34. because the profites of land the land it self are one the selfe same thing in substance m 10. H. 7. 9. 6. â— 6. 71. Dy. but he may lease his Parke excepting the wood vnderwood his maÌ„nor reseruing the warren but the soile of the wood and warren shall goe to the lessee n 14. H. 8. 1. 33. H. 8. Br. Reseruat 39. Codicgn By our Lawe a man may grant and 2. That by the Ciuill law a man may graÌ„t and demise the vse of a thing and yet not grant the thing it selfe demise the vse of a thing and yet not graunt the thing it selfe Suppose a man graunt vnto mee his mare for a certaine time I may during the time vse the mare at my pleasure but I may not lend her or set her ouer to some other to vse neither caÌ„ I haue the fole which coÌ„meth of her for by the graunt I may claime vsum onely but not vsumfructum and so hee to whom the vse of a mans ground is granted may take the profites of the ground to his owne vse but may not sell theÌ„ to others o Gâ—â—atup in vocabular verbo vti frui Nomom I would gladly know when a man 6. Diuision 1. When a maÌ„ selleth land in which treasure is hidde and the vendor knoweth not of it whether shall the vendee haue the treasure 2. How this word treasure is taken in the Ciuill lawe selleth his land in which there is treasure hidde whether the vendee shall haue the treasure because the vendor knew not of it at the time of the sale Codign It may bee you take the worde Treasure generally not properly as it is vsed strictly in our Lawe for if a man do hide any thing in the grouÌ„d for gaine or through feare or to keep it more safely within time of memorie this may not properly haue the name of treasure p l. nunquam D. de acquir rer domin for a treasure properly is when money or things of good value haue lyen from time out of minde hidden in the ground so that no man now hath propertie in it q d. l. nunquaÌ„ It hath bene forbidden by many 3. That by the Ciuil law money and other things necessary to the commoÌ„ vse of this life are forbidden to be hidden buried in the ground lawes that money may not be buried r l. 4. D. ad leg Iul pecul and these Lawes haue reason for them for it is against the s Aristot Nicomach 5. nature of monie that it should be buried being inuented for the daily and common vse of men and the same may be affirmed of other thinges which are hidden t L. 5. l. â— D. de vsufr ca. re que vs coâ— and these prohibitory lawes are fortified with this penaltie that things so hidden shall be forfeited to the Treasurie Plato had 4. Plato his superstitious opinion of thinges hidden in the earth such a scrupulous or rather such a superstitious conscience that he made by his lawes treasures to be immobâ—les Dijs inferis sacros and his precept is straunge in this case Quae minime deposuisti ne tollito u Plat. lib. 11. de legi Adrianus Caesar made a law as Spartianus reproteth that if any man had found treasure in his owne ground himselfe should haue it if in an other mans he should giue the halfe to the owner of the soyle if in a publique place he should deuide it equally with the treasurie This law was abrogated by other lawes following and reuiued by Iustinian but nowe 5. How the Ciuil law doth order and dispose of treasure and long time agoe our law hath transferred it to the Prince in whose Realme it is found x L. 3. §. Nerati D. de acquir posses Alberic Gentilis Disputati Decad. 1. c. 10. So that I cannot possibly see how the vendee in your case proposed shall by our law haue it Auglonomoph Nor by our law which saith Quod the saurus competit domino regi non domino libertatis si non sit per verba specialia aut per praescriptionem y Fitz. Coro 281. 436. And in this case though he selle 6. What the Common law doth determine of treasure vnto him the profit de terra yet he doth not sell vnto him the profits in terra which treasures are z Plowd coâ—en le informa pur mines Nomom I will content my selfe with this difference which you haue put and will now proceede according to the platforme of our forementioned order to learne something of seignories and seruices The fourth Dialogue of Seignories and seruices NOmomathes Because things are better 1. Diuision and more certainly knowne by the definition of them therefore I pray you let me first haue of you some definition or description of a seignorie Codicgn A seignorie which we call feudum 1. The description of a seignorie by the Ciuill law may be thus described A bountifull granting of land for doing homage or some other speciall seruice a Glo. in vsi feu tit quib mod feod acquir in princip c. vnico §. in primis tit in quib caus feud amit de feud dat mi. valuas ca. vnico melius tit de feud dat in vicem leg coÌ„missor reprob cap vnic Anglonomoph A seignorie with vs is nothing 2. Likewise by the Common law else but a relation of delitie betwixt the tenant and the Lord. Canonolog In our Canon law it is shortly desined 3. By the Canon law The granting of land for homage b C. ex diligenti de simon Nomomath Shew me I pray you how homage 2. Diuision and other seruices had their first existence and beginning but first shew me what homage is Anglonomoph Homage is thus performed The 1. What homage is and how it is to be performed by the Common law tenant that is to doe homage must haue his head discouered and his Lord sitting he must kneele before him vpon both his knees and shall hold forth both his hands betweene the hands of his Lord and shall say as followeth I become your man from this time forward of life and member and earthly honour and to you shall be faithfull and loyall and shall beare vnto you faith for the tenements which I claime to hold of you sauing the faith which I beare to our Lord the King which being done the Lord sitting shall kisse him c Littlet lib. 2. c. 1. Nomom Hath this ceremonie beene auncient Codicgn The kneeling and giuing of a kisse 2. That Homage hath bene practised in auncient times at the doing of such seruice is very auncient for Tiridates the King of Armenia did kneele down before Nero the Emperor whom Nero lifted vp and gaue him a kisse d Tranquil in Neron And longe before his time Alexander the great did imbrace and
religious man ought to doe fealtie tenaÌ„t ought to do such seruice yea though he be a religious man and professed vnder rule p ca. vnico tit de natura feudi Et tit qualiter vassall iur deb sideli domi Et in ca. vnico tit quib mod feud amittatur Et in quib causis feudum amitt tit quae â—uit pri causa benef amit Canonolog But such a religious man may not say Ego deuenio homo vester nor humiliate himself to execute the rite of homage q C. venieÌ„s C. ex diligenti de Simon grauem de excess praelat cap. fin de re Iud Anglonomo By our Law he may do homage but may not say to his Lord ego deuenio homo vester because he hath professed himself to be onely God his man but he may say I doe vnto you homage and to you shal be faithfull and loyall r Littlet lib. 2. c. 1. Sect. 2. Nonoma Shewe me I pray you some speciall 6. Diuision kinds of these seruices that I may know them morefully and more distinctly Codicgn Seruices are diuersified according 1. The diuerse kindes of seruices in the ciuill Law and their definitions to the qualities of the persons to whom they are to be done if it be to bee done to an Emperour it is to be tearmed an Imperiall seruice if to a King a regall seruice Å¿ Cap. 1. de feud march ducatâ— in ca. 1. quis dicat dux comes marchio if to Religious persons Ecclesiasticall if to Lay men secular t Tit. de his qui feud dar pos tit Episcop vel Abbat but when it is to bee done to a lesser estate then to an Emperour or King as to a Duke Marquesse or Earle then it is called feudum honoratum sometime land is giuen by inferior persons meaner men without expressing any seruice and theÌ„ the Law intendeth that fealty onely is to be done this is called FrancuÌ„ or LiberuÌ„ u Ca. 1. de no. form fidel sometime it is giuen with reseruation of speciall seruice that is feudum non nobile a Ca. fâ— de capilan qui cur vendid somtime it is giueÌ„ in perpetuuÌ„ sometime but for tearme of life and then it is called Perpetuum vel temporale b De feud march in prin de alien feud in fine de feud guard castald But though by the oath of fealtie the vassalle be bound to serue his Lord in warre yet this is limited to such case where the warre is not notoriously vniust or vnlawfull for if it be otherwise though hee doe him no seruice in warre yet he shall not forfeite his tenement c In cap Domino guerram in prin in tit hic sini lex deinde c. neither is he bound to do his seruice to his Lord if his Lorde bee excommunicate or bannished vntill he haue obteined absolution or a recalling from bannishment but d D. cap. Domino guerraÌ„ in sin in a iust warre the vassalle is bound to helpe his Lorde against euery other person who is not the Lorde of the vassalle yea euen against his father brother or sonne Anglonomoph Seruices in our Law are of diuerse 2. The diuerse kindes of seruices in the Common law and their definitions sorts some being more noble and some lesse noble of these which are more noble some belong to the king and some both to the king to subiects of these that belong to the king some be domestical only as Petite Sergeancie some bellicall onely as Knights seruice in Capite some both domesticall bellicall as grand sergeancie some of the more noble seruices belong vnto subiects as well as to the king as knights seruice and homage these which be lesse noble may be diuided into two braÌ„ches for either they are ingenuous or seruile the ingenuous are of two sorts either performable by particular men or a certaine people as fealtie rent seruice the like which make socage tenure or els performable by a certaine people onely as burgage the seruile or base seruice is villenage Of all these seruices saue such only as haue bin before described I will speake somewhat seuerally briefly and in order Petite Sergeancie is where a man holdeth his land of the King paying yerely vnto him a Bow or a speare or a dagger or a launce or a spurre of golde c. e Littlet lib. 2. ca. 9. sect ' 1. Knights seruice in Capite is where a man holdeth his landes or tenements of the king as of his crowne immediatly ab antiquo by doing some warlike seruice Graund sergeancie is where a man holdeth his lands or tenements of the king as of his Crowne immediatly by doing some speciall seruice to the King in person as by carying his banner or launce or by being his marshall or sewer or caruer or butler c. f Litt ' li. 2. ca. 8. sect ' 1. 23. H. 3. Gard 148 of homage and fealtie hath beene spoken before Rent seruice is where the tenant holdeth his lande of his Lorde by a certaine rent for which if it be behinde at the day wherein it ought to be paied the Lord may distreigne for it of common right Burgage is where the tenants of an auncient borough doe holde landes within the Borough of the King or some other person as of his borough by a certaine rent g Litt ' lib. 2. c. 10. sect ' 1. 2. Villenage is where a man holdeth of his Lorde either by doing vnto him some partiticuler base seruice and such a one is called a tenant by villenage or by doing generally whatsoeuer base seruice his Lorde will commaund and impose vpon him such a tenant he is tearmed in our Law a villaine h Litt. lib. 2. c 11. sect ' 1. 2 This miserable estate of villenage had his beginning soone after the diluge and now by the consent of all nations it is ratified for the West Indians though they haue 3 The original of villenage and the nature thereof no knowledge of diuine or humane Lawes yet bondmen they haue and the Mahometistes make Christians their bondeslaues the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market i Bodin lib. 1. de repub c. 5. The Romains had power by their law to sel or kil their villains k Tacit. li. 14. but for mittigation of cruelty the Law Petronia was made whereby it was forbidden that none should put his villaine to death without cause which law was executed by Nero l Senec. lib. 3. de benefic after by Adrianus m Sparcian in Adrian but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine and from the mayming of him n Litâ— ' lib. 2. c. 11. sect ' 32. hauing regard to
tenancie of whom fealtie is demaunded and he refuseth to perfourme it ſ C. vnico que fuit prima causa §. sed non est alia so that the Lorde doe demaunde fealtie at due times and allowed by Lawe because if he should demaund it euerie yere the vassalle should not loose his tenancie t §. si vastallus si de feud de funct ' §. licet vastallus c. domino guerrā in tit hic finit lex c. also the vassall looseth his tenancie if 2 Many causes of the tenants forfaiture in the ciuil Law being at full age he be not in expedition with his Lord or if he doe not depute some able person for the discharge of the duetie or if he doe not pay to his Lord stipendia militiae pro quantitate feodi when he is lawfully demaunded u de pace iuram firm §. fin and that is said to be a due quantitie of a knights see whē the vassall which goeth not in war nor sendeth a sufficient man doth yeelde the halfe part of the yerely value of his tenancy to the Lord. x C. Imperialem § firmiter de prohi feud alien p Freder Angonomo There be many conclusions in our 3 Some cause of forfaiture at the common Law Lawe aunswerable to that which you haue said for it hath bin affirmed that if a man holde his land of his Lord by homage and fealtie and he hath done homage and fealtie to his Lorde and the Lorde hath issue a sonne and dyeth and the seignorie discendeth to the sonne in this case the tenaunt which hath done homage to the father shal not do homage to the sonne because when a tenaunt hath once done homage to his Lorde hee is excused for tearme of lyfe to doe homage to any other heire of the Lord a Litt ' lib. 2. c. 7. sect 13. But if a man bee seised of a Mannour and an other man holdeth lande of him as of the foresayde Mannour by homage and hath done his homage vnto him and a straunger bringeth a Precipe quod reddat against the owner of the Mannour and recouereth the Mannour against him and sueth execution in this case the tenaunt shall agayne doe homage to him that recouered the Mannour though he haue done homage before because the estate of him who receiued the first homage is defeated by the recouerie and it lyeth not in the mouthe of the tenaunt to falsifye or defeate the recouerie which was against his Lorde b Litt ' ibid ' sect ' 17. And if if a tenaunt which ought by his tenure to doe homage to his Lorde come to his Lorde and say vnto him that hee is readie to doe him homage for the tenements which hee holdeth of him and the Lorde doth then refuse to receiue it after such refusall the Lord cannot distreigne the tenaunt for the homage before the Lorde require him to doe homage vnto him and he refuseth c Litt ' lib. 2. c. 7. sect ' 19. 20. and he that holdeth by Knights seruice of the King neede not goe to warre with him if hee will finde a sufficient person conueniently armed and fitte to goe with the King and this seemeth good reason For it may bee that hee that holdeth by such seruices doth languishe in sickenesse so that he cannot goe nor ryde And a Feme sole which holdeth by such seruices may not in such case goe in proper person and it hath beene said that Escuage shall not bee graunted vnlesse the King goe to warre himselfe in proper person and after such a voyage royall it hath beene likewise affirmed that by authoritie of Parliament Escuage shall be assessed and put in certaine how much euery one that holdeth by an entier fee of Knightes seruice which was not with the King by himselfe or by an other for him shall pay to his Lord of whom he holdeth by Escuage as if it be ordeigned by authoritie of Parliament that euery one which holdeth by an entier fee of Knights seruice that was not with the King nor any other c. for him shall pay to his Lord fortie shillinges then euery one that holdeth of his Lord by the moitie of a Knights fee shall pay to his Lorde fortie shillinges and he that holdeth by a fourth parte tenne shillinges and soe pro rata d Litt ' lib. 2. e. 3. sect ' 5. 6. 8. 7. E. 3. 29. Nomom Resolue me I pray you whether when 9. Diuision the tenant hath committed treason or felonie and thereof is conuicted and attainted he shal as to his tenancie incurre any preiudice Codicgn In such case either the offence is 1 Whether when the tenant hath cōmitted felony or treason and is attainted he shall suffer any preiudice in his tenancie 2 A diuersitie in the Ciuil law where the offence is committed against the person of the Lord and where against the person of a straunger committed against the person of his Lord and so he doth preiudice all these that are to succeede him in the land by order and course of Law depriuing them of the aduantage of inheritance e Cap. vnico §. denique in si in illis verbis si tamen fuerit paternumt it que fuit prima causa ben amitt or he hath offended against some other person and not against the person of the Lord then the children onely and such as were to take benefit by the person of the father as issuing from his bodie are repulsed from the inheritance f §. Si vassallus culpam si de feud◠defunct ' and then it goeth to them of the kinred which are nearer in degree g Gloss super verbo reuocabuntur in d. si vassallus culpam Anglonomoph By our Lawe where the tenant is outlawed of felonie it is in the Lords election to haue a writ of Escheate supposing that his tenant was outlawed of felony or that he dyed without heire for by the attainder the bloud is corrupted h 48 E. 3. 2. But it seemeth by Nicholses case 3 That by the common law by attainder of felonie or treason the bloud is corrupted and in the one case the land shall eschete to the king and in the other to the immediate Lord. that the partie attainted ought to bee dead before the lande can escheate for according to the opinion of Dyer and Barham in the Kinges case after the attainder and till Office be found the see simple shall bee in facto in the person attainted so long as he shall liue for as he hath a capacitie to take land of a new purchase so he hath power to hold his auncient possessions and he shall be tenant to euery Precipe and if he died before office found and the land be held of the King the lande shall goe to the King in nature of a common eschete i 18. Eliz. Com̄ 477. Nichols case but this is to be intended in
land it selfe 2. That by the ciuill lawe a man may grant and demise the vse of a thing and yet not grant the thing it selfe The 6. Diuision 1. When a man selleth land wherein treasure is hidden and the vendor knoweth not of it whether the vendee shall haue the treasure 2. How this word treasure is taken in the ciuill lawe 3. That by the ciuill law money and other things necessarie to the common vse of this life are forbidden to be hidden and buried in the ground 4. Plato his superstitious opinion of things hidden in the earth 5. How the ciuill lawe doth order and dispose of treasure 6. What the common lawe doth determine of treasure The diuisions and principall contents of the fourth Dialogue of seignories and seruices The first Diuision 1. THe description of a seignorie by the ciuill lawe 2. By the Canon law 3. Likewise by the common law The 2. Diuision 1. What homage is and how it is to be performed by the common law 2. That homage hath beene practised in ancient time The 3. Diuision 1. What a Manor is and whereof it consisteth 2. The originall of a Manor The 4. Diuision 1. Statutes made for the preseruation of seignories and Manors The 5. Diuision 1. Fealtie is the most generall seruice in the common law 2. In the ciuill law 3. That by the ciuill law the common law and the Canon law a religious man ought to do fealtie The 6. Diuision 1. The diuerse kinds of seruices in the ciuill law and their definitions 2. The diuers kinds of seruices in the common lawe and their definitions 3. The originall of villenage and the nature thereof 4. The tenure whereby a man holdeth of an honour or manor is described and by examples illustrated 5. Certaine honours which be not of the ancientnes of the Crowne 6. Some honours which be annexed to the Crowne The 7. Diuision 1. Whether one within age be compellable by lawe to doe all manner of seruice either by himselfe or some other 2. A diuersitie in the Ciuill lawe whether the father of such an infant died in a iust warre or at home in his bed 3. That by the Common lawe the infant shall be in warde if his father died seised of lande held by Knights seruice without anie such diuersitie 4. A diuersitie in the Common lawe where the heire of the tenaunt by Knightes seruice is within age and a Knight at the time of his fathers death and where not The 8. Diuision 1. What penalties lie vpon the tenaunt if he doe not his seruice 2. Many causes of the tenaunts forfeiture in the Ciuill law 3. Some causes of forfeiture by the Common lawe The 9. Diuision 1. Whether when the tenaunt hath committed felonie or treason and is attainted he shall suffer any preiudice in his tenauncie 2. A diuersitie in the Ciuill lawe where the offence is committed against the person of the lord and where against the person of a straunger 3. That by the Common lawe by the attainder of felonie or treason the bloud is corrupted and in the one case the land shal eschet to the King in the other to the immediate Lord. 4. The aforesaid determinations and conclusions of Ciuill and Common lawe touching the forfeiture of the offendorare examined by the law of God The Diuisions and Principall contents of the fifth Dialogue of iointenauncie and tenauncie in common The first Diuision 1. THat iointenaunts and tenauntes in common ought to haue equall profit 2. That by the Common lawe a writ of account will lie if one iointenaunt take all the profits The 2. Diuision 1. That iointenauncie is dissolued by death vnlesse there be some clause in the creation of the estate to the contrarie The 3. Diuision 1. That by the Ciuill lawe by the ioint gift of all the goods of a man all corporall things passe 2. That by the Common lawe if a man deuise the third part of his goods to his wife it shall so be rated as they were at the time of the death of the testator That the Queene may graunt a thing in action The 4. Diuision 1. That iointenauncie by the Ciuill lawe may be of all such things as lie in contract 2. That the limitation of tenauncie in common is by the partie but the construction of it by the lawe The 5. Diuision 1. That an assignee of a moitie in the Ciuill law is bound by the couenant of his grauntor 2. That by the Common lawe in such case the assignee is bound by the couenant The Diuisions and principall contents of the sixth Dialogue of exchaunges The first Diuision 1. THat by the Ciuill lawe contractes for a certaine price are not exchaunges 2. That by the Common lawe the word excambium must be vsed in the exchaunge 3. That the estates must be equall 4. That the things exchaunged must be in esse 5. That an exchaunge is good though one part of it doe inure by way of extinguishment The 2. Diuision 1. That the incumbents may not exchaunge their benefices by the Cannon lawe 2. That the Chapiter may warrant permutations sede vacante in such benefices wherein they haue interest or authoritie 3. That by the Common law ecclesiasticall persons their patrons and ordinaries ioining together cannot make anie good exchaunge of ecclesiasticall benefices 4. That the statute of mortmaine is most strict and pregnant in words The Diuisions and principall contents of the seuenth Dialogue of Deuises and Legacies The first Diuision 1. THe antiquitie of willes 2. Plato his exception against Solons law concerning willes 3. Solons lawe is maintained and defended against Plato The 2. Diuision 1. Such as be vncapable of inheritaunces and goods may not be deuisees heires or executors by the ciuill lawe 2. A difference in the ciuill law betwixt the making of a deuisee and the making of an executor 3. That by the Common lawe all persons to whom a grant may be made a deuise may be made vnlesse it otherwise happen in some fewe cases 4. That the deuisee must be a person capaple of the thing deuised 5. That by the common lawe the deuisee ought to be capable at the time of the death of the deuisor The 3. Diuision 1. That by the ciuill lawe all such things may be deuised as the testator hath in his owne right at the time of the deuise 2. The three degrees of a testament by the common lawe 3. A difference in the common lawe where a man deuiseth a thing whereof he is not seised particularly and by name and where not 4. That thinges which are not in esse at the time of the deuise made may be deuised 5. That the deuise of tenaunt for life or tenaunt in dower of the corne growing at the time of their death is good 6. That when the partie hath a certaine and lawfull interest in a thing â—e may lease it grant it or deuise it before the existence of it 7. That a deuise may
