both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
to the other partie / but if a man that hathe taken sufficient studye in the lawe / mystake the lawe in some poiÌ„t that is harde to come to the knowle of he is nat bounden to suche restitucion / for he hath done that in him is / but if suche a maÌ„ knowyng the lawe gyue couÌ„sayle agaynst the lawe he is bounde in conscience to restitucion of costes damages as thou hast sayd byfore / and also to make amendes for the vntrouthe ¶ Student What if he aske counsayle of one that he knowethe is nat lerned and he gyueth him counsayle iÌ„ this case to entre by force wherof he entreth ¶ Doctoure Than be they bothe bounde in conscience to restitucion / that is to say / the party if he be sufficient and els the couÌ„sayloure bycause he assented and gaue couÌ„sayle to the wronge ¶ StudeÌ„t But what is the counsaylloure in that case bounden to / to hym that he gaue counsayle to ¶ Doctoure To nothynge for there was as moche defaut in him that asked the couÌ„sayle as in hym that gaue it / for he asked couÌ„sayle of hym that he knewe was ignoraunt / and in the other was defaut for the presumpcion that he wolde take vpon him to gyue counsaile in that he was ignorauÌ„t in ¶ Stud. But what if he that gaue the counsayle knewe nat but that he that asked it had trust in hym that he coulde and wolde gyue hym good counsayle and that he asked couÌ„sayle for to order wel his conscience howe be it that the truth was that he coulde nat so do ¶ Doct. Than is he that gaue the counsayle bouÌ„den to offer to the other amendes / but yet the other may nat take it in conscience ¶ Student That were somwhat perilous for haply he wold take it thoughe he haue no ryght to it / excepte the worlde be well amended ¶ Doc. What thynkest thou in that amendement ¶ Sudent I trust euery maÌ„ wyl do nowe in this worlde as they wolde be done to / speake as they thynke / restore where they haue done wroÌ„g / refuse money if they haue no ryght to it though it be offred them do that they ought for to do by coÌ„scieÌ„ce / though they can nat be coÌ„pelled to it by no lawe that none wyl gyue couÌ„saile but that they shal thynke to be accordynge to coÌ„science / and if they do to do that they can to refourme it / and nat to entremit them selfe with suche maters as they be ignoraunt in / but in suche cases to sende them that aske the counsayle to other that they shall thynke be more connynge than they are ¶ Doct. It were very well if it were as thou haste sayd / but the more petie is it is nat alwaye so / specially there is great defaute in gyuers of counsayle / for some for theyr owne lucre and profyte gyue couÌ„sayle to coÌ„forte other to sue that they knowe haue no ryght / but I truste there be but fewe of theÌ„ / some for drede / some for fauoure / some for malyce / and some vpon confederacies and to haue as moche done for them a nother tyme to hyde the trouthe And some take vpon them to gyue counsayle in that they be ignoraunt in / and yet whaÌ„ they knowe the trouthe wyll nat withdrawe that they haue misdone / for they thynke it shulde be greately to theyr rebuke / and suche ê‘sones folowe nat this couÌ„sayle that sayth That we haue vnaduisedly done lette vs with good aduyse reuoke agayne ¶ Student And if a maÌ„ gyue couÌ„sayle in this realme after as his lerninge and coÌ„science gyueth hym / and regardethe nat the lawes of the realme / gyueth he good counsayle ¶ Doc. If the lawe of the realme be nat iÌ„ that case agaynst the lawe of god nor agaynste the law of reasoÌ„ he gyueth nat good couÌ„sayle / for euery man is bouÌ„de to folowe the lawe of the contrey where he is / so it be nat agaynste the sayd lawes / so maye the case be that he may bynde hym selfe to restitucion ¶ Student At this tyme I wyll no ferther trouble the in this question ⧠The .xviii. question of the student The .xx. Chapitre ¶ STudent If a man of his mere mocion gyue landê to Henry herte and to his heyres by indenture vpon condicion that he shall yerely at a certayne daye pay to Iohanat Style out of the same lande a certayne rent / and if he do nat that than it shal be lawful to the sayd Iohan at style to entre c. if the rent iÌ„ this case be nat paied to Iohan at style / whether maye the sayd Iohan at style entre in to the landes by coÌ„science thoughe he maye nat entre by the lawe ¶ Doctour May he nat entre in this case by the lawe syth the wordê of the indenture be that he shall entre ¶ StudeÌ„t No verelye for there is an auncient maxime in the lawe that no man shall take aduauntage of a condicion but he that is ê‘tie or priuey to the condicion / and this maÌ„ is nat partie nor priuey / wherfore he shall haue none aduauntage of it ¶ Doctoure Thoughe he can haue none aduauntage of it as partie yet bycause it appereth euidentely that the intente of the gyuer was that if he were nat payed of the rente that he shulde haue the lande It semeth that in coÌ„science he ought to haue it thoughe he can nat haue it by the lawe ¶ Student In many cases the entente of the partie is voyde to all intentes if it be nat grounded accordynge to the lawe And therfore if a man make a lease to a nother for terme of life / and after of his mere mocion he confermeth his estate for terme of lyfe / to remayne after his dethe to a nother and to his heyres / in this case that remayndre is voyde in lawe and conscience / for by the lawe there can no remayndre depeÌ„de vpon no estate but that the same estate begiÌ„neth at the same time that the remaiÌ„dre dothe / and in this case the estate beganne byfore and the confirmacion enlarged nat his estate nor gaue hym no newe estate / but if a lease be made to a man for terme of a nother mannes lyfe and after the lessour onely of his mere mocion confermeth the lande to his lesse for terme of his owne lyfe the remayndre ouer in fee / this is a good remayndre in lawe and conscience / and so me thynketh the intent of the partie shall nat be regarded in this case ¶ Doctoure And in the fyrst case that thou hast put me thynketh though it passe nat by way of remayndre that yet it shall passe as by waye of graunt of the reuercion / for euery dede shal be takeÌ„ most stronge agaynst the grauÌ„tour and the takyng of the dede iÌ„ this case is an attournament in it selfe ¶ StudeÌ„t That can nat be / for he in the remayndre
/ yet I meruayle howe suche an vse may be reserued against a fyne that is one of the hyghest recordes that is in the law / and is taken in the lawe of so hyghe effecte that it shulde make an ende of all stryffes / or agaynst a recouere that is ordeyned in the lawe for them that be wronged to recouer theyr ryght by / and me thiÌ„keth that great encoÌ„uenience and hurte may folowe whan suche recordes may so lyghtly be auoyded by a secrete intente or vse of the ê‘ties and by a nude and bare auerment and mater in dede / and specially sythe suche a mater in dede maye be aleged that is nat true wherby may rise great strife bytwene the parties / and great coÌ„fusion and vncertaynte in the lawe / but neuertheles sythe our intente is nat at this tyme to treate of that mater I pray the touche shortly some of the causes why there hath ben so many persones put in estate of landes to the vse of other as there hathe ben / for as I here say / fewe men be sole seased of theyr owne landes ¶ Student There hath ben many causes therof / of the whiche some be put away by diuerse statutê / and some remayne yet / wherfore thou shalte vnderstande that some haue put theyr lande in feoffent secretely to the inteÌ„t that they that haue ryght to the lande shuld nat knowe agaynst whome to bryng theyr accion / that is moche what remedied by diuerse statutes that gyue accioÌ„s agaynst pernours and takers of the profites And somtyme suche feoffemeÌ„tes of trust haue ben made to haue mayntenaunce and berynge of theyr feoffes / whiche peraduenture were great lordes or rulers in the countreye / and therfore to put a way suche mayntenaunce treble damagê be gyuen by statute against theÌ„ that make suche feoffementes for mayntenauÌ„ce And soÌ„tyme they were made to the vse of mort mayne whiche myght than be made with out forfayture thoughe it were prohibite that the freeholde myght nat be gyuen in mortmayne But that is put away by the statute of Rycharde the seconde And somtyme they were made to defraude the lordes of wardê / relyefs / harryots / and of the landes of theyr vylleyns / but those poiÌ„tes be put away by diuerse statutes made iÌ„ the tyme of kynge Henry the .vii. Somtyme they were made to auoyde execucions vpon statutes Staple / Statute MarchauÌ„te / Recognisaunce / and remedy is prouided for that that a maÌ„ shall haue execucion of all suche landes as any persone is seased of to the vse of hym that is so bounde at the tyme of execucion sued iÌ„ the .xix. yere of H. the .vii. And yet remayne feoffementes / fynes / and recoueres in vse for many other causes / in maner as many as there dyd byfore the sayde estatutes And one cause is why they be yet thus vsed is to put away tenauncy by the curtesy and tytles of dower An other cause is for that landê in vse shall nat be put in execucion vpon a statute staple / statute marchaunt / nor recognisaunce / but suche as be in the handê of the recognisour tyme of the execucion sued And somtyme landê be put iÌ„ vse that they shulde nat be put in execucion vpon a wryt of Extendi facias ad valenciaÌ„ And somtyme suche vses be made that he to whose vse cÌ„ may declare his wyl theron / somtyme for surety of diuerse couenauntes in indentures / of mariage / other bargains / and these two last articles be the chyefe principal causes why so moche laÌ„de is put in vse Also landê in vse be no asses neyther in a Fourmedone nor in an accion of Det agaynste the heyre ne they shall nat be put in execucion by an Elegit sued vpon a recouere as some men say and these be the very chyefe causes as I nowe remeÌ„bre why so moche lande standeth iÌ„ vse as there doth / and all the sayd vses be reserued by the intente of the parties vnderstande or agreed bytwene them / and that many tymes dyrectely agaynst the wordes of feoffement / fyne / or recouere / and that is done by the lawe of reason as is aforesayd ¶ Doctour May nat an vse be assigned to a straunger as well as to be reserued to the feoffour if the feoffour so appoynted it vpon his feoffement ¶ Student yes as well / in lykewyse to the feoffe and that vpon a fre gyfte without any bargayne or recompence if the feoffour so wyl ¶ Doctour What if no feoffement be made but that a man grauÌ„t to his feoffe that fro thens forthe he shall stande seased to his owne vse / is nat the vse chaunged though there be no recompence ¶ Student I thynke yes for there was an vse in Esse byfore the gyfte whiche he may as lawfully gyue away as he myght the lande if he had it in possession ¶ Doc. And what if a man beynge seased of lande in fee graunte to a nother of his mere mocion without bargayne or recompeÌ„ce that he fro thens forthe shal be seased to the vse of the other / is nat that graunte good ¶ Student I suppose that it is nat good / for as I take the lawe a man can nat commence an vse but by lyuerey of seasoÌ„ or vpon a bargayne or some other recompence ¶ Doctoure I holde me contented with that thou haste sayd in this Chaphitre for this tyme and I pray the shewe me what diuersite thou putteste bytwene those two cases that thou hast byfore reherced in the xx Chapitre and in the .xxi. Chapitre of this present boke ¶ Student I wyl with good wyll ⧠The diuersite bytwene two cases here after folowynge / wherof one is put in the .xx. Chapitre and the other in the .xxi. Chapitre of this present boke The .xxiii. Chapitre ¶ STudent The fyrste case of the sayd two cases is this A man maketh a feoffement by dede indented vpon a condicion that the feoffe shall paye a certayne rente yerely to a straunger cÌ„ if he paye it nat that it shal be lawfull to the straunger to entre into the lande In this case I sayd byfore in the .xx. Chapitre that the strauÌ„ger myght nat entre bycause that he was nat pryuey vnto the condicion But I sayd that iÌ„ that case the feoffour myght lawfully reentre by the fyrste wordê of the indenture bycause they implye a condicioÌ„ in the lawe that the other wordes that is to saye that the straunger shulde entre be voyde in lawe and conscience And therfore I sayd ferther that whan the feoffour had reeÌ„tred that he was seased of the laÌ„de to his owne vse nat to the vse of the straÌ„ger / thoughe his entent at the makyng of the feoffement were that the straunger after his entre shuld haue had the laÌ„d to his owne vse if he myghte haue entred by the law And the cause why I thynke that the
the law that if a Bisshope be vouched to warrātie the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were graūted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaīdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ Studēt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the rēt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the assēt of the chapitre shall nat charge the chapitre ī that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience c̄ ☞ Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor consciēce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reētre / it forceth litle in the lawe in whome the defaute be that the cōdicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be excepte it be in the feffoure hīselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without cōdiciō / where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he
is called a courte Baron And to euery fayre market is incident a court that is called a court of Pypowdres And though in some statutes is made meÌ„cion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes and that suche courtes shulde be / there is no statute nor law writteÌ„ in the lawes of Englande And so all the grouÌ„de begynniÌ„g of the sayde courtes depeÌ„de vpoÌ„ the custome of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Parlyament ⧠Also by the olde custome of the realme no maÌ„ shal be takeÌ„ iÌ„prysoned disseased nor otherwyse destroyed / but he be put to answere by the lawe of the lande this custome is coÌ„fermed by the statute of Magnacarta the .xxvi. chapitre ⧠Also by the olde custome of the realme all men great small shal do receyue Iustice in the kinges courtes / this custome is coÌ„fermed by the statute of Marl the .i. Chapitre ⧠Also by the olde custome of the realme the eldest sone is onely heyre to his auncestour / if there be no sones but doughters then all the doughters shal be heyre so it is of susters other kynneswomen And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce discende to the nexte kynnesman or kynneswoman of the hole blode to hym that had the enhitauÌ„ce of howe many degrees so euer they be from hym And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden ⧠Also by the olde custome of the realme landes shall neuer ascende / nor disceÌ„de froÌ„ the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee. ⧠Also if any alyeÌ„ haue a sone that is an alyen after is made Denizyn / hath another sone / after purchaseth laÌ„des and dyed / the yoÌ„ger sone shall enherite as heyr nat the eldest ⧠Also if there be thre bretherne the mydlest brother purchase landes dyed without heyre of his body / the eldest brother shall inheryt as heyre to hym nat the yonger brother ⧠Also if lande in fee symple disceÌ„de to a man by the ê‘re of his father he dyed without heyre of his body / then that inheritaunce shall discende to the next heyre of the parte of his father And if there be no suche heyre of the parte of his father / then if the father purchased the laÌ„des it shal go to the next heyre of the fathers mother / nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee but if a man purchase laÌ„des to him to his heyres dye without heyre of his body as is sayd before / theÌ„ that laÌ„de shall disceÌ„de to the next heyre of the parte of his father if there be any / if nat then to the next heyre of the parte of his mother ⧠Also if the sone purchaseth laÌ„des iÌ„ fee dye without heyre of his body / the lande shall discende to his vncle shall nat asceÌ„de to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle shall enioye the lande as heyre to his elder brother for euer ⧠Also by the custome of the realme the chylde that is borne before spouselles is bastarde shall nat inheryte ⧠Also the custome of the realme is that no maner of goodes nor catalles reall nor parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or administratours ⧠Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after and also Chatelles real if he ouer lyue hê wyfe but if he sell or gyue away the Chatelles realles dye by that sale or gyfte the enterest of the wyfe is determined / els they shall remayne to the wyfe if she ouer lyue her husbande ⧠Also the husbaÌ„de shall haue all the inheritauÌ„ce of his wyfe wherof he was seased in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of EnglaÌ„de / the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe after the spouselles c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye ¶ Doctoure what if the husbande at his deth be within the age of .ix. yere ¶ Student I suppose she shall yet haue her dower ⧠Also the olde lawe custome of the realme is that after the deth of euery tenaÌ„te that holdeth his landes by knyghtes seruice the lord shall haue the warde mariage of the heyre tyll the heyre come to the age of .xxi. yere And if the heyre in that case be of full age at the deth of his auncestre / then he shall paye to his lorde his relyefe / whiche at the coÌ„mon lawe was nat certayne / but by the statute of Magna carta / it is put in certayne that is to saye for euery hole knyghtes fee to pay C. sÌ„ And for a hole baronye to pay a. C. marke for relyef And for a hole erledom to pay a. C. li. after the rate And if the heyre of such a tenauÌ„t be a womaÌ„ / she at the dethe of her auncestre be within the age of .xiiii. yeres / then by the coÌ„mon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of WestmÌ„ the fyrste in suche case she shal be inwarde tyll .xvi. yere And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shal be out of warde / though the laÌ„des be holden of the kynge And theÌ„ she shall pay relyef as an heyre male shall ⧠Also of landes holden in socage if the auncestre dye / his heyre beynge withiÌ„ the age of .xiiii. yeres / the next freÌ„d of the heyt to whome the inheritauÌ„ce may nat discende shall haue the warde of his body landes tyll he shall come to the age of .xiiii. yere / theÌ„ he may entre And wheÌ„ the heyre coÌ„meth to the age of .xxi. yere / theÌ„ the gardeyn shall yelde hym accoÌ„pte for the ê“fettes therof by hym receyued ⧠Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his auncestre / as if his auÌ„cestre
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
partie Also where there can be had no sufficieÌ„t prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌ„scieÌ„ce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌ„ce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌ„dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌ„s after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌ„scieÌ„ce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌ„science so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌ„scieÌ„ce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌ„cion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌ„science for of suche a lawe made by man coÌ„scieÌ„ce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌ„de of a lawe made by man coÌ„maundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌ„science and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌ„sideracion punysshe hym that dothe it / but leuyth it onely to his coÌ„science And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌ„scieÌ„ce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌ„science to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌ„scieÌ„ce to the halfe ê“fittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌ„science / for the lawe neyther wyllyth ne coÌ„maundyth that one shulde take all the ê“fittes / but leuyth it to theyr coÌ„science so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌ„ce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌ„science all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌ„scieÌ„ce / but the lawe is nat to be lefte for conscience ☞ Addicion ⧠Also many men thynke that if a man haue laÌ„de that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ„ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌ„scieÌ„ce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
