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 thiÌ„kest 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 couÌ„ceyllest 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 ¶ StudeÌ„t 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 questioÌ„s coÌ„cernynge 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 ∴ ☞ 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 coÌ„science 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 coÌ„science to barre a tayle ☞ 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 enteÌ„deth 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 tenaÌ„t by the curtesy that is to say of hiÌ„ that happeneth to marye one that is an eÌ„heritrix of the laÌ„de entayled they haue issue the wyfe dyeth the issue dyeth / he shal holde the laÌ„des for terme of his lyfe as tenaÌ„t 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 inteÌ„ded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / so it semeth that a lyke enteÌ„t 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
saye if a man make a feoffement in fee vpon condiciō that the feffe shall nat alien it to any man that condiciō is voyde for it is incidente to euery state of the fee simple that he that is so seased may alien And lyke as in a fee simple there is incident a power to aliene / so in a state tayle there is a secrete intent vnderstande in the gyfte / that no alienacion shal be made And therefore thoughe the intente of the sayde Iohan at noke were that if he fell in to pouertie that he might sel though he at the takynge of the gyfte openly declared his intente to be so / yet that intent shulde be voyde by the lawe as me semeth and if it be voyde by the lawe it is also voyde in conscience / and so the sayde recouery muste be taken in this case to be of the same effecte as recoueryes of other landes intayled be / and in none other maner ☞ The .iiii. question of the Student / cōcernynge recoueryes of enheritaūce entayled The .xxx. Chapitre STudent If an annuite be graunted to a man to haue to perceyue to the graunt and to the heyres of his body of the cofers of the grauntour And after the graunte suffereth a recouere agaynste hym in a writte of entre by the name of a rent in dale of lyke summe as the annuite is of with vouchers iugemēt after the cōmon course / bothe parties intende that that annuite shal be recouered whether shal that recouere binde the heyre ī the tayle of his annuite ¶ Doctor. what if it were a rēt goynge out of lāde of what effect shuld the recouere be than ¶ Student It shuld be than of lyke effecte as if it were of lande ¶ Doctoure And so it semeth to be of this annuite / for as me thynketh a rēte an annuite be of one effecte / for the one of them shal be payde in redye money as the other shal ¶ Studēt That is trouth and yet there be many greate diuersities betwixte them in the lawe ¶ Doctoure I praye the shewe me some of tho diuersities ¶ Student Parte I shall shewe the / but I wot nat whether I can shew the al but fyrste thou shalte vnderstāde that one diuersitie is this Euery rente be it rente seruice / rente charge / or rēt seke / is goyng out of lande / but an annuite goth nat out of any lande / but chargeth onely the person that is to saye the grauntoure or hys heyres that haue assez by discente / or the howse if it be graunted by a howse of a religion to perceyue of theyr cofers Also of an annuyte there lyeth no accion but onely a writ of annuite agaynst the graūtour his heyres or successours / that writ of annuite lyeth neuer agaynste the pernoure but onely agaynste the grauntour or his heyres / but of a rente the same accions maye lye as do of lande as the case requyreth it lyeth somtyme of rente agaynste the tenaunte of the grounde / and somtyme agaynst the pernour of the rent / that is to saye agaynste hym that taketh the rent wrongefully / somtyme agaynst neyther as of a rente seruyce assise maye lye for the lorde agaynste the mesme and a dissesoure / or somtyme agaynste the mesne onely if he dyd also the disseason Also an annuite is neuer taken for an asses bycause it is no freholde in the law / ne it shal nat be put in execucion vpō a statute marchaunt / statute staple ne elegit as rente maye And bycause the sayde writte of entre laye nat in this case of this annuite And that it can nat be entēded in the law to be the same annuite / though it be of lyke summe with the annuite ne though the parties assented and mente to haue thesame annuite recouered by the sayde writte of entre / therefore the sayde recouerie is voyde in lawe and conscience / but if suche a recouerie be had of rente with a vouchere ouer than it shal be taken to be of lyke effecte as recoueries of landes be in suche maner as we haue treated of before ☞ The .v. question of the Student / concernynge tayled landes The .xxxi. Chapitre STudent If landes be gyuen to a mā and to his wyfe in the name of his ioyntoure by the father of the husbāde to haue and to holde to them and to the heyres of theyr two bodyes begotten / and after they haue issue the husbande dyeth and the wyfe alieneth the lande / against the statute of .xi. H. vii suffereth a recouerye thereof to be had agaynste her to the vse of the byer / and after her sone heyre apparaunte / that is heyre to the tayle releaseth to the recouerers by fyne dyeth hauynge a brother on lyue / and after the mother dyeth who hath righte to that lāde the byer or the brother of hym that released ¶ Doctoure what is thyne oppinion therein / I praye the shewe me ¶ Student We semeth that the byer hathe righte / for by the sayd statute made in the .xi. yere of kynge Henry the .vii. amonge other thynges it is enacted that if any man / whiche hath landes of the gyft of her husbande / or of the gyfte of any of the auncestoures of the husbande / suffre any recouerye thereof agaynste her by couyne / that than suche recouerye shall be voyde / and that it shal be lawfull to hym that shulde haue the lande after the dethe of the woman to entre and it to holde as in his fyrste righte / prouided alwaye that that statute shall nat extende where he that shulde haue the lande after the dethe of the woman is agreable to any suche alienacion or recouerye so that / that agremente be of recorde And for as moche as the heyre in this case agreed to the said recouerye by fyne / whiche is one of the hyest recordes in the lawe / it semeth that the byer hath righte agaynste that heyre that agreed and agaynste all that shal be heyres of the tayle / and that nat onely by the sayde recouery / but also by the sayde statute whereby the sayde recouerye with assent of the heyre is affermed ¶ Doctor Though the byer in this case haue righte during the lyfe of the heyre that released / yet neuertheles after his dethe his heyre as it semeth maye lawfully entre / for the agremēt wherof the statute speketh must as I suppose eyther be had before the recouery / or els at the tyme of the recouery for if a title by reason of the sayd statute be ones deuolute to the heyre in the tayle / than that right as it semeth can nat be extincte nor put awaye by the onely fyne of the heyre / no more than if he had dyed and the nexte heyre to hym had released to the byer by fyne / in whiche case the release coulde nat extincte the righte of the
