her executor shall haue the summe otherwise it had beene if the wordes of the deuise had bene to be paied at the daie of her mariage or at the age of 21. yeares and she dieth before t 36. H. 8. 59. Dy. and 16. Eliz. A man deuised laude to one so that he doe paie 10. li. and if not that it should remaine to his house prouided that the lands shall not be sold but shall goe to the next of bloud being male it was helde that this was an estate taile that these words shall goe to his house shal be construed to the eldest person of his familie and these wordes being male shall be construed in the future tense and in many cases an estate may be limited in a deuise by implication as if a man deuise lande to one and to his heires males in fee simple the remainder to the next heires males of the kinne there is an entailemeÌ„t both in the first estate and also in the remainder u 16. Eliz. 333. Dy. 2. Eli. 171. Dy. but where a deuise is contrarie to Law it is voide of effect for a man deuised land in London to the 3. That the Common law frustrateth these deuises which are repugnant to Lawe Prior Couent of S. Bartholmewes so that they pay to the Deane and Chapiter of Powles 10. li. yeerely and if they failed then their estate to cease and that the lande should remaine to the Deane and it was helde by Fitzh Baldwin Iustices that this was a void remainder because it could not be limited after an estate in fee and as of a condition the Deane Chapiter could not haue aduantage but the heire a 29. H. 8. 32. Dy. and so if a man deuise laÌ„d to one in fee that if he die without heire that then it shall remaine to an other in fee this is a voide remainder because one fee simple cannot depend vpon an other b 19. H. 8. 8. Nomom What if the testator doe deuise to his 16. Diuision wife certaine land whilest she should liue chastly and she marieth whether is her estate determined Canonolog I thinke it is not determined for 1. That by the Cannon lawe if land be deuised to a woman whilest she shall liue chastly mariage is not implicatiuely and absolutely prohibited though the words of the deuise do implie a coÌ„dition yet the condition is not broken because matrimonium est reshonesta and therefore not to be imagined to be within the intent of the condition c Authent de nupt in princ 28. quaest 1. ca. sic enim 33. q. 2. c. 2. l. 2. C. de indict viduit toll Nomoma Yet it seemeth that the condition faileth Quia coitus castitas opponuntur d D. authent de nup. §. quâ—a vero therefore it may seeme that she should lose the legacie as well by marying as by liuing incontinently Canonol But I thinke rather that she shal not lose the legacie because there was no condition expressed in the deuise that shee should not marrie and therefore she can not be said in marying to do against the will of her husband but yet it may seeme that if she had maried within a yeare after the death of the testator she had broke the condition e ff de iur patron l. adigere §. fi for doubtles otherwise Mulier secundò nubeus castitatem seruat f D. authen de nup. §. fin autem ideÌ„ Extra de diuor c. gaudeamus in fin l. mulier §. cum proponaretur ff ad Trebel 2. That the Ciuill law and Common law do fauour mariage Codicgn Our Lawe in such cases fauoureth matrimonie g ff de reg iur l. In ambiguis l. in testamentis eod and where there is no condition prohibitorie expressed the Law will not in such case intende it h In authent hoc locum C. de secund nupt Anglonomop In our Law we haue a case that King Edward the sixth graunted to his sister the Ladie Mary the mannor of D. as long as shee should continue vnmaried and this is admitted in our Law to be a good limitation but no condition as hath bene before surmised i 4. Mar. 1. 141. Dy. 37. H. 6. 29. 10. Assis pl. 8. 17. Assis pl. 7. 3. Assis pl. 9. 6. Nomom Let this be the case the husbaÌ„d deuiseth 17. Diuision to his wife the ê“fits of al his goods the question is whether the wife may take the profits by her sole authoritie or by the appointment of the iudge or by the administration of the executor 1. That there is a diuersitie in the Ciuill lawe where a man maketh his wife vsufructuariam of his goods and where he deuiseth them to her Codicgn In our law we take this difference where he maketh his wife by his will vsufructuariam of the goods and where he doth deuise vnto her his goods For where he maketh her vsufructuariam she may of her owne power take the profit and benefit of the goods and she needeth not to expect or attend the curtisie of the executor k L. si habitatio §. si vsus fuÌ„di l. fundi ff de vsu hab But if he deuise his goods or the profits of his goods or commaund and charge his heire or executor by his will that they allow sufficient maintenaunce to his wife out of his lands or goods now the woman is a deuisee and she must take that which is deuised by the haÌ„ds of the heire or executor or else sue for it by law l ff de vsufâ—uct legat l. patrimonij l. si quis Anglonomoph By our law the power and authoritie 2. That by the Common law the administration of the goods and chattels of the testator doth appertaine only to the executor of deliuering goods and chattels or putting the deuisee in possession belongeth onely to the executors who must see debts paide before legacies performed m 37. H. 6. 30. â— Prisot 2. H. 6 16. Perkins Testam 94. D. S. Dialog 2. 79. And therefore if a straunger take goods deuised to me out of the possession of the executors I cannot haue an action of trespasse for the taking For it is not like to a gift of goods which is presently executed and if a man deuise the â—ourth part of his goods to another the deuisee may not seise the fourth part but he must sue for it in the spiritual court n 27. H. 6. but if a man deuise a booke or some other thing to one for tearme of life the remainder to an other for euer if the executor deliuer the booke or the goods to the first deuisee the second deuisee may seise theÌ„ without liuerie of the executor for the possessioÌ„ of the first deuisee was the possessioÌ„ of theÌ„ both otherwise it is if the first deuisee hath the possessioÌ„ die
that the deuisee be capable at the time of the death of the testator so it is likewise by our law for though a man may not graunt nor giue lands to his wife during the couerture because they both are but one persoÌ„ in law yet by custome heretofore which the CoÌ„mon law did fauour and now by statute he might or may deuise his lands to his wife to haue in fee simple or otherwise because such deuise taketh not effect till the death of the deuisor p Littl. lib. 2. c. 10. Sect. 8. 27. Assis pl. 60. and then they are not one person q 24. H. 8. Br. Deuis 34. Nomom Now let me know what things may 3. Diuision be deuised Codicgn Whatsoeuer things the testator hath 1. That by the Ciuill law all such things may bee deuised as the testator hath in his owne right at the time of the deuise as in his owne right r ff de legat 2. l. vinum §. si reÌ„ tuam if he happen to deuise a thing which is not his owne but an other maÌ„s the executor is by our Lawe compelable to buy it and to giue it to the deuisee by vertue of the will or if the owner will not sell it hee ought to pay the very value and full estimation of it to the deuisee Å¿ ff de legat 3. l. dubium §. vlti and if lande bee bought by the deuisor for which he hath not payed any monie or not all the monie if he died and the deuisee will haue the land hee must pay the monie and so enioy the land t L. 39. §. IdeÌ„ Iulianus de legat 1. but if the deuisor haue solde lande and hath not receiued the monie and he deuiseth the lande so solde to I. S. the deuisee in this case shall not haue the lande solde but the monie that is to bee payed for it for an argument is rightly drawne ab augmento ad diminutionem u L. si ex toto eo tit so that this conclusion may bee made is the thing bought due to the deuisee then the deuisee ought to pay the monie is the thing not solde not due to the deuisee then hee must haue the monie that is to bee payed for it Anglonomoph In our Lawe the making of a testament 2. The three degrees of a testament by the Common law hath three partes Inception which is the writing of the testament Progression which is the publication of it Consummation which is the death of the partie and when after the deuise the deuisor purchaseth other lands it caÌ„not 3. A differeÌ„ oâ— in the CoÌ„mon law where a man deuiseth a thing wherof he is not seised particularly and by name and where not be intended by any possibilitie that hee would haue them to passe by the deuise for there is nothing conteined in the will which doth purport such intent but it was held in Brettes case that if a man deuise land in certaintie as the mannor of Dale or white acre and he hath no interest nor possession in them at the time of the making of the will and after the doth purchase it in such case it shall passe to the deuisee for then it shall be taken that his intent was to purchase it as it is said 39. Henr. 6. 