dyeth / where maye tho yssues be leuied vpon hym in the reuercion in coÌ„science as they may be by the lawe ¶ Doct. If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience StudeÌ„t For there is a maxime in the lawes of Englande / that where two tytles ronne togyther / the eldeste tytle shal be preferred And in this case the tytle of hym in the reuercion is byfore the tytle of the forfetour of the yssues And therfore I doute somwhat whether they maye be lawfully leuyed ¶ Doct. By that reason it symeth thou arte in doute what the lawe is in thê case / but that must necessarely be knowen / for els it where in vayne to argue what conscience wyll therin ¶ Stud. it is certayne that the lawe is suche / so it is lyke wyse if the husbande forfet yssues dye / tho yssues shal be leuyed on the landes of the wyfe ¶ Doct. And if the lawe be such it symeth that coÌ„science is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shal be iÌ„panelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemeÌ„t for his nat apperauÌ„ce for els the lawe shulde be clerely frustrate in that poynt And that payne as I haue herde is that he shal lese yssues to the kyng for his nat apperauÌ„ce / wherfore it semeth nat inconuenieÌ„t nor agaynste conscience though the lawe be that tho yssues shal be leuyed of hym iÌ„ the reuercion / for that coÌ„dicion was secretlye vnderstande in the lawe to passe with the lease whaÌ„ the lease was made And therfore it is for the lessour to beware and to preuent that daunger at the makynge of the lease / or els it shal be aiuged his owne defaute And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande froÌ„ that generall maxyme that thou haste remeÌ„bred byfore that is to say that where two tytles ronne togyther / that the eldest tytle shal be preferred / so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in coÌ„science / for by this perticuler maxime the strengthe of that generall maxime is restreyned to euery intent / that is to saye / as well in lawe as in coÌ„science ¶ The thyrde question of the student The .xxiii. Chapitre STudeÌ„t If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be bouÌ„de by the lawe to yelde to hym in the reuercion treble damagê And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / to restore the place wasted immediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages the place wasted be recouered in the kynges courte ¶ Doctour Byfore iugemeÌ„t gyuen of the treble damagê and of the place wasted he is nat bounde in conscience to pay them For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemeÌ„t be gyuen to yelde damages accordynge to the value of the waste / but after the iugement gyuen / he is bounden in coÌ„science to yelde the treble damages / also the place wasted And the same lawe is in all statutê penall / that is to saye / that no man is bouÌ„de in conscience to pay the penaltye tyll it be recouered by the lawe ¶ Stud. Whether maye he that hath offended agaynst suche a statute penal defende the accion hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single damagê ¶ Doctour If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the penaltie tyll it be recouered ¶ The fourth question of the studeÌ„t The .xxiiii. chapitre STudent If a man infeffe another in certayne lande vpon condicion that if he infeffe any other that it shal be lawfull for the feffour and his heyres to reentre cÌ„ whether is this coÌ„dicion good in coÌ„scieÌ„ce though it be voyde in the lawe ¶ Doctour What is the cause why this condicion is voyde in the lawe ¶ Stud. The cause is this / by the lawe it is incideÌ„t to euery state of fee simple / that he that hath that estate may lawfully by the lawe by the gyfte of the feffoure make a feffement therof And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the condicion had ben that he shulde nat haue infeffed suche a man / or such a man that condicion had ben good / for yet he myght infeffe other ¶ Doctour though the sayde coÌ„dicion be agaynst the effecte of the stande of a fee simple also agaynste the lawe Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / to that intent the feffe toke the estate after breke the intent it semeth that the lande in coÌ„science shulde returne to the feffour ¶ Stud. the intent of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe As if a man of his mere mocion without any recompence intendynge to gyue landes to another to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue to holde to hym for euer intendyng that by that worde for euer the feffe shuld haue the lande to hym to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe Also if a man gyue landes to another to his heyres for terme of .xx. yeres inteÌ„dyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme In this case his inteÌ„t is voyde / for by the lawe of the realme all chatellys reall and personall shall go to the executoures / and nat to the heyre Also if a man gyue landes to a man to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that coÌ„science shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat grouÌ„ded vpoÌ„ the lawe of reason / but vpoÌ„ the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condicioÌ„s made vpoÌ„ lande shuld be voyd And whaÌ„ a condicioÌ„ is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter ☞ The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamacioÌ„ be leuyed accordynge to the statute no clayme made within .v. yeres cÌ„ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ StudeÌ„t that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a coÌ„mon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeiÌ„te of title in the landes tenemeÌ„tes comprised in the fyne / It semeth that that fyne extiÌ„cted the title of all other / as well in conscieÌ„ce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. ☞ A questioÌ„ made by the Doctour / how certayne recoueries that be vsed iÌ„ the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whaÌ„ a man that is seased of laÌ„des in the tayle selleth the lande That it is coÌ„monly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaiÌ„st the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundauÌ„tes shall suppose in theyr writte declaracion that the tenaÌ„t hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupoÌ„ the sayde tenaunte in tayle shall appere in the court by coueÌ„ by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle iÌ„ the same terme at that day by assent couen of the partyes / he shall make defaulte vpoÌ„ whiche default bycause it is a default in despite of the court / the demaundauntê shall haue iugemeÌ„t to recouer agaynst the tenaunt in tayle / he ouer in value agaiÌ„st the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with conscieÌ„ce that as it semeth aloweth fauoureth suche fayned recoueries ¶ StudeÌ„t If the tenaÌ„t in tayle sel the laÌ„de for a certayn suÌ„me of money as is agreed betwixte them at suche a pryce as is coÌ„monly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth LeuiticeÌ„ xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the laÌ„de that is gyueÌ„ to him to
his chyldreÌ„ as laÌ„des intayled be gyuen Another cause is this it appereth by the coÌ„mauÌ„demeÌ„t of god that thou shalt nat coueyt the house of thy neyghboure cÌ„ And if the coÌ„cupisceÌ„ce be ê“hibited more stroÌ„ger the vnlawfull takinge withholding therof is prohibit / for as moche as tayled lande whaÌ„ the auncestre is deed is a thynge that of righte is belongynge to his heyre / for that he is heyre accordynge to the gyfte / how may that laÌ„de with right or conscieÌ„ce be holden froÌ„ hym ¶ StudeÌ„t Natwithstandynge that prohibicion of almighti god wherby the laÌ„de that was gyuen to Abraham to his seed might nat be aliened for euer / yet landes within walled townes might lawfully be aliened for euer / excepte the landes of the leuites as it appereth in the sayde chapitre of Leuitici .xxv. And so it appereth that the sayd prohibicion was nat generall for euery place that amonge the Iewes And it appereth also that it was gyuen onely for Abraham his chyldren / so it was nat generall to all people And it appereth also that it extended nat but onely to the lande of promission / as it appereth by the wordes of the sayd chapitre / where it is sayde thus all the region of your possession shal be solde vnder the condicion of redemynge / whereby appereth that landes in other countres be nat bounde to that condicion / and as they be nat bounde to that condicion by the same reason / it foloweth that they be nat bounde to the same succession Therefore the sayde lawe that wyll that the lande gyuen to AbrahaÌ„ to his seed shall nat be solde for euer / bindeth no lande out of the lande of promission / some men will say that sythen the passion of our lord was promulgate knowen it byndeth nat there And to the secoÌ„de reason whiche is grounded vpon the coÌ„mauÌ„demeÌ„t of god It must nedes be grauÌ„ted that it is nat lawfully to any man vnlawfully to couere the howse of his neyghbour / that than more stronger he maye nat vnlawfully take it from hym but thaÌ„ it remayneth for the yet to proue / howe in this case this tayled lande that is solde by his auncestre / whereof a recouery is had of recorde in the kynges courte maye be sayd the lande of the heyres ¶ Doctour that may be proued by the law of the real me / that is to say by the statute of westmiÌ„ster the seconde the fyrste chapitre / where it is sayd thus The wyll of the gyuer expressely contayned in the dede of his gyfte shal be from hensforth obserued / so that they to whome the tenementes be so gyueÌ„ shal nat haue power to alyen / but that the landes after theyr deth shall remayn to theyr issue or retourne to the donour if the issue fayle / by the whiche statute it appereth euidently that though they to whome the tenementes were so gyuen aliened them awaye / that yet neuerthelesse they in law conscience by reason of the sayde statute ought to remayn to the heyres according to the gyfte / for it is holden commonly by all Doctoures that the coÌ„maundementes rewles of the lawe of maÌ„ or of a positiue lawe that is lawfully made / bynde all that be subiectes to that lawe accordyng to the mynde of the maker that in the court of conscience ¶ Student Doest thou thiÌ„ke that if a man offende agaynst a statute penall that he offendeth in conscience admit that he do it nat of a wilfull disobedience for that he wyll nat obey the law / for if he do it of disobedience I thynke he offeÌ„deth ¶ Doctour If it be but onely a statute that is called Populare it byndeth nat in conscience to the payment of the penalitie / til it be recouered by the lawe And than it dothe bynde in conscience / but if a statute be made principally to remedy the hurte of the partye / for that hurte it gyueth a penaltye to the partye in that case the offendour of the statute is bounde immediatly to restore the damages to the value of the hurt as it is vpon the statute of waste / but the penaltye aboue the hurte he is nat bounde to pay tyll iugement be gyuen as it is sayd byfore / but statutes by the which it is assigned who shall haue right or proê‘tye to these laÌ„des tenemeÌ„tes / or to these goodes or catailes if it be nat agaynst the lawe of god / nor agaynst the lawe of reason bynde all them that be subgecte to the lawe in lawe conscience / suche a statute is the statute of westminster the .ii. whereof we haue treated byfore / wherefore it must â–ª be obserued in conscience ¶ Stud. But some holde that the sayde statute of Westmynster â–ª the .ii. was made of a singularitie presumpcion of many that were at the sayd parliament for exaltinge and magnifienge of theyr owne blode therfore they saye that that statute made by suche a presumpcion byndeth nat in conscieÌ„ce ¶ Doctour It is very perillous to iuge for certayne that the sayde statute was made of suche a presumpcion as thou spekest of / for there be many consideracions to proue that the sayd statute was nat made of suche a presumpcion but rather of a very good mynde of all the parlyamente / or at the leste of the more parte thereof / for the common welthe of all the realme / fyrste in the kyng the whiche in the said parliament was the hede and moste chyef principall parte of the parliament as he is in euery parliament / can nat be noted no suche inteÌ„t / For it is nat necessary nor it was nat than in vse that landes of the crowne shulde be entayled in spirituall men ne yet in certayne burgesies cytizeÌ„s of the sayde parlyamente whiche at that tyme had no lande / there can be noted no suche singularitie / nor yet in the noble meÌ„ gentilmen nor suche other as were of the sayd parliameÌ„t had landes tenemeÌ„tes It is nat good to iuge iÌ„ certayn that they dyd it of suche a presuÌ„pcion / but it is good and expedient in this case as it is in other cases that be in doubte to holde the surer waye / and that is that it was made of charitie / to the intente that he nor the heyres of hym to whome the lande was gyuen shulde nat falle in to extreme pouertye / and thereby haplye to ronne in to offence agaynste god / and thoughe it were trewe as they saye that it was nat made of charytie but of presumpcion and singularitie as they speke of Neuerthelesse for as moche as the statute is nat agaynste the lawe of god nor agaynste the lawe of reason it must be obserued by all theÌ„ that be subiectes vnto that lawe / For as IohnÌ„ Gerson sayth in the treatyse that he entituleth in latine De vita spirituali anime the
fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ Studēt To that some answere say that whan the lande is solde a recouery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto whereupō foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warraūte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ Studēt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cōceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficiēt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge Hēry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whā the parliamēt gaue to suche recouerers auctorite to aduowe iustifie for suche rētes customes seruices as they recouered / that the entēt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue thē suche power / that the parliament shulde els be takē in maner as fortifiers of wrōg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
be but fewe ī this real me that haue landes of any notable value but that they or theyr aūcestours / or some other by whome they clayme haue had parte therof by such recoueries / In so moche that lordes spirituall tēporal knyghtes / squyres ryche men / poore / monasteries / collegies / and hospitalles haue suche landes / for suche recoueries haue ben vsed of longe tyme / who may thynke therfore without great heuines that so many men shulde be bounde to restitucion / and that yet as thou sayste / no man disposeth hym to make restitucion And so I am in maner perplexed and wot nat what to saye in this case / but that yet I truste that ignoraunce maye excuse many persons in this behalfe ¶ Doctoure Ignoraunce of the dede maye excuse / but ignoraunce of the lawe excuseth nat but it be inuincible / that is to saye that they haue done that ī them is to knowe the trouthe as to councell with lerned men and to aske thē what the lawe is in that behalfe and if they answere them that they may do this or that lawfully / than they be thereby excused in conscience / but yet in mannes lawes they be nat thereby discharged / but they that haue taken vpon them to haue knowlege of the law be nat excused by ignoraunce of the lawe / ne no more are they that haue a wilfull ignoraunce that wolde rather be ignoraunt than to know the trouth And therfore they will nat dispose them to aske any councell in it / if it be of a thynge that is agaynste the lawe of god / or the lawe of reason / no man shal be excused by ignoraunce / and to there be but fewe that be excused by ignoraūce ¶ Studēt what than shall we condempne so many so no table men ¶ Doctoure We shall nat condempne them / but we shall shewe them theyr peryll ¶ Student yet I truste that theyr daunger is nat so greate that they shulde be bounde to restitucion For Iohā Gerson sayth in the sayd boke called Devintate ecclesiastica consideracione secunda / quod cōmunie error facitius That is to saye a common errour maketh a right / of whiche wordes as it semeth some trust maye be had / that though it were fully admitted that the sayd recoueries were fyrst had vpon an vnlawfull grounde and agaynste the good ordre of conscience that yet neuertheles for as moche as they haue ben vsed of longe tyme / so that they haue ben taken of diuers men that haue ben righte well lerned in maner as for a lawe / that the byers partly be excused so that they be nat bounde to restituciō And moreouer it is certeyn that that statute of westm̄ the. 2 nor none other statute made by mā cā nat be of greater vertue or strength / thā was the bonde of matrimonie that was ordayned by god And though that bonde of matrimoni was indissoluble / yet neuertheles Moyses suffred a byll of refusell to the Iewes / whiche in latine is called Libellū repudu / and so they mighte thereby forsake theyr wyfes As it appereth Deutro xxiii therefore lyke as a dispensacion was sufred agaynst that bōde / so it semeth it may be agaynst this statute ¶ Doctour as to that reason that thou haste laste made of a byll of refusell / let all purchasours of lāde here what our lorde sayth in the Gospell to the Iewes of that byll of refusell Mathei xix where he sayth thus / To the hardnes of iour hertes / Moyses suffred you to leue your wyfes / for at the begynnynge it was nat so / of whiche wordes Doctours holde commonly that thoughe suche a byll of refusell was lawfull so that they that refused theyr wyfes therby / shulde be without payne in the lawe / that yet it was neuer lawfull so that it shuld be with out synne And so likewyse it may be sayd in this case / that suche recoueries be suffred for the hardnes of the hertes of Englisshemen / whiche desyre lande possessions with so great gredynes that they cā nat be withdrawne from it neyther by the lawe of god / nor by the lawe of the realme And therefore that ryche men shulde nat take the possessions of poore mē from thē by power without coloure of title / that is to saye eyther by open disseson / or by the onely sale of the tenaunte in tayle so to holde them agaynste the expresse wordes of the statute / suche recoueryes haue ben suffred And though for theyr great multitude they maye haplye be without payne as to the lawe of the realme yet it is to feare that they be nat without offence as agaynst god / as to thy other reason that a common errour shulde make a right those wordes as me semeth be to be thus vnderstande / that a custome vsed agaynst the lawe of man shal be taken in some coūtres for lawe if the people be suffred so to continue And yet some mē call suche a custome an errour bycause that the continuance of that custome agaynst the lawe was partlye an errour in the people / for that that they wolde nat obey to the law that was made by theyr superiours to the contrarye of that custome but it is to be vnderstande that the sayd recoueries though they haue ben longe vsed may nat be taken to haue the strength of a custome / for many as well lerned as vnlerned haue alwaye spokē agaynste thē and yet do And furthermore as I haue herde say a custome or a p̄scripcion in this realme agaynste the statutes of the realme preuayle nat in the lawe ¶ Studēt though a custome in this realme preuayleth nat agaynst a statute as to the lawe / yet it semeth that it may preuayle agaynste the statute in conscience / for though ignoraunce of a statute excuseth nat in the lawe / neuertheles it may excuse in conscience / so it semeth that it may do of a custome ¶ Doctoure But it suche recoueries can nat be brought in to a lawful custome in the lawe / it semeth they maye nat be brought in to a custome in conscience / for conscience muste alway be groūded vpon some lawe in this case it can nat be grounded vpon the lawe of reason / nor vpon the lawe of god and therefore if the lawe of man serue nat / there is no groūde wherupon conscience in this case may be grounded / at the begynnynge of suche recoueries they were taken to be goood / bycause the lawe shuld warraunt them to be good and nat by reason of any custome and so if the reason of the lawe wyll nat serue in tho recoueries / the custome cā nat helpe for an euyll custome is to be put awaye And therfore me semeth that tho recoueries be nat without offence against god / thoughe haplye for theyr great multitude / and that there shulde nat be as it were a subuersion of
of a statute shal be taken ferther than the expresse letter stretcheth / but yet there may no entent be taken agaynst the expresse wordes of the statute / for that shulde be rather an interpretacion of the statute than an exposicioÌ„ it can nat be reasonably taken / but that the inteÌ„t of the makers of the statute was that the lande shuld remayne continually in the heyres of the tayle as longe as the tayle endureth / there can no ioyntour be made neyther by dede nor be recouerye / but that the tayle must therby be discontinued / therfore this case of ioyntoure is not lyke to the sayd cases of tenant in dower or tenauÌ„t by the courtesie / for the title of dowrye of tenaunty by the curtesye groweth moste specially by the continuauÌ„ce of the possessioÌ„ in the heyres of the tayle but it is nat so of ioyntoures / therfore by the onely dede of the tenaunte in tayle / there maye no Ioyntour be lawfully made agaynste the expresse wordes of the statute And if there be any made by waye of recouerye / than it semeth that it muste be put vnder the same rewle as other recoueryes muste be of landes intayled ☞ The thyrde question of the Student / concernynge tayled landes ⸫ The .xxix. Chapitre STudent If IohnÌ„ at noke beyng seased of landes in fee of his mere mocioÌ„ make a feoffement of a certayne landes to the inteÌ„t that the feoffes shall therof make a gyfte to the sayde Iohan at noke to haue to him and to his heyres of his body and they make the gyft accordinge And after the sayd Iohan at noke falleth in to dette / wherefore he is taken put in pryson / and therupon for payment of his dettes he selleth the same lande / and for suertye of the byer he suffereth a recouerie to be had agaynst hym in suche maner as byfore appereth / whether standeth that recouerye with conscience or nat ¶ Docto r I wolde here make a litell digression to aske the another question or that I made answere to thyne that is to say to fele thy mynde howe that lawe by the whiche the body of the dettoure shal be taken caste in to pryson there to remayne tyll he haue payde the dette maye stande with conscieÌ„ce specially if the haue nothynge to paye it with / for as it semeth if he wyll relinquisshe his goodes / whiche in some lawes is called in laten Cedere bonis that he shall nat be inprysoned / and that is to vnderstande moste specially if he be fallen in to pouertye and nat through his owne defaute ¶ Student There is no lawe in this realme that the defendaunt may in any case Cedere bonê / and as me semeth if there were suche a lawe it shulde nat be indifferent / for as to the knowlege of hym that the money is owynge to the dettoure mighte Cedere bonis / that is to saye relinquisshe his goodes / and yet retayne to him selfe secretely greate ryches And therefore that lawe in suche case semeth more indiffereÌ„t and rightouse that committeth suche a dettour to the conscieÌ„ce of the plaiÌ„tyfe to whome the money is owynge thaÌ„ that coÌ„mitteth hym to the coÌ„science of hiÌ„ that is the dettour / for in the dettour some defaute maye be assigned / but in hym to whome the money is owynge maye be assinged no defaut ¶ Doctour But if he to whome the dette is owinge / knoweth that the dettoure hath nothyng to pay the det with / that he is falleÌ„ in to that pouertie by some casualtie And nat throughe his owne defaute / doth the lawe of Englande holde that he maye with good conscience kepe the dettour styll in pryson tyll he be payde ¶ Student nay verily but it thinketh more resonable to appoynt the libertie the iugement of conscience in that case to the dette than to the dettoure / for the cause byfore rehersed And than the dette / if he knowe the trouthe is as thou haste sayde bounde in conscience to lett hym go at lybertie though he be nat compellable thereto by the lawe And therfore admittynge it for this tyme / that the law of EnglaÌ„de in this poynt is good iuste I pray the that thou wilte make answere to my question ¶ Doctour I wyll with good wyll / therfore as me semeth for as moch as it appereth that the sayd gyft was made of the mere liberte fre wyll of the said Iohan at noke / without any recompeÌ„ce that therefore it can nat be otherwyse taken / but that the intent of the sayde IohaÌ„ at noke as well at the tyme of the sayd feoffement / as at the tyme that he receyued agayne the sayd gyfte in the tayle / was that if he happened afterwardes to falle in to pouertie / that he might alyen the sayd laÌ„de to releue hym with / for howe may it be though that a man wyll so moche pondre the welthe of his heyre / that he wyll forget hym selfe / so it semeth that nat onely the sayde recouerye standeth with conscience but also that if he had made onely a feoffement of the lande that that feoffement shulde be in conscience a good barre of the tayle / but if the sayd feoffement and gyfte had ben made in consideracioÌ„ of any recompence of money or for any matrimony or suche other / than the feoffemente of the sayd Iohan at noke shulde nat bynde his heyre / and if he than suffred any recouerye thereof than that recouerye shulde be of lyke effecte as other recoueries whereof we haue treated byfore / the whiche I sayd it was good to fauour rather for theyr multitude than for the conscience the same lawe is that if the sonne and the heyre of the sayd Iohan at noke in case that the sayde gyfte was made without recompence alyen the lande for pouertye after the deth of his father that recouerye byndeth nat but as other recoueries do / for it caÌ„ nat be thought that the enteÌ„t of the father was that any of his heyres in tayle shulde for any necessite dissherite all other heyres in tayle that shuld come after hym but for hiÌ„ selfe me thinketh it is resonable to iuge in suche maner as I haue sayd byfore ¶ Student And though the intent of the sayde Iohan at noke whan he made the sayde feoffement / and whan he toke agayne the sayde gyfte in tayle were that if he fell in nede that he mighte alien yet I suppose that he maye nat alien though percase for the more suerte he declared his intent to be suche vpon the lyueries of season for that intente was contrary to the gyfte that he frelye toke vpon hym and whan any intent or condicion is declared or reserued agaynst the state that any maÌ„ maketh or accepteth than suche an inteÌ„t or condicion is voyde by the lawe as by a case that hereafter foloweth wyll appere / that is to