no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hiÌ„ whether they wolde paye it or nat And therfore to be out of peryll it is necessarye that he paye it hym selfe / and than is he surely discharged agaynst all men ⧠The .x. question of the student The .xii. Chapitre ¶ STudent A man seased of certayne lande in his demeane as of fee / hathe issue two sones and dyeth seased / after whose dethe a straunger abateth / taketh the profytes / and after the eldest sone dieth without issue and his brother bringeth an assise of MortdauÌ„cestre as sone and heyre to his father nat makynge mencion of his brother and recouereth the lande with damages fro the deth of his father as he may wel by the lawe / whether iÌ„ this case is the yonger brother bounde in coÌ„science to pay to the executours of the eldest brother the value of the profytê of the sayd lande that belonged to the eldest brother in his lyfe or nat ¶ Doctour What is thyne opinion therin ¶ Student That lyke as the said profytes belonged of right to the eldest brother in his lyfe / and that he had full auctorite to haue released as well the ryghte of the sayd lande as of the sayd ê“fytê / whiche release shulde haue ben a clere barre to the yonger brother for euer That the ryght of the said damages whiche be in the lawe but a chatell / bylonge to his executoures and nat to the heyre / for no maner of chatell neyther reall nor parsonall shall nat after the lawe of the realme discende vnto the heyre ¶ Doctoure Thou saydest to the case next byfore / that it is nat of the lawe of reason that a man shall may make executours / and dispose his goodes by his wyll / and that the executoures shall haue the goodes to dispose but by the lawe of man / and if it be lefte to the terminacion of the lawe of man ThaÌ„ in suche cases as the lawe gyueth suche chatelles vnto the executoures / they shall haue good ryghte vnto them / and in suche cases as the lawe takethe suche chatelles frome them they bene ryghtfully taken frome them And therfore it is thoughte by many that if a man sue a wrytte of ryghte of warde of awarde that he hathe by his owne fee and dyeth hangynge the wrytte / and his heyre sue a resomons accordynge to the statute of Westmester seconde / and recouereth that in that case the heyre shal enioye the wardeshype agaynste the executoures / and yet it is but a chatel / and they take the reason to be bycause of the sayd estatute / and so myghte it be ordeyned by statute that all wardes shulde go to the heyres and nat to the executoures Ryght so iÌ„ this case syth the lawe is suche that the yonger brother shall in this case haue an assyse of Mort dauncestre as heyre to his father nat makynge any mencion of his elder brother recouer damages as well iÌ„ the tyme of his brother as in his owne tyme it appereth that the lawe gyueth the right of these damages to the heyre / and therfore no recompence ought to be made to the executoures as me semeth / and it is nat lyke to a wryt of Ayel where as I haue lerned iÌ„ Latyn syth our fyrste dialogue the demaundauÌ„t shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demauÌ„t though his Ayel ouer lyued his father must of necessite make his coÌ„ueyauÌ„ce by his father muste make hiÌ„ selfe sone heyre to his father cosyn heyre to his Ayel / therfore in that case if the father ouer liued the Ayel the abatour were bouÌ„den in coÌ„science to restore to the executours of the father the profytes reÌ„ne in his tyme / for no lawe taketh theÌ„ fro hiÌ„ / but otherwyse is iÌ„ this case as me semeth ¶ Student If the yonger brother in this case had entred into the lande without takyng any assyse of Mort dauncestoure as he myght if he wolde / to whome were the abatour than bounden to make restitucioÌ„ for those profytes as thou thynkest ¶ Doctour To the executours of the eldest brother / for iÌ„ that case there is no law that taketh them from them / and therfore the general grounde whiche is that al chatels shall go to the executoures holdeth in that case / but in this case that grounde is broken and holdeth nat for the reason that I haue made byfore / for comonly there is no general grounde in the lawe so sure but that it fayleth in some particuler case ⧠The .xi. question of the student The .xiii. Chapitre STudent A man seased of lande in fee taketh a wyfe / and after alieneth the lande and dyeth / after whose deth his wyfe asketh her dower and the aliene refuseth to assigne it vnto her / but after she asketh her dower agayne and he assigneth it vnto her / whether is the alme in this case bounde in conscience to gyue the woman damages for the profites of the land after her thyrde parte fro the dethe of her husbande / or fro the fyrst request of her dower or neyther the one nor the other ¶ Doct. what is the lawe in this case ¶ Student By the lawe the woman shall recouer no damagê / for at the comoÌ„ lawe the demauÌ„daunt iÌ„ a wrytte of dower shulde neuer haue recouered damages But by the statute of Marton yt is ordeyned that where the husband dyeth seased that the womaÌ„ shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / suche damagê as she hathe by the forberynge of it / but in this case the husbande dyed not seased / where fore she shall recouer no damages by the lawe ¶ Doctour yet the lawe is that immediately after the dethe of her husbande the wyfe ought of ryght to haue her dower yf she aske it thoughe her husbande died not seased ¶ Student That is trewe ¶ Doctoure And sithe she ought to haue her dower fro the dethe of her husbande yt semeth that she ought in coÌ„science to haue also the profytes fro the dethe of her husbande though she haue no remedy to come to them by the lawe / for me thynketh that that this case is lyke too a case that thou puttest in our fyrste dyalogue in latyn the xvii chapytre That if a tenaunte for terme of lyfe be dysseased dye / the disseasoure dyeth / and his heyre entreth and taketh the profytes / after he in the reuercyon recouereth the laÌ„dê against the heyre as he ought too do by the lawe / that in that case he shall recouer no damages by the lawe And yet thou dydest agree that iÌ„ that case the heyre is bounde in concience to pay the damages to the demaundaunt so me
