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A11308 The fyrst dialogue in Englisshe with newe additions.; Dyaloge in Englysshe. Saint German, Christopher, 1460?-1540.; Saint German, Christopher, 1460?-1540. Dialogus de fundamentis legum Anglie et de conscientia. aut 1532 (1532) STC 21568; ESTC S116337 214,256 498

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fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ Studēt To that some answere say that whan the lande is solde a recouery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto whereupō foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warraūte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ Studēt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cōceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficiēt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge Hēry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whā the parliamēt gaue to suche recouerers auctorite to aduowe iustifie for suche rētes customes seruices as they recouered / that the entēt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue thē suche power / that the parliament shulde els be takē in maner as fortifiers of wrōg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
haue the rent in cōscience shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am cōtent 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 mā 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 hī his landes and goodes and put his body in prysō 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 goodꝭ 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 consciēce 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 tenaūt for terme of lyfe entreth he shal haue there none other estate ī 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 ī the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ꝓfyte 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 Englāde is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what daūger 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 tenaūt for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenaūt 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 coūsayle 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 ignoraūt 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 hī 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
partie Also where there can be had no sufficiēt 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 cōsciēce shal be ruled after the lawe / and where the lawe shal be ruled after consciēce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases groūdyd 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 questiōs after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where cōsciēce 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 cōscience 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 cōsciēce 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 mēcion 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 cōscience for of suche a lawe made by man cōsciēce muste be ruled / as is sayd byfore Nor it is nat to be vndepstāde of a lawe made by man cōmaundynge 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 cōscience 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 cōsideracion punysshe hym that dothe it / but leuyth it onely to his cōscience And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in cōsciēce 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 cōscience 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 cōsciēce to the halfe ꝓfittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst cōscience / for the lawe neyther wyllyth ne cōmaundyth that one shulde take all the ꝓfittes / but leuyth it to theyr cōscience 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 consciēce 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 cōscience all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for cōsciēce / but the lawe is nat to be lefte for conscience ☞ Addicion ❧ Also many men thynke that if a man haue lāde 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 damagꝭ / 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 damagꝭ 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 ī the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by cōsciēce 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
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
the waste ¶ Studēt ye verely ¶ Doct. And what is the lawe of tenantes for tme of lyfe or for tme of yeres if they do waste ¶ Student They be punysshable of wast by the statute shall yelde treble damagꝭ / but at the comon lawe before that statute they were nat punysshable ¶ Doctour But whether thynkest thou that before that statute they myght haue done waste with consciēce bycause they were nat punysshable by the law Studēt I thynke nat / for as I take it the doyng of the wast of suche particuler tenantes for terme of lyfe / for terme of yeres / or of tenantes in dower / or by the curtesye is prohibite by the lawe of reason / for it semeth of reason that whan suche leases be made / or that suche tytles in dower or by the curtesy be gyuen by the lawe that there is onely gyuē vnto them the annuall ꝓfites of the lande and nat the houses trees the grauel to dygge cary away / wherby the hole ꝓfite of them in the reuercion shulde be taken away for euer And therfore at the comon lawe for waste done by tenant in dower or tenant by the curtesy there was punysshemēt ordeyned by the lawe by a ꝓhibicion of waste wherby they shulde haue yelded damages to the value of the waste But agaynst tenant for terme of lyfe or for tme of yeres lay no suche ꝓhibicion / for there was no maxime ī the lawe therin agaynst them as there was agaynste the other And I thynke the cause was for as moche as it was iuged a folye in the lessour that made suche a lease for terme of lyfe / or for terme of yeres that at the tyme of the lessee he dyd nat prohibite them that they shulde nat do waste / and sythe he dyd nat prouide no remedye for hym selfe the lawe wolde none ꝓuide But yet I thynke nat that the intent of the lawe was that they myght lawfully with good cōsciēce do waste / but agaynst tenantes in dower by the curtesye the lawe prouided remedy for they had theyr tytle vy the lawe Do. And verely me thynketh that this tenant in tayle as to doyng of waste / shuld be lyke to a tenaunt for terme of lyfe / for he shall haue the lande no lenger than for terme of his lyfe no more thā a tenant for terme of lyfe shall / and the waste of this tenant is as great hurte to hym in the reuercion or remayndre / as is the waste of a tenant for terme of lyfe and if he alyene / the donoure shall entre for the forfeyture as he shall vpon the alyenacion of a tenant for terme of lyfe / and if he make defaute in a Precipe ꝙ reddat the donour shal be receyued as he shal be vpon the defaute of a tenant for terme of lyfe / and therfore me thynketh he shal also be punysshable of wast / as tenant for terme of lyfe shall ¶ Student If he alyen the donour shal entre / as thou sayst bycause that alyenacion is to his disheritance / and therfore it is a forfeyture of his estate and that is by an auncient maxime of the lawe that gyueth that forfeyture in that selfe case / and if he make defaute in a Prec̄ ꝙ redd he in the reuercion / as thou sayest shal be receyued / but that is by the statute of West .ii. for at the comon lawe ther was no suche receyt / and as for the statute that gyueth the accion of waste agaynst a tenant for terme of lyfe and for terme of yeres it is a statute penall shall nat be taken by equite / so there is no remedy gyuen agaynste hym / neyther by comon lawe nor by statute / as there is agaynste tenant for terme of lyfe / therfore he is vnpunysshable of waste by the lawe ¶ Doctour And thoughe he be vnpunysshable of waste by the lawe yet neuerthelesse me thynketh he maye nat by consciēce do that / that shal be hurtefull to the inheritaunce after his tyme / sythe he hathe the lande but for terme of his lyfe no more than a tenaunte for terme of lyfe may / for than he shulde do as he wolde nat be done to / for thou agreest thy selfe that thoughe a tenaunt for terme of lyfe was nat punysshable of wast before the statute that yet the lawe iuged nat that he myght ryghtfully with good consciēce do wast And therfore at this day if a feffement be made to the vse af a man for terme of lyfe / thoughe there lye no accion agaynst hym for waste / yet he offendeth conscience if he do waste as the tenaunte for terme of lyfe dydde afore the statute whan no remedye lay agaynste hym by the lawe ¶ Stud. That is true / but there is great diuersite bytwene this tenant a tenant for terme of lyfe for this tenaunt hath good authorite by the donour to do waste / so hathe nat the tenaunte for terme of lyfe / as it is sayd before For the estate of a tenaunt in tayle after possibilite of yssue extyncte is in this maner Whan landes be gyuen to a man to his wyfe and to the heyres of theyr two bodyes begotten / and after the one of them dyeth without heyres of their bodyes begotten / than he or she that ouerlyueth / is called tenant in tayle after possibilite of yssue extyncte / bycause there can neuer by no possibilite be any heyre that may inheryte by force of that gyfte And thus it apereth that the donees at the tyme of the gyfte receyued of the donour estate of enheritance / which by possibilite might haue continued for euer / wherby they had power to cut downe trees to do all thīge that is wast / as tenant ī fee simple myght and that authorite was as stronge in the lawe as if the lessour that maketh a lease for terme of lyfe say by expresse wordes in the lease that the lesse shall nat be punysshable of waste And therfore if the donour in this case had graunted to the donees that they shulde nat be punisshable of wast that graunt had ben voyde bycause it was included in the gyfte before as it shulde be vpon a gyfte in fe simple so for as moch as by the fyrste gyfte and by the lyuere of season made vpon the same the donees had authorite by the donour to do waste Therfore though the one of the donees be nowe deed without yssue / so that it is certayne that after the dethe of the other the lande shall reuerte to the donour / yet the authorite that they had by the donour to do waste cōtinueth as longe as the gyfte and the lyuerey of season made vpon the same cōtinueth and I take this to be the reason why he shal nat haue in ayde as tenaunt for terme of lyfe shal / that is to say / for that he can nat aske helpe of that maxime