saye if a man make a feoffement in fee vpon condiciō that the feffe shall nat alien it to any man that condiciō is voyde for it is incidente to euery state of the fee simple that he that is so seased may alien And lyke as in a fee simple there is incident a power to aliene / so in a state tayle there is a secrete intent vnderstande in the gyfte / that no alienacion shal be made And therefore thoughe the intente of the sayde Iohan at noke were that if he fell in to pouertie that he might sel though he at the takynge of the gyfte openly declared his intente to be so / yet that intent shulde be voyde by the lawe as me semeth and if it be voyde by the lawe it is also voyde in conscience / and so the sayde recouery muste be taken in this case to be of the same effecte as recoueryes of other landes intayled be / and in none other maner ☞ The .iiii. question of the Student / cōcernynge recoueryes of enheritaūce entayled The .xxx. Chapitre STudent If an annuite be graunted to a man to haue to perceyue to the graunt and to the heyres of his body of the cofers of the grauntour And after the graunte suffereth a recouere agaynste hym in a writte of entre by the name of a rent in dale of lyke summe as the annuite is of with vouchers iugemēt after the cōmon course / bothe parties intende that that annuite shal be recouered whether shal that recouere binde the heyre ī the tayle of his annuite ¶ Doctor. what if it were a rēt goynge out of lāde of what effect shuld the recouere be than ¶ Student It shuld be than of lyke effecte as if it were of lande ¶ Doctoure And so it semeth to be of this annuite / for as me thynketh a rēte an annuite be of one effecte / for the one of them shal be payde in redye money as the other shal ¶ Studēt That is trouth and yet there be many greate diuersities betwixte them in the lawe ¶ Doctoure I praye the shewe me some of tho diuersities ¶ Student Parte I shall shewe the / but I wot nat whether I can shew the al but fyrste thou shalte vnderstāde that one diuersitie is this Euery rente be it rente seruice / rente charge / or rēt seke / is goyng out of lande / but an annuite goth nat out of any lande / but chargeth onely the person that is to saye the grauntoure or hys heyres that haue assez by discente / or the howse if it be graunted by a howse of a religion to perceyue of theyr cofers Also of an annuyte there lyeth no accion but onely a writ of annuite agaynst the graūtour his heyres or successours / that writ of annuite lyeth neuer agaynste the pernoure but onely agaynste the grauntour or his heyres / but of a rente the same accions maye lye as do of lande as the case requyreth it lyeth somtyme of rente agaynste the tenaunte of the grounde / and somtyme agaynst the pernour of the rent / that is to saye agaynste hym that taketh the rent wrongefully / somtyme agaynst neyther as of a rente seruyce assise maye lye for the lorde agaynste the mesme and a dissesoure / or somtyme agaynste the mesne onely if he dyd also the disseason Also an annuite is neuer taken for an asses bycause it is no freholde in the law / ne it shal nat be put in execucion vpō a statute marchaunt / statute staple ne elegit as rente maye And bycause the sayde writte of entre laye nat in this case of this annuite And that it can nat be entēded in the law to be the same annuite / though it be of lyke summe with the annuite ne though the parties assented and mente to haue thesame annuite recouered by the sayde writte of entre / therefore the sayde recouerie is voyde in lawe and conscience / but if suche a recouerie be had of rente with a vouchere ouer than it shal be taken to be of lyke effecte as recoueries of landes be in suche maner as we haue treated of before ☞ The .v. question of the Student / concernynge tayled landes The .xxxi. Chapitre STudent If landes be gyuen to a mā and to his wyfe in the name of his ioyntoure by the father of the husbāde to haue and to holde to them and to the heyres of theyr two bodyes begotten / and after they haue issue the husbande dyeth and the wyfe alieneth the lande / against the statute of .xi. H. vii suffereth a recouerye thereof to be had agaynste her to the vse of the byer / and after her sone heyre apparaunte / that is heyre to the tayle releaseth to the recouerers by fyne dyeth hauynge a brother on lyue / and after the mother dyeth who hath righte to that lāde the byer or the brother of hym that released ¶ Doctoure what is thyne oppinion therein / I praye the shewe me ¶ Student We semeth that the byer hathe righte / for by the sayd statute made in the .xi. yere of kynge Henry the .vii. amonge other thynges it is enacted that if any man / whiche hath landes of the gyft of her husbande / or of the gyfte of any of the auncestoures of the husbande / suffre any recouerye thereof agaynste her by couyne / that than suche recouerye shall be voyde / and that it shal be lawfull to hym that shulde haue the lande after the dethe of the woman to entre and it to holde as in his fyrste righte / prouided alwaye that that statute shall nat extende where he that shulde haue the lande after the dethe of the woman is agreable to any suche alienacion or recouerye so that / that agremente be of recorde And for as moche as the heyre in this case agreed to the said recouerye by fyne / whiche is one of the hyest recordes in the lawe / it semeth that the byer hath righte agaynste that heyre that agreed and agaynste all that shal be heyres of the tayle / and that nat onely by the sayde recouery / but also by the sayde statute whereby the sayde recouerye with assent of the heyre is affermed ¶ Doctor Though the byer in this case haue righte during the lyfe of the heyre that released / yet neuertheles after his dethe his heyre as it semeth maye lawfully entre / for the agremēt wherof the statute speketh must as I suppose eyther be had before the recouery / or els at the tyme of the recouery for if a title by reason of the sayd statute be ones deuolute to the heyre in the tayle / than that right as it semeth can nat be extincte nor put awaye by the onely fyne of the heyre / no more than if he had dyed and the nexte heyre to hym had released to the byer by fyne / in whiche case the release coulde nat extincte the righte of the
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ„ this case that he shulde be coÌ„pelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌ„pted to offeÌ„de the lawe it semeth reasoÌ„ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ„ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ„ were vntrue / the defendauÌ„t nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌ„ce in lawe also in conscieÌ„ce / that for this cause / the kyng as souereyne hed of the lawe is bouÌ„den of iustice to grauÌ„t such writtes and such ê“cesses as be oppoynted in the lawe to euery ê‘sone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ„ he is nat gyltye as whan he is gyltie / thaÌ„ whaÌ„ there is no maxime in the lawe that if a man be outlawed in suche maner as before apê‘eth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ„ whether the accioÌ„ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌ„science as wel as if the accion were true And than the ê‘tie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ„ ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌ„t of the owner it is to coÌ„sydre that the ê“pertie of goodê be nat gyueÌ„ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ„ / but after they were brought by the lawe of man into a certeyne ê“pertie so that euery man myght knowe his owne thaÌ„ whan such ê“pertie is gyueÌ„ by the law of maÌ„ the same lawe may assigne such coÌ„dicioÌ„s vpoÌ„ the ê“pertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ê“perty shall continue And one coÌ„dicioÌ„ that goeth with euery ê“perty iÌ„ this realme is if he that hathe the ê“perty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ„ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ„ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ„ was made vpoÌ„ a better coÌ„sideracion than this forfayture of outlagary was For if no especiall punisshemeÌ„t shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ„ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ„ to the kyng therby is good in coÌ„scieÌ„ce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ„ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌ„pence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌ„des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
the straunger be nat sufficient to make recompence for the wast done ¶ Doctoure Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenauÌ„t for terme of lyfe thoughe that he assented nat to the doyng of the wast ¶ Student ye verely / and yet if the tenauÌ„t for terme of lyfe had ben bouÌ„den in an obligacion in a certeyne suÌ„me of money that he shulde do no waste he shuld nat forfayt his boÌ„de by the wast of a strauÌ„ger / and the diuersite is this It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenauÌ„t in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe thaÌ„ was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shal be iuged aft the same lawe as the other cases be syth no resoÌ„ of diuersite can be assigned why thete naÌ„t for terme of lyfe after an accioÌ„ of wast was gyueÌ„ agaynst hiÌ„ shuld haue any more fauour iÌ„ the lawe thaÌ„ the tenaÌ„t by the curtesie or tenauÌ„t iÌ„ dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre none to be done / and so it semethe that the lawe in this case dothe nat considre the abilite of the persone that dothe the waste whether he be able to make recompeÌ„ce for the wast or nat But the assent of the sayd tenauntes wherby they haue wylfully taken vpon theÌ„ the charge to se that no wast shal be done ¶ Doctor I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast ¶ Student Trouthe it is ¶ Doct. And I thynke the reason is bycause they can haue no recouere ouer ¶ Student I take nat that for the reason but that it is an olde reasonable maxime iÌ„ the lawe that they shuld be discharged iÌ„ those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst reason and nat to be obserued / but yet neuertheles I take it nat so / for they myght refuse to take suche estate if they wolde / and if they wyll take the state after the lawe made it semeth reasonable that they take it with the charge and with the condicion that is appoynted therto by the lawe thoughe hurte myght folowe to theÌ„ afterward therby / for it is oftentymes sene iÌ„ the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wylfully renne into it of his owne acte nat coÌ„pelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after bloweÌ„ downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shal be bouÌ„de to repayre them or els he shall forfayte his obligacioÌ„ in lawe conscience bycause it is his owne acte to bynde hiÌ„ to it / yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore So me thiÌ„keth that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whaÌ„ the houses be destroyed by sodeyne tempest or by straunge enemyes is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr peryl se that no waste shal be done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpeÌ„ by the lawe of reason / it semeth that he shal be charged in this case by his owne acte bothe in lawe conscience whether the straunger be able to recompence hym or nat ¶ Doctour I doute iÌ„ this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other For that lawe semeth nat reasonable that byndeth a man to an impossibilite And it is impossible to preuent that no wast shal be done by straungers / for it may be sodeynly done iÌ„ the nyght that the tenauÌ„tê can haue no notice of / or by great power that they be nat able to resyste / and therfore me thiÌ„keth they ought nat to be charged in those cases for the waste / without they may haue good remedy ouer and thaÌ„ percase the sayd maxime were sufferable / els my thynketh it is maxime agaiÌ„st reason ¶ StudeÌ„t As I haue sayd before no man shal be compelled to take that boÌ„de vpon hym but he that wyll take the lande and if he wyll take the lande it is reasoÌ„ he take the charge as the lawe hath appoynted with it / and thaÌ„ if any hurte growe to hym therby it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde ¶ Doctoure Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womaÌ„ may refuse to take her dower yet tenauÌ„t by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe the possession abideth styll iÌ„ hym by the acte of the lawe without entre / and thaÌ„ I put the case that after the deth of his wyfe he wolde weyue the possessioÌ„ after wast were done by a strauÌ„ger whether thiÌ„kest thou that he shuld answere to the wast ¶ Stu. I thynke he shulde by the lawe ¶ Doct. And howe staÌ„deth that with reasoÌ„ / seyng there is no defaut iÌ„ hiÌ„ ¶ Stu. It was his defaut / at his owne peryll that he wolde marye an enheritrice whervpon such dauÌ„ger myght folowe ¶ Doc. I put case that he were withiÌ„ age at the mariage or that the laÌ„de disceÌ„ded to his wyfe aft he maried her Stu. there thou mouest a 〈◊〉 doute than the fyrste question is /
though it were as thou sayst / yet thou cannest nat say but that there is as great defaut in hiÌ„ as is in hym in the reuercion / that there is as great reason why he shulde be charged with the waste as that he in the reuercion shulde be disherited and haue no maner remedy ne yet no profytte of the lande as the other hathe / and thoughe he sayd maxime may be thought very streyt to the sayd tenauntes yet is it for to be fauoured as moche as may be reasonably / bycause it helpeth moche the comon welthe / for it hurteth the comon welthe greately whan wodes and houses ben destroyed / if they shulde answere for no waste / but for waste done by them selfe there myght be waste done by straungers by theyr coÌ„mauÌ„demeÌ„t or assent in suche colourable maner that they iÌ„ the reuercion shulde neuer haue ê“fe of theyr assent ¶ Doctoure I am coÌ„tent thyne opinion stande for this tyme / and I praye the nowe procede to a nother question ⧠The fourth question of the student The .v. Chapitre STudente If he that is the very heyre be certified by the ordinarie bastarde and after bryng an accion as heyre agaynste an other ê‘sone / whether may any man knowyng the trouthe be of counsayle with the tenaunt and plede the sayd certificate agaynst the demaundaunt by conscience or nat ¶ Doctoure Is the lawe in this case that al other against whome the demaundaunt hathe tytle shall take aduaÌ„tage of this certificate as well as he at whose sute he is certified bastarde ¶ Student ye verely / that for two causes / wher of the one is this There is an old maxime in the lawe that a mischyfe shal be rather suffred thaÌ„ an inconuenieÌ„ce / than in this case if a nother writte shuld afterwarde be sent to a nother bysshope iÌ„ an other accion to certifie wether he were bastarde or nat / peraduenture that bysshope wolde certifie that he were mulier / that is to say lawfully begotten and than he shulde recouer as heyre / and so he shulde in one selfe court be taken as mulier bastarde / for auoydynge of whiche contrariosyte the lawe wyll suffre no mo wrytes to go forth in that case / and suffreth also all men to take aduauntage of that certificate rather thaÌ„ to suffre suche a contradicion in the courte whiche in the lawe called an inconuenieÌ„ce / the other cause is bycause this certificate of the bysshope is the hyest trial that is iÌ„ the law iÌ„ this behalfe But this is nat vnderstaÌ„de but where bastardy is layde in one that is ê‘ty to the wryt / for if bastardy be layde in one that is estraÌ„ge to the writ as iÌ„ a vouch pray en ayde or suche other / than that bastardy shal be tried by .xii. meÌ„ by which triall he iÌ„ whome the bastardy is layde shall nat be coÌ„cluded bycause he is nat priue to the trial may haue no attaiÌ„t / but he that is ê‘ty to the issue may haue attaint / therfore he shal be coÌ„cluded none other but he for as moche as the sayd maxime was or deyned to eschewe an incoÌ„uenieÌ„cy as byfore apê‘eth it semeth that euery man lerned may with coÌ„scieÌ„ce plede the said certificate for auoydyng therof / gyue couÌ„saill therin to the ê‘ty accordyng vnto the lawe for els the sayd incoÌ„uenieÌ„cy must nedely folowe But yet neuertheles I do nat meane therby that the party may after whan he hath barred the demauÌ„daÌ„t by the sayd certificate reteine the lande in coÌ„scieÌ„ce by reason of the sayd certificate / for though ther be no lawe to coÌ„pel hym to restore it / yet I thynke well that in coÌ„science he is bounde to restore it / if he knowe that the demaundauÌ„t is the very true heyre wherof I haue put diuerse cases lyke in the .xvii. chapi of our fyrst dialogue iÌ„ latyn but my enteÌ„t is that a maÌ„ lerned iÌ„ the lawe iÌ„ this case other lyke may with coÌ„scieÌ„ce gyue his counsayle accordynge to the lawe in auoydyng of such thyngê as the lawe thynke it shuld for a resonable cause be eschewed ¶ Doc. Though he that doth nat know whether he be bastarde or nat may gyue his counsayle also plede the sayd certificate yet I thynke that he that doth knowe hym selfe to be the very true heyre may nat plede it / that is for two causes Wherof the one is this Euery man is bounde by the lawe of reason to do as he wolde be done to / but I thynke that if he that pledeth that certificate were in lyke case he wold thynke that no maÌ„ knowyng the sayd certificate to be vntrue myght with conscience plede it agaynst hiÌ„ / wherfore no more may he plede it agaynst none other The other cause is this / although the certificate be pleded yet is the tenaunt bouÌ„den in conscience to make restitucion therof as thou hast sayd thy selfe / thaÌ„ in case that he wolde nat make restitucion / than he that pleadeth the plee shulde renne therby in lyke offence / for he hathe holpen to set the other man in suche a liberty that he may chose whether he wil restore the laÌ„de or nat / and so he shulde put hym selfe to the ieoparty of a nother mannes conscience And it is wryten Ecclesiasti .iii. Qui amat periculum peribit in illo That is / he that wylfully wyll put hiÌ„ selfe in ieoparty to offende shal perysshe therin / and therfore it is the surest way to eschew perylles / fro hym that knoweth that he is heyre nat to plede it / and as for the inconuenience that thou sayest must nedely folowe but the certificate be pleded as to that it may be answered that it maye be pleded by some other that knoweth nat that he is very heyre / and if the case be so farre put that there is none other lerned there but he than me thynketh that he shall rather suffre the sayd inconuenience than to hurt his owne conscience / for alwaye charite beginneth at him selfe so euery man ought to suffre all other offences rather than he hym selfe shulde offende And nowe that in this case I pray the procede to thou knowest myne opinion a nother question ⧠The .v. question of the student The .vi. Chapitre STudent Whether may a man with coÌ„science be of counsayle with the playntyfe in an accion of the comon lawe knowynge that the defendaunt hathe sufficient mater in conscience wherby he may be discharged by a Sub pena in the chauÌ„cery whiche he can nat pleade at the comoÌ„ lawe or nat ¶ Doctoure I praye the put a case therof in certeyne for els the questioÌ„ is very generall ¶ Student I wyll put the same case that thou puttest iÌ„ our fyrste dialogue in latyne the .x. Chapitre that is to say / if a man bounde in an obligacion / pay the money taketh none acquitaunce so that by