husbande and they haue issue the father deyeth seased / the husbande as sone as he hereth of his deth goeth towarde the lande to take possession / and byfore he can come there his wyfe dieth / whether ought he to haue the lande in cōscience for terme of his lyfe as tenaunt by the courtesie bycause he hath done that in hym was to haue had possession in his wyues lyfe so that he myght haue ben tenaunt by the courtesie accordynge to the lawe / or that he shall neyther haue it by lawe nor conscience ¶ Doctour Is it clerely holdē in the law that he shall nat be tenaunt by the curtesy in this case bycause he had nat possession in dede ¶ Student ye verely / and yet vpō a possessiciō in lawe a womā shal haue her dower / but no man shal be tenaunte by the curtesie of lāde without his wyfe haue possession in dede ¶ Doctoure A man shal be tenaunt by the curtesie of a rent thoughe his wyfe dye byfore the day of payment / in lyke wyse of an aduowson thoughe she dye byfore the auoydaunce ¶ Studente That is trouthe / for the olde custome and maxime of the lawe is that he shall be so / but of lande there is no maxime that serueth hym but his wyfe haue possession in dede ¶ Doctour And what is the reason that there is suche a maxime in the lawe of the rent and of the aduowson rather thā of lande / whan the husbāde doth as moche as in hym is to haue possessiō and can nat ¶ Studēt Some assigne the reason to be bycause it is impossible to haue possession in dede of the rent or of aduouson byfore the daye of payment of the rent / or byfore the auoydaunce of the aduouson ¶ Doct. And so is impossible that he shal haue possession in dede of lande if his wyfe dye so sone that he maye nat by possibilitie come to the lande after her fathers dethe / and in her lyfe as this case is ¶ Student The lawe is suche as I haue shewed the byfore and I take the verey cause to be for that there is a maxime serueth for the rent and the aduouson / and nat for the landes as I haue sayd byfore / and as it is sayd in the viii chapitre of our fyrst dialogue / it is nat alwaye necessarie to assigne a reason or cōsideraciō why the maximes of the lawe of Englande were fyrst ordeyned and admitted for maximes / but it suffisethe that they haue ben alwaye taken for lawe and that they be neyther cōtrarie to the lawe of reason nor to the lawe of god as this maxime is nat / and therfore if the husbande in this case be nat holpen by cōscience he can nat be holpen by the lawe ¶ Doctour And if the lawe helpe hym nat cōscience can nat helpe hym in this case / for conscience must alwaye be grounded vpon some lawe / and it can nat in this case be groūded vpon the lawe of reason nor vpon the lawe of god / for it is nat dyrectely by those lawes that a man shal be tenaūt by the curtesy / but by the custome of the realme And therfore if that custome helpe hī nat he can nothyng haue in this case by conscience / for conscience neuer resysteth the lawe of mā nor addeth nothynge to it / but where the lawe of man is in it selfe dyrectly against the lawe of reason or els the lawe of god / and than properly it can nat be called a lawe but a corrupcion / or where the generall groundes of the lawe of man worketh in any particuler case agaynste the sayd lawes as it may do / and yet the lawe good as it appereth in diuerse places in our fyrst dialogue in latyne / or els where there is no lawe of man prouided for hym that hathe ryghte to a thynge by the lawe of reason or by the lawe of god And than somtyme there is remedy gyuen to execute that in cōscience / as by a Sub pena but nat in all cases / for somtyme it shal be referred to the consciēce of the partie / and vpon this grounde that is to saye that whan there is no tytle gyuen by the comon lawe that there is no tytle by conscience There be diuerse other cases wherof I shall put some for an example As if a reuercion be graunted vnto one / but there is none attournement / or if a newe rente be graunted by worde with out dede there is no remedy by conscience oneles the sayd grauntes were made vpon consideracions of money or suche other And in lyke wyse where he that is seased of landes in fee simple maketh a wyll therof / the wyll is voyde in conscience bycause the grounde seruethe nat for hym wherby the conscience shulde take effecte / that is to saye / the lawe / and if the tenaunte make a feoffement of the lande that he holdeth by priorite and taketh estate agayne and dyeth his heyre within age the lorde of whome the lande was fyrst holden by prioritie shall haue no remedy for the body by conscience / for the lawe that fyrste was with hym / is nowe agaynste hym / and therfore cōsciēce is altered in lyke wyse as the lawe altereth / and diuerse and many cases lyke be in the lawe that were to long to reherce nowe And thus me thynketh that if the lawe be as thou sayest the husbande ī this case hathe neyther ryght by the lawe nor conscience ⧠The .xiiii. question of the student The .xvi. Chapitre STudent A rent is graunted to a man ī fee to perceyue of two acres of land / and after the graūtour enfeoffeth the grauntee of one of the sayd acres / whether is the hole rente extyncte therby in conscience as it is in the lawe ¶ Doctour Thy case is somwhat vncertayne / for it appereth nat whether the grauntour enfeoffed hym on truste or that he gaue the acre to hym of his mere mocion to the vse of the sayd feoffe / or els that the feoffement was made vpon a bargayne / and if it were but onely a feoffement of truste / than I thinke the hole rent abydeth in conscience though it be extyncted in the lawe / and fyrste that it continueth in that case in conscience / for that parte that the grauntee hathe to the vse of the grauntour / it is euidente / for he may nat take the profytes of the lande / and it is agaynste conscience that he shulde lese bothe / and in lyke wyse it abydeth ī cōscience for the acre that remayneth in the handes of the grauntour thoughe it be extyncte in the lawe / for there was a defaute in the grauntoure that he wolde make the feoffement to the grauntee as well as ther was in the grauntee to take it And it is no conscience that of his owne defaute he shulde take so great auayle to be discharged of the hole rent seynge that
