the inheritaunce of many in this realme as well of spirituall as temporall / they be withoute payne in the lawe of the realme excepte suche recoueries as by the commoÌ course of the law be voydable in the lawe by reason of some vse / or of some other speciall matter / but what payne that is I wyll nat temerously iuge / but committe it to the goodnes of our lorde whose iugementes be very depe and profounde / nor I wyll nat fully afferme that they that haue landes by suche recoueries oughte to be compelled to restitucion / but this semeth to me to be good councell that euery maÌ hereafter holde that is certayne leue that is vncertaiÌ that is that he kepe hym self from suche recoueries and than he shal be fre from all sertrulousnes of conscience / in that behalf ¶ Student It semeth that in this question thou ponderest greatly the sayde statute of WestmÌ the .ii. that thoughe it be but onely a lawe made by maÌ / that yet for as moche as it is nat agaynst the lawe of reason / nor the lawe of god / thou thynkest that it muste be holden in conscience / and ouer that as it semeth thou arte somwhat in double whether those recoueries be any barre to the heyre in the tayle by the lawe of the realme onles that he haue in value in dede vpon the voucher / that thou wilt thereupoÌ take a respite or thou shewe thy full mynde therein / in lykewyse thou thiÌkest as I take it that those recoueries can nat be brought in to a custome but that the longer that they be suffred to continue if they be nat good by the lawe the greater is the offence agaynst god And therfore thou ponderest litle that custome / but yet thou agreest that it is good to spare the multitude of them that be paste leste a subuercion of the inheritaunce of many of thê realme might folowe great stryfe variaunce also if they shulde be adnulled for the tyme past except there be any other especiall cause to auoyde them by the lawe as thou haste touched in thy laste reason / but thou thynkest that it were good that from hensforth suche recoueryes shuld be clerely prohibit nat be suffred to be had in vse as they haue ben byfore thou couÌceyllest all men therfore to refrayne them selfe from suche recoueries hereafter ¶ Doctour Thou takest well that I haue sayde accordynge as I haue mente it ¶ StudeÌt Now I pray the syth I haue harde thy question of these recoueries accordynge to thy desyre that thou woldest answere me to some perticuler questioÌs coÌcernynge tayled landes wherof thou hast at this tyme gyuen vs occasion to speke ¶ Doctoure shewe me those questions I wyll shewe the my mynde therein with good wyll â´ â The fyrste question of the Student concernynge tayled landes The .xxvii. Chapitre Student If a dissesour make a gyfte in the tayle to Iohan at style IohaÌ at style for the redemyng of the title of the dissesye agreeth with hym that he shall haue a certayne rent out of the same lande to him to his heyres / for the suertye of that rent it is diuised that the dissesye shall release his right in the lande cÌ that suche a recouery as we haue spokeÌ of byfore shal be had agaynste the sayd Iohan at style to the vse of the payment of the sayde rente and of the former tayle whether standeth that recouery well with coÌscience or nat as thou thynkest ¶ Docto r I suppose it dothe for it is made for the strength and suertye of the tayle whiche the dissesye might haue clerely defeated auoyded if he wolde / therefore as I thinke if the sayde Iohan at style had graunted to the dissesye onely by his dede a certayne rente for the releasinge of his title that graunte shulde haue bounde the heyres in the tayle for euer And than if the dissesye for his more suertye wyll haue suche a recouerie a byfore appereth it semeth that that recouerye standeth with good conscience ¶ Student It semeth that thy oppynion is righte good in this matter And so it appereth that with a reasonable cause some particuler recoueries maye stande bothe with lawe and coÌscience to barre a tayle â The seconde question of the Student concernynge tayled landes ⸫ The .xxviii. Chapitre STudent I a tenaunt in tayle suffre a recouery agaynste hym of the landes entayled to the entent that the recouerers shall stande seased therof to the vse of a certayne woman whome he enteÌdeth to take to his wyfe / for terme of her lyfe / and after to the vse of the fyrste tayle and after he maryeth the same woman / whether standeth that recouery with conscience though other recoueries vpon bargaynes and sales dyd nat ¶ Doctoure It semeth yes / for though the statute be / that they to whome the tenementes be so gyueÌ shulde nat haue power to aliene / but that the landes after theyr deth shulde remayne to theyr issues or reuert to the donours if the issues fayled yet if he to whome the landes were so gyuen take a wyfe dyeth seased without heyre of his body / and the donour entre the woman shall recouer agaynste hym the thyrde parte to holde in the name of her dowre for terme of her lyfe though the tayle be determined / the same law is of tenaÌt by the curtesy that is to say of hiÌ that happeneth to marye one that is an eÌheritrix of the laÌde entayled they haue issue the wyfe dyeth the issue dyeth / he shal holde the laÌdes for terme of his lyfe as tenaÌt by the curtesye / natwithstanding the wordes of the statute whiche say that after the deth of the tenaunt in tayle without issue the landes shall reuert to the donour / I thynke the cause is bycause the intente of that statute shall nat be taken that it inteÌded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / so it semeth that a lyke enteÌt of the statute shal be taken for ioyntours / for els the statute might be somtyme a lettynge of matrymony / it is nat lyke that the statute intended so / therfore it semeth that by the onely deed of the tenaunt in tayle a ioyntour may be made by the intent of the statute / thoughe the wordes of the statute serue nat expressely for it / for many tymes the intent of the letter shal be taken nat the bare letter / as it appereth in the same statute where it is sayd that he to whome the landes be gyuen shall haue no power to alien / yet the same statute is construed that neyther he nor his heyres of his body shal haue no power to alyen / so me thynketh that suche an intent shal be taken here for sauyng of ioyntours ¶ Student trouth it is that somtyme the intent
the waste ¶ StudeÌt ye verely ¶ Doct. And what is the lawe of tenantes for tme of lyfe or for tme of yeres if they do waste ¶ Student They be punysshable of wast by the statute shall yelde treble damagê / but at the comon lawe before that statute they were nat punysshable ¶ Doctour But whether thynkest thou that before that statute they myght haue done waste with conscieÌce bycause they were nat punysshable by the law StudeÌt I thynke nat / for as I take it the doyng of the wast of suche particuler tenantes for terme of lyfe / for terme of yeres / or of tenantes in dower / or by the curtesye is prohibite by the lawe of reason / for it semeth of reason that whan suche leases be made / or that suche tytles in dower or by the curtesy be gyuen by the lawe that there is onely gyueÌ vnto them the annuall êfites of the lande and nat the houses trees the grauel to dygge cary away / wherby the hole êfite of them in the reuercion shulde be taken away for euer And therfore at the comon lawe for waste done by tenant in dower or tenant by the curtesy there was punysshemeÌt ordeyned by the lawe by a êhibicion of waste wherby they shulde haue yelded damages to the value of the waste But agaynst tenant for terme of lyfe or for tme of yeres lay no suche êhibicion / for there was no maxime iÌ the lawe therin agaynst them as there was agaynste the other And I thynke the cause was for as moche as it was iuged a folye in the lessour that made suche a lease for terme of lyfe / or for terme of yeres that at the tyme of the lessee he dyd nat prohibite them that they shulde nat do waste / and sythe he dyd nat prouide no remedye for hym selfe the lawe wolde none êuide But yet I thynke nat that the intent of the lawe was that they myght lawfully with good coÌscieÌce do waste / but agaynst tenantes in dower by the curtesye the lawe prouided remedy for they had theyr tytle vy the lawe Do. And verely me thynketh that this tenant in tayle as to doyng of waste / shuld be lyke to a tenaunt for terme of lyfe / for he shall haue the lande no lenger than for terme of his lyfe no more thaÌ a tenant for terme of lyfe shall / and the waste of this tenant is as great hurte to hym in the reuercion or remayndre / as is the waste of a tenant for terme of lyfe and if he alyene / the donoure shall entre for the forfeyture as he shall vpon the alyenacion of a tenant for terme of lyfe / and if he make defaute in a Precipe ê reddat the donour shal be receyued as he shal be vpon the defaute of a tenant for terme of lyfe / and therfore me thynketh he shal also be punysshable of wast / as tenant for terme of lyfe shall ¶ Student If he alyen the donour shal entre / as thou sayst bycause that alyenacion is to his disheritance / and therfore it is a forfeyture of his estate and that is by an auncient maxime of the lawe that gyueth that forfeyture in that selfe case / and if he make defaute in a PrecÌ ê redd he in the reuercion / as thou sayest shal be receyued / but that is by the statute of West .ii. for at the comon lawe ther was no suche receyt / and as for the statute that gyueth the accion of waste agaynst a tenant for terme of lyfe and for terme of yeres it is a statute penall shall nat be taken by equite / so there is no remedy gyuen agaynste hym / neyther by comon lawe nor by statute / as there is agaynste tenant for terme of lyfe / therfore he is vnpunysshable of waste by the lawe ¶ Doctour And thoughe he be vnpunysshable of waste by the lawe yet neuerthelesse me thynketh he maye nat by conscieÌce do that / that shal be hurtefull to the inheritaunce after his tyme / sythe he hathe the lande but for terme of his lyfe no more than a tenaunte for terme of lyfe may / for than he shulde do as he wolde nat be done to / for thou agreest thy selfe that thoughe a tenaunt for terme of lyfe was nat punysshable of wast before the statute that yet the lawe iuged nat that he myght ryghtfully with good conscieÌce do wast And therfore at this day if a feffement be made to the vse af a man for terme of lyfe / thoughe there lye no accion agaynst hym for waste / yet he offendeth conscience if he do waste as the tenaunte for terme of lyfe dydde afore the statute whan no remedye lay agaynste hym by the lawe ¶ Stud. That is true / but there is great diuersite bytwene this tenant a tenant for terme of lyfe for this tenaunt hath good authorite by the donour to do waste / so hathe nat the tenaunte for terme of lyfe / as it is sayd before For the estate of a tenaunt in tayle after possibilite of yssue extyncte is in this maner Whan landes be gyuen to a man to his wyfe and to the heyres of theyr two bodyes begotten / and after the one of them dyeth without heyres of their bodyes begotten / than he or she that ouerlyueth / is called tenant in tayle after possibilite of yssue extyncte / bycause there can neuer by no possibilite be any heyre that may inheryte by force of that gyfte And thus it apereth that the donees at the tyme of the gyfte receyued of the donour estate of enheritance / which by possibilite might haue continued for euer / wherby they had power to cut downe trees to do all thiÌge that is wast / as tenant iÌ fee simple myght and that authorite was as stronge in the lawe as if the lessour that maketh a lease for terme of lyfe say by expresse wordes in the lease that the lesse shall nat be punysshable of waste And therfore if the donour in this case had graunted to the donees that they shulde nat be punisshable of wast that graunt had ben voyde bycause it was included in the gyfte before as it shulde be vpon a gyfte in fe simple so for as moch as by the fyrste gyfte and by the lyuere of season made vpon the same the donees had authorite by the donour to do waste Therfore though the one of the donees be nowe deed without yssue / so that it is certayne that after the dethe of the other the lande shall reuerte to the donour / yet the authorite that they had by the donour to do waste coÌtinueth as longe as the gyfte and the lyuerey of season made vpon the same coÌtinueth and I take this to be the reason why he shal nat haue in ayde as tenaunt for terme of lyfe shal / that is to say / for that he can nat aske helpe of that maxime
husbande and they haue issue the father deyeth seased / the husbande as sone as he hereth of his deth goeth towarde the lande to take possession / and byfore he can come there his wyfe dieth / whether ought he to haue the lande in coÌscience for terme of his lyfe as tenaunt by the courtesie bycause he hath done that in hym was to haue had possession in his wyues lyfe so that he myght haue ben tenaunt by the courtesie accordynge to the lawe / or that he shall neyther haue it by lawe nor conscience ¶ Doctour Is it clerely holdeÌ in the law that he shall nat be tenaunt by the curtesy in this case bycause he had nat possession in dede ¶ Student ye verely / and yet vpoÌ a possessicioÌ in lawe a womaÌ shal haue her dower / but no man shal be tenaunte by the curtesie of laÌde without his wyfe haue possession in dede ¶ Doctoure A man shal be tenaunt by the curtesie of a rent thoughe his wyfe dye byfore the day of payment / in lyke wyse of an aduowson thoughe she dye byfore the auoydaunce ¶ Studente That is trouthe / for the olde custome and maxime of the lawe is that he shall be so / but of lande there is no maxime that serueth hym but his wyfe haue possession in dede ¶ Doctour And what is the reason that there is suche a maxime in the lawe of the rent and of the aduowson rather thaÌ of lande / whan the husbaÌde doth as moche as in hym is to haue possessioÌ and can nat ¶ StudeÌt Some assigne the reason to be bycause it is impossible to haue possession in dede of the rent or of aduouson byfore the daye of payment of the rent / or byfore the auoydaunce of the aduouson ¶ Doct. And so is impossible that he shal haue possession in dede of lande if his wyfe dye so sone that he maye nat by possibilitie come to the lande after her fathers dethe / and in her lyfe as this case is ¶ Student The lawe is suche as I haue shewed the byfore and I take the verey cause to be for that there is a maxime serueth for the rent and the aduouson / and nat for the landes as I haue sayd byfore / and as it is sayd in the viii chapitre of our fyrst dialogue / it is nat alwaye necessarie to assigne a reason or coÌsideracioÌ why the maximes of the lawe of Englande were fyrst ordeyned and admitted for maximes / but it suffisethe that they haue ben alwaye taken for lawe and that they be neyther coÌtrarie to the lawe of reason nor to the lawe of god as this maxime is nat / and therfore if the husbande in this case be nat holpen by coÌscience he can nat be holpen by the lawe ¶ Doctour And if the lawe helpe hym nat coÌscience can nat helpe hym in this case / for conscience must alwaye be grounded vpon some lawe / and it can nat in this case be grouÌded vpon the lawe of reason nor vpon the lawe of god / for it is nat dyrectely by those lawes that a man shal be tenauÌt by the curtesy / but