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
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
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
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
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
but it is a question with vs if one deuise to his wife the third part of all his goods and chattels whether this shall be intended as they shall be after the legacies or debts paid or as they were at the time of the deuise d 30. H. 8. 59. Dyl But this doubt of later time hath receiued decision for where a man deuised the 2. That by the Common law if a man deuise the third parte of his goods to his wife it shal be so rated as they weare at the time of the death of the testator 3. That the Queene may graunt a thing in action moitie of his goods to his wife and died it was ruled that she shall haue the goods as they were at the time of the death of the testator if the testator be not indebted e 5. Mari. 164. and as for graunting things in action we haue this positiue grounde in law that the Queene may grant ouer her rent and condition of reentrie for the nonpaiment of it and her action or any thing that her highnes hath in action but contrariwise it is of a common person f 2. H. 7. 8. Nomom Now shew me of what thinges and 4. Diuision in what sorte iointenancie or tenancie in common may be Codicgn It may be of all such things as lie in 1. That iointenancie by the Ciuil law may be of all such things as lie in contract contract as lambe milke woll cheese and corne and whatsoeuer is gained by the labour of oxē or the harrowing of horses or the letting to gift of kine g L. si nō fuerint ff pro soc and by the nature of the contract when two are agreed to be tenants in common of the profites comming and rising of beasts the losse of the beastes perteyneth onely to him in whom the very propertie of the beastes be but the charge of the pasture and labour which is to be taken about thē belongeth onely to him who is admitted to be tenant in common for the profites 2. That the limitation of tenancie in cōmon is by the partie but the construction of it by the law The possession in cōmon of beasts doth cōtinue vntill they haue yong if the possessiō were limited at the first vntill they had yoong and if two be agreed to be tenants in common of all the profites of a certaine ground the tenancie in cōmon ceaseth not till all the profites be taken and therefore if two be agreed to be tenants in common from the Calends of March vntill such time as their fields are new to be tilled sowne they shal be tenants in common vnto the Calendes of Nouember because betwixt both the Calendes the fields may be tilled sowne or suppose that they haue contracted a tenancie in common of kine from the Calendes of Iuly vntill they haue yonge this tenancie in cōmon shall continue till the Calends of Aprill next ensuing because for the most part they are wont to calfe betwixt both the Calends h L. si conuenerit in princ ff pro socio Anglono A parson may grant to another the moitie of his tithes for years whether it be lamb wooll or corne yet he hath no possession of them because they are not yet in esse i 38. E. 3. 6. but yet he hath an interest in them may grant the moitie of them as wel as one may grant to another that it shall be lawfull for him to take euery yeere a Deare or a Hare or a Cony within his soile this is a good grant k 10. H. 7. 30. and by the same reason that he may grant his tithes he may grant the moitie of them and so make a tenancy in common Nomoma Suppose the case to be this that two 5. Diuision iointenants or tenants in common haue agreed to make a common wall about their ground or that they should plant a certain number of trees in their common soile and one of them alieneth his part whether is his assignee bound to performe the couenant 1. That an assignee in the Ciuill lawe is bound by the the couenant of his grauntor Codicgn In our law there be many authorities that he ought to performe the couenant l L. quaesit §. quod a Titio ff de praeca arg l. in hoc iudiciū §. penult ff de cōmun diuid ff de damn infect l. fluminū §. adducitur ff pro soc l. 1. demque Anglonomoph To that our law agreeth for if a man lease a house and land for yeares by deed indented and the lessee doth couenant that he 2. That by the Common law in such case the assignee is bound by the couenant and his assignees shall repaire the house and after the lessee granteth ouer his terme and the assignee doth not repaire it an action of couenāt lieth against the assignee for this is a couenant which runneth with the land m 25. H. 8. Br. couen 32. Deputie 16. and according to M. Brookes opinion it lieth also against the lessee after that he hath assigned ouer his terme if he bring seueral writs of couenāt against thē both there is no remedie till he haue had execution against one of them and then if he sue the other he may haue an Audit a querela n Br. Couen 32. Nomom I will content my selfe at this time with your instructions touching iointenants tenants in common will passe ouer to the examining of the course of exchaunges The sixth Dialogue of Exchaunges NOnomath What if two do deale together 1. Diuision after this sort the one of thē giueth a horse and x. s. for the horse of an other man whether is this a bargaine and sale or an exchaunge Codicgn In such case either it is intended and 1. That by thē Ciuill law cōtracts for a certaine price are not exchaunges vttered betwixt the parties that the one shal haue such a thing for a certaine price as namely that A. shall haue the horse of B. for ten pounds and B. taketh of A. sixe pounds and an other horse in full paiment and satisfactiō this is cleerely a bargaine and sale a L. tenetur §. 1. de action emp. but if A. had giuen B. a horse for a horse that had bene an exchaunge b Ar. I. item si pretio §. 1. ff locat Anglonom By our Law there must bee the expresse 2. That by the Common law the word Excambium must be vsed in the exchaunge word of exchaūge mētioned otherwise a thing cā not be said to passe by exchaūge for the word excambiū only maketh an exchaūge as the words liberūmaritagiū onely doe make frankmariage for if I giue to one an acre of land by deed indented and he by the same deed giueth to me an other acre for this acre nothing passeth except liuerie be made and then the