helde by before of the Manor for the Queenes acte may not preiudice her tenant f 29. H. 8. Br. Ca. 113. but where a man holdeth of the Q. by reason of an other thing as namely by reason of a Manour this is no tenure in Capite g 3. Eliz. Com̄ 241. Wilgous case but if the King be seised of a Manour and giueth to a straunger an acre of the Manour to haue and to hold to him and to his heires of his body engendred without expressing any seruice the donee shall hold of the king by knights seruice in Capite h Ibid 240. per Car. and tenures likewise may be to hold of one as of his person or of his Manor by diuerse other seruices as if a man had made a feoffement of land before the statute or a gift in taile sithence the statute to holde of him by the making of a bridge ouer certaine land or by making a beacon in the lande giuen this is a good tenure for a man may holde of an other by doing seruice for a common good as well as for the priuate profit of the Lord as to repaire a bridge or a high way or by keeping such a Castle for the Lorde himselfe in this hath profit with others i 11. H. 7. 12. 12. H. 7. 18. p Finch 24. H. 8. Br. Cas 51. Nomom You haue taken some paines Anglonomoph 7. Diuision 1 Whether one within age be compellable by law to do all maner of seruice either by himselfe or some other in discribing the particuler kindes of tenures now I would here somewhat of Codicgn whether one within age be excused from personal seruice because his age is not fit to serue so that the seruiceage is suspēded vntil the maturity of his age or whether he shal be compelled to do his seruice by a substitute Codicgn To dissolue that question a difference is to be taken for either the Father of the heire which is within age died in the warlike seruice 2 A diuersitie in the Ciuill law whether the father of such an infant dyed in a iust warre or at home in his bedde vndertaken for the defence of his Lorde in a iust warre I meane that which is waged for the safetie of the common weale or els he dyed in his house by humane infirmitie without any bearing of armes in the first case he is not bound to doe any seruice either in his owne person or by any other person interposed during his minoritie because his father who died in the field is supposed in Lawe still to serue by the glorie of his valor k Instit de Excus tutor §. sed si in bello ff ad leg Aqu. l. qua actione §. si quis in colluctatione which the best and most learned of all Poets did well imagine who when he had placed Caesar in the middest of extreme troubles to comforte and encourage him representeth vnto him the ghost of Scaeua one that dyed a good while before but yet after many assaults and many woūds stoode out as a Conqueror l Lucan li. 10. which conceite of Lucan Tasso a moderne Italian writer a man of an excellent poeticall witte in the discriptyon of Guidoes funerall doth passionatelye though Popishely glaunce at m S. Torquat Tasso Canto 4. Gierusal liberat but if the father died not in warre nor in the expedition but by naturall death in his owne house then if the heire at the death of his Father bee in his pupillage he must perfourme that seruice by a substitute Anglonomoph But by our Lawe he shall be in 3 That by the common law the infant shal be in warde if his father died seised of land helde by knights seruice without any such diuersitie warde to the Lorde during his minoritie if hee holde his landes by Knightes seruice and the Lorde shall haue the profits of his lande that he may maintaine a sufficient man to doe him seruice in the warre whereas the heire by reason of his tender age cannot personally performe the seruice nor by the want of discretion prouide a conuenient person to accomplishe it n Litt ' lib. 2. c. c 4. sect ' 3. but if he be made a Knight within age then because the Lawe intendeth that he is fit to doe his seruice because knighthoode is bestowed in regarde of precedent merite or of some eminent prowesse and towardnes as may appeare by that saying of Scipio in the Senate ab annis septemdecim ad senectutem semper vos aetatem meam honoribus vestris anteistis ego vestros honores rebus gerendis precessi o Liuius li. 38. the Law is otherwise But 2. Ed. 6. in the case of Sir Anthony Browne of Surrey vicount Mountegue a difference was taken where the tenant by 4 A diuersitie in the commō law where the heire of the tenāt by knights seruice is within age and a knight at the time of his fathers death where not Knights seruice dieth seised his heire being within age and a Knight at the time of his death and when after his death he is made Knight during his minoritie for in the former case it was helde that he should be in warde notwithstanding his knighthoode p 2. E. 6. Br. Gard 42. 72. For otherwise the auncestor may procure his sonne within age to be made knight by collusion to the intent to defraude the Lord of his warde but this seemeth to be but a weake reason because knighthood is not by intendement of the law graunted vpon so sleight a cause but it seemeth to Master Brooke where the heire is in ward and is made knight being in warde this shall free him from wardship for the statute of Magna Chartaca 3. Postquam heres fuerit in custodia cum ad aetatem peruenerit scil 21. annorum habeat heredit atem suam sine releuio sine fine ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra sua remaneat in custodia dominorum vsque ad terminum supradictum this saieth q Br. ibid. Master Brooke verie probaly guyding his opinion by the premisses is onely to be intended where the heire is made Knight within age being in warde after the death of his auncestour and not where he is made knight in the life of the auncestour but admitte this to be meant of such an heire onely yet by no consequence can a man inferre hereof that if an heire within age bee made knight in his fathers life time he shal be in warde after the death of his father nay there is good authoritie for the contrarie r 6. Elizab. Comm̄ 268. Nomomat Let mee knowe I pray you what 8. Diuision penalties lye vpon the tenant if hee doe not his seruice Codicgn By our Lawe the vassalle is depriued 1 What penalties lye vpnon the tenant if he do not his seruice of his
liuerie onely transferreth the land otherwise it had beene if the word exchaunge had beene vsed in the deede and the estate which the parties are to haue in the land exchaunged ought to be equal 3. That the estates most be equall and Choke saith that both the things exchanged ought to be in esse at the time of the exchaunge and therefore an exchange of land for rent granted de nouo is not good but an exchaunge betwixt 4. That the things exchaūged must be in Esse a rent and a common which are in esse at the time of the exchaunge is good and so it is of land and rent c 9. E. 4. 21. p Brian Choke Nedham And according to his opinion an exchange of the right which the dissesee hath to the land wherof the disseisin is committed for an acre of land in which the disseisor hath right is no good exchaunge d 3. E. 4. 10. p Choke And where the worde exchaunge is mentioned though the conueyance be but an Indenture of couenants yet it shall amount to a good exchaunge for an Indenture of couenants was made betwixt a Prior and the Maister of Gunnell hall in Cambridge that the Maister should haue three acres of land to him and to his successors in perpetuall exchaunge for one chamber of two chambers to be assigned by the said Maister at his election to the said Prior and his successors this hath beene held to be a good exchaunge though it be by way of couenant e 9. E. 4. 38. And though it be auouched for lawe that if by a deed of composition it be agreed betwixt two that the one shall haue such landes in allowance of other lands belonging to him that this is a good exchaunge f 3. E. 3. 19. yet I doubt whether an exchange may be accōplished by such counteruaileable words but a man may 5. That an exchaunge is good though the one parte of it doe mure by way of extinguishment giue land in exchāge for a release which cannot mure but only by way of extinguishmēt though there be some authoritie against it g 7. E. 3. 37. therefore Nortons opiniō is iustly denied by Thorpe wheras he held that in euery exchaūge there must be a mutuall transmutation of the possession h 16. E. 3. Exchaunge 2. for if a man release to an other his estouer of wood which he is to take yeerely in his wood in exchaunge for land giuen to him in exchaunge for the same release this is a good exchange though the release take effect by way of extinguishmēt but it is as great a profite and aduauntage to the tenant to be discharged of the estouers as if so much had bene graunted vnto him out of an other mans wood i Park tit Exchaun 53. 31. E. 1. Exchange 16. and the Law well perceiueth the profite which a man may haue by way of extinguishment for if the father being tenant in taile doe alien the land entailed with warrantie and hath a rent charge in fee issuing out of the lande of his Sonne which doth discend vnto the sonne this is a good assets in value notwithstanding the extinguishment k 31. E. 3. Garrantie 29. Nomomath Whether may Ecclesiasticall benefices 2. Diuision promotions and liuings bee exchaunged or no. Canonolog The incumbents may not by their 1. That incūbents may not exchaunge their benefices by the Canon law sole authoritie chaunge their benefices but they may exchaunge them Interueniente authoritate Episcoporum ad quos pertinet collatio but there is a question in the glosse whether the Chapiter 2. That the Chapiter may warrant permutations sede vacāte in such benefices wherein they haue interest or authoritie may authorise such permutations sede vacante l C. quaesitū de rer permut glos in Clem vnica E. tit and it resolueth briefly that in such things wherein they haue a common collation either by reason of authoritie or by reason of interest and consent it may authorise exchanges sede vacante but in other cases not m Glos in d. Clem. vnic super verbo Conferantur Anglonomophylax The reason in our Lawe 3. That by the Common law Ecclesiasticall persons their patrons and ordinaries ioyning together can not make any good exchange of Ecclesiasticall benefices wherefore such ecclesiasticall persons nor their patrons and ordinaries though they all agree can not exchaunge the inheritances of spirituall liuings is because the statute strictly prouideth that no alienation be made in mortmaine for a thing which was amortised before may be again amortised and therefore if a religious person do appropriate a Church which is of his owne presentation without the kings licence it is forfeited though it were amortised before n 19. E. 3. Mortmain 8. and in such case where one Abbot did alien to an other the collusion was to bee enquired of as well as in the alienation of land made by a secular man to a religious corporation o 16. Assis pl. 1. for the wordes of the Statute of Mortmaine bee very 4. That the statute of Mortmain is most strict and pregnant in wordes strong and large against such purchasors which are thus Prouisum est quòd nullus religiosus emere vel sub colore donationis aut termini aut alterius tituli cuiuscunque ab aliquo recipere aut arte vel ingenio sibi appropriare praesumat per quod terrae tenementa huiusmodi ad manum mortuam quocunque modo deueniant p Statut. de religios 7. E. 1. Mortmain 3. and therefore the case was that a femme sole purchased lande in fee and tooke to husbād the villaine of a Bishop which he had in right of his Bishoprike and the Bishop entred and this was adiudged a mortmain for according to Wickinghams opiniō the words of the Statute of Mortmaine are quocunque modo otherwise it shall be if the tenant of the Bishop do die without heire q 41. E. 3. 21. but 19. Henr. 6. the contrarie is held to be Lawe but if the villaine himselfe purchase lande it is helde there that in such case a Bishop or an Abbot can not enter r 19. H. 6. 56. but Thorpes opinion is 41. E. 3. that though hee may not enter in the case aforesaid yet hee may reteigne the land against the villaine and the king may afterward ratifie his estate which is no more in plaine tearmes then that an estate so gained is voidable onely and not voide and as to the exchaunge of benefices betwixt parson and parson it is seuerely punished by edict of Parliament in our realme ſ 31. Eliz. Nomomathes I will not stay longer vpon the inquirie of exchaunges for you haue opened vnto mee the nature of them and how farre they extende in these few cases now let vs passe to a larger examination of the doubts and pointes of deuises and legacies The
that the deuisee be capable at the time of the death of the testator so it is likewise by our law for though a man may not graunt nor giue lands to his wife during the couerture because they both are but one persoÌ„ in law yet by custome heretofore which the CoÌ„mon law did fauour and now by statute he might or may deuise his lands to his wife to haue in fee simple or otherwise because such deuise taketh not effect till the death of the deuisor p Littl. lib. 2. c. 10. Sect. 8. 27. Assis pl. 60. and then they are not one person q 24. H. 8. Br. Deuis 34. Nomom Now let me know what things may 3. Diuision be deuised Codicgn Whatsoeuer things the testator hath 1. That by the Ciuill law all such things may bee deuised as the testator hath in his owne right at the time of the deuise as in his owne right r ff de legat 2. l. vinum §. si reÌ„ tuam if he happen to deuise a thing which is not his owne but an other maÌ„s the executor is by our Lawe compelable to buy it and to giue it to the deuisee by vertue of the will or if the owner will not sell it hee ought to pay the very value and full estimation of it to the deuisee Å¿ ff de legat 3. l. dubium §. vlti and if lande bee bought by the deuisor for which he hath not payed any monie or not all the monie if he died and the deuisee will haue the land hee must pay the monie and so enioy the land t L. 39. §. IdeÌ„ Iulianus de legat 1. but if the deuisor haue solde lande and hath not receiued the monie and he deuiseth the lande so solde to I. S. the deuisee in this case shall not haue the lande solde but the monie that is to bee payed for it for an argument is rightly drawne ab augmento ad diminutionem u L. si ex toto eo tit so that this conclusion may bee made is the thing bought due to the deuisee then the deuisee ought to pay the monie is the thing not solde not due to the deuisee then hee must haue the monie that is to bee payed for it Anglonomoph In our Lawe the making of a testament 2. The three degrees of a testament by the Common law hath three partes Inception which is the writing of the testament Progression which is the publication of it Consummation which is the death of the partie and when after the deuise the deuisor purchaseth other lands it caÌ„not 3. A differeÌ„ oâ— in the CoÌ„mon law where a man deuiseth a thing wherof he is not seised particularly and by name and where not be intended by any possibilitie that hee would haue them to passe by the deuise for there is nothing conteined in the will which doth purport such intent but it was held in Brettes case that if a man deuise land in certaintie as the mannor of Dale or white acre and he hath no interest nor possession in them at the time of the making of the will and after the doth purchase it in such case it shall passe to the deuisee for then it shall be taken that his intent was to purchase it as it is said 39. Henr. 6. 13. and it was likewise sayd that the statutes of 32. and 34. Henr. 8. required that the deuisors should bee seised of the land deuised at the time of the deuise for the words be Euerie person hauing or which after this acte shall haue c. a 10. Eli. ComÌ„ Brets case per Louel touts les Iust Nomom I pray you let me know more particularly what things may be deuised Codicgn A thing may be deuised which is not 4 That things which are not in esse at the time of the deuise made may be deuised in rerum natura at the time of the deuise if afterwarde it may be as the corne which shall grow in such a soyle or the lambes which shall come of his flocke of sheepe in such a field b Instit de legat §. ea quoque res ff de legat 1. l. quod in rerum but if the testator doe deuise tenne quarter of corne comming of the corne which shall growe in such a soyle or two tunnes of wine of his grapes in such a vineyard or tenne lambes of such a flock though so much corne or wine or so many laÌ„bes doe not arise of the thinges abouesaid yet the heire or executor is compellable by law to make them good integraliter because he may seeme to haue mencioned the soile the vineyard and the flocke rather by way of demonstration then by way of condition c l. quid testamento in prin ff de leg 1. l. Paulo Callimacho §. Iullanus Seuerus ff de legat 3. l. Lucius ff de alim leg but if the testator doe deuise certaine goods or a certaine summe of money to I. S. and in his life time after recouerie of his health he giueth the goods or payeth the money to the said I. S. now without any alteration of the deuise in the will the executors shall bee discharged of perfourming the deuise after the death of the testator d l. Lucius Titius in testamento in prin ff de legat 2. gl in Clem. dudum de Sepultur Angonomoph It is said in our bookes that if a 5 That the deuise of tenaÌ„t for terme of life or tenant iâ— dower of corne growing at the time of their death is good man which hath estate for life or tenaunt in dower doe deuise their corne growing vpon the lande at the time of their death this is a good deuise and hee in the reuersion shall not haue the Corne e 4 H. 3. Deuis 26. But if a man seised of lande in fee as in right of his wâ—fe doe lease the same land for yeares to a straunger and the lessee soweth the lande and after the woman dyeth the corne being not ripe in this case the lessee may deuise the corne growing vppon the lande and yet this estate is determined and it was certaine but a thing non-certaine was the cause of the determination of it f 7. E. 3. 67. 7. E. 4. 17. Park 99. sect 513. 10. E. 3. 29. And if a man bee seysed of lande in the right of his wife and sowe it ad deuiseth the corne growing vpon the lande and dyeth before it bee seuered the deuisee shall haue it and not the wife but otherwise it is of hearbes or meadowe growing vpon the lande and not seuered at the time of the death of the deuisour g 7. Ass pl. 16. And if tenaunt in taile of lande lease the lande for life and the lessee soweth the lande with Corne and the tenaunt in tayle dyeth and the issue recouereth in a Formedon in discender before the