by the custome of the realme And therfore if that custome helpe hiÌ nat he can nothyng haue in this case by conscience / for conscience neuer resysteth the lawe of maÌ nor addeth nothynge to it / but where the lawe of man is in it selfe dyrectly against the lawe of reason or els the lawe of god / and than properly it can nat be called a lawe but a corrupcion / or where the generall groundes of the lawe of man worketh in any particuler case agaynste the sayd lawes as it may do / and yet the lawe good as it appereth in diuerse places in our fyrst dialogue in latyne / or els where there is no lawe of man prouided for hym that hathe ryghte to a thynge by the lawe of reason or by the lawe of god And than somtyme there is remedy gyuen to execute that in coÌscience / as by a Sub pena but nat in all cases / for somtyme it shal be referred to the conscieÌce of the partie / and vpon this grounde that is to saye that whan there is no tytle gyuen by the comon lawe that there is no tytle by conscience There be diuerse other cases wherof I shall put some for an example As if a reuercion be graunted vnto one / but there is none attournement / or if a newe rente be graunted by worde with out dede there is no remedy by conscience oneles the sayd grauntes were made vpon consideracions of money or suche other And in lyke wyse where he that is seased of landes in fee simple maketh a wyll therof / the wyll is voyde in conscience bycause the grounde seruethe nat for hym wherby the conscience shulde take effecte / that is to saye / the lawe / and if the tenaunte make a feoffement of the lande that he holdeth by priorite and taketh estate agayne and dyeth his heyre within age the lorde of whome the lande was fyrst holden by prioritie shall haue no remedy for the body by conscience / for the lawe that fyrste was with hym / is nowe agaynste hym / and therfore coÌscieÌce is altered in lyke wyse as the lawe altereth / and diuerse and many cases lyke be in the lawe that were to long to reherce nowe And thus me thynketh that if the lawe be as thou sayest the husbande iÌ this case hathe neyther ryght by the lawe nor conscience ⧠The .xiiii. question of the student The .xvi. Chapitre STudent A rent is graunted to a man iÌ fee to perceyue of two acres of land / and after the grauÌtour enfeoffeth the grauntee of one of the sayd acres / whether is the hole rente extyncte therby in conscience as it is in the lawe ¶ Doctour Thy case is somwhat vncertayne / for it appereth nat whether the grauntour enfeoffed hym on truste or that he gaue the acre to hym of his mere mocion to the vse of the sayd feoffe / or els that the feoffement was made vpon a bargayne / and if it were but onely a feoffement of truste / than I thinke the hole rent abydeth in conscience though it be extyncted in the lawe / and fyrste that it continueth in that case in conscience / for that parte that the grauntee hathe to the vse of the grauntour / it is euidente / for he may nat take the profytes of the lande / and it is agaynste conscience that he shulde lese bothe / and in lyke wyse it abydeth iÌ coÌscience for the acre that remayneth in the handes of the grauntour thoughe it be extyncte in the lawe / for there was a defaute in the grauntoure that he wolde make the feoffement to the grauntee as well as ther was in the grauntee to take it And it is no conscience that of his owne defaute he shulde take so great auayle to be discharged of the hole rent seynge that
a man at the comon lawe knowyng that he hath sufficient matter to be discharged in the chauncery that he may nat pleade at the comon lawe The .vi. chapitre Fo. 17. ¶ The .vi. questioÌ of the StudeÌt / whether a maÌ may with conscience be of counsayl agaynst the feoffour of truste in an accion of trespas that he bryngeth agaynste his feoffe of trust for takyng the profites The .vii. chapitre Fo. 19. ¶ The .vii. question of the StudeÌt if a maÌ that by way of distres cometh to his det / but he ought nat to haue distreyned for it what restitucion he is bounde to make The .viii. chapitre Fo. 21. ¶ For what thynge a man may lawfully distrayne The .ix. chapi Fo. 23. ¶ The .viii. question of the Student whether executours be bounde in conscience to make restitucion for a trespas done by the testatoure / and whether they be bouÌde to paye dettes vpon a contracte fyrste / or make the sayde restitucion The .x. chapitre Fo. 25. ¶ The .ix. question of the Student / whether he that hath goodes deliuered hym by force of a legaci be bounde in conscieÌce to pay a dette vpon a contracte that the testatoure ought / if the executours haue none other goodes in theyr handes The .xi. chapitre Fo. 28. ¶ The .x. question of the Student if a maÌ haue issue two sones dyed seased of certayne landes in fee the eldest dyeth without issue the tongest recouereth by assise of mortdauncestre the lande with damages fro the dethe of the father / whether he be bounde in conscience to pay the damages to the executours of the eldest brother for the tyme he leued The .xii. cha Fo. 31. ¶ The .xi. question of the Student what damages the tenant in dower shall recouer in conscience where hyr husbaÌde dyed nat seased / but she demaunded hyr dower and was denyed The .xiii. chapitre Folio 33. ¶ The .xii. question of the Student if a man knowynge a nother to haue right to his lande causeth a fyne with proclamacion to be leuyed accordynge to the statute / and he that hath right maketh no clayme within .v. yeres whether he be barred in conscience as he is in the lawe The .xiiii. chapitre Fo. 36. ¶ The .xiii. question of the Student / if a man that hath had a chylde by his wyfe do that in hym is to haue possession of his wyfes landes and she dyeth or he caÌ haue it / whether in conscience he shal be tenauÌt by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a reÌte enfeffe the grauÌte of the rente of parte of the lande cÌ whether the hole rente be extincte in conscieÌce as it is in the lawe The .xvi. chapitre Folio 41. ¶ The xv question of the Student / if he that hath a rent out of .ii. acres be named in a recouerye of the one acre he nat knowynge thereof cÌ whether his hole rente be extincte in conscience cÌ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth laÌdes iÌ fee he that hath the villayn entreth / whether he may with coÌcieÌce kepe the laÌdes to hiÌ to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questioÌ of the StudeÌt if a maÌ in the case next before enforme hym that is in the reuercioÌ of the villayn that after the dethe of the villayn he hath right to the laÌde couÌsayleth hiÌ to entre / wherupoÌ great sute charges folowe / what dauÌger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpoÌ a feffemeÌt made vpoÌ coÌdicioÌ that the feffe shall pay a rent to a strauÌger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the StudeÌt is vpoÌ a feofement in fee / it is agreed that the feffe shall pay a rente to a straunger / howe that feffement shall way in law conscience The .xxi. chapitre Fo. 51. ¶ Howe vses in lande began by what law the cause why so moche laÌde is put in vse The .xxii. chapitre Fo. 54. ¶ The diuersite bytwene two cases wherof one is put in the .xx. chapitre and the other in the .xxi. chapitre of this present boke The .xxiii. chapitre Fo. 57. ¶ What is a nude coÌtracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupoÌ The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the StudeÌt if a maÌ that hath two sones one borne before espousels the other after espousels by his wyll byqueteth to his sone heyre all his goodes / whiche of the sones shall haue the goodes in conscieÌce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with conscieÌce present to an aduouson of a churche that belongeth to the howse without assent of the coueÌt The .xxvi. chapitre Fo. 72. ¶ If a maÌ fynde beestes in his corne doiÌg hurt / whether he may by his owne authorite take them and kepe them tyll he be satisfied for the hurt The .xxvii. cha Fo. 75 ¶ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. chapitre Fo. 76. ¶ If a man be conuicte of heresye before the ordinarie / whether his goodes be forfet The .xxix. chapitre Fo. 78. ¶ Where diuers patrons be of an aduouson the churche voydeth / the patrons varye in theyr presentementes / whether the Bisshop shall haue libertie to present whiche of the incumbentes that he wyll The .xxx. chapitre Fo. eodem ¶ Howe long tyme the patron shall haue to present to a benefice The .xxxi. chapitre Fo. 80. ¶ If a man be excoÌmenged / whether he may in any case be assoyled withoute makynge satisfaccion The .xxxii. cha Fo. 83. ¶ Whether a prelate may refuse a legaci The .xxxiii. chapitre Fo. 84. ¶ Whether a gyfte made vnder a condicioÌ be voyde if the souerayne onely breke the condicion The .xxxiiii. cha Fo. 87. ¶ Whether a couenaunt made vpon a gift to the churche that it shall nat be aliened be good The .xxxv. chapi Fo. 89. ¶ If the patroÌ present nat within .vi. monethes who shall present The .xxxvi. chapitre Fo. 91. ¶ Whether the presentemente collacion of all benefices and dignities voydyng at Rome belonge onely to the Pope The .xxxvii. chapitre Fo. 95. ¶ If a howse by chaunce fall vpoÌ a horse that is borowed who shall bere the losse The .xxxviii. chapitre Fo. 97. ¶ If a preeste haue wonne moche money by saynge masse / whether he maye gyue those goodes or make a wyll of them The .xxxix. chapitre Fo. 99. ¶ Who shall succede to a clerke that dyeth intestate The .xl. chapitre Fo. 101. â Addicion ¶ If a man be outlawed of felonye / or be attaynted for murdre or felony / or that is an Ascismus may be slayne by euery strauÌger The .xli. chapitre Fo. 102. â Addicion ¶ Whether a man shal be bouÌde by the act or offeÌce of his seruaunt or officer The .xlii. chapitre Fo. 104. ⣠Addicion ¶ Whether a villayn or a bondeman may gyue a waye his goodes The .xliii. chapitre Fo. 106. ¶ If a clerke be promoted to the title of his patrimony after selleth his patrimony falleth to pouerty / whether he shall haue his title therin The .xliiii. chapitre Folio 108. ¶ Diuers questions takeÌ out by the Student of the summes called Summa rosella Summa angelica whiche me thiÌketh are necessary to be sene how they stande agree with the lawe of the realme The .xlv. chapitre Fo. 111. ¶ Where ignoraunce of the lawe excuseth in the lawes of Englande where nat The .xlvi. chapitre Fo. 115. ¶ Certayne cases groundes where ignorauÌce of the dede excuseth in the lawes of Englande where nat The .xlvii. chapitre Fo. 119. â Addicion ¶ The fyrst question of the Doctour how the law of Englande may be sayde reasonable that prohibiteth cÌ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takeÌ as heyre bycause it is nat knowen but that the eldest brother is ded be in conscience a barre to the eldest brother as it is in the lawe The .xlix. chapitre Fo. 124. ¶ The thyrde question of the Doctoure / whether if a maÌ procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in coÌscience as it is in the lawe The .l. chapitre Fo. 127. ¶ The fourth question of the Doctoure / is of wreke of the see The .li. chapitre Folio 129. ¶ The fyft question of the Doctour / whether it stande with conscience to prohibite a Iurye of meate drynke tyll they be agreed of theyr verdite The .lii. chapitre Folio 131. ¶ The .vi. question of the Doctoure is / whether the colours that be gyuen at the comon lawe in assises / accions of trespas and diuers other accions stande with coÌscience bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. â Addicion ¶ The .vii. questioÌ of the Doctour / coÌcerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade iÌ suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questioÌ of the Doctour / how the statute that was made in the .xlv. yere of kynge Edwarde the thyrde concernynge the tythe of woode maye stande with conscience The .lv. chapitree Folio 140. ¶ Finis Tabule ¶ Thus endeth the seconde Dialogue in Englisshe / with the Addicions bytwene a Doctoure of of diuinitie and a Student in the lawes of EnglaÌde which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LoddoÌ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC.XXXii The fyrst day of the moneth of Iuly ⸫
partie Also where there can be had no sufficieÌt prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌscieÌce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌdyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌs after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌscieÌce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌscience so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌscieÌce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌcion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌscience for of suche a lawe made by man coÌscieÌce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌde of a lawe made by man coÌmaundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌscience and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌsideracion punysshe hym that dothe it / but leuyth it onely to his coÌscience And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌscieÌce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌscience to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌscieÌce to the halfe êfittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌscience / for the lawe neyther wyllyth ne coÌmaundyth that one shulde take all the êfittes / but leuyth it to theyr coÌscience so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌscience all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌscieÌce / but the lawe is nat to be lefte for conscience â Addicion ⧠Also many men thynke that if a man haue laÌde that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌscieÌce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