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 re-reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully re-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 re-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 coūsayle / thā 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 examinaciō 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 consciēce 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 cōscience / for there is no lawe that byndeth them to īstructe hym / but as they do comōly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr coūcell / if the appelle be pore haue no coūcell the court muste assigne hym coūcell if he aske it as they muste do ī all other plees / that me thynketh they are boūde 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 thē to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat coūcell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellaūt 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 stelīg of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke thē perciall / therfore as wel for the indēpnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue coūcell / but whā that a mā is indicted at the kynges sute / the kīge intēdeth nothyng but iustice with fauour that is to the rest quietnes of hꝭ faithful subiectꝭ / to pul away misdoers amōg them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as fe●te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his coūsayle wyll be cōtented And so there is no daunger therby neyther to the cou●● ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpō 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 ●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 hī 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 cōiecture or informaciō 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 knowē 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 takē 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 ¶ Studēt 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 strōge 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 warātye 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 thā consciēce 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 mā shuld haue a nother mānes lāde 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 stādeth with conscience bycause it is ordeyned for ministraciō of iustice / but I cā nat ꝑceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comō law of wrecke of the see / that is to say that if a mānes goodes had bē wrecked vpō the see that the goodes shuld haue ben īmediatly forfayted to the kyng And it is holdē by all doctors that that law is agaīst cōscience 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
enfeffed hym as before apereth it is vsed that he shall plede ferther saye that the pleyntyfe claming in by a coloure of a dede of feffemēt made by the sayd feffo r before the feffemente made to hym / where nought passed by the dede ētred / vpō whome he entred asketh iugemente if the assiselye agaynste hym In this case bycause it appereth to be a dout to vnlerned mē whether the lande passe by the dede without lyuerey or nat / therfore the lawe suffreth the tenāt to haue that speciall matter to bring the matter to the determinacion of the Iuges And in suche case the Iuges may nat put the tenant fro the plee / for they knowe nat as Iuges but that it is trewe / so if any defaut be it is in the tenaunt nat in the court And though the trouthe be that there were no suche dede of feoffemēt made to the playntyfe as the tenaunt pleadeth / yet me thynketh it is no defaute in the tenant for he dothe it to a good intēt as before appereth ¶ Doctour If the tenante knowe that the feoffour made no suche dede of feoffement to the pleyntyfe / thā there is a defaut in the tenant to plede it / for he wittingly sayth agaynste the trouthe / it is holden by all doctours that euery lye is an offence more or lesse / for if it be of malice to the hurte of his neyghbour / than it is called Mendaciū permiciosum that is dedely synne And if it be in sporte to the hurte of no man / nor of custome vsed / ne of pleasure that he hath in lyenge / than it is veniall synne / is called in latine mēdacium iocosum And if it be to the profite of his neyghbour to the hurte of no man than it is also veniall synne / is called in latine mendacium officiosum And though it be the leeste of tho thre yet it is a veniall synne wolde be eschewed ¶ Student Thoughe the mydwyfes of Egipte lyed whan they had reserued the male chyldrē of the Ebrewes / saīg to the kyng Pharao / that the Ebrewes had women that were connyng in the same crafte whiche or they came had reserued the chyldren alyue where in dede they thēselfe of pytye of drede of god reserued them yet saint Ierome expoūdeth the texte folowyng whiche sayth that our lorde therfore gaue thē houses that it is to be vnderstande that he gaue them spirituall houses that they had therfore eternall rewarde / if they synned by that lye all though it were but veniall / yet I cā nat se howe they shulde haue therfore eternall rewarde And also if a man intending to slee a nother aske me where that man / is it nat better for me to lye to say I can nat tell where he is though I know it / thā to shewe where he is whereupon murder shulde folowe ¶ Doctour The dede that the mydwyfes of Egipte dyd in sauing that chyldren was meritorious deserued rewarde euerlastinge if they beleued in god dyd good dedes beside as it is to presume they dyd / whan they for the loue of god refused the dethe of the Innocentes / than though they made a lye after whiche was but veniall synne that coulde nat take fro them theyr rewarde / for a veniall synne dothe nat vtterly extincte charitie but letteth the feruour therof therfore it maye well stande with the wordes of saynt Ierome that they had for theyr good dede eternall houses / yet the lye that they made to be a veniall synne / but neuertheles if suche a lye that is of it selfe but veniall be affirmed with an othe / it is alwaye mortall if he know it befalse that he swereth And as to the other question it is nat lyke to this question that we haue in hande as me semeth / for somtyme a man for eschewing of the greater euyll may do a lesse euyll / than the lesse is no offence in hym / so it is in the case that thou hast put wherin bycause it is lesse offēce to say he wotteth nat where he is though he knowe where he is than it is to shewe where he is / wherupon murdre shulde folowe / it is therfore no synne to saye he wotteth nat where he is / for euery mā is bounde to loue his neyghbour if he shewe in this case where he is knowynge his dethe shuld folowe therupon it semeth that he loued hym nat / ne that he dyd nat to hī as he wolde be done to / but ī the case that we be in here / there is no suche synne eschewed / for though the partie pleded the generall issue the iury might finde the trouth in euery thyng / therfore in that he sayth that the pleyntyfe claymīge in by the colour of a dede of feffement where nought passed entred c̄ knowynge that there was no suche feffemēt it was a lye in hym a veniall synne as me thynketh And euery mā is boundē to suffre a deedly synne in his neyghbour / rather than a veniall synne in hīselfe ¶ Studēt Though the Iury vpō the generall issue may finde the trouth as thou sayste / yet it is moche more daungerous to the Iury to enquere of many poītꝭ thā to enquere onely of one poīt And for as moch as our lord hath gyuē a cōmaūdemēt to euery mā vpō hꝭ neyghbour / therfore euery mā is boūd to forse as moch as ī hī is that by hī no occasiō of offēce come to hꝭ neyghbor. And for the same cause / the law hath ordeined diuers maximꝭ principles whereby issues in the kynges court may be ioyned vpon one poynte in certayne as nyghe as may be / nat generaltye / lest offence might folowe therupon agaynst god / a hurte also vnto the Iuri / wherfore it semeth that he loueth nat in hys neyghboure as hym selfe ne that he dothe nat as he wolde be done to that offereth suche daunger to his neyghbour where he may well conueniently kepe it fro hym if he will folowe the order of the lawe / it semeth that he putteth hym selfe wilfully an ieoperdye that dothe it / it is written Ecclesiastici .iii. Qui amat periculum in illo peribit / that is to say / he that loueth peryl shall perysshe in it / and he that putteth his neyghbour in peryll to offende putteth hī selfe ī the same / so shuld he do me semeth that wolde wilfully take the generall issue where he mighte cōueniētly haue the speciall matter / ferthermore it is none offēce in princes rulers to suffre cōtractes and byēg sellīg in markettes / fayres / though bothe periure disceyte will folowe therevpon / bycause suche contractes be necessarye for the comon welthe / so it semeth lykewyse that there is no defaute in the partye that pleadeth suche a special mater
