 2 By the common law a diuersity is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacy executed xx li. to be paied yerely in 4. yeres after his death to I. S. and died and after the deuisee dyeth within foure yeres yet the executours of the deuisee shal haue the money or the residue of it by suite before the Ordinary in the spiritual Court for it is a duetie by the testament or deuise b 24. H. 8. Br. Deuise 27. 45. Condic ' 187. and an administrator may as well sue for that duety in the spiritual Court as he may haue a writte of Couenant at the common law vpon the couenaÌ„t made with the partie intestate c Fitz. na br 146. D. 2. Mar. 112. Dy. Nomom What if the testator do say I deuise such 10. Diuision a thing to God or to Christ what is wrought by this deuise Cononol The thing so deuised is due to the 1 That by the ciuil law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the Testator dwelt Church of the parish where the testator did dwel at the time of the deuise d Authent de ecclesiast ' titÌ„ §. si quis in nomine argu l. quae coÌ„ditio §. sin ff de cond de monstr Anglonomoph In auncient times such deuises were good and so was a fine leuied deo ecclesiae but the lawe is now altered e Scir faci 18. E. 4. 22. 19. E. 4. 2. 4. 7. per Pigot en le cas de Prior de Merton and in the one and twenteth yere of king Richarde the second a deuise of lande was made to one for life the remainder to an other for life the remainder to the Churche of S. Andrew in Holborne and this was adiudged