the law that if a Bisshope be vouched to warrātie the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were graūted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaīdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ Studēt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the rēt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the assēt of the chapitre shall nat charge the chapitre ī that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience c̄ ☞ Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor consciēce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reētre / it forceth litle in the lawe in whome the defaute be that the cōdicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be excepte it be in the feffoure hīselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without cōdiciō / where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot
haue no couÌ„sayle / thaÌ„ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ„ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌ„ce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌ„science / for there is no lawe that byndeth them to iÌ„structe hym / but as they do comoÌ„ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌ„cell / if the appelle be pore haue no couÌ„cell the court muste assigne hym couÌ„cell if he aske it as they muste do iÌ„ all other plees / that me thynketh they are bouÌ„de to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ„ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌ„cell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌ„t hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌ„g of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ„ perciall / therfore as wel for the indeÌ„pnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌ„cell / but whaÌ„ that a maÌ„ is indicted at the kynges sute / the kiÌ„ge inteÌ„deth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌ„g them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâ—te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌ„sayle wyll be coÌ„tented And so there is no daunger therby neyther to the couâ—â— ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ„ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre â—oytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ„ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌ„iecture or informacioÌ„ I thynke they mighte nat then byd hym pleade at his peryll ☞ The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ„ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ„ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌ„t It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌ„ge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌ„tye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ„ conscieÌ„ce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ„ shuld haue a nother maÌ„nes laÌ„de no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌ„deth with conscience bycause it is ordeyned for ministracioÌ„ of iustice / but I caÌ„ nat ê‘ceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ„ law of wrecke of the see / that is to say that if a maÌ„nes goodes had beÌ„ wrecked vpoÌ„ the see that the goodes shuld haue ben iÌ„mediatly forfayted to the kyng And it is holdeÌ„ by all doctors that that law is agaiÌ„st coÌ„science except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
a man at the comon lawe knowyng that he hath sufficient matter to be discharged in the chauncery that he may nat pleade at the comon lawe The .vi. chapitre Fo. 17. ¶ The .vi. questioÌ„ of the StudeÌ„t / whether a maÌ„ may with conscience be of counsayl agaynst the feoffour of truste in an accion of trespas that he bryngeth agaynste his feoffe of trust for takyng the profites The .vii. chapitre Fo. 19. ¶ The .vii. question of the StudeÌ„t if a maÌ„ that by way of distres cometh to his det / but he ought nat to haue distreyned for it what restitucion he is bounde to make The .viii. chapitre Fo. 21. ¶ For what thynge a man may lawfully distrayne The .ix. chapi Fo. 23. ¶ The .viii. question of the Student whether executours be bounde in conscience to make restitucion for a trespas done by the testatoure / and whether they be bouÌ„de to paye dettes vpon a contracte fyrste / or make the sayde restitucion The .x. chapitre Fo. 25. ¶ The .ix. question of the Student / whether he that hath goodes deliuered hym by force of a legaci be bounde in conscieÌ„ce to pay a dette vpon a contracte that the testatoure ought / if the executours haue none other goodes in theyr handes The .xi. chapitre Fo. 28. ¶ The .x. question of the Student if a maÌ„ haue issue two sones dyed seased of certayne landes in fee the eldest dyeth without issue the tongest recouereth by assise of mortdauncestre the lande with damages fro the dethe of the father / whether he be bounde in conscience to pay the damages to the executours of the eldest brother for the tyme he leued The .xii. cha Fo. 31. ¶ The .xi. question of the Student what damages the tenant in dower shall recouer in conscience where hyr husbaÌ„de dyed nat seased / but she demaunded hyr dower and was denyed The .xiii. chapitre Folio 33. ¶ The .xii. question of the Student if a man knowynge a nother to haue right to his lande causeth a fyne with proclamacion to be leuyed accordynge to the statute / and he that hath right maketh no clayme within .v. yeres whether he be barred in conscience as he is in the lawe The .xiiii. chapitre Fo. 36. ¶ The .xiii. question of the Student / if a man that hath had a chylde by his wyfe do that in hym is to haue possession of his wyfes landes and she dyeth or he caÌ„ haue it / whether in conscience he shal be tenauÌ„t by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a reÌ„te enfeffe the grauÌ„te of the rente of parte of the lande cÌ„ whether the hole rente be extincte in conscieÌ„ce as it is in the lawe The .xvi. chapitre Folio 41. ¶ The xv question of the Student / if he that hath a rent out of .ii. acres be named in a recouerye of the one acre he nat knowynge thereof cÌ„ whether his hole rente be extincte in conscience cÌ„ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth laÌ„des iÌ„ fee he that hath the villayn entreth / whether he may with coÌ„cieÌ„ce kepe the laÌ„des to hiÌ„ to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questioÌ„ of the StudeÌ„t if a maÌ„ in the case next before