13. and it was likewise sayd that the statutes of 32. and 34. Henr. 8. required that the deuisors should bee seised of the land deuised at the time of the deuise for the words be Euerie person hauing or which after this acte shall haue c. a 10. Eli. ComÌ„ Brets case per Louel touts les Iust Nomom I pray you let me know more particularly what things may be deuised Codicgn A thing may be deuised which is not 4 That things which are not in esse at the time of the deuise made may be deuised in rerum natura at the time of the deuise if afterwarde it may be as the corne which shall grow in such a soyle or the lambes which shall come of his flocke of sheepe in such a field b Instit de legat §. ea quoque res ff de legat 1. l. quod in rerum but if the testator doe deuise tenne quarter of corne comming of the corne which shall growe in such a soyle or two tunnes of wine of his grapes in such a vineyard or tenne lambes of such a flock though so much corne or wine or so many laÌ„bes doe not arise of the thinges abouesaid yet the heire or executor is compellable by law to make them good integraliter because he may seeme to haue mencioned the soile the vineyard and the flocke rather by way of demonstration then by way of condition c l. quid testamento in prin ff de leg 1. l. Paulo Callimacho §. Iullanus Seuerus ff de legat 3. l. Lucius ff de alim leg but if the testator doe deuise certaine goods or a certaine summe of money to I. S. and in his life time after recouerie of his health he giueth the goods or payeth the money to the said I. S. now without any alteration of the deuise in the will the executors shall bee discharged of perfourming the deuise after the death of the testator d l. Lucius Titius in testamento in prin ff de legat 2. gl in Clem. dudum de Sepultur Angonomoph It is said in our bookes that if a 5 That the deuise of tenaÌ„t for terme of life or tenant iâ— dower of corne growing at the time of their death is good man which hath estate for life or tenaunt in dower doe deuise their corne growing vpon the lande at the time of their death this is a good deuise and hee in the reuersion shall not haue the Corne e 4 H. 3. Deuis 26. But if a man seised of lande in fee as in right of his wâ—fe doe lease the same land for yeares to a straunger and the lessee soweth the lande and after the woman dyeth the corne being not ripe in this case the lessee may deuise the corne growing vppon the lande and yet this estate is determined and it was certaine but a thing non-certaine was the cause of the determination of it f 7. E. 3. 67. 7. E. 4. 17. Park 99. sect 513. 10. E. 3. 29. And if a man bee seysed of lande in the right of his wife and sowe it ad deuiseth the corne growing vpon the lande and dyeth before it bee seuered the deuisee shall haue it and not the wife but otherwise it is of hearbes or meadowe growing vpon the lande and not seuered at the time of the death of the deuisour g 7. Ass pl. 16. And if tenaunt in taile of lande lease the lande for life and the lessee soweth the lande with Corne and the tenaunt in tayle dyeth and the issue recouereth in a Formedon in discender before the
doct ' in l. quod â—eruus eod dict l. 1. §. est autem §. penult l. Lucius eod l. licâ—t in sin eod and in the one is the propertie in the other the trust Angonomoph To this our Law accordeth for 2 The nature and course of it at the common law if a man deliuer goods chattels to one to keepe and he will deliuer them he that deliuered them may haue a writ of Detinue against the other for these goods and chattels and so if a man deliuer goods or mony to an other in a bagge ensealed b Fitz. na br 138. A. or not ensealed c 18. H. 6. 20. or in a chest or coffer to deliuer to an other and hee to whom they are deliuered will not deliuer them ouer accordingly hee to whom they should bee deliuered may haue a writ of Detinue but if a man deliuer money to one being not in a bagge or coffer to redeliuer to him or to deliuer ouer to a straunger in such case neither he that deliuereth nor he to whom the money or goods are to bee deliuered shall haue a writte of Detinue for the money but a writte of Accompt because a writte of Detinue ought to be of a thing certaine as of money in a 3 A diuersitiâ— where a writ of Accompt of Detinue and of Trespas are to be brought concerning things deliuered at the coÌ„mon law bagge or of a horse or twentie kyne or such things in certaine d Fitz na br 138. A. 7. H. 4. 13. 13. E. 3. Detin 53. 6. E. 4. 11. 36. H. 6. 9. per WaÌ„gef Billing 5 Ma 152. Dy. 39. E. 3. 30. 46. E. 3. 16. if the bailie open the bagg in which money is deliuered the partie to whom the mony belongeth may haue a writ of Trespas or Detinue at his pleasure e 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him f 33. H. 6. 26. per Litt ' 20. H. 6. 17. So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a straunger and hee deliuereth it without mencioning the condition a writ of Detinue will lye against the first Bailie and no other remedy may be had g 9. H. 6. 37. per Curiam and where I deliuer goods and a straunger taketh them out of the possession of the Bailie I may haue a writ of Detinue against the straunger or against my Bailie h 20. E. 4. 11. for my Bailie is chargable into whose haÌ„ds soeuer the goods do come but if he deliuer them ouer to an other that baily is not chargeable to me but onely for the possession i 12. E. 4. 12. Nomomat Suppose that a man enfeoffeth me 2. Diuision of certaine landes with warrantie who reteigneth all the deeds and euidences concerning the landes in his owne possession whether may these deedes after liuery made to me of the lands be said to bee my depositum in his handes as a thing which I haue left in his hands and whether will a writ of Detinue lye for them at the common law Codicgn They cannot be said to be deposita in 1 That a thing cannot be said to be a depositum at the ciuil law except it be deliuered to the partie his hands because a thing cannot be said to be deposituÌ„ except it be deliuered to the partie k l. 1. ff de pos ibi Doct ' and if these writings which you speake of do belong to the feoffor as I thinke they doe then they cannot be said to be deposita for wee haue a rule in our law that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur and it is contra l quirem eod bonaÌ„ fidem that the owner should redeliuer his goods in which he hath a propertie to an other man m l. bona fides ff depos in sâ— Anglonomoph It is good to be considered to 2 That by the common law the feoffee of the land is to haue the charters when the feoffement is without warrantie otherwise it is when it is with warrantie whom these charters or deedes aboue mencioned doe belong The authority is very pregnant that if a man make a feoffement of his land to an other by deede the feoffee shall haue the charters concerning the land though the feoffor doe not expresly giue them to the feoffee n 18. E. 4. 14. 9. E. 4. 53. 39. E. 3. 22. 7. H. 4. 7. 34. H. 6. 1. And if a man make a lease for terme of yeares and after confirme the estate of the lessee in fee and he to whom the confirmation was made dyeth now his heire shall haue as well the deed of the lease for terme of yeares as well as the deed of confirmation because that deed maketh the confirmation good o 9. E. 4. 53. Fitz. nat br 138. K. and so where a gift is made to one for life the remainder to an other in taile if the donor release all his right to the tenant for life he in the remainder cannot haue a writte of Detinue for this release after the death of the tenaunt for terme of life p 9. H. 6. 54. But in the case which you haue proposed because the feoffement is with warrantie so that the feoffour is bounde to warrantie nowe the feoffee shall not haue the charters concerning the lande for so the feoffour might sayle of the maintenance of his warrantie and so if a man be enfeoffed with warrantie and after enfeoffeth an other with warrantie the heire of the feoffour may haue a writte of Detinue against a straunger in whose possession are any deedes or charters concerning the lande because he may haue aduauntage of this warrantie q Fitz. na br ibid ' L. but let the feoffement or gift bee made without warrantie it is cleare that the donee or feoffee may claime the charters concerning the inheritance de iure and therefore if a gift of lande be made to A. in taile the remainder to B. in fee and after A. dyeth without issue B. shall haue the deede r 3. H. 7. 15. so if laÌ„ds be giuen to two and the heires of one of them by deede now if the tenant for life die hee that hath the fee simple shall haue a writte of Detinue for the deede Å¿ Fitz. nat br 138. F. for the deede runneth with the land and is of the nature of the inheritance and therefore a repleuin lyeth not for such charters t 4. H. 7. 10. and it is saide by Newton 22. H. 6. that he in the remainder in taile shall not haue a writte of Detinue against the tenant for terme of life if he haue the deed specifying the remainder yet he cannot haue a Formed on in the remainder nor an action of Waste without shewing the deede u 22. H.
