is called a courte Baron And to euery fayre market is incident a court that is called a court of Pypowdres And though in some statutes is made meÌ„cion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes and that suche courtes shulde be / there is no statute nor law writteÌ„ in the lawes of Englande And so all the grouÌ„de begynniÌ„g of the sayde courtes depeÌ„de vpoÌ„ the custome of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Parlyament ⧠Also by the olde custome of the realme no maÌ„ shal be takeÌ„ iÌ„prysoned disseased nor otherwyse destroyed / but he be put to answere by the lawe of the lande this custome is coÌ„fermed by the statute of Magnacarta the .xxvi. chapitre ⧠Also by the olde custome of the realme all men great small shal do receyue Iustice in the kinges courtes / this custome is coÌ„fermed by the statute of Marl the .i. Chapitre ⧠Also by the olde custome of the realme the eldest sone is onely heyre to his auncestour / if there be no sones but doughters then all the doughters shal be heyre so it is of susters other kynneswomen And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce discende to the nexte kynnesman or kynneswoman of the hole blode to hym that had the enhitauÌ„ce of howe many degrees so euer they be from hym And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden ⧠Also by the olde custome of the realme landes shall neuer ascende / nor disceÌ„de froÌ„ the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee. ⧠Also if any alyeÌ„ haue a sone that is an alyen after is made Denizyn / hath another sone / after purchaseth laÌ„des and dyed / the yoÌ„ger sone shall enherite as heyr nat the eldest ⧠Also if there be thre bretherne the mydlest brother purchase landes dyed without heyre of his body / the eldest brother shall inheryt as heyre to hym nat the yonger brother ⧠Also if lande in fee symple disceÌ„de to a man by the ê‘re of his father he dyed without heyre of his body / then that inheritaunce shall discende to the next heyre of the parte of his father And if there be no suche heyre of the parte of his father / then if the father purchased the laÌ„des it shal go to the next heyre of the fathers mother / nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee but if a man purchase laÌ„des to him to his heyres dye without heyre of his body as is sayd before / theÌ„ that laÌ„de shall disceÌ„de to the next heyre of the parte of his father if there be any / if nat then to the next heyre of the parte of his mother ⧠Also if the sone purchaseth laÌ„des iÌ„ fee dye without heyre of his body / the lande shall discende to his vncle shall nat asceÌ„de to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle shall enioye the lande as heyre to his elder brother for euer ⧠Also by the custome of the realme the chylde that is borne before spouselles is bastarde shall nat inheryte ⧠Also the custome of the realme is that no maner of goodes nor catalles reall nor parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or administratours ⧠Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after and also Chatelles real if he ouer lyue hê wyfe but if he sell or gyue away the Chatelles realles dye by that sale or gyfte the enterest of the wyfe is determined / els they shall remayne to the wyfe if she ouer lyue her husbande ⧠Also the husbaÌ„de shall haue all the inheritauÌ„ce of his wyfe wherof he was seased in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of EnglaÌ„de / the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe after the spouselles c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye ¶ Doctoure what if the husbande at his deth be within the age of .ix. yere ¶ Student I suppose she shall yet haue her dower ⧠Also the olde lawe custome of the realme is that after the deth of euery tenaÌ„te that holdeth his landes by knyghtes seruice the lord shall haue the warde mariage of the heyre tyll the heyre come to the age of .xxi. yere And if the heyre in that case be of full age at the deth of his auncestre / then he shall paye to his lorde his relyefe / whiche at the coÌ„mon lawe was nat certayne / but by the statute of Magna carta / it is put in certayne that is to saye for euery hole knyghtes fee to pay C. sÌ„ And for a hole baronye to pay a. C. marke for relyef And for a hole erledom to pay a. C. li. after the rate And if the heyre of such a tenauÌ„t be a womaÌ„ / she at the dethe of her auncestre be within the age of .xiiii. yeres / then by the coÌ„mon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of WestmÌ„ the fyrste in suche case she shal be inwarde tyll .xvi. yere And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shal be out of warde / though the laÌ„des be holden of the kynge And theÌ„ she shall pay relyef as an heyre male shall ⧠Also of landes holden in socage if the auncestre dye / his heyre beynge withiÌ„ the age of .xiiii. yeres / the next freÌ„d of the heyt to whome the inheritauÌ„ce may nat discende shall haue the warde of his body landes tyll he shall come to the age of .xiiii. yere / theÌ„ he may entre And wheÌ„ the heyre coÌ„meth to the age of .xxi. yere / theÌ„ the gardeyn shall yelde hym accoÌ„pte for the ê“fettes therof by hym receyued ⧠Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his auncestre / as if his auÌ„cestre
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
dyeth / where maye tho yssues be leuied vpon hym in the reuercion in coÌ„science as they may be by the lawe ¶ Doct. If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience StudeÌ„t For there is a maxime in the lawes of Englande / that where two tytles ronne togyther / the eldeste tytle shal be preferred And in this case the tytle of hym in the reuercion is byfore the tytle of the forfetour of the yssues And therfore I doute somwhat whether they maye be lawfully leuyed ¶ Doct. By that reason it symeth thou arte in doute what the lawe is in thê case / but that must necessarely be knowen / for els it where in vayne to argue what conscience wyll therin ¶ Stud. it is certayne that the lawe is suche / so it is lyke wyse if the husbande forfet yssues dye / tho yssues shal be leuyed on the landes of the wyfe ¶ Doct. And if the lawe be such it symeth that coÌ„science is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shal be iÌ„panelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemeÌ„t for his nat apperauÌ„ce for els the lawe shulde be clerely frustrate in that poynt And that payne as I haue herde is that he shal lese yssues to the kyng for his nat apperauÌ„ce / wherfore it semeth nat inconuenieÌ„t nor agaynste conscience though the lawe be that tho yssues shal be leuyed of hym iÌ„ the reuercion / for that coÌ„dicion was secretlye vnderstande in the lawe to passe with the lease whaÌ„ the lease was made And therfore it is for the lessour to beware and to preuent that daunger at the makynge of the lease / or els it shal be aiuged his owne defaute And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande froÌ„ that generall maxyme that thou haste remeÌ„bred byfore that is to say that where two tytles ronne togyther / that the eldest tytle shal be preferred / so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in coÌ„science / for by this perticuler maxime the strengthe of that generall maxime is restreyned to euery intent / that is to saye / as well in lawe as in coÌ„science ¶ The thyrde question of the student The .xxiii. Chapitre STudeÌ„t If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be bouÌ„de by the lawe to yelde to hym in the reuercion treble damagê And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / to restore the place wasted immediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages the place wasted be recouered in the kynges courte ¶ Doctour Byfore iugemeÌ„t gyuen of the treble damagê and of the place wasted he is nat bounde in conscience to pay them For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemeÌ„t be gyuen to yelde damages accordynge to the value of the waste / but after the iugement gyuen / he is bounden in coÌ„science to yelde the treble damages / also the place wasted And the same lawe is in all statutê penall / that is to saye / that no man is bouÌ„de in conscience to pay the penaltye tyll it be recouered by the lawe ¶ Stud. Whether maye he that hath offended agaynst suche a statute penal defende the accion hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single damagê ¶ Doctour If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the penaltie tyll it be recouered ¶ The fourth question of the studeÌ„t The .xxiiii. chapitre STudent If a man infeffe another in certayne lande vpon condicion that if he infeffe any other that it shal be lawfull for the feffour and his heyres to reentre cÌ„ whether is this coÌ„dicion good in coÌ„scieÌ„ce though it be voyde in the lawe ¶ Doctour What is the cause why this condicion is voyde in the lawe ¶ Stud. The cause is this / by the lawe it is incideÌ„t to euery state of fee simple / that he that hath that estate may lawfully by the lawe by the gyfte of the feffoure make a feffement therof And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the condicion had ben that he shulde nat haue infeffed suche a man / or such a man that condicion had ben good / for yet he myght infeffe other ¶ Doctour though the sayde coÌ„dicion be agaynst the effecte of the stande of a fee simple also agaynste the lawe Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / to that intent the feffe toke the estate after breke the intent it semeth that the lande in coÌ„science shulde returne to the feffour ¶ Stud. the intent of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe As if a man of his mere mocion without any recompence intendynge to gyue landes to another to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue to holde to hym for euer intendyng that by that worde for euer the feffe shuld haue the lande to hym to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe Also if a man gyue landes to another to his heyres for terme of .xx. yeres inteÌ„dyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme In this case his inteÌ„t is voyde / for by the lawe of the realme all chatellys reall and personall shall go to the executoures / and nat to the heyre Also if a man gyue landes to a man to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for