saye if a man make a feoffement in fee vpon condicioÌ that the feffe shall nat alien it to any man that condicioÌ is voyde for it is incidente to euery state of the fee simple that he that is so seased may alien And lyke as in a fee simple there is incident a power to aliene / so in a state tayle there is a secrete intent vnderstande in the gyfte / that no alienacion shal be made And therefore thoughe the intente of the sayde Iohan at noke were that if he fell in to pouertie that he might sel though he at the takynge of the gyfte openly declared his intente to be so / yet that intent shulde be voyde by the lawe as me semeth and if it be voyde by the lawe it is also voyde in conscience / and so the sayde recouery muste be taken in this case to be of the same effecte as recoueryes of other landes intayled be / and in none other maner â The .iiii. question of the Student / coÌcernynge recoueryes of enheritauÌce entayled The .xxx. Chapitre STudent If an annuite be graunted to a man to haue to perceyue to the graunt and to the heyres of his body of the cofers of the grauntour And after the graunte suffereth a recouere agaynste hym in a writte of entre by the name of a rent in dale of lyke summe as the annuite is of with vouchers iugemeÌt after the coÌmon course / bothe parties intende that that annuite shal be recouered whether shal that recouere binde the heyre iÌ the tayle of his annuite ¶ Doctor. what if it were a reÌt goynge out of laÌde of what effect shuld the recouere be than ¶ Student It shuld be than of lyke effecte as if it were of lande ¶ Doctoure And so it semeth to be of this annuite / for as me thynketh a reÌte an annuite be of one effecte / for the one of them shal be payde in redye money as the other shal ¶ StudeÌt That is trouth and yet there be many greate diuersities betwixte them in the lawe ¶ Doctoure I praye the shewe me some of tho diuersities ¶ Student Parte I shall shewe the / but I wot nat whether I can shew the al but fyrste thou shalte vnderstaÌde that one diuersitie is this Euery rente be it rente seruice / rente charge / or reÌt seke / is goyng out of lande / but an annuite goth nat out of any lande / but chargeth onely the person that is to saye the grauntoure or hys heyres that haue assez by discente / or the howse if it be graunted by a howse of a religion to perceyue of theyr cofers Also of an annuyte there lyeth no accion but onely a writ of annuite agaynst the grauÌtour his heyres or successours / that writ of annuite lyeth neuer agaynste the pernoure but onely agaynste the grauntour or his heyres / but of a rente the same accions maye lye as do of lande as the case requyreth it lyeth somtyme of rente agaynste the tenaunte of the grounde / and somtyme agaynst the pernour of the rent / that is to saye agaynste hym that taketh the rent wrongefully / somtyme agaynst neyther as of a rente seruyce assise maye lye for the lorde agaynste the mesme and a dissesoure / or somtyme agaynste the mesne onely if he dyd also the disseason Also an annuite is neuer taken for an asses bycause it is no freholde in the law / ne it shal nat be put in execucion vpoÌ a statute marchaunt / statute staple ne elegit as rente maye And bycause the sayde writte of entre laye nat in this case of this annuite And that it can nat be enteÌded in the law to be the same annuite / though it be of lyke summe with the annuite ne though the parties assented and mente to haue thesame annuite recouered by the sayde writte of entre / therefore the sayde recouerie is voyde in lawe and conscience / but if suche a recouerie be had of rente with a vouchere ouer than it shal be taken to be of lyke effecte as recoueries of landes be in suche maner as we haue treated of before â The .v. question of the Student / concernynge tayled landes The .xxxi. Chapitre STudent If landes be gyuen to a maÌ and to his wyfe in the name of his ioyntoure by the father of the husbaÌde to haue and to holde to them and to the heyres of theyr two bodyes begotten / and after they haue issue the husbande dyeth and the wyfe alieneth the lande / against the statute of .xi. H. vii suffereth a recouerye thereof to be had agaynste her to the vse of the byer / and after her sone heyre apparaunte / that is heyre to the tayle releaseth to the recouerers by fyne dyeth hauynge a brother on lyue / and after the mother dyeth who hath righte to that laÌde the byer or the brother of hym that released ¶ Doctoure what is thyne oppinion therein / I praye the shewe me ¶ Student We semeth that the byer hathe righte / for by the sayd statute made in the .xi. yere of kynge Henry the .vii. amonge other thynges it is enacted that if any man / whiche hath landes of the gyft of her husbande / or of the gyfte of any of the auncestoures of the husbande / suffre any recouerye thereof agaynste her by couyne / that than suche recouerye shall be voyde / and that it shal be lawfull to hym that shulde haue the lande after the dethe of the woman to entre and it to holde as in his fyrste righte / prouided alwaye that that statute shall nat extende where he that shulde haue the lande after the dethe of the woman is agreable to any suche alienacion or recouerye so that / that agremente be of recorde And for as moche as the heyre in this case agreed to the said recouerye by fyne / whiche is one of the hyest recordes in the lawe / it semeth that the byer hath righte agaynste that heyre that agreed and agaynste all that shal be heyres of the tayle / and that nat onely by the sayde recouery / but also by the sayde statute whereby the sayde recouerye with assent of the heyre is affermed ¶ Doctor Though the byer in this case haue righte during the lyfe of the heyre that released / yet neuertheles after his dethe his heyre as it semeth maye lawfully entre / for the agremeÌt wherof the statute speketh must as I suppose eyther be had before the recouery / or els at the tyme of the recouery for if a title by reason of the sayd statute be ones deuolute to the heyre in the tayle / than that right as it semeth can nat be extincte nor put awaye by the onely fyne of the heyre / no more than if he had dyed and the nexte heyre to hym had released to the byer by fyne / in whiche case the release coulde nat extincte the righte of the
no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hiÌ whether they wolde paye it or nat And therfore to be out of peryll it is necessarye that he paye it hym selfe / and than is he surely discharged agaynst all men ⧠The .x. question of the student The .xii. Chapitre ¶ STudent A man seased of certayne lande in his demeane as of fee / hathe issue two sones and dyeth seased / after whose dethe a straunger abateth / taketh the profytes / and after the eldest sone dieth without issue and his brother bringeth an assise of MortdauÌcestre as sone and heyre to his father nat makynge mencion of his brother and recouereth the lande with damages fro the deth of his father as he may wel by the lawe / whether iÌ this case is the yonger brother bounde in coÌscience to pay to the executours of the eldest brother the value of the profytê of the sayd lande that belonged to the eldest brother in his lyfe or nat ¶ Doctour What is thyne opinion therin ¶ Student That lyke as the said profytes belonged of right to the eldest brother in his lyfe / and that he had full auctorite to haue released as well the ryghte of the sayd lande as of the sayd êfytê / whiche release shulde haue ben a clere barre to the yonger brother for euer That the ryght of the said damages whiche be in the lawe but a chatell / bylonge to his executoures and nat to the heyre / for no maner of chatell neyther reall nor parsonall shall nat after the lawe of the realme discende vnto the heyre ¶ Doctoure Thou saydest to the case next byfore / that it is nat of the lawe of reason that a man shall may make executours / and dispose his goodes by his wyll / and that the executoures shall haue the goodes to dispose but by the lawe of man / and if it be lefte to the terminacion of the lawe of man ThaÌ in suche cases as the lawe gyueth suche chatelles vnto the executoures / they shall haue good ryghte vnto them / and in suche cases as the lawe takethe suche chatelles frome them they bene ryghtfully taken frome them And therfore it is thoughte by many that if a man sue a wrytte of ryghte of warde of awarde that he hathe by his owne fee and dyeth hangynge the wrytte / and his heyre sue a resomons accordynge to the statute of Westmester seconde / and recouereth that in that case the heyre shal enioye the wardeshype agaynste the executoures / and yet it is but a chatel / and they take the reason to be bycause of the sayd estatute / and so myghte it be ordeyned by statute that all wardes shulde go to the heyres and nat to the executoures Ryght so iÌ this case syth the lawe is suche that the yonger brother shall in this case haue an assyse of Mort dauncestre as heyre to his father nat makynge any mencion of his elder brother recouer damages as well iÌ the tyme of his brother as in his owne tyme it appereth that the lawe gyueth the right of these damages to the heyre / and therfore no recompence ought to be made to the executoures as me semeth / and it is nat lyke to a wryt of Ayel where as I haue lerned iÌ Latyn syth our fyrste dialogue the demaundauÌt shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demauÌt though his Ayel ouer lyued his father must of necessite make his coÌueyauÌce by his father muste make hiÌ selfe sone heyre to his father cosyn heyre to his Ayel / therfore in that case if the father ouer liued the Ayel the abatour were bouÌden in coÌscience to restore to the executours of the father the profytes reÌne in his tyme / for no lawe taketh theÌ fro hiÌ / but otherwyse is iÌ this case as me semeth ¶ Student If the yonger brother in this case had entred into the lande without takyng any assyse of Mort dauncestoure as he myght if he wolde / to whome were the abatour than bounden to make restitucioÌ for those profytes as thou thynkest ¶ Doctour To the executours of the eldest brother / for iÌ that case there is no law that taketh them from them / and therfore the general grounde whiche is that al chatels shall go to the executoures holdeth in that case / but in this case that grounde is broken and holdeth nat for the reason that I haue made byfore / for comonly there is no general grounde in the lawe so sure but that it fayleth in some particuler case ⧠The .xi. question of the student The .xiii. Chapitre STudent A man seased of lande in fee taketh a wyfe / and after alieneth the lande and dyeth / after whose deth his wyfe asketh her dower and the aliene refuseth to assigne it vnto her / but after she asketh her dower agayne and he assigneth it vnto her / whether is the alme in this case bounde in conscience to gyue the woman damages for the profites of the land after her thyrde parte fro the dethe of her husbande / or fro the fyrst request of her dower or neyther the one nor the other ¶ Doct. what is the lawe in this case ¶ Student By the lawe the woman shall recouer no damagê / for at the comoÌ lawe the demauÌdaunt iÌ a wrytte of dower shulde neuer haue recouered damages But by the statute of Marton yt is ordeyned that where the husband dyeth seased that the womaÌ shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / suche damagê as she hathe by the forberynge of it / but in this case the husbande dyed not seased / where fore she shall recouer no damages by the lawe ¶ Doctour yet the lawe is that immediately after the dethe of her husbande the wyfe ought of ryght to haue her dower yf she aske it thoughe her husbande died not seased ¶ Student That is trewe ¶ Doctoure And sithe she ought to haue her dower fro the dethe of her husbande yt semeth that she ought in coÌscience to haue also the profytes fro the dethe of her husbande though she haue no remedy to come to them by the lawe / for me thynketh that that this case is lyke too a case that thou puttest in our fyrste dyalogue in latyn the xvii chapytre That if a tenaunte for terme of lyfe be dysseased dye / the disseasoure dyeth / and his heyre entreth and taketh the profytes / after he in the reuercyon recouereth the laÌdê against the heyre as he ought too do by the lawe / that in that case he shall recouer no damages by the lawe And yet thou dydest agree that iÌ that case the heyre is bounde in concience to pay the damages to the demaundaunt so me
haue the rent in coÌscience shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am coÌtent with thy conceyte in this matter for this tyme. ⧠The .xvi. question of the student The .xviii. Chapitre STudent A vylleyne is graunted to a maÌ for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec ¶ Doctour Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hiÌ his landes and goodes and put his body in prysoÌ if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so to hym ¶ Sudent That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bisshoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe haue seased the landes and goodê of theyr vylleyns therby and cal it theyr ryght enheritaunce so to do that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with conscieÌce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made ¶ Doctour Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes that the vylleyne purchaseth in fee to hym and to his heyres ¶ Student I verely I take it so ¶ Doctour I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenauÌt for terme of lyfe entreth he shal haue there none other estate iÌ the lande than he had in the seygnourye / and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne ¶ Stud. The cases be nat lyke / for in that case of the eschete the tenaunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignourie / that is to saye / in the place of the seignourie / the seignourie is clerely extincte / but in this case he hathe nat the lande iÌ the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a êfyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne of lande in fee simple of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease accordyng to the lawe byfore the vylleyne alien or elles he shall haue nothynge ¶ Doctoure Verely and if the lawe be so / I thynke conscience folowethe the lawe therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres he purchaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre ¶ Student A fee simple / but that shal be to the behoue of the testatoure and shal be an assesse in his handes ¶ Doctoure Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question ¶ Ttudente For as moche as it appereth in this case and in some other byfore that the knowlege of the law of EnglaÌde is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what dauÌger it is in conscience for the mistakynge of it ¶ Doctour I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge ⧠The .xvii. question of the student The .xix. Chapitre STudent A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenauÌt for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenauÌt for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that couÌsayle he in the reuercion entreth / by reason of the whiche entre great sutes and expences folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle ¶ Doctour Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste the lawe / or that he was ignoraunt of the lawe ¶ Student That he was ignorauÌt of the lawe for if he knewe the lawe gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampnified by it ¶ Doctour Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge to haue knowlege of the law after his capacite or that he toke vpon hiÌ to gyue counsayle and toke no study competent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile And also
the law that if a Bisshope be vouched to warraÌtie the tenaunt byndeth hiÌ to the warraÌtye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were grauÌted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaiÌdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or grauÌt is nat good to them without they bothe asseÌt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ StudeÌt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thaÌ the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the reÌt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd IohaÌ at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the asseÌt of the chapitre shall nat charge the chapitre iÌ that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtiÌge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenauÌcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience cÌ â Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In SuÌma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor conscieÌce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymeÌt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of EnglaÌde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reeÌtre / it forceth litle in the lawe in whome the defaute be that the coÌdicion was nat performed whether in the Abbot or in his coueÌt or iÌ bothe / or in any other persone what so euer he be excepte it be in the feffoure hiÌselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without coÌdicioÌ / where it is made with coÌdictoÌ / for whan it is made without coÌdicioÌ the acte of the Abbot onely shal nat by the comoÌ lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferauÌce of the Abbot