a lease of a house so that the lessee may make his profit of the houses within it the lessee cannot in this case take downe or demolishe the houses nor make wast in them for the intent was not so a 17. E. 3. 17. but if the King graunt to me visum franciplegij in omnibus terris meis feadis I cannot haue this in any landes and tenements which I shall afterwards purchase b 38. H. 6. 10. But 4 Howe the â— Queens grants and licences shal be construed and interpreted if the king graunt to a man that he and his heires shal be quit of taxe for their landes which they haue this is a good graunt though there be no taxe due at the time of the graunt c Ibid And so is the Law of Tenths and fifteenes d 19. H. 6. 62. 21. H. 6. 43. 21. E. 4. 45. and he to whom the King graunteth a licence may not vary from the proper sense the significancy of the words e 18. E. 2. Fines 124. And if the king before the dissolution of Monasteries had licenced an Abbot and his Couent to make a feoffement if the Abbot onely had made it the feoffement had beene voide f 21. H. 7. 8. And 3. Ed. 3. the King licenced one to leuie a fine of the mannour of Dale to the intent to maintayne two Chaplaines and hee woulde haue leuied the fine omitting the Chapleines but was not suffered g 3. E. 3. 5. and 30. Edward 3. the licence was to leuie a Fine of the Mannour of Dale and hee woulde haue leuied the Fine with a foreprise or exception of certaine acres parcell of the Mannour rendering rent but was not admitted to it because it coulde not stande with the licence which was that all the Manour should bee charged with the rent h 30. E. 3. 17. So if the Queene licence one to make a Feoffement by deede he cannot make it without deede i 21. H. 7. 8. per Frowike and this Lawe holdeth likewise in a common persons case for if hee that hath a warrant of Attourney to deliuer seisin absolutely doe deliuer-seisin vpon condition this is a disseisin to the feoffour k 12. Ass pâ— 24 And a graunt is not to bee fauoured contrarie to the euident perspicuous sense of the words 5 That a graunt is not to be fauoured contrary to the manifest sense of the words For if a man graunt to an other a loade of wood to take in his soyle euery yeare and the grauntee surceaseth the two first yeares and the third yeare hee taketh three loade hee is a wronge doer for two of them so if a man graunt to an other a common for three beastes yearely and hee taketh nothing the two first yeares he shal not haue common for three beastes the third yeare l 27. H. 6. 10. The aduowson of the Hospitall of Saint Katherins is appendant to the Mannour of B. the Hospitall being voide the Queene graunteth manerium ac omnes aduocationes cum pertinentijs the present presentment doth not passe m 13. Eliz 300. Dyer for it is fructus aduocationis and not the aduowson it selfe n 11. Elizab. 283. Dyer Codicgn The words of a graunt are to bee taken most strictly against the grauntor because nn Phil. Deci. in Comm. ad Regul iur he might haue expressed his meaning in more full large and manifest words Nomom Nowe resolue me whether a graunt 4. Diuision that is not good at the first may be made good by matter ex post facto Anglonomoph In no sorte for if there bee 1 That by the common law a graunt that is not good at the first may not be made good by matter ex post facto neither by the Câ—uil Law Lorde and three iointenauntes and the Lorde graunteth the seruices of one of them to a straunger this is a voyde graunt thoughe the same tenant doe attourne and suruiue his compaignions For no attournement can make an euill graunt to bee good o 5. E. 3. 34. and if a man lease lande to the husbande and wife duringe their liues and after graunteth the reuersion of the lande which the husbande holdeth for terme of life and then attournement is had the graunte is voide and the attournement also p 13. E. 3. Bro Iointen 63. And if a man be bound to a FemÌ„ sole and a straunger releaseth to the obligour and after maryeth the feme yet the release is not good q 15. E. 3. FeoffemÌ„t 63. So it is if in auncient time a Monke Fryer or Cannon professed which was no Soueraigne of an house had graunted to one an annuitie this was a void graunt though he had bin after dereigned or made Soueraigne of the same house or some other r 2. R. 3. 5. Codign As that which is lawfully done cannot be made void to all intents so that which is altogether void at the beginning cannot be strengthned by continuance of time rr Phili. Decr. Comment ad reg iur Nomom Let me aske you this question Anglonomoph 5. Diuision 1 Whether a tenant at wil may graunt ouer his estate whether may a tenant at will graunt ouer his estate or no especially if he in the reuersion doe after agree to it Anglonomoph I thinke not for it is not properly an estate because it wanteth certaintie Å¿ 27. H. 6. 3. but if my 2 That the estate of the tenant at will is in maner no estate tenant at will be outed by a straunger hee may reenter without my commandement for the entre of a stranger doth not determine my will t 11. E. 4. 3. and an other reason why he cannot grant his estate is because his estate dependeth as well vpon his owne will as the will of the lessor and if he lease ouer the land his will as to that intent is determined and by consequent his estate u 22. E. 4. 5. per Brian and his estate is such a non-estate in the eye of Law that he cannot haue ayd of his lessor w 12. E. 4. 5. and if the heire accept a rent reserued vpon a lease at will made by his father this cannot make the lease good because it was void before no more then his acceptance of a rent reserued vpon a lease for yeres which is determined by reentre can make that lease good x 14. H. 8. 11. Codicgn The estate of such a tenant is none at all in our law vnlesse he should set downe his will in certaine who demiseth y l. qui se patris C. vnde liberi Canonologus So it is likewise in our Law z C. de summa tri side cathol l. 1. Nomom I will not insiste any more vpon this matter but wil passe to the consideration of bargaines and sales The third Dialogue of Bargaines and Sales NOmomat I will
retractetur l. ea quae §. quaed ff de cōtrahen emp. but if it bee a secrete fault then a distinction must be vsed for eyther it was in beginning and growing at the time of the sale so that it may easily be cured and yet not easily perceiued then the seller is not any way to be charged or els the secrete fault was some festered and inueterate disease and in such case the seller is to be charged n L. mortis C. de per com rei vend but if the thing that is sold be liquide and gustable and the buyer doth taste of it or if it be measurable and hee doth measure it as corne or if it be ponderable and he doth wey it as mettall or if he marke a beast which hee hath bought and the beast be afterward chaunged in all these cases the dammage resteth vpon 4. That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault hee is bound by the warranty by the Ciuill law the buyer o L. 1. l. q◠si neque §. si ff de per com rei vend l. 2. C. eo but if the things aforesaid be not tasted measured weyed or marked but be sold at a venture as if a man sell all his wine or oyle in such a house and doth warrant it to be good and merchantable or if he warrant the beasts that he selleth to be sound the seller in such cases is punishable p l. si vna ff de per com rei vend but if he had not warrāted it then the lawe is otherwise q d. l. 1. §. 1. C. eo l. quod saepe §. in his ff eo Anglonomoph In these cases which you haue now put our Lawe as I take it differeth very little or nothing from yours for whereas you 5. That bargaines sales matters in writing and obligatory may be auoyded by alleaging that they were made or done per menasse or by duresse say that a bargaine or sale enforced by terror may be auoyded in our Lawe euen matters in writing obligatory may be for the same cause defeated and frustrated and if a man seised of an acre of lande doe giue it in taile by deed and maketh a letter of Attourney to deliuer seisin and al this is done by duresse of imprisonment and liuerie of seisin is made this is a disseisin to the donor and the deed of gift and liuerie may by Law be auoided r 41. E. 3. 9. 2. E. 4. 19. per Littl. Park tit Graunts Sect. 17. and if a man menasse me to kill me if I wil not grant to him an annuitie of xx s. for doubt of death I grant it vnto him this graunt is voidable ſ 11. R. 2. Duresse 13. But if a man grant an annuitie to an other by threatning him that he wil cary away his goods whereupō he granteth vnto him the annuitie this grāt is not voidable by reason of such menacing because he may haue an actiō to recouer the goods if they be takē away t 7. E. 4. 21. Park tit Grāts Sect. 18. but a threatning of battery is a good cause to auoid a deed u 4. E. 2. Duresse 9. and so is the threatning of imprisonment a good cause to auoid a bonde x 8. H. 6. 12. but otherwise it is of a threatning to burne my house a 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at an other place b 38. H. 6. 13. ◠Moyle 33. H. 6 24. 2. H. 5. 10. as to that which you haue spoken of fraud deceite in bargaines and sales the warranting of a thing to be good and sound which is nought corrupt I could put many cases agreing with your assertiōs diuersities 6. That by the Common law a warrantie made vpō the concluding of a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine concluded If a mā sell vnto one certaine cloth warrant it to be of such a length and it is not of that lēgth he which buieth the cloth may haue an actiō of disceit against him by vertue of the warrātie but if the warrantie be made at some other time after the bargain he may not haue a writ of disceite c Fitzh N. B. 98. K. if a ma sell to an other seeds warrant thē to be of a certaine coūtrie if they be not so a writ of disceit will lie otherwise it had bin if he had warrāted that they should haue growne or if he should warrant that the horse which he selleth should go 50. miles in a day and a writ of deceite lieth for selling corrupt victuale without warrātie but not for selling rottē sheepe though it be with warrātie the warrāting of a thing to 7. That the warranting of a thing which is euident to the sense is no cause to bring a writte of disceite by the Common law be black which is blew where the colours is euident to sense is no cause of bringing a writ of disceit but is merely void otherwise it is if the buyer be blind or the thing that is bought be absēt d 11. E. 4. 7. 13. H. 4. 1. if a man sell a horse which hath a disease in his body or if he sel certain quarters of corne which is ful of grauel a writ of disceite will lie without warrātie e 20. H. 6. 36. ◠Paston 11. H. 6. 22. if one sell to an other certaine tūnes of wine warrāt thē to be good they be corrupt the vendee may haue an actiō vpō the case against the vendor f Fitz. N. B. 94. the actiō wil lie without warrātie g 7. H. 4. 14. according to the opiniō of some but M. Fitz. saith that there ought to be a warrātie or els no actiō will lie for in such case his taste may be his iudge h Fitz. N. B. 94. C. but where it is with warrātie the writte must say that the defend at the time of the warrantie made knew that the wine which he sold was corrupted i 9. H. 6. 53. Nomom You haue spokē enough of this matter 5. Diuision now shew me whether by a bargain sale of of the profites of land the land it selfe do passe Anglono The grant or bargaine sale of the 1. That by the Common law the graunt or sale of the profits of land is the grant of the lād it self profits of the land is the grant of the lād it self k 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy. if a mā do lease to one an acre of lād for life reseruing to himselfe the herbage this reseruation is void for he hath reserued the same thing in substance l 38. H. 6.