nat vouche for him excepte it be that he knoweth that the tenaunt hathe a true cause of voucher and of lyen / and that he doth it to brynge hym therto / in lykwyse he may nat pray in age for hym oneles he knowe the praye haue good cause of voucher and lyen ouer / or that he knowe that the pray hath somwhat to pleade that the tenaunt maye nat pleade as vyllen age in the demaundaunte or suche other ¶ Doctour Thoughe the playntyfe hath brought an accion that is vntrue and nat mayntenable in the lawe / yet the defendaunte dothe wronge to the playntyfe in the withholdynge of the profytes as wel byfore the accion brought as hangynge the accion / and that wronge as it semeth the couÌ„saylour doth mayntaine / and also sheweth hym selfe to fauoure the partie in that wronge whan he gyueth coÌ„cell agaynst the accion ¶ Sudent If the playntyfe do take that for a fauoure and a maynteynauÌ„ce of his wronge he iugethe ferther than the cause is gyuen / so that the couÌ„saylour do no more but gyue couÌ„sayle agaynst the accion / for though he gyue hiÌ„ couÌ„sayle to withstande the accioÌ„ for the vntruth of it / that he shulde nat coÌ„fesse it to make therby a fine to the kyng without cause / yet it may stande with that he may gyue counsayle to the partie to yelde the profytes / and therfore I thinke he may in this case of counsayle with hym at the comon lawe and be agaynst hym in the chauÌ„cery and in eyther courte gyue his couÌ„sayl without any contrariosite or hurte of conscience / and vpon this grounde it is that a man may with good conscience be of couÌ„sayle with hym that hath lande by discent or by a discontinuauÌ„ce withouten tytle / if he that hathe the ryght brynge nat his accion accordynge to the lawe for the recouerynge of his ryght in that behalfe ⧠The seuenth question of the studente The .viii. Chapitre STudent If a man take a distresse for dette vpon an obligacioÌ„ or vpon a coÌ„tracte or suche other thynge that he hath right title to haue but that he ought nat by the lawe to distrayne for it / and neuertheles he kepeth the same distresse in pounde tyll he be payed of his dutye / what restitucion is he bounde to make in this case / whether shall he repay the money bycause he is come to it by an vnlawfull menes or onely to restore the partye for the wrongfull takyng of the distres or for neyther I pray you shewe me ¶ Doctoure what is the lawe in this case ¶ Student That he that is distrayned may brynge a speciall accion of trespasse agaynst hiÌ„ that distreyned / for that he toke his beestê wroÌ„g fully and kept them tyll he made a fyne / therfore he shal recouer that fyne in damages as he shal do for the residue of trespas for that takyng of the money by suche coÌ„pulcion is taken in the lawe but as a fyne wrongfully taken / thoughe it be his duete to haue it ¶ Doctour yet though he may so recouer me thynketh that as to the repayment of the money he is nat bounde therto in coÌ„science so that he take no more thaÌ„ of ryght he ought to haue / for though he come to it by an vniust meane / yet whaÌ„ the money is payed hym it is his of ryght and he is nat bounde to repaye it oneles it be recouered as thou sayd / and than whan he hathe repayed it he is as me thynkethe restored to his fyrst accioÌ„ / but to the redelyuere of the beestes with suche damages suche hurte as he hathe by the distresse I suppose he is bounde to make recompence of them in conscience without compulcion or sute in the lawe / for thoughe he myght lawfully haue sued for his duete in suche maner as the lawe hathe ordred / yet I agre well that he maye nat take vpon hym to be his owne iuge and to come to his duty agaynst the order of the lawe / and therfore if any hurte come to the partie by that disorder he is bounde to restore it But I wolde thynke it were the more doute if a maÌ„ toke such a distresse for a trespasse done to hym and kepeth the distresse tyll amendes be made for the trespasse / for iÌ„ that cas the damages ben nat in certayne but be arbitrable eyther by assent of the parties or by .xii. men / and it semeth that there is no asseÌ„t of the partie in this case specially no fre assent / for that he dothe is by compulcion and to haue his dystres agayne / and so his assent is nat moche to be pondered in that case / for all is the assessynge of hiÌ„ that toke the distresse / and so he hathe made hiÌ„ selfe his owne iuge / and that is prohibited in all lawes / but in that case where the distresse is takeÌ„ for dette he is nat his owne iuge / for the dette was iuged incertaine by fore by the fyrst contracte / therfore some thynke great diuersite betwene the cases ¶ Student By that reason it semeth that if he that distrayneth in the fyrste case for the dette take any thynge for his damagê that he is bounde in conscience to restore it agayne / for damagê be arbitrable and nat certayne no more than trespasse is / me semeth that both in the case of trespasse and dette he is bouÌ„de in coÌ„scieÌ„ce to restore that he taketh / for thoughe he ought in ryghte to haue lyke suÌ„me as he resceyueth / yet he ought nat to haue that money that he receyueth / for he came to that money by an vniust menes / wherfor it semeth he ought to restore it agayne ¶ Doctour And if he shuld be coÌ„pelled to restore it againe shuld he nat yet for that he receyued it ones be barred of his fyrst accion nat withstaÌ„dyng the repaymeÌ„t ¶ Stud. I wyll nat at this tyme clerely assoyle the that question / but this I wyll say that if any hurte come to hym therby it is through his owne defaut for that he wolde do agaynst the lawe / but neuertheles a lytell I wyll say to thy questioÌ„ / that as me semeth whaÌ„ he hath repayed the money that he is restored to his first accioÌ„ As if a maÌ„ coÌ„deÌ„pned in an accion of trespasse pay the money / after the defendauÌ„t reuers the iugement by a wrytte of errour and haue his money repayed / than the playntyfe is restored to his fyrst accioÌ„ And therfore if he that iÌ„ this case toke the money restored that he toke by the wrong full distresse or that he ordred the mater so liberally that the other murmure nat necoÌ„playne nat at it / me semethe he dyd verey well to be sure in conscience and therfore I wolde aduyse euery man to be wel ware howe he distrayneth in suche case agaynst the lawe ¶ Doctoure Thy counsayle is good / and I note moche in
no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hiÌ„ whether they wolde paye it or nat And therfore to be out of peryll it is necessarye that he paye it hym selfe / and than is he surely discharged agaynst all men ⧠The .x. question of the student The .xii. Chapitre ¶ STudent A man seased of certayne lande in his demeane as of fee / hathe issue two sones and dyeth seased / after whose dethe a straunger abateth / taketh the profytes / and after the eldest sone dieth without issue and his brother bringeth an assise of MortdauÌ„cestre as sone and heyre to his father nat makynge mencion of his brother and recouereth the lande with damages fro the deth of his father as he may wel by the lawe / whether iÌ„ this case is the yonger brother bounde in coÌ„science to pay to the executours of the eldest brother the value of the profytê of the sayd lande that belonged to the eldest brother in his lyfe or nat ¶ Doctour What is thyne opinion therin ¶ Student That lyke as the said profytes belonged of right to the eldest brother in his lyfe / and that he had full auctorite to haue released as well the ryghte of the sayd lande as of the sayd ê“fytê / whiche release shulde haue ben a clere barre to the yonger brother for euer That the ryght of the said damages whiche be in the lawe but a chatell / bylonge to his executoures and nat to the heyre / for no maner of chatell neyther reall nor parsonall shall nat after the lawe of the realme discende vnto the heyre ¶ Doctoure Thou saydest to the case next byfore / that it is nat of the lawe of reason that a man shall may make executours / and dispose his goodes by his wyll / and that the executoures shall haue the goodes to dispose but by the lawe of man / and if it be lefte to the terminacion of the lawe of man ThaÌ„ in suche cases as the lawe gyueth suche chatelles vnto the executoures / they shall haue good ryghte vnto them / and in suche cases as the lawe takethe suche chatelles frome them they bene ryghtfully taken frome them And therfore it is thoughte by many that if a man sue a wrytte of ryghte of warde of awarde that he hathe by his owne fee and dyeth hangynge the wrytte / and his heyre sue a resomons accordynge to the statute of Westmester seconde / and recouereth that in that case the heyre shal enioye the wardeshype agaynste the executoures / and yet it is but a chatel / and they take the reason to be bycause of the sayd estatute / and so myghte it be ordeyned by statute that all wardes shulde go to the heyres and nat to the executoures Ryght so iÌ„ this case syth the lawe is suche that the yonger brother shall in this case haue an assyse of Mort dauncestre as heyre to his father nat makynge any mencion of his elder brother recouer damages as well iÌ„ the tyme of his brother as in his owne tyme it appereth that the lawe gyueth the right of these damages to the heyre / and therfore no recompence ought to be made to the executoures as me semeth / and it is nat lyke to a wryt of Ayel where as I haue lerned iÌ„ Latyn syth our fyrste dialogue the demaundauÌ„t shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demauÌ„t though his Ayel ouer lyued his father must of necessite make his coÌ„ueyauÌ„ce by his father muste make hiÌ„ selfe sone heyre to his father cosyn heyre to his Ayel / therfore in that case if the father ouer liued the Ayel the abatour were bouÌ„den in coÌ„science to restore to the executours of the father the profytes reÌ„ne in his tyme / for no lawe taketh theÌ„ fro hiÌ„ / but otherwyse is iÌ„ this case as me semeth ¶ Student If the yonger brother in this case had entred into the lande without takyng any assyse of Mort dauncestoure as he myght if he wolde / to whome were the abatour than bounden to make restitucioÌ„ for those profytes as thou thynkest ¶ Doctour To the executours of the eldest brother / for iÌ„ that case there is no law that taketh them from them / and therfore the general grounde whiche is that al chatels shall go to the executoures holdeth in that case / but in this case that grounde is broken and holdeth nat for the reason that I haue made byfore / for comonly there is no general grounde in the lawe so sure but that it fayleth in some particuler case ⧠The .xi. question of the student The .xiii. Chapitre STudent A man seased of lande in fee taketh a wyfe / and after alieneth the lande and dyeth / after whose deth his wyfe asketh her dower and the aliene refuseth to assigne it vnto her / but after she asketh her dower agayne and he assigneth it vnto her / whether is the alme in this case bounde in conscience to gyue the woman damages for the profites of the land after her thyrde parte fro the dethe of her husbande / or fro the fyrst request of her dower or neyther the one nor the other ¶ Doct. what is the lawe in this case ¶ Student By the lawe the woman shall recouer no damagê / for at the comoÌ„ lawe the demauÌ„daunt iÌ„ a wrytte of dower shulde neuer haue recouered damages But by the statute of Marton yt is ordeyned that where the husband dyeth seased that the womaÌ„ shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / suche damagê as she hathe by the forberynge of it / but in this case the husbande dyed not seased / where fore she shall recouer no damages by the lawe ¶ Doctour yet the lawe is that immediately after the dethe of her husbande the wyfe ought of ryght to haue her dower yf she aske it thoughe her husbande died not seased ¶ Student That is trewe ¶ Doctoure And sithe she ought to haue her dower fro the dethe of her husbande yt semeth that she ought in coÌ„science to haue also the profytes fro the dethe of her husbande though she haue no remedy to come to them by the lawe / for me thynketh that that this case is lyke too a case that thou puttest in our fyrste dyalogue in latyn the xvii chapytre That if a tenaunte for terme of lyfe be dysseased dye / the disseasoure dyeth / and his heyre entreth and taketh the profytes / after he in the reuercyon recouereth the laÌ„dê against the heyre as he ought too do by the lawe / that in that case he shall recouer no damages by the lawe And yet thou dydest agree that iÌ„ that case the heyre is bounde in concience to pay the damages to the demaundaunt so me
husbande and they haue issue the father deyeth seased / the husbande as sone as he hereth of his deth goeth towarde the lande to take possession / and byfore he can come there his wyfe dieth / whether ought he to haue the lande in cōscience for terme of his lyfe as tenaunt by the courtesie bycause he hath done that in hym was to haue had possession in his wyues lyfe so that he myght haue ben tenaunt by the courtesie accordynge to the lawe / or that he shall neyther haue it by lawe nor conscience ¶ Doctour Is it clerely holdē in the law that he shall nat be tenaunt by the curtesy in this case bycause he had nat possession in dede ¶ Student ye verely / and yet vpō a possessiciō in lawe a womā shal haue her dower / but no man shal be tenaunte by the curtesie of lāde without his wyfe haue possession in dede ¶ Doctoure A man shal be tenaunt by the curtesie of a rent thoughe his wyfe dye byfore the day of payment / in lyke wyse of an aduowson thoughe she dye byfore the auoydaunce ¶ Studente That is trouthe / for the olde custome and maxime of the lawe is that he shall be so / but of lande there is no maxime that serueth hym but his wyfe haue possession in dede ¶ Doctour And what is the reason that there is suche a maxime in the lawe of the rent and of the aduowson rather thā of lande / whan the husbāde doth as moche as in hym is to haue possessiō and can nat ¶ Studēt Some assigne the reason to be bycause it is impossible to haue possession in dede of the rent or of aduouson byfore the daye of payment of the rent / or byfore the auoydaunce of the aduouson ¶ Doct. And so is impossible that he shal haue possession in dede of lande if his wyfe dye so sone that he maye nat by possibilitie come to the lande after her fathers dethe / and in her lyfe as this case is ¶ Student The lawe is suche as I haue shewed the byfore and I take the verey cause to be for that there is a maxime serueth for the rent and the aduouson / and nat for the landes as I haue sayd byfore / and as it is sayd in the viii chapitre of our fyrst dialogue / it is nat alwaye necessarie to assigne a reason or cōsideraciō why the maximes of the lawe of Englande were fyrst ordeyned and admitted for maximes / but it suffisethe that they haue ben alwaye taken for lawe and that they be neyther cōtrarie to the lawe of reason nor to the lawe of god as this maxime is nat / and therfore if the husbande in this case be nat holpen by cōscience he can nat be holpen by the lawe ¶ Doctour And if the lawe helpe hym nat cōscience can nat helpe hym in this case / for conscience must alwaye be grounded vpon some lawe / and it can nat in this case be groūded vpon the lawe of reason nor vpon the lawe of god / for it is nat dyrectely by those lawes that a man shal be tenaūt by the curtesy / but by the custome of the realme And therfore if that custome helpe hī nat he can nothyng haue in this case by conscience / for conscience neuer resysteth the lawe of mā nor addeth nothynge to it / but where the lawe of man is in it selfe dyrectly against the lawe of reason or els the lawe of god / and than properly it can nat be called a lawe but a corrupcion / or where the generall groundes of the lawe of man worketh in any particuler case agaynste the sayd lawes as it may do / and yet the lawe good as it appereth in diuerse places in our fyrst dialogue in latyne / or els where there is no lawe of man prouided for hym that hathe ryghte to a thynge by the lawe of reason or by the lawe of god And than somtyme there is remedy gyuen to execute that in cōscience / as by a Sub pena but nat in all cases / for somtyme it shal be referred to the consciēce of the partie / and vpon this grounde that is to saye that whan there is no tytle gyuen by the comon lawe that there is no tytle by conscience There be diuerse other cases wherof I shall put some for an example As if a reuercion be graunted vnto one / but there is none attournement / or if a newe rente be graunted by worde with out dede there is no remedy by conscience oneles the sayd grauntes were made vpon consideracions of money or suche other And in lyke wyse where he that is seased of landes in fee simple maketh a wyll therof / the wyll is voyde in conscience bycause the grounde seruethe nat for hym wherby the conscience shulde take effecte / that is to saye / the lawe / and if the tenaunte make a feoffement of the lande that he holdeth by priorite and taketh estate agayne and dyeth his heyre within age the lorde of whome the lande was fyrst holden by prioritie shall haue no remedy for the body by conscience / for the lawe that fyrste was with hym / is nowe agaynste hym / and therfore cōsciēce is altered in lyke wyse as the lawe altereth / and diuerse and many cases lyke be in the lawe that were to long to reherce nowe And thus me thynketh that if the lawe be as thou sayest the husbande ī this case hathe neyther ryght by the lawe nor conscience ⧠The .xiiii. question of the student The .xvi. Chapitre STudent A rent is graunted to a man ī fee to perceyue of two acres of land / and after the graūtour enfeoffeth the grauntee of one of the sayd acres / whether is the hole rente extyncte therby in conscience as it is in the lawe ¶ Doctour Thy case is somwhat vncertayne / for it appereth nat whether the grauntour enfeoffed hym on truste or that he gaue the acre to hym of his mere mocion to the vse of the sayd feoffe / or els that the feoffement was made vpon a bargayne / and if it were but onely a feoffement of truste / than I thinke the hole rent abydeth in conscience though it be extyncted in the lawe / and fyrste that it continueth in that case in conscience / for that parte that the grauntee hathe to the vse of the grauntour / it is euidente / for he may nat take the profytes of the lande / and it is agaynste conscience that he shulde lese bothe / and in lyke wyse it abydeth ī cōscience for the acre that remayneth in the handes of the grauntour thoughe it be extyncte in the lawe / for there was a defaute in the grauntoure that he wolde make the feoffement to the grauntee as well as ther was in the grauntee to take it And it is no conscience that of his owne defaute he shulde take so great auayle to be discharged of the hole rent seynge that
the feoffement was made to his owne vse And if the feoffemeÌ„t were made vpon a bargayne and a contracte betwene them / than it is to se whether they remembred the rent in in theyr bargayne / or that they remeÌ„bred it nat / if they remembred it in theyr bargayne and contracte / than coÌ„science must folowe the bargaine / as thus if they agreed that the grauntee shulde haue the rent after the porcion in the other acre than by conscience he ought to haue it thoughe it be extincted iÌ„ the lawe And if they agreed that the hoole rente shulde be extyncte and made theyr pryce accordynge than it is extyncte in lawe and conscience / and if they clerely forgete it and made no mencion of it / or for lacke of connynge toke the lawe to be that it shulde continue in the other acre after the porcion and made theyr price accordynge / ponderynge onely the value of the acre that was solde than me thynketh / it dothe continue in conscience after the porcion / and if the feoffement were made to the vse of the grauÌ„tee / than it semeth the hole rente is extyncte in lawe and conscience ¶ Student Than take that to be the case / that is to saye / that the feoffement was made to the vse of the grauÌ„tee ¶ Doctoure What is than thyne opinion therin ¶ Student That the rente shulde abyde in conscience after the porcion for the acre that remayneth in the handes of the grauntoure natwithstandynge it be extyncte in the lawe ¶ Doctoure Than shewe me thyne opinion iÌ„ this that I shall aske the. Of what lawe is it that grauntes of rent and of suche other profites out of landes maye be made and that they shal be good and effectual to the grauÌ„tees / whether is it by the lawe of reason or by the lawe of god or by the custome and lawe of the realme ¶ Studente I thinke it is by the lawe of reasoÌ„ / for by the same reason that a man may gyue awaye all his landes he maye as it semethe gyue awaye the profytes therof or graunte a rent out of the lande if he wyl ¶ Doctour But than by what lawe is it that a man maye gyue awaye his landes / I trowe by none other lawe but by the custome of the realme / for by statute all alienacions and gyftes of landes maye be prohibite / and than that reason proueth nat that grauntes of the ê“fytes of lande or of a rent shuld be good by cause he maye alien the lande / if alienacions of lande be by custome and nat by the lawe of reasoÌ„ as I suppose it is / wherof I touched somwhat in our fyrste dialogue in latyne the .xix. Chapitre And also if grauntes shulde haue theyr effecte by the lawe of reason than reason wolde that they shulde be good by the onely word of the grauntoure as well as by his dede / that is nat so / for without dede the graunt of rent is voyde in the lawe and so my thinketh that grauÌ„tes haue theyr effecte onely by the lawe of the realme ¶ StudeÌ„t Admyt it to be so what meanest thou therby ¶ Doctour I shal shewe the here after as I shall shewe the the cause why I thynke the rente is extyncte in conscience as well as in lawe And fyrste as I take it the reason why it is extyncte in the lawe is bycause the rent by the fyrst graunt was goynge out of bothe acres / and was nat goyng parte out of the one acre and part out of the other / but the hole rent was goyng out of bothe / and than whan the grauntee of his one foly wyll take estate in the one acre wherby that acre is discharged / than the other acre also muste be discharged oneles it shulde be apporcioned and the law wyl nat that any apporcionemeÌ„t shulde be in that case / but rather in as moche as the partie hathe by his owne acte discharged the one acre the lawe dischargeth also the other / rather than to suffre the other acre to be charged coÌ„trarie to the fourme of the graunte / for this reÌ„t begynneth all by the acte of the party and as I haue herde is called a reÌ„t agaynst comoÌ„ ryght / wherfore it is nat fauored iÌ„ the law as a rent seruice is / and than me thynketh that for as moch as it is nat grouÌ„ded by the lawe of reason that grauntes of rent shulde be made out of lande / but by the custome and law of the realme as I haue sayd byfore / that so in lyke wyse it remayneth to the lawe and custome of the realme to determine howe loÌ„g suche rentes shall continue And whan the lawe iugeth suche rentes to be voyde I suppose that so doth conscience also / except the iugement of the lawe be agaynste the lawe of reason or the lawe of god / as it is nat in this case for in this case he that taketh the feoffement hath profite by the feoffement / and knoweth that he hath suche a rent out of the lande / and that his purchace shulde extynct it / wherby it appereth that he asienteth vnto the lawe wherto he was nat compelled / and that is his owne acte and his owne defaut so to do / whiche shall extyncte his hole rent as well in consciente as in the lawe But if he haue no ê“fyte of the lande or be ignoraunt that he hathe suche a rent out of the lande whiche is called ignoraunce of the dede / or if he be ignorauÌ„t that the lawe wolde extyncte his hole reÌ„t therby / which is called ignorauÌ„ce of the lawe / than me thynkethe it remayneth in conscience after the porcion ¶ Student Ignoraunce of the lawe or of the dede helpeth nat but in fewe cases iÌ„ the lawe of Englande ¶ Doctoure And therfore it muste be refourmed by conscience / that is to say by the lawe of reasoÌ„ / for whaÌ„ the generall maximes of the lawe be iÌ„ any particuler cases against the lawe of reason as this maxime semeth to be bycause it excepteth nat theÌ„ that be ignorauÌ„t thoughe it be an ignoraunce in vincible thaÌ„ do they nat agree with the lawe of reason ¶ Student We thynketh that ignoraunce iÌ„ this case helpeth lytell / for whan a man byethe any lande or taketh it of the gyfte of any other he taketh it at his peryl / so that if the tytle be nat good ignorauÌ„ce caÌ„ nat helpe / for the byer muste byware what he byeth / and so in this case if the takyng of the one acre shulde extincte the hole rent in conscience if he were nat ignoraunt / some thynketh it shulde in lyke wyse extincte it also thoughe he be ignoraunt of the lawe or of the dede / for euery man must be compelled to take notyce of his owne tytle and out of what lande his rent is goynge / some thynketh ignoraunce is but lytell to be coÌ„sidered in this case ¶ Doctour