his chyldreÌ„ as laÌ„des intayled be gyuen Another cause is this it appereth by the coÌ„mauÌ„demeÌ„t of god that thou shalt nat coueyt the house of thy neyghboure cÌ„ And if the coÌ„cupisceÌ„ce be ê“hibited more stroÌ„ger the vnlawfull takinge withholding therof is prohibit / for as moche as tayled lande whaÌ„ the auncestre is deed is a thynge that of righte is belongynge to his heyre / for that he is heyre accordynge to the gyfte / how may that laÌ„de with right or conscieÌ„ce be holden froÌ„ hym ¶ StudeÌ„t Natwithstandynge that prohibicion of almighti god wherby the laÌ„de that was gyuen to Abraham to his seed might nat be aliened for euer / yet landes within walled townes might lawfully be aliened for euer / excepte the landes of the leuites as it appereth in the sayde chapitre of Leuitici .xxv. And so it appereth that the sayd prohibicion was nat generall for euery place that amonge the Iewes And it appereth also that it was gyuen onely for Abraham his chyldren / so it was nat generall to all people And it appereth also that it extended nat but onely to the lande of promission / as it appereth by the wordes of the sayd chapitre / where it is sayde thus all the region of your possession shal be solde vnder the condicion of redemynge / whereby appereth that landes in other countres be nat bounde to that condicion / and as they be nat bounde to that condicion by the same reason / it foloweth that they be nat bounde to the same succession Therefore the sayde lawe that wyll that the lande gyuen to AbrahaÌ„ to his seed shall nat be solde for euer / bindeth no lande out of the lande of promission / some men will say that sythen the passion of our lord was promulgate knowen it byndeth nat there And to the secoÌ„de reason whiche is grounded vpon the coÌ„mauÌ„demeÌ„t of god It must nedes be grauÌ„ted that it is nat lawfully to any man vnlawfully to couere the howse of his neyghbour / that than more stronger he maye nat vnlawfully take it from hym but thaÌ„ it remayneth for the yet to proue / howe in this case this tayled lande that is solde by his auncestre / whereof a recouery is had of recorde in the kynges courte maye be sayd the lande of the heyres ¶ Doctour that may be proued by the law of the real me / that is to say by the statute of westmiÌ„ster the seconde the fyrste chapitre / where it is sayd thus The wyll of the gyuer expressely contayned in the dede of his gyfte shal be from hensforth obserued / so that they to whome the tenementes be so gyueÌ„ shal nat haue power to alyen / but that the landes after theyr deth shall remayn to theyr issue or retourne to the donour if the issue fayle / by the whiche statute it appereth euidently that though they to whome the tenementes were so gyuen aliened them awaye / that yet neuerthelesse they in law conscience by reason of the sayde statute ought to remayn to the heyres according to the gyfte / for it is holden commonly by all Doctoures that the coÌ„maundementes rewles of the lawe of maÌ„ or of a positiue lawe that is lawfully made / bynde all that be subiectes to that lawe accordyng to the mynde of the maker that in the court of conscience ¶ Student Doest thou thiÌ„ke that if a man offende agaynst a statute penall that he offendeth in conscience admit that he do it nat of a wilfull disobedience for that he wyll nat obey the law / for if he do it of disobedience I thynke he offeÌ„deth ¶ Doctour If it be but onely a statute that is called Populare it byndeth nat in conscience to the payment of the penalitie / til it be recouered by the lawe And than it dothe bynde in conscience / but if a statute be made principally to remedy the hurte of the partye / for that hurte it gyueth a penaltye to the partye in that case the offendour of the statute is bounde immediatly to restore the damages to the value of the hurt as it is vpon the statute of waste / but the penaltye aboue the hurte he is nat bounde to pay tyll iugement be gyuen as it is sayd byfore / but statutes by the which it is assigned who shall haue right or proê‘tye to these laÌ„des tenemeÌ„tes / or to these goodes or catailes if it be nat agaynst the lawe of god / nor agaynst the lawe of reason bynde all them that be subgecte to the lawe in lawe conscience / suche a statute is the statute of westminster the .ii. whereof we haue treated byfore / wherefore it must â–ª be obserued in conscience ¶ Stud. But some holde that the sayde statute of Westmynster â–ª the .ii. was made of a singularitie presumpcion of many that were at the sayd parliament for exaltinge and magnifienge of theyr owne blode therfore they saye that that statute made by suche a presumpcion byndeth nat in conscieÌ„ce ¶ Doctour It is very perillous to iuge for certayne that the sayde statute was made of suche a presumpcion as thou spekest of / for there be many consideracions to proue that the sayd statute was nat made of suche a presumpcion but rather of a very good mynde of all the parlyamente / or at the leste of the more parte thereof / for the common welthe of all the realme / fyrste in the kyng the whiche in the said parliament was the hede and moste chyef principall parte of the parliament as he is in euery parliament / can nat be noted no suche inteÌ„t / For it is nat necessary nor it was nat than in vse that landes of the crowne shulde be entayled in spirituall men ne yet in certayne burgesies cytizeÌ„s of the sayde parlyamente whiche at that tyme had no lande / there can be noted no suche singularitie / nor yet in the noble meÌ„ gentilmen nor suche other as were of the sayd parliameÌ„t had landes tenemeÌ„tes It is nat good to iuge iÌ„ certayn that they dyd it of suche a presuÌ„pcion / but it is good and expedient in this case as it is in other cases that be in doubte to holde the surer waye / and that is that it was made of charitie / to the intente that he nor the heyres of hym to whome the lande was gyuen shulde nat falle in to extreme pouertye / and thereby haplye to ronne in to offence agaynste god / and thoughe it were trewe as they saye that it was nat made of charytie but of presumpcion and singularitie as they speke of Neuerthelesse for as moche as the statute is nat agaynste the lawe of god nor agaynste the lawe of reason it must be obserued by all theÌ„ that be subiectes vnto that lawe / For as IohnÌ„ Gerson sayth in the treatyse that he entituleth in latine De vita spirituali anime the
the inheritaunce of many in this realme as well of spirituall as temporall / they be withoute payne in the lawe of the realme excepte suche recoueries as by the commoÌ„ course of the law be voydable in the lawe by reason of some vse / or of some other speciall matter / but what payne that is I wyll nat temerously iuge / but committe it to the goodnes of our lorde whose iugementes be very depe and profounde / nor I wyll nat fully afferme that they that haue landes by suche recoueries oughte to be compelled to restitucion / but this semeth to me to be good councell that euery maÌ„ hereafter holde that is certayne leue that is vncertaiÌ„ that is that he kepe hym self from suche recoueries and than he shal be fre from all sertrulousnes of conscience / in that behalf ¶ Student It semeth that in this question thou ponderest greatly the sayde statute of WestmÌ„ the .ii. that thoughe it be but onely a lawe made by maÌ„ / that yet for as moche as it is nat agaynst the lawe of reason / nor the lawe of god / thou thynkest that it muste be holden in conscience / and ouer that as it semeth thou arte somwhat in double whether those recoueries be any barre to the heyre in the tayle by the lawe of the realme onles that he haue in value in dede vpon the voucher / that thou wilt thereupoÌ„ take a respite or thou shewe thy full mynde therein / in lykewyse thou thiÌ„kest as I take it that those recoueries can nat be brought in to a custome but that the longer that they be suffred to continue if they be nat good by the lawe the greater is the offence agaynst god And therfore thou ponderest litle that custome / but yet thou agreest that it is good to spare the multitude of them that be paste leste a subuercion of the inheritaunce of many of thê realme might folowe great stryfe variaunce also if they shulde be adnulled for the tyme past except there be any other especiall cause to auoyde them by the lawe as thou haste touched in thy laste reason / but thou thynkest that it were good that from hensforth suche recoueryes shuld be clerely prohibit nat be suffred to be had in vse as they haue ben byfore thou couÌ„ceyllest all men therfore to refrayne them selfe from suche recoueries hereafter ¶ Doctour Thou takest well that I haue sayde accordynge as I haue mente it ¶ StudeÌ„t Now I pray the syth I haue harde thy question of these recoueries accordynge to thy desyre that thou woldest answere me to some perticuler questioÌ„s coÌ„cernynge tayled landes wherof thou hast at this tyme gyuen vs occasion to speke ¶ Doctoure shewe me those questions I wyll shewe the my mynde therein with good wyll ∴ ☞ The fyrste question of the Student concernynge tayled landes The .xxvii. Chapitre Student If a dissesour make a gyfte in the tayle to Iohan at style IohaÌ„ at style for the redemyng of the title of the dissesye agreeth with hym that he shall haue a certayne rent out of the same lande to him to his heyres / for the suertye of that rent it is diuised that the dissesye shall release his right in the lande cÌ„ that suche a recouery as we haue