legat 3. And if a house be deuised the Bathe belonging to the house and the orcharde also which belongeth to it doe passe if from the house there be a way to the Bathe or orcharde for then they may well be sayd to belong to the house and to be prouided for the benefit of the inhabitant l l. praedijs in §. balneas §. qui domum ff de legat 3. and if a man do by his last wil deuise land liue many daies after the testament made 2 That a mine of coale passeth with the land if it be iointly vsed with it otherwise it is if it be seuerally vsed and in his life time a myne of coale lead or tinne is opened and discouered in the soile then the testator dieth after that hee hath vsed the myne iointly with the land in this case the deuisee shal haue the mine but if he had demised for life or for yeres the mine to one and the land to an other so that they had beene seuered and disioined in particuler interest then the deuisee should not haue had the mine m l. cuÌ„ fundus nominatim ff de legat 2. but if the Testator deuise all his corne which he hath in such a barne and the deuisee being one of his housholde seruants of purpose bringeth a greater quantitie of corne into the barne the deuisee shall not haue this increase because it grewe by the fraude of the deuisee n cum ita legatur in princ ff de legat 2. Anglonomoph As to your two last cases deuises as I haue said before are so to be fauoured as dower and I thinke that if a man doe marrie a wife and die seised of lande and after his death a mine of coale is discouered in the ground and 3 That a woman shall be endowed of a mine of coale discouered after her husbands death then the woman bringeth a writ of dower she shal haue her dower as well of the mine being parcell of the lande as of the lande it selfe being the principal o 14. E. 3. Admeasurement 10. 13. E. 1. Itin North. 17. Fitz. na br 149. C. and as to your other case where the corne in such a barne is deuised and it is afterward increased the deuisee shall haue no more corne then was in the barne at the time of the deuise for it is as much as if he should haue said al the corne which he now hath in his barn for words of the present tense which hath a present beginning and ending may not be drawne either to a time past which hath had his beginning and 4 That words of the present tense in a deuise may not be extended to the future tense end or to a time future which hath neither beginning nor end and therfore if a man be bound to keepe the prisoners of the gaole of D. that they shall not escape this shall extende onely to the prisoners which are in the Gaole at the time of the making of the bonde and not to such which shall be afterwarde in the Gaole vnlesse it had beene expresly said which be or shall be in the Gaole p 21. H. 7. 37. and so if the Queene graunt to me visum franciplegij in omnibus terris meis feodis I shall not haue viewe of frankepledge in any landes but such as I haue at the time of the graunt q 38. H. 6. 10. so if a man be bound for the tenants of I. S. it shall be intended of these tenants onely which I. S. hath at the time of the obligation made r 39. H. 6. 6. and if a man graunt to another housewood and hedge-wood to be burnt in his houses in Dale this shal not extend to houses which are afterward built Å¿ Temps E. 1. Common 28. and though Wilbyes opinion be that if a man graÌ„t to another a way ouer his land with waines and the grauntee hath no freeholde at the time to which he may haue caryage yet if he purchase freehold afterward he may haue a way to it and Hankeford seemeth to be of this opinion 11. H. 4. t 21. E. 3. 2. per Wilby 11. H. 4 82. per Hank because in a generall graunt there needeth to be no naming of a certaine freehold yet in that very case dubito quid sit lex Nomomat Admitte that a man deuise the profittes of his lande for fiue yeres to I. S. the deuisee dyeth within two yeres next after the deuise then the deuisour dyeth whether shall the residue of the terme goe to the benefit of the executor 1 That by the ciuil law if the deuisee of a terme die before the deuisor the executor shal haue the terme or administrator of the deuisee Codicgn We haue expresse authoritie in our Law that it shall a l. vxori vâ—ufru §. quaesituÌ„ ff de vâ—ufru le Angonomoph Brettes case which is very famous in our law is to the coÌ„trary aa 10. Eliz. 46. ComÌ„ Brets case but if a man deuise 2 By the common law a diuersity is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacy executed xx li. to be paied yerely in 4. yeres after his death to I. S. and died and after the deuisee dyeth within foure yeres yet the executours of the deuisee shal haue the money or the residue of it by suite before the Ordinary in the spiritual Court for it is a duetie by the testament or deuise b 24. H. 8. Br. Deuise 27. 45. Condic ' 187. and an administrator may as well sue for that duety in the spiritual Court as he may haue a writte of Couenant at the common law vpon the couenaÌ„t made with the partie intestate c Fitz. na br 146. D. 2. Mar. 112. Dy. Nomom What if the testator do say I deuise such 10. Diuision a thing to God or to Christ what is wrought by this deuise Cononol The thing so deuised is due to the 1 That by the ciuil law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the Testator dwelt Church of the parish where the testator did dwel at the time of the deuise d Authent de ecclesiast ' titÌ„ §. si quis in nomine argu l. quae coÌ„ditio §. sin ff de cond de monstr Anglonomoph In auncient times such deuises were good and so was a fine leuied deo ecclesiae but the lawe is now altered e Scir faci 18. E. 4. 22. 19. E. 4. 2. 4. 7. per Pigot en le cas de Prior de Merton and in the one and twenteth yere of king Richarde the second a deuise of lande was made to one for life the remainder to an other for life the remainder to the Churche of S. Andrew in Holborne and this was adiudged
doct ' in l. quod â—eruus eod dict l. 1. §. est autem §. penult l. Lucius eod l. licâ—t in sin eod and in the one is the propertie in the other the trust Angonomoph To this our Law accordeth for 2 The nature and course of it at the common law if a man deliuer goods chattels to one to keepe and he will deliuer them he that deliuered them may haue a writ of Detinue against the other for these goods and chattels and so if a man deliuer goods or mony to an other in a bagge ensealed b Fitz. na br 138. A. or not ensealed c 18. H. 6. 20. or in a chest or coffer to deliuer to an other and hee to whom they are deliuered will not deliuer them ouer accordingly hee to whom they should bee deliuered may haue a writ of Detinue but if a man deliuer money to one being not in a bagge or coffer to redeliuer to him or to deliuer ouer to a straunger in such case neither he that deliuereth nor he to whom the money or goods are to bee deliuered shall haue a writte of Detinue for the money but a writte of Accompt because a writte of Detinue ought to be of a thing certaine as of money in a 3 A diuersitiâ— where a writ of Accompt of Detinue and of Trespas are to be brought concerning things deliuered at the coÌ„mon law bagge or of a horse or twentie kyne or such things in certaine d Fitz na br 138. A. 7. H. 4. 13. 13. E. 3. Detin 53. 6. E. 4. 11. 36. H. 6. 9. per WaÌ„gef Billing 5 Ma 152. Dy. 39. E. 3. 30. 46. E. 3. 16. if the bailie open the bagg in which money is deliuered the partie to whom the mony belongeth may haue a writ of Trespas or Detinue at his pleasure e 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him f 33. H. 6. 26. per Litt ' 20. H. 6. 17. So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a straunger and hee deliuereth it without mencioning the condition a writ of Detinue will lye against the first Bailie and no other remedy may be had g 9. H. 6. 37. per Curiam and where I deliuer goods and a straunger taketh them out of the possession of the Bailie I may haue a writ of Detinue against the straunger or against my Bailie h 20. E. 4. 11. for my Bailie is chargable into whose haÌ„ds soeuer the goods do come but if he deliuer them ouer to an other that baily is not chargeable to me but onely for the possession i 12. E. 4. 12. Nomomat Suppose that a man enfeoffeth me 2. Diuision of certaine landes with warrantie who reteigneth all the deeds and euidences concerning the landes in his owne possession whether may these deedes after liuery made to me of the lands be said to bee my depositum in his handes as a thing which I haue left in his hands and whether will a writ of Detinue lye for them at the common law Codicgn They cannot be said to be deposita in 1 That a thing cannot be said to be a depositum at the ciuil law except it be deliuered to the partie his hands because a thing cannot be said to be deposituÌ„ except it be deliuered to the partie k l. 1. ff de pos ibi Doct ' and if these writings which you speake of do belong to the feoffor as I thinke they doe then they cannot be said to be deposita for wee haue a rule in our law that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur and it is contra l quirem eod bonaÌ„ fidem that the owner should redeliuer his goods in which he hath a propertie to an other man m l. bona fides ff depos in sâ— Anglonomoph It is good to be considered to 2 That by the common law the feoffee of the land is to haue the charters when the feoffement is without warrantie otherwise it is when it is with warrantie whom these charters or deedes aboue mencioned doe belong The authority is very pregnant that if a man make a feoffement of his land to an other by deede the feoffee shall haue the charters concerning the land though the feoffor doe not expresly giue them to the feoffee n 18. E. 4. 14. 9. E. 4. 53. 39. E. 3. 22. 7. H. 4. 7. 34. H. 6. 1. And if a man make a lease for terme of yeares and after confirme the estate of the lessee in fee and he to whom the confirmation was made dyeth now his heire shall haue as well the deed of the lease for terme of yeares as well as the deed of confirmation because that deed maketh the confirmation good o 9. E. 4. 53. Fitz. nat br 138. K. and so where a gift is made to one for life the remainder to an other in taile if the donor release all his right to the tenant for life he in the remainder cannot haue a writte of Detinue for this release after the death of the tenaunt for terme of life p 9. H. 6. 54. But in the case which you haue proposed because the feoffement is with warrantie so that the feoffour is bounde to warrantie nowe the feoffee shall not haue the charters concerning the lande for so the feoffour might sayle of the maintenance of his warrantie and so if a man be enfeoffed with warrantie and after enfeoffeth an other with warrantie the heire of the feoffour may haue a writte of Detinue against a straunger in whose possession are any deedes or charters concerning the lande because he may haue aduauntage of this warrantie q Fitz. na br ibid ' L. but let the feoffement or gift bee made without warrantie it is cleare that the donee or feoffee may claime the charters concerning the inheritance de iure and therefore if a gift of lande be made to A. in taile the remainder to B. in fee and after A. dyeth without issue B. shall haue the deede r 3. H. 7. 15. so if laÌ„ds be giuen to two and the heires of one of them by deede now if the tenant for life die hee that hath the fee simple shall haue a writte of Detinue for the deede Å¿ Fitz. nat br 138. F. for the deede runneth with the land and is of the nature of the inheritance and therefore a repleuin lyeth not for such charters t 4. H. 7. 10. and it is saide by Newton 22. H. 6. that he in the remainder in taile shall not haue a writte of Detinue against the tenant for terme of life if he haue the deed specifying the remainder yet he cannot haue a Formed on in the remainder nor an action of Waste without shewing the deede u 22. H.
of debt or couenant vpon any especialtie made to the plaintife or plaintifes or vpon any contract supposed to be made between the plaintife or plaintifes and any person or persons or any action bill or plaint of detinue of any goods or chattels where the plaintife or plaintifes shall suppose that the propertie belongeth to them or any of them or any action bill or plaint of Accompt in the which the plaintife or plaintifes suppose the defendant or defendants to be their Bailife or Bailifes receiuer or receiuers of their Manor mease money or goods to yeeld accompt or any action bill or plaint vpon the case or vpon any statute for any offence or wronge personal immediatly supposed to be done to the plaintife or plaintifs and the plaintife or plaintifes in any such kind of action bill or plaint after appearance of the defendant or defendants be nonsuted or that any verdict happen to passe by lawfull trial against the plaintife or plaintifes in any such action bill or plaint that then the defendant or defendants in euerie such action bill or plaint shall haue iudgement to recouer his costes against euerie such plaintife or plaintifes e 23. H. 8. c. 15. Rast Dammages 6. Likewise whereas as you saie that the partie plaintife ought to be warie least hee 6. Suite must not be mainteined before an incompetent iudge according to the common law cause the defendant to appeare before an incoÌ„petent iudge that agreeth fullie with the common lawe for if a man doe sweare vnto me that he will enfeoffe me of such land before such a daie if he do not enfeoffe me I may not sue him in the Ecclesiasticall Court Pro laesione fidei because the acte which is to be done is a temporal acte and ought to be tried by the Common law and therefore if the partie be sued in the Ecclesiasticall Court for it he may haue a prohibition f Fitzh N. B. 43. D. so if a man deuise to one landes or tenements deuiseable the deuisee may not sue for these lands in the ecclesiasticall Court but if he make a deuise of goods or chattels reall as of an estate for tearme of yeares or of a warde for such he may 7. The seueral iurisdiction of diuerse courtes is described sue in that Court g Fitz. 161. F. and if a trespasse bee done vpon the gleabe of a beneficed person this must be tried at the Common lawe h 19. H. 6. 20. but if the termor of certaine land doe deuise his croppe and die the spiritual Court shal hold plea for this crop i 8. H. 3. Prohibit 19. but if a man sue in the spirituall Court for a rent reserued vpoÌ„ a lease for tithes or offerings a prohibition lieth for this is a lay rent k 44. E. 3. 32. and a man may sue a prohibition directed to the Sheriffe that the Sheriffe shall not permit nor suffer the Queenes lay people and subiects to come to any place at the citation of Bishops ad facienduÌ„ aliquas recognitiones vel sacramentuÌ„ praestanduÌ„ nisi in causis matrimonialibus testameÌ„tarijs l Fitzh N. B. 41. A. but if a testameÌ„t beare date at Cane in Normandie yet it may bee proued in England the executors may thereupon haue an action m 18. E. 2. Testam 6. a testameÌ„t shewed vnder the seale of the Ordinaire is not trauersable n 36. H. 6. 31. Paâ—k tit Testam furthermore if one which is of the Queenes houshold sue an other which is not of her Maiesties houshold in the court of Marshalsie the defendaÌ„t may plead to the iurisdictioÌ„ of the Court and if the Court wil not allow this exception he may haue a writ of Error and the iudgement giuen in the Marshalsie may bee reuersed in the Kings bench o 18. E. 4. 22. 19. E. 4. 2. 4. 7. in Scir fa. inter Prior. de Merton Prior. de Bingh per Littlet and if one of the Queenes houshold sue an other of the same houshold and the plaintife is put out of seruice depending the plea the other may shewe this and abate the writte but otherwise it is if the defendant be put out of seruice p Lib. de diuers des Courts fol. 102. b. and if a man be impleaded in the CoÌ„mon place for lands within the cinque portes the tenant may shewe to the Court that the lande is within the Cinque ports and by this plea the Court shall bee outed of iurisdiction but if the tenant do plead a plea in barre which is founde against him so that the demaundant hath iudgement to recouer the land this iudgement shall binde the tenant foreuer q Lib. de diuers des courts 107. and so it is of landes in auncient demesne if a writte bee brought for them in the Common place if the tenant appeare and plead in barre and take no exception to the iurisdiction and the plea is found against him so that the demaundant recouereth the tenant shall not reuerse this by a writte of Error because hee might haue taken in time exception to the iurisdiction of the Court and that should haue beene allowed r Ibidem but the lorde may reuerse this iudgement by a writ of disceite and make the land auncient demesne as it was before Å¿ Ibid. 16. E. 2. Continuall Claime 10. 11. H. 4. 86. 7. H. 4. 44. 8. H. 4. 24. 17. E. 3. 41. 26. E. 3. 33. now I come to the citation â— That the summons of the partie defendant is necessarily exacted by the common law or summons of the partie defendaunt which you haue prooued to bee necessarie by the Ciuill lawe and I will likewise prooue that it is by the Common lawe necessarilie exacted In a writte of Trespasse the Sheriffe returned Non est inuentus wherefore a Capias issued that the defendaunt might bee taken who afterwarde came into the Court and said that hee was sufficient and might haue beene summoned and prayed a writte to make the Sheriffe to come to aunswere to the King and to the partie for his false returne and hee had it t 31. E. 3. Processe 55. and in an attachment vpon a prohibition the Sheriffe returned Non est inuentus the plaintife prayed a Capias to an other Sheriffe in an other Countie but the Clarkes said that he ought not to haue any other processe then an attachment in the other Countie because it may bee that hee hath assets in the other Countie u 13. E. 3. Processe 34. by which hee may be summoned and so 11. H. 4. it is said that in an action of dette or trespasse a Capias will not lie against an Earle or any of like estate because it is to bee intended that they haue assets whereby they may bee summoned and brought to their answere x 11. H. 4. 15. per Hals and in a writte against P. and T.
within yeares of discreâ—ion b l. 5. ff ad leg Falcid l. 12 de leg and the contract or couenant of such persons is not ratified by oath which by law are forbidden to contract c l. non dubiuÌ„ C. de legib as Monkes and Fryers and such like religious persons Canonologus Indeede such persons are said in our lawe to be mortui mundo dead to the world d 16. q. vltim c. si and they cannot liue without their Cloister no more then a fish without the water e 16. q. 1. plac and he can haue nothing priuate or proper to himselfe and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio f De sta mo c. 2. C. ad monaster Ca. 1. 2. de postula 16. q. 1. monach c. religios de procur in cler and he caÌ„ not be any mans aduocate in a cause or any mans proxie without the consent of his Abbot or Soueraigne and that must be to the vse and behoofe of his monasterie and the like law is of Friers h Cle. dud de sepul Cle. exâ—ri de parad de verbo sig Nomomathes But is there no differeÌ„ce in the Lawe betwixt the contracts of infants and the contracts of Monkes and Friers Codicgn Yes very great For Monkes and 3. Monkes are absolutely ê“hibited by the Ciuill lawe to make any coÌ„tract infants are disabled with a certaine qualification Friers are prohibited by Lawe to make any contract so that as I haue abouesaid their contract can not be good though it be coÌ„firmed by oath But infants are not ture prohibiti but inhabiles ex iuris dispositione and therfore their contracts may by oath be established i Authent sacramenta puberuÌ„ cum tota sua materia C. si aduer veÌ„dit in corpore vnde sumitur Anglonomoph As the former Lawes haue very greatly disabled Monkes and religious persons who are tied to a certaine rule so our Law hath very much diminished their ability as to their intermedling in secular matters In a Scire facias brought by a Prior against a parson out of a recouery had against his predecessor it was 4. That by the Common law Priors vnder the obedience of a Soueraigne and which weare datife and remoueable could not impleade or bee impleaded without their soueraigne vnlesse it were by speciall custome held that the defendant should not be estopped by the admittance of his predecessor in the first action to pleade in this Scire facias that the Priour was a Monke professed vnder the obedience c. and was datife and remoueable k 34. H. 6. 2. for though it haue beene helde that a Prior perpetuall may prescribe to implead and to be impleaded without his Soueraigne yet by common intent a Prior datife and remoueable at the will of the party shall haue no action by such vsage but if he wil haue any plea he must shew some special matter 39. E 3. 34. and it hath bene said that the knights of S. Iohn of Ierusalem had their possessions seuerall 5. The same Lawe was of the knights of S. Iohn of Ierusalem yet they could not vse an action without their Prior m 32. H. 6. 5 31. and a Prior which was presentable and had Couent and Common seale could not before the dissolution of Abbeys and Priories charge his house in perpetuum without the assent of the Patron and Ordinarie neyther could hee haue the Writte De aduocatione decimarum nor a iuris vtrum n 12. H. 4. Stath tit Charge and a writte was abated beyng brought against a Prioresse because the Prior of S. Iohnes was commaunder of the house whereof shee was Prioresse and because she was made Prioresse by him and was vnder his obedience and remoueable at his will notwithstanding that shee had Couent and Common seale and had her possessions seuerall and was wonte to Lease the lande for tearme of yeares o 12. R. 2. Nonabilitie 4. and if a contract bee made with an Abbotte and his Monke the writ that hath beene grouÌ„ded vpon this contract hath bene brought against the Abbot onely p 33. E. 3. Bâ—â— 913. 2. H. 4. 21. and so hath a writte of Detinue bene brought being coÌ„ceiued vpoÌ„ a deliuery of goods made to the Monke to the vse of the Abbot q Ibidem yet it hath bene thought that an action will lie against a Monke if he be not in subiection to some Soueraigne r 14. H. 4. 37. But it hath bene taken for a general learning with vs that Monkes Friers Canons professed the like could not grant any thing Å¿ 14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31. neither could they be grauÌ„tees of any thing t 5. H. 7. 25. 19. H. 6. 25. neither are they capable by way of deuise u Perk. tit Deuis sect 537 the coueÌ„t of an Abbey or Priorie can yeeld so little aduantage to the house in matter of purchase that if in former times land had beene giuen to an Abbot and to his couent this could not be good saue onely during the life of the Abbot for the want of this word successors a 11. H. 4. 84. â— Curi but touching the abilitie of infants in contractes and purchases the Lawe is diuerse according to the diuersitie of cases and if an infant do buy of any a coate or necessarie vestmeÌ„t for a certaine summe or if he make a couenant for his meate paying 12. d. a weeke according to M. Paston his opinion this couenant is void yea and if 6. The infants contract for his meate apparell and necessaries is good if he be of the age of fourtene yeres hee make a bonde for it the bonde likewise is void but Markeham thinketh the contrarie if the infant that is so bond be of the age of fourtene yeares b 21. H. 6. 31. 18. E. 4. 2. Perk. Grau 4. D. S. dial 2. fo 113. and by M. Brookes opinion this is the better Law c Br. Labourers 30. and if an infant lease land for tearme of yeares rendring a rent or doe sell a horse or 7. That which an infant doth without actual liuery may bee auoyded by action without entre oâ— seisure but that which he doth by actuall liuery can not be auoided without entre oâ— seisure any other thing he may chose to haue an action of dette for the rent reserued vpon the Lease or a writte of trespasse for the occupation of the lande and so he may haue an action of trespasse for the occupation of a thing sold by him and if an infant doe giue to one a horse without actuall deliuerie of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gifte the infant may haue an action of Trespasse