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. questiō of the Studēt / whether a mā 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 Studēt if a mā 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 boūde 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 consciēce 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 mā 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 husbāde 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 cā haue it / whether in conscience he shal be tenaūt by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a rēte enfeffe the graūte of the rente of parte of the lande c̄ whether the hole rente be extincte in consciēce 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 c̄ whether his hole rente be extincte in conscience c̄ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth lādes ī fee he that hath the villayn entreth / whether he may with cōciēce kepe the lādes to hī to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questiō of the Studēt if a mā in the case next before enforme hym that is in the reuerciō of the villayn that after the dethe of the villayn he hath right to the lāde coūsayleth hī to entre / wherupō great sute charges folowe / what daūger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpō a feffemēt made vpō cōdiciō that the feffe shall pay a rent to a straūger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the Studēt is vpō 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 lāde 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 cōtracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupō The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the Studēt if a mā 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 consciēce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with consciēce present to an aduouson of a churche that belongeth to the howse without assent of the couēt The .xxvi. chapitre Fo. 72. ¶ If a mā fynde beestes in his corne doīg 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 excōmenged / 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 condiciō 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 patrō 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 vpō 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 straūger The .xli. chapitre Fo. 102. ☞ Addicion ¶ Whether a man shal be boūde by the act or offēce 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 takē out by the Student of the summes called Summa rosella Summa angelica whiche me thīketh 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 ignoraūce 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 c̄ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takē 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 mā procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in cōscience 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 cōscience bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. ☞ Addicion ¶ The .vii. questiō of the Doctour / cōcerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade ī suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questiō 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 Englāde which treateth of diuers thynges that be shortly touched in the fyrst lesse of thꝭ present boke before the introduccion ¶ Imprynted at Loddō 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 ⸫
helde by .xii. d. rente the heyre in the yere folowynge shall paye that .xii. d. for his rēt / other .xii. d for his relyef And that relyefe he muste paye though he be within age at the deth of his auncestre ❧ Also there is an olde law custome in this realme that a freholde by way of feffement gyfte or lease passeth nat without lyuery of season be made vpō the lāde according though a dede of feffemēt be therof made deliuered but by way of surrendre particion eschaūge a freholde maye passe without liuery ❧ Also if a mā make a wyll of lāde wherof his is seased ī his demesne as of fee / that wyll is voyde / but if it had stande in feffes handes it had ben good And also in London suche a wyll is good by the custome of the cytie if it be inrowled ❧ Also a lease for terme of yeres is but a chatel in the lawe / therfore it may passe without any liuery of season / but otherwise it is of a state for terme of lyfe for that is a freholde in the law / therfore lyuerey muste be made therof or els the freholde passeth nat ❧ Also by the olde custome of the realme a man may distreyne for a rent seruice of cōmon right And also for a rent reserued vpō a gifte in tayle / a lease terme of lyfe / of yeres at wyll / in suche case the lorde may distreyne the tenauntes of beestes as soon as they come vpō the groūde / but the beastꝭ of straūgers that come ī but by maner of an escape / he may nat distreyne tyll they haue bē leuāt couchāt vpō the groūde but for dette vpō an obligaciō nor vpō a contracte / nor for accompte ne yet for arerages of accōpte / nor for no maner of trespasse / reparacions / nor suche other no man may distreyne ❧ Also by the olde law custome of the realme all yssues that shal be ioyned betwixte partie partie in any court of recorde within the realme except a fewe wherof it nedeth nat to treate at thꝭ tyme / must be tryed by .xii. fre lawfull mē of the visne that be nat of affinitie to none of the parties And in other courtes that be nat of recorde / as in the countye / court baron / hundred suche other lyke / they shal be tryed by the other of the ꝓtyes nat other wyse oneles the partyes assente that it shal be tryed by the homage And it is to be noted that lordes / Barons / all pyers of the realme be excepted out of suche trialles if they wyll / but if they wyll wylfully be sworne therin / some say it is no erroure And they may if they wyll haue a writte out of the Chauncerie directed to the Shyryfe cōmaundynge hym that he shal nat impanell them vpon no enqueste And of this that is saydbefore it appereth that the customes aforesayd nor other lyke vnto thē / wherof be very many in the lawes of Englande can nat be proued to haue the strenght of a law onely by reasō for how may it be proued by reason that the eldest sone shall onely enherite his father the yōger to haue no parte / or that the husbāde shall haue the hole lāde for terme of his lyfe as tenaunt by the courtesye in suche maner as before appereth And that the wyfe shall haue onely the thyrde parte in the name of her dower / that the husbande shall haue all the goodes of his wyfe as his owne And that if he dye lyuynge the wyfe / that his executours shall haue the goodes / nat the wyfe All these suche other can nat be proued onely by reason that it shulde be so no otherwyse all though they be reasonable / that with the custome therī vsed suffiseth in the law And a statute made agaynst suche generall customꝭ ought to be obserued because they be nat merely the law of reason ❧ Also the law of ꝓpretie is nat the law of reason / but a law of custome how be it that it is kept / is also right necessarie to be kept in all realmes amōge all people And so it may be nōbred amōge the generall customes of the realme And it is to vnderstande that there is no statute that treateth of the begynnyng of the sayd customes ne why they shulde beholden for law And therfore after thē that be lerned in the lawes of the realme the olde custome of the realme is the onely sufficiente auctoritie to them in that behalfe And I pray the shewe me what doctours holde therin / that is to say whether a custome onely be sufficient auctoritie of any lawe ¶ Doctoure doctours holde that a law groūded vpon a custome is the moste surest law / but this muste always vnderstāde therwith that such a custome is nother cōtrarie to the lawe of reason / nor to the law of god And now I pray the shewe me somwhat of the maxymes of the lawe of Englande wherof thou haste made menciō before in the .iiii. chapitre ¶ Studēt I wyll with good wyll ☞ Of the .iiii. grounde of the lawe of Englande The .viii. Chapitre STudent The .iiii. groūde of the law of Englāde standeth in diuers principles that be called in the lawe maximes / the which haue ben always takē for law ī this realme / fo that it is nat lawfull for none that is lerned to denye them / for euery one of those maximes is sufficiente auctoritie to hym selfe And whiche is a maxime / whiche nat shall alway be determined by the Iuges / nat by .xii. men And it nedeth nat to assigne any reason / why they were fyrste receyued for maximes for it suffiseth that they be nat agaīst the law of reason nor the law of god / and that they haue alway be taken for lawe And suche maximes be nat onely holden for law / but also other cases lyke vnto thē all thynges that necessarily foloweth vpō the same / ar to be reduced to lyke law And therfore moste cōmēly there be assigned some reasons or cōsideracion why suche maximes be resonable to the intente that other cases lyke may the more conueniently be applyed to them And they be of the same strength effect in the law as statutes be And though the generall custome of the realme be the strength warraunte of the sayd maximes as they be of the generall customes of the realme / yet because the sayd generall customes be in maner knowen throughe the realme as well to them that be vnlerned as lerned / may lightly be had knowen and that with lytell studye And the sayd maximes be onely knowē in the kynges courtes or amōge them that take great studie in the lawe of the realme / amonge fewe other persones Therfore they be set in this writtynge for seuerall groundes he that