enforme hym that is in the reuercioÌ„ of the villayn that after the dethe of the villayn he hath right to the laÌ„de couÌ„sayleth hiÌ„ to entre / wherupoÌ„ great sute charges folowe / what dauÌ„ger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpoÌ„ a feffemeÌ„t made vpoÌ„ coÌ„dicioÌ„ that the feffe shall pay a rent to a strauÌ„ger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the StudeÌ„t is vpoÌ„ a feofement in fee / it is agreed that the feffe shall pay a rente to a straunger / howe that feffement shall way in law conscience The .xxi. chapitre Fo. 51. ¶ Howe vses in lande began by what law the cause why so moche laÌ„de is put in vse The .xxii. chapitre Fo. 54. ¶ The diuersite bytwene two cases wherof one is put in the .xx. chapitre and the other in the .xxi. chapitre of this present boke The .xxiii. chapitre Fo. 57. ¶ What is a nude coÌ„tracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupoÌ„ The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the StudeÌ„t if a maÌ„ that hath two sones one borne before espousels the other after espousels by his wyll byqueteth to his sone heyre all his goodes / whiche of the sones shall haue the goodes in conscieÌ„ce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with conscieÌ„ce present to an aduouson of a churche that belongeth to the howse without assent of the coueÌ„t The .xxvi. chapitre Fo. 72. ¶ If a maÌ„ fynde beestes in his corne doiÌ„g hurt / whether he may by his owne authorite take them and kepe them tyll he be satisfied for the hurt The .xxvii. cha Fo. 75 ¶ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. chapitre Fo. 76. ¶ If a man be conuicte of heresye before the ordinarie / whether his goodes be forfet The .xxix. chapitre Fo. 78. ¶ Where diuers patrons be of an aduouson the churche voydeth / the patrons varye in theyr presentementes / whether the Bisshop shall haue libertie to present whiche of the incumbentes that he wyll The .xxx. chapitre Fo. eodem ¶ Howe long tyme the patron shall haue to present to a benefice The .xxxi. chapitre Fo. 80. ¶ If a man be excoÌ„menged / whether he may in any case be assoyled withoute makynge satisfaccion The .xxxii. cha Fo. 83. ¶ Whether a prelate may refuse a legaci The .xxxiii. chapitre Fo. 84. ¶ Whether a gyfte made vnder a condicioÌ„ be voyde if the souerayne onely breke the condicion The .xxxiiii. cha Fo. 87. ¶ Whether a couenaunt made vpon a gift to the churche that it shall nat be aliened be good The .xxxv. chapi Fo. 89. ¶ If the patroÌ„ present nat within .vi. monethes who shall present The .xxxvi. chapitre Fo. 91. ¶ Whether the presentemente collacion of all benefices and dignities voydyng at Rome belonge onely to the Pope The .xxxvii. chapitre Fo. 95. ¶ If a howse by chaunce fall vpoÌ„ a horse that is borowed who shall bere the losse The .xxxviii. chapitre Fo. 97. ¶ If a preeste haue wonne moche money by saynge masse / whether he maye gyue those goodes or make a wyll of them The .xxxix. chapitre Fo. 99. ¶ Who shall succede to a clerke that dyeth intestate The .xl. chapitre Fo. 101. ☞ Addicion ¶ If a man be outlawed of felonye / or be attaynted for murdre or felony / or that is an Ascismus may be slayne by euery strauÌ„ger The .xli. chapitre Fo. 102. ☞ Addicion ¶ Whether a man shal be bouÌ„de by the act or offeÌ„ce of his seruaunt or officer The .xlii. chapitre Fo. 104. ♣ Addicion ¶ Whether a villayn or a bondeman may gyue a waye his goodes The .xliii. chapitre Fo. 106. ¶ If a clerke be promoted to the title of his patrimony after selleth his patrimony falleth to pouerty / whether he shall haue his title therin The .xliiii. chapitre Folio 108. ¶ Diuers questions takeÌ„ out by the Student of the summes called Summa rosella Summa angelica whiche me thiÌ„keth are necessary to be sene how they stande agree with the lawe of the realme The .xlv. chapitre Fo. 111. ¶ Where ignoraunce of the lawe excuseth in the lawes of Englande where nat The .xlvi. chapitre Fo. 115. ¶ Certayne cases groundes where ignorauÌ„ce of the dede excuseth in the lawes of Englande where nat The .xlvii. chapitre Fo. 119. ☞ Addicion ¶ The fyrst question of the Doctour how the law of Englande may be sayde reasonable that prohibiteth cÌ„ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takeÌ„ as heyre bycause it is nat knowen but that the eldest brother is ded be in conscience a barre to the eldest brother as it is in the lawe The .xlix. chapitre Fo. 124. ¶ The thyrde question of the Doctoure / whether if a maÌ„ procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in coÌ„science as it is in the lawe The .l. chapitre Fo. 127. ¶ The fourth question of the Doctoure / is of wreke of the see The .li. chapitre Folio 129. ¶ The fyft question of the Doctour / whether it stande with conscience to prohibite a Iurye of meate drynke tyll they be agreed of theyr verdite The .lii. chapitre Folio 131. ¶ The .vi. question of the Doctoure is / whether the colours that be gyuen at the comon lawe in assises / accions of trespas and diuers other accions stande with coÌ„science bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. ☞ Addicion ¶ The .vii. questioÌ„ of the Doctour / coÌ„cerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade iÌ„ suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questioÌ„ of the Doctour / how the statute that was made in the .xlv. yere of kynge Edwarde the thyrde concernynge the tythe of woode maye stande with conscience The .lv. chapitree Folio 140. ¶ Finis Tabule ¶ Thus endeth the seconde Dialogue in Englisshe / with the Addicions bytwene a Doctoure of of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LoddoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC.XXXii The fyrst day of the moneth of Iuly ⸫