spokeÌ„ of byfore shal be had agaynste the sayd Iohan at style to the vse of the payment of the sayde rente and of the former tayle whether standeth that recouery well with coÌ„science or nat as thou thynkest ¶ Docto r I suppose it dothe for it is made for the strength and suertye of the tayle whiche the dissesye might haue clerely defeated auoyded if he wolde / therefore as I thinke if the sayde Iohan at style had graunted to the dissesye onely by his dede a certayne rente for the releasinge of his title that graunte shulde haue bounde the heyres in the tayle for euer And than if the dissesye for his more suertye wyll haue suche a recouerie a byfore appereth it semeth that that recouerye standeth with good conscience ¶ Student It semeth that thy oppynion is righte good in this matter And so it appereth that with a reasonable cause some particuler recoueries maye stande bothe with lawe and coÌ„science to barre a tayle ☞ The seconde question of the Student concernynge tayled landes ⸫ The .xxviii. Chapitre STudent I a tenaunt in tayle suffre a recouery agaynste hym of the landes entayled to the entent that the recouerers shall stande seased therof to the vse of a certayne woman whome he enteÌ„deth to take to his wyfe / for terme of her lyfe / and after to the vse of the fyrste tayle and after he maryeth the same woman / whether standeth that recouery with conscience though other recoueries vpon bargaynes and sales dyd nat ¶ Doctoure It semeth yes / for though the statute be / that they to whome the tenementes be so gyueÌ„ shulde nat haue power to aliene / but that the landes after theyr deth shulde remayne to theyr issues or reuert to the donours if the issues fayled yet if he to whome the landes were so gyuen take a wyfe dyeth seased without heyre of his body / and the donour entre the woman shall recouer agaynste hym the thyrde parte to holde in the name of her dowre for terme of her lyfe though the tayle be determined / the same law is of tenaÌ„t by the curtesy that is to say of hiÌ„ that happeneth to marye one that is an eÌ„heritrix of the laÌ„de entayled they haue issue the wyfe dyeth the issue dyeth / he shal holde the laÌ„des for terme of his lyfe as tenaÌ„t by the curtesye / natwithstanding the wordes of the statute whiche say that after the deth of the tenaunt in tayle without issue the landes shall reuert to the donour / I thynke the cause is bycause the intente of that statute shall nat be taken that it inteÌ„ded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / so it semeth that a lyke enteÌ„t of the statute shal be taken for ioyntours / for els the statute might be somtyme a lettynge of matrymony / it is nat lyke that the statute intended so / therfore it semeth that by the onely deed of the tenaunt in tayle a ioyntour may be made by the intent of the statute / thoughe the wordes of the statute serue nat expressely for it / for many tymes the intent of the letter shal be taken nat the bare letter / as it appereth in the same statute where it is sayd that he to whome the landes be gyuen shall haue no power to alien / yet the same statute is construed that neyther he nor his heyres of his body shal haue no power to alyen / so me thynketh that suche an intent shal be taken here for sauyng of ioyntours ¶ Student trouth it is that somtyme the intent
saye if a man make a feoffement in fee vpon condiciō that the feffe shall nat alien it to any man that condiciō is voyde for it is incidente to euery state of the fee simple that he that is so seased may alien And lyke as in a fee simple there is incident a power to aliene / so in a state tayle there is a secrete intent vnderstande in the gyfte / that no alienacion shal be made And therefore thoughe the intente of the sayde Iohan at noke were that if he fell in to pouertie that he might sel though he at the takynge of the gyfte openly declared his intente to be so / yet that intent shulde be voyde by the lawe as me semeth and if it be voyde by the lawe it is also voyde in conscience / and so the sayde recouery muste be taken in this case to be of the same effecte as recoueryes of other landes intayled be / and in none other maner ☞ The .iiii. question of the Student / cōcernynge recoueryes of enheritaūce entayled The .xxx. Chapitre STudent If an annuite be graunted to a man to haue to perceyue to the graunt and to the heyres of his body of the cofers of the grauntour And after the graunte suffereth a recouere agaynste hym in a writte of entre by the name of a rent in dale of lyke summe as the annuite is of with vouchers iugemēt after the cōmon course / bothe parties intende that that annuite shal be recouered whether shal that recouere binde the heyre ī the tayle of his annuite ¶ Doctor. what if it were a rēt goynge out of lāde of what effect shuld the recouere be than ¶ Student It shuld be than of lyke effecte as if it were of lande ¶ Doctoure And so it semeth to be of this annuite / for as me thynketh a rēte an annuite be of one effecte / for the one of them shal be payde in redye money as the other shal ¶ Studēt That is trouth and yet there be many greate diuersities betwixte them in the lawe ¶ Doctoure I praye the shewe me some of tho diuersities ¶ Student Parte I shall shewe the / but I wot nat whether I can shew the al but fyrste thou shalte vnderstāde that one diuersitie is this Euery rente be it rente seruice / rente charge / or rēt seke / is goyng out of lande / but an annuite goth nat out of any lande / but chargeth onely the person that is to saye the grauntoure or hys heyres that haue assez by discente / or the howse if it be graunted by a howse of a religion to perceyue of theyr cofers Also of an annuyte there lyeth no accion but onely a writ of annuite agaynst the graūtour his heyres or successours / that writ of annuite lyeth neuer agaynste the pernoure but onely agaynste the grauntour or his heyres / but of a rente the same accions maye lye as do of lande as the case requyreth it lyeth somtyme of rente agaynste the tenaunte of the grounde / and somtyme agaynst the pernour of the rent / that is to saye agaynste hym that taketh the rent wrongefully / somtyme agaynst neyther as of a rente seruyce assise maye lye for the lorde agaynste the mesme and a dissesoure / or somtyme agaynste the mesne onely if he dyd also the disseason Also an annuite is neuer taken for an asses bycause it is no freholde in the law / ne it shal nat be put in execucion vpō a statute marchaunt / statute staple ne elegit as rente maye And bycause the sayde writte of entre laye nat in this case of this annuite And that it can nat be entēded in the law to be the same annuite / though it be of lyke summe with the annuite ne though the parties assented and mente to haue thesame annuite recouered by the sayde writte of entre / therefore the sayde recouerie is voyde in lawe and conscience / but if suche a recouerie be had of rente with a vouchere ouer than it shal be taken to be of lyke effecte as recoueries of landes be in suche maner as we haue treated of before ☞ The .v. question of the Student / concernynge tayled landes The .xxxi. Chapitre STudent If landes be gyuen to a mā and to his wyfe in the name of his ioyntoure by the father of the husbāde to haue and to holde to them and to the heyres of theyr two bodyes begotten / and after they haue issue the husbande dyeth and the wyfe alieneth the lande / against the statute of .xi. H. vii suffereth a recouerye thereof to be had agaynste her to the vse of the byer / and after her sone heyre apparaunte / that is heyre to the tayle releaseth to the recouerers by fyne dyeth hauynge a brother on lyue / and after the mother dyeth who hath righte to that lāde the byer or the brother of hym that released ¶ Doctoure what is thyne oppinion therein / I praye the shewe me ¶ Student We semeth that the byer hathe righte / for by the sayd statute made in the .xi. yere of kynge Henry the .vii. amonge other thynges it is enacted that if any man / whiche hath landes of the gyft of her husbande / or of the gyfte of any of the auncestoures of the husbande / suffre any recouerye thereof agaynste her by couyne / that than suche recouerye shall be voyde / and that it shal be lawfull to hym that shulde haue the lande after the dethe of the woman to entre and it to holde as in his fyrste righte / prouided alwaye that that statute shall nat extende where he that shulde haue the lande after the dethe of the woman is agreable to any suche alienacion or recouerye so that / that agremente be of recorde And for as moche as the heyre in this case agreed to the said recouerye by fyne / whiche is one of the hyest recordes in the lawe / it semeth that the byer hath righte agaynste that heyre that agreed and agaynste all that shal be heyres of the tayle / and that nat onely by the sayde recouery / but also by the sayde statute whereby the sayde recouerye with assent of the heyre is affermed ¶ Doctor Though the byer in this case haue righte during the lyfe of the heyre that released / yet neuertheles after his dethe his heyre as it semeth maye lawfully entre / for the agremēt wherof the statute speketh must as I suppose eyther be had before the recouery / or els at the tyme of the recouery for if a title by reason of the sayd statute be ones deuolute to the heyre in the tayle / than that right as it semeth can nat be extincte nor put awaye by the onely fyne of the heyre / no more than if he had dyed and the nexte heyre to hym had released to the byer by fyne / in whiche case the release coulde nat extincte the righte of the
