case of felonie for in case of treason the King shall bee presently after the attainder in actuall possession without office founde by the statute of 33. H. 8. cap. 20. and if a man bee executed for felonie or die after Iudgement before he be put in execution yet the writ shall say pro quo suspensus fuit and if he be put to death by some other punishement then hanging though the writte say pro quo suspensus fuit that is not materiall k Fitz. nat bre 144. H. and if the father purchase lande and his eldest sonne is attainted of felonie and dieth hauing issue a sonne and the father dieth the next in degree of discent and worthines of bloud vnto the sonne attainted shall not haue the lande but it shall escheate to the immediate Lord of whom the Land is held for the bloud is corrupted otherwise it had b in if he had died in the life of his father hauing no issue l 32. H. 8. 48. Dyer Nomom Though I must needes confesse that it is verie good reason that the sonnes of thē which are dissoyall subiectes and traitors to their Prince shoulde be barred from the enheritance of their auncestours that their fathers infamy should alwaies accompanie them and that they shoulde liue in perpetuall memorie indignitie and disgrace that their life should be a punishment vnto them and their fathers fault a continual corrisiue for that is done because their fathers vices are feared in them it may be wel thought that being bredde and brought vp of naughtie parents they will be prone to doe the like and punishment in that case is vsed in the nature of a medicine and not in fourme of a penaltie and as it hath the effect of a punishment euerie one is punished for his owne fault onely but as it hath the effect of a medicine so one man is punished for an others fault that by suffering shame hee may be deterred from crime yet here it may be said what place is there left for innocencie if the most guiltles may be punished for the misdemeanor of the most guiltie for as it is not the fault of the corne that it groweth in a badde soile so it is not the fault of the sonnes that they are begotten of lewde fathers therfore it may seeme meet and expedient that there should be ibi paena vbi culpa and that offences should rest vpon the authors and that the falle shoulde goe no further then the fault and there is a Law in Deutronom Non interficiantur patres pro filijs nec filij pro patribus sed quisque pro peccato suo interficiatur m Deut. c. 24. and in an other place vnusquisque in iniquitate sua morietur quicunque comederit vuam acerbam illius dentes obstupescent n Ierem. 31. and againe anima que peccauit ipsa morietur filius non portauit iniquitatē patris nn Ezechi 18. Codicgn But Saule did not obserue that rule in Deutronom when he did put to the sword the citizens of Nobe where he did slay men women children oxe asse and sheepe ore gladij o 1. Reg. 22. Canonol But Dauid did keepe it who woulde 4 The aforesaid determinations conclusions of ciuil and common law touching the forfaiture of the offendor are examined by the Law of God not haue had reuenge taken vpon Isboseth the son of Saul p 2. Reg. 4. and caused them to bee slaine who wrought his death Codicgn Yet God did otherwise who in the diluge did destroy the parentes with their children who spared neither sexe nor age in Sodom who destroied together all the whole nation of the Amalekites who would needs haue Achan destroied with the children who did roote out al the inhabitants of Ierusalem Cononol We must otherwise conceiue of God his iudgements then of mens proceedinges hee hath said viae meae non sunt viae vestrae all perfection goodnes and iustice beginneth at him who doth not any thing because it is iust but it is therefore iust because hee doth it or woulde haue it done and if Achan had bin arrained before an Ordinary tribunall he onely had perished and not his children but God his iudgement is extraordinarie and his will is therefore a Lawe because he is God he is not bound to render accompt to any neither is he guided by any Lawe but by the Lawe of his owne will and though one man know not what an other doth purpose and imagin yet God knoweth the hart and searcheth the reines and might see somewhat condemnable in Achans children which man could not discouer yet in some cases he doth obserue an ordinarie course of punishment for q Numb 26. Core perished onely but not his sonnes but they were kept safe for the Lords seruice and of their posteritie came Samuel Codicg That which I spake before Canono out of the scripture was but by way of obiection for our law punisheth not the Sons with death but only with losse of inheritance in case of treason r ff C. ad l. Iul. mai Anglonomoph The same Lawe doe we obserue both in felonie and treason together with the forfaiture of the goods Codicgn The losse of inheritance in our Lawe doth comprehend the forfaiture of the goods Nomom Ye haue dwelt a long time in this discourse of tenures and seruices now therefore I would haue ye to speake somwhat of Iointenancie and tenancie in common The fifth Dialogue of Jointenancie and tenancy in comon NOmom Let me aske you this question 1. Diuision Codign when two be iointenants or tenants in common as we tearme them whether by rigor of law the profits ought to go to them all in common or no. Codicgn By common right they