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
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
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
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
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.
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
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
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
a good deuise f 21. R. 2. Deuis 27. but now such a deuise is made voide by the statute of 23. H. 8. cap. 10. but before that statute it appeareth by the booke of 37. H. 6. that vpon a gift made to the parishioners 2 That by the common law and by the statute of 23. H. 8. such a deuise is void of such a parish without naming them the Churchwardens might haue an action g 37. H. 6. 3â— but theÌ„ the gift must haue bin of a personal thing for of inheritance of land they cannot take to the vse of the Church h 12. H. 7. 27. but if a man in auncient time had giuen his landes or his goods deo Ecclesiae sanct ' Petr ' Westimonast ' this had ben a good deuise because the Church is not the house nor the walles but the entier spiritual house that is the Abbot and the Couent and because they may take by such a gift it is good but if the Abbot were dead at the time of the gift it is not good be cause the CoueÌ„t is not persona capax but a church 3 What is meant by a Church parochiall according to Rolfes opinion parochiall by Rolfes opinion as to the endowement of it with lande cannot otherwise be intended but a house made of stones walles and roofe which cannot take by any gift or feoffement and so it is of a Church conuentual which lacketh a soueraigne i 8. H. 5. 4. per Babi Rolfe Nomom Suppose that two testaments be exhibited 11. Diuision to the ordinary which were made in one day conteining seuerall summes to the same deuisees bequethed whether shall they both be approued and the legacies of both stand good Codicgn These legacies onely shal stand good 1 That by the ciuil law where two testameÌ„ts conteigne in them seueral summes that which conteineth the lessee shal staÌ„d but by the coÌ„mon law the later which do conteigne in them a lesser summe k l. Sempronius Procul ff de legat 2. Anglonomoph In our Law we haue a case that if a man make a testament and in it he maketh one onely man his executor and then he maketh an other testament and in it he maketh him and a stranger executors and the first testament is proued that onely shall stande l 2. H. 5. 8. but by other authoritie the later onely shall take place what summes soeuer they conteigne ll 4. H. 7. 13. Nomomat Say that an oxe is deuised to one and 13. Diuision the oxe dyeth without any default in the executor whether is the skinne or hide of the oxe due to the deuisee or no Codicgn By our Lawe it is not due m l. mortuo boue ff de legat 2. for the 1 That by the Ciuil law if an oxe be deuised and he dye the skin is not due to the deuisee thing deuised that is the oxe did perish and was non ens before the skinne were taken off and the skin was not taken from an oxe but from a carcasse Anglonomoph It seemeth in that case that the 2 That by the common law it semeth to be due otherwise it should be if there had bin an exception of the hide deuisee shall haue the hide for it is parcel of the oxe and the oxe was an entier thing but if hee had giuen the oxe excepting the hide that perhaps would amount to a seueraÌ„ce in law so that the oxe liuing should haue belonged to the deuisee but being killed the flesh should belong to the deuisee the hide to the executor of the deuisor and if a man make a lease of land excepting the trees which grow vpon the lande the trees are seuered in Law for hee hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition n 20. H. 6. 22. Nomomat Put case that I. S. doe borow a C. 13. Diuision li. of I. N. and for the sure repayment thereof he bindeth all his landes and goods by recognisans of statute Marchant to the said I. N. after he deuiseth all his landes to the recognisee and dyeth the recognisans is forfaited the recognisee bringeth an action of dette and recouereth against the executors and hath execution of the goods of the testator by Fierifacias and then he claimeth the land by vertue of the deuise whether is his claime good or no 1 That if the recognisor deuise all his goods to the reâ—onusee yet he shall haue execution of the land Codicgn I thinke he may claime the lande also if it may not be prooued by circumstances or directly that the land was deuised vnto him in satisfaction of the debt and vpon condition implyed that he should not alter the propertie of the goods by execution o l. creditoreÌ„ ff de legat 2. Anglonomoph I doe not perceiue any repugnancie in our Lawe to that which you haue saide Nomomath If he had made his creditour his executour in this case what woulde then haue followed Anglonomoph Then the debt had bin extinct p 11. H. 4. pl. 31. 2 That if the obligee make the obligor his executor the det is extinct for if two be bound to one in a certaine summe of money and the obligee maketh one of them his executor this is a release in law of the bond and debt to them both q 21. E. 4. 81. so if one make his dettor and an other his executours and die in this case if the executor who was not indebted suruiue he shall not haue an action of debt against the executour of his coexecutour although the partie indebted did not administer in his life time for the action was once extinguished and determined for no action can be brought but in the name of them both r 20. E. 4. 17. 21. E. 4. 3. 21. H. 7. 31. per Fineux but if one that is indebted make his creditour and an other his executours the creditour may haue an action if he doe not administer Å¿ 8. E. 4. 3. per Brian but when the testator is indebted to me and maketh me his executor I may deteigne the goods for my bebt so that it seemeth that though the action be extinct in regarde of the testatour yet the debt is still in esse in respect of straungers t 7. H. 4. 18. 27 H. 6. en Scire fac ' 7. Eliz. ComÌ„ Greysbrookes case 275. Codicgn When the creditour maketh the debtor his executor by the executorship the debt is confounded and because of impossibilitie in Lawe forsomuch as the executor may not bring an action of debt against himselfe being one and the same person the obligation therefore is by secreate act of Law disanulled u Philip. Deci ad reg iur Nomom Now I will put you a case which is
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
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.
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