haue no couÌsayle / thaÌ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌscience / for there is no lawe that byndeth them to iÌstructe hym / but as they do comoÌly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌcell / if the appelle be pore haue no couÌcell the court muste assigne hym couÌcell if he aske it as they muste do iÌ all other plees / that me thynketh they are bouÌde to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌcell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌt hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌg of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ perciall / therfore as wel for the indeÌpnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌcell / but whaÌ that a maÌ is indicted at the kynges sute / the kiÌge inteÌdeth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌg them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâte as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌsayle wyll be coÌtented And so there is no daunger therby neyther to the couââ ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre âoytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌiecture or informacioÌ I thynke they mighte nat then byd hym pleade at his peryll â The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌt It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌtye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ conscieÌce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ shuld haue a nother maÌnes laÌde no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌdeth with conscience bycause it is ordeyned for ministracioÌ of iustice / but I caÌ nat êceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ law of wrecke of the see / that is to say that if a maÌnes goodes had beÌ wrecked vpoÌ the see that the goodes shuld haue ben iÌmediatly forfayted to the kyng And it is holdeÌ by all doctors that that law is agaiÌst coÌscience except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
is called a courte Baron And to euery fayre market is incident a court that is called a court of Pypowdres And though in some statutes is made meÌcion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes and that suche courtes shulde be / there is no statute nor law writteÌ in the lawes of Englande And so all the grouÌde begynniÌg of the sayde courtes depeÌde vpoÌ the custome of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Parlyament ⧠Also by the olde custome of the realme no maÌ shal be takeÌ iÌprysoned disseased nor otherwyse destroyed / but he be put to answere by the lawe of the lande this custome is coÌfermed by the statute of Magnacarta the .xxvi. chapitre ⧠Also by the olde custome of the realme all men great small shal do receyue Iustice in the kinges courtes / this custome is coÌfermed by the statute of Marl the .i. Chapitre ⧠Also by the olde custome of the realme the eldest sone is onely heyre to his auncestour / if there be no sones but doughters then all the doughters shal be heyre so it is of susters other kynneswomen And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce discende to the nexte kynnesman or kynneswoman of the hole blode to hym that had the enhitauÌce of howe many degrees so euer they be from hym And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden ⧠Also by the olde custome of the realme landes shall neuer ascende / nor disceÌde froÌ the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee. ⧠Also if any alyeÌ haue a sone that is an alyen after is made Denizyn / hath another sone / after purchaseth laÌdes and dyed / the yoÌger sone shall enherite as heyr nat the eldest ⧠Also if there be thre bretherne the mydlest brother purchase landes dyed without heyre of his body / the eldest brother shall inheryt as heyre to hym nat the yonger brother ⧠Also if lande in fee symple disceÌde to a man by the êre of his father he dyed without heyre of his body / then that inheritaunce shall discende to the next heyre of the parte of his father And if there be no suche heyre of the parte of his father / then if the father purchased the laÌdes it shal go to the next heyre of the fathers mother / nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee but if a man purchase laÌdes to him to his heyres dye without heyre of his body as is sayd before / theÌ that laÌde shall disceÌde to the next heyre of the parte of his father if there be any / if nat then to the next heyre of the parte of his mother ⧠Also if the sone purchaseth laÌdes iÌ fee dye without heyre of his body / the lande shall discende to his vncle shall nat asceÌde to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle shall enioye the lande as heyre to his elder brother for euer ⧠Also by the custome of the realme the chylde that is borne before spouselles is bastarde shall nat inheryte ⧠Also the custome of the realme is that no maner of goodes nor catalles reall nor parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or administratours ⧠Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after and also Chatelles real if he ouer lyue hê wyfe but if he sell or gyue away the Chatelles realles dye by that sale or gyfte the enterest of the wyfe is determined / els they shall remayne to the wyfe if she ouer lyue her husbande ⧠Also the husbaÌde shall haue all the inheritauÌce of his wyfe wherof he was seased in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of EnglaÌde / the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe after the spouselles c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye ¶ Doctoure what if the husbande at his deth be within the age of .ix. yere ¶ Student I suppose she shall yet haue her dower ⧠Also the olde lawe custome of the realme is that after the deth of euery tenaÌte that holdeth his landes by knyghtes seruice the lord shall haue the warde mariage of the heyre tyll the heyre come to the age of .xxi. yere And if the heyre in that case be of full age at the deth of his auncestre / then he shall paye to his lorde his relyefe / whiche at the coÌmon lawe was nat certayne / but by the statute of Magna carta / it is put in certayne that is to saye for euery hole knyghtes fee to pay C. sÌ And for a hole baronye to pay a. C. marke for relyef And for a hole erledom to pay a. C. li. after the rate And if the heyre of such a tenauÌt be a womaÌ / she at the dethe of her auncestre be within the age of .xiiii. yeres / then by the coÌmon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of WestmÌ the fyrste in suche case she shal be inwarde tyll .xvi. yere And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shal be out of warde / though the laÌdes be holden of the kynge And theÌ she shall pay relyef as an heyre male shall ⧠Also of landes holden in socage if the auncestre dye / his heyre beynge withiÌ the age of .xiiii. yeres / the next freÌd of the heyt to whome the inheritauÌce may nat discende shall haue the warde of his body landes tyll he shall come to the age of .xiiii. yere / theÌ he may entre And wheÌ the heyre coÌmeth to the age of .xxi. yere / theÌ the gardeyn shall yelde hym accoÌpte for the êfettes therof by hym receyued ⧠Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his auncestre / as if his auÌcestre
helde by .xii. d. rente the heyre in the yere folowynge shall paye that .xii. d. for his reÌt / other .xii. d for his relyef And that relyefe he muste paye though he be within age at the deth of his auncestre ⧠Also there is an olde law custome in this realme that a freholde by way of feffement gyfte or lease passeth nat without lyuery of season be made vpoÌ the laÌde according though a dede of feffemeÌt be therof made deliuered but by way of surrendre particion eschauÌge a freholde maye passe without liuery ⧠Also if a maÌ make a wyll of laÌde wherof his is seased iÌ his demesne as of fee / that wyll is voyde / but if it had stande in feffes handes it had ben good And also in London suche a wyll is good by the custome of the cytie if it be inrowled ⧠Also a lease for terme of yeres is but a chatel in the lawe / therfore it may passe without any liuery of season / but otherwise it is of a state for terme of lyfe for that is a freholde in the law / therfore lyuerey muste be made therof or els the freholde passeth nat ⧠Also by the olde custome of the realme a man may distreyne for a rent seruice of coÌmon right And also for a rent reserued vpoÌ a gifte in tayle / a lease terme of lyfe / of yeres at wyll / in suche case the lorde may distreyne the tenauntes of beestes as soon as they come vpoÌ the grouÌde / but the beastê of strauÌgers that come iÌ but by maner of an escape / he may nat distreyne tyll they haue beÌ leuaÌt couchaÌt vpoÌ the grouÌde but for dette vpoÌ an obligacioÌ nor vpoÌ a contracte / nor for accompte ne yet for arerages of accoÌpte / nor for no maner of trespasse / reparacions / nor suche other no man may distreyne ⧠Also by the olde law custome of the realme all yssues that shal be ioyned betwixte partie partie in any court of recorde within the realme except a fewe wherof it nedeth nat to treate at thê tyme / must be tryed by .xii. fre lawfull meÌ of the visne that be nat of affinitie to none of the parties And in other courtes that be nat of recorde / as in the countye / court baron / hundred suche other lyke / they shal be tryed by the other of the êtyes nat other wyse oneles the partyes assente that it shal be tryed by the homage And it is to be noted that lordes / Barons / all pyers of the realme be excepted out of suche trialles if they wyll / but if they wyll wylfully be sworne therin / some say it is no erroure And they may if they wyll haue a writte out of the Chauncerie directed to the Shyryfe coÌmaundynge hym that he shal nat impanell them vpon no enqueste And of this that is saydbefore it appereth that the customes aforesayd nor other lyke vnto theÌ / wherof be very many in the lawes of Englande can nat be proued to haue the strenght of a law onely by reasoÌ for how may it be proued by reason that the eldest sone shall onely enherite his father the yoÌger to haue no parte / or that the husbaÌde shall haue the hole laÌde for terme of his lyfe as tenaunt by the courtesye in suche maner as before appereth And that the wyfe shall haue onely the thyrde parte in the name of her dower / that the husbande shall haue all the goodes of his wyfe as his owne And that if he dye lyuynge the wyfe / that his executours shall haue the goodes / nat the wyfe All these suche other can nat be proued onely by reason that it shulde be so no otherwyse all though they be reasonable / that with the custome theriÌ vsed suffiseth in the law And a statute made agaynst suche generall customê ought to be obserued because they be nat merely the law of reason ⧠Also the law of êpretie is nat the law of reason / but a law of custome how be it that it is kept / is also right necessarie to be kept in all realmes amoÌge all people And so it may be noÌbred amoÌge the generall customes of the realme And it is to vnderstande that there is no statute that treateth of the begynnyng of the sayd customes ne why they shulde beholden for law And therfore after theÌ that be lerned in the lawes of the realme the olde custome of the realme is the onely sufficiente auctoritie to them in that behalfe And I pray the shewe me what doctours holde therin / that is to say whether a custome onely be sufficient auctoritie of any lawe ¶ Doctoure doctours holde that a law grouÌded vpon a custome is the moste surest law / but this muste always vnderstaÌde therwith that such a custome is nother coÌtrarie to the lawe of reason / nor to the law of god And now I pray the shewe me somwhat of the maxymes of the lawe of Englande wherof thou haste made mencioÌ before in the .iiii. chapitre ¶ StudeÌt I wyll with good wyll â Of the .iiii. grounde of the lawe of Englande The .viii. Chapitre STudent The .iiii. grouÌde of the law of EnglaÌde standeth in diuers principles that be called in the lawe maximes / the which haue ben always takeÌ for law iÌ this realme / fo that it is nat lawfull for none that is lerned to denye them / for euery one of those maximes is sufficiente auctoritie to hym selfe And whiche is a maxime / whiche nat shall alway be determined by the Iuges / nat by .xii. men And it nedeth nat to assigne any reason / why they were fyrste receyued for maximes for it suffiseth that they be nat agaiÌst the law of reason nor the law of god / and that they haue alway be taken for lawe And suche maximes be nat onely holden for law / but also other cases lyke vnto theÌ all thynges that necessarily foloweth vpoÌ the same / ar to be reduced to lyke law And therfore moste coÌmeÌly there be assigned some reasons or coÌsideracion why suche maximes be resonable to the intente that other cases lyke may the more conueniently be applyed to them And they be of the same strength effect in the law as statutes be And though the generall custome of the realme be the strength warraunte of the sayd maximes as they be of the generall customes of the realme / yet because the sayd generall customes be in maner knowen throughe the realme as well to them that be vnlerned as lerned / may lightly be had knowen and that with lytell studye And the sayd maximes be onely knoweÌ in the kynges courtes or amoÌge them that take great studie in the lawe of the realme / amonge fewe other persones Therfore they be set in this writtynge for seuerall groundes he that