If a man bye laÌ„de or take it of the gyfte of an other it is reason that he take it with the peryll though he be ignorauÌ„t that a nother hath ryght / for it were nat standynge with reason that his ignoraunce shulde extyncte the ryght of a nother / but in this case ther is no doute of the ryght of the lande / but al the doute is howe the rent shal be ordred in conscience if he that hathe the rente take parte of the lande / and therin is great diuersite bytwene hym that is ignoraunt in the lawe / and him that knoweth the lawe / and knowethe well also that he hathe a rent out of that land and other For I put case that he asked counsayle of the grauntour hym selfe therin and he saynge as he thought tolde hiÌ„ that the takyng of the one acre shuld nat extyncte the rent but for the porcion and so he thynkynge the lawe to be toke the other acre of his gyfte Is it nat reasonable in that case that that ignoraunce shulde saue the rent in conscience ¶ Student yes / for there the grauntour hym selfe is partie to his ignoraunce and is in maner the cause therof ¶ Doctour And me thynkethe all is one if any other had shewed hym so / or if he had asked no counsayle at all / for me thynkethe it suffiseth in this case that he be ignorauÌ„t of the lawe / for why / it is more harde in this cas to proue that the rent shulde be extyncte in conscience thoughe he knowe it shal be extyncted in the lawe than to proue that it continueth in conscience after the porcion if he be ignoraÌ„t / thou thy self were of the same opinion / as it appereth in the begynnynge of this present Chapitre / but if that opinion were true it wolde be hard to ê“ue but that the sayd generall maxime were holly agaynste reason / thaÌ„ it were voyd / but I haue sufficiently answered therto as me semethe / and that it is extyncte in the lawe and also in conscience / excepte ignoraunce helpe it to be apporcioned And more ouer for as moch as apporcionemeÌ„t is suffred in the lawe where ê‘te of the land discendeth to the grauntee bycause no defaute can be assigned in hym / so me thynketh no defaute can be assigned in hym in conscience whaÌ„ he is ignorauÌ„t of the lawe or of the dede thoughe suche ignorauÌ„ce do nat excuse in the lawe of the realme ¶ Student I am contente with thyne opinion in this behalfe at this tyme. ⧠The .xv. question of the student The .xvii. Chapitre STudent A maÌ„ grauÌ„teth a reÌ„t charge out of two acres of lande / and after the grauntour enfeoffeth Henry hert in one of the sayd two acres to the vse of the sayd Henry herte and of his heyres / after the sayd Henry herte entendynge to extyncte all the rent causeth the sayd acre to be recouered agaynste hym to his owne vse in a wryt of entre in the post in the name of the grauntee and of other after the comon course / the grauntee nat knowyng of it / and by force of the sayd recouere the other demaundauÌ„tes entre and dye / lyuyng the grauntee / so that the grauÌ„tee is seased of al by the surueiour to the vse of the sayd Henry herte / whether is the sayd rent extyncte in conscience in parte nor in all or iÌ„ no parte ¶ Doctour I am in doute of the lawe in this case ¶ Student In what poynt ¶ Doctoure whether the hole rent be goynge out of the acre that remayneth in the handes of the grauÌ„tour bycause the grauntee cometh to the lande by waye of recouere / or that it shal be extyncte in the law / but after the porcioÌ„ by cause the grauÌ„tee hathe nat the acre to his owne vse / or that the hole reÌ„t shal be extincte iÌ„ the lawe ¶ Student The rent can nat be hoole goynge out of the acre that the grauntoure hathe / for this recouere is vpon a fayned tytle / the grauÌ„tour bycause he is strauÌ„ge to it shal be well resceyued to falsifie it But if the recouerye had ben vpon a true tytle than it had ben as thou sayest / for if the grauntee recouer the one acre agaynst the grauntour vpon a true tytle / the grauÌ„tour shall pay the hole rent out of that laÌ„de that remayneth in his haÌ„de / and as to the vse it maketh no mater to the grauntoure as to the lawe in whome the vse be / for the possession without the vse extynguyssheth the hole rent as agaynst hym in the lawe as well as if the possession vse were both ioyned to gether in the grauntee ¶ Doct. Than me thynkethe that the sayd Henry herte is bounden in conscience to paye the grauÌ„tee the rent after the porcion of that acre that was recouered / for it caÌ„ nat staÌ„de with conscience that he shulde lose his rent and haue no profites of the lande ¶ Student Than of whome shall he haue the other porcion of his rente ¶ Doctoure Is the lawe clere that the acre that the grauntour hath shal be in this case discharged in the lawe ¶ Student I take the lawe so ¶ Doctour And what in conscience ¶ Student As agaynste the grauntoure me thynketh / also it is extyncte in conscience for the reason that thou hast made in the .xvi. Chapitre / for it is all one in conscience in this case as agaynst the grauÌ„tour whether the recouere were to the vse of the grauntee or nat / especially seynge that the grauntoure is nat priuey to the recouery / for the vnite of possession is the cause of extinguisshemeÌ„t of the rent against the grauÌ„toure bothe in lawe and conscience where so euer the vse be / but if the grauntour had ben priuey to the cause of the extynguisshement as he was in the case that I put in the laste Chapitre where the grauntoure enfeoffed the grauntee of one of the acres to the vse of the grauntee there it is nat extyncte in conscience in that acre that remayneth in the handes of the grauntoure thoughe it be extyncted iÌ„ the lawe / bycause he was pryuey to the extynguisshement hiÌ„selfe / but he is nat so in this case / and therfore it is extyncte agaynst hym iÌ„ lawe and conscience And therfore me thynkethe that the grauntee shall in conscience haue the hoole rente of the sayd Henry herte that caused the sayd recouere to be had in his name / for in hym was all the defaute / but it is to be vnderstande that in all the cases where it is sayd byfore in this Chapitre or in the Chapitre nexte byfore that the rent is extincte in the lawe nat in conscience that in suche case all the remedies that the partie myght fyrste haue had for the rent at the comon lawe by distres assyse or otherwyse are determined / and the partie that ought to
haue the rent in coÌ„science shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am coÌ„tent with thy conceyte in this matter for this tyme. ⧠The .xvi. question of the student The .xviii. Chapitre STudent A vylleyne is graunted to a maÌ„ for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec ¶ Doctour Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hiÌ„ his landes and goodes and put his body in prysoÌ„ if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so to hym ¶ Sudent That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bisshoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe haue seased the landes and goodê of theyr vylleyns therby and cal it theyr ryght enheritaunce so to do that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with conscieÌ„ce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made ¶ Doctour Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes that the vylleyne purchaseth in fee to hym and to his heyres ¶ Student I verely I take it so ¶ Doctour I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenauÌ„t for terme of lyfe entreth he shal haue there none other estate iÌ„ the lande than he had in the seygnourye / and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne ¶ Stud. The cases be nat lyke / for in that case of the eschete the tenaunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignourie / that is to saye / in the place of the seignourie / the seignourie is clerely extincte / but in this case he hathe nat the lande iÌ„ the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ê“fyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne of lande in fee simple of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease accordyng to the lawe byfore the vylleyne alien or elles he shall haue nothynge ¶ Doctoure Verely and if the lawe be so / I thynke conscience folowethe the lawe therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres he purchaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre ¶ Student A fee simple / but that shal be to the behoue of the testatoure and shal be an assesse in his handes ¶ Doctoure Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question ¶ Ttudente For as moche as it appereth in this case and in some other byfore that the knowlege of the law of EnglaÌ„de is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what dauÌ„ger it is in conscience for the mistakynge of it ¶ Doctour I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge ⧠The .xvii. question of the student The .xix. Chapitre STudent A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenauÌ„t for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenauÌ„t for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that couÌ„sayle he in the reuercion entreth / by reason of the whiche entre great sutes and expences folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle ¶ Doctour Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste the lawe / or that he was ignoraunt of the lawe ¶ Student That he was ignorauÌ„t of the lawe for if he knewe the lawe gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampnified by it ¶ Doctour Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge to haue knowlege of the law after his capacite or that he toke vpon hiÌ„ to gyue counsayle and toke no study competent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile And also
is nat partie to the dede and therfore it can nat be taken by waye of graunte of the reuercion / for no graūte can be made but to hym that is partie to the dede excepte it be by way of remayndre / and therfore if a mā make a lease for terme of life / and after the lessour graunt to a staūger that the tenaūt for terme of lyfe shal haue the lande to him and to his heyres / that graunt is voyde if it be made onely of his mere mocion without recompence And in lyke wyse if a mā make a lease for terme of lyfe after graūt the reuerciō to one for terme of lyfe / the remayndre ouer in fee / and the renaūt atturneth to hym that hath the state for terme of lyfe onely / intēdyng that he onely shulde haue aduauntage of the graūte his entēt is voyde / and both shall take aduauntage therof / and the atturnament shal be taken good accordynge to the graunte / and so in this case though the feoffoure entended that if the rente were nat payed that the straūger shulde entre / yet bycause the lawe gyuethe hym no entre in that case that intent is voyde / and the same staunger shall neyther entre into the lande by lawe nor conscience ¶ Doctour What shal than be done with the lande as thou thynkest after the cōdicion broken ¶ Student I thynke that the feoffour in this case may lawfully reentre / for whan the feoffemēt was made vpon condicion that the feoffe shulde pay a rent to a straunger in tho wordes is concluded in the lawe that if the rent were nat payed to the straunger that the feoffoure shulde reentre for tho wordes vpon condicion / implie so moche in the lawe thoughe it be expressed And than whā the feoffour went ferther and sayd that if the rēt were nat payed that the straunger shulde entre / those wordes were voyde in the lawe / and so the effecte of the dede stode vpon the fyrst wordes wherby the feoffour maye reentre in lawe and conscience but if the fyrst wordes had nat ben cōdicionall I wolde haue holden it the greater doute ¶ Doctour I praye the put the case therof in certayne with suche wordes as be nat condicionall that I may the better perceyue what thou meanest therin ⧠The .xix. question of the studente The .xxi. Chapitre SSudent A man maketh a feoffement by dede indetted / and by the same dede it is agreed that the feffe shal pay to A.B. to his heyres a certayne rēt yerely at certayn dayes / that if he pay nat the rēt thā it is agreed that A.B. or his heyres shall entre into the lande / and after the feoffe payeth nat the rent / than the question is who ought in cōscience to haue this lande and rent ¶ Doctoure Or we argue what conscience wyll let vs knowe fyrste what the lawe wyll therin ¶ Student I thynke that by the lawe neyther the feoffoure ne yet the sayd A.B. shall neuer entre into the lande in this case for nat paymente of the rent for there is no reentre in this case gyuen to the feoffour for nat payment of the rent as there is in the case next byfore / and the entre that is gyuen to the sayd A. B. for nat paymēt therof is voyde in the lawe bycause he is estraūge to the dede as it appereth also in the next Chapitre byfore And therfore me thynketh that the greatest doute in this case is to se to what vse this feoffement shal be taken ¶ Doctour There appereth in this case as thou haste put it no consideracion ne recompence gyuen to the feoffour whervpon any vse may be deriuied / if the case be so in dede that the feoffour declared neuer his mynde therin / to what vse shall it thā be takē ¶ Stu. I thynke it shal be taken to be to the vse of the feoffe as longe as he payeth the rente / for there is no reason why the feoffe shulde be busied with paymēt of the rent hauyng nothynge for his labour / ne it may nat cōueniently be taken that the intent of the feoffour was so / excepte he expressed it / thā it must be taken that he intended to recōpense the feffe for the busynes that he shuld haue in the payment ouer / and by the wordes folowyng his intent appereth to be so as me thynketh / for if the rēt were nat payed he wolde that A.B. shulde entre / and so it semeth he entended nat to haue any vse hym selfe and thus as me semeth this case shulde varye fro the comō case of vses / that is to saye / if a man seased of lande make a feoffement therof and it apperethe nat to what vse the feoffement was made ne it is nat vpon any bargayne or other recompence than it shal be taken to be to the vse of the feoffoure / excepte the contrarie can be proued by some bargaine or other lyke / or that his intēt at the tyme of the lyuerey of season was expressed that it shulde be to the vse of the feoffe or of some other / than it shall go accordynge to his entent / but in this case me thynketh it shal be taken that his entent was that it shulde fyrst be to the vse of the feoffe for the cause byfore reherced excepte the contrarie can be proued / so the knowlege of the intēt of the feoffour is the greatest certaynte for knowelege of the vse in this case as me semeth / but whā the feoffour goeth ferther and sayeth that if the rent be nat payed thā the sayd A.B. shulde entre into the lande / thā it appereth that his entent was that the rente shulde cease / and that A. B. shulde entre into the lande / and thoughe he maye nat by those wordes entre into the lande after the rules of the lawe / and to haue freholde / yet those wordes seme to be sufficient to proue that the intēt of the feoffour was that he shulde haue the vse of the lande / for sythe he had the rente to his owne vse and nat to the vse of the feoffoure so it semeth he shal haue the vse of the lande that is assigned to hym for nat paymente of the rente ¶ Doctour But I am somwhat in doute whether he had the rente to his owne vse / for the intēt of the feoffour myght be that he shuld pay the rēt for hī to some other or some other vse myght be appoynted therof by the feoffour ¶ Student If suche an entēt can be proued than that intent must be obserued / but we be ī the case to wete to what vse it shal be taken if the entēt of the feoffour can nat be proued / thā me thynketh it can nat be otherwyse takē but that it shal be to the vse of hī to whome it shulde be payed / for though it be called a rent yet
it is no rent in the lawe / ne in the lawe he shall neuer haue remedy for it / thoughe it were assigned to hym to his heyres with out condicion / neyther by distresse / by Assyse / by writte of Annuite / nor otherwyse / but he shal be dryuen to sue in the chauncery for his remedy / and than whaÌ„ he sueth in the chauncery he must surmitte that he ought to haue it by conscience / and that he can haue no remedy for it in the lawe And than sythe he hathe no remedy to come to it but by way of coÌ„science it semeth it shal be taken that whan he hath recouered it that he ought to haue it in conscieÌ„ce and that to his owne vse without the contrarie cane be proued / and if the contrarie can be proued and that the entent of the feoffoure was that he shulde dispose it for hym as he shulde appoynt than hathe he the reÌ„t in vse to a nother vse / and so one vse shulde be depeÌ„dynge vpon a nother vse whiche is seldome sene and shall nat be intended tyll it be ê“ued / and so sythe no such matter is here expressed me thynkethe the rent shal be taken to be to the vse of hiÌ„ that it is payed to / that the lande in lykewyse that it is appoynted to hiÌ„ for nat paymeÌ„t of the sayd rent shal be also to his vse / howe thynkest thou / wyll conscience therin ¶ Doctour I thynke that as thou takest the lawe nowe that coÌ„science in this case the lawe be all one / for the lawe sercheth the same thynge in this case to knowe the vse that conscience doth / that is to say / the intent of the feoffour / and therfore I wold moue the ferther in one thynge ¶ Student What is that ¶ Doctoure That syth the intent of the feoffour / shal be so moch regarded iÌ„ this case why it ought nat also to be as moche regarded iÌ„ the case that is iÌ„ the last Chapitre next byfore this where the wordes be coÌ„dicionall / and gyue the feoffour a tytle of reentre / for me thynketh that though the feoffour may in that case reentre for the condicion broken that yet after his reentre he shal be seased of the lande after his entre to the vse of hym to whome the lande was assigned by the said indenture for lacke of payment of the rent bycause the intent of the feoffour shal be taken to be so in that case as well as in this And I praye the let me knowe thy mynde what diuersite thou puttest bytwene them ¶ Student Thou dryuest me nowe to a narowe diuersite / but yet I wyll answere thy therin as well as I can ¶ Doctour But fyrst or thou shewe me that diuersite I praye the shewe me howe vses began / why so moche lande hath ben put in vse in this realme as hath ben ¶ Stud. I wyll with good wyl say as me thinketh therin ⧠Howe vses of lande fyrst bygan / and by what lawe / and the cause why so moche land is put in vse The .xxii. Chapitre STudent Vses were reserued by a secondary conclusion of the lawe of reason in this maner / whan the generall custome of propertie wherby euery man knewe his owne good fro his neyghbours was brought in amonge the people It folowed of reason that suche landes and goodes as a man had ought nat to be taken fro hym but by his assent or by order of a lawe / and than syth it is so that euery man that hathe landes hathe therby two thynges in hym / that is to say / the possession of the laÌ„de whiche after the lawe of Englande is called the franketenement or the free holde / and the other is aucthoritie to take therby the profites of the lande / wherfore it foloweth that he that hathe lande intendeth to gyue onely the possession and free holde therof to a nother / and to kepe the profites to hym selfe ought in reason and conscience to haue the profites / seyng there is no lawe made to ê“hibite / but that in coÌ„science suche reseruacioÌ„ may be made And so whan a man maketh a feoffemente to a nother and inteÌ„deth that he hym selfe shal take the profites thaÌ„ that feffe is sayd seased to his vse that so enfeffed hym / that is to saye / to the vse that he shall haue the possession freeholde therof as in the lawe to that intent that the feoffoure shall take the profites / and vnder this maner as I suppose vses of lande fyrste began ¶ Doctour It semeth that the reseruyng of such vse is prohibite by the lawe / for if a man make a feoffemeÌ„te and reserue the profites or any parte of the profites as the gresse wode or such other / that reseruacioÌ„ is voyd in the lawe / and me thynkethe it is all one to say that the lawe iugeth suche a thynge if it be done to be voyde / and that the lawe prohibiteth that that thynge shall nat be done ¶ Student Trouthe it is that suche reseruacion is voyde in the lawe as thou sayest and that is by reason of a maxime iÌ„ the lawe that wylleth that suche reseruacion of parte of the same thyng shal be iuged voyde in the lawe / but yet the lawe dothe nat ê“hibite that no suche reseruacion shal be made / but if it be made it iugeth of what effecte it shal be that is to say that it shal be voyde / and so he that maketh such reseruacion offendeth no lawe therby / ne brekethe no lawe therby and therfore the reseruacion in conscience is good / but if it were prohibite by statute that no man shulde make suche reseruacion / ne that no feoffement of truste shulde be made / but that all feoffemeÌ„tes shulde be to the vse of hym to whome possession of the lande is gyuen / than the reseruacion of suche vse agaynst the statut shulde be voyde bycause it were agaynste the lawe / and yet suche a statute shulde nat be a statute agaynste reason bycause suche vses were fyrste grounded and reserued by the lawe of reasoÌ„ / but it shulde preuent the lawe of reason and shulde put away the coÌ„sideracion where vpon the lawe of reason was grounded byfore the statute made And than to thy other question / that is to saye / why so moche lande hathe ben put in vse / it wyll be somwhat longe and peradueÌ„ture to some tedious to shewe al the causes perticulerly / but the very cause whythe vse remayned to the feffe natwithstaÌ„dyng his owne feoffement or fyne and somtyme natwithstandynge a recouery agaynste hiÌ„ is al vpon one coÌ„sideracion after the cause and intent of the gyfte / fyne / or recouery / as is aforesayd ¶ Doctoure Thoughe reason may serue that vpoÌ„ a feoffement a vse may be reserued to the feoffour by the intent of the feoffour agaynste the fourme of his gyfte as thou hast sayde byfore