is called a courte Baron And to euery fayre market is incident a court that is called a court of Pypowdres And though in some statutes is made meÌ„cion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes and that suche courtes shulde be / there is no statute nor law writteÌ„ in the lawes of Englande And so all the grouÌ„de begynniÌ„g of the sayde courtes depeÌ„de vpoÌ„ the custome of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Parlyament ⧠Also by the olde custome of the realme no maÌ„ shal be takeÌ„ iÌ„prysoned disseased nor otherwyse destroyed / but he be put to answere by the lawe of the lande this custome is coÌ„fermed by the statute of Magnacarta the .xxvi. chapitre ⧠Also by the olde custome of the realme all men great small shal do receyue Iustice in the kinges courtes / this custome is coÌ„fermed by the statute of Marl the .i. Chapitre ⧠Also by the olde custome of the realme the eldest sone is onely heyre to his auncestour / if there be no sones but doughters then all the doughters shal be heyre so it is of susters other kynneswomen And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce discende to the nexte kynnesman or kynneswoman of the hole blode to hym that had the enhitauÌ„ce of howe many degrees so euer they be from hym And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden ⧠Also by the olde custome of the realme landes shall neuer ascende / nor disceÌ„de froÌ„ the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee. ⧠Also if any alyeÌ„ haue a sone that is an alyen after is made Denizyn / hath another sone / after purchaseth laÌ„des and dyed / the yoÌ„ger sone shall enherite as heyr nat the eldest ⧠Also if there be thre bretherne the mydlest brother purchase landes dyed without heyre of his body / the eldest brother shall inheryt as heyre to hym nat the yonger brother ⧠Also if lande in fee symple disceÌ„de to a man by the ê‘re of his father he dyed without heyre of his body / then that inheritaunce shall discende to the next heyre of the parte of his father And if there be no suche heyre of the parte of his father / then if the father purchased the laÌ„des it shal go to the next heyre of the fathers mother / nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee but if a man purchase laÌ„des to him to his heyres dye without heyre of his body as is sayd before / theÌ„ that laÌ„de shall disceÌ„de to the next heyre of the parte of his father if there be any / if nat then to the next heyre of the parte of his mother ⧠Also if the sone purchaseth laÌ„des iÌ„ fee dye without heyre of his body / the lande shall discende to his vncle shall nat asceÌ„de to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle shall enioye the lande as heyre to his elder brother for euer ⧠Also by the custome of the realme the chylde that is borne before spouselles is bastarde shall nat inheryte ⧠Also the custome of the realme is that no maner of goodes nor catalles reall nor parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or administratours ⧠Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after and also Chatelles real if he ouer lyue hê wyfe but if he sell or gyue away the Chatelles realles dye by that sale or gyfte the enterest of the wyfe is determined / els they shall remayne to the wyfe if she ouer lyue her husbande ⧠Also the husbaÌ„de shall haue all the inheritauÌ„ce of his wyfe wherof he was seased in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of EnglaÌ„de / the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe after the spouselles c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye ¶ Doctoure what if the husbande at his deth be within the age of .ix. yere ¶ Student I suppose she shall yet haue her dower ⧠Also the olde lawe custome of the realme is that after the deth of euery tenaÌ„te that holdeth his landes by knyghtes seruice the lord shall haue the warde mariage of the heyre tyll the heyre come to the age of .xxi. yere And if the heyre in that case be of full age at the deth of his auncestre / then he shall paye to his lorde his relyefe / whiche at the coÌ„mon lawe was nat certayne / but by the statute of Magna carta / it is put in certayne that is to saye for euery hole knyghtes fee to pay C. sÌ„ And for a hole baronye to pay a. C. marke for relyef And for a hole erledom to pay a. C. li. after the rate And if the heyre of such a tenauÌ„t be a womaÌ„ / she at the dethe of her auncestre be within the age of .xiiii. yeres / then by the coÌ„mon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of WestmÌ„ the fyrste in suche case she shal be inwarde tyll .xvi. yere And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shal be out of warde / though the laÌ„des be holden of the kynge And theÌ„ she shall pay relyef as an heyre male shall ⧠Also of landes holden in socage if the auncestre dye / his heyre beynge withiÌ„ the age of .xiiii. yeres / the next freÌ„d of the heyt to whome the inheritauÌ„ce may nat discende shall haue the warde of his body landes tyll he shall come to the age of .xiiii. yere / theÌ„ he may entre And wheÌ„ the heyre coÌ„meth to the age of .xxi. yere / theÌ„ the gardeyn shall yelde hym accoÌ„pte for the ê“fettes therof by hym receyued ⧠Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his auncestre / as if his auÌ„cestre
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
the grouÌ„de 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 inteÌ„t 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 inteÌ„t 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 ☞ 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 STudeÌ„t The law of EnglaÌ„de is that if a man coÌ„maunde another to do a trespasse he doth it / that the coÌ„mauÌ„dour 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„ ⧠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 coÌ„mon lawe ⧠Also that the alienacioÌ„ of the tenauÌ„t hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman take an husbaÌ„de hangyng the writ / that the writ shall nat abate ⧠Also if lande rent that is goyng out of the same laÌ„de come in to one maÌ„nes haÌ„de 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 concurraÌ„t 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 drmaundauÌ„t or playntyfe hangynge his writte wyll entre in to the thynge demauÌ„ded 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 grouÌ„ded 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 EnglaÌ„de 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„ ¶ 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 EnglaÌ„de 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 diligeÌ„t sercher wyll euideÌ„tly appere ☞ Of the .v. grounde of the lawe of Englande The .x. Chapitre STudent The .v. grouÌ„de of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / lordshyppes in this realme / the whiche ê‘ticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaiÌ„st 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 ê‘ticuler 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 KeÌ„t 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 burgheÌ„glisshe wher the yoÌ„ger sone shall enheryte before the eldest that custome is in Notynghame ⧠Also there is a custome in the cytie of LoÌ„don that fre meÌ„ there / may by theyr testameÌ„t inrouled byqueth theyr laÌ„des that they be seased of to whome they wyll / except to mortmayn And if they be cytizieÌ„s