haue the thing solde but if the payment bee respited vnto a certaine day vpon the contract this is good ynough so that the money 2 That a contract is not good without money payed in hand or a certaine day of payment limited be payed within the time prefixed l 21. H. 7. 6. and 28. H. 8. it is positiuely set downe for Lawe that a contracte is not good without present payment vnlesse a certaine day of payment bee limited so that the one of them may haue an action of debt for the money the other a writ of Detinue for the wares m 28. H. 8. 30. Dyer An implied consideration is when the Law it selfe doth intende and enforce a consideration and therefore the Hoste of a common Inne may deteine a mans horse if he wil not pay him for his horse meate And so if a Taylor make a gowne for any man he may deteine the gowne till he be paied for his labour n 5. E. 4. 2. Nomomat Doth not the defect of forme in 8. Diuision 1 Whether the defect of forme doe destroy the contract a contract frustrate and defeate the contract Codign Yes for as the substanciall fourme in materiall things is necessary to the essence and constitution of such things o ff ad extiâ—b l. Iulian. §. l. falsi l. si is qui. §. quidem so in contractes a 2 That solempnitie and concurrence of circumstances is required in contracts by the Ciuil law certaine solemnitie and concurrence of circumstances is required for the perfiting of them as their naturall and proper forme p ff de verb. obligat ' l. sciend l. continuus in princip Eo l. §. si quis ita and without such ceremoniousnes the contract is of no force Anglonomo Our law likewise requireth forme either in pronouncing the wordes of the contract or els in obseruing some other circumstances belonging to the contract For the first if a man promise to another xx li. with his daughter in maryage if he marrie the daughter and the money be not paied he shall not haue any action of debt or action vpon the case at the Common Law but he must sue for this money in the Spirituall 3 That matrimoniall contracts if there be no assumpsit in them are to be decided by the ecclesiastical Law if there be an assumpsit by the common law Court. q Fitz. nat br 44. a 14. E. 4. 6. Reg. 46. 48. 15. H. 3 Prohibition 22. 16. H. 3. Prohi 24. For here is no good forme of contract and as Master Bracton sayeth Matrimonium est principale eiusdem iuris id est iurisdictionis esse debet accessorium r Bracton lib. 5. cap. 16. And therefore if a man by reason of matrimonie or testament doe acknowledge in a Spiritual Court that he ought to pay to one a hundreth markes or some other summe at a certaine day if the money bee not payed at the day accordingly he may be sued for this money in the Spirituall Court and no prohibition lyeth s Fitz. na br 41. b. but if in the former case he had promised one x. li. if he would marrie his daughter if he doe marry his daughter and the other will not pay the money hee may not sue him in the Spirituall Court for this money but at the Common Law t Fitz. na br 44. a et 22. Ass pla 70. p Tho. 16. H. 3. Prohibit 22. for now it goeth in fourme of contract as for the other matter where forme is required in obseruing some other circumstance in the contract that may appeare by this case if a felon sell a horse without couin in a market ouert this doth alter the propertie and the verie proprietary cannot haue restitution of the horse notwithstanding the statute of 21. H. 8. c. 11. but if he had solde him out of a market ouert the propertie had not bin altered u 33. H. 6. 5. 18. E. 4. 24. 7. H. 7. 12. Crompt Iust de Peace 172. Nomom I will trouble you no further in this matter but will proceede to inquire somewhat touching Gifts and Graunts The second Dialogue of Gifts and Graunts NOmomathes In handeling the learning 1. Diuision 1 What things may be giuen or graunted of Gifts and Graunts I think it most fit in the first place to be inquired what things may be giuen or graunted wherefore first I pray you satisfie me in this Codicgn A man may giue all such thinges as 2 That all things that lye in commerce and may be receiued may be giuen an other may receiue a l. in aedibus §. fi ff Eo tit for dare accipere sunt correlatiua and all such things may be receiued which lie in commerce Nomomat Then thinges consecrated and ecclesiasticall may not be aliened because they lye not in contract Canonologus Thinges ecclesiasticall though they 3 That things ecclesiasticall though they be not consecrate cannot regularly be graunted be not consecrate cannot regularly be giuen or graunted b Cap. 2. de donation Eod. tit de re ecclesi non alien in antiquis 6. Cle. in c. sine except cap. si quisquis 12. q. 2. in l. Iubemus cum suis authen C. de sacrosan eccle and I did vse this worde regularly because where such alienation may bring profit to the Church it shall be of force c In dict iur Anglonomo In our Lawe a writ of Contraformam alienationis lyeth where a man gaue landes or tenements to an Abobt or house of Religion before the Statute of Quia emptores terrarum to holde of him in frankalmoigne and after the 4 That if an Abbot did alien lands giuen in frankealmoigne to his house the donor might haue a writ of Contra formam collationis Abbot with the Couent did alien the same land in fee to another nowe he that gaue this lande or his heire may sue this writte of Contra formam collationis against the Abbot or his successor but not against the tenant of the lande but when he hath recouered the lande hee may sue a Scirefacias against the tenant of the freehold d Fitz. na br 210. f. and this writ of Contra formam collationis lyeth not though the Abbot doth alien in fee vnlesse the Abbot and the Couent doe alien in fee e 19. E. 3. Contra formam collationis 5. Fitz. nat br 211. c. and if an Abbot with the Couent doe alien an Aduowson in fee at the next auoydance the foundor or his heire may present to the aduowson because they cannot in such case sue a Contra formam collationis f 20. E. 3. Contra form collat 6 Nomom Let me know I pray you how many 2. Diuision kinds of Gifts there be Anglonomoph They be of diuerse sortes some 1 The diuerse kinds of giftes some being fre some compensatory are called
free gifts which proceede merely of a mans good will and beneuolence others may be called Compensatorie because they are giuen for some cause or consideration Gifts or graunts of the first kinde are such as I nowe shall recite out of our bookes First the Queene may graunt 2 What is wrought by the Queenes graunt ex mero motu to one lande ex mero motu and though her highnesse doe rehearse some consideration in the patent of her graunt which is not true as if the consideration bee that whereas the grauntee hath done her Maiestie good seruice on the Sea or beyond the Sea or in her Maiesties warres or in some other busines though the consideration be meerley supposed and not true and therefore no good consideration in Law yet the words ex mero motu do make the grant good g 26. H. 8. 1. per Fitz. and whereas the Queene ex certa scientia mero motu doth confirme a graunt supposing that a graunt was made before where in truth there was no such thing it is held that her highnes shall be concluded to say that no such graunt was made otherwise it had bin if this worde informamur had 3 What is wrought by her Maiesties graunt by words of Informamur bin vsed in reciting the graunt h 9. H. 7. 2. For if her highnesse graunt any thing vpon the false suggestion of the partie this graunt is voide because shee is deceiued in her graunt i 11. E. 4. 1. per Littlet ' and wee haue a rule Si suggestio non sit vera literae patentes sunt vacuae k 3. H. 7. 6. For when the graunt is made vpon the suggestion of the partie the wordes of the graunt shal be taken strictely but when it is ex mero motu it must be construed and interpreted according to the Kings intent and as fauorably for the grauntee as reason will permitte l 21. E. 4. 25. Abbe de Walthams case per Browne Genney and if a common person do without consideration giue to I. S. his goods indefinitly al his goods do passe and if a common person doe by deede enrolled enfeofee the Queene of his lands without any consideration the Queene shal be seised to her owne vse as hauing such prerogatiue in her person that she shall not bee seised to the vse of any other m 28. H. 8. 7. Dyer Bokenhams case per Knightley Gifts made vpon consideration may be explained by cases likewise drawne out of our bookes though in a common persons case the consideration which is mencioned be false yet the vse shall be to the feoffees as appeareth by Wilkeses case who reciting by his deede falsely 4 Whether vpon a false consideration expressed an vse shal be raised in a common persons case that in consideration of 700. li. payed he had enfeoffed A. and B. to haue and to holde to them and to their heires to the proper vse and behoofe of the said A. and B. in perpetuum afterwarde by Office it was founde that Wilkes was seised of the lande and that he helde in Capite and I. was founde to bee his heire and of full age yet it was helde that the heire should not be receiued to auerre the consideration false against the acknowledgement of his auncestor n 1. Eliz. 169. Dy. Wilk case and so it hath beene helde in Villiers his case that where money is the consideration expressed an other consideratioÌ„ shal not be auerred neither shal a Causa 5 That a consideration may be auerred which is not repugnant to the vse expressed matrimonij prelocuti be auerred where an other consideration is expressed but where no consideration is expressed there a consideration may be auerred or where the consideration auerred is not repugnant to the consideration expressed in the deed o 4. Mar. 146. Dy Villier case And though the consideration be not valuable yet it may bee a good consideration to raise or to alter an vse for in Sharingtons case it hath bin adiudged that the affection of the father for the prouision for the heires males which he may beget and the affection which he hath that the lande may remaine in his bloud and name be 6 That an vse may be altered by a consideration not valuable causes sufficient to make vses in the lande for as it is there said Naturae vis maxima Natura bis maxima p 8. Eliz. 298. ComÌ„ Sheringtons case And so betwixt brethren pro fraterno amore is a good consideration to raise an vse q 13. Eliz. 302. Dyer and a man leuied a fine to the vse of himselfe and such wife or wifes as he should marry and after hee tooke to wife A. she shal take in iointure being by way of vse otherwise it had beene by estate executed r 10. Eliz. 274 Dy. per Wray Mead Plowden Ownslaw 3. Eliz. 100. Dame Brayes case Conono By our law a man cannot giue any thing to the common weale without consideration but to a priuate person he may rr l. hoc iure in princi ff de donat Gl. in d l. hoc iure et l. Campanus ff de oper libert Ganonal By the Cannon Lawe nudum pactum doth binde the partie especially being confirmed by an othe much more a bare donation rrr c. 1. de pact Nomom As to the point of consideration wee 3. Diuision shall better perceiue the strength and properties 1 In what cases graunts shal be taken most beneficially for the grauntee therof when we enter into discourse of bargains and sales now let me knowe in what cases and how farre forth graunts shal be taken most beneficially for the grauntee Anglonomoph When a graunt is non-certaine 2 That a grant non certaine must be taken most strongly against the grauntor it must be taken most strongly against the grauntor for if a man graunt an annuitie out of certaine lande and he hath no lande at the â—ime of the graunt yet the graunt shal charge his person Å¿ 9. H. 6. 12. p Babingt and if a deede of graunt be good in parcell and 3 That a graÌ„t may be good in part and for parcel not for parcel not that which is for the aduantage of the grauntee shal be taken to be good as if a man graunt vnto me an annuity prouiso that it shall not charge his person the prouiso is voide and the graunt is good t 20. E. 4. 8. p Towns 14. H. 4. 30. p Hank And if an annuitie be graunted pro consilio impendendo though the grauntee be well skilled in diuerse sciences or faculties yet counsel shal be giuen in that facultie only which was intended at the time of the graunt u 41. E. 3. 6. Annuitâ—e 19. But in some cases the graunt must be construed according to a reasonable and indifferent intendment as if a man make
not aske yee what 1. Diuision 1 What things are forbidden to be sold things may be solde least perhaps you aunswere me such thinges as may be bought according to your aunswere in your last discourse of Gifts Graunts but I would haue ye shew vnto me what things are forbidden to be sold Canono Things consecrate religious may not 2 That by the Canon Lawe things consecrate and religious may not be solde be sold as Monasteries and other places deputed to religious vses whatsoeuer name they challeng as Temples Hospitals Chappels and such like a C. de Xeno docti eo tit C. de Epis cleâ—i in l. orphanatroph 42. distinct oratorium and that is accompted a religious place in which a mans bodie or head is buried b ff de reli sump sune and therefore if a man be buried in an orchard parcel of a mans farme that becommeth Religious and it may not be pleadged or solde but demised it may be c C. quae res obligar posluÌ„t l. 1. l. quid ergo §. sed si mortuum ff de leg 1. Anglonom Of this matter I haue spoken I hope sufficiently in the beginning of our second conference or Dialogue Codicgn By our Law euill poysons are forbidden 3 That poysons by the ciuil law are forbidden to be sold to be solde d l. quod sepe § veneni ff de contrah Nomom Why say you euill poysons as if any kinde of poyson can be good Codicgn Yea there be some good and sit for 4 That there be some poysons which be medicinable and profitable the prohibition extendeth not to these the expelling of diuerse diseases though they be not mixt with any other matter or thing which is medicinable so neesingwort doth cure phrensie or madnesse wolfe bane the biting of a scorpion quicke siluer the scabbe or ytch and arsenicke is profitable against the plague as Mercurialis auoucheth and sheweth further that many artificers doe vse poyson and many creatures do eate and liue vpon poyson and pustles be cured by poysons and poysons were before the fall of Adam e Mercurial lib. 1. de vene c. 3. 4. yet there are some kinds of poison which are euill in themselues may not be vsed alone and though Plato amongst his other lawes promulgeth that no man ought to sell or any way intermeddle with poyson f Plat. li. 11. de legi And Galen doth condempne Orpheus who taught the vse of poisons g Galen li. de antid c. 7. and reporteth that the inuentor of a poysonfull herbe was therfore punished h Galen li. de purg me yet because there 5 That some poysons are profitable alone some with the mixture of other things be some which are profitable alone other some as our law speaketh adiectione alterius materiae i Cai. in d. li. 3 therefore poyson generally and absolutely is not forbidden to be sold by our Law Anglonomoph By our Lawe corrupt vitaile is forbidden to be solde and leather not sufficiently tanned ii 13. H. 4. 1. 11. E. 4. 7. 1. R. 3. 1. Nomom Let me heare of you some speciall kinds 6 What things are forbidden to be solde by the common Law and cases of bargaine and sale out of your Law and some good diuersities whereby me thinkes the knowledge and vnderstanding are greatly 2. Diuision enlightned and increased Codicgn If a man bargaine and sell landes or 1 Where a thing was not sold at the first and where it was sold but the sale is defeasible vpon condition goods to one vpon condition that if the whole price or that which remaineth to be payed bee not payed or satisfied at such a day then the thinge whereof the price is agreed vppon betwixt them shall bee vnbought nowe if the money bee not payed at the day the thinge whereof the communication was in the intendement of Lawe was not solde at the first k l. 1. ff de leg Comm. li. qui ea lege C. cod But if it had beene sayed that if the money had not beene payed at the day then the thinge solde shoulde reuerte to the vendour heere there had beene a perfitte bargaine and sale but resolubilis sub conditione defeasible vppon the condition not perfourmed l l. 1. ff de leg commissor and in all conditions of bargaine and sale this is done that eyther an imperfitte sale is perfitted or a perfitte sale is defeated For when communication is had about the buying of a thing and the price is agreed vppon and the bargaine concluded nowe if the vendour doe at the time of the bargaine and sale adde such a condition that if any other man within a moneth or fifteene daies next after ensuinge will giue more money for the thing solde that then the bargaine and sale shall bee voide m L. 2. 1. respon ff de in diem adiec now the bargaine 2. A differeÌ„ce betwixt a perfite sale and a sale to be perfited vpon a condition performed and sale is perfite but it is defeasible vpon a condition but if in the same case the price be agreed vpon so that no person do within a moneth or fifteene daies giue more for it now this sale is to be perfited vpon a coÌ„dition performed n d. l. 2. 2. respon and there is great difference betwixt these two bargaines and sales For in the first case the buyer doth become owner of the thing Sed retractabiliter o l. 1. §. sed Marcellus ff de addicti in diem And in the meane time he shal take enioy the profits of the thing sold p d. l. 2. in si l. Item quod dictum ff de in diem addict the peril of the thing solde if it bee destroyed lost or made worse doth belong vnto him q l. vbi autem §. 1 ff d. ti de in dieÌ„ addict but in the other case namely when an imperfite bargaine and sale is to be perfitted the bargainee doth not take the profits neither doth the perill belong to him r d. l. vbi auteÌ„ in princip Anglonomop You haue put good diuersities and we haue many cases suteable vnto them in our Lawe which I will not omit If a man grant to one the keeping of his Parke vpon condition that if the grauntee do not well keepe his Deare within the Parke the graunt shall be helde as no graunt and after the grantee killeth some of the Deare the grauntor may bring an action of trespasse 3. That a priuiso though it be placed amongst couenants may defeate a bargaine and sale for the breaking of his Parke and for the killing of his Deare Å¿ 2. R 2. Barre 237. and a prouiso in an Indenture of couenants though it be placed amongst couenants yet it shall be of force in some case wholy to defeate and dissolue the bargaine
retractetur l. ea quae §. quaed ff de cōtrahen emp. but if it bee a secrete fault then a distinction must be vsed for eyther it was in beginning and growing at the time of the sale so that it may easily be cured and yet not easily perceiued then the seller is not any way to be charged or els the secrete fault was some festered and inueterate disease and in such case the seller is to be charged n L. mortis C. de per com rei vend but if the thing that is sold be liquide and gustable and the buyer doth taste of it or if it be measurable and hee doth measure it as corne or if it be ponderable and he doth wey it as mettall or if he marke a beast which hee hath bought and the beast be afterward chaunged in all these cases the dammage resteth vpon 4. That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault hee is bound by the warranty by the Ciuill law the buyer o L. 1. l. q◠si neque §. si ff de per com rei vend l. 2. C. eo but if the things aforesaid be not tasted measured weyed or marked but be sold at a venture as if a man sell all his wine or oyle in such a house and doth warrant it to be good and merchantable or if he warrant the beasts that he selleth to be sound the seller in such cases is punishable p l. si vna ff de per com rei vend but if he had not warrāted it then the lawe is otherwise q d. l. 1. §. 1. C. eo l. quod saepe §. in his ff eo Anglonomoph In these cases which you haue now put our Lawe as I take it differeth very little or nothing from yours for whereas you 5. That bargaines sales matters in writing and obligatory may be auoyded by alleaging that they were made or done per menasse or by duresse say that a bargaine or sale enforced by terror may be auoyded in our Lawe euen matters in writing obligatory may be for the same cause defeated and frustrated and if a man seised of an acre of lande doe giue it in taile by deed and maketh a letter of Attourney to deliuer seisin and al this is done by duresse of imprisonment and liuerie of seisin is made this is a disseisin to the donor and the deed of gift and liuerie may by Law be auoided r 41. E. 3. 9. 2. E. 4. 19. per Littl. Park tit Graunts Sect. 17. and if a man menasse me to kill me if I wil not grant to him an annuitie of xx s. for doubt of death I grant it vnto him this graunt is voidable ſ 11. R. 2. Duresse 13. But if a man grant an annuitie to an other by threatning him that he wil cary away his goods whereupō he granteth vnto him the annuitie this grāt is not voidable by reason of such menacing because he may haue an actiō to recouer the goods if they be takē away t 7. E. 4. 21. Park tit Grāts Sect. 18. but a threatning of battery is a good cause to auoid a deed u 4. E. 2. Duresse 9. and so is the threatning of imprisonment a good cause to auoid a bonde x 8. H. 6. 12. but otherwise it is of a threatning to burne my house a 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at an other place b 38. H. 6. 13. ◠Moyle 33. H. 6 24. 2. H. 5. 10. as to that which you haue spoken of fraud deceite in bargaines and sales the warranting of a thing to be good and sound which is nought corrupt I could put many cases agreing with your assertiōs diuersities 6. That by the Common law a warrantie made vpō the concluding of a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine concluded If a mā sell vnto one certaine cloth warrant it to be of such a length and it is not of that lēgth he which buieth the cloth may haue an actiō of disceit against him by vertue of the warrātie but if the warrantie be made at some other time after the bargain he may not haue a writ of disceite c Fitzh N. B. 98. K. if a ma sell to an other seeds warrant thē to be of a certaine coūtrie if they be not so a writ of disceit will lie otherwise it had bin if he had warrāted that they should haue growne or if he should warrant that the horse which he selleth should go 50. miles in a day and a writ of deceite lieth for selling corrupt victuale without warrātie but not for selling rottē sheepe though it be with warrātie the warrāting of a thing to 7. That the warranting of a thing which is euident to the sense is no cause to bring a writte of disceite by the Common law be black which is blew where the colours is euident to sense is no cause of bringing a writ of disceit but is merely void otherwise it is if the buyer be blind or the thing that is bought be absēt d 11. E. 4. 7. 13. H. 4. 1. if a man sell a horse which hath a disease in his body or if he sel certain quarters of corne which is ful of grauel a writ of disceite will lie without warrātie e 20. H. 6. 36. ◠Paston 11. H. 6. 22. if one sell to an other certaine tūnes of wine warrāt thē to be good they be corrupt the vendee may haue an actiō vpō the case against the vendor f Fitz. N. B. 94. the actiō wil lie without warrātie g 7. H. 4. 14. according to the opiniō of some but M. Fitz. saith that there ought to be a warrātie or els no actiō will lie for in such case his taste may be his iudge h Fitz. N. B. 94. C. but where it is with warrātie the writte must say that the defend at the time of the warrantie made knew that the wine which he sold was corrupted i 9. H. 6. 53. Nomom You haue spokē enough of this matter 5. Diuision now shew me whether by a bargain sale of of the profites of land the land it selfe do passe Anglono The grant or bargaine sale of the 1. That by the Common law the graunt or sale of the profits of land is the grant of the lād it self profits of the land is the grant of the lād it self k 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy. if a mā do lease to one an acre of lād for life reseruing to himselfe the herbage this reseruation is void for he hath reserued the same thing in substance l 38. H. 6.