feoffour was seased iÌ„ that case to his owne vse I shall shewe the afterwarde The seconde case is this A man maketh a feoffement in fee / and it is agreed vpon the feoffement that the feoffe shal pay a yerely reÌ„t to a strauÌ„ger / and if he pay it nat that thaÌ„ the straunger shall entre into the lande In this case I sayd as it appereth in the sayd .xxi. Chapitre / that if the feoffe payed nat the rent that the straunger shuld haue the vse of the lande thoughe he maye nat by the rules of the laÌ„de entre into the laÌ„de / the diuersite bytwene the cases me thynkethe to be this In the fyrste case it apperethe as I haue sayd byfore in the sayde xx Chapitre / that the feoffour myght lawfully reentre by the lawe for nat payment of the rent / and than whaÌ„ he entred accordynge he by that entre auoyded the fyrste lyuery of season / in so moche that after the reentre he was seased of the lande of lyke estate as he was byfore the feoffemente And soo remaynethe noo thynge / whervpon the straunger myght grounde his vse / but onely the bare graunte or entente of the feoffour whaÌ„ he gaue the land to the feoffe vpon condicion that he shulde pay the rente to the straunger / and if nat / that it shulde be lawful to the straunger to entre / for the feoffement is auoyded by the reentre of the feoffour as I haue sayd byfore / and as I sayd in the last Chapitre as I suppose a nude or bare graunte of hym that is seased of lande is nat sufficiente to begynne an vse vpon ¶ Doctour A bare graunte maye chaunge an vse as thou thy selfe agredest in the last Chapitre why thaÌ„ may nat an vse as well begyn vpon a bare graunt ¶ Student Whan an vse is iÌ„ Esse he that hathe the vse may of his mere mocion gyue it awaye if he wyll without recompence as he myght the lande if he had it in possession / but I take it for a grounde that he can nat so begynne an vse without a lyuerey of season or vpon a recompence or bargayne / that there is suche a grouÌ„d in the lawe that it maye nat so begynne it appereth thus / it hath ben alwaye holden for lawe that if a man make a dede of feoffement to a nother and delyuer the dede to hym as his dede / that in that case he to whome the dede is delyuered hath no tytle ne medelynge with the lande afore lyuerey of season be made to hym but only that he may entre and occupie the laÌ„de at the wyll of the feoffour / and there is no boke saythe that the feoffour in that case is seased there of byfore lyuerey to the vse of the feoffe And in lykewyse if a man make a dede of feoffement of two acres of lande that lye in two shyres intendyng to gyue them to the feoffe and maketh lyuerey of season in the one shyre nat in the other / in this case is it comonly holden in bokes that the dede is voyde to that acre where no lyuerey is made excepte it lye within the viewe saue onely that he maye entre occupie at wyl as is aforsayde / and there is no boke that sayth that the feoffe shulde haue the vse of the other acre / for if an vse passed therby than were nat the dede voyde to all intentes / and yet it apperethe by the wordes of the dede that the feoffour gaue the landes to the feoffe / but for lacke of lyuerey of season the gyfte was voyde and some thynketh it is here without lyuerey of seasoÌ„ be made accordynge But in the seconde case of the sayd two cases the feoffe may nat reentre for non payment of the rente / and so the fyrste lyuerey of season continueth and standeth in effecte / and thervpon the fyrste vse maye wel begynne take effecte in the straunger of the lande whaÌ„ the rent is nat payed vnto hym accordynge to the fyrst agrement And so me thynketh that in the fyrst case the vse is determined by cause the lyuerey of season where vpon it coÌ„menced is determined / and that in the seconde case the vse of the lande taketh effecte iÌ„ the straÌ„ger for nat paymeÌ„t of the reÌ„t by the grauÌ„t made at the fyrste lyuerey whiche yet continueth in his effecte / and this my thiÌ„keth is the diuersite bytwene the cases ¶ Doc. yet natwithstandyng the reason that thou haste made me thynketh that if a man seased of landes makethe a gyfte therof by a nude promyse without any lyuerey of season or recompeÌ„ce to hym made and grauÌ„t that he shal be seased to his vse that thoughe that ê“myse be voyde in the lawe that yet neuertheles it muste holde and stande good in conscience and by the lawe of reason / for one rule of the lawe of reason is / that we may do nothynge against the trouthe / and syth the trouthe is that the owner of the grounde hathe graunted that he shall be seased to the vse of the other that grauÌ„t muste nedes stande in effecte or els there is no trouth in the grauntour ¶ Student It is nat agaynste the trouthe of the grauÌ„tour in this case thoughe by that graunte he be nat seased to the vse of the other / but it proueth that he hathe grauÌ„ted / that the lawe wyll nat waraunt hym to graunte / wherfore his graunte is voyde But if the grauntour had gone ferther and sayd that he wolde also suffre the other to take the ê“fites of the landes without let or other interupcion / or that he wolde make hiÌ„ estate in the lande whan he shulde be requyred / than I thynke in those cases he were bouÌ„den in conscience by that rule of the lawe of reason that thou hast remembred to perfourme them / if he intended to be bounden by his ê“myse / for elles he shulde go agaiÌ„st his owne trouthe and agaynste his owne ê“myse But yet it shal make no vse in that case / nor he to whome the promyse is made shall haue no accion in the lawe vppon that promyse althoughe it be nat perfourmed / for it is called in the lawe a nude or a naked promyse And thus me thynkethe that in the fyrste case of the said two cases the graunte is nowe auoyded in the lawe by the reentre of the feoffoure / feoffour / and that the feoffour is nat bounden by his graunte neyther in lawe nor coÌ„science but that iÌ„ the secoÌ„d case he is bouÌ„d / so that the vse passethe froÌ„ hym as I haue sayd byfore ¶ Doctoure I holde me content with thy conceite for this tyme / but I pray the shewe me somwhat more at large what is taken for a nude coÌ„tracte or a naked promyse in the lawes of EnglaÌ„de / and where an accion maye lye there vpon and where nat ¶ Student I wyll with good wyll say as me thynketh
/ but this must be alway excepte that if at the fyrste auoydaunce that shal be after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thaÌ„ the kyng by his prerogatiue shall haue the presentement And at the nexte auoydauÌ„ce the eldest syster so by turne But it is to vnderstande that if after the dethe of the comon auÌ„cestre the churche voydeth the eldest syster presented togyder with another of the systers / the other systers euery one iÌ„ theyr owne name or togyder that in that case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name And in this case where the patrones varye in presentement the churche is nat properlye sayd letigiouse so that the ordinarie shuld be bouÌ„de at his perill to directe a writte to enquere de Iure patronatus for that writ lieth where two presente by seuerall titles / but these patroÌ„s present all in one title / therfore the ordinarie maye suffre it to passe if he wyll in to the laps / this maner of presentemeÌ„tes muste be obserued in this realme in lawe conscience ☞ Howe loÌ„ge tyme the patron shal haue to presente to a benefice The .xxxi. Chapitre DOctoure Thê questioÌ„ is asked iÌ„ SuÌ„ma aÌ„gelica iÌ„ the title Ius patronaâ—ê° the .xvi. article / there it is aÌ„swered that if the patron be a lay maÌ„ that he shall haue .iiii. monethes / if he be a clerke he shall haue .vi. monethes ¶ Student And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / I se no reason why a clerke shulde haue more respite than a lay maÌ„ but rather the contrary ¶ Doctour Fro what tyme shal the .vi. monethes be accoÌ„pted ¶ StudeÌ„t That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession the .vi. monethes shal be coÌ„pted fro the dethe of the encumbent / or fro the creacion / or cession / wherof the patron shal be coÌ„pelled to take notice at his peryll / if the voydance be by resignacion or depriuacion than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion ¶ Doctoure what if he haue knowlege of the resignacion or depriuacion nat by the bisshope but by some other / shall nat the syxe monethes begyn thaÌ„ fro the tyme of that knowlege ¶ Student I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope ¶ Doctoure An vnion is also a cause of voydaunce howe shall the .vi. monethes be rekened there ¶ StudeÌ„t There can no Vnion be made but the patrons muste haue knowlege / it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioiÌ„tly or by tunre one after another as the agrement is vpon the vnioÌ„ / sythe the patron is priuy to the auoidaÌ„ce is nat ignorante of it the .vi. monethes shal be accompted fro the agremente ¶ Doctour I se well by the reason that thou haste made in this chapitre that ignoraunce soÌ„tyme excuseth in the lawe of Englande / for in some of the sayde auoydaunces it shall excuse the patrones as it appereth by thy reasons aboue / in some it shal nat / wherefore I pray the shewe me somwhat where ignoraÌ„ce excuseth in the lawe of Englande where nat after thyne oppinion ¶ Student I wyll with good wil here after do as thou sayste if thou put me in remembrauÌ„ce thereof But I wolde yet moue the somwhat ferther in suche questions as I haue moued the before / concernyng the diuersities betwene the lawes of EnglaÌ„de other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience of many persons to be reformed to be brought in to one oppinion bothe amonge spirituall teÌ„porall / as it is in the case where doctours holde opinion that the statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyueÌ„ in to mortmayne / they say also that byquestes gyftes to the churche muste be determined after the lawe canon nat after the lawes statutes of lay meÌ„ / so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comoÌ„ persones / bere more fauoure in giftes to the churche than to other / the law of the realme beholdeth the thyng that is gyuen pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right beloÌ„geth in this realme to the kynges lawes whether it be to spirituall maÌ„ or teÌ„poral / to the churche or to other / so is greate diuisioÌ„ in thê behalfe whan one preferreth his opinioÌ„ another his / one this iurisdiccion / another that that as it is to fere more of singularitie thaÌ„ of charite wherfore it semeth that they that haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience before other to loke to this matter to do that in them is in all charitie to haue it reformed / nat beholdynge the teÌ„porall iurisdiccion nor spirituall iurisdiccion but the comon welthe quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisioÌ„ were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall teÌ„porall be ordered ruled by one lawe as to teÌ„porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme. ¶ Doctoure Than I praye the procede to another question as thou sayst thy mynde is to do ¶ Student I wyll with good wyll ☞ If a man be excoÌ„menged / whether he may in any case be assoyled without makynge satisfaccioÌ„ The .xxxii. Chapitre STudent In the summe called SuÌ„ma rosella in the title absolucio quarta the seconde article it is sayd that he that is excoÌ„municate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / that they offende
that do assoyle hym / but yet neuertheles he is assoyled / and if he be nat able to make amendes that he muste yet be assoyled / takynge a sufficiente gage to satysfie yf he be able here after / or elles that he make an othe to satisfie if he be able And these sayenges in many thynges holde nat in the lawes of Englande ¶ Doctoure I pray the shewe me wheriÌ„ the law of the realme varieth therfro ¶ StudeÌ„t If a man be excommunicate in the spirituall courte for det / trespas / or suche other thynges as belong to the kynges crowne to his royall dignite there he oughte to be assoyled without makynge any satisfaccion / for the spirituall courte exceded theyr power in that they helde ple in those cases the party if he wyll may therupon haue a Premunire facias as well agaynste the partye that sued hym as agaynst the iuge therfore in this case they oughte in conscience to make absolucion withoute any satisfaccion / for they nat onely offeÌ„ded the party in callynge hym to answere before theÌ„ of suche thynges as belong to the law of the realme but also the kynge / for he by reason of suche sutes maye lese greate aduauntages by the reason of the writtes originals / iudicials / fynes / amerciamentes / suche other thynges as mighte growe to hym if suche sutes had beÌ„ takeÌ„ in his courtes accordynge to his lawes / accordyng to his saynge it apperet in diuers statutes that if a man laye violent handes vpon a clerke bete hym / that for the betynge ameÌ„des shal be made in the kynges court / for the layeng of violent haÌ„des vpoÌ„ the clerke amendes shal be made in the courte cristieÌ„ And therfore if the iuge in the court cristieÌ„ wolde awarde the partie to yelde damages for the betynge he dyd agaynste the statute / but admitte that a man be excommenged for a thynge that the spirituall courte may awarde the party to make satisfaccioÌ„ of / as for the nat inclosinge of the churche yarde / or for nat apparelliÌ„ge of the churche conueniently Than I thynke the partye muste make restitucion or lay a sufficiente causion if he be able or he be assoyled / but if the partye offre sufficient ameÌ„des haue his absolucion / the iuge wyll nat make hym his letters of absolucion if the excommengemente be of recorde in the kynges courte thaÌ„ the kynge may writte vnto the spirituall iuge coÌ„maundyng hym that he make the party his letters of absolucion vpon payn of a contempte / if the sayd excommunicacioÌ„ be nat of recorde in the kynges courte than the partye maye in suche case haue his accion agaynst the Iuge spirituall for that he wolde nat make hiÌ„ his lettres of absolucion but if he be nat assoyled or if he be nat able to make satisfaccion therfore the iuge spirituall wyll nat assoyle hym / what the kynges lawes maye do iÌ„ tha case I am somwhat in doute / and wyll nat moche speke of it at this tyme / but as I suppose he may as well haue his accion in that case for the nat assoylynge hym as where he is assoyled that the Iuge will nat make hiÌ„ his letters of absolucion / I suppose the same law to be where a maÌ„ is accursed for a thyng that he iuge had no power to accurse hiÌ„ in / as for dette / trespasse / or suche other ¶ Doctor. There he may haue other remedies as a premunire facias or suche other / therfore I suppose the other accioÌ„ lieth nat for hiÌ„ ¶ Student The iuge the partie may be ded / thaÌ„ no premunire lieth / though they were alyue were coÌ„deÌ„pned in a Premunire / yet that shulde nat auoyd the eâ—coÌ„mengement / therfore I thynke the accion lieth specially if he be therby delayed of accions that he might haue in the kynges court if the sayd excoÌ„mengement had nat ben ☞ Whether a Prelate may refuse a legaci The .xxxiii. Chapitre STudeÌ„t It is moued in the sayd summe named Rosella in the title alienacio xx the .xi. article whether a pÌ„late may refuse a legaci / where in diuers opynions be recited there / whiche as me thynketh haue nede after the lawes of the realme to be more playnly declared ¶ Doctoure I praye the shewe me what the law of the realme will therin ¶ StudeÌ„t I thinke that euery pÌ„late suffereyn that may onely sue be suyd in his owne name as Abbates â–ª Priours suche other may refuse any legaci that is made to the house for the legacie is nat perfyte tyl he to whome it is made assent to take it for els if he mighte nat refuse it he might be compelled to haue laÌ„des wherby he myghte in some case haue greate losse but than if he intende to refuse he muste as sone as his title by the legacy falleth relinquisshe to take the profites of the thyng bequethe / for if he ones take the profites therof he shall nat after refuse the legaci but yet his successour may if he will refuse the takynge of the profites to saue the house fro yeldynge of damages or fro arrerages of rentes if any suche be lyke lawe is of a remayndre as is in legaci for though in the case of a remaindre also of a deuise as moste men say the freholde is caste vpon hym by the lawe whan the remayndre or deuise falleth yet it is in his libertie to refuse the takynge of the profites to refuse the remaiÌ„dre or deuise if he wyll as he myghte do of a gyfte of landes or goodes for if a gyfte be made to a man that refuseth to take it / the gyfte is voyde if it be made to a man that is absent the gifte taketh nat effecte in hym tyll he assent no more than if a maÌ„ dissease one to another maÌ„nes vse / he to whose vse the disseason is made hath nothyng in that laÌ„de ne is no disseasoure tyll he agre And to suche disseasons gyftes an Abbot or Priour may disagre as well as any other maÌ„ but after some men a Bisshope of a deuise or remayndre that is made to the Bisshop to the deane chapitre nor a deane and a chapitre of a deuise or remayndre made to theÌ„ ne yet the mayster of a colage of suche a deuise or remayndre made to hiÌ„ to his bretherne / maye nat disagre withoute the chapitre or bretherne for the Bisshoppe of of suche landes as he hath with the deane chapitre ne the deane nor mayster of suche lande as they haue with the chapitre or bretherne may nat answere without the chapitre bretherne therfore some saye that if the deane or mayster wyll refuse or disclayme in the landes that they haue by the deuise or remaindre that that disclaymour without the chapitre or bretherneis voyde And therfore it is holdeÌ„ in
onely maye disherite the house as by his cesser / or by leuieng of a crosse vpoÌ„ a house agaiÌ„st the statute therof made / in whiche case the house therby shall lese the laÌ„de / some say that by the comon lawe vpon his disclaymour in auourie a writ of righte of disclamour lieth / but if the gyfte be vpon condicion it standeth nether with law nor coÌ„scieÌ„ce that the Abbot shulde haue any more perfite or sure estate than was gyuen vnto hiÌ„ / therfore as the sayd estate was made to the house vpoÌ„ coÌ„dicioÌ„ so that estate may he auoyded for nat performyng of the coÌ„dicion / I thynke verily that this that I haue sayd is to beholdeÌ„ in this realme bothe in lawe conscience / that the decrees of the churche to the contrari bynde nat in thys case But if laÌ„des be gyuen to an Abbot to his coueÌ„t to the inteÌ„t to fynde a laÌ„pe / or to gyue certayne almes to poore meÌ„ / though the inteÌ„t be nat in those cases fulfilled / yet the feoffer nor hê heyres may nat reeÌ„tre for he reserued no reentre by expresse wordes / ne in the wordes whaÌ„ he sayth the entente to fynde a lampe or to gyue almes cÌ„ Is implyed no reentre / ne the feoffoure nor his heyres shall haue no remedye in suche cases / onelesse it be within the case of the statute of Westmynster the secoÌ„de that gyueth the Cessauâ—t de cantaria ☞ Whether a couenauÌ„t made vpoÌ„ a gyfte to the churche that it shall nat be aliened be good The .xxxv. Chapitre STudent In the sayde summe called Summa rosella in the sayde title alienacio / the .xiii. article is asked thê question / whether a couenaunt made vpon a gyft to the churche that it shall nat be aliened be good And the same question is moued agayne in the sayd summe called rosella / in the title condicio the fyrst article in Summa angelica / in the title Donatio prima / the .li. .lii. articles / the inteÌ„te of the question there is whether nat withstandynge that the condicion be good to some alienacions whether that yet it be good to restrayne alienacions for the redemption of them that be in captiuite vnder the infideles or for the greater aduauntage to the house / though the better opinioÌ„ be there that the condicion may nat be broken for redempcion of them that be in captiuite yet it is in maner a hole opinioÌ„ that it may be solde for the greater aduauntage to the house / for it is sayd there that it maye nat be taken but that the intente of the gyuer was so / therfore they calle the condicion that prohibiteth it to be solde condicio turpis that is to saye / a vyle condicion / wherfore they regarde it nat but verilie as I take it if a condicion may restrayne any maner of alienacion than it shall as well restrayne alienacions for the two causes before reherced as for any other causes / and thoughe me thynketh that that condicion is good after the lawes of the realme that vpon giftes to the church restrayneth alienacions yet I shal touche one reason that is made to the coÌ„trary / that is this There is a clere grounde in the lawe that if a feoffement be made to a comon person in fee vpon condicion that the feoffe shal nat alieÌ„ to no man that that condicion is voyde because it is contrary to the estate of a fee simple to bynde hym that hath that estate that he shulde nat aliene if he liste / some say that an Abbot that hath lande to hym to his successours hath as hygh as perfite a fee simple as hath a laye maÌ„ that hath lande to hym to his heyres / and therfore they say that it is as well agaynst the law of the realme to prohibit that the Abbot shall nat alien as it is to prohibit a lay maÌ„ therof / though it be therein true as they say as to the hyghnes of the estate yet me thynketh there is great diuersite betwene the cases concernyng theyr alienacioÌ„s / for whan landes be gyuen in fee simple to a comon person the inteÌ„t of the lawe is that the feoffe shall haue power to aliene / if he do aliene it is nat agaynst the inteÌ„t of the lawe ne yet agaynst the inteÌ„t of the feoffer / but whan landes be gyuen to an Abbot to his successours the intent of the lawe is also of the gyuer as it is to presume that it shulde remayne in the house for euer / therfore it is called mortmayne / that is to saye a ded haÌ„de as who saythe that it shall abyde there alway as a thynge ded to the house And therfore as I suppose the lawe will suffre that coÌ„dicioÌ„ to be good that is made to restrayne that suche mortmayne shulde nat be aliened that yet it may ê“hibit the same coÌ„dicion to be made vpon a feoffemeÌ„t made in fee simple to a maÌ„ to his heyres for that is the moste hyghe / the moste free the moste purest state that is in the law But the lawe suffreth suche a condicioÌ„ he made vpon a gyfte in tayse because the statute prohibiteth that no altenacion shulde be made therof And than as the law suffereth suche a condicion vpoÌ„ a gyfte in mort mayne / that is to saye / that it shall nat be aliened / to be good / than it iugeth the condicioÌ„ also accordyng to the wordes / that is to say / if the coÌ„dicion be generall that they shall aliene to no man as this case is that it shal be taken generaly accordynge to the wordes / it shall nat be takeÌ„ that the inteÌ„t of the gyuer was otherwyse thaÌ„ he expressed in his gift though percase if he were alyue hym selfe the questioÌ„ where asked hiÌ„ whether he wold be coÌ„teÌ„ted it shuld be alieued for the sayd two causes or nat / he wolde say ye / but whaÌ„ he is ded no maÌ„ hath authoritie to iÌ„terpretate his gyft otherwise thaÌ„ the law suffereth / ne otherwyse thaÌ„ the wordes of the gift be And if the coÌ„dicioÌ„ be special that is to say / that the laÌ„de shall nat be aliened to suche a maÌ„ or such a maÌ„ / thaÌ„ the coÌ„dicioÌ„ shal be takeÌ„ accordyng to the wordes / thaÌ„ they may be aliened as for that condicioÌ„ to any other but to them to whome it is expresselie prohibite that the lande shuld nat be aliened to And if the laÌ„des in that case be aliened to one that is nat excepte in the condicion / than he may aliene the lande to hym that is fyrste excepted withoute brekynge of the condicion / for condicions be taken straytely in the lawe without equitie And thus me thynketh that because the sayde condicion is generall restreyneth all alienacions / that it may nat be aliened nether by the lawe of the realme