religious man ought to doe fealtie tenaÌ„t ought to do such seruice yea though he be a religious man and professed vnder rule p ca. vnico tit de natura feudi Et tit qualiter vassall iur deb sideli domi Et in ca. vnico tit quib mod feud amittatur Et in quib causis feudum amitt tit quae â—uit pri causa benef amit Canonolog But such a religious man may not say Ego deuenio homo vester nor humiliate himself to execute the rite of homage q C. venieÌ„s C. ex diligenti de Simon grauem de excess praelat cap. fin de re Iud Anglonomo By our Law he may do homage but may not say to his Lord ego deuenio homo vester because he hath professed himself to be onely God his man but he may say I doe vnto you homage and to you shal be faithfull and loyall r Littlet lib. 2. c. 1. Sect. 2. Nonoma Shewe me I pray you some speciall 6. Diuision kinds of these seruices that I may know them morefully and more distinctly Codicgn Seruices are diuersified according 1. The diuerse kindes of seruices in the ciuill Law and their definitions to the qualities of the persons to whom they are to be done if it be to bee done to an Emperour it is to be tearmed an Imperiall seruice if to a King a regall seruice Å¿ Cap. 1. de feud march ducatâ— in ca. 1. quis dicat dux comes marchio if to Religious persons Ecclesiasticall if to Lay men secular t Tit. de his qui feud dar pos tit Episcop vel Abbat but when it is to bee done to a lesser estate then to an Emperour or King as to a Duke Marquesse or Earle then it is called feudum honoratum sometime land is giuen by inferior persons meaner men without expressing any seruice and theÌ„ the Law intendeth that fealty onely is to be done this is called FrancuÌ„ or LiberuÌ„ u Ca. 1. de no. form fidel sometime it is giuen with reseruation of speciall seruice that is feudum non nobile a Ca. fâ— de capilan qui cur vendid somtime it is giueÌ„ in perpetuuÌ„ sometime but for tearme of life and then it is called Perpetuum vel temporale b De feud march in prin de alien feud in fine de feud guard castald But though by the oath of fealtie the vassalle be bound to serue his Lord in warre yet this is limited to such case where the warre is not notoriously vniust or vnlawfull for if it be otherwise though hee doe him no seruice in warre yet he shall not forfeite his tenement c In cap Domino guerram in prin in tit hic sini lex deinde c. neither is he bound to do his seruice to his Lord if his Lorde bee excommunicate or bannished vntill he haue obteined absolution or a recalling from bannishment but d D. cap. Domino guerraÌ„ in sin in a iust warre the vassalle is bound to helpe his Lorde against euery other person who is not the Lorde of the vassalle yea euen against his father brother or sonne Anglonomoph Seruices in our Law are of diuerse 2. The diuerse kindes of seruices in the Common law and their definitions sorts some being more noble and some lesse noble of these which are more noble some belong to the king and some both to the king to subiects of these that belong to the king some be domestical only as Petite Sergeancie some bellicall onely as Knights seruice in Capite some both domesticall bellicall as grand sergeancie some of the more noble seruices belong vnto subiects as well as to the king as knights seruice and homage these which be lesse noble may be diuided into two braÌ„ches for either they are ingenuous or seruile the ingenuous are of two sorts either performable by particular men or a certaine people as fealtie rent seruice the like which make socage tenure or els performable by a certaine people onely as burgage the seruile or base seruice is villenage Of all these seruices saue such only as haue bin before described I will speake somewhat seuerally briefly and in order Petite Sergeancie is where a man holdeth his land of the King paying yerely vnto him a Bow or a speare or a dagger or a launce or a spurre of golde c. e Littlet lib. 2. ca. 9. sect ' 1. Knights seruice in Capite is where a man holdeth his landes or tenements of the king as of his crowne immediatly ab antiquo by doing some warlike seruice Graund sergeancie is where a man holdeth his lands or tenements of the king as of his Crowne immediatly by doing some speciall seruice to the King in person as by carying his banner or launce or by being his marshall or sewer or caruer or butler c. f Litt ' li. 2. ca. 8. sect ' 1. 23. H. 3. Gard 148 of homage and fealtie hath beene spoken before Rent seruice is where the tenant holdeth his lande of his Lorde by a certaine rent for which if it be behinde at the day wherein it ought to be paied the Lord may distreigne for it of common right Burgage is where the tenants of an auncient borough doe holde landes within the Borough of the King or some other person as of his borough by a certaine rent g Litt ' lib. 2. c. 10. sect ' 1. 2. Villenage is where a man holdeth of his Lorde either by doing vnto him some partiticuler base seruice and such a one is called a tenant by villenage or by doing generally whatsoeuer base seruice his Lorde will commaund and impose vpon him such a tenant he is tearmed in our Law a villaine h Litt. lib. 2. c 11. sect ' 1. 2 This miserable estate of villenage had his beginning soone after the diluge and now by the consent of all nations it is ratified for the West Indians though they haue 3 The original of villenage and the nature thereof no knowledge of diuine or humane Lawes yet bondmen they haue and the Mahometistes make Christians their bondeslaues the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market i Bodin lib. 1. de repub c. 5. The Romains had power by their law to sel or kil their villains k Tacit. li. 14. but for mittigation of cruelty the Law Petronia was made whereby it was forbidden that none should put his villaine to death without cause which law was executed by Nero l Senec. lib. 3. de benefic after by Adrianus m Sparcian in Adrian but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine and from the mayming of him n Litâ— ' lib. 2. c. 11. sect ' 32. hauing regard to
helde by before of the Manor for the Queenes acte may not preiudice her tenant f 29. H. 8. Br. Ca. 113. but where a man holdeth of the Q. by reason of an other thing as namely by reason of a Manour this is no tenure in Capite g 3. Eliz. Com̄ 241. Wilgous case but if the King be seised of a Manour and giueth to a straunger an acre of the Manour to haue and to hold to him and to his heires of his body engendred without expressing any seruice the donee shall hold of the king by knights seruice in Capite h Ibid 240. per Car. and tenures likewise may be to hold of one as of his person or of his Manor by diuerse other seruices as if a man had made a feoffement of land before the statute or a gift in taile sithence the statute to holde of him by the making of a bridge ouer certaine land or by making a beacon in the lande giuen this is a good tenure for a man may holde of an other by doing seruice for a common good as well as for the priuate profit of the Lord as to repaire a bridge or a high way or by keeping such a Castle for the Lorde himselfe in this hath profit with others i 11. H. 7. 12. 12. H. 7. 18. p Finch 24. H. 8. Br. Cas 51. Nomom You haue taken some paines Anglonomoph 7. Diuision 1 Whether one within age be compellable by law to do all maner of seruice either by himselfe or some other in discribing the particuler kindes of tenures now I would here somewhat of Codicgn whether one within age be excused from personal seruice because his age is not fit to serue so that the seruiceage is suspēded vntil the maturity of his age or whether he shal be compelled to do his seruice by a substitute Codicgn To dissolue that question a difference is to be taken for either the Father of the heire which is within age died in the warlike seruice 2 A diuersitie in the Ciuill law whether the father of such an infant dyed in a iust warre or at home in his bedde vndertaken for the defence of his Lorde in a iust warre I meane that which is waged for the safetie of the common weale or els he dyed in his house by humane infirmitie without any bearing of armes in the first case he is not bound to doe any seruice either in his owne person or by any other person interposed during his minoritie because his father who died in the field is supposed in Lawe still to serue by the glorie of his valor k Instit de Excus tutor §. sed si in bello ff ad leg Aqu. l. qua actione §. si quis in colluctatione which the best and most learned of all Poets did well imagine who when he had placed Caesar in the middest of extreme troubles to comforte and encourage him representeth vnto him