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
free gifts which proceede merely of a mans good will and beneuolence others may be called Compensatorie because they are giuen for some cause or consideration Gifts or graunts of the first kinde are such as I nowe shall recite out of our bookes First the Queene may graunt 2 What is wrought by the Queenes graunt ex mero motu to one lande ex mero motu and though her highnesse doe rehearse some consideration in the patent of her graunt which is not true as if the consideration bee that whereas the grauntee hath done her Maiestie good seruice on the Sea or beyond the Sea or in her Maiesties warres or in some other busines though the consideration be meerley supposed and not true and therefore no good consideration in Law yet the words ex mero motu do make the grant good g 26. H. 8. 1. per Fitz. and whereas the Queene ex certa scientia mero motu doth confirme a graunt supposing that a graunt was made before where in truth there was no such thing it is held that her highnes shall be concluded to say that no such graunt was made otherwise it had bin if this worde informamur had 3 What is wrought by her Maiesties graunt by words of Informamur bin vsed in reciting the graunt h 9. H. 7. 2. For if her highnesse graunt any thing vpon the false suggestion of the partie this graunt is voide because shee is deceiued in her graunt i 11. E. 4. 1. per Littlet ' and wee haue a rule Si suggestio non sit vera literae patentes sunt vacuae k 3. H. 7. 6. For when the graunt is made vpon the suggestion of the partie the wordes of the graunt shal be taken strictely but when it is ex mero motu it must be construed and interpreted according to the Kings intent and as fauorably for the grauntee as reason will permitte l 21. E. 4. 25. Abbe de Walthams case per Browne Genney and if a common person do without consideration giue to I. S. his goods indefinitly al his goods do passe and if a common person doe by deede enrolled enfeofee the Queene of his lands without any consideration the Queene shal be seised to her owne vse as hauing such prerogatiue in her person that she shall not bee seised to the vse of any other m 28. H. 8. 7. Dyer Bokenhams case per Knightley Gifts made vpon consideration may be explained by cases likewise drawne out of our bookes though in a common persons case the consideration which is mencioned be false yet the vse shall be to the feoffees as appeareth by Wilkeses case who reciting by his deede falsely 4 Whether vpon a false consideration expressed an vse shal be raised in a common persons case that in consideration of 700. li. payed he had enfeoffed A. and B. to haue and to holde to them and to their heires to the proper vse and behoofe of the said A. and B. in perpetuum afterwarde by Office it was founde that Wilkes was seised of the lande and that he helde in Capite and I. was founde to bee his heire and of full age yet it was helde that the heire should not be receiued to auerre the consideration false against the acknowledgement of his auncestor n 1. Eliz. 169. Dy. Wilk case and so it hath beene helde in Villiers his case that where money is the consideration expressed an other consideratioÌ„ shal not be auerred neither shal a Causa 5 That a consideration may be auerred which is not repugnant to the vse expressed matrimonij prelocuti be auerred where an other consideration is expressed but where no consideration is expressed there a consideration may be auerred or where the consideration auerred is not repugnant to the consideration expressed in the deed o 4. Mar. 146. Dy Villier case And though the consideration be not valuable yet it may bee a good consideration to raise or to alter an vse for in Sharingtons case it hath bin adiudged that the affection of the father for the prouision for the heires males which he may beget and the affection which he hath that the lande may remaine in his bloud and name be 6 That an vse may be altered by a consideration not valuable causes sufficient to make vses in the lande for as it is there said Naturae vis maxima Natura bis maxima p 8. Eliz. 298. ComÌ„ Sheringtons case And so betwixt brethren pro fraterno amore is a good consideration to raise an vse q 13. Eliz. 302. Dyer and a man leuied a fine to the vse of himselfe and such wife or wifes as he should marry and after hee tooke to wife A. she shal take in iointure being by way of vse otherwise it had beene by estate executed r 10. Eliz. 274 Dy. per Wray Mead Plowden Ownslaw 3. Eliz. 100. Dame Brayes case Conono By our law a man cannot giue any thing to the common weale without consideration but to a priuate person he may rr l. hoc iure in princi ff de donat Gl. in d l. hoc iure et l. Campanus ff de oper libert Ganonal By the Cannon Lawe nudum pactum doth binde the partie especially being confirmed by an othe much more a bare donation rrr c. 1. de pact Nomom As to the point of consideration wee 3. Diuision shall better perceiue the strength and properties 1 In what cases graunts shal be taken most beneficially for the grauntee therof when we enter into discourse of bargains and sales now let me knowe in what cases and how farre forth graunts shal be taken most beneficially for the grauntee Anglonomoph When a graunt is non-certaine 2 That a grant non certaine must be taken most strongly against the grauntor it must be taken most strongly against the grauntor for if a man graunt an annuitie out of certaine lande and he hath no lande at the â—ime of the graunt yet the graunt shal charge his person Å¿ 9. H. 6. 12. p Babingt and if a deede of graunt be good in parcell and 3 That a graÌ„t may be good in part and for parcel not for parcel not that which is for the aduantage of the grauntee shal be taken to be good as if a man graunt vnto me an annuity prouiso that it shall not charge his person the prouiso is voide and the graunt is good t 20. E. 4. 8. p Towns 14. H. 4. 30. p Hank And if an annuitie be graunted pro consilio impendendo though the grauntee be well skilled in diuerse sciences or faculties yet counsel shal be giuen in that facultie only which was intended at the time of the graunt u 41. E. 3. 6. Annuitâ—e 19. But in some cases the graunt must be construed according to a reasonable and indifferent intendment as if a man make
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