no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hiÌ„ whether they wolde paye it or nat And therfore to be out of peryll it is necessarye that he paye it hym selfe / and than is he surely discharged agaynst all men ⧠The .x. question of the student The .xii. Chapitre ¶ STudent A man seased of certayne lande in his demeane as of fee / hathe issue two sones and dyeth seased / after whose dethe a straunger abateth / taketh the profytes / and after the eldest sone dieth without issue and his brother bringeth an assise of MortdauÌ„cestre as sone and heyre to his father nat makynge mencion of his brother and recouereth the lande with damages fro the deth of his father as he may wel by the lawe / whether iÌ„ this case is the yonger brother bounde in coÌ„science to pay to the executours of the eldest brother the value of the profytê of the sayd lande that belonged to the eldest brother in his lyfe or nat ¶ Doctour What is thyne opinion therin ¶ Student That lyke as the said profytes belonged of right to the eldest brother in his lyfe / and that he had full auctorite to haue released as well the ryghte of the sayd lande as of the sayd ê“fytê / whiche release shulde haue ben a clere barre to the yonger brother for euer That the ryght of the said damages whiche be in the lawe but a chatell / bylonge to his executoures and nat to the heyre / for no maner of chatell neyther reall nor parsonall shall nat after the lawe of the realme discende vnto the heyre ¶ Doctoure Thou saydest to the case next byfore / that it is nat of the lawe of reason that a man shall may make executours / and dispose his goodes by his wyll / and that the executoures shall haue the goodes to dispose but by the lawe of man / and if it be lefte to the terminacion of the lawe of man ThaÌ„ in suche cases as the lawe gyueth suche chatelles vnto the executoures / they shall haue good ryghte vnto them / and in suche cases as the lawe takethe suche chatelles frome them they bene ryghtfully taken frome them And therfore it is thoughte by many that if a man sue a wrytte of ryghte of warde of awarde that he hathe by his owne fee and dyeth hangynge the wrytte / and his heyre sue a resomons accordynge to the statute of Westmester seconde / and recouereth that in that case the heyre shal enioye the wardeshype agaynste the executoures / and yet it is but a chatel / and they take the reason to be bycause of the sayd estatute / and so myghte it be ordeyned by statute that all wardes shulde go to the heyres and nat to the executoures Ryght so iÌ„ this case syth the lawe is suche that the yonger brother shall in this case haue an assyse of Mort dauncestre as heyre to his father nat makynge any mencion of his elder brother recouer damages as well iÌ„ the tyme of his brother as in his owne tyme it appereth that the lawe gyueth the right of these damages to the heyre / and therfore no recompence ought to be made to the executoures as me semeth / and it is nat lyke to a wryt of Ayel where as I haue lerned iÌ„ Latyn syth our fyrste dialogue the demaundauÌ„t shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demauÌ„t though his Ayel ouer lyued his father must of necessite make his coÌ„ueyauÌ„ce by his father muste make hiÌ„ selfe sone heyre to his father cosyn heyre to his Ayel / therfore in that case if the father ouer liued the Ayel the abatour were bouÌ„den in coÌ„science to restore to the executours of the father the profytes reÌ„ne in his tyme / for no lawe taketh theÌ„ fro hiÌ„ / but otherwyse is iÌ„ this case as me semeth ¶ Student If the yonger brother in this case had entred into the lande without takyng any assyse of Mort dauncestoure as he myght if he wolde / to whome were the abatour than bounden to make restitucioÌ„ for those profytes as thou thynkest ¶ Doctour To the executours of the eldest brother / for iÌ„ that case there is no law that taketh them from them / and therfore the general grounde whiche is that al chatels shall go to the executoures holdeth in that case / but in this case that grounde is broken and holdeth nat for the reason that I haue made byfore / for comonly there is no general grounde in the lawe so sure but that it fayleth in some particuler case ⧠The .xi. question of the student The .xiii. Chapitre STudent A man seased of lande in fee taketh a wyfe / and after alieneth the lande and dyeth / after whose deth his wyfe asketh her dower and the aliene refuseth to assigne it vnto her / but after she asketh her dower agayne and he assigneth it vnto her / whether is the alme in this case bounde in conscience to gyue the woman damages for the profites of the land after her thyrde parte fro the dethe of her husbande / or fro the fyrst request of her dower or neyther the one nor the other ¶ Doct. what is the lawe in this case ¶ Student By the lawe the woman shall recouer no damagê / for at the comoÌ„ lawe the demauÌ„daunt iÌ„ a wrytte of dower shulde neuer haue recouered damages But by the statute of Marton yt is ordeyned that where the husband dyeth seased that the womaÌ„ shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / suche damagê as she hathe by the forberynge of it / but in this case the husbande dyed not seased / where fore she shall recouer no damages by the lawe ¶ Doctour yet the lawe is that immediately after the dethe of her husbande the wyfe ought of ryght to haue her dower yf she aske it thoughe her husbande died not seased ¶ Student That is trewe ¶ Doctoure And sithe she ought to haue her dower fro the dethe of her husbande yt semeth that she ought in coÌ„science to haue also the profytes fro the dethe of her husbande though she haue no remedy to come to them by the lawe / for me thynketh that that this case is lyke too a case that thou puttest in our fyrste dyalogue in latyn the xvii chapytre That if a tenaunte for terme of lyfe be dysseased dye / the disseasoure dyeth / and his heyre entreth and taketh the profytes / after he in the reuercyon recouereth the laÌ„dê against the heyre as he ought too do by the lawe / that in that case he shall recouer no damages by the lawe And yet thou dydest agree that iÌ„ that case the heyre is bounde in concience to pay the damages to the demaundaunt so me
thynketh iÌ„ this case that the feoffe oughte in coÌ„scyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too haue her dower ¶ Student Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaunde her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande whervnto any womaÌ„ hath tytle of dower hath good auctorytye as agaynste her to take the ê“fytes tyll she requyre her dower for euery womaÌ„ that demaundeth dower affermeth the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyoÌ„ she leueth the reuercyon alwey in him agaynst whome she recouereth thoughe he be a dysseasour bryngeth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he appere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / so he shall nat be receyued to do iÌ„ a wryt ofcosynage nether iÌ„ the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe iÌ„ this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the requeste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon ¶ Doctour As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is required / but whan he refuseth to assigne it than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe And fyrste as for the tyme after the refusell it appereth euidentely that whan he denied to assigne her dower he dyd agaynste conscieÌ„ce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully ought in conscience to yelde damages therfore And as to the defaute that thou assignest in her that she toke nat her accioÌ„ / that forceth lytel for accioÌ„s nede nat / but where the partie wyll nat do that he ought to do of ryght And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye theÌ„ / for whan he was requyred to assygne dower and refused It appereth that he neuer inteÌ„ded to yelde dower fro the begynnyng / so he is a wrong doer in his owne coÌ„science / and more ouer if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womaÌ„ bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat iÌ„ that case after thyne opinioÌ„ to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here ¶ Studente The cause in that case that thou haste put is for that the statute is general that the demauÌ„dauÌ„t shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the tenaunt maye nat saye that he is and hathe ben alway redy to yelde dower cÌ„ that the demaundaunt shall recouer damages fro the dethe of her husbande But in this case there is no law of the realme that helpeth for the damaundauÌ„t neyther comon lawe nor statut / forthermore though it myght be proued by his refusell that he neuer entended fro the deth of the husbande to assigne her dower yet that proueth nat / but that he had good ryght to take the ê“fites of her thyrde parte for the tyme as well as he had of his owne two partes tyl request be made as is afore sayd / and so me thynketh that nat withstandyng the denyer he is nat bounde to yelde damagê in this case but fro the tyme of the request / and nat for the tyme byfore ¶ Doctoure For this tyme I am content with thy reason ⧠The .xii. question of the student The .xiiii. Chapitre STudent A maÌ„ seased of certayne landê knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in coÌ„scieÌ„ce as he may do by the lawe ¶ Doctoure By this question it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght that his ryght shulde than be extyncted by the fyne in conscience ¶ Student ye verely / for thou dydest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth But if he that leuyeth a fyne and that wolde extyncte the ryghte of an other / knowynge that the other hathe more ryghte than he than I doute therin for I take thyne opinion in our fyrste dialogue to be vnderstaÌ„de in conscience where he that wolde extincte former ryghtes by suche a fyne with proclamacioÌ„ knoweth nat of any former tytle but for his more surety if any suche former ryght be he taketh the remedy that is ordeyned by the lawe ¶ Doctoure Whether dost thou meane in this case that thou puttest now that he that hath right knoweth of the fyne and wylfully lettethe the .v. yere pas without claime or that he knoweth nat any thynge of the fyne ¶ Student I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat ¶ Doctour I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a lytell sparyng and procede nowe for this tyme to some other question ⧠The .xiii. question of the student The .xv. Chapitre STudent A man seased of certayne landes in fee hath a doughter whiche is his heyre apparauÌ„te / the doughter taketh a