the ghost of Scaeua one that dyed a good while before but yet after many assaults and many woūds stoode out as a Conqueror l Lucan li. 10. which conceite of Lucan Tasso a moderne Italian writer a man of an excellent poeticall witte in the discriptyon of Guidoes funerall doth passionatelye though Popishely glaunce at m S. Torquat Tasso Canto 4. Gierusal liberat but if the father died not in warre nor in the expedition but by naturall death in his owne house then if the heire at the death of his Father bee in his pupillage he must perfourme that seruice by a substitute Anglonomoph But by our Lawe he shall be in 3 That by the common law the infant shal be in warde if his father died seised of land helde by knights seruice without any such diuersitie warde to the Lorde during his minoritie if hee holde his landes by Knightes seruice and the Lorde shall haue the profits of his lande that he may maintaine a sufficient man to doe him seruice in the warre whereas the heire by reason of his tender age cannot personally performe the seruice nor by the want of discretion prouide a conuenient person to accomplishe it n Litt ' lib. 2. c. c 4. sect ' 3. but if he be made a Knight within age then because the Lawe intendeth that he is fit to doe his seruice because knighthoode is bestowed in regarde of precedent merite or of some eminent prowesse and towardnes as may appeare by that saying of Scipio in the Senate ab annis septemdecim ad senectutem semper vos aetatem meam honoribus vestris anteistis ego vestros honores rebus gerendis precessi o Liuius li. 38. the Law is otherwise But 2. Ed. 6. in the case of Sir Anthony Browne of Surrey vicount Mountegue a difference was taken where the tenant by 4 A diuersitie in the commō law where the heire of the tenāt by knights seruice is within age and a knight at the time of his fathers death where not Knights seruice dieth seised his heire being within age and a Knight at the time of his death and when after his death he is made Knight during his minoritie for in the former case it was helde that he should be in warde notwithstanding his knighthoode p 2. E. 6. Br. Gard 42. 72. For otherwise the auncestor may procure his sonne within age to be made knight by collusion to the intent to defraude the Lord of his warde but this seemeth to be but a weake reason because knighthood is not by intendement of the law graunted vpon so sleight a cause but it seemeth to Master Brooke where the heire is in ward and is made knight being in warde this shall free him from wardship for the statute of Magna Chartaca 3. Postquam heres fuerit in custodia cum ad aetatem peruenerit scil 21. annorum habeat heredit atem suam sine releuio sine fine ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra sua remaneat in custodia dominorum vsque ad terminum supradictum this saieth q Br. ibid. Master Brooke verie probaly guyding his opinion by the premisses is onely to be intended where the heire is made Knight within age being in warde after the death of his auncestour and not where he is made knight in the life of the auncestour but admitte this to be meant of such an heire onely yet by no consequence can a man inferre hereof that if an heire within age bee made knight in his fathers life time he shal be in warde after the death of his father nay there is good authoritie for the contrarie r 6. Elizab. Comm̄ 268. Nomomat Let mee knowe I pray you what 8. Diuision penalties lye vpon the tenant if hee doe not his seruice Codicgn By our Lawe the vassalle is depriued 1 What penalties lye vpnon the tenant if he do not his seruice of his
E. 3. 35. and 2. That by the Common law a writ of accompt will lie if one iointenant take all the profites for cutting of wood which is held pro indiuiso the selling of it a writte of accompt will lie for the one iointenant against the other e 47. E. 3. 22. and the plaintife need not shew in certaine in his writte of accompt by whose handes the resceit of the mony giuē for the profits was f 39. E. 3. 35. and if one of the iointenants doe cut wood and carie it away the other may take it and remooue it to his owne house g 2. E. 4. 24. p Danby but if one of the iointenants take monie for all the profites the writte of accompt shal not be brought against him as receiuor generally h 14. E. 3. Accompte 70. 19. E. 2. Briefe 339. but as receiuor to the common profite of them both i 30. E. 1. Accompt 127. and if two executors be the one assigneth auditors he that assigneth auditors shal not haue a writ of dette sole for the arrerages of accompt without his compaignion k 9. H. 6. 11. also there is an other case in our bookes that E. and I. did deliuer an hundred pounds to R. and T. and R. and T. did put a hundred pounds of their owne together with this monie to merchandise with the whole stocke for the common profite of them al according to the rate of euery one of thē in such case E. sole may not haue a writte of accompt against R. and T. l 10. E. 3. 489. 10. E. 4. 5. so if their be two iointenants of a Manor and the one of them vndertaketh to be baily for the other for his moity a writ of accōpt shal be maintenable against him m 21. E. 3. Accompt 66. if he haue any especialty to shewe proouing the assumpsit otherwise not n 17. E. 2. Accompt 122. yet in an accōpt brought against one as the baily of his Manor which the plaintife had in ferme the defendant said that himselfe was ioint farmor with the plaintif of the lease of A. this plea was allowed though the plaintife shewed forth a deed of demise made to him onely o 8. E. 2 Accompt 115. and if two Merchants occupie their goods and merchandise in common to their cōmon profite the one of them may haue a writ of accompt against his cōpanion p Fitzh Nat. Bre. 117. D. 10. H. 7. 16. or the writ may suppose that the defendant was receiuor of the plaintifes monie the defendants for all manner of contracts to their cōmon profit q 30. E. 1. Accompt 127. 39. E. 3. 35. 16. H. 7. 16. p Keb. but one executor shal not haue a writ of accompt against his coexecutor for the goods of the dead r 39. E. 3. 35. 6. H. 4. 3. 13. E. 3. Execut. 91. Nomomath Whether is iointenancie though 2. Diuision it be a iointenancie of the inheritance dissolued and determined by the death of one of the iointenants Codicgn Iointenancie is dissolued by naturall 1. That iointenancie is dissolued by death vnlesse there be some clause in the creation of the estate to the contrarie death vnlesse there be some clause in the demise of the land and in the creation of the estate to the contrarie ſ ff pro socio l. actione §. morte in fin Iusti eo §. soluitur Anglonomoph Indeede there be such clauses sometimes vsed in demises for wee haue such a case that a lease was made to two habendum ijs pro termino vitae successiue vni eorū post alterū sicut nominantur in Indentura non coniunctim the question was in this case whether they were iointenants or no it was ruled without argumēt that they were not iointenants but that there is a remainder to him who is put in the secōd place in the Indenture t 20. Eliz. 361 Dy. And so where a lease was made to three by the premisses habendum to the one for life the remainder to the second the remainder to the third the opiniō of the court was that they should take successiuely not iointly u 5. Mari. 160. Dy. Codicgn And by a ciuill death iointenauncie may be determined w ff pro socio l. actione §. publicatio Iusti eod §. publicatio Likewise by the will and by the alienation of one of the iointenants x L. verum in sin l. societatem §. 1. ff eod l. tamdiu C. eod Anglonomo By our law the nature of iointenancy is such that he that suruiueth shall haue the whole tenancy according to such estate as he should haue had if the iointure had stil continued For if there be three iointenāts in fee simple and the one of thē hath issue dieth yet they that suruiue shall haue the whole tenementes to thēselues the issue shal haue nothing y Littl. lib. 3. c. 3. Sect. 5. and if lands be giuē to two the heirs of one of thē this is a good iointure the one hath freehold the other fee simple if he which hath the fee die he that hath the frehold shal haue the entierty by suruiuor for the terme of his life z Littl. lib. 3. c. 3. Sect. 13. and if two iointenāts be seised of an estate of fee simple and the one of thē grāteth by his deed a rent charge to another mā out of so much of the laud as belōgeth to him in this case during the life of the grauntor the rent charge is effectuall but after his decease the graunt is void as to charge the lande and he that holdeth by the suruiuor shall holde it discharged because he claimeth the land by suruiuer and not by discent from his companion a Littlet lib. 3. c. 5. Sect. 15. And so the law seemeth to haue beene when one iointenant did enter into religion least the freehold of a moitie might be in suspence as well as an assise of Mortdauncestor will lie and a warrantie collaterall may discende in the like case b Fitzh N. B. 166. a. 5. E. 4. 3 34. E. 3. Garrantie 71. Nomoma If a man grant all his goods to two what passeth by this 3. Diuision 1. That by the Ciuill lawe by the ioint gift of all the goods of a man all corporall things passe Codicgn By our law all corporall things passe both in demesne and possession and they are iointenants of them c ff eo l. 1. 2. but actions doe not passe but the grauntor if he will haue the grauntees to take any benefit by the graunt must make the grauntees or one of them his procurators to sue in his name and to recouer to their owne vse d L. 3. in princip ff eo Anglonomoph By the name of goods in our law no inheritance passeth