both ī lawe cōsciēce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym ī 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 natwithstādyng the alienacion of her husbande shulde haue had ryght in lawe cōscience to the one halfe of the lande And so in these two cases cōsciēce 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 cōsciēce 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 cōscience / or the true iugemēt of cōscience in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of Englāde ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then cōscience maketh the cōclusion sayth therfore the inheritaunce is in cōsciēce 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 iugemēt of cōsciēce 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 cōscience / that is to say inwardly ī his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored thēselfe 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 cōcernyng thēselfe as other that come to them for cōceyll 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 ꝓfittes therof / whether maye that infaunte aske his fyrste lande agayne ī cōsciēce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of Englāde 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 ī this infaūte 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 feffemēt 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 cōsciēce be groūded that thou spekest of / for it can nat be groūded 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 feffemētes 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 cōtractꝭ be groūded vpon the lawe of reason / or at the leste vpō the lawe that is called Ius gentium ¶ Doct. Though contractes be groūded vpon that law that is called Ius gentiū / bycause they be so necessarye so generall amonge all people / yet that proueth nat that cōtractes be groūded 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 cōtracte of goodes And if any were that it shulde be voyde / so that euery man shuld cōtynewe 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 sūme of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were boūde to no more / but to repaye the money that he receyued with resonable expēces in that behalfe / and so ī lykewyse me thynketh that in this case the infant may with good cōsciēce re-reentre in to his fyrst lande / bycause the cōtracte 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 boūde to no more / but only to repay the money to hym that he solde his lāde vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficiēt lawful cōtracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that cōscience shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat groūded vpō the lawe of reason / but vpō the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condiciōs made vpō lande shuld be voyd And whā a condiciō is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter ☞ The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamaciō be leuyed accordynge to the statute no clayme made within .v. yeres c̄ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ Studēt that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a cōmon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeīte of title in the landes tenemētes comprised in the fyne / It semeth that that fyne extīcted the title of all other / as well in consciēce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. ☞ A questiō made by the Doctour / how certayne recoueries that be vsed ī the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whā a man that is seased of lādes in the tayle selleth the lande That it is cōmonly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaīst the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundaūtes shall suppose in theyr writte declaracion that the tenāt hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupō the sayde tenaunte in tayle shall appere in the court by couē by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle ī the same terme at that day by assent couen of the partyes / he shall make defaulte vpō whiche default bycause it is a default in despite of the court / the demaundauntꝭ shall haue iugemēt to recouer agaynst the tenaunt in tayle / he ouer in value agaīst the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with consciēce that as it semeth aloweth fauoureth suche fayned recoueries ¶ Studēt If the tenāt in tayle sel the lāde for a certayn sūme of money as is agreed betwixte them at suche a pryce as is cōmonly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth Leuiticē xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the lāde that is gyuē to him to
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 commō 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 mā hereafter holde that is certayne leue that is vncertaī 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 Westm̄ the .ii. that thoughe it be but onely a lawe made by mā / 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 thereupō take a respite or thou shewe thy full mynde therein / in lykewyse thou thīkest 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 thꝭ 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 coūceyllest 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 ¶ Studēt 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 questiōs cōcernynge 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 Iohā 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 c̄ that suche a recouery as we haue spokē 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 cōscience 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 cōscience 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 entēdeth 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 gyuē 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 tenāt by the curtesy that is to say of hī that happeneth to marye one that is an ēheritrix of the lāde entayled they haue issue the wyfe dyeth the issue dyeth / he shal holde the lādes for terme of his lyfe as tenāt 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 intēded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / so it semeth that a lyke entēt 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
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth ī this case that he shulde be cōpelled to take knowlege of the sute at his peryll / for sythe he hathe attēpted to offēde the lawe it semeth reasō that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth ī the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the acciō were vntrue / the defendaūt nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparaūce in lawe also in consciēce / that for this cause / the kyng as souereyne hed of the lawe is boūden of iustice to graūt such writtes and such ꝓcesses as be oppoynted in the lawe to euery ꝑsone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whā he is nat gyltye as whan he is gyltie / thā whā there is no maxime in the lawe that if a man be outlawed in suche maner as before apꝑeth that he shall forfayte all his goodes to the kynge / maketh no excepciō whether the acciō be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and cōscience as wel as if the accion were true And than the ꝑtie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue acciō ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without assēt of the owner it is to cōsydre that the ꝓpertie of goodꝭ be nat gyuē to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodꝭ were in comō / but after they were brought by the lawe of man into a certeyne ꝓpertie so that euery man myght knowe his owne thā whan such ꝓpertie is gyuē by the law of mā the same lawe may assigne such cōdiciōs vpō the ꝓpertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ꝓperty shall continue And one cōdiciō that goeth with euery ꝓperty ī this realme is if he that hathe the ꝓperty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodꝭ shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comō lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withī .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of thē was made vpō a better cōsideracion than this forfayture of outlagary was For if no especiall punisshemēt shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngꝭ courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of mā coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyuē to the kyng therby is good in cōsciēce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue ī latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recōpence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngꝭ muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ❧ The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in lādes that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