lysteth may so accompte them / or if he wyll he may take theÌ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌt taketh awaye an entre ⧠Also that no prescripcion in laÌdes maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ of a êscripcioÌ generally takeÌ is froÌ the tyme that no maÌnes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ laÌdes gyueÌ in fee for terme of lyfe / or for tme of yeres though no meÌcioÌ be made of assignes / the same lawe is of a rent that is grauÌted / but otherwyse it is of a waraÌtie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌfirmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌtye / theÌ it shall barre hym of all right that he shall haue after the warrauÌtye made ⧠Also that a right or title of accioÌ that onely dependeth in accion can nat be gyueÌ nor graunted to none other but onely to the tenaunt of the grouÌde / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ a lease of laÌdes for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌde shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌgerbrother yet the laÌde shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌde / yet he may nat entre but he muste take his accioÌ that is appoynted hiÌ by the law ⧠Also there is a maxime iÌ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌde as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ of the Iuges except it be takeÌ fro the person / for if a maÌ take any thynge howe lytell so euer it be / from a maÌnes êson felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌt of felonie shal be admitted iÌ fauoure of lyfe to chaleÌge .xxxv. iurours pereÌtorily but if he chaleÌge any aboue that nombre / the law taketh hiÌ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌge as many as he hath cause of chaleÌge to And further it is to be vnderstaÌde that suche peremtorie chaleÌge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ other though it lye iÌ the opeÌ felde And therfore if a maÌ do a trespas theriÌ the writ shal be quare clausuÌ fregit ⧠Also that reÌtes / coÌmons of pasture of turbary reuercioÌs remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ may nat be gyuen nor grauÌted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ within a Capias lay in to the êcesse may withiÌ a yere after the recouerie haue a Capias ad satisfacienduÌ to take the bodye of the defendauÌt to coÌmit hiÌ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ the fyrst accioÌ theÌ the pleyntyfe shall haue no Capias ad satisfacieÌduÌ / but muste take a Fierifacias or an Elegit withiÌ the yere or a Scire facÌ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ be made to hym that at the tyme of the release made had no thynge in the laÌde cÌ the release or coÌfirmacioÌ is voyde except certaiÌ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ / ne that no maÌ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌcie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌcerie for it / but these maximes be chauÌged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ shall haue a writte of righte of course in the ChauÌcerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
the grouÌde of the sayde processe is to be referred onely to the maximes customes of the realmes And I haue shewed the these maximes before reherced / nat to the inteÌt to shew the specially what is the cause of the law in theÌ / for that wolde aske a great respite / but I haue shewed them onely to the inteÌt that thou mayste perceyue that the sayde maximes other lyke may conueniently be sette for one of the groundes of the lawes of Englande / moreouer there be diuers cases / wherof I am in doute whether they be onely maximes of the lawe or that they be grounded vpoÌ the law of reason / wherin I pray the let me here thyn opinion ¶ Doctoure I pray the shewe those cases that thou meanest I shall make the answere therin as I shall se cause â Hereafter foloweth diuers cases wherein the Student douteth whether they be onely maximes of the law or that they be grounded vpon the lawe of reason The .ix. Chapitre STudeÌt The law of EnglaÌde is that if a man coÌmaunde another to do a trespasse he doth it / that the coÌmauÌdour is a trespasser And I am in doute whether that be onely by a maxime of the law / or that it be by the law of reason ⧠Also I am in doute vpon what law it is grounded that the Accessory shall nat be put to answere before the principal cÌ â§ Also the lawe is that if an Abbot bye a thyng that commeth to the vse of the howse dyed that his successours shal be charge / I am somwhat in doute vpon what grounde that lawe dependeth ⧠Also that he that hathe possession of lande though it be by disseason hath right agaynste all men / but agaynste hym that hath ryghte ⧠Also that if an accion reall be sued agaynste any man that hath nothyng iÌ the thynge demaunded he writte shall abate as at the coÌmon lawe ⧠Also that the alienacioÌ of the tenauÌt hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman take an husbaÌde hangyng the writ / that the writ shall nat abate ⧠Also if lande rent that is goyng out of the same laÌde come in to one maÌnes haÌde of lyke estate lyke suertye of tytle / the rent is extincte ⧠Also if lande discende to hiÌ that hath right to the same lande before / he shal be remitted to his better tytle if he wyll ⧠Also if two tytles be concurraÌt togyther / the eldest tytle shal be preferred ⧠Also that euery man is bounde to make recompence for suche hurte as his beastes shall do in the corne or grasse of hys neyghboure though he knowe nat that they were there ⧠Also if the drmaundauÌt or playntyfe hangynge his writte wyll entre in to the thynge demauÌded this writte shall abate And it is many tymes very harde and of great difficultie to knowe what cases of the lawe of Englande be grounded vpon the law of reason / what vpon custome of the realme / thoughe it be harde to discusse it yet is very necessary to be knoweÌ for the knowele of the parfyte reason of the lawe / if any man thynke that these cases before reherced be grounded vpon the lawe of reason / then he maye referre them to the fyrste grounde of the lawe of Englande whiche is the lawe of reason / wherof is made mencion in the .v. Chepi And if any man thynke that they be grouÌded vpon the law of custome / then he may referre them to the maximes of the lawe / whiche be assigned for the thyrde grounde of the law of Englande / wherof mencion is made in the .viii. Chapitre as before appereth ¶ Doctoure But I praye the shewe me by what auctoritie is it proued in the lawes of EnglaÌde that the cases that thou haste put before in the .viii. Chapitre / and suche other whiche thou callest maximes oughte nat to be denyed / but ought to be taken as maximes / for sythe they can nat be proued by reason as thou agreest thy selfe they can nat / they may as lightly be denied as affermed onles there be some sufficient auctoritie to approue theÌ Â¶ Student Many of the customes maximes of the lawes of Englande be knowen by the vse and the custome of the realme so apparantly that it nedeth nat to haue any law written therof / for what nedeth it to haue any law written that the eldest sone shall enherite his father / or that all the doughters shall enherite togyther as one heyre / if there be no sone / or that the husbande shall haue the goodes chatels of his wyfe that she hath at the tyme of the spouselles or after / or that a bastarde shall nat enheryte as heyre / or that executours shall haue the disposicion of all the goodes of theyr testatoure if there be no executours that the ordinarie shall haue it / that the heyre shall nat medled with the goodes of his auncestre but any particuler custome helpe hym The other maximes customes of the law that be nat so openly knowen amonge the people maye be knowen partly by the lawe of reason partly by the bokes of the lawes of EnglaÌde called yeres of termes / partly by diuers recordes remaynynge in the kynges courtes in his tresorie And specially by a boke that is called the regestre / also by diuers statutes wherin many of the sayde customes / maximes be ofte resited / as to a diligeÌt sercher wyll euideÌtly appere â Of the .v. grounde of the lawe of Englande The .x. Chapitre STudent The .v. grouÌde of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / lordshyppes in this realme / the whiche êticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaiÌst the sayde generall customes or maximes of the law yet neuertheles they stande in effecte and be taken for law / but if it ryse iÌ question in the kynges courtes whether there be any suche êticuler custome or nat it shal be tryed by .xii. men / nat by the Iuges / except the same particuler custome be of recorde in the same courte Of whiche particuler customes / I haue hereafter noted some for an example ⧠Fyrste there is a custome in KeÌt that is called Bauelkynde / that al the bretherne shall enherit togyther as systers at the common lawe ⧠Also there is another particuler custome / that is called burgheÌglisshe wher the yoÌger sone shall enheryte before the eldest that custome is in Notynghame ⧠Also there is a custome in the cytie of LoÌdon that fre meÌ there / may by theyr testameÌt inrouled byqueth theyr laÌdes that they be seased of to whome they wyll / except to mortmayn And if they be cytizieÌs
no more there is of diuersite other estopelles / which were to loÌge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌde in coÌscience to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌde that the lawe is to be lefte for coÌscieÌce / where a thynge is tryed fouÌde by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌscience / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge â Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌgeth an accion of TrnÌs hath iugemeÌt to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌt by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌscience And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌscience I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded êued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌge to the value of the goodes And nowe I pray the shewe me some cases where coÌscieÌce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌnes shall inherite the lande togyther as doughters at the comon lawe and that in coÌscieÌce And there can be none other cause assigned why coÌscience in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌt of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌces had ben in the dede / the feffe had had ryght in coÌscience aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌscience to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌdyd the rent / and his heyre demauÌde the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌscience of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌscience ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌdynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌte for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
both iÌ lawe coÌscieÌce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ the reuercion nat the rent â Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌdyng the alienacion of her husbande shulde haue had ryght in lawe coÌscience to the one halfe of the lande And so in these two cases coÌscieÌce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌscieÌce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌscience / or the true iugemeÌt of coÌscience in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌde ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌscience maketh the coÌclusion sayth therfore the inheritaunce is in coÌscieÌce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌt of coÌscieÌce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌscience / that is to say inwardly iÌ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌselfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌcernyng theÌselfe as other that come to them for coÌceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the êfittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ coÌscieÌce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌde in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ this infauÌte that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌt made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌscieÌce be grouÌded that thou spekest of / for it can nat be grouÌded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌtes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌtractê be grouÌded vpon the lawe of reason / or at the leste vpoÌ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌded vpon that law that is called Ius gentiuÌ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌtractes be grouÌded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌtracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌtynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌme of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌde to no more / but to repaye the money that he receyued with resonable expeÌces in that behalfe / and so iÌ lykewyse me thynketh that in this case the infant may with good coÌscieÌce reentre in to his fyrst lande / bycause the coÌtracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌde to no more / but only to repay the money to hym that he solde his laÌde vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌt lawful coÌtracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that coÌscience shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat grouÌded vpoÌ the lawe of reason / but vpoÌ the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condicioÌs made vpoÌ lande shuld be voyd And whaÌ a condicioÌ is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter â The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamacioÌ be leuyed accordynge to the statute no clayme made within .v. yeres cÌ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ StudeÌt that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a coÌmon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeiÌte of title in the landes tenemeÌtes comprised in the fyne / It semeth that that fyne extiÌcted the title of all other / as well in conscieÌce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. â A questioÌ made by the Doctour / how certayne recoueries that be vsed iÌ the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whaÌ a man that is seased of laÌdes in the tayle selleth the lande That it is coÌmonly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaiÌst the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundauÌtes shall suppose in theyr writte declaracion that the tenaÌt hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupoÌ the sayde tenaunte in tayle shall appere in the court by coueÌ by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle iÌ the same terme at that day by assent couen of the partyes / he shall make defaulte vpoÌ whiche default bycause it is a default in despite of the court / the demaundauntê shall haue iugemeÌt to recouer agaynst the tenaunt in tayle / he ouer in value agaiÌst the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with conscieÌce that as it semeth aloweth fauoureth suche fayned recoueries ¶ StudeÌt If the tenaÌt in tayle sel the laÌde for a certayn suÌme of money as is agreed betwixte them at suche a pryce as is coÌmonly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth LeuiticeÌ xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the laÌde that is gyueÌ to him to
fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparauÌt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ StudeÌt To that some answere say that whan the lande is solde a recouery is had therupon in the kiÌges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundauÌtes shulde haue right to the lande where in trouthe they neuer had right therto whereupoÌ foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warrauÌte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ StudeÌt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenaÌt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupoÌ iugemeÌt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld staÌde with conscience / I praye the let me here thy coÌceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficieÌt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge HeÌry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whaÌ the parliameÌt gaue to suche recouerers auctorite to aduowe iustifie for suche reÌtes customes seruices as they recouered / that the enteÌt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue theÌ suche power / that the parliament shulde els be takeÌ in maner as fortifiers of wroÌg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr accioÌ afferme the possession of him or theÌ agaiÌst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they caÌ nat alege any continaunce of theyr title by theÌ / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenauÌt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are iÌ the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