ought to haue 1 That Iointenants and tenants in cōmon ought to haue equall profit equall profit whether it be of money marchandise or other matter of negociation for if one shold haue more profit thē an other the gaine should not bee alike the societie or as it pleaseth you to tearme it Iointenancy or tenancy in common should be Leonina that is rather the deuouring of Lyons a ff Pro socio l. si non fuerint §. vlti then the deuiding of men or according to the common prouerbe a man should deuide honie with a Beare yet in this equal diuision which the law requireth recompense must be had of thinges persons and the industrie of the parties b l. omnes l. si socij l. l. si non fuerint ff cod Anglonomoph By our law if two bring a writ of warde of the body of the heire being within age and the one of them is summoned and seuered and the other recouereth he which was seuered may haue a writte of accompt against the other for the profites c 45. E. 3. 10. and a writ of accompt lieth if one iointenant take all the profites d 39.
her executor shall haue the summe otherwise it had beene if the wordes of the deuise had bene to be paied at the daie of her mariage or at the age of 21. yeares and she dieth before t 36. H. 8. 59. Dy. and 16. Eliz. A man deuised laude to one so that he doe paie 10. li. and if not that it should remaine to his house prouided that the lands shall not be sold but shall goe to the next of bloud being male it was helde that this was an estate taile that these words shall goe to his house shal be construed to the eldest person of his familie and these wordes being male shall be construed in the future tense and in many cases an estate may be limited in a deuise by implication as if a man deuise lande to one and to his heires males in fee simple the remainder to the next heires males of the kinne there is an entailemeÌ„t both in the first estate and also in the remainder u 16. Eliz. 333. Dy. 2. Eli. 171. Dy. but where a deuise is contrarie to Law it is voide of effect for a man deuised land in London to the 3. That the Common law frustrateth these deuises which are repugnant to Lawe Prior Couent of S. Bartholmewes so that they pay to the Deane and Chapiter of Powles 10. li. yeerely and if they failed then their estate to cease and that the lande should remaine to the Deane and it was helde by Fitzh Baldwin Iustices that this was a void remainder because it could not be limited after an estate in fee and as of a condition the Deane Chapiter could not haue aduantage but the heire a 29. H. 8. 32. Dy. and so if a man deuise laÌ„d to one in fee that if he die without heire that then it shall remaine to an other in fee this is a voide remainder because one fee simple cannot depend vpon an other b 19. H. 8. 8. Nomom What if the testator doe deuise to his 16. Diuision wife certaine land whilest she should liue chastly and she marieth whether is her estate determined Canonolog I thinke it is not determined for 1. That by the Cannon lawe if land be deuised to a woman whilest she shall liue chastly mariage is not implicatiuely and absolutely prohibited though the words of the deuise do implie a coÌ„dition yet the condition is not broken because matrimonium est reshonesta and therefore not to be imagined to be within the intent of the condition c Authent de nupt in princ 28. quaest 1. ca. sic enim 33. q. 2. c. 2. l. 2. C. de indict viduit toll Nomoma Yet it seemeth that the condition faileth Quia coitus castitas opponuntur d D. authent de nup. §. quâ—a vero therefore it may seeme that she should lose the legacie as well by marying as by liuing incontinently Canonol But I thinke rather that she shal not lose the legacie because there was no condition expressed in the deuise that shee should not marrie and therefore she can not be said in marying to do against the will of her husband but yet it may seeme that if she had maried within a yeare after the death of the testator she had broke the condition e ff de iur patron l. adigere §. fi for doubtles otherwise Mulier secundò nubeus castitatem seruat f D. authen de nup. §. fin autem ideÌ„ Extra de diuor c. gaudeamus in fin l. mulier §. cum proponaretur ff ad Trebel 2. That the Ciuill law and Common law do fauour mariage Codicgn Our Lawe in such cases fauoureth matrimonie g ff de reg iur l. In ambiguis l. in testamentis eod and where there is no condition prohibitorie expressed the Law will not in such case intende it h In authent hoc locum C. de secund nupt Anglonomop In our Law we haue a case that King Edward the sixth graunted to his sister the Ladie Mary the mannor of D. as long as shee should continue vnmaried and this is admitted in our Law to be a good limitation but no condition as hath bene before surmised i 4. Mar. 1. 141. Dy. 37. H. 6. 29. 10. Assis pl. 8. 17. Assis pl. 7. 3. Assis pl. 9. 