husbande and they haue issue the father deyeth seased / the husbande as sone as he hereth of his deth goeth towarde the lande to take possession / and byfore he can come there his wyfe dieth / whether ought he to haue the lande in cōscience for terme of his lyfe as tenaunt by the courtesie bycause he hath done that in hym was to haue had possession in his wyues lyfe so that he myght haue ben tenaunt by the courtesie accordynge to the lawe / or that he shall neyther haue it by lawe nor conscience ¶ Doctour Is it clerely holdē in the law that he shall nat be tenaunt by the curtesy in this case bycause he had nat possession in dede ¶ Student ye verely / and yet vpō a possessiciō in lawe a womā shal haue her dower / but no man shal be tenaunte by the curtesie of lāde without his wyfe haue possession in dede ¶ Doctoure A man shal be tenaunt by the curtesie of a rent thoughe his wyfe dye byfore the day of payment / in lyke wyse of an aduowson thoughe she dye byfore the auoydaunce ¶ Studente That is trouthe / for the olde custome and maxime of the lawe is that he shall be so / but of lande there is no maxime that serueth hym but his wyfe haue possession in dede ¶ Doctour And what is the reason that there is suche a maxime in the lawe of the rent and of the aduowson rather thā of lande / whan the husbāde doth as moche as in hym is to haue possessiō and can nat ¶ Studēt Some assigne the reason to be bycause it is impossible to haue possession in dede of the rent or of aduouson byfore the daye of payment of the rent / or byfore the auoydaunce of the aduouson ¶ Doct. And so is impossible that he shal haue possession in dede of lande if his wyfe dye so sone that he maye nat by possibilitie come to the lande after her fathers dethe / and in her lyfe as this case is ¶ Student The lawe is suche as I haue shewed the byfore and I take the verey cause to be for that there is a maxime serueth for the rent and the aduouson / and nat for the landes as I haue sayd byfore / and as it is sayd in the viii chapitre of our fyrst dialogue / it is nat alwaye necessarie to assigne a reason or cōsideraciō why the maximes of the lawe of Englande were fyrst ordeyned and admitted for maximes / but it suffisethe that they haue ben alwaye taken for lawe and that they be neyther cōtrarie to the lawe of reason nor to the lawe of god as this maxime is nat / and therfore if the husbande in this case be nat holpen by cōscience he can nat be holpen by the lawe ¶ Doctour And if the lawe helpe hym nat cōscience can nat helpe hym in this case / for conscience must alwaye be grounded vpon some lawe / and it can nat in this case be groūded vpon the lawe of reason nor vpon the lawe of god / for it is nat dyrectely by those lawes that a man shal be tenaūt by the curtesy / but by the custome of the realme And therfore if that custome helpe hī nat he can nothyng haue in this case by conscience / for conscience neuer resysteth the lawe of mā nor addeth nothynge to it / but where the lawe of man is in it selfe dyrectly against the lawe of reason or els the lawe of god / and than properly it can nat be called a lawe but a corrupcion / or where the generall groundes of the lawe of man worketh in any particuler case agaynste the sayd lawes as it may do / and yet the lawe good as it appereth in diuerse places in our fyrst dialogue in latyne / or els where there is no lawe of man prouided for hym that hathe ryghte to a thynge by the lawe of reason or by the lawe of god And than somtyme there is remedy gyuen to execute that in cōscience / as by a Sub pena but nat in all cases / for somtyme it shal be referred to the consciēce of the partie / and vpon this grounde that is to saye that whan there is no tytle gyuen by the comon lawe that there is no tytle by conscience There be diuerse other cases wherof I shall put some for an example As if a reuercion be graunted vnto one / but there is none attournement / or if a newe rente be graunted by worde with out dede there is no remedy by conscience oneles the sayd grauntes were made vpon consideracions of money or suche other And in lyke wyse where he that is seased of landes in fee simple maketh a wyll therof / the wyll is voyde in conscience bycause the grounde seruethe nat for hym wherby the conscience shulde take effecte / that is to saye / the lawe / and if the tenaunte make a feoffement of the lande that he holdeth by priorite and taketh estate agayne and dyeth his heyre within age the lorde of whome the lande was fyrst holden by prioritie shall haue no remedy for the body by conscience / for the lawe that fyrste was with hym / is nowe agaynste hym / and therfore cōsciēce is altered in lyke wyse as the lawe altereth / and diuerse and many cases lyke be in the lawe that were to long to reherce nowe And thus me thynketh that if the lawe be as thou sayest the husbande ī this case hathe neyther ryght by the lawe nor conscience ⧠The .xiiii. question of the student The .xvi. Chapitre STudent A rent is graunted to a man ī fee to perceyue of two acres of land / and after the graūtour enfeoffeth the grauntee of one of the sayd acres / whether is the hole rente extyncte therby in conscience as it is in the lawe ¶ Doctour Thy case is somwhat vncertayne / for it appereth nat whether the grauntour enfeoffed hym on truste or that he gaue the acre to hym of his mere mocion to the vse of the sayd feoffe / or els that the feoffement was made vpon a bargayne / and if it were but onely a feoffement of truste / than I thinke the hole rent abydeth in conscience though it be extyncted in the lawe / and fyrste that it continueth in that case in conscience / for that parte that the grauntee hathe to the vse of the grauntour / it is euidente / for he may nat take the profytes of the lande / and it is agaynste conscience that he shulde lese bothe / and in lyke wyse it abydeth ī cōscience for the acre that remayneth in the handes of the grauntour thoughe it be extyncte in the lawe / for there was a defaute in the grauntoure that he wolde make the feoffement to the grauntee as well as ther was in the grauntee to take it And it is no conscience that of his owne defaute he shulde take so great auayle to be discharged of the hole rent seynge that
feoffour was seased iÌ„ that case to his owne vse I shall shewe the afterwarde The seconde case is this A man maketh a feoffement in fee / and it is agreed vpon the feoffement that the feoffe shal pay a yerely reÌ„t to a strauÌ„ger / and if he pay it nat that thaÌ„ the straunger shall entre into the lande In this case I sayd as it appereth in the sayd .xxi. Chapitre / that if the feoffe payed nat the rent that the straunger shuld haue the vse of the lande thoughe he maye nat by the rules of the laÌ„de entre into the laÌ„de / the diuersite bytwene the cases me thynkethe to be this In the fyrste case it apperethe as I haue sayd byfore in the sayde xx Chapitre / that the feoffour myght lawfully reentre by the lawe for nat payment of the rent / and than whaÌ„ he entred accordynge he by that entre auoyded the fyrste lyuery of season / in so moche that after the reentre he was seased of the lande of lyke estate as he was byfore the feoffemente And soo remaynethe noo thynge / whervpon the straunger myght grounde his vse / but onely the bare graunte or entente of the feoffour whaÌ„ he gaue the land to the feoffe vpon condicion that he shulde pay the rente to the straunger / and if nat / that it shulde be lawful to the straunger to entre / for the feoffement is auoyded by the reentre of the feoffour as I haue sayd byfore / and as I sayd in the last Chapitre as I suppose a nude or bare graunte of hym that is seased of lande is nat sufficiente to begynne an vse vpon ¶ Doctour A bare graunte maye chaunge an vse as thou thy selfe agredest in the last Chapitre why thaÌ„ may nat an vse as well begyn vpon a bare graunt ¶ Student Whan an vse is iÌ„ Esse he that hathe the vse may of his mere mocion gyue it awaye if he wyll without recompence as he myght the lande if he had it in possession / but I take it for a grounde that he can nat so begynne an vse without a lyuerey of season or vpon a recompence or bargayne / that there is suche a grouÌ„d in the lawe that it maye nat so begynne it appereth thus / it hath ben alwaye holden for lawe that if a man make a dede of feoffement to a nother and delyuer the dede to hym as his dede / that in that case he to whome the dede is delyuered hath no tytle ne medelynge with the lande afore lyuerey of season be made to hym but only that he may entre and occupie the laÌ„de at the wyll of the feoffour / and there is no boke saythe that the feoffour in that case is seased there of byfore lyuerey to the vse of the feoffe And in lykewyse if a man make a dede of feoffement of two acres of lande that lye in two shyres intendyng to gyue them to the feoffe and maketh lyuerey of season in the one shyre nat in the other / in this case is it comonly holden in bokes that the dede is voyde to that acre where no lyuerey is made excepte it lye within the viewe saue onely that he maye entre occupie at wyl as is aforsayde / and there is no boke that sayth that the feoffe shulde haue the vse of the other acre / for if an vse passed therby than were nat the dede voyde to all intentes / and yet it apperethe by the wordes of the dede that the feoffour gaue the landes to the feoffe / but for lacke of lyuerey of season the gyfte was voyde and some thynketh it is here without lyuerey of seasoÌ„ be made accordynge But in the seconde