with a kisse greeted such as made the like protestation of obedience and loyaltie vnto him e Plutarth in Alexand. and long before that as it seemeth it was vsed in Iudaea for vpoÌ„ these words of the Psalme ee Psalm 2. r. 12. kisse the sonne our english glosse addeth by way of interpretation in signe of homage and Tremellius and Iunius in signe of fealty sithence these times this respectiue humiliation hath spred it selfe into other countries and territories for the Duke of Gelderland did conceiue an oath in these words to Charles King of Fraunce Ego deuenio vassallus ligeus Caroli regis Francorum pro ratione quinquaginta millium scutorum auri ante festum diui Rhemigij mihi soluendorum c. e Bodin lib. 1. de repub c. 9. Nomom I desire greatly to know the originall 3. Diuision and first blossoming of other seignories Anglonomoph The most common seignorie of 1. What a Manor is and whereof it coÌ„sisteth accompt which wee haue in our Law is a seignorie by reason of a Manor which may be thus defined A Manor it an inheritance of ancient continuance coÌ„sisting of demesnes and seruices perquisites casualties things appendant and regardant customes liberties c. Nomoma What do so many things concurre to make a Manor will not demesnes and seruices serue Anglono Yes demesnes seruices will suffice as material causes to make a Manor f 26. H. 8. 4. but it is a naked Manor which hath nothing els Nomom I would gladly heare somewhat of the commencement and first creation of a Mannor Anglonomo M. Parkins doth very well originally 2. The originall of a Manor describe it in this manner The originall of a Manor was when the King did giue a thousand acres of lande or a greater or lesse parcell to one of his subiectes and his heires to holde of him and his heyres and the donee edifieth a house vpon this lande as his mansion place and of 20. acres or lesse or greater parcell he doth enfeoffe a straunger before the Statute of Quia empto terrar to holde of him and of his heires as of the same house by the plowing of 10. acres of arable laÌ„d parcell of that which remaineth in his owne possession and enfeoffeth and other of an other parcell to hold of him by carying ordure to his arable land and enfeoffeth a third man of a third parcell to goe with him in the warre against the Scots and so by continuance of time saith he a Manor is made g Park Reseruat fol. 128. Sect. 670. Yet by his fauour somewhat els goeth to the making of a Manor namely suite of Court at his house or mansion place h 33. H. 8. Br. Comprise 31. Mannor 5. and this suit must be the suite of more freeholders then one so that some doubt may be made of M. Kitchins assertion wheÌ„ he saith that in some Manors there be no tenaÌ„ts but copiholders and yet in such Mannors be Court barons i Kitch Court Leete Baron tit Manerâ—um fol. 4. for if all the freeholds do eschete vnto the Lord beside one or if he purchase al but one the maÌ„nor is extinct for it can not be a maÌ„nor vnlesse there be a Court baron belonging to it and a Court baron must be helde before suitors and not before one suitor therfore one freehold can not make a mannor k Br. Ca. Sect. 210. 23. H. 8. Br. Court baron 22. in fi 33. H. 8. Br. Suit 17. Nomom You haue well delared vnto me the 4 Diuision beginnings of Seignories and mannors but haue there bene no lawes made for the strengthning preseruing of theÌ„ for me thinks they be good meanes to increase support the wealth puissance and florishing estate of the Realme Anglono Yes our law in this case hath not either sluÌ„berd or winked For in the ancieÌ„t Statute of Magna Charta it is prouided that Nullus liber homo Statutes made for the preseruation of seignoties and Mannors det de caetero amplius de terra sua vel veÌ„dat de caetero quà m vt de residuo terrae suae possit sufficienter fieri domino feodi seruitium ei debitum quod pertinet ad feoduÌ„ illud l Magna charta c. 31. which statute as M. StaÌ„ford auoucheth is but a confirmation of the CoÌ„mon law he a most diligent and exquisite searcher of the reasons of Lawe so that I may boldly speake of him that which I shall not say impudently vntruly Faelix qui potuit rerum cognoscere causas sifteth out the reason of this Lawe For saith he if one that held by Knights seruice might haue bene suffered to haue aliened the greatest part of his land he would haue aliened the same peraduenture to holde of him but in Socage or by some small rent and then hauing so little a liuelod lefte to himselfe how had he bene able to haue done the seruice of a Knight or man of warre or what should his Lord haue had in warde to haue found one to haue performed the seruice surely little or nothing m Stamf. praerog c. 7. tit Alienati sans licence But it seemeth doubtfull notwithstanding the Statute of Magna Chart. whether the tenaunt might alien his whole tenancie or not whereupon the Statute of Quia emptores terrarum was made which permitted euerie free man to sell his lands or tenements or any part therof at his pleasure to hold of the chief Lord by the same seruice that the feoffer held prouided alwaies that by any such sale there come no lands to mortmain This Statute as M. Stamford noteth remedieth the mischief which was before found in the wardship but not the other mischiefe touching the defence of the Realme for when one mans liuing is so dismembred neuer a one of the feoffees nor the feoffor is able to doe the seruice of a warrior for want of liuelode there being so little quantity of land in euery of their hands yea much more vnable sithence this statute is the feoffor then before for before when he gaue it to hold of himselfe he reserued somewhat in lieu of the land which went from him whereas now he can reserue nothing of common right n Stamf. ibid. And the land which he retaineth in his owne hands may perhaps be of small value Nomom What is the most generall and most common seruice of all 5. Diuision Anglonomoph Fealtie for that is incident to euery 1. Fealtie is the most generall seruice in the Common law 2. And in the Ciuill law tenure vnles it be tenure in frankalmoign o Littlet lib. 2 c. 3. Sect. 13. c. 5. Sect. 22. Codicgn So it is with vs for fealtie which of vs is called fidelitas is due to euerie Lord to whom any seruice is to be performed and euery â— That by the Ciuill law the Common law and the Canon law a
the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed o Exo. 21. ver 26. 27. which lawe Constant the Emperor did put in practise p l. 1. de EmeÌ„d seruor C. but all the lands goods purchased possessed by the villaine the law frankly giueth to the Lord if he wil seise claime theÌ„ q Litt ' lib. 2. c. 11. sect ' 8. 10. wretched I coÌ„fesse is the estate of such men but yet paciently to be tollerated because quaÌ„ potestateÌ„ alijs deferre voluimus ferre debemus and they whose auncestors or theÌ„selues haue acknowledged theÌ„selues to be villains must now duetifully beare the yoake though Cui plus licet quà m parest plus vult quà m licet r Gellius lib. 17. c. 14. and let the Lords of such villaines harken to that which is spoken of an heathen man diuinely Boni moderatoris est restringere potestatem Å¿ Ammian lib. 29. but to leaue these particulers to proceed more generally as one man may hold lands of another by euery of these 4 The tenure wherby a man holdeth of an honor or Manor is discribed and by examples illustrated abouesaid seruices as of his person so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any Honor which is come to his highnes by disceÌ„t from any of his auÌ„cestours he shall not holde in Capite for by the words in the first Chapter of Prerogatiua regis it is euident that if it shal be said a tenure in Capite it must be holden of the Crowne of a long time the words be ab antiquo de Corona and that cannot be when it is but newly comen to the Crowne and the statute of Magna Charta cap. 31. did as Master Stamford saith helpe this matter by expresse words if such an Honor came to the Crowne by way of escheate but not if it came by way of discent or any other way and that statute doth set 5 Certain honors which be not of the auncientnes of the Crowne forth certaine honours by name which be not of the auncientnes of the Crowne that is to say the honor of Wallingford NotinghaÌ„ Bullingbrook and Lancaster therefore he that holdeth of the King as of these Honors holdeth not of the king in chiefe t Stamfords Praerog c. 7. but other honors there be which of so long time haue been annexed to the Crowne that to hold of theÌ„ is to hold in chiefe for wheras one held of the king as of a certaine honor to 6 Some honors which are annexed to the Câ—owne yeeld a certaine rent to the keeping of the Castell of Douer this hath beene taken to be a tenure in chiefe and so it hath been thought if one held of his highnes as of the Honour of the Abbe of Marle u Fitz. nat bre 256. and Anno vndecimo of king Henry the seuenth the honor of Ralegh was annexed to the Crowne therefore if any man hold as of that honor it is a tenure in capite x 34. H. 8. â—r Cas 230. and therefore there is a good rule in the Register of Writtes that a man shall not make a fine for alienation of lands helde of the King as of his honor but for lande helde in Capite onely for there be certaine honors which be held in Capite there is a certain writ that the Eschetor shal not greeue any maÌ„ for alienation of land held as of an Honor for that is as of an honor and not as of the kings person no Fine shall be paied for the alienation of such lande a Regist ' 184. Br. Alienac ' 33. And whereas it was found by Office that lande was helde of the Queene as of her principalitie of Wales by the seruice of goinge with the Prince in Warre at the charge of the Prince per CuriaÌ„ b 18. Eliz. Dy. per Curiam This is no Tenure in capite and Master Finchden putteth this diuersity that where an Honour is seised into the Kings handes if a Manor held of the Honor do escheat to the king by a common Escheate if the King alien the Manor to holde of him the tenant shall hold by the same seruices as hee helde by before of the Honour for the Honour seemeth to bee vice domini in this case and as a meane Lord but if it come to the King by forfaiture of warre or by some other treasoÌ„ or by some other cause which toucheth the Kings person and the King seiseth and enfeoffeth an other the feoffee shall holde of the King as of his Crowne c 47. E. 3. 21. per Finchden and though the Statute of Magna Charta Cap. 31. before recited doe say Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingforde Bolen c. non faciet aliud seruitium quam fecit praeante yet this is to be intended of a common Escheate and not otherwise d 19. H. 8. 〈◊〉 Ca. 114. So a man may holde of the King as of his Manour and yet not holde in Capite for it was found by office that one helde land of the King as of his Manor of Plimpton and other landes as of his Manour of Darington which came to the king by the attainder of treason of the Marquesse of Exetor this hath beene thought to be no Tenure in capite for tenures in chiefe did begin in auncient time vpon the graunts of Kings to defende them against rebelles and enemies and at this day the Queene may create a tenure in Capite if shee giue lande to holde of her person otherwise it is if it be giuen to hold of an Honor Manour c. for a Tenure in chiefe must be immediatly of the King and is created by the King onely for a tenure created by a subiect cannot be a tenure in chiefe nor haue any prerogatiue annexed vnto it and if the tenants of an Honour should holde of the King in Capite the Honour when it came to the King should bee destroyed which may not be and there is no reason that the tenant in whom there is no default should be preiudiced in his tenancie by the offence of the Lorde e 30. H. 8. 44. Dyer and if the Q. purchase a Manour of which I. S. holdeth by knights seruice the tenant shall holde as he helde before and he needeth not to tender his liuerie nor primer seisin for he doth not hold in Capite but as of a Manour and if his heire be in ward by reason thereof he may haue an Ouster le maine at his ful age and if the Queene graunt the Manour afterward to W. N. in fee excepting the seruices of I. S. now I. S. holdeth of the Queene as of her highnesse person yet hee shall not holde in Capite but by such seruices as he
but it is a question with vs if one deuise to his wife the third part of all his goods and chattels whether this shall be intended as they shall be after the legacies or debts paid or as they were at the time of the deuise d 30. H. 8. 59. Dyl But this doubt of later time hath receiued decision for where a man deuised the 2. That by the Common law if a man deuise the third parte of his goods to his wife it shal be so rated as they weare at the time of the death of the testator 3. That the Queene may graunt a thing in action moitie of his goods to his wife and died it was ruled that she shall haue the goods as they were at the time of the death of the testator if the testator be not indebted e 5. Mari. 164. and as for graunting things in action we haue this positiue grounde in law that the Queene may grant ouer her rent and condition of reentrie for the nonpaiment of it and her action or any thing that her highnes hath in action but contrariwise it is of a common person f 2. H. 7. 8. Nomom Now shew me of what thinges and 4. Diuision in what sorte iointenancie or tenancie in common may be Codicgn It may be of all such things as lie in 1. That iointenancie by the Ciuil law may be of all such things as lie in contract contract as lambe milke woll cheese and corne and whatsoeuer is gained by the labour of oxē or the harrowing of horses or the letting to gift of kine g L. si nō fuerint ff pro soc and by the nature of the contract when two are agreed to be tenants in common of the profites comming and rising of beasts the losse of the beastes perteyneth onely to him in whom the very propertie of the beastes be but the charge of the pasture and labour which is to be taken about thē belongeth onely to him who is admitted to be tenant in common for the profites 2. That the limitation of tenancie in cōmon is by the partie but the construction of it by the law The possession in cōmon of beasts doth cōtinue vntill they haue yong if the possessiō were limited at the first vntill they had yoong and if two be agreed to be tenants in common of all the profites of a certaine ground the tenancie in cōmon ceaseth not till all the profites be taken and therefore if two be agreed to be tenants in common from the Calends of March vntill such time as their fields are new to be tilled sowne they shal be tenants in common vnto the Calendes of Nouember because betwixt both the Calendes the fields may be tilled sowne or suppose that they haue contracted a tenancie in common of kine from the Calendes of Iuly vntill they haue yonge this tenancie in cōmon shall continue till the Calends of Aprill next ensuing because for the most part they are wont to calfe betwixt both the Calends h L. si conuenerit in princ ff pro socio Anglono A parson may grant to another the moitie of his tithes for years whether it be lamb wooll or corne yet he hath no possession of them because they are not yet in esse i 38. E. 3. 6. but yet he hath an interest in them may grant the moitie of them as wel as one may grant to another that it shall be lawfull for him to take euery yeere a Deare or a Hare or a Cony within his soile this is a good grant k 10. H. 7. 30. and by the same reason that he may grant his tithes he may grant the moitie of them and so make a tenancy in common Nomoma Suppose the case to be this that two 5. Diuision iointenants or tenants in common haue agreed to make a common wall about their ground or that they should plant a certain number of trees in their common soile and one of them alieneth his part whether is his assignee bound to performe the couenant 1. That an assignee in the Ciuill lawe is bound by the the couenant of his grauntor Codicgn In our law there be many authorities that he ought to performe the couenant l L. quaesit §. quod a Titio ff de praeca arg l. in hoc iudiciū §. penult ff de cōmun diuid ff de damn infect l. fluminū §. adducitur ff pro soc l. 1. demque Anglonomoph To that our law agreeth for if a man lease a house and land for yeares by deed indented and the lessee doth couenant that he 2. That by the Common law in such case the assignee is bound by the couenant and his assignees shall repaire the house and after the lessee granteth ouer his terme and the assignee doth not repaire it an action of couenāt lieth against the assignee for this is a couenant which runneth with the land m 25. H. 8. Br. couen 32. Deputie 16. and according to M. Brookes opinion it lieth also against the lessee after that he hath assigned ouer his terme if he bring seueral writs of couenāt against thē both there is no remedie till he haue had execution against one of them and then if he sue the other he may haue an Audit a querela n Br. Couen 32. Nomom I will content my selfe at this time with your instructions touching iointenants tenants in common will passe ouer to the examining of the course of exchaunges The sixth Dialogue of Exchaunges NOnomath What if two do deale together 1. Diuision after this sort the one of thē giueth a horse and x. s. for the horse of an other man whether is this a bargaine and sale or an exchaunge Codicgn In such case either it is intended and 1. That by thē Ciuill law cōtracts for a certaine price are not exchaunges vttered betwixt the parties that the one shal haue such a thing for a certaine price as namely that A. shall haue the horse of B. for ten pounds and B. taketh of A. sixe pounds and an other horse in full paiment and satisfactiō this is cleerely a bargaine and sale a L. tenetur §. 1. de action emp. but if A. had giuen B. a horse for a horse that had bene an exchaunge b Ar. I. item si pretio §. 1. ff locat Anglonom By our Law there must bee the expresse 2. That by the Common law the word Excambium must be vsed in the exchaunge word of exchaūge mētioned otherwise a thing cā not be said to passe by exchaūge for the word excambiū only maketh an exchaūge as the words liberūmaritagiū onely doe make frankmariage for if I giue to one an acre of land by deed indented and he by the same deed giueth to me an other acre for this acre nothing passeth except liuerie be made and then the
Corne bee seuered the issue in taile may well deuise it h Park Deuis 100 sect 520. and if a man which is seised of land in fee haue issue a daughter and dyeth his wife being grossement enseint with a sonne and the daughter entreth and soweth the lande and after the sowing and before the seuerance the sonne is borne and one of his next friendes entreth for him yet the daughter may deuise the Corne growing vppon the lande i 19. H. 6. 6. And the Statute of Merton which sayeth that omnes viduae possint legare blada is but an affirmation of the common Lawe which was vsed in the time of King Henry the thirde aboue mencioned in the beginning of his raigne and so it is of other thinges future contingent they may bee deuised well enough for if a man enfeoffe a straunger of his lande vpon payment or non-payment on the part of the feoffee as if the feoffee shall pay vnto the feoffour twentie poundes at the feast of Easter next ensuing that then he may reteigne the lande to him and to his heires and if hee doe not pay that then it shall bee lawfull for the feoffour to re-enter nowe if the feoffour make his will and deuise the money when it shall bee paied to A. and dyeth before the day of payment this is a good deuise condicionally that is if the feoffee pay the mony to the executors k 12. E. 3. Condic 8. For when 6 That when the partie hath a certaine and lawfull interest in a thing he may lease it graunt it or deuise it before the existence of it the partie hath a lawfull and a certaine interest in a thinge hee may graunt lease or deuise it before the thing haue actuall existence therefore the saying of Master Keble that worthie man is well to be marked when hee sayeth that the King cannot graunt any disme before it bee graunted to his highnesse by Parliament neyther a wardshippe cum acciderit otherwise it is of the amerciaments of his tenants in such a village the wrecke of the Sea or catalla felonum for he hath an inheritance in them and a possession in law but in the disme hee hath no interest before the graunt l 21. E. 4. Abbot de Walth case 45. p Keble Codicgn By our Law a man may deuise to one 7 That a deuise may be vncertaine but yet good in Law because it may by special meanes be reduced to certaintie that he shall haue yerely xx loade of stone out of his quarrie in Dale or three load of wood out of his groue or coppies in Sale m ff de legat 1. l. apud Iulian §. si quis and if the testator doe deuise one of his vineyardes one of his horses or one of his rickes of corne it shall be in the election of the heire or the executor what vineyarde what horse or what ricke of corne he will giue him so that he giue him not the verie worst but these which be indifferent n l. legato generaliter ff de lega 1. Anglonomoph So in our Law a man may graunt therefore as I think if one deuise vnto an other one of the horses in his stable and he hath fiue in his stable the grauntee may chose which of them he will haue and if a man graunt to one xx s. of rent charge or xl s. of rent charge I may distreine for which of the rents I will o 9. E. 4. 39. 11. E. 3. Annuity 27. Park Grāts 17. sect 74. Nomomat Let me aske you this question The 4. Diuision Testator hauing but one daughter deuiseth by his wil that 1000. li. shal be payd for the mariage of his daughters meaning as well other daughters that shoulde be borne as her that is liuing there is none afterwarde borne the testator dyethw hether is the executor bounde to pay the whole thousande poundes to the daughter that is liuing Codicgn I thinke he is bounde by Lawe to pay 1 That by the Ciuil law Ius acrescendi taketh effect in legacies the whole summe vnto her p l. qui quartā §. fin ff de legat 1. for ius accrescendi habet locum in legatis q d. §. fin cum l. seq l. a Titio ff de verbo oblatio and so if the testator do deuise that if he shall haue a daughter the executor shoulde giue a C. li. for the mariage of his daughter and two daughters be borne nowe the executor shall pay to euery of them C. li. r l. qui filiabus §. si quis ita ff de legat 1. and if the case be that the testatour doth deuise the sixthe part of his houses of his landes or vineyards to Sempronius whereupon Sempronius demaundeth a sixth part of euery house of euery farme and of euery vineyarde and the heire saith that these thinges cannot well be deuided but that hee is readie to pay to the deuisee the verie 2 Whether when the 6. part of a thing is deuised the heire is compellable to deuide it by the Ciuil law or to render the value value of euery sixth parte the question is whether the law regardeth this aunswere of the heire and for this doubt we haue this generall decision if the thing which is so to be deuided be indiuisible by the nature of it or if it cannot bee commodiously diuided the heire hath the choise to pay the value but if it be deuisible then the law is otherwise ſ l. non amplius §. cum honorum ff de legat 1. Anglonomoph As to your last case our law doth accorde with yours for legacies shal be fauoured and ordered as dower is and if a woman haue title of dower to a house a chamber in the house may be allotted vnto her as the third part of the 3 That by the common law some time there may be a seuerance of the thing deuised sometime of the profits of the thing or of the aduantage house or in allowance of her dower but she shal not so be indowed of a milne but shall haue the third part of the profit of the milne because the milne cannot be seuered and a woman may bee endowed of a villaine ingrosse as to haue his seruices euery third day and of an aduowson in grosse to haue the third presentment and of the moitie of an aduowson ingrosse to haue the sixth presentment and a woman shall be endowed of a bailywicke to haue the third part of the profit of it t 1. H. 5. 1. 45. E. 3. Dower 50. Na. Br. 7. 2. H. 6. 11. 13. E. 2. Dower 161. Fitz. na br 148 C. 150. G. 149. K. 148. C. 12. E. 2. Dower 157. 11. E. 3. Dower 85. 15. E. 3. Dower 81. Nomomat Let the case bee that the Testatour 5. Diuision deuiseth to one a plotte of grounde and speaketh nothinge of the house which is built vppon it