6. Nomom Let this be the case the husbaÌ„d deuiseth 17. Diuision to his wife the ê“fits of al his goods the question is whether the wife may take the profits by her sole authoritie or by the appointment of the iudge or by the administration of the executor 1. That there is a diuersitie in the Ciuill lawe where a man maketh his wife vsufructuariam of his goods and where he deuiseth them to her Codicgn In our law we take this difference where he maketh his wife by his will vsufructuariam of the goods and where he doth deuise vnto her his goods For where he maketh her vsufructuariam she may of her owne power take the profit and benefit of the goods and she needeth not to expect or attend the curtisie of the executor k L. si habitatio §. si vsus fuÌ„di l. fundi ff de vsu hab But if he deuise his goods or the profits of his goods or commaund and charge his heire or executor by his will that they allow sufficient maintenaunce to his wife out of his lands or goods now the woman is a deuisee and she must take that which is deuised by the haÌ„ds of the heire or executor or else sue for it by law l ff de vsufâ—uct legat l. patrimonij l. si quis Anglonomoph By our law the power and authoritie 2. That by the Common law the administration of the goods and chattels of the testator doth appertaine only to the executor of deliuering goods and chattels or putting the deuisee in possession belongeth onely to the executors who must see debts paide before legacies performed m 37. H. 6. 30. â— Prisot 2. H. 6 16. Perkins Testam 94. D. S. Dialog 2. 79. And therefore if a straunger take goods deuised to me out of the possession of the executors I cannot haue an action of trespasse for the taking For it is not like to a gift of goods which is presently executed and if a man deuise the â—ourth part of his goods to another the deuisee may not seise the fourth part but he must sue for it in the spiritual court n 27. H. 6. but if a man deuise a booke or some other thing to one for tearme of life the remainder to an other for euer if the executor deliuer the booke or the goods to the first deuisee the second deuisee may seise theÌ„ without liuerie of the executor for the possessioÌ„ of the first deuisee was the possessioÌ„ of theÌ„ both otherwise it is if the first deuisee hath the possessioÌ„ die
retractetur l. ea quae §. quaed ff de cōtrahen emp. but if it bee a secrete fault then a distinction must be vsed for eyther it was in beginning and growing at the time of the sale so that it may easily be cured and yet not easily perceiued then the seller is not any way to be charged or els the secrete fault was some festered and inueterate disease and in such case the seller is to be charged n L. mortis C. de per com rei vend but if the thing that is sold be liquide and gustable and the buyer doth taste of it or if it be measurable and hee doth measure it as corne or if it be ponderable and he doth wey it as mettall or if he marke a beast which hee hath bought and the beast be afterward chaunged in all these cases the dammage resteth vpon 4. That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault hee is bound by the warranty by the Ciuill law the buyer o L. 1. l. q◠si neque §. si ff de per com rei vend l. 2. C. eo but if the things aforesaid be not tasted measured weyed or marked but be sold at a venture as if a man sell all his wine or oyle in such a house and doth warrant it to be good and merchantable or if he warrant the beasts that he selleth to be sound the seller in such cases is punishable p l. si vna ff de per com rei vend but if he had not warrāted it then the lawe is otherwise q d. l. 1. §. 1. C. eo l. quod saepe §. in his ff eo Anglonomoph In these cases which you haue now put our Lawe as I take it differeth very little or nothing from yours for whereas you 5. That bargaines sales matters in writing and obligatory may be auoyded by alleaging that they were made or done per menasse or by duresse say that a bargaine or sale enforced by terror may be auoyded in our Lawe euen matters in writing obligatory may be for the same cause defeated and frustrated and if a man seised of an acre of lande doe giue it in taile by deed and maketh a letter of Attourney to deliuer seisin and al this is done by duresse of imprisonment and liuerie of seisin is made this is a disseisin to the donor and the deed of gift and liuerie may by Law be auoided r 41. E. 3. 9. 2. E. 4. 19. per Littl. Park tit Graunts Sect. 17. and if a man menasse me to kill me if I wil not grant to him an annuitie of xx s. for doubt of death I grant it vnto him this graunt is voidable ſ 11. R. 2. Duresse 13. But if a man grant an annuitie to an other by threatning him that he wil cary away his goods whereupō he granteth vnto him the annuitie this grāt is not voidable by reason of such menacing because he may haue an actiō to recouer the goods if they be takē away t 7. E. 4. 21. Park tit Grāts Sect. 18. but a threatning of battery is a good cause to auoid a deed u 4. E. 2. Duresse 9. and so is the threatning of imprisonment a good cause to auoid a bonde x 8. H. 6. 12. but otherwise it is of a threatning to burne my house a 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at an other place b 38. H. 6. 13. ◠Moyle 33. H. 6 24. 2. H. 5. 