case of the sayd two cases the feoffe may nat reentre for non payment of the rente / and so the fyrste lyuerey of season continueth and standeth in effecte / and thervpon the fyrste vse maye wel begynne take effecte in the straunger of the lande whaÌ„ the rent is nat payed vnto hym accordynge to the fyrst agrement And so me thynketh that in the fyrst case the vse is determined by cause the lyuerey of season where vpon it coÌ„menced is determined / and that in the seconde case the vse of the lande taketh effecte iÌ„ the straÌ„ger for nat paymeÌ„t of the reÌ„t by the grauÌ„t made at the fyrste lyuerey whiche yet continueth in his effecte / and this my thiÌ„keth is the diuersite bytwene the cases ¶ Doc. yet natwithstandyng the reason that thou haste made me thynketh that if a man seased of landes makethe a gyfte therof by a nude promyse without any lyuerey of season or recompeÌ„ce to hym made and grauÌ„t that he shal be seased to his vse that thoughe that ê“myse be voyde in the lawe that yet neuertheles it muste holde and stande good in conscience and by the lawe of reason / for one rule of the lawe of reason is / that we may do nothynge against the trouthe / and syth the trouthe is that the owner of the grounde hathe graunted that he shall be seased to the vse of the other that grauÌ„t muste nedes stande in effecte or els there is no trouth in the grauntour ¶ Student It is nat agaynste the trouthe of the grauÌ„tour in this case thoughe by that graunte he be nat seased to the vse of the other / but it proueth that he hathe grauÌ„ted / that the lawe wyll nat waraunt hym to graunte / wherfore his graunte is voyde But if the grauntour had gone ferther and sayd that he wolde also suffre the other to take the ê“fites of the landes without let or other interupcion / or that he wolde make hiÌ„ estate in the lande whan he shulde be requyred / than I thynke in those cases he were bouÌ„den in conscience by that rule of the lawe of reason that thou hast remembred to perfourme them / if he intended to be bounden by his ê“myse / for elles he shulde go agaiÌ„st his owne trouthe and agaynste his owne ê“myse But yet it shal make no vse in that case / nor he to whome the promyse is made shall haue no accion in the lawe vppon that promyse althoughe it be nat perfourmed / for it is called in the lawe a nude or a naked promyse And thus me thynkethe that in the fyrste case of the said two cases the graunte is nowe auoyded in the lawe by the reentre of the feoffoure / feoffour / and that the feoffour is nat bounden by his graunte neyther in lawe nor coÌ„science but that iÌ„ the secoÌ„d case he is bouÌ„d / so that the vse passethe froÌ„ hym as I haue sayd byfore ¶ Doctoure I holde me content with thy conceite for this tyme / but I pray the shewe me somwhat more at large what is taken for a nude coÌ„tracte or a naked promyse in the lawes of EnglaÌ„de / and where an accion maye lye there vpon and where nat ¶ Student I wyll with good wyll say as me thynketh
¶ Student I wyll with good wyll ⧠Whether an abbot may with coÌ„scieÌ„ce present to an aduouson of a churche that beloÌ„geth to the house without assente of the couent The .xxvi. chapitre DOctour It appereth iÌ„ the chapitre Eanoscitur de hus que fiunt a prelates / the whiche chapitre is recited in the summe called Summa angelica in the title abbas the .xxvii. article that he maye nat without any costume or any speciall priuilege do helpe there iii. Student Trouthe it is that there is suche a decretale / but they that be lerned in the lawe of Englande holde that decretale byndeth not in thys realme / and thys is the cause why they do holde that oppynyon By the lawe of the realme the hole disposicion of the laÌ„des and goodes of the abbey is the abbot only for the tyme that he is abbot not in the couent / for they be but as deed persones iÌ„ the lawe therfore the abbot shall sue be sued onely without the coueÌ„t do homage fealtie atturne make leases preseÌ„t to aduousons onely in his owne name / they saye farther that this aucthoritie can not be taken fro hym but by the lawe of the realme / and so they say that the makers of that decretale excedyd theyr power wherfore they say it is not to be holden in conscience / no more than if a decre were made that a lease for terme of yeres or at wyll made by the abbot withoute the coueÌ„te shuld be immedyatly voyde / so they thynke that the abbot may iÌ„ thys case preseÌ„t iÌ„ his owne name without offeÌ„ce of coÌ„science by cause the sayd decretale holdeth nat iÌ„ this realme ¶ Doctoure But many be of oppynyoÌ„ that no man hath aucthorytye to present in ryght and conscience to any benefice with cure but the pope or he that hath his aucthorytye thereiÌ„ deriuied fro the Pope for they saye that for as moche as the Pope is the vycar general vnder god hath the charge of the soules of all people that be in the floke of Christes churche it is reasoÌ„ that syth he cannat ministre to all ne do that is necessarie to all the people for theyr soule helthe in his owne persoÌ„ that he shall assygne deputyes for his dyscharge iÌ„ that behalfe / bycause patrons clayme to present to churches in this realme by theyr owne ryght without tytle deriuied fro the Pope they saye that they vsurpe vpon the popes authoritie / therfore they conclude that thoughe the abbot haue title by the lawe of the realme to present iÌ„ this case iÌ„ his owne name that yet bycause that title is against the popes prerogatiue that that title ne yet the lawe of the realme that mayntenyth that tytle holdeth not iÌ„ coÌ„scyence And they say also that it belongeth to the lawe canon to determine the ryght of pÌ„sentmeÌ„t of benefices for it is a thynge spirituall and belongeth to the spirituall iurisdiccioÌ„ as the depryuacioÌ„ fro a benefice doth so they saye the sayd decretale biÌ„deth iÌ„ coÌ„scyeÌ„ce thoughe iÌ„ the lawe of the realme it binde nat ¶ StudeÌ„t As to thy fyrste coÌ„sideracion I wolde ryght well agre that if the patroÌ„s of churches in this realme claymed to put encumbentes in to suche churches as shulde fall voyde of theyr patronage without pÌ„seÌ„ting them to the bysshop or if they claymed that the bhysshop shold admit suche encumbent as they shulde present without any examinacion to be made of his abylite in that behalfe / that that clayme were agaiÌ„st reasoÌ„ and coÌ„scyeÌ„ce for the cause that thou hast rehercyd but for as moche as the patroÌ„s iÌ„ thê realme clayme no more but to pÌ„sent theyr encuÌ„bentes to the bisshop theÌ„ the bysshop to examin the abylitie of the encumbeÌ„t / if he fynde hym by the examinacyoÌ„ nat able to haue cure of soule / he theÌ„ to refuse hiÌ„ the patrone to preseÌ„t another that shal be able / if he be able thaÌ„ the bisshop to admit hiÌ„ iÌ„stitute hiÌ„ iÌ„ducte him I thiÌ„ke that this clayme theyr pÌ„sentemeÌ„tes therupon stande with good reason and coÌ„scyence / and as to the seconde consideracyoÌ„ it is holden in the lawes of the realme that the right of preseÌ„tement to a churche is a temporall enherytauÌ„ce shall desceÌ„de by course of enheritauÌ„ce fro heyre to heyre as laÌ„des tenementes shall shall be takeÌ„ as an asses as laÌ„des tenemeÌ„tes be for the tryall of the ryght of patronages be ordeyned iÌ„ the lawe diuers accyoÌ„s for theÌ„ that be wroÌ„ged in that behalfe as writtes of ryght of aduouson Assises of â—aren presentement Quare impedit diuers other / whiche alwaye withoute / time of mynde haue ben pledyd in the kynges courtes as thinges preteyning to his crowne roiall dygnytie / and therfore they saye that in this case his lawes ought to be obeyed in lawe and conscience ¶ Doctoure If it come in variaunce whether he that is so pÌ„sented be able or nat able be whome shall the abilitie be tried ¶ StudeÌ„t if the ordinarie be nat partie to the accyon it shall be tried be the ordinarie / and if he be partie it shall be tryed be the metropolitane ¶ Doctoure Than the lawe is more reasonable in that poynt than I thought it had ben but iÌ„ the other poynt I will take aduisement in it tyll a nother tyme / and I pray the shewe me thy mynde in thê poynt if an abbot name his couent with hym in his presentacyon doth that make the pÌ„sentacion voyde in the lawe or is the presentacyon good that nat withstaÌ„ding ¶ Student I thynke it is nat voyd therfore but the namyng of theym is voyde a thyng more thaÌ„ nedeth / for if the abbot be disturbed he muste brynge hys accion in hys owne name withoute the couente ¶ Doctoure Then I perceyue well that it is nat prohibit in the lawe of Englande but that the abbot may name the couent iÌ„ his presentacion with hym / and also take theyr assent whom he shall presenet if he wyll / and then I holde it the surest waye that he so do / for in so doynge he shall nat offeÌ„de nother in lawe nor coÌ„scieÌ„ce ¶ Student To take the asseÌ„t of the coueÌ„t whome he shall presente and to name them also in the presentacyon / knowynge that he may do otherwyse bothe iÌ„ lawe and conscience if he will / is no offeÌ„ce But if he take theyr assent or name them with hym in the presentacyon thinkynge that he is so bounde to do in lawe and conscyence / settyng a coÌ„science where none is / and regareth nat the lawe of the realme that wyll dyscharg his conscyence in this behalfe if he will so that he present an able man as he maye do without theyr assent / there is an erroure and offence of conscynce in the abbot And in lyke wise if the abbot preseÌ„t iÌ„ his owne name / and therfore the couent