whether shall the deuisee haue the house Codicgn By our Lawe hee shall haue the 1 That if a man deuise a plott of grouÌ„d whereon a house is built the house also passeth house whether it were built before the Testament were made or after u l. seruum silij §. si are ae ff de l. si are ae ff de leg 2. and wee haue a rule in our Lawe Quidquid plantatur seritur vel inaedificatur omne solo cedit radices si tamen egit Anglonomoph It is so likewise in our Lawe 2 A house built vpon laÌ„d entailed after the gift shal be recouered in a Formedon for if a man giue lande in taile and the donee buildeth a house vpon it and dyeth without issue the donor if he be deforced from the land shall demaunde it in a Formedon per nomen mesuagij a 32. H. 8. 47. Dyer Nomomat Put case the Testatour deuiseth to 6. Diuision one a deede or instrument conteyninge a certaine debt whether doth he deuise the debt or noe b l. seruum silij § â—um qui chirographum de legat 1. Codicgn In that case the debt passeth h but 1 That by the ciuil law when an especialtie conteining a debt is deuised to one the debt it selfe passeth if tenne seuerall payments ought to bee made by the condition of a bonde as suppose tenne poundes is to be payd yerely by tenne seueral payments and fiue yeres be past and fiue payments made and the testator deuiseth the summe comprised in the condition to I. S. in this case the deuisee shal not recouer against the executor the whole summe conteigned in the condition but fiue pounds onely c d. l. seruum filij §. sed et si nomen Anglonomoph Master Perkins a man that writeth 2 Master Parkins his opinioÌ„ touching the deuising of an obligation is examined of diuerse Titles of our Law rather subtilly then soundely saieth that if twentie pounds be due to a man vpon an obligation or a contracte which ought to be payd at the feast of Easter and he euiseth it to a straunger this is a good deuise if the money bee afterward payd but if he had deuised the obligation or the counterpaine of the Indenture of couenants wherein the bond is conteined the deuisee shall not vse an action vpon the bonde in his owne name but he may giue or sell the obligation to the obligor or to a straunger d Perkins 101. sect ' 527. but howe bonds or things in action may passe directly from one to another by way of graunt or deuise I cannot yet perceiue by any authenticke opinion in our yere bookes for to say that the especialty or bonde conteyning the debt or duety doth passe vnto the deuisee though the debt doe not passe as namely the parchment ynke and waxe but not the summe conteigned is as if one shoulde imagine that a man roweth ouer Thames in body and yet remaineth at the Temple staires in soule for if the debt being the principall doe not passe I cannot vnderstand how the parchment or paper or the deede it selfe being the accessorie can passe for accessorium sequitur suum principale Nomom Resolue in this if a man deuise to an 7. Diuision other a horse a garment or the like and they perishe in the handes of the executour whether is the executor bounde by Law to make them good Codicgn In such case either the executor doth linger and delay the deliuery or giuing of the thing deuised to him to whom it was deuised and then I doubt not but he is bound to pay the 1 That by the Ciuil Law the executor is bound to make good the thing which perisheth through his default value of the thing which perisheth through his default or there is no default in him and then he is not to bee charged with the making of it good e l. cum heres §. si l. huiusmodi §. si cui homo ff de legat 1. and then the executor or heire may bee said to delay the administration of the legacye when he may speedily performe it and will not but if he be by the acte of a straunger hindered from executing the bequest as suppose he hath not the monie readie which is deuised or the deuise be that hee shall purchase an other mans lande with the money of the deuisor and assure 2 That in some cases the time of performing legacies is left to the discretion of the Iudges it to I. S. if he cannot easilie compasse this purchase doing his best endeuour the rigor of lawe is to be tempered in this case by discretion and respite must bee giuen by the arbitrage of the Iudge f l. si domus §. in pecunia ff de legat 1. Anglonomoph In our Law we haue many cases wherein they that are charged with the deliuery of a thing vpon some trust and confidence 3 That by the common law the executors are bound to performe the deuise in conuenient time reposed in them and the thing that should be deliuered perisheth through their default they are enforced by lawe to make full amendes for if a man be seised of lande deuisable in fee and deuiseth by his Testament that his executors shall sell his land and shall distribute the profits comming thereof to the vse of the poore and the deuisor dyeth if a straunger tender vnto them monie for the lande but not so much as the lande is worthe in their opinion and they to the intent they may sell it more deere differre the sale for two yeres space and take the profit themselues nowe the heire for their longe delaying may enter 4 A diuersitie betwixt an obligee and a deuisee and put them out of the land g 38. Ass pl. 3. 39. Ass pl. 3. but if a man be bound in xx li. to pay x. li. at the feast of Saint Michael the obligee refuseth the money when it is tendered in pollardes which afterward are embased the obligor shall beare the losse of the embasement because he must pleade vncore prist h 7. E. 6. 83. Dyer and yet the refusal was the default of the obligee Nomom Put case that a man deuiseth to one a 8. Diuision beadsteede whether shall the deuisee by force of this deuise haue the curtaines of the bed Codicgn The accessorie goeth alwaies with the 1 That things which are accâ—ssory doe passe with their principal principal and the curtaines therefore in this case shall passe with the bedsteade i l. liberorum §. sin ibi glo de legat ' 3. so if a man deuise to one his land or his house the arrerages due by the farmor or inhabitant from the death of the Testator are payable to the deuisee but not the arrerages before k l. praedijs §. 1. ff de legat 3. l. Nomen §. filio ex parte de
14. Diuision a common coÌ„tingent The testator ordeigneth by his will that his daughters shall be married by the appointment and disposall of Titius his brother the Testator dieth Titius also dieth before he hath disposed any thing of the maryage whether may the mariage and the portion be arbitrated disposed by some other or no as namely by the executor of Titius Codicgn I thinke the executor of Titius may 1 That by the Ciuil law if a man ordeigne by his wil that his daughters shall marry by the appointment of Titius that Titius his executor may dispose of the mariage well enough order and accomplishe this matter according to the degree of the daughters the wealthe of the father and the number of the children a l. si filiae pater ff de legat 3. Anglonomoph I thinke quite contrary because there is a confidence reposed specially incommunicably in the person of Titius and there be many cases in our Lawe to proue this assertion Cesty que vse before the statute of 27. of king H. 8. did deuise that A. B. and C. his feoffees should 2. That by the Common law where a confidence is reposed in certaine persons it is incommunicable to others sell his land whereof they were seised to his vse A. dieth it was helde that B. and C. could not sell the land otherwise it had beene if he had spoken generally of his feoffees without naming them specially b 2. Elizab. 177. Dy. Likewise a man deuised that after the death of his wife his land should be sold by his executors together with the assent of A. and maketh his wife and a stranger his executors and dieth the wife dieth A. dieth the authoritie of selling the land is fully determined and gone c 5. Eliz. 219. Dy. and so it was held per curiam that if a man did declare his will that B. and C. his executors should sell his land and the testator dieth and B. dieth and C. maketh M. his executor and dieth and M. selleth it this sale is void for the trust is strict but M. Brudnell saith that if a man deuise by his will that H. and N. his executors shall sell his land and they refuse to be executors yet they may sell the land because they are named by their proper names d 19. H. 8. 9. But where the executors are not specially named for the sale of the land there one of them onely may well enough sell the land for the case was that a man did deuise all his lands to his sister except one manor which he appointed to pay his debts and he made two executors and died the one executor died yet the other may sell the mannor and pay the debts per intentionem testatoris the words of the deuise as touching the sale were generall which I appointe to pay my debts e 23. Eliz. 371. Dy. Nomomath I haue often heard that a deuise 15. Diuision shall be taken most largely and beneficially for the profite and auaile of the deuisee I praie yee let me heare some cases which may coÌ„firme this vnto me Codicgnostes If the testator doe deuise all his 1. That by the Ciuill law deuises are for the most parte construed for the deuisce horses to one all his horses and mares shall passe by the deuise f L. legatis seruis §. iuÌ„ctis ff de legat 3. and if the testator doe deuise all his beastes all fourefooted cattaile which are beasts of pasture doe passe by this deuise g D. l. legatis §. pecoribus if a flocke of Sheepe bee deuised the Lambes and the Rammes are conteined in the deuise h L. seruis legat §. si ff but if he deuise his Sheepe without saying his flocke of sheepe his lambes do not passe i D. l. legatis seruis §. ouibus and if a man deuise his plough horses to one and after the deuisor selleth the horses and buyeth and vseth mares for his plough and dieth now the mares shall passe by the deuise k L. qui duos mulos ff de legat 3. and if the testator doe deuise to one all his woolle all his woâ—lle as wel washed as not washed spunne as not spunne generally al his woolle which is not wrought into clothe is deuised l L. si cui lana in princip in §. lanae ff de legat 3. and herein it differeth from lyne because vnder the name of lyne euen lyne that is wrought or linnen is conteined m D. l. si cui lana §. lino so if a man deuise all his siluer to one his siluer cuppes and all his other vessels of siluer doe passe n L. cum aurum ff de auro argent leg in princip l. lana §. fi ff de legat 3. but no siluer coine doth passe o L. Quintus in prin ff de aur argent leg otherwise it had beene if he had deuised all his siluer wrought or laboured p Ibid. for if the testator deuise to one all his cloth which is in such a cheste no garments nor apparell are contained within the deuise but onely the rude and plaine matter of clothe because when marble is deuised the imageries of marble are not meant but the grosse matter of marble q L. quaesitum §. illud fortassis ff de legat 3. and if wood be deuised onely wood fit to be burnt is comprehended in the deuise but not timber r L. ligna ff de legat 3. yet the testator his meaning is in these later cases to be examined by circumstances Å¿ L. pediculi §. labeo ff de aur arg leg Anglonomoph And by our Lawe the fauour of which is equally diuided betwixt the aduantage of the deuisee and the intent of the deuisor Deuises are often times ampliated and extended by beneficiall construction for the helpe and profite of the deuisee if they be not repugnant to 2. That the Common law so fauoureth deuises that it vpholdeth equitie the correspoÌ„dence of reason law but if they bee repugnant the Lawe then as a Lady iealous of her Iustice doth vtterly frustrate and make voide the deuises That which I affirme shall by cases and examples better appeare The L. Latimer did deuise to his Ladie and wife the third part of all his goods and chattels and great question was made whether this deuise should be intended of the third part of the goods and chattels as it should be after the dettes and legacies paied or as it was at the death of the testator and whether the third parte of the dets due to the testator doe passe by this deuise but it was agreed by the Iustices that by the woord vtensils Plate and Iewels doe not passe and if a man deuise to his daughter fiue huÌ„dred pouÌ„ds for and towarde her mariage and she dieth before the mariage by the opinion of the greater parte
her executor shall haue the summe otherwise it had beene if the wordes of the deuise had bene to be paied at the daie of her mariage or at the age of 21. yeares and she dieth before t 36. H. 8. 59. Dy. and 16. Eliz. A man deuised laude to one so that he doe paie 10. li. and if not that it should remaine to his house prouided that the lands shall not be sold but shall goe to the next of bloud being male it was helde that this was an estate taile that these words shall goe to his house shal be construed to the eldest person of his familie and these wordes being male shall be construed in the future tense and in many cases an estate may be limited in a deuise by implication as if a man deuise lande to one and to his heires males in fee simple the remainder to the next heires males of the kinne there is an entailemeÌ„t both in the first estate and also in the remainder u 16. Eliz. 333. Dy. 2. Eli. 171. Dy. but where a deuise is contrarie to Law it is voide of effect for a man deuised land in London to the 3. That the Common law frustrateth these deuises which are repugnant to Lawe Prior Couent of S. Bartholmewes so that they pay to the Deane and Chapiter of Powles 10. li. yeerely and if they failed then their estate to cease and that the lande should remaine to the Deane and it was helde by Fitzh Baldwin Iustices that this was a void remainder because it could not be limited after an estate in fee and as of a condition the Deane Chapiter could not haue aduantage but the heire a 29. H. 8. 32. Dy. and so if a man deuise laÌ„d to one in fee that if he die without heire that then it shall remaine to an other in fee this is a voide remainder because one fee simple cannot depend vpon an other b 19. H. 8. 8. Nomom What if the testator doe deuise to his 16. Diuision wife certaine land whilest she should liue chastly and she marieth whether is her estate determined Canonolog I thinke it is not determined for 1. That by the Cannon lawe if land be deuised to a woman whilest she shall liue chastly mariage is not implicatiuely and absolutely prohibited though the words of the deuise do implie a coÌ„dition yet the condition is not broken because matrimonium est reshonesta and therefore not to be imagined to be within the intent of the condition c Authent de nupt in princ 28. quaest 1. ca. sic enim 33. q. 2. c. 2. l. 2. C. de indict viduit toll Nomoma Yet it seemeth that the condition faileth Quia coitus castitas opponuntur d D. authent de nup. §. quâ—a vero therefore it may seeme that she should lose the legacie as well by marying as by liuing incontinently Canonol But I thinke rather that she shal not lose the legacie because there was no condition expressed in the deuise that shee should not marrie and therefore she can not be said in marying to do against the will of her husband but yet it may seeme that if she had maried within a yeare after the death of the testator she had broke the condition e ff de iur patron l. adigere §. fi for doubtles otherwise Mulier secundò nubeus castitatem seruat f D. authen de nup. §. fin autem ideÌ„ Extra de diuor c. gaudeamus in fin l. mulier §. cum proponaretur ff ad Trebel 2. That the Ciuill law and Common law do fauour mariage Codicgn Our Lawe in such cases fauoureth matrimonie g ff de reg iur l. In ambiguis l. in testamentis eod and where there is no condition prohibitorie expressed the Law will not in such case intende it h In authent hoc locum C. de secund nupt Anglonomop In our Law we haue a case that King Edward the sixth graunted to his sister the Ladie Mary the mannor of D. as long as shee should continue vnmaried and this is admitted in our Law to be a good limitation but no condition as hath bene before surmised i 4. Mar. 1. 141. Dy. 37. H. 6. 29. 10. Assis pl. 8. 17. Assis pl. 7. 3. Assis pl. 9. 6. Nomom Let this be the case the husbaÌ„d deuiseth 17. Diuision to his wife the ê“fits of al his goods the question is whether the wife may take the profits by her sole authoritie or by the appointment of the iudge or by the administration of the executor 1. That there is a diuersitie in the Ciuill lawe where a man maketh his wife vsufructuariam of his goods and where he deuiseth them to her Codicgn In our law we take this difference where he maketh his wife by his will vsufructuariam of the goods and where he doth deuise vnto her his goods For where he maketh her vsufructuariam she may of her owne power take the profit and benefit of the goods and she needeth not to expect or attend the curtisie of the executor k L. si habitatio §. si vsus fuÌ„di l. fundi ff de vsu hab But if he deuise his goods or the profits of his goods or commaund and charge his heire or executor by his will that they allow sufficient maintenaunce to his wife out of his lands or goods now the woman is a deuisee and she must take that which is deuised by the haÌ„ds of the heire or executor or else sue for it by law l ff de vsufâ—uct legat l. patrimonij l. si quis Anglonomoph By our law the power and authoritie 2. That by the Common law the administration of the goods and chattels of the testator doth appertaine only to the executor of deliuering goods and chattels or putting the deuisee in possession belongeth onely to the executors who must see debts paide before legacies performed m 37. H. 6. 30. â— Prisot 2. H. 6 16. Perkins Testam 94. D. S. Dialog 2. 79. And therefore if a straunger take goods deuised to me out of the possession of the executors I cannot haue an action of trespasse for the taking For it is not like to a gift of goods which is presently executed and if a man deuise the â—ourth part of his goods to another the deuisee may not seise the fourth part but he must sue for it in the spiritual court n 27. H. 6. but if a man deuise a booke or some other thing to one for tearme of life the remainder to an other for euer if the executor deliuer the booke or the goods to the first deuisee the second deuisee may seise theÌ„ without liuerie of the executor for the possessioÌ„ of the first deuisee was the possessioÌ„ of theÌ„ both otherwise it is if the first deuisee hath the possessioÌ„ die
discretioÌ„ or ful age Codicgn I thinke it shal be meant of his ful age 1. That by the Ciuil law wheÌ„ maintenance is deuised to one till the ripenes of age is intended of full age for that is the coÌ„mon intendmeÌ„t the authorities of our bookes do sway to that point o l. Mela. ff de aliment ciâ—a leg Anglono In our law though there be but two ages for the heire male namely the age of 14. which is the age of discretion and the full age 2. The diuersities of ages by the Common law which is the age of 21. yeares oo Littlet lib. 2. c. 4. Sect. 8. 9. yet the heire female hath in our Lawe many ages namely at 7. yeares to haue aide to be maried and 9. yeares to deserue dower and 12. yeares to consent to mariage and 14. yeares to be out of warde and 16. yeares for the lord to tender vnto her a mariage and 21. yeares to make a feofmeÌ„t or a deed which may bind her p 35. H. 6. 4â— but by coÌ„mon intendment ripenes of age is fulnes of age full age by constitution of our law is the age of one and twentie Nomom Then I know your opinioÌ„ as touching 20. Diuision this question now let me demaund an other If the testator do deuise his maÌ„sion house which he hath in the parish of S. Andrew and that hath some appurtenaunces lying in the parishe of S. Giles whether doe these appurtenances passe by the deuise or no Codicgn The appurtenances do passe we 1. That by the Ciuill law wheÌ„ a mansion house that is in one parishe is deuised the appurtenances in an other parishe doe passe by the deuise haue good authoritie for it in our Law q L. patronus §. Sempronio ff de legat 3. Anglonomoph And me thinks the appurtenances being in an other parish doe not passe by this deuise for not to aid my self with ancient authoritie of law it hath bin lately fully vpoÌ„ ample discourse of this verie point ruled that nothing shall be said to bee appurtenant to a house saue onely the garden the curtilage and the close adioyning to the house and no other lande though other lande haue bene occupied with 2. That by the Common law land cannot be appurtenant to land the house r 23. H. 8. Br. Feosm 53. for land caÌ„not belong to a house because they be of seuerall natures for the house is a place to inhabite land is a thing to be plowed or sowed or improued so caÌ„not properly be appurtenant to a house no more then one liberty may be appurtenant to an other liberty of seueral nature as a warren to a leete or a leete to a hundred Å¿ 3. Mar com 168. Hilles case per Walpoole Rastall Morgan and all the Iustices but Cooke who spake not to this point in Patridges case agreed that land cannot appertaine to a house and this Mountague said was a ground in the law but Hales there said that a garden may containe 11. acres in quantitie and by such speciall meane be parcell of a house t 6. 7. E. 6. Comm. 85. Partriges case this is sufficient to prooue that the appurtenances doe not in this case passe by the deuise of the house without the authoritie of 27. H. 6. where it is consonantly auouched that though a man may giue an acre of land vnto me by the name of a carue a carue by the name of a Manor yet by a deede of feofment of a house land cannot be coÌ„ueied as parcel of the house u 27. H. 6. 2. Nomomath Ye haue remoued all the doubtes touching deuises which perplexed my mind we haue bin long in coÌ„ference of this title now froÌ„ reall things let vs passe to personall in which I pray yee continue your paines according to your former diligence and first ye are to speake of borowing and lending The eight Dialogue of Borowing and Lending NOmomath I would knowe the perfite 1. Diuision difference by the Ciuill lawe betwixt Mutuum and Commodatum I pray you Codicgn let me vse your help herein Codicgn They differ in our Law many waies 1. That which wee call Mutuum doth consist 1. The difference in the Ciuill law betwixt mutuum and Commodatum onely in things which are consumed by the very vse which consist in nuÌ„ber weight or measure as corne spices salt and such like CoÌ„modatum is that which by vsing is not speÌ„t as it is not deliuered by weight nor measure so neither is it restored by weight or measure as bookes apparel the like 2. In lending that which we cal mutuum the very propertie of the thing leant doth passe a L. 2. §. appellata ff si cert pet but wee doe still retaine the propertie of that which wee call Commodatum b L. rei commodatae cum l. seq ff commod 3 That which wee call Mutuum is leant for euery vse in generall as if the lender should say vnto him that boroweth Vtare fruare pro tuo arbitrio sicut dominus c L. in re maÌ„data C. mandat but CoÌ„modatum is leant for a certaine prescript vse d L. in coÌ„modato §. sicut ff commod and if any man doe vse it otherwise he coÌ„mitteth theft e L. 5. §. quin imo ff eo §. placuit instit de oblig quae ex delicto nasc 4. If the thing which we call Mutuum be made worse or perish he to whom the loane is made shall not susteine any dammages otherwise it is of Commodatum if through his faulte defaulte couin or negligence the thing leant doe perishe or become worse f L. si vt certo §. nunc viden vers quod vero l. cum qui in princ l. ad eos l. argentum cum l. sin ff commod Nomomath What persons may be bound by 2. Diuision borowing and lending Codicgnost Euery particular person euerie 1. That particular persons corporations and Churches parochial may be bound by contract of borowing and lending by the Ciuill law church being parochiall or conuentuall g In authent hoc ius porrectum C. de sacros Eccles euery vniuersitie comminaltie or corporation h L. ciuitas ibi plene per Baâ—tolum ff si cert pet yet with this restreint if the monie be conuerted to the vse of the Citie or Church i Innocent in c. 1. Ext. de pos per Ferrar in form libell de act hypoth in glos super verb. sub ead obligati Anglonomoph Indeed thereto doth our Lawe accord for before the dissolution of Abbeys monasteries the successor of a Prior should haue 2. That by the Common law Abbots Priorâ— and such religious persons might charge the house by their contract and by recognisans bene charged with an annuitie graunted by his predecessor pro consilio