absolutely prohibited by the ciuill law to make any contract infants are disabled with a certaine qualification 4. That by the common law priors vnder the obedience of a soueraigne and which were datife and remouerable could not implead or be impleaded without their soueraigne vnlesse it were by speciall custome 5. The same law was of the Knights of S. Iohn of Ierusalem 6. The infants contract for his meate apparrell and necessaries is good if he be of the age of fourteene yeeres 7. That which the infant doth without actuall liuerie may be auoided by action with out entrie or seisure but that which he doth by actuall liuerie cannot be auoided without entrie or seisure The 2. Diuision 1. Whether the cōtract of the seruant shal be accounted in law the cōtract of the master 2. That according to the cōmon law the master shall be bound by the contract of a knowne seruant if the thing marchandised be come to his vse and he shal be bound by the contract of his factor though the goods neuer come to his possession 3. The act of a mans attorney or his generall receiuer doth not bind the master without speciall warrant The 3. Diuision 1. Whether the wifes contract made in the behalfe of the husband will binde the husband 2. That by the common law an action of debt brought vpon a contract made by the wife for the behoofe of the husband must be brought onely against the husband without naming the wife 3. That by the ciuill lawe the husband is in no sort to be charged by the contract of his wife The 4. Diuision 1. How contractes may stand or fall by their materiall causes o◠the defect of them The 5. Diuision 1. Some contracts are ordered by the lawe of nations 2. An Embassador may according to the Ciuill lawe be impleaded by the lawe of nations for a contract made whilest hee is Embassadour The 6. Diuision 1. Whether contracts made with Pirates or robbers in the high way be good in law 2. That Pirates and robbers are not to haue aduantage of lawe in matters of contract 3. That D. Hotoman erreth greatly in maintaining that pirates and robbers may lawfully contract The 7. Diuision 1. That by the Common lawe a consideration is the proper materiall cause of a contract and that it may be expressed or implied 2. That a contract is not good without money paid in hand or a certaine day limited for the paiment The 8. Diuision 1. Whether the defect of forme doe destroie the contract 2. That solemnitie and concurrence of circumstances is required in contractes by the Ciuill lawe 3. That matrimoniall contractes if there be no assumpsit in them ar to be deuided by the ecclesiasticall law if there be an assumpsit by the Common lawe The diuisions and principall contents of the second Dialogue of giftes and graunts The first Diuision 1. WHat things may be giuen or granted 1. That all things that lie in commerce and may be receiued may be giuen 3. That things ecclesiasticall though they be not consecrate cannot regularly be granted 4. That if an Abbott did alien landes giuen in Frankalmoigne to his house the donor might haue a writ contra formam collationis The 2. Diuision 1. The diuerse kindes of giftes some being free and some compensatorie 2. What is wrought by the Queenes grant ex mero motu 3. What is wrought by her Maiesties graunt by of informamur c. 4. Whether vpon a false considelation expressed an vse shal be raised in a common persons case 5. That a consideration may be auerred which is not repugnant to the vse expressed 6. That an vse may be altered by a consideration not valuable The 3. Diuision 1. In what cases graunts shall be taken most beneficially for the grauntee 2. That a graunt noncertaine must be taken most strongly against the grauntor 3. That a graunt may be good in part and for parcell not 4. How the Queenes graunts and licences shall be construed and interpreted 5. A graunt is not to be fauored contrarie to the manifest sense of the words The 4. Diuision 1. That by the Common lawe a graunt that is not good at the first may not be made good by matter ex post facto nor by the Ciuill lawe The 5. Diuision 1. Whether a tenaunt at will may graunt ouer his estate 2. That the estate of the tenaunt at will is in manner no estate The Diuisions and principall contentes of the third Dialogue of bargaines and sales The first Diuision 1. WHat things are forbidden to be solde 2. That by the Cannon law things consecrate and religious may not be solde 3. That poysons by the Ciuill law are forbidden to be solde 3. That there be some poysons which be medicinable and profitable and the prohibition extendeth not to these 5. That some poisons are medicinable alone some with the mixture of other things 6. What things are forbidden to be solde by the Common lawe The 2. Diuision 1. Where a thing was not solde at the first and where it was solde but the sale was defeasible vpon condition 2. A difference betwixt a perfit sale and a sale to be perfited vpon a condition performed 3. That a prouiso though it be placed amongest couenants may defeat a bargaine and sale 4. That where a bargaine and sale is perfit but defeasible vpon condition the vendee shal take the profits till the condition be performed The 3. Diuision 1. When no day is limited for the payment of a summe of money what time the law will require 2. In such case the partie charged with the payment shall by the ciuill lawe haue threescore daies 3. That by the common law when no day is limited the money is presently due yet in some cases by some authoritie the discretion of the Iudges is to limit a time 4. The definition of time according to the opinion of Aristotle The 4. Diuision 1. That a bargaine and sale may be auoyded by the defect of some substantiall thing belonging to the act 2. That fraud and deceit in the contract by the ciuill law doth defeate the contract 3. A difference where the default of the thing sold is Latens or Patens 4. That whether the default be Latens or Patens if the bargainor doe warrant the thing sold to be without fault he is bound by the warrantie by the ciuill law 5. That bargaines and sales matters in writing and obligatorie may be auoyded by alleaging that they were made or done per minas or by duresse 6. That by the common lawe a warrantie made vpon a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine bee concluded 7. That the warranting of a thing which is euident to the sense is no cause to bring a writ of disceit by the common lawe The 5. Diuision 1. That by the common lawe the bargaine and sale or the grant of the profits of land is the grant of the