partie Also where there can be had no sufficieÌ„t prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌ„scieÌ„ce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌ„ce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌ„dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌ„s after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌ„scieÌ„ce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌ„science so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌ„scieÌ„ce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌ„cion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌ„science for of suche a lawe made by man coÌ„scieÌ„ce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌ„de of a lawe made by man coÌ„maundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌ„science and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌ„sideracion punysshe hym that dothe it / but leuyth it onely to his coÌ„science And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌ„scieÌ„ce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌ„science to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌ„scieÌ„ce to the halfe ê“fittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌ„science / for the lawe neyther wyllyth ne coÌ„maundyth that one shulde take all the ê“fittes / but leuyth it to theyr coÌ„science so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌ„ce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌ„science all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌ„scieÌ„ce / but the lawe is nat to be lefte for conscience ☞ Addicion ⧠Also many men thynke that if a man haue laÌ„de that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ„ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌ„scieÌ„ce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
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 vpō 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 〈◊〉 be affermed / for they say that syth the parliamēt at the makīg 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 stāde with lawe and consciēce 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 consciēce 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 thā 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 ☞ 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 warrātye descendeth vpō the heyre in the tayle / whether is he thereby barred in conscience / as he is in the law ¶ Doctour Bycause our principall intēt at this tyme is to speke of recoueries and nat of warrāties and also bycause it hath ben of longe tyme takē 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 rē 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 tēporall rewlers haue nat onely cure of the bodyes / but also of the soules / and shall answere for them if they perysshe ī theyr defaute and bycause it semeth by the more apparaunt reason that the tayles be nat brokē ne fully auoyded by the sayd recoueries / that yet neuertheles the great multitude of thē 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 expediēt that tayled landes shulde from hensforthe eyther be made so stronge in the lawe that the tayle shulde nat be brokē 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 thā
haue the rent in coÌ„science shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am coÌ„tent with thy conceyte in this matter for this tyme. ⧠The .xvi. question of the student The .xviii. Chapitre STudent A vylleyne is graunted to a maÌ„ for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec ¶ Doctour Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hiÌ„ his landes and goodes and put his body in prysoÌ„ if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so to hym ¶ Sudent That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bisshoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe haue seased the landes and goodê of theyr vylleyns therby and cal it theyr ryght enheritaunce so to do that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with conscieÌ„ce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made ¶ Doctour Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes that the vylleyne purchaseth in fee to hym and to his heyres ¶ Student I verely I take it so ¶ Doctour I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenauÌ„t for terme of lyfe entreth he shal haue there none other estate iÌ„ the lande than he had in the seygnourye / and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne ¶ Stud. The cases be nat lyke / for in that case of the eschete the tenaunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignourie / that is to saye / in the place of the seignourie / the seignourie is clerely extincte / but in this case he hathe nat the lande iÌ„ the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ê“fyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne of lande in fee simple of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease accordyng to the lawe byfore the vylleyne alien or elles he shall haue nothynge ¶ Doctoure Verely and if the lawe be so / I thynke conscience folowethe the lawe therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres he purchaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre ¶ Student A fee simple / but that shal be to the behoue of the testatoure and shal be an assesse in his handes ¶ Doctoure Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question ¶ Ttudente For as moche as it appereth in this case and in some other byfore that the knowlege of the law of EnglaÌ„de is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what dauÌ„ger it is in conscience for the mistakynge of it ¶ Doctour I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge ⧠The .xvii. question of the student The .xix. Chapitre STudent A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenauÌ„t for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenauÌ„t for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that couÌ„sayle he in the reuercion entreth / by reason of the whiche entre great sutes and expences folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle ¶ Doctour Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste the lawe / or that he was ignoraunt of the lawe ¶ Student That he was ignorauÌ„t of the lawe for if he knewe the lawe gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampnified by it ¶ Doctour Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge to haue knowlege of the law after his capacite or that he toke vpon hiÌ„ to gyue counsayle and toke no study competent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile And also