custome of some contreys where the heyres shal haue heyre lomes Or where the chyldren / the dettes legacis payde / shall haue a reasonable parte of the goodes after the custome of the countrey ¶ Addition ⧠If a man be owtlawed of felony or be attaynted for murdre or felony or that is an ascismus maye be slayne by euery straungeour ⸫ The .xli. Chapitre DOctour It appereth in the sayde suÌ„me called Summa angelica in the .xxi. chapitre in the title of Ascismus the .2 Paragraf that he is an ascismus that will slee men for money at the instaunce of euery man that will moue hym to it / suche man may lawfully be slayn nat onely by the Iuge but by euery priuate persone But it is sayde there in the .4 Paragrafe that he muste fyrst be iuged by the law as an ascismê° or he may be slayne or his goodes seased And it is sayde ferther there in the .2 Paragraf that also in conscience suche an ascismus may be slayne if it be done through a zele of iustice and elles nat Is nat the lawe of the realme lykewise of meÌ„ outlawed / abiured / or iuged for felony ¶ Student In the law of the realme there is no suche lawe that a man shal be adiuged as an ascismus / ne if a man be in full purpose for a certayne suÌ„me of money that he hath receyued to slee a man yet it is no felony ne murdre in the law tyll he hath done the acte for the inteÌ„t in felony nor murdre is nat punisshable by the comoÌ„ law of the realme though it be dedly syn afore god / but iÌ„ treasoÌ„ or iÌ„ som other ê‘ticuler cases by statute the iÌ„teÌ„t may be punisshed And though a man in suche case kyll a man for money yet he shall nat be attaynted that he is an ascismus For as it is sayde before there is no suche terme of ascismus in the law of the realme but he shall in suche case be arrayned vpon the murdre And if he confesse it or plede that he is nat gylty is fouÌ„de gylty by .xii. men he shall haue iugemente of lyfe of membre / shall forfeyte his landes goodes And lyke law is if in appele brought of the murdre he stande dombe wyll nat answere to the murdre he shal be attaynted of the murdre shall forfeyt lyfe landes / goodes / but if he arrayned of the murdre vpon an InditemeÌ„t at the kynges sute there vpon standeth dombe wyll nat answere there he shal nat be attainted of the murdre / but he shall haue payne forte dure that is to saye he shal be pressed to dothe he shall there forfayte his goodes nat his laÌ„des But in none of these cases that is to saye though a maÌ„ be outlawed for murdre or felony / or be abiured / or that he be otherwyse attaiÌ„ted yet it is nat lawfull for no man to murdre hym or slee hym ne to put hym in execucion but by auctoritie of the kynges lawes In so moche that if a maÌ„ be adiuged to haue payne forte and dure / the officer by hedeth hym / or on the contrary wyse putteth hym to payne forte dure where he shulde byhede hym he offendeth the lawe ⧠And if an officer whiche hath auctoritie to put a man to dethe maye nat put hiÌ„ to deth but accordynge to the iugemente than me thynket it shuld folowe that more stronger a straunger may nat put suche a man to dethe of his owne auctoritie without coÌ„maundement of the lawe ⧠But if the iugement be that he shal be hanged in chaynes / the officer hangeth hym in other thynges nat in chaynes I suppose he is nat gylty of his dethe / but some say he shall there make a fyne to the kynge bycause he hathe nat folowed the wordes of the iugement ⧠Also if a man that is no officer wolde a rest a man that is outlawed / abiured / or attaynted of murdre or felony as is aforesayd / he disobeyeth the arrest / by reason of that disobedience he is slayn I suppose the other shall nat be empeched for hys dethe / for it is lawfull vnto euery man to take suche persones to brynge theÌ„ forthe that they may be ordered accordyng to the lawe But if a capias be directed vnto the Sheryfe to take a man in an accion of dette or trespas there no man maye take that man but he haue auctoritie from the Sheryfe And if any man attempte of hys owne auctorite to take hym he resisteth / in that resistinge is slayne he that wolde haue taken hym is gylty of his dethe ¶ Addition ⧠Whether a man shal be bouÌ„den by that acte or offence of his seruaunt or officer ⸫ The .xlii. Chapitre STudent In the sayd suÌ„me called SuÌ„ma aÌ„gelica in the title dominê° .4 Paragrafe Is asked this question / whether a maÌ„ shal be charged for his housholde And it is sayde there that he shall whaÌ„ the housholde offendeth in an office or ministerie that the mayster is the chyefe officer of he hath the werke the profite of the housholde For it shal be his defaut that he wolde chuse suche seruaunte / for he ought to appoynte honeste persones / but it is sayde there that that is to be vnderstande ciuilly nat criminally / wherby as is sayde there he that is a gouernour is bounde for the offeÌ„ce of his officers / that the same is to be holdeÌ„ of a Captayne / that he shal be bouÌ„de for the offence of his squiers And an hoste for his ghest suche other Neuerthelesse it is sayd there that certayne doctours there reherced / therto that if the office be an open or a publyke office / as an office of power or other lyke It sufficeth to brynge forthe hym that offended But it is otherwyse If it be nat a publike office but an hoste or a tauerner or otherlyke But if the housholde offended nat in the office the lorde is nat bounde as to the law but in conscieÌ„ce he is bounde if he were in defaut by nat correctinge them / for he is bounde to correcte them bothe by worde and example / and if he fynde any incorrigible he is bouÌ„de to put hym awaye excepte that he hath presumpcious that if he do so he wyll be the worse / and than he maye do that he thynketh beste / and he is escused and elles nat For to suche persons it is sayde Error qui noÌ„ resistitur approbatur that is to saye An errour that is resisted is approued And thoughe diuers of the saynges before reherced agre with the lawe of the realme / yet all do nat so / also tho that do are to be obserued by auctoritie of the lawe of the realme nat by the auctorite alledged in the sayd paragrafe And therfore I enteÌ„de to treate soÌ„what where
If a clerke be promoted to the title of his patrimonie after selleth his patrimonye after falleth to pouertye whether shall he haue his title therin or nat The .xliiii. Chapitre STudent In the sayd suÌ„me called Rosella in the title Clericus quartus / the xxiiii article it is asked if a clerke be promoted to the title of his patrimony whether he maye aliene it at his pleasure and whether in that alienacion the solempnite nedeth to be kepte that is to be kept in alienacioÌ„ of thynges of the churche / it is answered there that it may nat be aliened no more thaÌ„ the goodes of a spirituall benefice if it be accepted for a title expressely assigned vnto hym / so that it shulde go as in to a rhynge of the churche / except he haue after an other benefice wherof he may lyue But if it be secretely assigned to his title some agree it may be aliened / in this case by the lawes of the realme it may be lawfully aliened whether it be secretely or opeÌ„ly assigned to his title / for the ordinarie ne yet the party hym selfe after the olde customes of the realme haue no auctorite to biÌ„de any inheritaunce by aucthoritie of the spirituall lawe / therfore the lande after it is assigned accepted to be his title standeth in the same selfe case to be boughte / solde / charged / or put in execucioÌ„ as it dyd before And therfore it is somwhat to be maruayled that ordinaries will admitte suche lande for a title to the inteÌ„te that be that is promoted shulde nat fall to extreme pouerty or go openly a beggynge / without knowynge howe the comon lawe will serue therin / for of mere right all enheritauÌ„ce within this realme ought to be ordered by the kynges lawes / inheritaunce can nat be bounden in this realme but by fine or some other matter of recorde / or by feoffemeÌ„t / or suche other or at leste by a bargain that chaungeth an vse And ouer that to assigne a stare for terme of lyfe to him that hath a fee simple before is voyde in the lawes of Englande without it be by suche a matter that it worke by way of conclusioÌ„ or estapell / in this case is no suche mater of conclusion / therfore all that is done in suche case in assignynge of the sayd title is voyde Also there is no interest that a maÌ„ hath in any maner landes or tenementes for terme of lyfe / for terme of yerê / or otherwyse / but that he by the law of the realme may put away his right therein if he will And than whan this man alieneth his laÌ„de generally it were against the lawe of the realme that any interest of suche a title shuld remayne in hym agaynste his owne sale / there is no diuersite whether the assignement of the title were open or secrete / so that title is voyde to all intentes And in in lykewise if a house of religion or any other spirituall man that hath graunted a title after the custome vsed in suche titles sell all the landes goodes that they haue that sale in the lawes of EnglaÌ„de is good as agaynste that title / the byer shall neuer be put to answere to that title Also some saye that vpon the comoÌ„ titles that be made dayly in suche case that if he fall to pouertie that hath the title he is without remedy / for they be so made that at the comon lawe there is no remedye for them / if he take a sute in the spirituall court may men saye that a prohibicioÌ„ or a premunire lieth And therfore it were good for ordinaries iÌ„ suche case to counsayle with them that be lerned in the lawe of the realme to haue suche a forme deuised for makynge of suche titles / that if nede be wolde serue theÌ„ that they be made vnto / or elles lette theÌ„ be promoted without any title / to truste in god that if they serue hym as they ought to do he wyll prouide for them to haue sufficient for them to lyue vpon And beside these cases that I haue remembred before / there be many other cases put in the sayde summes for the well orderynge of conscience / that is as me thynketh are nat to be obserued in this realme neyther in lawe nor in conscience ¶ Doctour Doste thou than thynke that there was defaute in them that drewe the sayd suÌ„mes put there in suche cases suche solucions that as thou thynkest hurte conscience / rather than to gyue any light to it / specially as in this realme ¶ Sudent I thynke no defaute in them / but I thynke that they were righte well charitably occupied to take so greate payn labour as they dyd therin for the welthe of the people clerynge of theyr consciences / for they haue therby gyuen a righte greate light in conscience to all countreys where the lawe Ciuile the lawe Canon be vsed to temporall thynges But as for the lawes of this realme they knewe them nat ne they were nat bounde to know theÌ„ / if they had knowen them it wolde litell haue holpen for the countreys that they mooste specially made theyr treatices for / in this countrey also they be right necessary moche profitable to all men for suche doutes as ryse in conscience in diuers other maners nat concernyng the lawe of the realme And I meruayle greatlye that none of them that in this realme are most bounden to do that in them is to kepe the people in a right iugement in a clerenes of conscience haue done no more in tyme past to haue the lawe of the realme knoweÌ„ than they haue done / for though ignoraÌ„ce may somtyme excuse / yet the knowlege of the trouth the true iugemente is moche better / somtyme though ignorauÌ„ce excuseth in parte it excuseth nat iÌ„ all / therfore me thiÌ„keth they dyd very well if they wolde yet be callers on to haue that poynt reformed as shortly as they could And now bycause thou haste well satisfied my minde in many of these questions that I haue made I purpose for this tyme to make an ende ¶ Doctour I praye the yet shewe me or that thou make an ende mo of the cases that after thyne oppynion be set in diuers bokes for clerynge of conscience that as thou thynkest for lacke of knowynge of the lawes of the realme do rather blynde conscience than gyue a light vnto it / for if it be so than surely as thou haste sayde it wolde be reformed / for I thynke veryly the lawes of the realme iÌ„ many cases muste in this realme be obserued as well in conscieÌ„ce as in the iudiciall courtes of the realme ¶ StudeÌ„t I will with good will shewe to the shortely some other questions that be made in the sayde summe to gyue the other occasion to se therin the oppinions of the
market had nat excused hym Also if a man reteyne a nother mannes seruaunt nat knowynge that he is reteyned with hym / that ignoraunce excuseth hym bothe for the offence that was at the comoÌ„ lawe agaynst the maxime that prohibited suche reteynynge of a nother mannes seruauÌ„t And also agaynst the statute of .xxiii. of Edwarde the .iii. whereby it is ê“hibite vpon payne of inprysonemente that none shall reteyne no seruaunte that departeth within his terme without licence or reasonable cause / for it hath ben alwaye taken that the intente of the makers of the sayde statute was that they that were ignorauÌ„t of the fyrste reteynoure shulde nat renne in any penaltye of the statute And the same lawe is of hym that reteyneth one that is warde to another / nat knowynge that he is his warde And if homage be due the tenaunt after that the homage is due maketh a feoffement / after the lorde nat knowynge of the feoffement distreyneth for the homage in that case that ignoraunce shall excuse hym of dammages in a Repleuin / thoughe he can nat auowe for the homage but if he had knowen of the feoffemente he shulde haue yelded damages for the wroÌ„gfull takynge Also if a man be bouÌ„de in an obligacioÌ„ that he shall repayre the houses of hym that he is bounde to by suche a certayne tyme as ofre as nede shall require / after the houses haue nede to be repayred but he that is bounde knoweth it nat / that ignorauÌ„ce shall nat excuse him for he hath bounde hym selfe to it / so he muste take knowlege at his peryll / but if the condicioÌ„ had ben that shulde repayre suche houses as he to whome he was bounde shulde assigne / after he assigneth certayne houses to be repayred / but he that is bounde hath no knowlege of that assignement / that ignoraunce shall excuse hym in the lawe / for he hath nat bounde hym selfe to no reparacioÌ„s in certayne / but to suche as the party will assigne / and if he none assigne he is bouÌ„de to none / therfore syth he that shuld make the assignement is priuye to the dede he is bounde to gyue notice of his owne assignement / but if the assignement had ben appoynted to a strauÌ„ger thaÌ„ the oblegour muste haue taken knowlege of the assignement at his peryll Also if a man bye laÌ„des whereunto a nother hath title whiche the byer knoweth nat / that ignoraunce excuseth hym nat in the lawe no more than it dothe of goodes Also if a seruaÌ„t come with his maysters horse to a towne that by custome may attache goodes for det / vpon a playnte agaynst the seruauÌ„te an officer of the towne by informacion of the party attacheth the maysters horse thynkynge that it were the seruantes horse / that ignoraunce excuseth hym nat / for whan a man wyll do an acte as to entre in to lande / sea se goodes / take a distresse or suche other / he muste by the law at his peryll se that that he doth be lawfully done as in the case before reherced And in lykewyse if a shyryfe by a repleuyn deliuer other beastes than were distreyned / thoughe the partye that distreyned shewed hym they were the same beastes / yet an accion of trespas lyeth agaynst hym / ignoraunce shall nat excuse hym for he shal be compelled by the law as all officers comonly be to execute the kynges writte at his peryll accordynge to the tenour of it to se that the acte that he dothe be lawfully done But otherwyse it is after some men if vpon a somons in a Precipe quod reddat the shyryfe by informacion of the demaundaunt somoneth the tenauÌ„t in a nother maÌ„nes lande thynkynge it for the tenauntes lande there they say he shal be excused / for in that case he dothe nat sea se the lande ne take possession in the lande / but onely dothe somon the tenaunt vpoÌ„ the lande / the writte coÌ„maundeth hym nat that he shall somon the tenaunt vpon hys owne lande but generally that he shall somon hym nameth nat in what lande than by an olde maxime in the lawe it is taken that he shall somon hym vpon the laÌ„de in demaunde / therfore though he mistake the lande ignoraunt of it / yet if the demaundaunt enforme hym that that is the lande that he demaundeth that suffyseth to the shyryfe as to his entre for the so monynge as they saye though it be nat the tenauÌ„tes lande And here I make an ende of these questions for this tyme. ¶ Doctour I praye the yet or we departe take a litell more payne at my desire ¶ StudeÌ„t what is that ¶ Doctour That thou woldest shewe me thy mynde in diuers cases of the law of the realme / whiche as me semeth stande nat so clerely with conscience as they shulde do And therfore I wolde gladly here thy conceyte therein how they may stande with conscience ¶ Student Put the cases I shall with good will say as I thynke to them ¶ Addition ☞ The fyrste question of the Doctour Howe the lawe of Englande maye be sayd reasonable that prohibiteth them that be arreyned vpon an Inditemente of felony or murdre to haue couÌ„cell The .xlviii. Chapitre STudent Me thynketh that the lawe in that poynte is very good indifferent takynge the lawe therein as it is ¶ Doctoure why what is the lawe in this poynt ¶ Student The lawe is as thou sayst that he shall haue no couÌ„cell / but thaÌ„ the law is ferther / that in all thynges that perteyne to the ordre of pledynge the Iuges shall so instructe hym so ordre hym that he shall renne into mo ieopardye by his mispleadyng / as if he wyll pleade that he neuer knewe the man that was slayne / or that he neuer had a peny worthe of the goodes / that is supposed that he shulde steele in these cases the Iuges are bouÌ„de in conscience to enforme hym that he muste take the general yssue plede that he is nat gyltye / for thouh they be set to be 〈◊〉 bytwene the kynge the partye as to the partye as to the principall matter as they be in all other matters yet they be 〈◊〉 this case to se that the partye haue no hurt in fourme of pleadynge in suche induces as he shall shewe to be the truthe of the matter / that is a greate fauoure of the lawe / for iÌ„ appell though the Iustices of fauour wyll moste comonly helpe fourth the partye soÌ„tyme his counsell also in the forme of pleadynge as they do also many tymes in common plees / yet they might in tho cases if they wolde byd the party his counsayle plede at theyr peryll But they maye nat do so with conscience vpon enoâ—â—ementes as me semeth / for it were a greate vnreasonablenes in the lawe if it shulde prohibit hym that standeth in ieopardy of his lyfe that he shulde
haue no couÌ„sayle / thaÌ„ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ„ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌ„ce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌ„science / for there is no lawe that byndeth them to iÌ„structe hym / but as they do comoÌ„ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌ„cell / if the appelle be pore haue no couÌ„cell the court muste assigne hym couÌ„cell if he aske it as they muste do iÌ„ all other plees / that me thynketh they are bouÌ„de to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ„ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌ„cell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌ„t hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌ„g of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ„ perciall / therfore as wel for the indeÌ„pnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌ„cell / but whaÌ„ that a maÌ„ is indicted at the kynges sute / the kiÌ„ge inteÌ„deth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌ„g them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâ—te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌ„sayle wyll be coÌ„tented And so there is no daunger therby neyther to the couâ—â— ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ„ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre â—oytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ„ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌ„iecture or informacioÌ„ I thynke they mighte nat then byd hym pleade at his peryll ☞ The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ„ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ„ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌ„t It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌ„ge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌ„tye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ„ conscieÌ„ce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ„ shuld haue a nother maÌ„nes laÌ„de no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌ„deth with conscience bycause it is ordeyned for ministracioÌ„ of iustice / but I caÌ„ nat ê‘ceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ„ law of wrecke of the see / that is to say that if a maÌ„nes goodes had beÌ„ wrecked vpoÌ„ the see that the goodes shuld haue ben iÌ„mediatly forfayted to the kyng And it is holdeÌ„ by all doctors that that law is agaiÌ„st coÌ„science except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
enfeffed hym as before apereth it is vsed that he shall plede ferther saye that the pleyntyfe claming in by a coloure of a dede of feffemeÌ„t made by the sayd feffo r before the feffemente made to hym / where nought passed by the dede eÌ„tred / vpoÌ„ whome he entred asketh iugemente if the assiselye agaynste hym In this case bycause it appereth to be a dout to vnlerned meÌ„ whether the lande passe by the dede without lyuerey or nat / therfore the lawe suffreth the tenaÌ„t to haue that speciall matter to bring the matter to the determinacion of the Iuges And in suche case the Iuges may nat put the tenant fro the plee / for they knowe nat as Iuges but that it is trewe / so if any defaut be it is in the tenaunt nat in the court And though the trouthe be that there were no suche dede of feoffemeÌ„t made to the playntyfe as the tenaunt pleadeth / yet me thynketh it is no defaute in the tenant for he dothe it to a good inteÌ„t as before appereth ¶ Doctour If the tenante knowe that the feoffour made no suche dede of feoffement to the pleyntyfe / thaÌ„ there is a defaut in the tenant to plede it / for he wittingly sayth agaynste the trouthe / it is holden by all doctours that euery lye is an offence more or lesse / for if it be of malice to the hurte of his neyghbour / than it is called MendaciuÌ„ permiciosum that is dedely synne And if it be in sporte to the hurte of no man / nor of custome vsed / ne of pleasure that he hath in lyenge / than it is veniall synne / is called in latine meÌ„dacium iocosum And if it be to the profite of his neyghbour to the hurte of no man than it is also veniall synne / is called in latine mendacium officiosum And though it be the leeste of tho thre yet it is a veniall synne wolde be eschewed ¶ Student Thoughe the mydwyfes of Egipte lyed whan they had reserued the male chyldreÌ„ of the Ebrewes / saiÌ„g to the kyng Pharao / that the Ebrewes had women that were connyng in the same crafte whiche or they came had reserued the chyldren alyue where in dede they theÌ„selfe of pytye of drede of god reserued them yet saint Ierome expouÌ„deth the texte folowyng whiche sayth that our lorde therfore gaue theÌ„ houses that it is to be vnderstande that he gaue them spirituall houses that they had therfore eternall rewarde / if they synned by that lye all though it were but veniall / yet I caÌ„ nat se howe they shulde haue therfore eternall rewarde And also if a man intending to slee a nother aske me where that man / is it nat better for me to lye to say I can nat tell where he is though I know it / thaÌ„ to shewe where he is whereupon murder shulde folowe ¶ Doctour The dede that the mydwyfes of Egipte dyd in sauing that chyldren was meritorious deserued rewarde euerlastinge if they beleued in god dyd good dedes beside as it is to presume they dyd / whan they for the loue of god refused the dethe of the Innocentes / than though they made a lye after whiche was but veniall synne that coulde nat take fro them theyr rewarde / for a veniall synne dothe nat vtterly extincte charitie but letteth the feruour therof therfore it maye well stande with the wordes of saynt Ierome that they had for theyr good dede eternall houses / yet the lye that they made to be a veniall synne / but neuertheles if suche a lye that is of it selfe but veniall be affirmed with an othe / it is alwaye mortall if he know it befalse that he swereth And as to the other question it is nat lyke to this question that we haue in hande as me semeth / for somtyme a man for eschewing of the greater euyll may do a lesse euyll / than the lesse is no offence in hym / so it is in the case that thou hast put wherin bycause it is lesse offeÌ„ce to say he wotteth nat where he is though he knowe where he is than it is to shewe where he is / wherupon murdre shulde folowe / it is therfore no synne to saye he wotteth nat where he is / for euery maÌ„ is bounde to loue his neyghbour if he shewe in this case where he is knowynge his dethe shuld folowe therupon it semeth that he loued hym nat / ne that he dyd nat to hiÌ„ as he wolde be done to / but iÌ„ the case that we be in here / there is no suche synne eschewed / for though the partie pleded the generall issue the iury might finde the trouth in euery thyng / therfore in that he sayth that the pleyntyfe claymiÌ„ge in by the colour of a dede of feffement where nought passed entred cÌ„ knowynge that there was no suche feffemeÌ„t it was a lye in hym a veniall synne as me thynketh And euery maÌ„ is boundeÌ„ to suffre a deedly synne in his neyghbour / rather than a veniall synne in hiÌ„selfe ¶ StudeÌ„t Though the Iury vpoÌ„ the generall issue may finde the trouth as thou sayste / yet it is moche more daungerous to the Iury to enquere of many poiÌ„tê thaÌ„ to enquere onely of one poiÌ„t And for as moch as our lord hath gyueÌ„ a coÌ„mauÌ„demeÌ„t to euery maÌ„ vpoÌ„ hê neyghbour / therfore euery maÌ„ is bouÌ„d to forse as moch as iÌ„ hiÌ„ is that by hiÌ„ no occasioÌ„ of offeÌ„ce come to hê neyghbor. And for the same cause / the law hath ordeined diuers maximê principles whereby issues in the kynges court may be ioyned vpon one poynte in certayne as nyghe as may be / nat generaltye / lest offence might folowe therupon agaynst god / a hurte also vnto the Iuri / wherfore it semeth that he loueth nat in hys neyghboure as hym selfe ne that he dothe nat as he wolde be done to that offereth suche daunger to his neyghbour where he may well conueniently kepe it fro hym if he will folowe the order of the lawe / it semeth that he putteth hym selfe wilfully an ieoperdye that dothe it / it is written Ecclesiastici .iii. Qui amat periculum in illo peribit / that is to say / he that loueth peryl shall perysshe in it / and he that putteth his neyghbour in peryll to offende putteth hiÌ„ selfe iÌ„ the same / so shuld he do me semeth that wolde wilfully take the generall issue where he mighte coÌ„uenieÌ„tly haue the speciall matter / ferthermore it is none offeÌ„ce in princes rulers to suffre coÌ„tractes and byeÌ„g selliÌ„g in markettes / fayres / though bothe periure disceyte will folowe therevpon / bycause suche contractes be necessarye for the comon welthe / so it semeth lykewyse that there is no defaute in the partye that pleadeth suche a special mater