Of Bargaines and Sales 11. b. 4 Of Seignories and Seruices 17. b. 5 Of Iointenancie and Tenancie in common 28. b. 6 Of Exchaunges 32. a. 7 Of Deuises and Legacies 34. b. 8 Of Borowing and Lending 50. b. 9 Of the Bailement or Deliuerie of goods and chattels 54. b. 10 Of the forme and manner of ordinarie proceeding in matters of Law 57. b. 11 Of common Wrongs and Trespasses 78. a. 12 Of vnlawfull Assemblies Riots Routs and forcible Entries 82. a. 13 Of Treason and Rebellion 84. b. 14 Of Homicide that is Murther Manslaughter and Homicide by chaunce or misfortune 89. b. 15 Of Theft Burglarie and Robberie 101. a. The Introduction to the Dialogues A Gentleman by name Nomomathes with the ritches fortunes reuenewes of this world very plentifully furnished being liberally minded and willing that his foūtaines should flow forth to the benefit of others a Prouerb 5. vers 16. being a great fauourer of learning and desirous by all meanes to increase aduaūce it mainteined and kept with him continually in his house three learned men greatly addicted to the studie of the Lawes one of thē named Canonologus a Canonist the other Codicgnostes a Doctor of the ciuill law and the third Anglonomophylax a Barrister professor of the cōmon law of this realme of England of them he made great accōpt of their learning aboue all humane sciences as being most fit and pertinent to the guiding administratiō of publike affaires as the famous Cosimus Medices Laurentius his nephew b Machia lib. 7. 8. Flor. hist did harbour in their houses at seuerall times and with many benefites pleasured the two excellent men starres of learning Marsilius Ficinus and Ioannes Picus Mirandula being in their houses the nurseries of good learning as two faire flowres in their naturall roote as Cato c Plut. in Cat. the Vtican a long time before the family of Medices was knowne in Florence or Florence was knowne by the name had continually in his cōpanie three worthie philosophers Apollonides the Stoike Demetrius the Peripatetike and Cleanthes a cunning Phisition many times conferring with them alwaies profiting by them so this Gentleman of whom I speake reaping much good and benefite by the persons abouesaid did vse them exceeding kindly and many times proposed diuerse questions of the law vnto them wherein he had good resolution and hauing sequestred himselfe from the multitude of priuate affaires wherwith he was often molested hauing attained to a conuenient dispatch and cōclusion of thē hee allotted certaine times of purpose for the hearing of matters of law handled and debated and sometime in his parlor and chamber sometime in his garden and gallery he would giue diligent eare and attēdance to such disputation discourse hauing set downe certain rules as it were a good platforme of the exercise The rules were but two in nūber which were great in weight 1. He willed thē to exclude all cauilling to yeeld vnto the better reason with ioint indeuour to search out the truth of euery matter proposed for he said that nimiùm altercādo amittitur veritas 2. He would not sithence cōparisons were of al things most saucie malepert that they should enter into any disdainefull comparison of the lawes which they professed but should rather vse them as bretherne then as enemies and should reuerēce the greatnes of knowledge where they found it pardon the weakenes when they had discouered it without bitternes of tongue or venom of hart assuring themselfes that the meanest of these Lawes might in some particular things profite the greatest of these lawiers for as he obserued the sayings doings of Cato in stead of a law so one of Catoes sentētious iudicious oracles he had alwaies in his mouth Alienā artē temerè ne contēnito hauing by these rules as by limits bounded the order manner of there cōference he proposed certen things distinctly in order to be discussed which were thus by him marshalled Because in the raunge of all humane affaires subiect to the contēplatiō of law cōtracts haue frō ancient time bene the ground of vesting altering the property of things he wold therfore first haue thē to begin with a discourse of cōtracts because there be two things following after cōtracts cōcluded much in vse namely 1. a gift or graunt 2. a bargaine or sale he would therfore of these two haue thē diligētly to argue because gifts haue bene often made to raise and create a tenure his desire was that in the 4. place they should discourse of seignories and seruices for that grāts or gifts be made somtime iointly or by moities he wold haue thē to speak somwhat of iointenāts or tenāts in cōmō because they that haue things by gifte grant do often exchange thē his mind was they should hādle the nature māner of exchāges sithēce the last disposing of al worldly things is by the last will testament of the party he therefore requested them to be painful herein after as touching the cōueiances of lāds which be in the realty he would haue them to proceede to personal things as namely to treat of borrowing and lending and of the bailement or deliuery of goods and chattels because such things were much in vse And because these and the precedent matters were many times occasions of action therefore he thought it conuenient that they should speake somewhat of the forme and manner of ordinarie proceeding in matters of law and when they had finished this taske abouesaid he praied them to discourse of penall and criminall matters of common trespasses and wrongs and other offences against the peace the order of which he would hereafter set downe The method of their conference being thus digested and respit of studie and deliberation being giuen Nomomathes thus spake to Codicgnostes The first Dialogue Of Contractes NOmomathes I pray you Codicgnostes let me know whether any persons are by law prohibited to make any cōtract 1. Diuision deliuer your knowledge herein and let your companions speake to this point and others that I shal propose when and as farre forth as shall seeme good vnto them Codicg The chiefe ground of contracts is cōsent 1. The ground of contractes a L. 1. ff de pactis in c. Antig. Eo tit de pact l. cō sens ff de action oblig l. 1. ff manda Et l. sicut C. de actio obli so that the persons which contract must be able to cōsent and consent groweth of knowledge and from a mans free wil directed by sufficient vnderstanding for he that knoweth not what he doth can not be said to be willing to 2. The contracts of infants persons distracted of their wittes and religious persons whether or how farre foorth they be good do a thing as a man that is distract of his wittes or an infant that is
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.