and A. the wife of T. by diuerse praecipes in the summons A. was omitted wherefore the writte abated a 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6 6 likewise in a writ of dower by seuerall praecipes the name of one of the tenants was omitted in the clause inde queritur and in the summons whereupon the writte was abated b 12. E. 3. Brief 671. furthermore if a man recouer in a writ of waste by the default of the defendant where hee was not summoned hee may haue a 9. That by the default of lawfull summons the proceeding of the plaintife is frustrated by the Common law writ of disceit c 19. E. 3. Disceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit 56. 17. E. 3. 58. Fitzh N. B. 98. b. 105. a. in this writ of disceit if there weare two summoners returned vpon the writ in which the summons failed if the Sheriffe do returne one of the summoners dead yet the other summoner shall be examined and if it be found that he did not summon the partie he shal be restored to his land d 8. E. 3. Disceit 7. 1. E. 2. Disceit 48. but if the summons be returned to be made by foure men whereas in truth they did not execute the summons of the writ as long as two of them liue the tenant who lost in the writ may haue a writ of disceit e Fitzh N. B. 98. D. but if three of thē die a writ of disceit may not be brought f 35. H. 6. 46. but an action vpon the case g 1. H. 6. 1. in a Praecipe quod reddat against the husband and the wife if at the grand Cape the husband appeare in person and the wife appeareth by Attorney who hath a warrant of Attorney which is not sufficient therefore iudgement is giuen vpon the wifes default against the husband and wife yet they may haue a writ of disceit if they were not summoned h 18. E. 2. Disceit 54. 55. Fitzh N. B. 99. B. and how necessarie a summons is may appeare verie plainly by the booke of 7. H. 6. where in a Formedon they were at issue and the tenant at the Nisi prius made default the demandant shewed how hee was in prison in the warde of the Marshall and praied that they would sende for him to appeare otherwise hee would saue his default afterward by imprisonment wherefore the Court sent for him and he came i 7. H. 6. 38. Nomomath Yee haue spent a great deale of 2. Diuision time in treating of the commencement or beginning of a suit or action yet I desire to haue some further knowledge of the nature of a citation or summons therefore resolue mee when a man is summoned to appeare within two or three daies after such a returne whether shall the second or third daie be accompted in the citation so that then he that is cited may well enough appeare when as in the one case one daie is past so that he doth not appeare within the two daies appearing first in the morning of the second daie in the other case two daies be past so that he appearing the third daie doth not appeare within the three daies so that if he will saue his default me thinketh he should appeare the first day of al. Codicgn This question is easily resolued for if 1. That by the Ciuill law if a man be boūd to appeare within tenne daies the tēth day is taken inclusiue he appeare within the two daies or three daies it is clearely sufficient because the last daie that is put in the citation doth implie that he may differre his appearaunce vnto the last daie k ff de verb. oblig l. qui ante Calendas l. eum qui ita ff eod and though an appeale be to be brought within 10. daies after the iudgement yet the last daie is taken inclusiue and not exclusiue l ff de success edict l. 1. §. dicimus and if time be giuen to one either by the partie or by Lawe that he may paie so much monie within or doe or propound anything de iure suo within 10. daies or from hence vntill 10. daies he may paie do or propound the 10. daie without any preiudice or surcease of time m Instit de verb. oblig §. si in diem Anglonomo If a man be bound to paie monie in festo sanctae Trinitatis if he tender the monie in the vigil of the feast it is not good nor in the octaues but the tender must be made the very daie of the feast but if the paimēt had bin limited on this side the feast or before the feast then it may well be made in the vigill of the feast n 21. E. 4. 52. and these words ab octabis sanctae Trinitatis must be intēded à 4. die octabis Trinitatis thereupon M. Brooke noteth that to this intent the first daie and the 2. That the first day and the fourth day of appearance are all one at the Common law fourth daie al the daies meane are but one day in law o 21. E 4. 43. Br. Iour iours en court 57. therfore if after the day of the returne of the writ of Capias and before the fourth day which is ful tearme the Sheriffe doth arrest a mā this arrest is not iustifiable because the first day and the fourth day be all one daie p 33. H. 6. 42. Nomom I would not haue you to insist longer 3. Diuision vpon this matter but now shewe vnto mee how causes are opened declared disclosed in your Courts and how faults and wrongs are manifested to the iudges Anglonomoph Al wrōgs offences are either 1. A diuersitie of opening prosecuting of priuate and publike offences at the Cōmon law priuate or publique priuate offences which are done by one mā to the hurt of an other are made knowne to the Court remedied by originall writte bil or plaint publique offences which are committed by the partie against the Queene and Commonweale are opened punished by way of enditement and information which is put in practise by common informers Nomom The māner of such informing seemeth 2. Exceptiō is taken to informations vsed by common informers to me to be a very harde course of Iustice for by that meane lewde persons are animated to terrifie impeach poore simple men and to bring them into danger for what mischiefe will they not do when a reward is proposed vnto them Codicg It is true our law doth generally disallow such proceeding therfore the name of a delator or informer is in our law accompted dishonest q L. 3. C. de Iniur and therefore it saith expresly Delatores 3. Many obiections are made out of the Ciuill lawe against common informers
statuts is to foreit incurre for by reward the spirits of a maÌ„ are stirred vp quickned without it they linger languish consume away why is reward due vnto such men The causes and reasons be many without informatioÌ„ there wil be hardly any punishmeÌ„t inflicted vpoÌ„ manie offendors sithence nothing is more acceptable to God or beneficiall to the common weale then that offendors should receiue their proper coÌ„digne punishment all lawful meanes must be assaied to atteine to this effect and what doth restraine men more froÌ„ coÌ„mitting offences theÌ„n a continuall feare of the informers eie to be cast vpon theÌ„ or his eares to be opeÌ„ for the harkning out of their offences wherfore as the HuÌ„tsmaÌ„ doth bestow vpoÌ„ his dogs some part of these beasts which he taketh killeth in hunting that by such inticements they may bee afterwarde drawne to pursue there praie fiercely eagerly so it behoueth a lawmaker diligently to hunt out the domestical lions wolfes and to allow some reward to the hounds of the Common weale which informers are b Plutar. in Lucul Conanus the king of Scots did make a law that in euery great Church there should be a cheste hauing some holes in the top into which the informers might put in at pleasure their seuerall billes of information wherein the fault committed the place the time the witnesses and the parties accused weare conteined then the Magistrate openeth the cheste bringeth the matter into question and the guiltie person being condemned the halfe parte of the goods forfeited goeth to the informer which lawe is now put in practise by them of Millaine c Bodin li. 4. de repub c. 6. Nomomath You haue spoken enough of this 4. Diuision matter Anglonomoph I desire greatlie to know whether if a man doe alleage some impediment happened by the acte of God whereby he could not appeare this be a sufficient excuse of his default in Law Codicgn Processe of conteÌ„pt which we cal literas Defaults are dispensed with all by the Ciuill and Common law wheÌ„ they happen by the acte of God coÌ„tumaciales are neuer addressed against such as be hindred by ineuitable accident as namely wheÌ„ the place where the court is held is besieged of enemies or wheÌ„ the plague is hote in that place for citatus ad locuÌ„ non tutum non arctatur coÌ„parere d De appell extra C. ex parte in Clem. Pastoralis ibi glos sup verbo Notorum de re iudicat so it is if through great snow or inundation of water the waies passages be stopped and shut vp in these and the like cases the Law doth dispense with defaults and therefore the matter of delaies is for the most parte committed arbitrio iudicis e L. 2. ff de re iudicata who may take certaine notice of these things Anglonomo It is a receiued opinion with vs that infirmitie or the fall of a maÌ„ from his horse whilest he was in his iourney though the partie be by the fall in daunger of death is no sufficient cause to saue a default but the swelling and ouerflowing of waters is a good and sufficient cause so is an imprisonment f 38. H. 6. 12. for though the imprisonment do originaly happen by the acte of the partie yet it is an impediment of apparance against his will it is a restraint imposed by acte of Lawe g 3. H. 6. 46. so that the partie is as it were by Law made corpus immobile therfore his default must needs be excused 4. H. 5. sicknes was held a good excuse to auoid an outlawrie h 4. H. 5. Chalenge 153. Br. Sauer de def 45. but M. Br. doubteth of that because sicknesse may be feined yet vpoÌ„ the booke of 4. H. 4. cited in the boke called the abridgment of assises because there maladie was pleaded against outlawry was admitted i Abridgem dâ—ssise 48. he beginneth to wayuer in opinioÌ„ k Br. Sauer de def 48. therfore I may with more colour leaue it doubtfull Nomomath Which is the most common actioÌ„ 5. Diuision in your law Codicgnostes Codcignost The action which is called actio 1. The most coÌ„mon action in the Ciuill law is actio iniurariuÌ„ which is either ciuilis or praetoria iniurariuÌ„ which is either ciuilis or praetoria Ciuilis if a man do assault an other or do beat him or do enter into his house l ff de iniur l. lex Cornelia in all other cases it is praetoria but both kinds agree in this that the fault iniurie is punished m Instit de iniur §. penult ff de iniur l. iniuriarum and in the pursuing of it a man may deale either ciuilly or criminally but one of the waies being choseÌ„ the other may not be entred into n L. quod senatus l. praetor §. 1. ff de Iniurijs and if the partie bring ciuilem actioneÌ„ iniuriarum he shal recouer the damages o ff Iniur eod l. IdeÌ„ apud §. si quis seruo but if he bring praetoriam he shall effect nothing thereby but vindictam the punishment of the partie which hath offended Anglonomoph This your speech teÌ„deth to no other purpose as it seemeth theÌ„ to insinuate that such wrongs may be pursued by actioÌ„ or enditement 2. Actions and enditements at the Common law are compared with Ciuill praetorian actions wherein our Law doth not any whit disagree For if foure men enter into land and one of them entreth by force this is force in them all they may be impleaded by action or impeached by enditemeÌ„t p 2. E. 3. 12. li. ass 33. CroÌ„pt I. P. 61. but if a maÌ„ enter by force where his entre is lawful so that there is no fault in the matter of his title but in the manner of his entre onely he shall not be punished by way of actioÌ„ but by way of enditement q 15. H. 7 17. Fitzh I. P. fol. 117. Br. Forcib entre 11. 9. H. 6. 19. Fitzh N. B. 248. and so if the disseisor hold possession by force during the space of three yeares if the disseisie bring an action vpon the Statute of 8. H. 6. hee shall be barred by this matter pleaded but otherwise it is in an inditement vpoÌ„ that statute which is the Queenes suit and vpon such inditement the partie shall haue restitution though hee may not haue an action r 14. H. 7. 29. per Fineux Reade Tremaile and if the disseisie oute the disseisor with force the disseisor shall not haue an action but yet the disseisie may bee indited vpon the aforesaid statute and the disseisor shall thereby be restored 6. Diuision Å¿ 15. H. 7. 17. Fitz. N. B. 248. Nomomath I would haue you to proceed Codicgnostes in describing vnto mee the forme of
had beene a quarrellous or contencious person and had giuen some occasion of strife the wrong might with more reason bee imputed to him then the defendant p Glo. in l. ob haec verba ff de his qui no inf in l. 1. §. cum arietes ff si quadâ—up paup fec and hee cannot be sayd to haue done a wrong who incontinently for his safegarde after the same maner whereby hee is assaulted doth defende himselfe for when a man is assaulted by weapons he may resist with weapons q l. vt vim ff de inst iure l. si quis percustor C. ad leg Cor. de sicar but if he doe exceed measure in repealing iniurie as if being vexed with wordes he resiste with weapons and by such resistance doe beate or wounde the partie he that is so grieued may haue an action of iniurie against him r l. sententiam §. qui cum aliter ff ad l. Aquil. recouer damages Å¿ l. item apud La be oneÌ„ §. si quis seruo ff de iniur and to prescribe some temper moderation in the resisting of verbal actuall iniuries I remeÌ„ber a verse not altogether vnpleasant Res dare pro rebus pro verbis verba solemus Pro bufis bufas pro trufis reddere trufas Thinges must be recompenced with thinges buffets with blowes And wordes with wordes and taunts with mockes and mowes And to conclude you seeme not with your fauour be it spoken iustly to reproue these words animo iniurioso for they are expressed for difference sake because if a man in iesting wise should strike an other or vse broad boward against him this woulde not beare an action because it was not done animo iniuriandi sed iocandi t l. illud peraeque ff de inim l. si non conuicij C. cod this I think you are sufficiently quieted in opinion as to the doubts which you proposed Nomomat Nay verily I rest as yet doubtful and for the fuller clearing of my minde I woulde haue Anglonomoph to speake somewhat of these thinges out of the common Law which in matters of declaration and pleading is very curious and exquisite Anglonomoph Truth and error are both equally 11 Anglo particularly examineth discusseth the exceptions beholden vnto you for in some thinges by the censure of our Law one of you hath the vpper hand in other some the other for proofe hereof I will by your patience particularly handle euery of the aforesaid obiections which hath in it any colour of truthe as to the day of the moneth wherein the wronge is supposed to be done I doe nott with Codicgnostes thinke that in this case the very day necessarily ought to haue bin mentioned because it is not trauersable nor materiall to make any issue but it is sufficient for obseruing formalitie to set downe any day that is past Codicgn But with vs it is material and if the day be not truely set downe the defendant may take aduantage of it Anglonomoph With vs it is not so for as Newton saith 20. H. 6. the day in an action of Trespas and repleuin are not trauersable for if the defendant iustify at an other day after he ought to say without that he tooke them before u 20. H. 6. 40. per Newt and so 19. H. 6. in a trespas of battery the def said that the plaintife did assault him at an other time then he hath declared that the hurt which was done vnto him came of his own wroÌ„g sans ceo that he was CulpÌ„ before or after this ple he was enforced to pled by the court x 19. H. 6. 47. yet in some case the day and time for auoiding vncertainty and that the Iurie may more easily find out the truth is issuable therefore in an action of trespas supposing a batterie the defendant said that the same day wherein the trespas was supposed the plaintif and the defendant by common accorde did play together at cudgels and the hurte which he did vnto him was by that play without that that he hurt him in any other maner iudgmeÌ„t si action To which the plaintife replyed that the same day when they were departed the defendant came vnto him and assaulted him and beate him of his owne wronge and the defendant reioined that all the day and at euerie time of the day by their common accorde they played together without that that he beate him in other maner a 12. R. 2. BarrÌ„ 244. And so in a repleuin of his beastes wrongfully taken the first day of August the defendant auowed because the plaintife helde the lande c. of him by homage and fealtie and suit at his Court at such a place and because he was summoned to bee at his Court the fifth day of the said moneth and yeare and did not come he was amerced and for the sayd amerciament hee tooke the beastes the twenteth day of August without that that he tooke them the first day of August and it was sayd by Markeham that this was no plea for if you toke theÌ„ at an other day before the presentment it is wrongful wherefore you ought to say without that that you tooke the beastes before the twentith day but issue was in this case taken without that he tooke them the first day of August b 20. H. 6. 40. whereupon Master Fitzherbert noteth that the day in a writte of Trespasse or Repleuin is not trauersable but where the speciall matter doth require it c Fitz. Repl. 7. and this he seemeth to ground vpon 2. H. 4. likewise in an action of trespasse for the taking of goods the 8. day of Aprill the defendant said that the plaintife was possessed of them as his proper goods and chattels and solde them to such a one who left them in the custodie of the plaintife and after he solde them to the defendant wherefore he tooke them at the time time supposed to which the plaintife replyed that he was possessed of them vntil the defendant took them the 8. day of April as before hath bin alleaged sans ceo that the other solde them to the defendant before that day and hereupon they were at issue d 2. E. 4. 16. Nomomas Well let this matter passe what say you to the multitude of wordes vsed in the description of the wrong is that the tollerable in your Law Anglonomoph Surely it is conuenient that the 12 Anglo Excuseth and defendeth the abundance of words in declarations and libels qualitie of euery thing should be apparanted by termes of efficacie it is better to haue a declaration too copious then carion-leane neither is any thing more plausible to a good vnderstanding then that words be ponderous and emphaticall where the matter seemeth to bleed wherefore Virgill in describing the loftie pace of the lusty and couragious horses maketh his verse after a sort to gallop and doth in liuely termes as
and with her the apparell i 11. H. 4. 31. Br. Trespas 93. and as the father may haue this remedie for his sonne heire apparant so may the mother likewise if shee be an inheritrix k 30. E. 3 Brief 300. so that I meruaile at M. Catesbies opinion 9. E. 4. that this writte lieth not for the wife l 9. E. 4. 53. Nomomath I will require no more at your hands Anglonomoph of this matter now I pray you Codicgnostes resolue me in this whether wheÌ„ any mans beasts do any hurt vnto an other maÌ„ if this be not done by the owners acte default or procurement shall the maister make good the dammage susteined by such wrong Codicgn Surely brute beastes because they 1. How the owner shal be punished by the Ciuill law for a trespasse done by his beasts want vnderstanding and reason cannot be said properly to bind their owner noxaliter so that the fault should be accompted his for any rauin hurt or dammage whatsoeuer neither do such wrongs bind the owner of the beasts ex quasi delicto for a matter like vnto a wrong yet notwithstanding for preuenting of hurt that may in such sort happeÌ„ the law doth prouide that if the owner wil not voluntarily yeeld vp the beast as a recompence to him that is endaÌ„maged he must reÌ„der the daÌ„mages or els by the authoritie of the iudge be awarded compelled to yeeld vp the beast m L. 1. ff si quadrup paup fec dic and therfore if any man do keepe or nourish a Mastife or Boare or Foxe or Beare or Lion or Wolfe or some like beast which doth hurt or damnifie an other maÌ„ he that receiueth the hurt shall recouer daÌ„mages against the owner of the beast n §. Caeterùm Instit si quadru pauperieÌ„ fecisse dicatur but if such a beast do escape away froÌ„ me 2. In what case he shall not be punished though his beasts do hurt to an other man or goeth so farre from my pasture or warde that I cannot by pursuing recouer it neither doe I know whether it is fledde and so being escaped from me it doe hurt an other man in this case I am not to susteyne any dammage because in this case I am free from fault for the beast by such escape ceaseth to be mine and may become his that shall take or seise or kill it o d. l. 1. §. in bestijs §. Caeterù◠versic Denique si vrsus Anglonomoph To this our Lawe agreeth for we haue a writ of Trespasse which saith Quare vi armis centum oues ipsius A. cum quibusdam canibus fugauit canes illos ad mordendum oues praedictas intantùm incitando quòd per fugationem illam morsus canum praedictorum oues praedictae multiplititer deterioratae fuerunt magna pars ouium illarum faetus abortiuos fecit c. per quod 3. That by the Common law a man shal be punished for a trespasse done by his beasts c. p Fitzh N. B. 89. L. But if a Dogge doe kill or hurte any mans beastes the Maister being ignorant of his mischieuous property he is not punishable q 28. H. 8. 25. Dy. 29. Dy. wherby I gather that if hee know of his propertie though he do not set on his dogge or mainteine him to doe hurt to others hee shall be punished by action of trespasse and if a man doe driue his beastes thorough the Queenes highe way to which way my land that is sowne with corne is adioining and the beasts doe enter spoile my corne the owner shall bee punished for this though hee did driue them out presently or earnestly endeuour to chase them out of the corne r 10. E. 4. 7. so if a man chase his beastes in the highe way and they doe escape into land which is not inclosed ond the owner doth freshly pursue them and chaseth them out yet this is no good plea in barre without shewing that the tenant of the lande and all those whose estate hee hath in the lande haue vsed to inclose the said land toward the high way Å¿ 15. H. 7. 17. Nomomath I craue no more of this matter now I would haue you to transferre your inuentioÌ„ to the discourse of other offences against the peace which I doe thus dispose and distribute to your handling because all offences against the peace are either in an inferior degree as these whereof ye haue lastly spoken or in a middle degree as vnlawfull assemblies riots routes and forcible entres or in a higher degree and they be of three sortes namely such as be committed against the dignitie of man as treason and rebellion or against the life of man as murder manslaughter and homicide by chaunce or against the good estate of man as thefte burglarie and robberie I would therefore haue you first to begin to treate of vnlawfull assemblies riots c. and then to goe on with the rest accordinglie as I haue set them downe Codignostes Canonologus Anglonomophylax we are willing to pleasure you in anie thing that we can and as you propose doubtes of euerie of these titles seuerallie we will endeuour to satisfie and resolue you to our power The twelfth Dialogue of vnlawfull assemblies riots routes and forcible entries NOmomath Tell me Codicgnostes what 1. Diuision doe you take to be publique force in your Lawe Codignostes When an vnlawfull assembly is mette together in the highe streete 1. The description of publike force by the Ciuill law or in the open sight of men to offer abuse hurte or iniurie to a mans person or to take away his goods from him by violence and strength of hand a L. armatos ff ad L Iul de vi pub Anglonomophylax That likewise is publique 2. That in the matter of publike force the Common law agreeth with the ciuill force by our law of priuate force done to a maÌ„s person wee haue spoken before which if it be publickly done it turneth to be publicke force but as to the taking away of goods by open force if a man doe disseisie an other and when hee hath entred hee doth carie away the chattels of the disseisie this is in our Lawe a disseisin 3. A differeÌ„ce by the Common lawe betwixt publike force and opâ—n force with force and armes and the disseisor shall be punished by imprisonment b 11. H. 4. 16. Westminst 1. c. 37. 4. H. 4. c. 8. and a man disselsed an other but not with force at his first entre and it was found by assise that incontinent after his first entre he cut downe trees and this was awarded a disseisin with force and armes c 30. Assis 50. Assis 301. Nomomath What punishment haue they by your lawes which commit such force Codicgn The punishment of this fault in our 4. The punishment of publike force by the Ciuil law law is