liuerie onely transferreth the land otherwise it had beene if the word exchaunge had beene vsed in the deede and the estate which the parties are to haue in the land exchaunged ought to be equal 3. That the estates most be equall and Choke saith that both the things exchanged ought to be in esse at the time of the exchaunge and therefore an exchange of land for rent granted de nouo is not good but an exchaunge betwixt 4. That the things exchaūged must be in Esse a rent and a common which are in esse at the time of the exchaunge is good and so it is of land and rent c 9. E. 4. 21. p Brian Choke Nedham And according to his opinion an exchange of the right which the dissesee hath to the land wherof the disseisin is committed for an acre of land in which the disseisor hath right is no good exchaunge d 3. E. 4. 10. p Choke And where the worde exchaunge is mentioned though the conueyance be but an Indenture of couenants yet it shall amount to a good exchaunge for an Indenture of couenants was made betwixt a Prior and the Maister of Gunnell hall in Cambridge that the Maister should haue three acres of land to him and to his successors in perpetuall exchaunge for one chamber of two chambers to be assigned by the said Maister at his election to the said Prior and his successors this hath beene held to be a good exchaunge though it be by way of couenant e 9. E. 4. 38. And though it be auouched for lawe that if by a deed of composition it be agreed betwixt two that the one shall haue such landes in allowance of other lands belonging to him that this is a good exchaunge f 3. E. 3. 19. yet I doubt whether an exchange may be accōplished by such counteruaileable words but a man may 5. That an exchaunge is good though the one parte of it doe mure by way of extinguishment giue land in exchāge for a release which cannot mure but only by way of extinguishmēt though there be some authoritie against it g 7. E. 3. 37. therefore Nortons opiniō is iustly denied by Thorpe wheras he held that in euery exchaūge there must be a mutuall transmutation of the possession h 16. E. 3. Exchaunge 2. for if a man release to an other his estouer of wood which he is to take yeerely in his wood in exchaunge for land giuen to him in exchaunge for the same release this is a good exchange though the release take effect by way of extinguishmēt but it is as great a profite and aduauntage to the tenant to be discharged of the estouers as if so much had bene graunted vnto him out of an other mans wood i Park tit Exchaun 53. 31. E. 1. Exchange 16. and the Law well perceiueth the profite which a man may haue by way of extinguishment for if the father being tenant in taile doe alien the land entailed with warrantie and hath a rent charge in fee issuing out of the lande of his Sonne which doth discend vnto the sonne this is a good assets in value notwithstanding the extinguishment k 31. E. 3. Garrantie 29. Nomomath Whether may Ecclesiasticall benefices 2. Diuision promotions and liuings bee exchaunged or no. Canonolog The incumbents may not by their 1. That incūbents may not exchaunge their benefices by the Canon law sole authoritie chaunge their benefices but they may exchaunge them Interueniente authoritate Episcoporum ad quos pertinet collatio but there is a question in the glosse whether the Chapiter 2. That the Chapiter may warrant permutations sede vacāte in such benefices wherein they haue interest or authoritie may authorise such permutations sede vacante l C. quaesitū de rer permut glos in Clem vnica E. tit and it resolueth briefly that in such things wherein they haue a common collation either by reason of authoritie or by reason of interest and consent it may authorise exchanges sede vacante but in other cases not m Glos in d. Clem. vnic super verbo Conferantur Anglonomophylax The reason in our Lawe 3. That by the Common law Ecclesiasticall persons their patrons and ordinaries ioyning together can not make any good exchange of Ecclesiasticall benefices wherefore such ecclesiasticall persons nor their patrons and ordinaries though they all agree can not exchaunge the inheritances of spirituall liuings is because the statute strictly prouideth that no alienation be made in mortmaine for a thing which was amortised before may be again amortised and therefore if a religious person do appropriate a Church which is of his owne presentation without the kings licence it is forfeited though it were amortised before n 19. E. 3. Mortmain 8. and in such case where one Abbot did alien to an other the collusion was to bee enquired of as well as in the alienation of land made by a secular man to a religious corporation o 16. Assis pl. 1. for the wordes of the Statute of Mortmaine bee very 4. That the statute of Mortmain is most strict and pregnant in wordes strong and large against such purchasors which are thus Prouisum est quòd nullus religiosus emere vel sub colore donationis aut termini aut alterius tituli cuiuscunque ab aliquo recipere aut arte vel ingenio sibi appropriare praesumat per quod terrae tenementa huiusmodi ad manum mortuam quocunque modo deueniant p Statut. de religios 7. E. 1. Mortmain 3. and therefore the case was that a femme sole purchased lande in fee and tooke to husbād the villaine of a Bishop which he had in right of his Bishoprike and the Bishop entred and this was adiudged a mortmain for according to Wickinghams opiniō the words of the Statute of Mortmaine are quocunque modo otherwise it shall be if the tenant of the Bishop do die without heire q 41. E. 3. 21. but 19. Henr. 6. the contrarie is held to be Lawe but if the villaine himselfe purchase lande it is helde there that in such case a Bishop or an Abbot can not enter r 19. H. 6. 56. but Thorpes opinion is 41. E. 3. that though hee may not enter in the case aforesaid yet hee may reteigne the land against the villaine and the king may afterward ratifie his estate which is no more in plaine tearmes then that an estate so gained is voidable onely and not voide and as to the exchaunge of benefices betwixt parson and parson it is seuerely punished by edict of Parliament in our realme ſ 31. Eliz. Nomomathes I will not stay longer vpon the inquirie of exchaunges for you haue opened vnto mee the nature of them and how farre they extende in these few cases now let vs passe to a larger examination of the doubts and pointes of deuises and legacies The