10. as to that which you haue spoken of fraud deceite in bargaines and sales the warranting of a thing to be good and sound which is nought corrupt I could put many cases agreing with your assertiōs diuersities 6. That by the Common law a warrantie made vpō the concluding of a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine concluded If a mā sell vnto one certaine cloth warrant it to be of such a length and it is not of that lēgth he which buieth the cloth may haue an actiō of disceit against him by vertue of the warrātie but if the warrantie be made at some other time after the bargain he may not haue a writ of disceite c Fitzh N. B. 98. K. if a ma sell to an other seeds warrant thē to be of a certaine coūtrie if they be not so a writ of disceit will lie otherwise it had bin if he had warrāted that they should haue growne or if he should warrant that the horse which he selleth should go 50. miles in a day and a writ of deceite lieth for selling corrupt victuale without warrātie but not for selling rottē sheepe though it be with warrātie the warrāting of a thing to 7. That the warranting of a thing which is euident to the sense is no cause to bring a writte of disceite by the Common law be black which is blew where the colours is euident to sense is no cause of bringing a writ of disceit but is merely void otherwise it is if the buyer be blind or the thing that is bought be absēt d 11. E. 4. 7. 13. H. 4. 1. if a man sell a horse which hath a disease in his body or if he sel certain quarters of corne which is ful of grauel a writ of disceite will lie without warrātie e 20. H. 6. 36. ◠Paston 11. H. 6. 22. if one sell to an other certaine tūnes of wine warrāt thē to be good they be corrupt the vendee may haue an actiō vpō the case against the vendor f Fitz. N. B. 94. the actiō wil lie without warrātie g 7. H. 4. 14. according to the opiniō of some but M. Fitz. saith that there ought to be a warrātie or els no actiō will lie for in such case his taste may be his iudge h Fitz. N. B. 94. C. but where it is with warrātie the writte must say that the defend at the time of the warrantie made knew that the wine which he sold was corrupted i 9. H. 6. 53. Nomom You haue spokē enough of this matter 5. Diuision now shew me whether by a bargain sale of of the profites of land the land it selfe do passe Anglono The grant or bargaine sale of the 1. That by the Common law the graunt or sale of the profits of land is the grant of the lād it self profits of the land is the grant of the lād it self k 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy. if a mā do lease to one an acre of lād for life reseruing to himselfe the herbage this reseruation is void for he hath reserued the same thing in substance l 38. H. 6.
helde by before of the Manor for the Queenes acte may not preiudice her tenant f 29. H. 8. Br. Ca. 113. but where a man holdeth of the Q. by reason of an other thing as namely by reason of a Manour this is no tenure in Capite g 3. Eliz. Com̄ 241. Wilgous case but if the King be seised of a Manour and giueth to a straunger an acre of the Manour to haue and to hold to him and to his heires of his body engendred without expressing any seruice the donee shall hold of the king by knights seruice in Capite h Ibid 240. per Car. and tenures likewise may be to hold of one as of his person or of his Manor by diuerse other seruices as if a man had made a feoffement of land before the statute or a gift in taile sithence the statute to holde of him by the making of a bridge ouer certaine land or by making a beacon in the lande giuen this is a good tenure for a man may holde of an other by doing seruice for a common good as well as for the priuate profit of the Lord as to repaire a bridge or a high way or by keeping such a Castle for the Lorde himselfe in this hath profit with others i 11. H. 7. 12. 12. H. 7. 18. p Finch 24. H. 8. Br. Cas 51. Nomom You haue taken some paines Anglonomoph 7. Diuision 1 Whether one within age be compellable by law to do all maner of seruice either by himselfe or some other in discribing the particuler kindes of tenures now I would here somewhat of Codicgn whether one within age be excused from personal seruice because his age is not fit to serue so that the seruiceage is suspēded vntil the maturity of his age or whether he shal be compelled to do his seruice by a substitute Codicgn To dissolue that question a difference is to be taken for either the Father of the heire which is within age died in the warlike seruice 2 A diuersitie in the Ciuill law whether the father of such an infant dyed in a iust warre or at home in his bedde vndertaken for the defence of his Lorde in a iust warre I meane that which is waged for the safetie of the common weale or els he dyed in his house by humane infirmitie without any bearing of armes in the first case he is not bound to doe any seruice either in his owne person or by any other person interposed during his minoritie because his father who died in the field is supposed in Lawe still to serue by the glorie of his valor k Instit de Excus tutor §. sed si in bello ff ad leg Aqu. l. qua actione §. si quis in colluctatione which the best and most learned of all Poets did well imagine who when he had placed Caesar in the middest of extreme troubles to comforte and encourage him representeth vnto him the ghost of Scaeua one that dyed a good while before but yet after many assaults and many woūds stoode out as a Conqueror l Lucan li. 10. which conceite of Lucan Tasso a moderne Italian writer a man of an excellent poeticall witte in the discriptyon of Guidoes funerall doth passionatelye though Popishely glaunce at m S. Torquat Tasso Canto 4. Gierusal liberat but if the father died not in warre nor in the expedition but by naturall death in his owne house then if the heire at the death of his