rayle / nor the righte of entre that is gyuen by the statute / so as me semeth his nexte heyre maye therefore entre ¶ Student As I perceyue all thy dowte is in this case bycause the assent of the heyre was after the recouerie / for if it hadde ben at the tyme of the recouerie as if the heyre had ben vouched to warrantye in the same recouerie and he had enterred and thereupon the Iugemente had be gyuen thou agreest well / that that recouerye shulde haue auoyded the tayle for euer ¶ Doctoure That is true for it is in the expresse wordes of the statute / but whan the assente is after the recouerye / than me thynketh it is nat so / ne that the right of the fyrste tayle / whiche was reuyed by the sayde statute shall nat be extincte by his fyne / no more than it shall in other tayles ¶ Student I wyll be aduised vpon thy opinion in this mater / but yet one thynge wolde I moue ferther vpoÌ this statute and that is this Some saye that by this statute all other recoueries that haue ben had / ouer and beside these recoueries of ãâã be affermed / for they say that syth the parliameÌt at the makiÌg of this statute / knewe well that many other recoueries were than vsed and had to defete tayles and that it was lyke that they wolde so continue / which neuertheles the parliament dyd nat prohibite for the time to come as it dyde the sayde recoueries of ioyntours that it is therefore to suppose that they thought that they shulde staÌde with lawe and conscieÌce but bycause iointoures were made rather for the sauynge of the inheritaunce of the husbande / than to destroy the inheritaunce / they say that the parliament thought and adiuged the alienacions and recoueries of suche ioyntours to be agaynste the lawe and conscieÌce and nat the alienacion of other landes entayled / for if they had they say / that the parliament wolde haue aduoyded recoueries of tayled landes generally aswell as it dyd of recoueries of ioyntoures ¶ Doctoure As to that opinion I wyll answere the thus for this tyme / that though that the makers of the sayde estatute onely put awaye recoueries of ioyntoures / and nat other recoueries that yet it can nat be taken therfore that theyr entent was that the other recoueries shulde stande good and perfite / for they speke thaÌ onely of ioyntours bycause there was no complaynte made in the parliament at that tyme / but agaynst recoueries had of ioyntours / and therfore it semeth that they intended nothynge concernynge other recoueries but that they shulde be of the same effecte as they were byfore and no otherwyse And that will appere more playnly thus / though the makers of the sayd estatute entended to put awaye and adnull suche recoueries as shulde be made of ioyntours after a certayne day limitted in the statute / that yet they entended nat to aduoyde ne afferme suche recoueries of ioyntours as were passed byfore that tyme if they intended nat to aduoyde ne afferme the recoueries had of ioyntoures byfore that tyme than howe can it be taken that they intended to put awaye or afferme other recoueries that were passed byfore that tyme and nat of ioyntours / that wolde nat afferme ne put awaye recoueries passed of ioyntoures byfore that time And so as it semeth they intended to spare the multitude of them that were passed of bothe and nat to comforte any to take them after that tyme. ¶ Student I am contente thy oppinion stande for this tyme / and I wyll aske the another question â The .vi. question of the Student / concernynge tayled landes The .xxxii. Chapitre STudent If tenaunt in tayle be disseased / and dye and an auncestre collaterall to the heyre in tayle release with a warrauntye and dye / and the warraÌtye descendeth vpoÌ the heyre in the tayle / whether is he thereby barred in conscience / as he is in the law ¶ Doctour Bycause our principall inteÌt at this tyme is to speke of recoueries and nat of warraÌties and also bycause it hath ben of longe tyme takeÌ for a principall maxime of the law that it shuld be a barre to the heyre as well that claymeth by a fee simple as by a state tayly / and for that also that it was nat put away by the sayde statute of westminster the .i. which ordayned the tayle I wil nat at this time make the an answere then / but will take a respite to be aduised ¶ Student Than I praye the yet or we departe shewe me what was the moste principall cause that moued the so moue this question of recoueries had of tayled landes ¶ Doctour This moued me thereto / I haue perceyued many tymes that there be many dyuers oppinions of those recoueries whether they stande with conscience or nat / that it is to dowte that many persones reÌ into offence of conscience thereby And therefore I thought to fele thy mynde in them whether I coulde perceyue that it were clere / that they serued to breke the tayle in lawe conscience / or that it were clerely agaynste conscience so to breke the the tayle / or that it were a mater in dowt and if it appered a matter in dowte / or that it appered that the matter were vsed clerely agaynste conscience / than I thoughte to do somwhat to make the mater appere as it is to the intent that they that haue the rewle and the charge ouer the people as well the spirituall men as temporall men / shulde the rather endeuer them to se it reformed for the common welth of the people / as well in bodye as in soule For whan any thynge is vsed to the displesure of god / it hurreth nat onelye the body but also the soule And teÌporall rewlers haue nat onely cure of the bodyes / but also of the soules / and shall answere for them if they perysshe iÌ theyr defaute and bycause it semeth by the more apparaunt reason that the tayles be nat brokeÌ ne fully auoyded by the sayd recoueries / that yet neuertheles the great multitude of theÌ that be passed is righte moche to be pondered Therefore it were very good to prohibite them for tyme to come / to put awaye suche ambiguities and dowtes as ryse now by occasion of the sayde recoueries / and so they be but as snares to deceyue the people / and so wyll they be as longe as they be suffered to continue And me thynketh verily that it were therfore right expedieÌt that tayled landes shulde from hensforthe eyther be made so stronge in the lawe that the tayle shulde nat be brokeÌ by recouerie fyne with proclamacion collaterall warrantye nor otherwyse / or els that all tayls shulde be made fee simple / so that euery man that liste to sell his lande mighte sell it by his bare feoffement and without any scriple or gruge of conscience thaÌ
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ this case that he shulde be coÌpelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌpted to offeÌde the lawe it semeth reasoÌ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ were vntrue / the defendauÌt nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌce in lawe also in conscieÌce / that for this cause / the kyng as souereyne hed of the lawe is bouÌden of iustice to grauÌt such writtes and such êcesses as be oppoynted in the lawe to euery êsone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ he is nat gyltye as whan he is gyltie / thaÌ whaÌ there is no maxime in the lawe that if a man be outlawed in suche maner as before apêeth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ whether the accioÌ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌscience as wel as if the accion were true And than the êtie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ Â¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌt of the owner it is to coÌsydre that the êpertie of goodê be nat gyueÌ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ / but after they were brought by the lawe of man into a certeyne êpertie so that euery man myght knowe his owne thaÌ whan such êpertie is gyueÌ by the law of maÌ the same lawe may assigne such coÌdicioÌs vpoÌ the êpertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the êperty shall continue And one coÌdicioÌ that goeth with euery êperty iÌ this realme is if he that hathe the êperty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ was made vpoÌ a better coÌsideracion than this forfayture of outlagary was For if no especiall punisshemeÌt shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ to the kyng therby is good in coÌscieÌce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌpence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌdes that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
the straunger be nat sufficient to make recompence for the wast done ¶ Doctoure Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenauÌt for terme of lyfe thoughe that he assented nat to the doyng of the wast ¶ Student ye verely / and yet if the tenauÌt for terme of lyfe had ben bouÌden in an obligacion in a certeyne suÌme of money that he shulde do no waste he shuld nat forfayt his boÌde by the wast of a strauÌger / and the diuersite is this It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenauÌt in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe thaÌ was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shal be iuged aft the same lawe as the other cases be syth no resoÌ of diuersite can be assigned why thete naÌt for terme of lyfe after an accioÌ of wast was gyueÌ agaynst hiÌ shuld haue any more fauour iÌ the lawe thaÌ the tenaÌt by the curtesie or tenauÌt iÌ dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre none to be done / and so it semethe that the lawe in this case dothe nat considre the abilite of the persone that dothe the waste whether he be able to make recompeÌce for the wast or nat But the assent of the sayd tenauntes wherby they haue wylfully taken vpon theÌ the charge to se that no wast shal be done ¶ Doctor I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast ¶ Student Trouthe it is ¶ Doct. And I thynke the reason is bycause they can haue no recouere ouer ¶ Student I take nat that for the reason but that it is an olde reasonable maxime iÌ the lawe that they shuld be discharged iÌ those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst reason and nat to be obserued / but yet neuertheles I take it nat so / for they myght refuse to take suche estate if they wolde / and if they wyll take the state after the lawe made it semeth reasonable that they take it with the charge and with the condicion that is appoynted therto by the lawe thoughe hurte myght folowe to theÌ afterward therby / for it is oftentymes sene iÌ the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wylfully renne into it of his owne acte nat coÌpelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after bloweÌ downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shal be bouÌde to repayre them or els he shall forfayte his obligacioÌ in lawe conscience bycause it is his owne acte to bynde hiÌ to it / yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore So me thiÌketh that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whaÌ the houses be destroyed by sodeyne tempest or by straunge enemyes is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr peryl se that no waste shal be done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpeÌ by the lawe of reason / it semeth that he shal be charged in this case by his owne acte bothe in lawe conscience whether the straunger be able to recompence hym or nat ¶ Doctour I doute iÌ this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other For that lawe semeth nat reasonable that byndeth a man to an impossibilite And it is impossible to preuent that no wast shal be done by straungers / for it may be sodeynly done iÌ the nyght that the tenauÌtê can haue no notice of / or by great power that they be nat able to resyste / and therfore me thiÌketh they ought nat to be charged in those cases for the waste / without they may haue good remedy ouer and thaÌ percase the sayd maxime were sufferable / els my thynketh it is maxime agaiÌst reason ¶ StudeÌt As I haue sayd before no man shal be compelled to take that boÌde vpon hym but he that wyll take the lande and if he wyll take the lande it is reasoÌ he take the charge as the lawe hath appoynted with it / and thaÌ if any hurte growe to hym therby it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde ¶ Doctoure Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womaÌ may refuse to take her dower yet tenauÌt by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe the possession abideth styll iÌ hym by the acte of the lawe without entre / and thaÌ I put the case that after the deth of his wyfe he wolde weyue the possessioÌ after wast were done by a strauÌger whether thiÌkest thou that he shuld answere to the wast ¶ Stu. I thynke he shulde by the lawe ¶ Doct. And howe staÌdeth that with reasoÌ / seyng there is no defaut iÌ hiÌ Â¶ Stu. It was his defaut / at his owne peryll that he wolde marye an enheritrice whervpon such dauÌger myght folowe ¶ Doc. I put case that he were withiÌ age at the mariage or that the laÌde disceÌded to his wyfe aft he maried her Stu. there thou mouest a ãâã doute than the fyrste question is /