the straunger be nat sufficient to make recompence for the wast done ¶ Doctoure Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenaūt for terme of lyfe thoughe that he assented nat to the doyng of the wast ¶ Student ye verely / and yet if the tenaūt for terme of lyfe had ben boūden in an obligacion in a certeyne sūme of money that he shulde do no waste he shuld nat forfayt his bōde by the wast of a straūger / and the diuersite is this It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenaūt in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe thā was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shal be iuged aft the same lawe as the other cases be syth no resō of diuersite can be assigned why thete nāt for terme of lyfe after an acciō of wast was gyuē agaynst hī shuld haue any more fauour ī the lawe thā the tenāt by the curtesie or tenaūt ī dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre none to be done / and so it semethe that the lawe in this case dothe nat considre the abilite of the persone that dothe the waste whether he be able to make recompēce for the wast or nat But the assent of the sayd tenauntes wherby they haue wylfully taken vpon thē the charge to se that no wast shal be done ¶ Doctor I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast ¶ Student Trouthe it is ¶ Doct. And I thynke the reason is bycause they can haue no recouere ouer ¶ Student I take nat that for the reason but that it is an olde reasonable maxime ī the lawe that they shuld be discharged ī those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst reason and nat to be obserued / but yet neuertheles I take it nat so / for they myght refuse to take suche estate if they wolde / and if they wyll take the state after the lawe made it semeth reasonable that they take it with the charge and with the condicion that is appoynted therto by the lawe thoughe hurte myght folowe to thē afterward therby / for it is oftentymes sene ī the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wylfully renne into it of his owne acte nat cōpelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after blowē downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shal be boūde to repayre them or els he shall forfayte his obligaciō in lawe conscience bycause it is his owne acte to bynde hī to it / yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore So me thīketh that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whā the houses be destroyed by sodeyne tempest or by straunge enemyes is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr peryl se that no waste shal be done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpē by the lawe of reason / it semeth that he shal be charged in this case by his owne acte bothe in lawe conscience whether the straunger be able to recompence hym or nat ¶ Doctour I doute ī this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other For that lawe semeth nat reasonable that byndeth a man to an impossibilite And it is impossible to preuent that no wast shal be done by straungers / for it may be sodeynly done ī the nyght that the tenaūtꝭ can haue no notice of / or by great power that they be nat able to resyste / and therfore me thīketh they ought nat to be charged in those cases for the waste / without they may haue good remedy ouer and thā percase the sayd maxime were sufferable / els my thynketh it is maxime agaīst reason ¶ Studēt As I haue sayd before no man shal be compelled to take that bōde vpon hym but he that wyll take the lande and if he wyll take the lande it is reasō he take the charge as the lawe hath appoynted with it / and thā if any hurte growe to hym therby it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde ¶ Doctoure Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womā may refuse to take her dower yet tenaūt by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe the possession abideth styll ī hym by the acte of the lawe without entre / and thā I put the case that after the deth of his wyfe he wolde weyue the possessiō after wast were done by a straūger whether thīkest thou that he shuld answere to the wast ¶ Stu. I thynke he shulde by the lawe ¶ Doct. And howe stādeth that with reasō / seyng there is no defaut ī hī ¶ Stu. It was his defaut / at his owne peryll that he wolde marye an enheritrice whervpon such daūger myght folowe ¶ Doc. I put case that he were withī age at the mariage or that the lāde discēded to his wyfe aft he maried her Stu. there thou mouest a 〈◊〉 doute than the fyrste question is /
no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hī 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 Mortdaūcestre 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 ī this case is the yonger brother bounde in cōscience to pay to the executours of the eldest brother the value of the profytꝭ 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 ꝓfytꝭ / 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 Thā 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 ī 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 ī 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 ī Latyn syth our fyrste dialogue the demaundaūt shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demaūt though his Ayel ouer lyued his father must of necessite make his cōueyaūce by his father muste make hī 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 boūden in cōscience to restore to the executours of the father the profytes rēne in his tyme / for no lawe taketh thē fro hī / but otherwyse is ī 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 restituciō for those profytes as thou thynkest ¶ Doctour To the executours of the eldest brother / for ī 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 damagꝭ / for at the comō lawe the demaūdaunt ī 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 womā shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / suche damagꝭ 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 cōscience 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 lādꝭ 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 ī that case the heyre is bounde in concience to pay the damages to the demaundaunt so me
thynketh ī this case that the feoffe oughte in cōscyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too haue her dower ¶ Student Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaunde her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande whervnto any womā hath tytle of dower hath good auctorytye as agaynste her to take the ꝓfytes tyll she requyre her dower for euery womā that demaundeth dower affermeth the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyō she leueth the reuercyon alwey in him agaynst whome she recouereth thoughe he be a dysseasour bryngeth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he appere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / so he shall nat be receyued to do ī a wryt ofcosynage nether ī the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe ī this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the requeste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon ¶ Doctour As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is required / but whan he refuseth to assigne it than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe And fyrste as for the tyme after the refusell it appereth euidentely that whan he denied to assigne her dower he dyd agaynste consciēce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully ought in conscience to yelde damages therfore And as to the defaute that thou assignest in her that she toke nat her acciō / that forceth lytel for acciōs nede nat / but where the partie wyll nat do that he ought to do of ryght And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye thē / for whan he was requyred to assygne dower and refused It appereth that he neuer intēded to yelde dower fro the begynnyng / so he is a wrong doer in his owne cōscience / and more ouer if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womā bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat ī that case after thyne opiniō to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here ¶ Studente The cause in that case that thou haste put is for that the statute is general that the demaūdaūt shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the tenaunt maye nat saye that he is and hathe ben alway redy to yelde dower c̄ that the demaundaunt shall recouer damages fro the dethe of her husbande But in this case there is no law of the realme that helpeth for the damaundaūt neyther comon lawe nor statut / forthermore though it myght be proued by his refusell that he neuer entended fro the deth of the husbande to assigne her dower yet that proueth nat / but that he had good ryght to take the ꝓfites of her thyrde parte for the tyme as well as he had of his owne two partes tyl request be made as is afore sayd / and so me thynketh that nat withstandyng the denyer he is nat bounde to yelde damagꝭ in this case but fro the tyme of the request / and nat for the tyme byfore ¶ Doctoure For this tyme I am content with thy reason ❧ The .xii. question of the student The .xiiii. Chapitre STudent A mā seased of certayne landꝭ knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in cōsciēce as he may do by the lawe ¶ Doctoure By this question it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght that his ryght shulde than be extyncted by the fyne in conscience ¶ Student ye verely / for thou dydest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth But if he that leuyeth a fyne and that wolde extyncte the ryghte of an other / knowynge that the other hathe more ryghte than he than I doute therin for I take thyne opinion in our fyrste dialogue to be vnderstāde in conscience where he that wolde extincte former ryghtes by suche a fyne with proclamaciō knoweth nat of any former tytle but for his more surety if any suche former ryght be he taketh the remedy that is ordeyned by the lawe ¶ Doctoure Whether dost thou meane in this case that thou puttest now that he that hath right knoweth of the fyne and wylfully lettethe the .v. yere pas without claime or that he knoweth nat any thynge of the fyne ¶ Student I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat ¶ Doctour I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a lytell sparyng and procede nowe for this tyme to some other question ❧ The .xiii. question of the student The .xv. Chapitre STudent A man seased of certayne landes in fee hath a doughter whiche is his heyre apparaūte / the doughter taketh a