Father bee in his pupillage he must perfourme that seruice by a substitute Anglonomoph But by our Lawe he shall be in 3 That by the common law the infant shal be in warde if his father died seised of land helde by knights seruice without any such diuersitie warde to the Lorde during his minoritie if hee holde his landes by Knightes seruice and the Lorde shall haue the profits of his lande that he may maintaine a sufficient man to doe him seruice in the warre whereas the heire by reason of his tender age cannot personally performe the seruice nor by the want of discretion prouide a conuenient person to accomplishe it n Litt ' lib. 2. c. c 4. sect ' 3. but if he be made a Knight within age then because the Lawe intendeth that he is fit to doe his seruice because knighthoode is bestowed in regarde of precedent merite or of some eminent prowesse and towardnes as may appeare by that saying of Scipio in the Senate ab annis septemdecim ad senectutem semper vos aetatem meam honoribus vestris anteistis ego vestros honores rebus gerendis precessi o Liuius li. 38. the Law is otherwise But 2. Ed. 6. in the case of Sir Anthony Browne of Surrey vicount Mountegue a difference was taken where the tenant by 4 A diuersitie in the commō law where the heire of the tenāt by knights seruice is within age and a knight at the time of his fathers death where not Knights seruice dieth seised his heire being within age and a Knight at the time of his death and when after his death he is made Knight during his minoritie for in the former case it was helde that he should be in warde notwithstanding his knighthoode p 2. E. 6. Br. Gard 42. 72. For otherwise the auncestor may procure his sonne within age to be made knight by collusion to the intent to defraude the Lord of his warde but this seemeth to be but a weake reason because knighthood is not by intendement of the law graunted vpon so sleight a cause but it seemeth to Master Brooke where the heire is in ward and is made knight being in warde this shall free him from wardship for the statute of Magna Chartaca 3. Postquam heres fuerit in custodia cum ad aetatem peruenerit scil 21. annorum habeat heredit atem suam sine releuio sine fine ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra sua remaneat in custodia dominorum vsque ad terminum supradictum this saieth q Br. ibid. Master Brooke verie probaly guyding his opinion by the premisses is onely to be intended where the heire is made Knight within age being in warde after the death of his auncestour and not where he is made knight in the life of the auncestour but admitte this to be meant of such an heire onely yet by no consequence can a man inferre hereof that if an heire within age bee made knight in his fathers life time he shal be in warde after the death of his father nay there is good authoritie for the contrarie r 6. Elizab. Comm̄ 268. Nomomat Let mee knowe I pray you what 8. Diuision penalties lye vpon the tenant if hee doe not his seruice Codicgn By our Lawe the vassalle is depriued 1 What penalties lye vpnon the tenant if he do not his seruice of his
that the deuisee be capable at the time of the death of the testator so it is likewise by our law for though a man may not graunt nor giue lands to his wife during the couerture because they both are but one persoÌ„ in law yet by custome heretofore which the CoÌ„mon law did fauour and now by statute he might or may deuise his lands to his wife to haue in fee simple or otherwise because such deuise taketh not effect till the death of the deuisor p Littl. lib. 2. c. 10. Sect. 8. 27. Assis pl. 60. and then they are not one person q 24. H. 8. Br. Deuis 34. Nomom Now let me know what things may 3. Diuision be deuised Codicgn Whatsoeuer things the testator hath 1. That by the Ciuill law all such things may bee deuised as the testator hath in his owne right at the time of the deuise as in his owne right r ff de legat 2. l. vinum §. si reÌ„ tuam if he happen to deuise a thing which is not his owne but an other maÌ„s the executor is by our Lawe compelable to buy it and to giue it to the deuisee by vertue of the will or if the owner will not sell it hee ought to pay the very value and full estimation of it to the deuisee Å¿ ff de legat 3. l. dubium §. vlti and if lande bee bought by the deuisor for which he hath not payed any monie or not all the monie if he died and the deuisee will haue the land hee must pay the monie and so enioy the land t L. 39. §. IdeÌ„ Iulianus de legat 1. but if the deuisor haue solde lande and hath not receiued the monie and he deuiseth the lande so solde to I. S. the deuisee in this case shall not haue the lande solde but the monie that is to bee payed for it for an argument is rightly drawne ab augmento ad diminutionem u L. si ex toto eo tit so that this conclusion may bee made is the thing bought due to the deuisee then the deuisee ought to pay the monie is the thing not solde not due to the deuisee then hee must haue the monie that is to bee payed for it Anglonomoph In our Lawe the making of a testament 2. The three degrees of a testament by the Common law hath three partes Inception which is the writing of the testament Progression which is the publication of it Consummation which is the death of the partie and when after the deuise the deuisor purchaseth other lands it caÌ„not 3. A differeÌ„ oâ— in the CoÌ„mon law where a man deuiseth a thing wherof he is not seised particularly and by name and where not be intended by any possibilitie that hee would haue them to passe by the deuise for there is nothing conteined in the will which doth purport such intent but it was held in Brettes case that if a man deuise land in certaintie as the mannor of Dale or white acre and he hath no interest nor possession in them at the time of the making of the will and after the doth purchase it in such case it shall passe to the deuisee for then it shall be taken that his intent was to purchase it as it is said 39. Henr. 6. 