34. because the profites of land the land it self are one the selfe same thing in substance m 10. H. 7. 9. 6. â— 6. 71. Dy. but he may lease his Parke excepting the wood vnderwood his maÌ„nor reseruing the warren but the soile of the wood and warren shall goe to the lessee n 14. H. 8. 1. 33. H. 8. Br. Reseruat 39. Codicgn By our Lawe a man may grant and 2. That by the Ciuill law a man may graÌ„t and demise the vse of a thing and yet not grant the thing it selfe demise the vse of a thing and yet not graunt the thing it selfe Suppose a man graunt vnto mee his mare for a certaine time I may during the time vse the mare at my pleasure but I may not lend her or set her ouer to some other to vse neither caÌ„ I haue the fole which coÌ„meth of her for by the graunt I may claime vsum onely but not vsumfructum and so hee to whom the vse of a mans ground is granted may take the profites of the ground to his owne vse but may not sell theÌ„ to others o Gâ—â—atup in vocabular verbo vti frui Nomom I would gladly know when a man 6. Diuision 1. When a maÌ„ selleth land in which treasure is hidde and the vendor knoweth not of it whether shall the vendee haue the treasure 2. How this word treasure is taken in the Ciuill lawe selleth his land in which there is treasure hidde whether the vendee shall haue the treasure because the vendor knew not of it at the time of the sale Codign It may bee you take the worde Treasure generally not properly as it is vsed strictly in our Lawe for if a man do hide any thing in the grouÌ„d for gaine or through feare or to keep it more safely within time of memorie this may not properly haue the name of treasure p l. nunquam D. de acquir rer domin for a treasure properly is when money or things of good value haue lyen from time out of minde hidden in the ground so that no man now hath propertie in it q d. l. nunquaÌ„ It hath bene forbidden by many 3. That by the Ciuil law money and other things necessary to the commoÌ„ vse of this life are forbidden to be hidden buried in the ground lawes that money may not be buried r l. 4. D. ad leg Iul pecul and these Lawes haue reason for them for it is against the s Aristot Nicomach 5. nature of monie that it should be buried being inuented for the daily and common vse of men and the same may be affirmed of other thinges which are hidden t L. 5. l. â— D. de vsufr ca. re que vs coâ— and these prohibitory lawes are fortified with this penaltie that things so hidden shall be forfeited to the Treasurie Plato had 4. Plato his superstitious opinion of thinges hidden in the earth such a scrupulous or rather such a superstitious conscience that he made by his lawes treasures to be immobâ—les Dijs inferis sacros and his precept is straunge in this case Quae minime deposuisti ne tollito u Plat. lib. 11. de legi Adrianus Caesar made a law as Spartianus reproteth that if any man had found treasure in his owne ground himselfe should haue it if in an other mans he should giue the halfe to the owner of the soyle if in a publique place he should deuide it equally with the treasurie This law was abrogated by other lawes following and reuiued by Iustinian but nowe 5. How the Ciuil law doth order and dispose of treasure and long time agoe our law hath transferred it to the Prince in whose Realme it is found x L. 3. §. Nerati D. de acquir posses Alberic Gentilis Disputati Decad. 1. c. 10. So that I cannot possibly see how the vendee in your case proposed shall by our law haue it Auglonomoph Nor by our law which saith Quod the saurus competit domino regi non domino libertatis si non sit per verba specialia aut per praescriptionem y Fitz. Coro 281. 436. And in this case though he selle 6. What the Common law doth determine of treasure vnto him the profit de terra yet he doth not sell vnto him the profits in terra which treasures are z Plowd coâ—en le informa pur mines Nomom I will content my selfe with this difference which you haue put and will now proceede according to the platforme of our forementioned order to learne something of seignories and seruices The fourth Dialogue of Seignories and seruices NOmomathes Because things are better 1. Diuision and more certainly knowne by the definition of them therefore I pray you let me first haue of you some definition or description of a seignorie Codicgn A seignorie which we call feudum 1. The description of a seignorie by the Ciuill law may be thus described A bountifull granting of land for doing homage or some other speciall seruice a Glo. in vsi feu tit quib mod feod acquir in princip c. vnico §. in primis tit in quib caus feud amit de feud dat mi. valuas ca. vnico melius tit de feud dat in vicem leg coÌ„missor reprob cap vnic Anglonomoph A seignorie with vs is nothing 2. Likewise by the Common law else but a relation of delitie betwixt the tenant and the Lord. Canonolog In our Canon law it is shortly desined 3. By the Canon law The granting of land for homage b C. ex diligenti de simon Nomomath Shew me I pray you how homage 2. Diuision and other seruices had their first existence and beginning but first shew me what homage is Anglonomoph Homage is thus performed The 1. What homage is and how it is to be performed by the Common law tenant that is to doe homage must haue his head discouered and his Lord sitting he must kneele before him vpon both his knees and shall hold forth both his hands betweene the hands of his Lord and shall say as followeth I become your man from this time forward of life and member and earthly honour and to you shall be faithfull and loyall and shall beare vnto you faith for the tenements which I claime to hold of you sauing the faith which I beare to our Lord the King which being done the Lord sitting shall kisse him c Littlet lib. 2. c. 1. Nomom Hath this ceremonie beene auncient Codicgn The kneeling and giuing of a kisse 2. That Homage hath bene practised in auncient times at the doing of such seruice is very auncient for Tiridates the King of Armenia did kneele down before Nero the Emperor whom Nero lifted vp and gaue him a kisse d Tranquil in Neron And longe before his time Alexander the great did imbrace and