whether shall the deuisee haue the house Codicgn By our Lawe hee shall haue the 1 That if a man deuise a plott of grouÌ„d whereon a house is built the house also passeth house whether it were built before the Testament were made or after u l. seruum silij §. si are ae ff de l. si are ae ff de leg 2. and wee haue a rule in our Lawe Quidquid plantatur seritur vel inaedificatur omne solo cedit radices si tamen egit Anglonomoph It is so likewise in our Lawe 2 A house built vpon laÌ„d entailed after the gift shal be recouered in a Formedon for if a man giue lande in taile and the donee buildeth a house vpon it and dyeth without issue the donor if he be deforced from the land shall demaunde it in a Formedon per nomen mesuagij a 32. H. 8. 47. Dyer Nomomat Put case the Testatour deuiseth to 6. Diuision one a deede or instrument conteyninge a certaine debt whether doth he deuise the debt or noe b l. seruum silij § â—um qui chirographum de legat 1. Codicgn In that case the debt passeth h but 1 That by the ciuil law when an especialtie conteining a debt is deuised to one the debt it selfe passeth if tenne seuerall payments ought to bee made by the condition of a bonde as suppose tenne poundes is to be payd yerely by tenne seueral payments and fiue yeres be past and fiue payments made and the testator deuiseth the summe comprised in the condition to I. S. in this case the deuisee shal not recouer against the executor the whole summe conteigned in the condition but fiue pounds onely c d. l. seruum filij §. sed et si nomen Anglonomoph Master Perkins a man that writeth 2 Master Parkins his opinioÌ„ touching the deuising of an obligation is examined of diuerse Titles of our Law rather subtilly then soundely saieth that if twentie pounds be due to a man vpon an obligation or a contracte which ought to be payd at the feast of Easter and he euiseth it to a straunger this is a good deuise if the money bee afterward payd but if he had deuised the obligation or the counterpaine of the Indenture of couenants wherein the bond is conteined the deuisee shall not vse an action vpon the bonde in his owne name but he may giue or sell the obligation to the obligor or to a straunger d Perkins 101. sect ' 527. but howe bonds or things in action may passe directly from one to another by way of graunt or deuise I cannot yet perceiue by any authenticke opinion in our yere bookes for to say that the especialty or bonde conteyning the debt or duety doth passe vnto the deuisee though the debt doe not passe as namely the parchment ynke and waxe but not the summe conteigned is as if one shoulde imagine that a man roweth ouer Thames in body and yet remaineth at the Temple staires in soule for if the debt being the principall doe not passe I cannot vnderstand how the parchment or paper or the deede it selfe being the accessorie can passe for accessorium sequitur suum principale Nomom Resolue in this if a man deuise to an 7. Diuision other a horse a garment or the like and they perishe in the handes of the executour whether is the executor bounde by Law to make them good Codicgn In such case either the executor doth linger and delay the deliuery or giuing of the thing deuised to him to whom it was deuised and then I doubt not but he is bound to pay the 1 That by the Ciuil Law the executor is bound to make good the thing which perisheth through his default value of the thing which perisheth through his default or there is no default in him and then he is not to bee charged with the making of it good e l. cum heres §. si l. huiusmodi §. si cui homo ff de legat 1. and then the executor or heire may bee said to delay the administration of the legacye when he may speedily performe it and will not but if he be by the acte of a straunger hindered from executing the bequest as suppose he hath not the monie readie which is deuised or the deuise be that hee shall purchase an other mans lande with the money of the deuisor and assure 2 That in some cases the time of performing legacies is left to the discretion of the Iudges it to I. S. if he cannot easilie compasse this purchase doing his best endeuour the rigor of lawe is to be tempered in this case by discretion and respite must bee giuen by the arbitrage of the Iudge f l. si domus §. in pecunia ff de legat 1. Anglonomoph In our Law we haue many cases wherein they that are charged with the deliuery of a thing vpon some trust and confidence 3 That by the common law the executors are bound to performe the deuise in conuenient time reposed in them and the thing that should be deliuered perisheth through their default they are enforced by lawe to make full amendes for if a man be seised of lande deuisable in fee and deuiseth by his Testament that his executors shall sell his land and shall distribute the profits comming thereof to the vse of the poore and the deuisor dyeth if a straunger tender vnto them monie for the lande but not so much as the lande is worthe in their opinion and they to the intent they may sell it more deere differre the sale for two yeres space and take the profit themselues nowe the heire for their longe delaying may enter 4 A diuersitie betwixt an obligee and a deuisee and put them out of the land g 38. Ass pl. 3. 39. Ass pl. 3. but if a man be bound in xx li. to pay x. li. at the feast of Saint Michael the obligee refuseth the money when it is tendered in pollardes which afterward are embased the obligor shall beare the losse of the embasement because he must pleade vncore prist h 7. E. 6. 83. Dyer and yet the refusal was the default of the obligee Nomom Put case that a man deuiseth to one a 8. Diuision beadsteede whether shall the deuisee by force of this deuise haue the curtaines of the bed Codicgn The accessorie goeth alwaies with the 1 That things which are accâ—ssory doe passe with their principal principal and the curtaines therefore in this case shall passe with the bedsteade i l. liberorum §. sin ibi glo de legat ' 3. so if a man deuise to one his land or his house the arrerages due by the farmor or inhabitant from the death of the Testator are payable to the deuisee but not the arrerages before k l. praedijs §. 1. ff de legat 3. l. Nomen §. filio ex parte de
and with her the apparell i 11. H. 4. 31. Br. Trespas 93. and as the father may haue this remedie for his sonne heire apparant so may the mother likewise if shee be an inheritrix k 30. E. 3 Brief 300. so that I meruaile at M. Catesbies opinion 9. E. 4. that this writte lieth not for the wife l 9. E. 4. 53. Nomomath I will require no more at your hands Anglonomoph of this matter now I pray you Codicgnostes resolue me in this whether wheÌ„ any mans beasts do any hurt vnto an other maÌ„ if this be not done by the owners acte default or procurement shall the maister make good the dammage susteined by such wrong Codicgn Surely brute beastes because they 1. How the owner shal be punished by the Ciuill law for a trespasse done by his beasts want vnderstanding and reason cannot be said properly to bind their owner noxaliter so that the fault should be accompted his for any rauin hurt or dammage whatsoeuer neither do such wrongs bind the owner of the beasts ex quasi delicto for a matter like vnto a wrong yet notwithstanding for preuenting of hurt that may in such sort happeÌ„ the law doth prouide that if the owner wil not voluntarily yeeld vp the beast as a recompence to him that is endaÌ„maged he must reÌ„der the daÌ„mages or els by the authoritie of the iudge be awarded compelled to yeeld vp the beast m L. 1. ff si quadrup paup fec dic and therfore if any man do keepe or nourish a Mastife or Boare or Foxe or Beare or Lion or Wolfe or some like beast which doth hurt or damnifie an other maÌ„ he that receiueth the hurt shall recouer daÌ„mages against the owner of the beast n §. Caeterùm Instit si quadru pauperieÌ„ fecisse dicatur but if such a beast do escape away froÌ„ me 2. In what case he shall not be punished though his beasts do hurt to an other man or goeth so farre from my pasture or warde that I cannot by pursuing recouer it neither doe I know whether it is fledde and so being escaped from me it doe hurt an other man in this case I am not to susteyne any dammage because in this case I am free from fault for the beast by such escape ceaseth to be mine and may become his that shall take or seise or kill it o d. l. 1. §. in bestijs §. Caeterù◠versic Denique si vrsus Anglonomoph To this our Lawe agreeth for we haue a writ of Trespasse which saith Quare vi armis centum oues ipsius A. cum quibusdam canibus fugauit canes illos ad mordendum oues praedictas intantùm incitando quòd per fugationem illam morsus canum praedictorum oues praedictae multiplititer deterioratae fuerunt magna pars ouium illarum faetus abortiuos fecit c. per quod 3. That by the Common law a man shal be punished for a trespasse done by his beasts c. p Fitzh N. B. 89. L. But if a Dogge doe kill or hurte any mans beastes the Maister being ignorant of his mischieuous property he is not punishable q 28. H. 8. 25. Dy. 29. Dy. wherby I gather that if hee know of his propertie though he do not set on his dogge or mainteine him to doe hurt to others hee shall be punished by action of trespasse and if a man doe driue his beastes thorough the Queenes highe way to which way my land that is sowne with corne is adioining and the beasts doe enter spoile my corne the owner shall bee punished for this though hee did driue them out presently or earnestly endeuour to chase them out of the corne r 10. E. 4. 7. so if a man chase his beastes in the highe way and they doe escape into land which is not inclosed ond the owner doth freshly pursue them and chaseth them out yet this is no good plea in barre without shewing that the tenant of the lande and all those whose estate hee hath in the lande haue vsed to inclose the said land toward the high way Å¿ 15. H. 7. 