13. and it was likewise sayd that the statutes of 32. and 34. Henr. 8. required that the deuisors should bee seised of the land deuised at the time of the deuise for the words be Euerie person hauing or which after this acte shall haue c. a 10. Eli. ComÌ„ Brets case per Louel touts les Iust Nomom I pray you let me know more particularly what things may be deuised Codicgn A thing may be deuised which is not 4 That things which are not in esse at the time of the deuise made may be deuised in rerum natura at the time of the deuise if afterwarde it may be as the corne which shall grow in such a soyle or the lambes which shall come of his flocke of sheepe in such a field b Instit de legat §. ea quoque res ff de legat 1. l. quod in rerum but if the testator doe deuise tenne quarter of corne comming of the corne which shall growe in such a soyle or two tunnes of wine of his grapes in such a vineyard or tenne lambes of such a flock though so much corne or wine or so many laÌ„bes doe not arise of the thinges abouesaid yet the heire or executor is compellable by law to make them good integraliter because he may seeme to haue mencioned the soile the vineyard and the flocke rather by way of demonstration then by way of condition c l. quid testamento in prin ff de leg 1. l. Paulo Callimacho §. Iullanus Seuerus ff de legat 3. l. Lucius ff de alim leg but if the testator doe deuise certaine goods or a certaine summe of money to I. S. and in his life time after recouerie of his health he giueth the goods or payeth the money to the said I. S. now without any alteration of the deuise in the will the executors shall bee discharged of perfourming the deuise after the death of the testator d l. Lucius Titius in testamento in prin ff de legat 2. gl in Clem. dudum de Sepultur Angonomoph It is said in our bookes that if a 5 That the deuise of tenaÌ„t for terme of life or tenant iâ— dower of corne growing at the time of their death is good man which hath estate for life or tenaunt in dower doe deuise their corne growing vpon the lande at the time of their death this is a good deuise and hee in the reuersion shall not haue the Corne e 4 H. 3. Deuis 26. But if a man seised of lande in fee as in right of his wâ—fe doe lease the same land for yeares to a straunger and the lessee soweth the lande and after the woman dyeth the corne being not ripe in this case the lessee may deuise the corne growing vppon the lande and yet this estate is determined and it was certaine but a thing non-certaine was the cause of the determination of it f 7. E. 3. 67. 7. E. 4. 17. Park 99. sect 513. 10. E. 3. 29. And if a man bee seysed of lande in the right of his wife and sowe it ad deuiseth the corne growing vpon the lande and dyeth before it bee seuered the deuisee shall haue it and not the wife but otherwise it is of hearbes or meadowe growing vpon the lande and not seuered at the time of the death of the deuisour g 7. Ass pl. 16. And if tenaunt in taile of lande lease the lande for life and the lessee soweth the lande with Corne and the tenaunt in tayle dyeth and the issue recouereth in a Formedon in discender before the
whether shall the deuisee haue the house Codicgn By our Lawe hee shall haue the 1 That if a man deuise a plott of grouÌ„d whereon a house is built the house also passeth house whether it were built before the Testament were made or after u l. seruum silij §. si are ae ff de l. si are ae ff de leg 2. and wee haue a rule in our Lawe Quidquid plantatur seritur vel inaedificatur omne solo cedit radices si tamen egit Anglonomoph It is so likewise in our Lawe 2 A house built vpon laÌ„d entailed after the gift shal be recouered in a Formedon for if a man giue lande in taile and the donee buildeth a house vpon it and dyeth without issue the donor if he be deforced from the land shall demaunde it in a Formedon per nomen mesuagij a 32. H. 8. 