the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed o Exo. 21. ver 26. 27. which lawe Constant the Emperor did put in practise p l. 1. de EmeÌ„d seruor C. but all the lands goods purchased possessed by the villaine the law frankly giueth to the Lord if he wil seise claime theÌ„ q Litt ' lib. 2. c. 11. sect ' 8. 10. wretched I coÌ„fesse is the estate of such men but yet paciently to be tollerated because quaÌ„ potestateÌ„ alijs deferre voluimus ferre debemus and they whose auncestors or theÌ„selues haue acknowledged theÌ„selues to be villains must now duetifully beare the yoake though Cui plus licet quà m parest plus vult quà m licet r Gellius lib. 17. c. 14. and let the Lords of such villaines harken to that which is spoken of an heathen man diuinely Boni moderatoris est restringere potestatem Å¿ Ammian lib. 29. but to leaue these particulers to proceed more generally as one man may hold lands of another by euery of these 4 The tenure wherby a man holdeth of an honor or Manor is discribed and by examples illustrated abouesaid seruices as of his person so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any Honor which is come to his highnes by disceÌ„t from any of his auÌ„cestours he shall not holde in Capite for by the words in the first Chapter of Prerogatiua regis it is euident that if it shal be said a tenure in Capite it must be holden of the Crowne of a long time the words be ab antiquo de Corona and that cannot be when it is but newly comen to the Crowne and the statute of Magna Charta cap. 31. did as Master Stamford saith helpe this matter by expresse words if such an Honor came to the Crowne by way of escheate but not if it came by way of discent or any other way and that statute doth set 5 Certain honors which be not of the auncientnes of the Crowne forth certaine honours by name which be not of the auncientnes of the Crowne that is to say the honor of Wallingford NotinghaÌ„ Bullingbrook and Lancaster therefore he that holdeth of the King as of these Honors holdeth not of the king in chiefe t Stamfords Praerog c. 7. but other honors there be which of so long time haue been annexed to the Crowne that to hold of theÌ„ is to hold in chiefe for wheras one held of the king as of a certaine honor to 6 Some honors which are annexed to the Câ—owne yeeld a certaine rent to the keeping of the Castell of Douer this hath beene taken to be a tenure in chiefe and so it hath been thought if one held of his highnes as of the Honour of the Abbe of Marle u Fitz. nat bre 256. and Anno vndecimo of king Henry the seuenth the honor of Ralegh was annexed to the Crowne therefore if any man hold as of that honor it is a tenure in capite x 34. H. 8. â—r Cas 230. and therefore there is a good rule in the Register of Writtes that a man shall not make a fine for alienation of lands helde of the King as of his honor but for lande helde in Capite onely for there be certaine honors which be held in Capite there is a certain writ that the Eschetor shal not greeue any maÌ„ for alienation of land held as of an Honor for that is as of an honor and not as of the kings person no Fine shall be paied for the alienation of such lande a Regist ' 184. Br. Alienac ' 33. And whereas it was found by Office that lande was helde of the Queene as of her principalitie of Wales by the seruice of goinge with the Prince in Warre at the charge of the Prince per CuriaÌ„ b 18. Eliz. Dy. per Curiam This is no Tenure in capite and Master Finchden putteth this diuersity that where an Honour is seised into the Kings handes if a Manor held of the Honor do escheat to the king by a common Escheate if the King alien the Manor to holde of him the tenant shall hold by the same seruices as hee helde by before of the Honour for the Honour seemeth to bee vice domini in this case and as a meane Lord but if it come to the King by forfaiture of warre or by some other treasoÌ„ or by some other cause which toucheth the Kings person and the King seiseth and enfeoffeth an other the feoffee shall holde of the King as of his Crowne c 47. E. 3. 21. per Finchden and though the Statute of Magna Charta Cap. 31. before recited doe say Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingforde Bolen c. non faciet aliud seruitium quam fecit praeante yet this is to be intended of a common Escheate and not otherwise d 19. H. 8. 〈◊〉 Ca. 114. So a man may holde of the King as of his Manour and yet not holde in Capite for it was found by office that one helde land of the King as of his Manor of Plimpton and other landes as of his Manour of Darington which came to the king by the attainder of treason of the Marquesse of Exetor this hath beene thought to be no Tenure in capite for tenures in chiefe did begin in auncient time vpon the graunts of Kings to defende them against rebelles and enemies and at this day the Queene may create a tenure in Capite if shee giue lande to holde of her person otherwise it is if it be giuen to hold of an Honor Manour c. for a Tenure in chiefe must be immediatly of the King and is created by the King onely for a tenure created by a subiect cannot be a tenure in chiefe nor haue any prerogatiue annexed vnto it and if the tenants of an Honour should holde of the King in Capite the Honour when it came to the King should bee destroyed which may not be and there is no reason that the tenant in whom there is no default should be preiudiced in his tenancie by the offence of the Lorde e 30. H. 8. 44. Dyer and if the Q. purchase a Manour of which I. S. holdeth by knights seruice the tenant shall holde as he helde before and he needeth not to tender his liuerie nor primer seisin for he doth not hold in Capite but as of a Manour and if his heire be in ward by reason thereof he may haue an Ouster le maine at his ful age and if the Queene graunt the Manour afterward to W. N. in fee excepting the seruices of I. S. now I. S. holdeth of the Queene as of her highnesse person yet hee shall not holde in Capite but by such seruices as he