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
it is no rent in the lawe / ne in the lawe he shall neuer haue remedy for it / thoughe it were assigned to hym to his heyres with out condicion / neyther by distresse / by Assyse / by writte of Annuite / nor otherwyse / but he shal be dryuen to sue in the chauncery for his remedy / and than whā he sueth in the chauncery he must surmitte that he ought to haue it by conscience / and that he can haue no remedy for it in the lawe And than sythe he hathe no remedy to come to it but by way of cōscience it semeth it shal be taken that whan he hath recouered it that he ought to haue it in consciēce and that to his owne vse without the contrarie cane be proued / and if the contrarie can be proued and that the entent of the feoffoure was that he shulde dispose it for hym as he shulde appoynt than hathe he the rēt in vse to a nother vse / and so one vse shulde be depēdynge vpon a nother vse whiche is seldome sene and shall nat be intended tyll it be ꝓued / and so sythe no such matter is here expressed me thynkethe the rent shal be taken to be to the vse of hī that it is payed to / that the lande in lykewyse that it is appoynted to hī for nat paymēt of the sayd rent shal be also to his vse / howe thynkest thou / wyll conscience therin ¶ Doctour I thynke that as thou takest the lawe nowe that cōscience in this case the lawe be all one / for the lawe sercheth the same thynge in this case to knowe the vse that conscience doth / that is to say / the intent of the feoffour / and therfore I wold moue the ferther in one thynge ¶ Student What is that ¶ Doctoure That syth the intent of the feoffour / shal be so moch regarded ī this case why it ought nat also to be as moche regarded ī the case that is ī the last Chapitre next byfore this where the wordes be cōdicionall / and gyue the feoffour a tytle of re-reentre / for me thynketh that though the feoffour may in that case re-reentre for the condicion broken that yet after his re-reentre he shal be seased of the lande after his entre to the vse of hym to whome the lande was assigned by the said indenture for lacke of payment of the rent bycause the intent of the feoffour shal be taken to be so in that case as well as in this And I praye the let me knowe thy mynde what diuersite thou puttest bytwene them ¶ Student Thou dryuest me nowe to a narowe diuersite / but yet I wyll answere thy therin as well as I can ¶ Doctour But fyrst or thou shewe me that diuersite I praye the shewe me howe vses began / why so moche lande hath ben put in vse in this realme as hath ben ¶ Stud. I wyll with good wyl say as me thinketh therin ❧ Howe vses of lande fyrst bygan / and by what lawe / and the cause why so moche land is put in vse The .xxii. Chapitre STudent Vses were reserued by a secondary conclusion of the lawe of reason in this maner / whan the generall custome of propertie wherby euery man knewe his owne good fro his neyghbours was brought in amonge the people It folowed of reason that suche landes and goodes as a man had ought nat to be taken fro hym but by his assent or by order of a lawe / and than syth it is so that euery man that hathe landes hathe therby two thynges in hym / that is to say / the possession of the lāde whiche after the lawe of Englande is called the franketenement or the free holde / and the other is aucthoritie to take therby the profites of the lande / wherfore it foloweth that he that hathe lande intendeth to gyue onely the possession and free holde therof to a nother / and to kepe the profites to hym selfe ought in reason and conscience to haue the profites / seyng there is no lawe made to ꝓhibite / but that in cōscience suche reseruaciō may be made And so whan a man maketh a feoffemente to a nother and intēdeth that he hym selfe shal take the profites thā that feffe is sayd seased to his vse that so enfeffed hym / that is to saye / to the vse that he shall haue the possession freeholde therof as in the lawe to that intent that the feoffoure shall take the profites / and vnder this maner as I suppose vses of lande fyrste began ¶ Doctour It semeth that the reseruyng of such vse is prohibite by the lawe / for if a man make a feoffemēte and reserue the profites or any parte of the profites as the gresse wode or such other / that reseruaciō is voyd in the lawe / and me thynkethe it is all one to say that the lawe iugeth suche a thynge if it be done to be voyde / and that the lawe prohibiteth that that thynge shall nat be done ¶ Student Trouthe it is that suche reseruacion is voyde in the lawe as thou sayest and that is by reason of a maxime ī the lawe that wylleth that suche reseruacion of parte of the same thyng shal be iuged voyde in the lawe / but yet the lawe dothe nat ꝓhibite that no suche reseruacion shal be made / but if it be made it iugeth of what effecte it shal be that is to say that it shal be voyde / and so he that maketh such reseruacion offendeth no lawe therby / ne brekethe no lawe therby and therfore the reseruacion in conscience is good / but if it were prohibite by statute that no man shulde make suche reseruacion / ne that no feoffement of truste shulde be made / but that all feoffemētes shulde be to the vse of hym to whome possession of the lande is gyuen / than the reseruacion of suche vse agaynst the statut shulde be voyde bycause it were agaynste the lawe / and yet suche a statute shulde nat be a statute agaynste reason bycause suche vses were fyrste grounded and reserued by the lawe of reasō / but it shulde preuent the lawe of reason and shulde put away the cōsideracion where vpon the lawe of reason was grounded byfore the statute made And than to thy other question / that is to saye / why so moche lande hathe ben put in vse / it wyll be somwhat longe and peraduēture to some tedious to shewe al the causes perticulerly / but the very cause whythe vse remayned to the feffe natwithstādyng his owne feoffement or fyne and somtyme natwithstandynge a recouery agaynste hī is al vpon one cōsideracion after the cause and intent of the gyfte / fyne / or recouery / as is aforesayd ¶ Doctoure Thoughe reason may serue that vpō a feoffement a vse may be reserued to the feoffour by the intent of the feoffour agaynste the fourme of his gyfte as thou hast sayde byfore
feoffour was seased ī that case to his owne vse I shall shewe the afterwarde The seconde case is this A man maketh a feoffement in fee / and it is agreed vpon the feoffement that the feoffe shal pay a yerely rēt to a straūger / and if he pay it nat that thā the straunger shall entre into the lande In this case I sayd as it appereth in the sayd .xxi. Chapitre / that if the feoffe payed nat the rent that the straunger shuld haue the vse of the lande thoughe he maye nat by the rules of the lāde entre into the lāde / the diuersite bytwene the cases me thynkethe to be this In the fyrste case it apperethe as I haue sayd byfore in the sayde xx Chapitre / that the feoffour myght lawfully re-reentre by the lawe for nat payment of the rent / and than whā he entred accordynge he by that entre auoyded the fyrste lyuery of season / in so moche that after the re-reentre he was seased of the lande of lyke estate as he was byfore the feoffemente And soo remaynethe noo thynge / whervpon the straunger myght grounde his vse / but onely the bare graunte or entente of the feoffour whā he gaue the land to the feoffe vpon condicion that he shulde pay the rente to the straunger / and if nat / that it shulde be lawful to the straunger to entre / for the feoffement is auoyded by the re-reentre of the feoffour as I haue sayd byfore / and as I sayd in the last Chapitre as I suppose a nude or bare graunte of hym that is seased of lande is nat sufficiente to begynne an vse vpon ¶ Doctour A bare graunte maye chaunge an vse as thou thy selfe agredest in the last Chapitre why thā may nat an vse as well begyn vpon a bare graunt ¶ Student Whan an vse is ī Esse he that hathe the vse may of his mere mocion gyue it awaye if he wyll without recompence as he myght the lande if he had it in possession / but I take it for a grounde that he can nat so begynne an vse without a lyuerey of season or vpon a recompence or bargayne / that there is suche a groūd in the lawe that it maye nat so begynne it appereth thus / it hath ben alwaye holden for lawe that if a man make a dede of feoffement to a nother and delyuer the dede to hym as his dede / that in that case he to whome the dede is delyuered hath no tytle ne medelynge with the lande afore lyuerey of season be made to hym but only that he may entre and occupie the lāde at the wyll of the feoffour / and there is no boke saythe that the feoffour in that case is seased there of byfore lyuerey to the vse of the feoffe And in lykewyse if a man make a dede of feoffement of two acres of lande that lye in two shyres intendyng to gyue them to the feoffe and maketh lyuerey of season in