47. Dyer Nomomat Put case the Testatour deuiseth to 6. Diuision one a deede or instrument conteyninge a certaine debt whether doth he deuise the debt or noe b l. seruum silij § â—um qui chirographum de legat 1. Codicgn In that case the debt passeth h but 1 That by the ciuil law when an especialtie conteining a debt is deuised to one the debt it selfe passeth if tenne seuerall payments ought to bee made by the condition of a bonde as suppose tenne poundes is to be payd yerely by tenne seueral payments and fiue yeres be past and fiue payments made and the testator deuiseth the summe comprised in the condition to I. S. in this case the deuisee shal not recouer against the executor the whole summe conteigned in the condition but fiue pounds onely c d. l. seruum filij §. sed et si nomen Anglonomoph Master Perkins a man that writeth 2 Master Parkins his opinioÌ„ touching the deuising of an obligation is examined of diuerse Titles of our Law rather subtilly then soundely saieth that if twentie pounds be due to a man vpon an obligation or a contracte which ought to be payd at the feast of Easter and he euiseth it to a straunger this is a good deuise if the money bee afterward payd but if he had deuised the obligation or the counterpaine of the Indenture of couenants wherein the bond is conteined the deuisee shall not vse an action vpon the bonde in his owne name but he may giue or sell the obligation to the obligor or to a straunger d Perkins 101. sect ' 527. but howe bonds or things in action may passe directly from one to another by way of graunt or deuise I cannot yet perceiue by any authenticke opinion in our yere bookes for to say that the especialty or bonde conteyning the debt or duety doth passe vnto the deuisee though the debt doe not passe as namely the parchment ynke and waxe but not the summe conteigned is as if one shoulde imagine that a man roweth ouer Thames in body and yet remaineth at the Temple staires in soule for if the debt being the principall doe not passe I cannot vnderstand how the parchment or paper or the deede it selfe being the accessorie can passe for accessorium sequitur suum principale Nomom Resolue in this if a man deuise to an 7. Diuision other a horse a garment or the like and they perishe in the handes of the executour whether is the executor bounde by Law to make them good Codicgn In such case either the executor doth linger and delay the deliuery or giuing of the thing deuised to him to whom it was deuised and then I doubt not but he is bound to pay the 1 That by the Ciuil Law the executor is bound to make good the thing which perisheth through his default value of the thing which perisheth through his default or there is no default in him and then he is not to bee charged with the making of it good e l. cum heres §. si l. huiusmodi §. si cui homo ff de legat 1. and then the executor or heire may bee said to delay the administration of the legacye when he may speedily performe it and will not but if he be by the acte of a straunger hindered from executing the bequest as suppose he hath not the monie readie which is deuised or the deuise be that hee shall purchase an other mans lande with the money of the deuisor and assure 2 That in some cases the time of performing legacies is left to the discretion of the Iudges it to I. S. if he cannot easilie compasse this purchase doing his best endeuour the rigor of lawe is to be tempered in this case by discretion and respite must bee giuen by the arbitrage of the Iudge f l. si domus §. in pecunia ff de legat 1. Anglonomoph In our Law we haue many cases wherein they that are charged with the deliuery of a thing vpon some trust and confidence 3 That by the common law the executors are bound to performe the deuise in conuenient time reposed in them and the thing that should be deliuered perisheth through their default they are enforced by lawe to make full amendes for if a man be seised of lande deuisable in fee and deuiseth by his Testament that his executors shall sell his land and shall distribute the profits comming thereof to the vse of the poore and the deuisor dyeth if a straunger tender vnto them monie for the lande but not so much as the lande is worthe in their opinion and they to the intent they may sell it more deere differre the sale for two yeres space and take the profit themselues nowe the heire for their longe delaying may enter 4 A diuersitie betwixt an obligee and a deuisee and put them out of the land g 38. Ass pl. 3. 39. Ass pl. 3. but if a man be bound in xx li. to pay x. li. at the feast of Saint Michael the obligee refuseth the money when it is tendered in pollardes which afterward are embased the obligor shall beare the losse of the embasement because he must pleade vncore prist h 7. E. 6. 83. Dyer and yet the refusal was the default of the obligee Nomom Put case that a man deuiseth to one a 8. Diuision beadsteede whether shall the deuisee by force of this deuise haue the curtaines of the bed Codicgn The accessorie goeth alwaies with the 1 That things which are accâ—ssory doe passe with their principal principal and the curtaines therefore in this case shall passe with the bedsteade i l. liberorum §. sin ibi glo de legat ' 3. so if a man deuise to one his land or his house the arrerages due by the farmor or inhabitant from the death of the Testator are payable to the deuisee but not the arrerages before k l. praedijs §. 1. ff de legat 3. l. Nomen §. filio ex parte de