Seuenth Dialogue Of Deuises and Legacies NOmomathes First I pray you tell 1. Diuision me whether this manner and custome of disposing by a mans last will and Testament hath bene in auncient time practised or no. Codicgn It is very auncient for it was one 1. The antiquity of willes of the Lawes of the twelfe Tables Vti legassit suae rei ita ius esto a L. verbis legis ff de verb. signif But before Solons time it was not lawfull for a man to deuise his goods Extra familiam to straungers and therefore when Solon did by Lawe established graunt this libertie to the Athenians it was plausibly receiued of them and accompted the best of all his Lawes b Plutarch in Solon But Plato in his writings straungely 2. Plato his exception against Solon his Law concerning willes howsoeuer diuinely conceited dispraiseth this Lawe and calleth the makers of it childish because by that meane a window is opened to deceite and to flatterie for hee saith that when men are at point of death they beginne to dote and their vnderstanding is broken and therefore it is very likely that euery man dying will dispose and appoint many thinges contrarie to the Lawe to the vsuall practise of them that liue to the example of their ancestors c Plat. lib. 11. de legib This sentence of Plato Iustinian an Emperour exquisitely busied in the compiling of Lawes because hee had rather erre with Plato then yeelde vnto the truth with Solon alloweth and frameth his Lawes accordingly d Authent de trient sem in l. Paulus ad Treb. and S. Ierom writeth that Solons Lawe was repealed in his time because Priestes which were commonly employed in the making of willes did greedily and odiously drawe to themselfes the inheritance of the dead dd L. 1. C. de sacr Eccles and an other reason may be added in defence of Platoes opinion because men in daunger of death are for the most parte too prodigall which Aristotle noted e Diogen Laerti in vit Aristotel and Tacitus pronounceth more peremptorily speaking of Otho f Tacit. lib. 2. lustor Pecunias distributt parce nec tanquam periturus hauing affirmed before Difficilius est temperare qua te non putes diu vsurum But Solons 3. Solons lawe is mainteined and defended against Plato Lawe leaneth to a more stable roote then that it may bee shaken by the weake blaste of such colourable reprehensions and Solon did make exceptions to his Lawe for hee made these testaments voide which were made by any in the extremitie of his disease or which a man was enforced to make by imprisonment or torment or by the perswasions and flatterie of his wife But surely the making of willes is necessarie g L. 3. D. qui test fa. pos and without it men can not effect the good education and bringing vp of their children nor be able of their proper goodes chattels and other mooueable substaunce to discharge their dettes and after their degrees set foorth and aduance their children and posteritie h 32. H. 8. c. 1. Willes 2. nor leaue their wife 's such comfortable support as in conscience they ought Nomomathes Lette mee know I pray you 2. Diuision what persons may be legataries or deuisees and who not Codicgnostes Euerie one that may bee made 1. Such as bee vncapable of inheritances goods may not be deuisees heires or executors by the Ciuill law 2. A difference in the Ciuill law betwixt the making of a deuisee and the making of an executor heire or executor may be a legatarie or deuisee but to thē which are vncapable by Law of inheritances or goods no deuise can be made neither can they be made heires or executors i C. de haered instit l. 1. but there is a difference betwixt the making of a deuisee and the making of an heire or executor because he that is to be made heire or executor must bee an able person in Lawe as well at the time of the making of the Testament as at the death of the testator and the vndertaking of the executorship or entre into the inheritaunce k ff de haered Insti l. si alienū §. de extraneis Iust de haer qual differ §. in extraneis but as to the deuisee it is sufficient if he be capable at the time of the death of the testator l ff de donat causa mort l. in mortis de condit demon l. eū qui. ff de iur fisc l. non intelligitur §. quando Anglonom By our Law to al such persons to whom a graunt may be made a deuise may bee 3. That by the Common law all persons to whom a graūt may be made a deuise may be made vnlesse it otherwise happen in some fewe cases made vnlesse it otherwise happē in some few cases and the deuise ought to be good effectual at the time of the death of the deuisor as if a mā seised of landes deuisable doe deuise the same to the fellowes of a colledge or the Priestes of a Chauntery and there is no such Colledge nor Chauntery at the time of the death of the deuisor after such a colledge or chauntery is made yet the deuise is void because deuises are purchases and when a man taketh lands or tenements 4. That the deuisee must be a person capable of the thing deuised by purchase hee must be an able person to take when it falleth to him by the purchase m Park 97. Sect. 505. 9. H. 6. 23. 2. Eliza. 119. Pl. 18. Dy. 13. Eli. 303. Pl. 49. Dy. 300. Pl. 39. 5. E. 4. 6. p Billing and the Cōminaltie of a guild which is not incorporate by the kings charter to purchase lands is not capable of lands and if a mā seised of lands deuiseable in fee do deuise the same land to A. for life to find a Chapleine chaunting in the Church of Dale the remainder to two of the best men of the Guilde or fraternitie of Whittawers in Londō to find a chaplaine c. if the Whittawers be not incorporate by the Kings charte◠enabled to purchase this remainder is void n Park 98. sect 510. 49. E. 3. 3. and if a rent be granted for life to I. S. the remainder in fee to him that shall first come to Powles the next daie in the morning this remainder is good though it be vpon condition if I. S. die not before the next daie and if one come to Powles the next daie in the morning if he which commeth thither then be not a person disabled to take by the graunt o 30. Assis pl. 47. Perk. 13. Sect. 56. so that whereas you say that by your Lawe it is 5. That by the Common law the deuisee ought to be capable at the time of the death of the deuisor sufficient
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