the one shyre nat in the other / in this case is it comonly holden in bokes that the dede is voyde to that acre where no lyuerey is made excepte it lye within the viewe saue onely that he maye entre occupie at wyl as is aforsayde / and there is no boke that sayth that the feoffe shulde haue the vse of the other acre / for if an vse passed therby than were nat the dede voyde to all intentes / and yet it apperethe by the wordes of the dede that the feoffour gaue the landes to the feoffe / but for lacke of lyuerey of season the gyfte was voyde and some thynketh it is here without lyuerey of seasō be made accordynge But in the seconde case of the sayd two cases the feoffe may nat re-reentre for non payment of the rente / and so the fyrste lyuerey of season continueth and standeth in effecte / and thervpon the fyrste vse maye wel begynne take effecte in the straunger of the lande whā the rent is nat payed vnto hym accordynge to the fyrst agrement And so me thynketh that in the fyrst case the vse is determined by cause the lyuerey of season where vpon it cōmenced is determined / and that in the seconde case the vse of the lande taketh effecte ī the strāger for nat paymēt of the rēt by the graūt made at the fyrste lyuerey whiche yet continueth in his effecte / and this my thīketh is the diuersite bytwene the cases ¶ Doc. yet natwithstandyng the reason that thou haste made me thynketh that if a man seased of landes makethe a gyfte therof by a nude promyse without any lyuerey of season or recompēce to hym made and graūt that he shal be seased to his vse that thoughe that ꝓmyse be voyde in the lawe that yet neuertheles it muste holde and stande good in conscience and by the lawe of reason / for one rule of the lawe of reason is / that we may do nothynge against the trouthe / and syth the trouthe is that the owner of the grounde hathe graunted that he shall be seased to the vse of the other that graūt muste nedes stande in effecte or els there is no trouth in the grauntour ¶ Student It is nat agaynste the trouthe of the graūtour in this case thoughe by that graunte he be nat seased to the vse of the other / but it proueth that he hathe graūted / that the lawe wyll nat waraunt hym to graunte / wherfore his graunte is voyde But if the grauntour had gone ferther and sayd that he wolde also suffre the other to take the ꝓfites of the landes without let or other interupcion / or that he wolde make hī estate in the lande whan he shulde be requyred / than I thynke in those cases he were boūden in conscience by that rule of the lawe of reason that thou hast remembred to perfourme them / if he intended to be bounden by his ꝓmyse / for elles he shulde go agaīst his owne trouthe and agaynste his owne ꝓmyse But yet it shal make no vse in that case / nor he to whome the promyse is made shall haue no accion in the lawe vppon that promyse althoughe it be nat perfourmed / for it is called in the lawe a nude or a naked promyse And thus me thynkethe that in the fyrste case of the said two cases the graunte is nowe auoyded in the lawe by the reentre of the feoffoure / feoffour / and that the feoffour is nat bounden by his graunte neyther in lawe nor cōscience but that ī the secōd case he is boūd / so that the vse passethe frō hym as I haue sayd byfore ¶ Doctoure I holde me content with thy conceite for this tyme / but I pray the shewe me somwhat more at large what is taken for a nude cōtracte or a naked promyse in the lawes of Englāde / and where an accion maye lye there vpon and where nat ¶ Student I wyll with good wyll say as me thynketh
market had nat excused hym Also if a man reteyne a nother mannes seruaunt nat knowynge that he is reteyned with hym / that ignoraunce excuseth hym bothe for the offence that was at the comō lawe agaynst the maxime that prohibited suche reteynynge of a nother mannes seruaūt And also agaynst the statute of .xxiii. of Edwarde the .iii. whereby it is ꝓhibite vpon payne of inprysonemente that none shall reteyne no seruaunte that departeth within his terme without licence or reasonable cause / for it hath ben alwaye taken that the intente of the makers of the sayde statute was that they that were ignoraūt of the fyrste reteynoure shulde nat renne in any penaltye of the statute And the same lawe is of hym that reteyneth one that is warde to another / nat knowynge that he is his warde And if homage be due the tenaunt after that the homage is due maketh a feoffement / after the lorde nat knowynge of the feoffement distreyneth for the homage in that case that ignoraunce shall excuse hym of dammages in a Repleuin / thoughe he can nat auowe for the homage but if he had knowen of the feoffemente he shulde haue yelded damages for the wrōgfull takynge Also if a man be boūde in an obligaciō that he shall repayre the houses of hym that he is bounde to by suche a certayne tyme as ofre as nede shall require / after the houses haue nede to be repayred but he that is bounde knoweth it nat / that ignoraūce shall nat excuse him for he hath bounde hym selfe to it / so he muste take knowlege at his peryll / but if the condiciō had ben that shulde repayre suche houses as he to whome he was bounde shulde assigne / after he assigneth certayne houses to be repayred / but he that is bounde hath no knowlege of that assignement / that ignoraunce shall excuse hym in the lawe / for he hath nat bounde hym selfe to no reparaciōs in certayne / but to suche as the party will assigne / and if he none assigne he is boūde to none / therfore syth he that shuld make the assignement is priuye to the dede he is bounde to gyue notice of his owne assignement / but if the assignement had ben appoynted to a straūger thā the oblegour muste haue taken knowlege of the assignement at his peryll Also if a man bye lādes whereunto a nother hath title whiche the byer knoweth nat / that ignoraunce excuseth hym nat in the lawe no more than it dothe of goodes Also if a seruāt come with his maysters horse to a towne that by custome may attache goodes for det / vpon a playnte agaynst the seruaūte an officer of the towne by informacion of the party attacheth the maysters horse thynkynge that it were the seruantes horse / that ignoraunce excuseth hym nat / for whan a man wyll do an acte as to entre in to lande / sea se goodes / take a distresse or suche other / he muste by the law at his peryll se that that he doth be lawfully done as in the case before reherced And in lykewyse if a shyryfe by a repleuyn deliuer other beastes than were distreyned / thoughe the partye that distreyned shewed hym they were the same beastes / yet an accion of trespas lyeth agaynst hym / ignoraunce shall nat excuse hym for he shal be compelled by the law as all officers comonly be to execute the kynges writte at his peryll accordynge to the tenour of it to se that the acte that he dothe be lawfully done But otherwyse it is after some men if vpon a somons in a Precipe quod reddat the shyryfe by informacion of the demaundaunt somoneth the tenaūt in a nother mānes lande thynkynge it for the tenauntes lande there they say he shal be excused / for in that case he dothe nat sea se the lande ne take possession in the lande / but onely dothe somon the tenaunt vpō the lande / the writte cōmaundeth hym nat that he shall somon the tenaunt vpon hys owne lande but generally that he shall somon hym nameth nat in what lande than by an olde maxime in the lawe it is taken that he shall somon hym vpon the lāde in demaunde / therfore though he mistake the lande ignoraunt of it / yet if the demaundaunt enforme hym that that is the lande that he demaundeth that suffyseth to the shyryfe as to his entre for the so monynge as they saye though it be nat the tenaūtes lande And here I make an ende of these questions for this tyme. ¶ Doctour I praye the yet or we departe take a litell more payne at my desire ¶ Studēt what is that ¶ Doctour That thou woldest shewe me thy mynde in diuers cases of the law of the realme / whiche as me semeth stande nat so clerely with conscience as they shulde do And therfore I wolde gladly here thy conceyte therein how they may stande with conscience ¶ Student Put the cases I shall with good will say as I thynke to them ¶ Addition ☞ The fyrste question of the Doctour Howe the lawe of Englande maye be sayd reasonable that prohibiteth them that be arreyned vpon an Inditemente of felony or murdre to haue coūcell The .xlviii. Chapitre STudent Me thynketh that the lawe in that poynte is very good indifferent takynge the lawe therein as it is ¶ Doctoure why what is the lawe in this poynt ¶ Student The lawe is as thou sayst that he shall haue no coūcell / but thā the law is ferther / that in all thynges that perteyne to the ordre of pledynge the Iuges shall so instructe hym so ordre hym that he shall renne into mo ieopardye by his mispleadyng / as if he wyll pleade that he neuer knewe the man that was slayne / or that he neuer had a peny worthe of the goodes / that is supposed that he shulde steele in these cases the Iuges are boūde in conscience to enforme hym that he muste take the general yssue plede that he is nat gyltye / for thouh they be set to be 〈◊〉 bytwene the kynge the partye as to the partye as to the principall matter as they be in all other matters yet they be 〈◊〉 this case to se that the partye haue no hurt in fourme of pleadynge in suche induces as he shall shewe to be the truthe of the matter / that is a greate fauoure of the lawe / for ī appell though the Iustices of fauour wyll moste comonly helpe fourth the partye sōtyme his counsell also in the forme of pleadynge as they do also many tymes in common plees / yet they might in tho cases if they wolde byd the party his counsayle plede at theyr peryll But they maye nat do so with conscience vpon eno●●ementes as me semeth / for it were a greate vnreasonablenes in the lawe if it shulde prohibit hym that standeth in ieopardy of his lyfe that he shulde