doct ' in l. quod â—eruus eod dict l. 1. §. est autem §. penult l. Lucius eod l. licâ—t in sin eod and in the one is the propertie in the other the trust Angonomoph To this our Law accordeth for 2 The nature and course of it at the common law if a man deliuer goods chattels to one to keepe and he will deliuer them he that deliuered them may haue a writ of Detinue against the other for these goods and chattels and so if a man deliuer goods or mony to an other in a bagge ensealed b Fitz. na br 138. A. or not ensealed c 18. H. 6. 20. or in a chest or coffer to deliuer to an other and hee to whom they are deliuered will not deliuer them ouer accordingly hee to whom they should bee deliuered may haue a writ of Detinue but if a man deliuer money to one being not in a bagge or coffer to redeliuer to him or to deliuer ouer to a straunger in such case neither he that deliuereth nor he to whom the money or goods are to bee deliuered shall haue a writte of Detinue for the money but a writte of Accompt because a writte of Detinue ought to be of a thing certaine as of money in a 3 A diuersitiâ— where a writ of Accompt of Detinue and of Trespas are to be brought concerning things deliuered at the coÌ„mon law bagge or of a horse or twentie kyne or such things in certaine d Fitz na br 138. A. 7. H. 4. 13. 13. E. 3. Detin 53. 6. E. 4. 11. 36. H. 6. 9. per WaÌ„gef Billing 5 Ma 152. Dy. 39. E. 3. 30. 46. E. 3. 16. if the bailie open the bagg in which money is deliuered the partie to whom the mony belongeth may haue a writ of Trespas or Detinue at his pleasure e 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him f 33. H. 6. 26. per Litt ' 20. H. 6. 17. So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a straunger and hee deliuereth it without mencioning the condition a writ of Detinue will lye against the first Bailie and no other remedy may be had g 9. H. 6. 37. per Curiam and where I deliuer goods and a straunger taketh them out of the possession of the Bailie I may haue a writ of Detinue against the straunger or against my Bailie h 20. E. 4. 11. for my Bailie is chargable into whose haÌ„ds soeuer the goods do come but if he deliuer them ouer to an other that baily is not chargeable to me but onely for the possession i 12. E. 4. 12. Nomomat Suppose that a man enfeoffeth me 2. Diuision of certaine landes with warrantie who reteigneth all the deeds and euidences concerning the landes in his owne possession whether may these deedes after liuery made to me of the lands be said to bee my depositum in his handes as a thing which I haue left in his hands and whether will a writ of Detinue lye for them at the common law Codicgn They cannot be said to be deposita in 1 That a thing cannot be said to be a depositum at the ciuil law except it be deliuered to the partie his hands because a thing cannot be said to be deposituÌ„ except it be deliuered to the partie k l. 1. ff de pos ibi Doct ' and if these writings which you speake of do belong to the feoffor as I thinke they doe then they cannot be said to be deposita for wee haue a rule in our law that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur and it is contra l quirem eod bonaÌ„ fidem that the owner should redeliuer his goods in which he hath a propertie to an other man m l. bona fides ff depos in sâ— Anglonomoph It is good to be considered to 2 That by the common law the feoffee of the land is to haue the charters when the feoffement is without warrantie otherwise it is when it is with warrantie whom these charters or deedes aboue mencioned doe belong The authority is very pregnant that if a man make a feoffement of his land to an other by deede the feoffee shall haue the charters concerning the land though the feoffor doe not expresly giue them to the feoffee n 18. E. 4. 14. 9. E. 4. 53. 39. E. 3. 22. 7. H. 4. 7. 34. H. 6. 1. And if a man make a lease for terme of yeares and after confirme the estate of the lessee in fee and he to whom the confirmation was made dyeth now his heire shall haue as well the deed of the lease for terme of yeares as well as the deed of confirmation because that deed maketh the confirmation good o 9. E. 4. 53. Fitz. nat br 138. K. and so where a gift is made to one for life the remainder to an other in taile if the donor release all his right to the tenant for life he in the remainder cannot haue a writte of Detinue for this release after the death of the tenaunt for terme of life p 9. H. 6. 54. But in the case which you haue proposed because the feoffement is with warrantie so that the feoffour is bounde to warrantie nowe the feoffee shall not haue the charters concerning the lande for so the feoffour might sayle of the maintenance of his warrantie and so if a man be enfeoffed with warrantie and after enfeoffeth an other with warrantie the heire of the feoffour may haue a writte of Detinue against a straunger in whose possession are any deedes or charters concerning the lande because he may haue aduauntage of this warrantie q Fitz. na br ibid ' L. but let the feoffement or gift bee made without warrantie it is cleare that the donee or feoffee may claime the charters concerning the inheritance de iure and therefore if a gift of lande be made to A. in taile the remainder to B. in fee and after A. dyeth without issue B. shall haue the deede r 3. H. 7. 15. so if laÌ„ds be giuen to two and the heires of one of them by deede now if the tenant for life die hee that hath the fee simple shall haue a writte of Detinue for the deede Å¿ Fitz. nat br 138. F. for the deede runneth with the land and is of the nature of the inheritance and therefore a repleuin lyeth not for such charters t 4. H. 7. 10. and it is saide by Newton 22. H. 6. that he in the remainder in taile shall not haue a writte of Detinue against the tenant for terme of life if he haue the deed specifying the remainder yet he cannot haue a Formed on in the remainder nor an action of Waste without shewing the deede u 22. H.