a good deuise f 21. R. 2. Deuis 27. but now such a deuise is made voide by the statute of 23. H. 8. cap. 10. but before that statute it appeareth by the booke of 37. H. 6. that vpon a gift made to the parishioners 2 That by the common law and by the statute of 23. H. 8. such a deuise is void of such a parish without naming them the Churchwardens might haue an action g 37. H. 6. 3â— but theÌ„ the gift must haue bin of a personal thing for of inheritance of land they cannot take to the vse of the Church h 12. H. 7. 27. but if a man in auncient time had giuen his landes or his goods deo Ecclesiae sanct ' Petr ' Westimonast ' this had ben a good deuise because the Church is not the house nor the walles but the entier spiritual house that is the Abbot and the Couent and because they may take by such a gift it is good but if the Abbot were dead at the time of the gift it is not good be cause the CoueÌ„t is not persona capax but a church 3 What is meant by a Church parochiall according to Rolfes opinion parochiall by Rolfes opinion as to the endowement of it with lande cannot otherwise be intended but a house made of stones walles and roofe which cannot take by any gift or feoffement and so it is of a Church conuentual which lacketh a soueraigne i 8. H. 5. 4. per Babi Rolfe Nomom Suppose that two testaments be exhibited 11. Diuision to the ordinary which were made in one day conteining seuerall summes to the same deuisees bequethed whether shall they both be approued and the legacies of both stand good Codicgn These legacies onely shal stand good 1 That by the ciuil law where two testameÌ„ts conteigne in them seueral summes that which conteineth the lessee shal staÌ„d but by the coÌ„mon law the later which do conteigne in them a lesser summe k l. Sempronius Procul ff de legat 2. Anglonomoph In our Law we haue a case that if a man make a testament and in it he maketh one onely man his executor and then he maketh an other testament and in it he maketh him and a stranger executors and the first testament is proued that onely shall stande l 2. H. 5. 8. but by other authoritie the later onely shall take place what summes soeuer they conteigne ll 4. H. 7. 13. Nomomat Say that an oxe is deuised to one and 13. Diuision the oxe dyeth without any default in the executor whether is the skinne or hide of the oxe due to the deuisee or no Codicgn By our Lawe it is not due m l. mortuo boue ff de legat 2. for the 1 That by the Ciuil law if an oxe be deuised and he dye the skin is not due to the deuisee thing deuised that is the oxe did perish and was non ens before the skinne were taken off and the skin was not taken from an oxe but from a carcasse Anglonomoph It seemeth in that case that the 2 That by the common law it semeth to be due otherwise it should be if there had bin an exception of the hide deuisee shall haue the hide for it is parcel of the oxe and the oxe was an entier thing but if hee had giuen the oxe excepting the hide that perhaps would amount to a seueraÌ„ce in law so that the oxe liuing should haue belonged to the deuisee but being killed the flesh should belong to the deuisee the hide to the executor of the deuisor and if a man make a lease of land excepting the trees which grow vpon the lande the trees are seuered in Law for hee hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition n 20. H. 6. 22. Nomomat Put case that I. S. doe borow a C. 13. Diuision li. of I. N. and for the sure repayment thereof he bindeth all his landes and goods by recognisans of statute Marchant to the said I. N. after he deuiseth all his landes to the recognisee and dyeth the recognisans is forfaited the recognisee bringeth an action of dette and recouereth against the executors and hath execution of the goods of the testator by Fierifacias and then he claimeth the land by vertue of the deuise whether is his claime good or no 1 That if the recognisor deuise all his goods to the reâ—onusee yet he shall haue execution of the land Codicgn I thinke he may claime the lande also if it may not be prooued by circumstances or directly that the land was deuised vnto him in satisfaction of the debt and vpon condition implyed that he should not alter the propertie of the goods by execution o l. creditoreÌ„ ff de legat 2. Anglonomoph I doe not perceiue any repugnancie in our Lawe to that which you haue saide Nomomath If he had made his creditour his executour in this case what woulde then haue followed Anglonomoph Then the debt had bin extinct p 11. H. 4. pl. 31. 2 That if the obligee make the obligor his executor the det is extinct for if two be bound to one in a certaine summe of money and the obligee maketh one of them his executor this is a release in law of the bond and debt to them both q 21. E. 4. 81. so if one make his dettor and an other his executours and die in this case if the executor who was not indebted suruiue he shall not haue an action of debt against the executour of his coexecutour although the partie indebted did not administer in his life time for the action was once extinguished and determined for no action can be brought but in the name of them both r 20. E. 4. 17. 21. E. 4. 3. 21. H. 7. 31. per Fineux but if one that is indebted make his creditour and an other his executours the creditour may haue an action if he doe not administer Å¿ 8. E. 4. 3. per Brian but when the testator is indebted to me and maketh me his executor I may deteigne the goods for my bebt so that it seemeth that though the action be extinct in regarde of the testatour yet the debt is still in esse in respect of straungers t 7. H. 4. 18. 27 H. 6. en Scire fac ' 7. Eliz. ComÌ„ Greysbrookes case 275. Codicgn When the creditour maketh the debtor his executor by the executorship the debt is confounded and because of impossibilitie in Lawe forsomuch as the executor may not bring an action of debt against himselfe being one and the same person the obligation therefore is by secreate act of Law disanulled u Philip. Deci ad reg iur Nomom Now I will put you a case which is