thynketh iÌ this case that the feoffe oughte in coÌscyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too haue her dower ¶ Student Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaunde her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande whervnto any womaÌ hath tytle of dower hath good auctorytye as agaynste her to take the êfytes tyll she requyre her dower for euery womaÌ that demaundeth dower affermeth the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyoÌ she leueth the reuercyon alwey in him agaynst whome she recouereth thoughe he be a dysseasour bryngeth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he appere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / so he shall nat be receyued to do iÌ a wryt ofcosynage nether iÌ the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe iÌ this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the requeste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon ¶ Doctour As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is required / but whan he refuseth to assigne it than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe And fyrste as for the tyme after the refusell it appereth euidentely that whan he denied to assigne her dower he dyd agaynste conscieÌce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully ought in conscience to yelde damages therfore And as to the defaute that thou assignest in her that she toke nat her accioÌ / that forceth lytel for accioÌs nede nat / but where the partie wyll nat do that he ought to do of ryght And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye theÌ / for whan he was requyred to assygne dower and refused It appereth that he neuer inteÌded to yelde dower fro the begynnyng / so he is a wrong doer in his owne coÌscience / and more ouer if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womaÌ bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat iÌ that case after thyne opinioÌ to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here ¶ Studente The cause in that case that thou haste put is for that the statute is general that the demauÌdauÌt shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the tenaunt maye nat saye that he is and hathe ben alway redy to yelde dower cÌ that the demaundaunt shall recouer damages fro the dethe of her husbande But in this case there is no law of the realme that helpeth for the damaundauÌt neyther comon lawe nor statut / forthermore though it myght be proued by his refusell that he neuer entended fro the deth of the husbande to assigne her dower yet that proueth nat / but that he had good ryght to take the êfites of her thyrde parte for the tyme as well as he had of his owne two partes tyl request be made as is afore sayd / and so me thynketh that nat withstandyng the denyer he is nat bounde to yelde damagê in this case but fro the tyme of the request / and nat for the tyme byfore ¶ Doctoure For this tyme I am content with thy reason ⧠The .xii. question of the student The .xiiii. Chapitre STudent A maÌ seased of certayne landê knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in coÌscieÌce as he may do by the lawe ¶ Doctoure By this question it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght that his ryght shulde than be extyncted by the fyne in conscience ¶ Student ye verely / for thou dydest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth But if he that leuyeth a fyne and that wolde extyncte the ryghte of an other / knowynge that the other hathe more ryghte than he than I doute therin for I take thyne opinion in our fyrste dialogue to be vnderstaÌde in conscience where he that wolde extincte former ryghtes by suche a fyne with proclamacioÌ knoweth nat of any former tytle but for his more surety if any suche former ryght be he taketh the remedy that is ordeyned by the lawe ¶ Doctoure Whether dost thou meane in this case that thou puttest now that he that hath right knoweth of the fyne and wylfully lettethe the .v. yere pas without claime or that he knoweth nat any thynge of the fyne ¶ Student I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat ¶ Doctour I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a lytell sparyng and procede nowe for this tyme to some other question ⧠The .xiii. question of the student The .xv. Chapitre STudent A man seased of certayne landes in fee hath a doughter whiche is his heyre apparauÌte / the doughter taketh a
market had nat excused hym Also if a man reteyne a nother mannes seruaunt nat knowynge that he is reteyned with hym / that ignoraunce excuseth hym bothe for the offence that was at the comoÌ lawe agaynst the maxime that prohibited suche reteynynge of a nother mannes seruauÌt And also agaynst the statute of .xxiii. of Edwarde the .iii. whereby it is êhibite vpon payne of inprysonemente that none shall reteyne no seruaunte that departeth within his terme without licence or reasonable cause / for it hath ben alwaye taken that the intente of the makers of the sayde statute was that they that were ignorauÌt of the fyrste reteynoure shulde nat renne in any penaltye of the statute And the same lawe is of hym that reteyneth one that is warde to another / nat knowynge that he is his warde And if homage be due the tenaunt after that the homage is due maketh a feoffement / after the lorde nat knowynge of the feoffement distreyneth for the homage in that case that ignoraunce shall excuse hym of dammages in a Repleuin / thoughe he can nat auowe for the homage but if he had knowen of the feoffemente he shulde haue yelded damages for the wroÌgfull takynge Also if a man be bouÌde in an obligacioÌ that he shall repayre the houses of hym that he is bounde to by suche a certayne tyme as ofre as nede shall require / after the houses haue nede to be repayred but he that is bounde knoweth it nat / that ignorauÌce shall nat excuse him for he hath bounde hym selfe to it / so he muste take knowlege at his peryll / but if the condicioÌ had ben that shulde repayre suche houses as he to whome he was bounde shulde assigne / after he assigneth certayne houses to be repayred / but he that is bounde hath no knowlege of that assignement / that ignoraunce shall excuse hym in the lawe / for he hath nat bounde hym selfe to no reparacioÌs in certayne / but to suche as the party will assigne / and if he none assigne he is bouÌde to none / therfore syth he that shuld make the assignement is priuye to the dede he is bounde to gyue notice of his owne assignement / but if the assignement had ben appoynted to a strauÌger thaÌ the oblegour muste haue taken knowlege of the assignement at his peryll Also if a man bye laÌdes whereunto a nother hath title whiche the byer knoweth nat / that ignoraunce excuseth hym nat in the lawe no more than it dothe of goodes Also if a seruaÌt come with his maysters horse to a towne that by custome may attache goodes for det / vpon a playnte agaynst the seruauÌte an officer of the towne by informacion of the party attacheth the maysters horse thynkynge that it were the seruantes horse / that ignoraunce excuseth hym nat / for whan a man wyll do an acte as to entre in to lande / sea se goodes / take a distresse or suche other / he muste by the law at his peryll se that that he doth be lawfully done as in the case before reherced And in lykewyse if a shyryfe by a repleuyn deliuer other beastes than were distreyned / thoughe the partye that distreyned shewed hym they were the same beastes / yet an accion of trespas lyeth agaynst hym / ignoraunce shall nat excuse hym for he shal be compelled by the law as all officers comonly be to execute the kynges writte at his peryll accordynge to the tenour of it to se that the acte that he dothe be lawfully done But otherwyse it is after some men if vpon a somons in a Precipe quod reddat the shyryfe by informacion of the demaundaunt somoneth the tenauÌt in a nother maÌnes lande thynkynge it for the tenauntes lande there they say he shal be excused / for in that case he dothe nat sea se the lande ne take possession in the lande / but onely dothe somon the tenaunt vpoÌ the lande / the writte coÌmaundeth hym nat that he shall somon the tenaunt vpon hys owne lande but generally that he shall somon hym nameth nat in what lande than by an olde maxime in the lawe it is taken that he shall somon hym vpon the laÌde in demaunde / therfore though he mistake the lande ignoraunt of it / yet if the demaundaunt enforme hym that that is the lande that he demaundeth that suffyseth to the shyryfe as to his entre for the so monynge as they saye though it be nat the tenauÌtes lande And here I make an ende of these questions for this tyme. ¶ Doctour I praye the yet or we departe take a litell more payne at my desire ¶ StudeÌt what is that ¶ Doctour That thou woldest shewe me thy mynde in diuers cases of the law of the realme / whiche as me semeth stande nat so clerely with conscience as they shulde do And therfore I wolde gladly here thy conceyte therein how they may stande with conscience ¶ Student Put the cases I shall with good will say as I thynke to them ¶ Addition â The fyrste question of the Doctour Howe the lawe of Englande maye be sayd reasonable that prohibiteth them that be arreyned vpon an Inditemente of felony or murdre to haue couÌcell The .xlviii. Chapitre STudent Me thynketh that the lawe in that poynte is very good indifferent takynge the lawe therein as it is ¶ Doctoure why what is the lawe in this poynt ¶ Student The lawe is as thou sayst that he shall haue no couÌcell / but thaÌ the law is ferther / that in all thynges that perteyne to the ordre of pledynge the Iuges shall so instructe hym so ordre hym that he shall renne into mo ieopardye by his mispleadyng / as if he wyll pleade that he neuer knewe the man that was slayne / or that he neuer had a peny worthe of the goodes / that is supposed that he shulde steele in these cases the Iuges are bouÌde in conscience to enforme hym that he muste take the general yssue plede that he is nat gyltye / for thouh they be set to be ãâã bytwene the kynge the partye as to the partye as to the principall matter as they be in all other matters yet they be ãâã this case to se that the partye haue no hurt in fourme of pleadynge in suche induces as he shall shewe to be the truthe of the matter / that is a greate fauoure of the lawe / for iÌ appell though the Iustices of fauour wyll moste comonly helpe fourth the partye soÌtyme his counsell also in the forme of pleadynge as they do also many tymes in common plees / yet they might in tho cases if they wolde byd the party his counsayle plede at theyr peryll But they maye nat do so with conscience vpon enoââementes as me semeth / for it were a greate vnreasonablenes in the lawe if it shulde prohibit hym that standeth in ieopardy of his lyfe that he shulde
saÌde that the owner if he proue the goodes within a yere a daye to be his shall haue theÌ whereby the sayde lawe of wreckes of the see is made more sufferable thaÌ it was before / some thynketh in this case that this warrantie is no barre in coÌscience though it be a barre in the law ¶ StudeÌt I pray the kepe that case of wrecke of the see iÌ thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warraÌtye shal be a barre is good resonable / for it semeth nat agaiÌst reason that a man shal be bounde as to teÌporall thynges by the acte of his auÌcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hiÌ made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no grouÌde nor coÌsideracioÌ to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse iÌ this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this maÌ had asses by discent fro the auÌcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligacioÌ the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with conscieÌce And lyke law is where a maÌ is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hiÌ though he haue no assesse fro the same auÌcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to teÌporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ StudeÌt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can â The thyrde question of the Doctoure if a man procure a collaterall warraÌtye to extincte a right that he knoweth a nother man hath to laÌde / whether it be a barre in conscience as it is iÌ the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne laÌde the disseasoure selleth the laÌde cÌ the aliene knowynge of the disseason optayneth a release with a waraÌtye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warraÌtye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ StudeÌt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takeÌ for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the laÌde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warraÌtie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the laÌde may nat with coÌscieÌce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be coÌsidered in the lawe but it be in very speciall cases / for if suche alegiauÌce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpoÌ euery light surmise all writtinges might come iÌ triall whether they were made with coÌscieÌce or nat Therfore to auoyde that incoÌuenieÌce the law will driue the partye to aÌswere onely whether it be his dede or nat / nat whether the dede were made with conscieÌce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thaÌ the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by coÌpulcion of hym leuye a fyne / yet the woman after her husbaÌdes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incoÌuenieÌce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
enfeffed hym as before apereth it is vsed that he shall plede ferther saye that the pleyntyfe claming in by a coloure of a dede of feffemeÌt made by the sayd feffo r before the feffemente made to hym / where nought passed by the dede eÌtred / vpoÌ whome he entred asketh iugemente if the assiselye agaynste hym In this case bycause it appereth to be a dout to vnlerned meÌ whether the lande passe by the dede without lyuerey or nat / therfore the lawe suffreth the tenaÌt to haue that speciall matter to bring the matter to the determinacion of the Iuges And in suche case the Iuges may nat put the tenant fro the plee / for they knowe nat as Iuges but that it is trewe / so if any defaut be it is in the tenaunt nat in the court And though the trouthe be that there were no suche dede of feoffemeÌt made to the playntyfe as the tenaunt pleadeth / yet me thynketh it is no defaute in the tenant for he dothe it to a good inteÌt as before appereth ¶ Doctour If the tenante knowe that the feoffour made no suche dede of feoffement to the pleyntyfe / thaÌ there is a defaut in the tenant to plede it / for he wittingly sayth agaynste the trouthe / it is holden by all doctours that euery lye is an offence more or lesse / for if it be of malice to the hurte of his neyghbour / than it is called MendaciuÌ permiciosum that is dedely synne And if it be in sporte to the hurte of no man / nor of custome vsed / ne of pleasure that he hath in lyenge / than it is veniall synne / is called in latine meÌdacium iocosum And if it be to the profite of his neyghbour to the hurte of no man than it is also veniall synne / is called in latine mendacium officiosum And though it be the leeste of tho thre yet it is a veniall synne wolde be eschewed ¶ Student Thoughe the mydwyfes of Egipte lyed whan they had reserued the male chyldreÌ of the Ebrewes / saiÌg to the kyng Pharao / that the Ebrewes had women that were connyng in the same crafte whiche or they came had reserued the chyldren alyue where in dede they theÌselfe of pytye of drede of god reserued them yet saint Ierome expouÌdeth the texte folowyng whiche sayth that our lorde therfore gaue theÌ houses that it is to be vnderstande that he gaue them spirituall houses that they had therfore eternall rewarde / if they synned by that lye all though it were but veniall / yet I caÌ nat se howe they shulde haue therfore eternall rewarde And also if a man intending to slee a nother aske me where that man / is it nat better for me to lye to say I can nat tell where he is though I know it / thaÌ to shewe where he is whereupon murder shulde folowe ¶ Doctour The dede that the mydwyfes of Egipte dyd in sauing that chyldren was meritorious deserued rewarde euerlastinge if they beleued in god dyd good dedes beside as it is to presume they dyd / whan they for the loue of god refused the dethe of the Innocentes / than though they made a lye after whiche was but veniall synne that coulde nat take fro them theyr rewarde / for a veniall synne dothe nat vtterly extincte charitie but letteth the feruour therof therfore it maye well stande with the wordes of saynt Ierome that they had for theyr good dede eternall houses / yet the lye that they made to be a veniall synne / but neuertheles if suche a lye that is of it selfe but veniall be affirmed with an othe / it is alwaye mortall if he know it