sodainelie without any defence on the part of the other malice expressed when it is knowne that there is malice betwixt the parties a Crompt Iust P. 19. I wil illustrate both these seuerall kindes with seuerall cases beginning first with malice implyed A Gaoler had malice to a Recusant who was in his warde because he suspected that he was too familiar with his wife and after the prisoner purchased to goe out of prison as hee went before for his disporte and the Gaoler suddenly stroke the prisoner vpon the head so that he fel to the ground whereupon he died and this was adiudged murder at the Assises at Chester b Cromp. Iu. P. 20. And if a theefe rob an other man and kil him this is murder though he did neuer see the man slaine before though hee had neuer inueterate malice against him yet hee had malice before the murder to this intent that hee woulde rather kill him then bee disappointed of his purpose c Com. 474. Two fought together of malice forethought hauing purpose to kill and a straunger came to part them and one of them killed him this was felony in them both and they both were executed because they had an intent the one of them to kill the other and this acte came originally of that d 22. E. 3. Coâ—onÌ„ 262. Dyer 120. And if the Iustices of Peace with the Sherife come to suppresse riotours and one which attendeth vppon them is slaine by one of the riotors this is murder in him in all the other riotors which are present e Cromp. Iu. P. 21. And if a man without quarrell offered doe kill one of the standers by this is murder f Crompt Iu. P. 22. proceeding from implyed malice g Lam. Eâ—renarch 255. Thus farre of malice implyed malice expressed may more easily appeare vnto you as if a man bring an appeale of felony against B. and the said B. meeteth the plaintife and they quarrell together vpon the vsing of the said appeale and fight and B. killeth the plaintife this seemeth to be murder h Cromp. Iu. P. 21. and if a man be attainted of murder hee shall suffer paine of death and 11 The punishment of murder by the common law shall sorfaite landes and goods and chattels but manslaughter as it is in facte lesse heinous so it is 12 The discription of manslaughter by the common law in punishment lesse greeuous for it is then committed when two or more fight together vpon the suddaine without malice precedent and the one of them killeth the other in such case 13 The punishment of manslaughter by the common law the offendour shall haue his Clergie i Cromp. I. P. 23. Com. 261. but shall forfaite his goods and if two doe fight together without malice precedent and after diuerse blowes giuen the one of them flyeth a greate space from the other and the other goeth into a house verie neare for a weapon and pursueth incontinent and killeth him that flyeth this is but manslaughter because it was done in a continuing fury k Crompt Iust P. 23. and two did fight together vppon the sodaine without malice preconceiued and one commeth to part them and the one of them which fighteth killeth him this is manslaughter in him because the fighting was an vnlawfull acte l 22. Ass CoronÌ„ 180. but if they had fought together Ex malitia precogitata and the one of them had slaine him this had beene felonie in them both m 22. E. 3. Coro 266. StaÌ„f 16 Manslaughter se defendendo is where 14 MaÌ„slaughter se defendendo by the common law two fight together vpon the sodaine and before a mortall wounde on either partie the one flyeth vnto the wall or to some other place beyond which he cannot passe for the safegard of his life and the other pursueth him and hee which flyeth killeth him that pursueth this is manslaughter in his owne defence n 3. E. 3. Coro 284. 286. and it is not materiall in this case which of them begunne the affray or which of them gaue the first stroke o Stamf. 15. and the offendor in this case shall forfeit his goods p 4. H. 7. 2. 43. Assis pl. 3. 21. E. 3. 17. homicide by misaduenture is no other 16. Homicide by misaduenture then hath bene described by Codign for he hath recited out of the Ciuill law almost all the cases which wee read in our lawbookes and his distinction likewise is of force and effect with vs for if a man do an vnlawfull acte and any misaduenture 17. The punishmeÌ„t of it do happen vpon it by which a man is slaine this is felonie though it bee not murder and for euery homicide by mischance a man shal forfeit his goods q 22. Assis cor 180. Stamf. li. 1. c. 8. likewise hee that is a homicide 18. Homicide of a mans selfe and the punishment of it of himselfe is such as hath bene before discouered by Codicgnostes and he by our Law shall forfait his goods r Fitz. Coron 301. 362. 426. Nomomath I pray you let mee know this Codicgnostes 2. Diuision whether he that counsaileth commandeth abetteth or assisteth a murderer ought by yuor law to be takeÌ„ and censured as a murderer Codicgn Yes verily for homicide is either 1. Homicide is shewed to be twofold in the Ciuill law consiliâ— and operis consilij or operis and therefore if a man counsaile one to doe a murder who if the counsaile had not bene would haue done it he that executeth the counsaile and he that giueth the counsaile are both in the eye of Lawe murderers Å¿ c. sicut dignum 1. §. qui verò de homicid Extra cap. fin eo tit lib. 6. l. qui seruo ff de furt c. Nullus ex consilio de regal iur in sexto But when it is done by commaundement by persons executing the coÌ„mandement which otherwise would not haue done it then the commaunder onely is accompted guiltie of homicide t l. 3. §. item versi item qui author ff ad leg Corn. de sicaâ— cap. fi de homici lib. 6. l. In hoc iudicio ff de seru corrupt and if one lende one a sworde to kill an other man or himselfe he is guiltie of homicide u l. nihil interest ff ad leg Corn. de sicar l. 15. qui opem ff de furt in §. interdum quoque Iusti de oblig quae ex quas delic nascuntur if a maÌ„ be cooperant in the act he is a principal offendor x Gloss c. sicut l. dignum §. illi vero verb mors de Homic extra Anglonomoph By our Law the counsailor coÌ„mandor 2. By the CoÌ„mon lawe the counsailor and assistor in murder are accoÌ„pted principall offendors or assistor are without any such difference or limitation as you haue made guiltie of
absolutely prohibited by the ciuill law to make any contract infants are disabled with a certaine qualification 4. That by the common law priors vnder the obedience of a soueraigne and which were datife and remouerable could not implead or be impleaded without their soueraigne vnlesse it were by speciall custome 5. The same law was of the Knights of S. Iohn of Ierusalem 6. The infants contract for his meate apparrell and necessaries is good if he be of the age of fourteene yeeres 7. That which the infant doth without actuall liuerie may be auoided by action with out entrie or seisure but that which he doth by actuall liuerie cannot be auoided without entrie or seisure The 2. Diuision 1. Whether the cōtract of the seruant shal be accounted in law the cōtract of the master 2. That according to the cōmon law the master shall be bound by the contract of a knowne seruant if the thing marchandised be come to his vse and he shal be bound by the contract of his factor though the goods neuer come to his possession 3. The act of a mans attorney or his generall receiuer doth not bind the master without speciall warrant The 3. Diuision 1. Whether the wifes contract made in the behalfe of the husband will binde the husband 2. That by the common law an action of debt brought vpon a contract made by the wife for the behoofe of the husband must be brought onely against the husband without naming the wife 3. That by the ciuill lawe the husband is in no sort to be charged by the contract of his wife The 4. Diuision 1. How contractes may stand or fall by their materiall causes o◠the defect of them The 5. Diuision 1. Some contracts are ordered by the lawe of nations 2. An Embassador may according to the Ciuill lawe be impleaded by the lawe of nations for a contract made whilest hee is Embassadour The 6. Diuision 1. Whether contracts made with Pirates or robbers in the high way be good in law 2. That Pirates and robbers are not to haue aduantage of lawe in matters of contract 3. That D. Hotoman erreth greatly in maintaining that pirates and robbers may lawfully contract The 7. Diuision 1. That by the Common lawe a consideration is the proper materiall cause of a contract and that it may be expressed or implied 2. That a contract is not good without money paid in hand or a certaine day limited for the paiment The 8. Diuision 1. Whether the defect of forme doe destroie the contract 2. That solemnitie and concurrence of circumstances is required in contractes by the Ciuill lawe 3. That matrimoniall contractes if there be no assumpsit in them ar to be deuided by the ecclesiasticall law if there be an assumpsit by the Common lawe The diuisions and principall contents of the second Dialogue of giftes and graunts The first Diuision 1. WHat things may be giuen or granted 1. That all things that lie in commerce and may be receiued may be giuen 3. That things ecclesiasticall though they be not consecrate cannot regularly be granted 4. That if an Abbott did alien landes giuen in Frankalmoigne to his house the donor might haue a writ contra formam collationis The 2. Diuision 1. The diuerse kindes of giftes some being free and some compensatorie 2. What is wrought by the Queenes grant ex mero motu 3. What is wrought by her Maiesties graunt by of informamur c. 4. Whether vpon a false considelation expressed an vse shal be raised in a common persons case 5. That a consideration may be auerred which is not repugnant to the vse expressed 6. That an vse may be altered by a consideration not valuable The 3. Diuision 1. In what cases graunts shall be taken most beneficially for the grauntee 2. That a graunt noncertaine must be taken most strongly against the grauntor 3. That a graunt may be good in part and for parcell not 4. How the Queenes graunts and licences shall be construed and interpreted 5. A graunt is not to be fauored contrarie to the manifest sense of the words The 4. Diuision 1. That by the Common lawe a graunt that is not good at the first may not be made good by matter ex post facto nor by the Ciuill lawe The 5. Diuision 1. Whether a tenaunt at will may graunt ouer his estate 2. That the estate of the tenaunt at will is in manner no estate The Diuisions and principall contentes of the third Dialogue of bargaines and sales The first Diuision 1. WHat things are forbidden to be solde 2. That by the Cannon law things consecrate and religious may not be solde 3. That poysons by the Ciuill law are forbidden to be solde 3. That there be some poysons which be medicinable and profitable and the prohibition extendeth not to these 5. That some poisons are medicinable alone some with the mixture of other things 6. What things are forbidden to be solde by the Common lawe The 2. Diuision 1. Where a thing was not solde at the first and where it was solde but the sale was defeasible vpon condition 2. A difference betwixt a perfit sale and a sale to be perfited vpon a condition performed 3. That a prouiso though it be placed amongest couenants may defeat a bargaine and sale 4. That where a bargaine and sale is perfit but defeasible vpon condition the vendee shal take the profits till the condition be performed The 3. Diuision 1. When no day is limited for the payment of a summe of money what time the law will require 2. In such case the partie charged with the payment shall by the ciuill lawe haue threescore daies 3. That by the common law when no day is limited the money is presently due yet in some cases by some authoritie the discretion of the Iudges is to limit a time 4. The definition of time according to the opinion of Aristotle The 4. Diuision 1. That a bargaine and sale may be auoyded by the defect of some substantiall thing belonging to the act 2. That fraud and deceit in the contract by the ciuill law doth defeate the contract 3. A difference where the default of the thing sold is Latens or Patens 4. That whether the default be Latens or Patens if the bargainor doe warrant the thing sold to be without fault he is bound by the warrantie by the ciuill law 5. That bargaines and sales matters in writing and obligatorie may be auoyded by alleaging that they were made or done per minas or by duresse 6. That by the common lawe a warrantie made vpon a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine bee concluded 7. That the warranting of a thing which is euident to the sense is no cause to bring a writ of disceit by the common lawe The 5. Diuision 1. That by the common lawe the bargaine and sale or the grant of the profits of land is the grant of the
be vncertaine but yet good in law because it may by speciall meane be reduced to certaintie The 4. Diuision 1. That by the Ciuill law Ius accerscendi taketh effect in legacies 2. Whether when the sixt part of a thing is deuised the heire or executor is compellable by the ciuil law to diuide it or to render in value 3. That by the common lawe sometime there may be a seuerance of the thing deuised sometimes of the profits or of the aduantage of the thing The 5. Diuision 1. That if a man deuise a plot of ground whereupon a house is built the house also passeth 2. A house built vpon land entailed after the gift shall be recouered in a Formedon The 6. Diuision 1. That by the Ciuill lawe when an especialtie contayning a debt is deuised to one the debt it selfe passeth 2. Maister Parkins his opinion touching the diuising of an Obligation is examined The 7. Diuision 1. That by the Ciuill law the executor is bouÌ„d to make good the thing which perisheth through his default 2. That in some cases the time of performing legacies is left to the discretioÌ„ of the iudges 3. That by the Common law the executors are bound to performe the deuise in conuenient time 4. A diuersitie betwixt an obligee and a deuisee The 8. Diuision 1. That things which are accessorie do passe with their principall 2. That a mine of coale passeth with the land if it be iointly vsed with it otherwise it is if it be seuerally vsed 3. That a womaÌ„ shall be endowed of a mine of coale discouered after the husbands death 4. That words of the Present tense in a deuise may not be extended to the Future tense The 9. Diuision 1. That by the Ciuill law if the deuisee of a tearme die before the deuisor the executor shal haue the tearme 2. By the Common law a diuersitie is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacie executed The 10. Diuision 1. That by the Ciuill law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the testator dwelt 2. That by the Common law and by the statute of 23. H. 8. such deuise is void 3. What is meant by a Church parochiall according to Rolfes opinion The 11. Diuision 1. That by the Ciuill law where two testaments containe in them seuerall summes that which conteyneâ—h the lesser shall stand but by the Common law the latter testament The 12. Diuision 1. That by the Ciuill law if an oxe be deuised to one he die the skinne is not due to the deuisee 2. That by the CoÌ„mon law it seemeth to be due otherwise it had bene if there had bene an exception of the hyde The 13. Diuision 1. That if the reconusor deuise al his goods to the reconusee yet he shal haue execution of the land 2. If the obligee make the obligor his executor the dette is extinct The 14. Diuision 1. That by the Ciuill lawe if a man ordeyne by his will that his daughters shal marie by the appointmeÌ„t of Titius that Titius his executor may dispose of this mariage 2. that by the CoÌ„moÌ„ law where a confidence is reposed in certaine persons it is incommunicable to others The 15. Diuision 1. That by the Ciuill law deuises are coÌ„struâ—d for the most parte most fauorably for the deuisee 2. That the CoÌ„mon lawe so fauoreth deuises that it vpholdeth equitie the corespondencie of reason 3. That the CoÌ„mon law frustrateth these deuises which are repugnaÌ„t to Law The 16. Diuision 1. That by the Canon law if land be deuised to a woman whilest she shall liue chastly her mariage is not implicatiuely and absolutely prohibited 2. That the Ciuil law and Common law do fauour mariage The 17. Diuision 1. That there is a diuersitie in the Ciuill law where a man maketh his wife vsufructuariaÌ„ of his goods where he deuiseth them to her 2 That by the Common law the administration of the goods and chattels of the testator doth apperteine onely to the executor The 18. Diuision 1. That by the Ciuil law the husband may demand a legacie due to the wife without naming the wife 2. That in the Common law there is a diuersitie as touching bringing of actions in the wifes name where the matter of the writ is reall where it is personall 3. That where the wrong doth immediately coÌ„cerne the person of the wife the wife of necessitie must be named The 19. Diuision 1. That by the Ciuill law when maintenance is deuised to one till ripenes of age is intended of full age 2. The diuersitie of ages by the Common law The 20. Diuision 1. That by the ciuill law wheÌ„ a maÌ„sion house that is in one parish is deuised the appurtenaÌ„ces in another parish do passe by the deuise 2. That by the Common law land cannot be appurtenant to land The Diuisions and principall contents of the eight Dialogue of Borowing and Lending The first Diuision 1. THe difference in the Ciuill law betwixt mutuum and commodatum The 2. Diuision 1. That particular persons corporatioÌ„s churches parochial may be bound by contract of borowing and lending by the Ciuill law 2. That by the Common law Abbots Priors and such religious persons might charge their house by their contract and by recognisans The 3. Diuision 1. Two kinds of borowing leÌ„ding by the Ciuill law naturall ciuil 2. That the CoÌ„mon law acknowledgeth this difference in substance effect The 4. Diuision 1. An vsurous leÌ„ding or lending of monie for interest is by way of obiectioÌ„ mainteined 2. Aquinas his authoritie is vrged for proofe hereof 3. The obiection is answered by the Canonist 4. Aquinas his authoritie disproued 5. The Ciuill law in condeÌ„ning vsury agreeth with the Canon 6. The Common law in this agreeth with the other lawes The 5. Diuision 1. A diuersitie in the Ciuill law when monie is teÌ„dered at the day of paymeÌ„t is after embased when it is tendered after 2. To the aforesaid diuersitie the Common law seemeth to agree The 6. Diuision 1. That by the bond of the surety the principall dettor is not discharged by the Ciuill law 2. That by the CoÌ„mon law as well the one as the other may be sued The Diuisions and principall contents of the ninth Dialogue of the baylement and deliuery of goods and chattels Hhe first Diuision 1. THe definition of depositum by the Ciuill law 2. The nature course of it at the Common law 3. A diuersitie where a writte of accompt of detinue and of trespasse are to be brought concerning things deliuered at the Common law The 2. Diuision 1. That a thing cannot be said to be a deposituÌ„ at the Ciuill law except it be deliuered to the partie 2. That by the Canon law the feoffee of the land is to haue the charters when the feoffement
Seuenth Dialogue Of Deuises and Legacies NOmomathes First I pray you tell 1. Diuision me whether this manner and custome of disposing by a mans last will and Testament hath bene in auncient time practised or no. Codicgn It is very auncient for it was one 1. The antiquity of willes of the Lawes of the twelfe Tables Vti legassit suae rei ita ius esto a L. verbis legis ff de verb. signif But before Solons time it was not lawfull for a man to deuise his goods Extra familiam to straungers and therefore when Solon did by Lawe established graunt this libertie to the Athenians it was plausibly receiued of them and accompted the best of all his Lawes b Plutarch in Solon But Plato in his writings straungely 2. Plato his exception against Solon his Law concerning willes howsoeuer diuinely conceited dispraiseth this Lawe and calleth the makers of it childish because by that meane a window is opened to deceite and to flatterie for hee saith that when men are at point of death they beginne to dote and their vnderstanding is broken and therefore it is very likely that euery man dying will dispose and appoint many thinges contrarie to the Lawe to the vsuall practise of them that liue to the example of their ancestors c Plat. lib. 11. de legib This sentence of Plato Iustinian an Emperour exquisitely busied in the compiling of Lawes because hee had rather erre with Plato then yeelde vnto the truth with Solon alloweth and frameth his Lawes accordingly d Authent de trient sem in l. Paulus ad Treb. and S. Ierom writeth that Solons Lawe was repealed in his time because Priestes which were commonly employed in the making of willes did greedily and odiously drawe to themselfes the inheritance of the dead dd L. 1. C. de sacr Eccles and an other reason may be added in defence of Platoes opinion because men in daunger of death are for the most parte too prodigall which Aristotle noted e Diogen Laerti in vit Aristotel and Tacitus pronounceth more peremptorily speaking of Otho f Tacit. lib. 2. lustor Pecunias distributt parce nec tanquam periturus hauing affirmed before Difficilius est temperare qua te non putes diu vsurum But Solons 3. Solons lawe is mainteined and defended against Plato Lawe leaneth to a more stable roote then that it may bee shaken by the weake blaste of such colourable reprehensions and Solon did make exceptions to his Lawe for hee made these testaments voide which were made by any in the extremitie of his disease or which a man was enforced to make by imprisonment or torment or by the perswasions and flatterie of his wife But surely the making of willes is necessarie g L. 3. D. qui test fa. pos and without it men can not effect the good education and bringing vp of their children nor be able of their proper goodes chattels and other mooueable substaunce to discharge their dettes and after their degrees set foorth and aduance their children and posteritie h 32. H. 8. c. 1. Willes 2. nor leaue their wife 's such comfortable support as in conscience they ought Nomomathes Lette mee know I pray you 2. Diuision what persons may be legataries or deuisees and who not Codicgnostes Euerie one that may bee made 1. Such as bee vncapable of inheritances goods may not be deuisees heires or executors by the Ciuill law 2. A difference in the Ciuill law betwixt the making of a deuisee and the making of an executor heire or executor may be a legatarie or deuisee but to thē which are vncapable by Law of inheritances or goods no deuise can be made neither can they be made heires or executors i C. de haered instit l. 1. but there is a difference betwixt the making of a deuisee and the making of an heire or executor because he that is to be made heire or executor must bee an able person in Lawe as well at the time of the making of the Testament as at the death of the testator and the vndertaking of the executorship or entre into the inheritaunce k ff de haered Insti l. si alienū §. de extraneis Iust de haer qual differ §. in extraneis but as to the deuisee it is sufficient if he be capable at the time of the death of the testator l ff de donat causa mort l. in mortis de condit demon l. eū qui. ff de iur fisc l. non intelligitur §. quando Anglonom By our Law to al such persons to whom a graunt may be made a deuise may bee 3. That by the Common law all persons to whom a graūt may be made a deuise may be made vnlesse it otherwise happen in some fewe cases made vnlesse it otherwise happē in some few cases and the deuise ought to be good effectual at the time of the death of the deuisor as if a mā seised of landes deuisable doe deuise the same to the fellowes of a colledge or the Priestes of a Chauntery and there is no such Colledge nor Chauntery at the time of the death of the deuisor after such a colledge or chauntery is made yet the deuise is void because deuises are purchases and when a man taketh lands or tenements 4. That the deuisee must be a person capable of the thing deuised by purchase hee must be an able person to take when it falleth to him by the purchase m Park 97. Sect. 505. 9. H. 6. 23. 2. Eliza. 119. Pl. 18. Dy. 13. Eli. 303. Pl. 49. Dy. 300. Pl. 39. 5. E. 4. 6. p Billing and the Cōminaltie of a guild which is not incorporate by the kings charter to purchase lands is not capable of lands and if a mā seised of lands deuiseable in fee do deuise the same land to A. for life to find a Chapleine chaunting in the Church of Dale the remainder to two of the best men of the Guilde or fraternitie of Whittawers in Londō to find a chaplaine c. if the Whittawers be not incorporate by the Kings charte◠enabled to purchase this remainder is void n Park 98. sect 510. 49. E. 3. 3. and if a rent be granted for life to I. S. the remainder in fee to him that shall first come to Powles the next daie in the morning this remainder is good though it be vpon condition if I. S. die not before the next daie and if one come to Powles the next daie in the morning if he which commeth thither then be not a person disabled to take by the graunt o 30. Assis pl. 47. Perk. 13. Sect. 56. so that whereas you say that by your Lawe it is 5. That by the Common law the deuisee ought to be capable at the time of the death of the deuisor sufficient