land it selfe 2. That by the ciuill lawe a man may grant and demise the vse of a thing and yet not grant the thing it selfe The 6. Diuision 1. When a man selleth land wherein treasure is hidden and the vendor knoweth not of it whether the vendee shall haue the treasure 2. How this word treasure is taken in the ciuill lawe 3. That by the ciuill law money and other things necessarie to the common vse of this life are forbidden to be hidden and buried in the ground 4. Plato his superstitious opinion of things hidden in the earth 5. How the ciuill lawe doth order and dispose of treasure 6. What the common lawe doth determine of treasure The diuisions and principall contents of the fourth Dialogue of seignories and seruices The first Diuision 1. THe description of a seignorie by the ciuill lawe 2. By the Canon law 3. Likewise by the common law The 2. Diuision 1. What homage is and how it is to be performed by the common law 2. That homage hath beene practised in ancient time The 3. Diuision 1. What a Manor is and whereof it consisteth 2. The originall of a Manor The 4. Diuision 1. Statutes made for the preseruation of seignories and Manors The 5. Diuision 1. Fealtie is the most generall seruice in the common law 2. In the ciuill law 3. That by the ciuill law the common law and the Canon law a religious man ought to do fealtie The 6. Diuision 1. The diuerse kinds of seruices in the ciuill law and their definitions 2. The diuers kinds of seruices in the common lawe and their definitions 3. The originall of villenage and the nature thereof 4. The tenure whereby a man holdeth of an honour or manor is described and by examples illustrated 5. Certaine honours which be not of the ancientnes of the Crowne 6. Some honours which be annexed to the Crowne The 7. Diuision 1. Whether one within age be compellable by lawe to doe all manner of seruice either by himselfe or some other 2. A diuersitie in the Ciuill lawe whether the father of such an infant died in a iust warre or at home in his bed 3. That by the Common lawe the infant shall be in warde if his father died seised of lande held by Knights seruice without anie such diuersitie 4. A diuersitie in the Common lawe where the heire of the tenaunt by Knightes seruice is within age and a Knight at the time of his fathers death and where not The 8. Diuision 1. What penalties lie vpon the tenaunt if he doe not his seruice 2. Many causes of the tenaunts forfeiture in the Ciuill law 3. Some causes of forfeiture by the Common lawe The 9. Diuision 1. Whether when the tenaunt hath committed felonie or treason and is attainted he shall suffer any preiudice in his tenauncie 2. A diuersitie in the Ciuill lawe where the offence is committed against the person of the lord and where against the person of a straunger 3. That by the Common lawe by the attainder of felonie or treason the bloud is corrupted and in the one case the land shal eschet to the King in the other to the immediate Lord. 4. The aforesaid determinations and conclusions of Ciuill and Common lawe touching the forfeiture of the offendorare examined by the law of God The Diuisions and Principall contents of the fifth Dialogue of iointenauncie and tenauncie in common The first Diuision 1. THat iointenaunts and tenauntes in common ought to haue equall profit 2. That by the Common lawe a writ of account will lie if one iointenaunt take all the profits The 2. Diuision 1. That iointenauncie is dissolued by death vnlesse there be some clause in the creation of the estate to the contrarie The 3. Diuision 1. That by the Ciuill lawe by the ioint gift of all the goods of a man all corporall things passe 2. That by the Common lawe if a man deuise the third part of his goods to his wife it shall so be rated as they were at the time of the death of the testator That the Queene may graunt a thing in action The 4. Diuision 1. That iointenauncie by the Ciuill lawe may be of all such things as lie in contract 2. That the limitation of tenauncie in common is by the partie but the construction of it by the lawe The 5. Diuision 1. That an assignee of a moitie in the Ciuill law is bound by the couenant of his grauntor 2. That by the Common lawe in such case the assignee is bound by the couenant The Diuisions and principall contents of the sixth Dialogue of exchaunges The first Diuision 1. THat by the Ciuill lawe contractes for a certaine price are not exchaunges 2. That by the Common lawe the word excambium must be vsed in the exchaunge 3. That the estates must be equall 4. That the things exchaunged must be in esse 5. That an exchaunge is good though one part of it doe inure by way of extinguishment The 2. Diuision 1. That the incumbents may not exchaunge their benefices by the Cannon lawe 2. That the Chapiter may warrant permutations sede vacante in such benefices wherein they haue interest or authoritie 3. That by the Common law ecclesiasticall persons their patrons and ordinaries ioining together cannot make anie good exchaunge of ecclesiasticall benefices 4. That the statute of mortmaine is most strict and pregnant in words The Diuisions and principall contents of the seuenth Dialogue of Deuises and Legacies The first Diuision 1. THe antiquitie of willes 2. Plato his exception against Solons law concerning willes 3. Solons lawe is maintained and defended against Plato The 2. Diuision 1. Such as be vncapable of inheritaunces and goods may not be deuisees heires or executors by the ciuill lawe 2. A difference in the ciuill law betwixt the making of a deuisee and the making of an executor 3. That by the Common lawe all persons to whom a grant may be made a deuise may be made vnlesse it otherwise happen in some fewe cases 4. That the deuisee must be a person capaple of the thing deuised 5. That by the common lawe the deuisee ought to be capable at the time of the death of the deuisor The 3. Diuision 1. That by the ciuill lawe all such things may be deuised as the testator hath in his owne right at the time of the deuise 2. The three degrees of a testament by the common lawe 3. A difference in the common lawe where a man deuiseth a thing whereof he is not seised particularly and by name and where not 4. That thinges which are not in esse at the time of the deuise made may be deuised 5. That the deuise of tenaunt for life or tenaunt in dower of the corne growing at the time of their death is good 6. That when the partie hath a certaine and lawfull interest in a thing â—e may lease it grant it or deuise it before the existence of it 7. That a deuise may