/ but this must be alway excepte that if at the fyrste auoydaunce that shal be after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thaÌ„ the kyng by his prerogatiue shall haue the presentement And at the nexte auoydauÌ„ce the eldest syster so by turne But it is to vnderstande that if after the dethe of the comon auÌ„cestre the churche voydeth the eldest syster presented togyder with another of the systers / the other systers euery one iÌ„ theyr owne name or togyder that in that case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name And in this case where the patrones varye in presentement the churche is nat properlye sayd letigiouse so that the ordinarie shuld be bouÌ„de at his perill to directe a writte to enquere de Iure patronatus for that writ lieth where two presente by seuerall titles / but these patroÌ„s present all in one title / therfore the ordinarie maye suffre it to passe if he wyll in to the laps / this maner of presentemeÌ„tes muste be obserued in this realme in lawe conscience ☞ Howe loÌ„ge tyme the patron shal haue to presente to a benefice The .xxxi. Chapitre DOctoure Thê questioÌ„ is asked iÌ„ SuÌ„ma aÌ„gelica iÌ„ the title Ius patronaâ—ê° the .xvi. article / there it is aÌ„swered that if the patron be a lay maÌ„ that he shall haue .iiii. monethes / if he be a clerke he shall haue .vi. monethes ¶ Student And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / I se no reason why a clerke shulde haue more respite than a lay maÌ„ but rather the contrary ¶ Doctour Fro what tyme shal the .vi. monethes be accoÌ„pted ¶ StudeÌ„t That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession the .vi. monethes shal be coÌ„pted fro the dethe of the encumbent / or fro the creacion / or cession / wherof the patron shal be coÌ„pelled to take notice at his peryll / if the voydance be by resignacion or depriuacion than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion ¶ Doctoure what if he haue knowlege of the resignacion or depriuacion nat by the bisshope but by some other / shall nat the syxe monethes begyn thaÌ„ fro the tyme of that knowlege ¶ Student I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope ¶ Doctoure An vnion is also a cause of voydaunce howe shall the .vi. monethes be rekened there ¶ StudeÌ„t There can no Vnion be made but the patrons muste haue knowlege / it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioiÌ„tly or by tunre one after another as the agrement is vpon the vnioÌ„ / sythe the patron is priuy to the auoidaÌ„ce is nat ignorante of it the .vi. monethes shal be accompted fro the agremente ¶ Doctour I se well by the reason that thou haste made in this chapitre that ignoraunce soÌ„tyme excuseth in the lawe of Englande / for in some of the sayde auoydaunces it shall excuse the patrones as it appereth by thy reasons aboue / in some it shal nat / wherefore I pray the shewe me somwhat where ignoraÌ„ce excuseth in the lawe of Englande where nat after thyne oppinion ¶ Student I wyll with good wil here after do as thou sayste if thou put me in remembrauÌ„ce thereof But I wolde yet moue the somwhat ferther in suche questions as I haue moued the before / concernyng the diuersities betwene the lawes of EnglaÌ„de other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience of many persons to be reformed to be brought in to one oppinion bothe amonge spirituall teÌ„porall / as it is in the case where doctours holde opinion that the statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyueÌ„ in to mortmayne / they say also that byquestes gyftes to the churche muste be determined after the lawe canon nat after the lawes statutes of lay meÌ„ / so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comoÌ„ persones / bere more fauoure in giftes to the churche than to other / the law of the realme beholdeth the thyng that is gyuen pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right beloÌ„geth in this realme to the kynges lawes whether it be to spirituall maÌ„ or teÌ„poral / to the churche or to other / so is greate diuisioÌ„ in thê behalfe whan one preferreth his opinioÌ„ another his / one this iurisdiccion / another that that as it is to fere more of singularitie thaÌ„ of charite wherfore it semeth that they that haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience before other to loke to this matter to do that in them is in all charitie to haue it reformed / nat beholdynge the teÌ„porall iurisdiccion nor spirituall iurisdiccion but the comon welthe quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisioÌ„ were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall teÌ„porall be ordered ruled by one lawe as to teÌ„porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme. ¶ Doctoure Than I praye the procede to another question as thou sayst thy mynde is to do ¶ Student I wyll with good wyll ☞ If a man be excoÌ„menged / whether he may in any case be assoyled without makynge satisfaccioÌ„ The .xxxii. Chapitre STudent In the summe called SuÌ„ma rosella in the title absolucio quarta the seconde article it is sayd that he that is excoÌ„municate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / that they offende
the mayster shal be charged by his seruaÌ„te or deputie / or by them that be vnder hym in any office / where nat / than I enteÌ„de to touche some other thynges where the mayster after the lawes of the realme shal be charged by the acte of his seruaunte in other cases nat concernynge offices where nat ⧠Fyrst if a man be committed to warde vpon arrerages of accompte the keper of the prysoÌ„ suffereth hym to go at large thaÌ„ an accioÌ„ of det shall lye agaynst hym And if he be nat sufficient than it lieth agaynst hym that committed the pryson vnto him that is by reason of the statute of West in the .ii. the .xi. Chapitre ⧠Also if Baylyfes of frauncheses that haue returne of writtes make a false returne the partie shall haue auerment against it as well of to litle yssues as of other thynges as well as he shall haue agaynste the Sheryfe / but all the punisshemente shal be onely vpon the bayly nat vpon the lorde of the fraunchese / that dothe appere by the statute made in the fyrste yere of kynge Edwarde the .iii. the .v. chapitre But if an vnder Sheryfe make a returne where vpoÌ„ the sheryfe shal be amercied there the hyghe sheryfe shal be amercied for the returne is made expressely in his name But if it be a false returne where vpon an accion of disceyt lieth in that case it may be brought agaynst the vnder sheryfe / se therof the statute that is called StatutuÌ„ de male returnantibus breuia ⧠Also if the kynges butteler make deputies he shall auswere for his deputies as for hym selfe As appereth in the statute made in the .xxv. yere of kynge Edwarde the thyrde De prodicionibus the .xxi. Chapitre ⧠Also in the statute that is called statutum scaccaru it is enacted amonge other thynges that no officer of the eschequer shall put any clerke vnder hym but suche as he will answere for And for as moche as the statute is general it semeth that he shall answere as well for an vntrouthe in any suche clerke as for an ouer sighte ⧠Also in the .xiiii. yere of kynge Edwarde the thyrde the .ix. chapitre it is enacted that all Gayles shal be adioyned agayne to the shyres / that the sheryfe shall haue the kepynge of theÌ„ / that the sheryfe shall make suche vnder gardeyns for the which they wil answere And neuerthelesse I suppose that if there be an escape by defaute of the Gayler that the kynge may charge the Gayler if he w l. But it is no dout but he may charge the sheryte by reason of his statute it he will / But if it be a wilfull escape in the Gayler whiche is felonye in him the sheryfe shall nat be bouÌ„de to answere to that felonye ne none other but the Gayler hym selfe and they that assented to hym ⧠Also if a man haue a shyrefwyke / constableship / or bayly wyke in see / wherby he hath the kepynge of prysoners / if he lette any to repleuyn that be nat repleuisshable thereof be attaynt / he shall lefe the office cÌ„ And if it be an vndersheryfe / constable / or baylyfe that hath the kepyng of the pryson that doeth it without knowelege of the lorde he shall haue enprysonement by iii. yeres / after shal be raunsomed at the kynges will / as appereth in the statute of WestmÌ„ the fyrst the .xv. chapitre And so it appereth that in this case he that is the lorde of the pryson is nat bounde to aunswere for the offence of them that haue the rule of the prysoÌ„ vndre hym but that they shall haue the punisshment them selfe for theyr misdemeanoure ♣ Also there is a statute made iÌ„ the .xxvii. yere of kyng Edwarde the .iii. the .xix. chapitre is called the statute of the Staple whereby it is ordeyned that no marchauÌ„t ne none other man shall nat lese theyr goodes for the trespas or forfayte of theyr seruantes / onelesse it be by commaundement of his mayster / or that the offende in the office that his mayster hath put hym in / or els that the mayster shal be bounde to answere for the dede of his seruaunte by the lawe marchaunte / as in some place it is vsed ⧠Also it is enacted in the .xiiii. yere of kyng Edwarde the .iii. the .viii. chapitre that wapentakes and hundredes that be seuered frome the counties shal be adioyned agayne vnto them / and that if the sheryfe holde theÌ„ in his owne handes that he shal put in theÌ„ suche baylyfes that haue landes sufficieÌ„t / for the whiche he wyll answere / and that if he let them to ferme that they be let to the auncient ferme / but after it is prohibited by the statute of the .xxiii. yere of kynge Henry the .vi. the .x. chapitre That no sheryfe shall let his baylywykes nor wapentakes â—o ferme And so whan they be ones in the sheryfes owne handes the sheryfe putteth in baylyfes they be but as vnder baylyfes to the kyng the sheryfe the hyghe baylyfe / they in maner the sheryfes seruauÌ„tes put in onely by hym And therfore by the sayd statute of kynge Edwarde the .iiii. He shall answere for them if they offende in theyr office / but if the sheryfe let them to ferme thaÌ„ though the sheryfe offende the stature in that doynge / yet whether he shal be charged for theyr misdemeanor in the office or nat is a great doubte to some men / for they saye that this statute is onely to be vnderstaÌ„de where the baylywykes be in the sheryfes handes but here they be nat so / ne the baylyfes be nat his seruaÌ„tes but his fermours And therfore they saye that if the sheryfe shal be charged for them It is by the comoÌ„ lawe nat by the statute aforesayd ⧠Also in the .ii. yere of kyng Henry the .vi. the .xiiii. chapitre it is enacted that officers by patente in euery court of the kyng that by vertu of theyr office haue power to make clerkes iÌ„ the sayd courtes shal be charged sworne to make suche clerkes vnder theÌ„ for whome they will answere ⧠Also the Hospitelers Templers be prohibit that they shall holde no plee that byloÌ„geth to the kynges courtes vpoÌ„ payn to yelde damages to the party greued to make raunsome to the kynge / that the superiours shall answere for theyr obedieÌ„ces as for theyr owne dede WestmÌ„ the .ii. the xliii Chapitre ⧠Also the sergeaunt of the caterye shall satisfie all the dertes / damages / an execucions that shal be recouered agaynste any that is purueyour or achatour vnder hym that offende agaynst the statute of .xxxvi of Edwarde the thyrde / or agaynste thys statute of .xxiii. of HeÌ„ry the .vi. In case that the purueyour or achatour be nat sufficieÌ„t cÌ„ And the party pleyntyfe shall haue a Scire facias agaynst