to auoyde fro his neyghbour the daunger of periurie / ne yet in the court though they enduce hym to it / as they do somtyme for the intent before reherced / in lykewyse some wyll say that if the rulers of Cytyes communaltyes somtyme for the punisshement of felons / murderers / such other offenders wyll to the intēte they wolde haue thē to cōfesse the trouth say to thē that be suspected that they be informed in such certayne defautes or misdemeanours ī the offenders that they do to the intente to haue thē to confesse the truth that though they were nat so informed that yet it no offence to saye they were so īformed bycause they do it for the comō welthe / for if offenders were suffered to go vnpunisshed the comon welth wolde soone decay vtterly perysshe ¶ Doctour I wyll take aduisemēt vpō the reason in this matter tyll an other season I wyll now aske the another question somwhat lyke vnto this I praye the let me here thy mynde therein ¶ Studēt Let me here thy question and I shall with good wyll say as I thynke therein ¶ Addition ☞ The .vii. question of the Doctoure concerneth the pleadynge in assise whereby the tenauntes vse sōtyme to pleade in such maner that they shall cōfesse no ouster ⸫ The .liiii. Chapitre DOctoure It is comonly vsed as I haue herde say that whan the tenāt in assise pleadeth that a straūge our was seased enfeoffede hym gyueth the plaītyfe a colour in suche maner as before appereth in the .liii. chapitre / that the tenant many tymes whan he hath pleaded thus the pleyntyfe claymyng in by a colour of a dede of feoffemente made by the sayd straūgeour / where nought passed by the dede entred / that than they vse to say ferther vpon whome A. B. entred vpon whome the tenant entred / where in dede the sayd A. B. neuer entred / ne haplye there was neuer no suche man Howe can thys pleadynge be excused of an vntruthe / and what reasonable cause can be why suche a pledynge shulde be suffred agaynste the trouthe ¶ Student The cause why that maner of pleading is suffred is this If the tenaūt by his pleadyng cōfessed an immediate entrye vpō the plaītyfe or an immediate putting out of the playntyfe / whiche in frenche is called an oustre / thā if the title were after founde for the playntyfe the tenaūt by his confession were attayned of the disseason And bycause it maye be that though the playntyfe haue good title to the lande that yet the tenaūt is no disseasour Therfore the tenaūtes vse many tymes to pleade in suche maner as thou hast sayd before to saue them selfe fro cōfessing of an oustre / so if there be any defaut it is nat in the courte ne in the lawe / for they know nat the trouth therin tyll it be tried me thynketh also that there is in this case right litle defaut or none in the tenāt nor in his coūsell / specially if the coūcell know that the tenant is no dissesour But as to that poynt I praye the that lyke as thou haste takē a respite to be aduysed or that thou shewe thy ful mynde in the questiō of a colour gyuē in assise whereof menciō is made in the sayde .liii. chapitre / that I in lykewyse maye haue a lyke respyte in this case tyll other tyme to be aduised / than I shall with good wyll shewe the my full mynde therin ¶ Doctour I am content it be as thou sayest but I pray the that I may yet adde a nother question to the two questiōs before rehersed of the colours in assise fele thy mynde therein / bycause that sowneth moche to the same effecte that the other do that is to saye to proue that there be diuers thynges suffred in the law to be pleaded that be agaynst the trouthe / I pray the let me hereafter knowe thy mynde in all thre questiōs / thou shal thā with a good wyll knowe myne ¶ Student I praye the shewe me the case that thou spekest of ¶ Doctoure If a mā stele an horse secretely in the nighte It is vsed that there vpon he shal be Indyted at the kynges suyte / it is vsed that in that Indytement it shal be supposed that he suche a daye place with force armes / that is to saye / with staues / swordes / knyues c̄ felonouslye stele the horse agaynst the kinges peace / that fourme muste be kepte in euery Indytement / though the fellon had neyther sworde nor other weapō with hī but that he came secretely without weapō Howe can it therfore be excused but that therein is an vntrouthe ¶ Student It is nat alleged in the Indytement by matter in dede that he had suche weapon / for the fourme of an Indytement is this Inquiratur pro domino Rege si A. tali die Anno apud talem locum vi armis videlicet gladus c̄ talem equam talis hominis felonice cepit c̄ And than the twelue mē be onely charged with the effect of the byl That is to saye / whether he be gylty of the felonye or nat / nat whether he be gyltye vnder suche maner and fourme as the bylle specifieth or nat / and so whan they saye billavera they saye trewe as they take the effecte of the bylle to be And therefore if there were false latine in the byll of Indictement the Iury sayth billa vera yet theyr verdit is trewe / for theyr verdite stretcheth nat to the trouth or fals hede of the latine but to the felonye / ne to the fourme of the wordes but to the effect of the mater / that is to enquyre whether there were any suche felonye done by that person or nat / though the byll vary from the day / fro the yere / also from the place where the felony was done in / so it vary nat fro the Shyre that the felony was done in And the Iury saythe billa vera they haue gyuē a trew verdite / for they are boūde by theyr othe to gyue theyr verdite accordinge to the effecte of the byll nat accordinge to the fourme of the byll And so is he that maketh auow boūde likewyse to that that by the law is the effecte of his auowe / nat onely to the wordes of his auow As if a man auowneuer to eat whyte meate / yet in tyme of extreme necessitie he may eate whyte meat rather thā dye nat breke his auow thoughe he affermed it with an othe / for by the effecte of his aduowe extreme necessitye was excepted though it were nat expressely excepted in the wordes of the auowe / and so lykewyse though the wordes of the byl be to enquire whether suche a mā suche a daye yere in suche a place dyd suche a felony / yet the effecte
that do assoyle hym / but yet neuertheles he is assoyled / and if he be nat able to make amendes that he muste yet be assoyled / takynge a sufficiente gage to satysfie yf he be able here after / or elles that he make an othe to satisfie if he be able And these sayenges in many thynges holde nat in the lawes of Englande ¶ Doctoure I pray the shewe me wherī the law of the realme varieth therfro ¶ Studēt 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 offēded the party in callynge hym to answere before thē 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 bē takē 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 amēdes shal be made in the kynges court / for the layeng of violent hādes vpō the clerke amendes shal be made in the courte cristiē And therfore if the iuge in the court cristiē 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 satisfacciō of / as for the nat inclosinge of the churche yarde / or for nat apparellīge 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 amēdes haue his absolucion / the iuge wyll nat make hym his letters of absolucion if the excommengemente be of recorde in the kynges courte thā the kynge may writte vnto the spirituall iuge cōmaundyng hym that he make the party his letters of absolucion vpon payn of a contempte / if the sayd excommunicaciō 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 hī 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 ī 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 hī his letters of absolucion / I suppose the same law to be where a mā is accursed for a thyng that he iuge had no power to accurse hī 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 acciō lieth nat for hī ¶ Student The iuge the partie may be ded / thā no premunire lieth / though they were alyue were cōdēpned in a Premunire / yet that shulde nat auoyd the e●cōmengement / 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 excōmengement had nat ben ☞ Whether a Prelate may refuse a legaci The .xxxiii. Chapitre STudēt It is moued in the sayd summe named Rosella in the title alienacio xx the .xi. article whether a p̄late 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 ¶ Studēt I thinke that euery p̄late suffereyn that may onely sue be suyd in his owne name as Abbates ▪ Priours suche other may refuse any legaci that is made to the house for the legacie is nat perfyte tyl he to whome it is made assent to take it for els if he mighte nat refuse it he might be compelled to haue lādes 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 remaīdre 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 mā dissease one to another mānes vse / he to whose vse the disseason is made hath nothyng in that lāde ne is no disseasoure tyll he agre And to suche disseasons gyftes an Abbot or Priour may disagre as well as any other mā 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 thē ne yet the mayster of a colage of suche a deuise or remayndre made to hī 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 holdē in