man shuld holde satisfi competently to the churche / to the whiche they be bounde to gyue it of right / no expences by the gyuinge of the sayd tythes deducte or withholden / but onely for the payment of tythes of craftes of byenge sellinge / vy reason of the sayde constitucions prouincials somtyme sutes be taken in the spirituall court for personall tythes / therof many men do meruayle / bycause the deduccions many tymes must be referred to the conscience of the parties And they meruayl also why a law shuld be made in this realme for paīge of personall tythes more than there is in other contreys And here I wolde moue the ferther in one thyng cōcernyng suche personall tythes to knowe thy mynde therin / that is / if a man gyue to another an horse / he selleth that horse for a certayne summe / shall he paye any tythe of that summe ¶ Doctoure what thīkest thou therin ¶ Student I thīke that he shall pay no tythe / for there as I take it the profite cometh nat to hī by his owne industri but by the gyfte of an other / as I take it personall tythes be nat payd for euery profite or aduauntage that cometh newly to a man except it come by his own industri or labour so it dothe nat here And also if he shulde paye tythe of that he solde the horse for he shuld pay tithe for the very hole value of the thinge And as I take it the personall tythes for byenge sellinge shall neuer be payde for the value of the thynge / but for the clere geynes of the thynge / and therfore I take the cases before rehersed where a man selleth his lande or pulleth downe a house and selleth the stuffe / that he shulde there paye no tythe / that it is there to be vnderstande that he hath the lande or howse by gyfte or by discent / for if a man bye lande / or bye the tymber stuffe of a howse and sell it for agayn I suppose that he shulde paye a personall tythe for that gayne / and this case is nat lyke to a fee or annuite graunted for counsayle where the hole fee shal be tythed / for the charges deducte or some certayn some for it by agrement / for there the hole fee cometh for his counsayle whiche is by his owne industrie But in the other case it is nat so / and the same reason as for the person all tythe might be made of trees whan they descende or be gyuen to any man and he selleth them to a nother that he shall paye no personall tythe ¶ Doctoure Me thynketh that if the horse amende in his kepynge than he sell the horse / that than the tythe shal be payd of that that the horse hath encreased in value after the gyft so it may be of trees that he shall pay tythe of that that the trees be amended after the gyft or discent ¶ Student Than the tythe muste be the .x. parte of the encrease the expences deducte / and than of trees the charges muste also be deducte / for it is than a personal tythe / and there is no tree that is so moche worthe as it hath hurte the grounde by the growynge / therfore there can no personal tythe be payd by the owner of the grounde whan he selleth thē though they haue increased in this tyme. Neuertheles I will speke no ferther of that matter at this tyme / but wyll shewe the that if tyme / lede / cole / or trees be solde that a myxte tythe can nat growe therby / for a myxt tythe is properly of calues / lābes / pygges / suche other that come part of the groūd that they be fedde of / part of the kepyng industri ouersight of the owners as it is sayd before / but tynne / lede / cole are parte of the groūde of the freholde / trees growe of thē selfe / be also annexed to the freholde will growe of themselfe / also the mixte tythe muste be payde yerely at certayne tymes appoīted by the law or by custome of the cōtrey / but it may happē that tīne / lede / cole / trees shall nat be felled nor taken in many yeres / so it semeth it can nat be any mixt tythe / these be some of the reasons whiche they that wolde mayntayne that statute prescripcion to be good make to proue theyr intēt as they thynke ¶ Doctour What thynke they if a man sell the loppes of his woode whether any tythe ought there to be payd ¶ Student They thynke all one lawe of the trees of the loppes ¶ Doctour And if he vse to fell the loppes ones in .xii. or .xvi. yere / what holde they thā ¶ Studēt That all his one ¶ Doctoure And what is theyr reason why tythe ought nat to be payde there as well as for woode vnder .xx. yere ¶ Student For they say that the loppes are to be taken of the same condiciō as the trees be what time so euer they be felled / and that no custome will serue in that case agaynst the statute / no more thā it shuld do of great trees ¶ Doctour And what holde they of the barke of the trees ¶ Studēt Therin I haue nat herde theyr opinions / but it semeth to be one law with the loppes ¶ Doctour I perceyue wel by that thou hast sayd before that thy mynde is that if a hole contrey prescribe to be quite of tithes of trees / corne / gres / or of any other tythes that that p̄scripcion is good so that the spirituall ministers haue sufficient beside to liue vpō / dost thou nat mene so ¶ Student yes verely ¶ Doctor. And than I wolde know thy mynde if any mā contrary to that prescripcion were sued in the spirituall court for corne gres or any other rythes whether a prohibicion shulde lye in that case as it dyd after thy mynde before the sayd statute where a man was sued in the spirituall court for tythe wood ¶ Student I thynke nay ¶ Doctoure And why nat there as well as is dyd where a man was sued for the tithe woode ¶ Studēt For as I take it there is great diuersiti bytwene the cases that for this cause / there is a maxime ī the law of Englande that if any sute be taken in the spirituall court wherby any goodes or landes might be recouered / whiche after the groūdes of the lawe of the realme ought nat to be sued there though percase the kynges court shall holde no plee therof that yet a prohibicion shuld lye / after whan it had continued longe that no tythes were payd of wood bycause of the sayd prohibicion that after by processe of time some curates began to aske tithes of wood contrary to the law cōtrary to the sayd prescripcion so that variaūce begā
to ryse bytwene curates theyr parysshens in that behalfe / than for appeasinge of the sayd variaunce the sayd statute was made / that as it semeth more at the callynge on of the spiritualty thaÌ„ of the teÌ„poralty / for the statute doth nat expressely graunt that the prohibicion in that case of tythe wood shulde lye so largely as some saye it laye by the lawe howe be it / it doth nat restrayn the comon lawe therin as it appereth euidently by the wordes of the statute / so after some men it appered before the statute also after the statute as I haue touched before / that the spirituall courte ought nat in that case to haue made any processe for â—ythe wood therfore if they dyd a prohibicion laye by the comon lawe lyke lawe is if the spirituall courte make processe vpon suche a legaci as by the law of the realme is voyde As if a man bequethe so one a nother maÌ„nes horse / the spirituall courte thervpon maketh processe to execute that legaci there a prohibicioÌ„ lyeth / for it appereth euideÌ„tly in the lybell if all the trouth appere in the lybell that in the law of the realme that legaci is voyd to all enteÌ„tes And that he to whome the legacy is made shall neyther haue the horse nor the value of the horse And in lykewyse if a man sell his lande for C. li. he is sued after iÌ„ the spirituall court for the tythe of the sayd C. li. There a prohibicion shall lye / for it appereth in that case opeÌ„ly in the lybel that no tythe ought to be payd / that the spirituall law ought nat in that case to make any processe whereby the goodes of hym that solde the laÌ„de myght be taken fro hym agaynste the law of the realme / and vpon this grounde it is that if a man were sued in the spiritual courte nowe sythe the statute for a mortuary that a prohibicion shulde lye / for it appereth in the lybell that sythe the statute there oughte no sure to be taken for mortuaryes / and the same lawe is if any sute were taken in the spirituall court for a newe duty that is of late taken in some places vpon leases of personages and vycarages whiche is called a dimission noble / for it appereth euidently in the lybell if any be made therupon that no suche processe oughte by the lawe of the realme to be made in that behalfe / but in the case of tythe corne / or gresse / or suche other thiÌ„ges whereiÌ„ thou haste desyred to know my mynde / there appereth nothyng in the lybel but that the sute thereof of right perteyneth to the spirituall lawe so for any thynge that appereth the partye maye be holpen in the spirituall court by that prescripcion / and if the case were soo farre put that in the spirituall court they wolde nat alowe the sayd prescripcion / yet I thiÌ„ke no prohibicion shulde lye / for thoughe the spirituall iuges in a spirituall matter denye the parties of iustice / yet the kinges lawes can nat reforme that / but muste remitte it to theyr conscience But if there were some remedye prouided in that case / it were well done / for some saye that in the spirituall courte they will admitte no plee agaynst tythes And also if a composicion were made by assent of the patrone also of the ordinari bytwene a persone and one of his parysshens that the person and his successours shuld haue for a certayne grouÌ„de so many quarters of corne for his tythe yerely / and after contrary to that composicion the persone in the spirituall courte asketh the tythes as they fall / that in this case no prohibicioÌ„ shuld lye / ne yet though the case were further put that the composicion were pleaded in the courte and were disalowed / but all resteth in the conscience of the iuges spirituall as is sayde before how be it bycause some be of opinion that a prohibicion shulde lye in this laste case / therfore I well referre it to the iugemente of other / but in the case of the prescripcion before rehersed I take it for the clerer case / that no prohibicioÌ„ shall lye as I haue said before And I beseche our lorde that this matter and suche other lyke thereto maye be so charitably loked vpon that there be nat here after suche diuisions ne suche diuersities of opinions therein as hath ben in tyme paste wherby hath folowed great costes and charges to many persons in this realme that hath moued me to speke so farre in this chapitre and in diuers other chapitres of this presente boke as I haue done / nat entendynge thereby to gyue occasion to any persone to witholde his tythes that of righte oughte to be payde / ne to alter the porcion therein before accustomed / but that as me thynketh they oughte to be claymed by the same title as they oughte to be payde / by none other / that it may also soÌ„what appere that the sayde statute of .xlv. of Edwarde the .3 was well and lawfully made and vpon a good reasonable consideracion / and that the sayde prescripcion is good also / so that no man was in any daunger of excommunicacion for the makynge of the sayd statute / nor yet is nat for the obseruyng thereof / ne yet of the sayde prescripcion as it is noted by some persons that there shulde be And thus I coÌ„mit the vnto our lorde who euer haue bothe the and me in his blessed kepyng euerlastiÌ„gly AmeÌ„ ⧠Finis ¶ Here endeth the seconde Dialogue in Englisshe / with newe Addicions betwixte a Doctoure / and a Student in the lawes of Englande And here after foloweth the Table ⸫ ¶ Tabula Here aft foloweth the table with certayne AddicioÌ„s newly added therto And ouer all the Chapitres and questions whiche be newly added Ye shall fynde entiteled this worde Addicion bothe in the Table and also in the boke ⸫ THe introduction Fo. 2. ¶ The fyrste question of the Student whether the tenaÌ„t in tayle after possibilite of issue extinct may with conscieÌ„ce do waste The I. chapitre Fo. 4. ¶ What is vnderstaÌ„de by this terme whaÌ„ it is sayd thus it was at the comon law The .ii. chapitre Fo. 7. ¶ The seconde question of the Student whether the goodes of meÌ„ outlawed be forfet in coÌ„science as they be by the lawe The .iii. chapitre Fo. 8. ¶ The thyrde question of the StudeÌ„t / Is or wast done by a strauÌ„ger in landes that be in the haÌ„des of perticuler tenauÌ„tes cÌ„ The .iiii. chapitre Fo. 12. ¶ The .iiii. question of the Student / whether a maÌ„ may with conscience be of couÌ„cell agaynst hym that he knoweth is the heyre of right / but he is certified basterde by the ordinarie The .v. chapi Fo. 15 ¶ The .v. question of the Student / whether a man may with coÌ„science be of counsayle with
a man at the comon lawe knowyng that he hath sufficient matter to be discharged in the chauncery that he may nat pleade at the comon lawe The .vi. chapitre Fo. 17. ¶ The .vi. questioÌ„ of the StudeÌ„t / whether a maÌ„ may with conscience be of counsayl agaynst the feoffour of truste in an accion of trespas that he bryngeth agaynste his feoffe of trust for takyng the profites The .vii. chapitre Fo. 19. ¶ The .vii. question of the StudeÌ„t if a maÌ„ that by way of distres cometh to his det / but he ought nat to haue distreyned for it what restitucion he is bounde to make The .viii. chapitre Fo. 21. ¶ For what thynge a man may lawfully distrayne The .ix. chapi Fo. 23. ¶ The .viii. question of the Student whether executours be bounde in conscience to make restitucion for a trespas done by the testatoure / and whether they be bouÌ„de to paye dettes vpon a contracte fyrste / or make the sayde restitucion The .x. chapitre Fo. 25. ¶ The .ix. question of the Student / whether he that hath goodes deliuered hym by force of a legaci be bounde in conscieÌ„ce to pay a dette vpon a contracte that the testatoure ought / if the executours haue none other goodes in theyr handes The .xi. chapitre Fo. 28. ¶ The .x. question of the Student if a maÌ„ haue issue two sones dyed seased of certayne landes in fee the eldest dyeth without issue the tongest recouereth by assise of mortdauncestre the lande with damages fro the dethe of the father / whether he be bounde in conscience to pay the damages to the executours of the eldest brother for the tyme he leued The .xii. cha Fo. 31. ¶ The .xi. question of the Student what damages the tenant in dower shall recouer in conscience where hyr husbaÌ„de dyed nat seased / but she demaunded hyr dower and was denyed The .xiii. chapitre Folio 33. ¶ The .xii. question of the Student if a man knowynge a nother to haue right to his lande causeth a fyne with proclamacion to be leuyed accordynge to the statute / and he that hath right maketh no clayme within .v. yeres whether he be barred in conscience as he is in the lawe The .xiiii. chapitre Fo. 36. ¶ The .xiii. question of the Student / if a man that hath had a chylde by his wyfe do that in hym is to haue possession of his wyfes landes and she dyeth or he caÌ„ haue it / whether in conscience he shal be tenauÌ„t by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a reÌ„te enfeffe the grauÌ„te of the rente of parte of the lande cÌ„ whether the hole rente be extincte in conscieÌ„ce as it is in the lawe The .xvi. chapitre Folio 41. ¶ The xv question of the Student / if he that hath a rent out of .ii. acres be named in a recouerye of the one acre he nat knowynge thereof cÌ„ whether his hole rente be extincte in conscience cÌ„ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth laÌ„des iÌ„ fee he that hath the villayn entreth / whether he may with coÌ„cieÌ„ce kepe the laÌ„des to hiÌ„ to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questioÌ„ of the StudeÌ„t if a maÌ„ in the case next before enforme hym that is in the reuercioÌ„ of the villayn that after the dethe of the villayn he hath right to the laÌ„de couÌ„sayleth hiÌ„ to entre / wherupoÌ„ great sute charges folowe / what dauÌ„ger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpoÌ„ a feffemeÌ„t made vpoÌ„ coÌ„dicioÌ„ that the feffe shall pay a rent to a strauÌ„ger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the StudeÌ„t is vpoÌ„ a feofement in fee / it is agreed that the feffe shall pay a rente to a straunger / howe that feffement shall way in law conscience The .xxi. chapitre Fo. 51. ¶ Howe vses in lande began by what law the cause why so moche laÌ„de is put in vse The .xxii. chapitre Fo. 54. ¶ The diuersite bytwene two cases wherof one is put in the .xx. chapitre and the other in the .xxi. chapitre of this present boke The .xxiii. chapitre Fo. 57. ¶ What is a nude coÌ„tracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupoÌ„ The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the StudeÌ„t if a maÌ„ that hath two sones one borne before espousels the other after espousels by his wyll byqueteth to his sone heyre all his goodes / whiche of the sones shall haue the goodes in conscieÌ„ce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with conscieÌ„ce present to an aduouson of a churche that belongeth to the howse without assent of the coueÌ„t The .xxvi. chapitre Fo. 72. ¶ If a maÌ„ fynde beestes in his corne doiÌ„g hurt / whether he may by his owne authorite take them and kepe them tyll he be satisfied for the hurt The .xxvii. cha Fo. 75 ¶ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. chapitre Fo. 76. ¶ If a man be conuicte of heresye before the ordinarie / whether his goodes be forfet The .xxix. chapitre Fo. 78. ¶ Where diuers patrons be of an aduouson the churche voydeth / the patrons varye in theyr presentementes / whether the Bisshop shall haue libertie to present whiche of the incumbentes that he wyll The .xxx. chapitre Fo. eodem ¶ Howe long tyme the patron shall haue to present to a benefice The .xxxi. chapitre Fo. 80. ¶ If a man be excoÌ„menged / whether he may in any case be assoyled withoute makynge satisfaccion The .xxxii. cha Fo. 83. ¶ Whether a prelate may refuse a legaci The .xxxiii. chapitre Fo. 84. ¶ Whether a gyfte made vnder a condicioÌ„ be voyde if the souerayne onely breke the condicion The .xxxiiii. cha Fo. 87. ¶ Whether a couenaunt made vpon a gift to the churche that it shall nat be aliened be good The .xxxv. chapi Fo. 89. ¶ If the patroÌ„ present nat within .vi. monethes who shall present The .xxxvi. chapitre Fo. 91. ¶ Whether the presentemente collacion of all benefices and dignities voydyng at Rome belonge onely to the Pope The .xxxvii. chapitre Fo. 95. ¶ If a howse by chaunce fall vpoÌ„ a horse that is borowed who shall bere the losse The .xxxviii. chapitre Fo. 97. ¶ If a preeste haue wonne moche money by saynge masse / whether he maye gyue those goodes or make a wyll of them The .xxxix. chapitre Fo. 99. ¶ Who shall succede to a clerke that dyeth intestate The .xl. chapitre Fo. 101. ☞ Addicion ¶ If a man be outlawed of felonye / or be attaynted for murdre or felony / or that is an Ascismus may be slayne by euery strauÌ„ger The .xli. chapitre Fo. 102. ☞ Addicion ¶ Whether a man shal be bouÌ„de by the act or offeÌ„ce of his seruaunt or officer The .xlii. chapitre Fo. 104. ♣ Addicion ¶ Whether a villayn or a bondeman may gyue a waye his goodes The .xliii. chapitre Fo. 106. ¶ If a clerke be promoted to the title of his patrimony after selleth his patrimony falleth to pouerty / whether he shall haue his title therin The .xliiii. chapitre Folio 108. ¶ Diuers questions takeÌ„ out by the Student of the summes called Summa rosella Summa angelica whiche me thiÌ„keth are necessary to be sene how they stande agree with the lawe of the realme The .xlv. chapitre Fo. 111. ¶ Where ignoraunce of the lawe excuseth in the lawes of Englande where nat The .xlvi. chapitre Fo. 115. ¶ Certayne cases groundes where ignorauÌ„ce of the dede excuseth in the lawes of Englande where nat The .xlvii. chapitre Fo. 119. ☞ Addicion ¶ The fyrst question of the Doctour how the law of Englande may be sayde reasonable that prohibiteth cÌ„ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takeÌ„ as heyre bycause it is nat knowen but that the eldest brother is ded be in conscience a barre to the eldest brother as it is in the lawe The .xlix. chapitre Fo. 124. ¶ The thyrde question of the Doctoure / whether if a maÌ„ procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in coÌ„science as it is in the lawe The .l. chapitre Fo. 127. ¶ The fourth question of the Doctoure / is of wreke of the see The .li. chapitre Folio 129. ¶ The fyft question of the Doctour / whether it stande with conscience to prohibite a Iurye of meate drynke tyll they be agreed of theyr verdite The .lii. chapitre Folio 131. ¶ The .vi. question of the Doctoure is / whether the colours that be gyuen at the comon lawe in assises / accions of trespas and diuers other accions stande with coÌ„science bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. ☞ Addicion ¶ The .vii. questioÌ„ of the Doctour / coÌ„cerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade iÌ„ suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questioÌ„ of the Doctour / how the statute that was made in the .xlv. yere of kynge Edwarde the thyrde concernynge the tythe of woode maye stande with conscience The .lv. chapitree Folio 140. ¶ Finis Tabule ¶ Thus endeth the seconde Dialogue in Englisshe / with the Addicions bytwene a Doctoure of of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LoddoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC.XXXii The fyrst day of the moneth of Iuly ⸫