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he
that do assoyle hym / but yet neuertheles he is assoyled / and if he be nat able to make amendes that he muste yet be assoyled / takynge a sufficiente gage to satysfie yf he be able here after / or elles that he make an othe to satisfie if he be able And these sayenges in many thynges holde nat in the lawes of Englande ¶ Doctoure I pray the shewe me wheriÌ„ the law of the realme varieth therfro ¶ StudeÌ„t If a man be excommunicate in the spirituall courte for det / trespas / or suche other thynges as belong to the kynges crowne to his royall dignite there he oughte to be assoyled without makynge any satisfaccion / for the spirituall courte exceded theyr power in that they helde ple in those cases the party if he wyll may therupon haue a Premunire facias as well agaynste the partye that sued hym as agaynst the iuge therfore in this case they oughte in conscience to make absolucion withoute any satisfaccion / for they nat onely offeÌ„ded the party in callynge hym to answere before theÌ„ of suche thynges as belong to the law of the realme but also the kynge / for he by reason of suche sutes maye lese greate aduauntages by the reason of the writtes originals / iudicials / fynes / amerciamentes / suche other thynges as mighte growe to hym if suche sutes had beÌ„ takeÌ„ in his courtes accordynge to his lawes / accordyng to his saynge it apperet in diuers statutes that if a man laye violent handes vpon a clerke bete hym / that for the betynge ameÌ„des shal be made in the kynges court / for the layeng of violent haÌ„des vpoÌ„ the clerke amendes shal be made in the courte cristieÌ„ And therfore if the iuge in the court cristieÌ„ wolde awarde the partie to yelde damages for the betynge he dyd agaynste the statute / but admitte that a man be excommenged for a thynge that the spirituall courte may awarde the party to make satisfaccioÌ„ of / as for the nat inclosinge of the churche yarde / or for nat apparelliÌ„ge of the churche conueniently Than I thynke the partye muste make restitucion or lay a sufficiente causion if he be able or he be assoyled / but if the partye offre sufficient ameÌ„des haue his absolucion / the iuge wyll nat make hym his letters of absolucion if the excommengemente be of recorde in the kynges courte thaÌ„ the kynge may writte vnto the spirituall iuge coÌ„maundyng hym that he make the party his letters of absolucion vpon payn of a contempte / if the sayd excommunicacioÌ„ be nat of recorde in the kynges courte than the partye maye in suche case haue his accion agaynst the Iuge spirituall for that he wolde nat make hiÌ„ his lettres of absolucion but if he be nat assoyled or if he be nat able to make satisfaccion therfore the iuge spirituall wyll nat assoyle hym / what the kynges lawes maye do iÌ„ tha case I am somwhat in doute / and wyll nat moche speke of it at this tyme / but as I suppose he may as well haue his accion in that case for the nat assoylynge hym as where he is assoyled that the Iuge will nat make hiÌ„ his letters of absolucion / I suppose the same law to be where a maÌ„ is accursed for a thyng that he iuge had no power to accurse hiÌ„ in / as for dette / trespasse / or suche other ¶ Doctor. There he may haue other remedies as a premunire facias or suche other / therfore I suppose the other accioÌ„ lieth nat for hiÌ„ ¶ Student The iuge the partie may be ded / thaÌ„ no premunire lieth / though they were alyue were coÌ„deÌ„pned in a Premunire / yet that shulde nat auoyd the eâ—coÌ„mengement / therfore I thynke the accion lieth specially if he be therby delayed of accions that he might haue in the kynges court if the sayd excoÌ„mengement had nat ben ☞ Whether a Prelate may refuse a legaci The .xxxiii. Chapitre STudeÌ„t It is moued in the sayd summe named Rosella in the title alienacio xx the .xi. article whether a pÌ„late may refuse a legaci / where in diuers opynions be recited there / whiche as me thynketh haue nede after the lawes of the realme to be more playnly declared ¶ Doctoure I praye the shewe me what the law of the realme will therin ¶ StudeÌ„t I thinke that euery pÌ„late suffereyn that may onely sue be suyd in his owne name as Abbates â–ª Priours suche other may refuse any legaci that is made to the house for the legacie is nat perfyte tyl he to whome it is made assent to take it for els if he mighte nat refuse it he might be compelled to haue laÌ„des wherby he myghte in some case haue greate losse but than if he intende to refuse he muste as sone as his title by the legacy falleth relinquisshe to take the profites of the thyng bequethe / for if he ones take the profites therof he shall nat after refuse the legaci but yet his successour may if he will refuse the takynge of the profites to saue the house fro yeldynge of damages or fro arrerages of rentes if any suche be lyke lawe is of a remayndre as is in legaci for though in the case of a remaindre also of a deuise as moste men say the freholde is caste vpon hym by the lawe whan the remayndre or deuise falleth yet it is in his libertie to refuse the takynge of the profites to refuse the remaiÌ„dre or deuise if he wyll as he myghte do of a gyfte of landes or goodes for if a gyfte be made to a man that refuseth to take it / the gyfte is voyde if it be made to a man that is absent the gifte taketh nat effecte in hym tyll he assent no more than if a maÌ„ dissease one to another maÌ„nes vse / he to whose vse the disseason is made hath nothyng in that laÌ„de ne is no disseasoure tyll he agre And to suche disseasons gyftes an Abbot or Priour may disagre as well as any other maÌ„ but after some men a Bisshope of a deuise or remayndre that is made to the Bisshop to the deane chapitre nor a deane and a chapitre of a deuise or remayndre made to theÌ„ ne yet the mayster of a colage of suche a deuise or remayndre made to hiÌ„ to his bretherne / maye nat disagre withoute the chapitre or bretherne for the Bisshoppe of of suche landes as he hath with the deane chapitre ne the deane nor mayster of suche lande as they haue with the chapitre or bretherne may nat answere without the chapitre bretherne therfore some saye that if the deane or mayster wyll refuse or disclayme in the landes that they haue by the deuise or remaindre that that disclaymour without the chapitre or bretherneis voyde And therfore it is holdeÌ„ in