17. Nomomath I craue no more of this matter now I would haue you to transferre your inuentioÌ„ to the discourse of other offences against the peace which I doe thus dispose and distribute to your handling because all offences against the peace are either in an inferior degree as these whereof ye haue lastly spoken or in a middle degree as vnlawfull assemblies riots routes and forcible entres or in a higher degree and they be of three sortes namely such as be committed against the dignitie of man as treason and rebellion or against the life of man as murder manslaughter and homicide by chaunce or against the good estate of man as thefte burglarie and robberie I would therefore haue you first to begin to treate of vnlawfull assemblies riots c. and then to goe on with the rest accordinglie as I haue set them downe Codignostes Canonologus Anglonomophylax we are willing to pleasure you in anie thing that we can and as you propose doubtes of euerie of these titles seuerallie we will endeuour to satisfie and resolue you to our power The twelfth Dialogue of vnlawfull assemblies riots routes and forcible entries NOmomath Tell me Codicgnostes what 1. Diuision doe you take to be publique force in your Lawe Codignostes When an vnlawfull assembly is mette together in the highe streete 1. The description of publike force by the Ciuill law or in the open sight of men to offer abuse hurte or iniurie to a mans person or to take away his goods from him by violence and strength of hand a L. armatos ff ad L Iul de vi pub Anglonomophylax That likewise is publique 2. That in the matter of publike force the Common law agreeth with the ciuill force by our law of priuate force done to a maÌ„s person wee haue spoken before which if it be publickly done it turneth to be publicke force but as to the taking away of goods by open force if a man doe disseisie an other and when hee hath entred hee doth carie away the chattels of the disseisie this is in our Lawe a disseisin 3. A differeÌ„ce by the Common lawe betwixt publike force and opâ—n force with force and armes and the disseisor shall be punished by imprisonment b 11. H. 4. 16. Westminst 1. c. 37. 4. H. 4. c. 8. and a man disselsed an other but not with force at his first entre and it was found by assise that incontinent after his first entre he cut downe trees and this was awarded a disseisin with force and armes c 30. Assis 50. Assis 301. Nomomath What punishment haue they by your lawes which commit such force Codicgn The punishment of this fault in our 4. The punishment of publike force by the Ciuil law law is
de singulis q Stamf. lib. 1. c. 26. Nomomat Well I pray you proceede in your purpose Anglonomoph As to that which is vttered of 10 How treason is committed by coining of money according to the censure of the common law Codicgnostes touching the vnlawfull coyninge of money it is for the most parte consonant to the Common Lawe of this Realme as nowe it is and as it was in auncient times by the testimonies of Bracton r Bract li. 2. tiâ— de crim laes mai Britton Å¿ Britt fol. 16. and Glanuille t Glan lib. 14. and the aforesayd Statute of 25. Edward the 3. maketh it treason for a common person to coine the kings money without his warrant and authentike which the statut calleth Counterfaiting wheras the statute saith the kings mony it must be intended the coine of this Realme or the dominions of it u Sramf 1. lib. 1. ca. 1. and this worde counterfeit doth import that if a man doe counterfait the Kings money though he doe not vtter it this is treason w 6. H. 7. 13. 1. R. 3. 1. and the forging and counterfaiting of coyne of another Realme is made treason awel as the couÌ„terfaiting of the coyne of this Realme a 4. H. 7. c. 18. 1. 2. Phi Ma ca. 11. But then it must be currant by proclamation in this Realme b 1. Mâ—r c. 6. Cromp I P 40. and as to the clipping of money heare the statute of 5. of our Soueraigne Ladie the Queene Be it enacted c. that after the first day of May next coÌ„ming clipping washing rounding or filing for wicked lucre or gaine sake of any the proper money or coyne of this Realme or the dominions thereof or of any other Realme allowed or suffered to be currant within this realme or the dominions thereof c. shal be taken and adiudged to be treason by vertue of this act c. c 5. Eliz. c. 11. Nomomat I pray you now declare the forfaitures and punishments of these seueral treasons Anglonomo The iudgment of him that is conuicted 11 The seueral punishmeÌ„ts of treasons by the common law of high treason is to bee caryed backe to the place whence he came and from thence to be drawne vpon a hurdle vnto the place of execution there to be hanged by the necke and to be cut downe quicke and his entrailes and priuy members to be sundred from his body and to be burnt within his view and his head to bee cut off and his body to be diuided into 4. parts and to be disposed at the Queenes will d Stamf. lib. 3. ca. 19. This is the Iudgement and sentence of condempnation of a man but of a woman it is otherwise namely that she shall be drawne on a hurdle and burnt e Stamf. ibid 23. lib. Ass pl. 2. ComÌ„ 31 6 and the offendour shall forfait his goods and landes to the King of whosoeuer the landes are holden f 25. E. 3. c. 2. Stamf. ibid 1. H. 6. 5. Stamf. li. 2. c. 37. c. 40. lib. 3. ca. 20. 4. H. 7. 11. per Towns but hee which hath estate in landes for terme of life or for yeares shall forfaite his estate onely g Stamf. lib. 3. c. 26. and by the statute of 26. H. 8. ca 13. and 5. and 6. Ed. 6. ca. 11. tenant in taile shall forfait his lande if he offende in high treason but no man shall forfaite lands which he hath in the right of an other as in the right of his wife or in the right of a Church h 5. 6. E. 6. ca. 11. Stamf. lib. 3. c. 26. and with the lande which a man forfaiteth he shall forfaite his â—uidences which concerne the lande i 49. H. 6. 15. and if a man leuie warre against the King and is slaine in it yet his lande shall be forfaited k 7. H. 4. 27. P Mark 34. E. 3. c. 12. 39. H 6. c. 1. Stamf. lib. 3. 29. and in such case the wife of such offendour shall loose her dower and his bloud or linage shall bee corrupt l Stamf. lib. 3. c. 19. But such as clippe washe round or file money are onely to forfait their lands during their life m 5. Eliz. c. 11. but such offence causeth not corruption of bloude nor the losse of Dower Nomomat Now time and order doth require that ye should speake of Homicide The fourtenth Dialogue of Homicide that is Murder Manslaughter Homicide by chaunce or misfortune NOmomat Because the apt diuision 1. Diuision of thinges giueth great light and ministreth exceeding helpe to the knowledge and vnderstanding of them I would therefore knowe Codicgnostes how many kindes of Homicide are set downe in your Law Codicgn Homicide in our Law is either the 1 The seueral kinds of Homicide by the ciuil Law and first murder is described wilful killing of a man of set purpose a l. 1. in princ in §. diuus ff ad l. Corn. de sicar l. 2. C. eod or els the killing of a man in the defence of his owne person as if I. N. should assault I. S. with a sworde he 2 Manslaughter se defendendo by the ciuil law may defend himselfe with a sworde and so auoid the iniurie if otherwise he cannot eschewe it but if I. S. may flie from him without daunger then the Lawe bindeth him to flie but if a man should so assault me that he should driue me to a very narrow pinch so that I cannot find a meane to escape with my life in this case it is lawful for me manfully to defende my selfe though it bee with killing him b Iodoc DaÌ„â—ouderius in reâ—uÌ„ criminal prax c. 78 79 and these sorts of manslaughter may be committed with clubbe c in d. §. Diuus l. 1. ff ad leg Corn de sicar stone sword or dart with arrowes launces pertisanes iauelins or with gunnes d Iusti de pub iudic §. IteÌ„ lex Cornelia or a man may be killed by poyson dd l. 3. §. 1. ff Ad Corn de sicar or by precipitation and being throwne headlong from the toppe of some house or some bridge or some hill or some tree e d. l. 1. ff ad leg Corn de sicar There is an other 3 The discription of selfe-slaughter by the ciuil law kind of Homicide which is tearmed homicidium sui ipsius wheÌ„ a man killeth himselfe such offendors are punished by our Law according to the quality of their minde whereby they were moued for if they kill themselues through griefe or impatience ee G. de Bonâ— eoruÌ„ qui mort sibi consc of some infirmitie no punishmeÌ„t followeth their fact but they are left to the tribunal 4 A diuersitie of killing a mans selfe by the ciuil Law of the almighty Iudge of the quick and the dead but if