befalse that he swereth And as to the other question it is nat lyke to this question that we haue in hande as me semeth / for somtyme a man for eschewing of the greater euyll may do a lesse euyll / than the lesse is no offence in hym / so it is in the case that thou hast put wherin bycause it is lesse offeÌce to say he wotteth nat where he is though he knowe where he is than it is to shewe where he is / wherupon murdre shulde folowe / it is therfore no synne to saye he wotteth nat where he is / for euery maÌ is bounde to loue his neyghbour if he shewe in this case where he is knowynge his dethe shuld folowe therupon it semeth that he loued hym nat / ne that he dyd nat to hiÌ as he wolde be done to / but iÌ the case that we be in here / there is no suche synne eschewed / for though the partie pleded the generall issue the iury might finde the trouth in euery thyng / therfore in that he sayth that the pleyntyfe claymiÌge in by the colour of a dede of feffement where nought passed entred cÌ knowynge that there was no suche feffemeÌt it was a lye in hym a veniall synne as me thynketh And euery maÌ is boundeÌ to suffre a deedly synne in his neyghbour / rather than a veniall synne in hiÌselfe ¶ StudeÌt Though the Iury vpoÌ the generall issue may finde the trouth as thou sayste / yet it is moche more daungerous to the Iury to enquere of many poiÌtê thaÌ to enquere onely of one poiÌt And for as moch as our lord hath gyueÌ a coÌmauÌdemeÌt to euery maÌ vpoÌ hê neyghbour / therfore euery maÌ is bouÌd to forse as moch as iÌ hiÌ is that by hiÌ no occasioÌ of offeÌce come to hê neyghbor. And for the same cause / the law hath ordeined diuers maximê principles whereby issues in the kynges court may be ioyned vpon one poynte in certayne as nyghe as may be / nat generaltye / lest offence might folowe therupon agaynst god / a hurte also vnto the Iuri / wherfore it semeth that he loueth nat in hys neyghboure as hym selfe ne that he dothe nat as he wolde be done to that offereth suche daunger to his neyghbour where he may well conueniently kepe it fro hym if he will folowe the order of the lawe / it semeth that he putteth hym selfe wilfully an ieoperdye that dothe it / it is written Ecclesiastici .iii. Qui amat periculum in illo peribit / that is to say / he that loueth peryl shall perysshe in it / and he that putteth his neyghbour in peryll to offende putteth hiÌ selfe iÌ the same / so shuld he do me semeth that wolde wilfully take the generall issue where he mighte coÌuenieÌtly haue the speciall matter / ferthermore it is none offeÌce in princes rulers to suffre coÌtractes and byeÌg selliÌg in markettes / fayres / though bothe periure disceyte will folowe therevpon / bycause suche contractes be necessarye for the comon welthe / so it semeth lykewyse that there is no defaute in the partye that pleadeth suche a special mater
to auoyde fro his neyghbour the daunger of periurie / ne yet in the court though they enduce hym to it / as they do somtyme for the intent before reherced / in lykewyse some wyll say that if the rulers of Cytyes communaltyes somtyme for the punisshement of felons / murderers / such other offenders wyll to the inteÌte they wolde haue theÌ to coÌfesse the trouth say to theÌ that be suspected that they be informed in such certayne defautes or misdemeanours iÌ the offenders that they do to the intente to haue theÌ to confesse the truth that though they were nat so informed that yet it no offence to saye they were so iÌformed bycause they do it for the comoÌ welthe / for if offenders were suffered to go vnpunisshed the comon welth wolde soone decay vtterly perysshe ¶ Doctour I wyll take aduisemeÌt vpoÌ the reason in this matter tyll an other season I wyll now aske the another question somwhat lyke vnto this I praye the let me here thy mynde therein ¶ StudeÌt Let me here thy question and I shall with good wyll say as I thynke therein ¶ Addition â The .vii. question of the Doctoure concerneth the pleadynge in assise whereby the tenauntes vse soÌtyme to pleade in such maner that they shall coÌfesse no ouster ⸫ The .liiii. Chapitre DOctoure It is comonly vsed as I haue herde say that whan the tenaÌt in assise pleadeth that a strauÌge our was seased enfeoffede hym gyueth the plaiÌtyfe a colour in suche maner as before appereth in the .liii. chapitre / that the tenant many tymes whan he hath pleaded thus the pleyntyfe claymyng in by a colour of a dede of feoffemente made by the sayd strauÌgeour / where nought passed by the dede entred / that than they vse to say ferther vpon whome A. B. entred vpon whome the tenant entred / where in dede the sayd A. B. neuer entred / ne haplye there was neuer no suche man Howe can thys pleadynge be excused of an vntruthe / and what reasonable cause can be why suche a pledynge shulde be suffred agaynste the trouthe ¶ Student The cause why that maner of pleading is suffred is this If the tenauÌt by his pleadyng coÌfessed an immediate entrye vpoÌ the plaiÌtyfe or an immediate putting out of the playntyfe / whiche in frenche is called an oustre / thaÌ if the title were after founde for the playntyfe the tenauÌt by his confession were attayned of the disseason And bycause it maye be that though the playntyfe haue good title to the lande that yet the tenauÌt is no disseasour Therfore the tenauÌtes vse many tymes to pleade in suche maner as thou hast sayd before to saue them selfe fro coÌfessing of an oustre / so if there be any defaut it is nat in the courte ne in the lawe / for they know nat the trouth therin tyll it be tried me thynketh also that there is in this case right litle defaut or none in the tenaÌt nor in his couÌsell / specially if the couÌcell know that the tenant is no dissesour But as to that poynt I praye the that lyke as thou haste takeÌ a respite to be aduysed or that thou shewe thy ful mynde in the questioÌ of a colour gyueÌ in assise whereof mencioÌ is made in the sayde .liii. chapitre / that I in lykewyse maye haue a lyke respyte in this case tyll other tyme to be aduised / than I shall with good wyll shewe the my full mynde therin ¶ Doctour I am content it be as thou sayest but I pray the that I may yet adde a nother question to the two questioÌs before rehersed of the colours in assise fele thy mynde therein / bycause that sowneth moche to the same effecte that the other do that is to saye to proue that there be diuers thynges suffred in the law to be pleaded that be agaynst the trouthe / I pray the let me hereafter knowe thy mynde in all thre questioÌs / thou shal thaÌ with a good wyll knowe myne ¶ Student I praye the shewe me the case that thou spekest of ¶ Doctoure If a maÌ stele an horse secretely in the nighte It is vsed that there vpon he shal be Indyted at the kynges suyte / it is vsed that in that Indytement it shal be supposed that he suche a daye place with force armes / that is to saye / with staues / swordes / knyues cÌ felonouslye stele the horse agaynst the kinges peace / that fourme muste be kepte in euery Indytement / though the fellon had neyther sworde nor other weapoÌ with hiÌ but that he came secretely without weapoÌ Howe can it therfore be excused but that therein is an vntrouthe ¶ Student It is nat alleged in the Indytement by matter in dede that he had suche weapon / for the fourme of an Indytement is this Inquiratur pro domino Rege si A. tali die Anno apud talem locum vi armis videlicet gladus cÌ talem equam talis hominis felonice cepit cÌ And than the twelue meÌ be onely charged with the effect of the byl That is to saye / whether he be gylty of the felonye or nat / nat whether he be gyltye vnder suche maner and fourme as the bylle specifieth or nat / and so whan they saye billavera they saye trewe as they take the effecte of the bylle to be And therefore if there were false latine in the byll of Indictement the Iury sayth billa vera yet theyr verdit is trewe / for theyr verdite stretcheth nat to the trouth or fals hede of the latine but to the felonye / ne to the fourme of the wordes but to the effect of the mater / that is to enquyre whether there were any suche felonye done by that person or nat / though the byll vary from the day / fro the yere / also from the place where the felony was done in / so it vary nat fro the Shyre that the felony was done in And the Iury saythe billa vera they haue gyueÌ a trew verdite / for they are bouÌde by theyr othe to gyue theyr verdite accordinge to the effecte of the byll nat accordinge to the fourme of the byll And so is he that maketh auow bouÌde likewyse to that that by the law is the effecte of his auowe / nat onely to the wordes of his auow As if a man auowneuer to eat whyte meate / yet in tyme of extreme necessitie he may eate whyte meat rather thaÌ dye nat breke his auow thoughe he affermed it with an othe / for by the effecte of his aduowe extreme necessitye was excepted though it were nat expressely excepted in the wordes of the auowe / and so lykewyse though the wordes of the byl be to enquire whether suche a maÌ suche a daye yere in suche a place dyd suche a felony / yet the effecte
that do assoyle hym / but yet neuertheles he is assoyled / and if he be nat able to make amendes that he muste yet be assoyled / takynge a sufficiente gage to satysfie yf he be able here after / or elles that he make an othe to satisfie if he be able And these sayenges in many thynges holde nat in the lawes of Englande ¶ Doctoure I pray the shewe me wheriÌ the law of the realme varieth therfro ¶ StudeÌt If a man be excommunicate in the spirituall courte for det / trespas / or suche other thynges as belong to the kynges crowne to his royall dignite there he oughte to be assoyled without makynge any satisfaccion / for the spirituall courte exceded theyr power in that they helde ple in those cases the party if he wyll may therupon haue a Premunire facias as well agaynste the partye that sued hym as agaynst the iuge therfore in this case they oughte in conscience to make absolucion withoute any satisfaccion / for they nat onely offeÌded the party in callynge hym to answere before theÌ of suche thynges as belong to the law of the realme but also the kynge / for he by reason of suche sutes maye lese greate aduauntages by the reason of the writtes originals / iudicials / fynes / amerciamentes / suche other thynges as mighte growe to hym if suche sutes had beÌ takeÌ in his courtes accordynge to his lawes / accordyng to his saynge it apperet in diuers statutes that if a man laye violent handes vpon a clerke bete hym / that for the betynge ameÌdes shal be made in the kynges court / for the layeng of violent haÌdes vpoÌ the clerke amendes shal be made in the courte cristieÌ And therfore if the iuge in the court cristieÌ wolde awarde the partie to yelde damages for the betynge he dyd agaynste the statute / but admitte that a man be excommenged for a thynge that the spirituall courte may awarde the party to make satisfaccioÌ of / as for the nat inclosinge of the churche yarde / or for nat apparelliÌge of the churche conueniently Than I thynke the partye muste make restitucion or lay a sufficiente causion if he be able or he be assoyled / but if the partye offre sufficient ameÌdes haue his absolucion / the iuge wyll nat make hym his letters of absolucion if the excommengemente be of recorde in the kynges courte thaÌ the kynge may writte vnto the spirituall iuge coÌmaundyng hym that he make the party his letters of absolucion vpon payn of a contempte / if the sayd excommunicacioÌ be nat of recorde in the kynges courte than the partye maye in suche case haue his accion agaynst the Iuge spirituall for that he wolde nat make hiÌ his lettres of absolucion but if he be nat assoyled or if he be nat able to make satisfaccion therfore the iuge spirituall wyll nat assoyle hym / what the kynges lawes maye do iÌ tha case I am somwhat in doute / and wyll nat moche speke of it at this tyme / but as I suppose he may as well haue his accion in that case for the nat assoylynge hym as where he is assoyled that the Iuge will nat make hiÌ his letters of absolucion / I suppose the same law to be where a maÌ is accursed for a thyng that he iuge had no power to accurse hiÌ in / as for dette / trespasse / or suche other ¶ Doctor. There he may haue other remedies as a premunire facias or suche other / therfore I suppose the other accioÌ lieth nat for hiÌ Â¶ Student The iuge the partie may be ded / thaÌ no premunire lieth / though they were alyue were coÌdeÌpned in a Premunire / yet that shulde nat auoyd the eâcoÌmengement / therfore I thynke the accion lieth specially if he be therby delayed of accions that he might haue in the kynges court if the sayd excoÌmengement had nat ben â Whether a Prelate may refuse a legaci The .xxxiii. Chapitre STudeÌt It is moued in the sayd summe named Rosella in the title alienacio xx the .xi. article whether a pÌlate may refuse a legaci / where in diuers opynions be recited there / whiche as me thynketh haue nede after the lawes of the realme to be more playnly declared ¶ Doctoure I praye the shewe me what the law of the realme will therin ¶ StudeÌt I thinke that euery pÌlate suffereyn that may onely sue be suyd in his owne name as Abbates ⪠Priours suche other may refuse any legaci that is made to the house for the legacie is nat perfyte tyl he to whome it is made assent to take it for els if he mighte nat refuse it he might be compelled to haue laÌdes wherby he myghte in some case haue greate losse but than if he intende to refuse he muste as sone as his title by the legacy falleth relinquisshe to take the profites of the thyng bequethe / for if he ones take the profites therof he shall nat after refuse the legaci but yet his successour may if he will refuse the takynge of the profites to saue the house fro yeldynge of damages or fro arrerages of rentes if any suche be lyke lawe is of a remayndre as is in legaci for though in the case of a remaindre also of a deuise as moste men say the freholde is caste vpon hym by the lawe whan the remayndre or deuise falleth yet it is in his libertie to refuse the takynge of the profites to refuse the remaiÌdre or deuise if he wyll as he myghte do of a gyfte of landes or goodes for if a gyfte be made to a man that refuseth to take it / the gyfte is voyde if it be made to a man that is absent the gifte taketh nat effecte in hym tyll he assent no more than if a maÌ dissease one to another maÌnes vse / he to whose vse the disseason is made hath nothyng in that laÌde ne is no disseasoure tyll he agre And to suche disseasons gyftes an Abbot or Priour may disagre as well as any other maÌ but after some men a Bisshope of a deuise or remayndre that is made to the Bisshop to the deane chapitre nor a deane and a chapitre of a deuise or remayndre made to theÌ ne yet the mayster of a colage of suche a deuise or remayndre made to hiÌ to his bretherne / maye nat disagre withoute the chapitre or bretherne for the Bisshoppe of of suche landes as he hath with the deane chapitre ne the deane nor mayster of suche lande as they haue with the chapitre or bretherne may nat answere without the chapitre bretherne therfore some saye that if the deane or mayster wyll refuse or disclayme in the landes that they haue by the deuise or remaindre that that disclaymour without the chapitre or bretherneis voyde And therfore it is holdeÌ in