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
legat 3. And if a house be deuised the Bathe belonging to the house and the orcharde also which belongeth to it doe passe if from the house there be a way to the Bathe or orcharde for then they may well be sayd to belong to the house and to be prouided for the benefit of the inhabitant l l. praedijs in §. balneas §. qui domum ff de legat 3. and if a man do by his last wil deuise land liue many daies after the testament made 2 That a mine of coale passeth with the land if it be iointly vsed with it otherwise it is if it be seuerally vsed and in his life time a myne of coale lead or tinne is opened and discouered in the soile then the testator dieth after that hee hath vsed the myne iointly with the land in this case the deuisee shal haue the mine but if he had demised for life or for yeres the mine to one and the land to an other so that they had beene seuered and disioined in particuler interest then the deuisee should not haue had the mine m l. cuÌ„ fundus nominatim ff de legat 2. but if the Testator deuise all his corne which he hath in such a barne and the deuisee being one of his housholde seruants of purpose bringeth a greater quantitie of corne into the barne the deuisee shall not haue this increase because it grewe by the fraude of the deuisee n cum ita legatur in princ ff de legat 2. Anglonomoph As to your two last cases deuises as I haue said before are so to be fauoured as dower and I thinke that if a man doe marrie a wife and die seised of lande and after his death a mine of coale is discouered in the ground and 3 That a woman shall be endowed of a mine of coale discouered after her husbands death then the woman bringeth a writ of dower she shal haue her dower as well of the mine being parcell of the lande as of the lande it selfe being the principal o 14. E. 3. Admeasurement 10. 13. E. 1. Itin North. 17. Fitz. na br 149. C. and as to your other case where the corne in such a barne is deuised and it is afterward increased the deuisee shall haue no more corne then was in the barne at the time of the deuise for it is as much as if he should haue said al the corne which he now hath in his barn for words of the present tense which hath a present beginning and ending may not be drawne either to a time past which hath had his beginning and 4 That words of the present tense in a deuise may not be extended to the future tense end or to a time future which hath neither beginning nor end and therfore if a man be bound to keepe the prisoners of the gaole of D. that they shall not escape this shall extende onely to the prisoners which are in the Gaole at the time of the making of the bonde and not to such which shall be afterwarde in the Gaole vnlesse it had beene expresly said which be or shall be in the Gaole p 21. H. 7. 37. and so if the Queene graunt to me visum franciplegij in omnibus terris meis feodis I shall not haue viewe of frankepledge in any landes but such as I haue at the time of the graunt q 38. H. 6. 10. so if a man be bound for the tenants of I. S. it shall be intended of these tenants onely which I. S. hath at the time of the obligation made r 39. H. 6. 6. and if a man graunt to another housewood and hedge-wood to be burnt in his houses in Dale this shal not extend to houses which are afterward built Å¿ Temps E. 1. Common 28. and though Wilbyes opinion be that if a man graÌ„t to another a way ouer his land with waines and the grauntee hath no freeholde at the time to which he may haue caryage yet if he purchase freehold afterward he may haue a way to it and Hankeford seemeth to be of this opinion 11. H. 4. t 21. E. 3. 2. per Wilby 11. H. 4 82. per Hank because in a generall graunt there needeth to be no naming of a certaine freehold yet in that very case dubito quid sit lex Nomomat Admitte that a man deuise the profittes of his lande for fiue yeres to I. S. the deuisee dyeth within two yeres next after the deuise then the deuisour dyeth whether shall the residue of the terme goe to the benefit of the executor 1 That by the ciuil law if the deuisee of a terme die before the deuisor the executor shal haue the terme or administrator of the deuisee Codicgn We haue expresse authoritie in our Law that it shall a l. vxori vâ—ufru §. quaesituÌ„ ff de vâ—ufru le Angonomoph Brettes case which is very famous in our law is to the coÌ„trary aa 10. Eliz. 46. ComÌ„ Brets case but if a man deuise 2 By the common law a diuersity is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacy executed xx li. to be paied yerely in 4. yeres after his death to I. S. and died and after the deuisee dyeth within foure yeres yet the executours of the deuisee shal haue the money or the residue of it by suite before the Ordinary in the spiritual Court for it is a duetie by the testament or deuise b 24. H. 8. Br. Deuise 27. 45. Condic ' 187. and an administrator may as well sue for that duety in the spiritual Court as he may haue a writte of Couenant at the common law vpon the couenaÌ„t made with the partie intestate c Fitz. na br 146. D. 2. Mar. 112. Dy. Nomom What if the testator do say I deuise such 10. Diuision a thing to God or to Christ what is wrought by this deuise Cononol The thing so deuised is due to the 1 That by the ciuil law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the Testator dwelt Church of the parish where the testator did dwel at the time of the deuise d Authent de ecclesiast ' titÌ„ §. si quis in nomine argu l. quae coÌ„ditio §. sin ff de cond de monstr Anglonomoph In auncient times such deuises were good and so was a fine leuied deo ecclesiae but the lawe is now altered e Scir faci 18. E. 4. 22. 19. E. 4. 2. 4. 7. per Pigot en le cas de Prior de Merton and in the one and twenteth yere of king Richarde the second a deuise of lande was made to one for life the remainder to an other for life the remainder to the Churche of S. Andrew in Holborne and this was adiudged
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
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
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