the sayd sergeaunte in this case to haue execucion as appereth in the .xxiii. yere of kyng Henry the .vi. the fyrste Chapitre ⧠Also if a man be sent to pryson vpon a statute marchaunt by the Mayre / before whome the recognisaunce was taken / and the Gayler wyll nat receyue hym he shall answere for the det if he haue where with / if nat than he shall answere that committed the Gayler to hym / as appereth in the statute called the statute marchaunte ⧠Also if outrageous tolle be taken in a towne marchāt / if it be the kynges towne let to seeme the kynge shall take the fraunchese of the market into his handes And if it be done by the lorde of the towne the kynge shall do ī like wyse And if it be done by the baylyfe vnknowynge the lorde he shall yelde agayne as moche as he hath taken / shall haue enprysonmēt of .xl. days And so it appereth that the lord in this case shall nat answere for his bayly Westm̄ the fyrst the .xxx. chapitre And in all the cases before reherced where the superiour is charged by the defaut of hym that is vnder hī he in whose defaut his superiour is so charged is bounde in conscience to restore him that is so charged through his defaut Excepte the case before reherced of the hospitelers / for all that the obediencer hathe is the superiours if he wyll take it And therfore what recompence shal be made by the obeciencer in that case is all at the wyll of the superiour And nowe I entende to shewe the some perticuler cases where the mayster after the lawes of the realme shal be charged by the acte of his seruaūt / baylyfe / or deputie / where nat / so for to make an ende of this chapitre ⧠Fyrst for trespas of batery or of wrōg full entre into lādes or tenementes ne yet for felony or murdre the mayster shall nat be charged for his seruaūte / oneles he dyd it by his commaundement ⧠Also if a seruaunt borowe money ī his maysters name the mayster shall nat be charged with it oneles it come to his vse that by his assente / and the same lawe is if the seruaunte make a contracie in hys maysters name / the contracie shall nat binde his mayster oneles it were by his maysters commaundement or that it came to the maisters vse by his assent But if a mā sende his seruaunt to a fayre or market to bye for hym certayne thynges / though he cōmaunde hym nat to bye them of no mā in certayne the seruaūt do he according the mayster shal be charged / but if the seruaunt in that case bye thē in his owne name nat spekynge of his mayster the maester shall nat be charged onelee 〈…〉 bought come to his vse ⧠Also if a man sende his seruant to the market with a thynge which he knoweth to be defectiue to be solde to a certayne mā he selleth it to hym there an accion lieth agaynst the mayster / but if the mayster biddeth hym nat selle it to any persone in certayne but generally to whome he cā And he selleth it accordyng there lieth no acciō of disceyt agaynste the mayster ⧠Also if the seruant kepe the maysters fyre necligētly / wherby his maysters house is brent his neyghbours also / there an accion lieth agaynst the mayster But if the seruaunte bere fyre necligently in the strete therby the house of a nother is brēned / there lyeth no accion agaynste the mayster ⧠Also if a man desyre to logge with one that is no comon hostiler one that is seruāte to hym that he lodgeth with robbeth his chamber / his mayster shal nat be charged for that robbynge / but if he had ben a comon hostyler he shulde haue ben charged ⧠Also if a man be gardeyn of a pryson wherin is a man that is condempned in a certayne somme of money / another that is in pryson for felonye a seruaunt of the gardeyn that hathe the rule of the pryson vnder hym wylfully letteth them bothe escape in this case the gardeyn shal answere for the det shall pay a fyne for the escape of the other as for a neclygent escape and the seruaunt onely shal be put to answere to the felonye for the wylful escape ¶ Also if a mā make a nother his generall receyueure / that receyuoure receyuith money of a credytoure of his mayster makyth hym an acquytaunce and after payeth nat his maister yet that payment dyschargeth the credytoure but yf the credytoure had takē an acquytaunce of hym without payeng hym any money that acquytaunce onely were no barre to the mayster / onles he made hym recyueour by wrytynge and gaue hym aucthoritie to make acquytaunces / and than that aucthorytye must be shewed And yf the creby four ī suche case by agrement bytwene the receyuoure hym deliuer to the receyuour a horse or an other thynge ī recompence of the dete that delyuery dyschargeth nat the credytour onles yt be delyuered ouer vnto the mayster and he agre to it For the receyuoure hath no suche power to make no suche cōmutacion but his mayster gyue hym speciall cōmaūdement therto ⧠Also if a seruaunte shewe a creditoure of his mayster that his mayster sence hym for his money / he payeth it vnto hym / that payment dischargeth hym nat if the mayster dyd nat sende hym for it in dede / except that it come after vnto the vse of the mayster by his assent ⧠Also if a man make a baylyfe of a maner after the lorde of whome the maner is holden graunted the seygnoury to another the baylyfe after payeth the rente vnto the graunt that payment of the rent countreuayleth no attournant thoughe it were by fyne / ne shall nat bynde his mayster tyll he atturne him selfe / but if the lord of whome the lande is holden dye seased of the seynoury the baylyfe payeth the rent to the heyre of the lorde that is a good season to the heyre though the baylyfe had no commaundement of his mayster to pay it For it belongeth to his office to paye rentes seruice but nat rentte charge as some men saye ⧠Also an encrochemente by the baylyfe shall bynde the mayster in auowry if he had no commaundementte of the mayster to paye it ⧠Also if there be lorde Mesne tenaunt the renaunte holdeth of the Mesne as of his maner of D the Mesne maketh a baylyfe And after the tenaunt maketh a feoffement the feoffe rendeth notice to the baylyfe he accepteth his rente with the arrerages / this notice shall nat bynde the lorde ne compell hym to alter his auowry / for the office of a baylyfe stretcheth nat therto but he muste haue there in a speciall commaundement of his mayster Also if a seruaunt ryde on his maysters horse to do an erraunt for his mayster
haue no couÌ„sayle / thaÌ„ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ„ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌ„ce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌ„science / for there is no lawe that byndeth them to iÌ„structe hym / but as they do comoÌ„ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌ„cell / if the appelle be pore haue no couÌ„cell the court muste assigne hym couÌ„cell if he aske it as they muste do iÌ„ all other plees / that me thynketh they are bouÌ„de to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ„ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌ„cell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌ„t hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌ„g of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ„ perciall / therfore as wel for the indeÌ„pnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌ„cell / but whaÌ„ that a maÌ„ is indicted at the kynges sute / the kiÌ„ge inteÌ„deth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌ„g them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâ—te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌ„sayle wyll be coÌ„tented And so there is no daunger therby neyther to the couâ—â— ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ„ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre â—oytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ„ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌ„iecture or informacioÌ„ I thynke they mighte nat then byd hym pleade at his peryll ☞ The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ„ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ„ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌ„t It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌ„ge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌ„tye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ„ conscieÌ„ce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ„ shuld haue a nother maÌ„nes laÌ„de no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌ„deth with conscience bycause it is ordeyned for ministracioÌ„ of iustice / but I caÌ„ nat ê‘ceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ„ law of wrecke of the see / that is to say that if a maÌ„nes goodes had beÌ„ wrecked vpoÌ„ the see that the goodes shuld haue ben iÌ„mediatly forfayted to the kyng And it is holdeÌ„ by all doctors that that law is agaiÌ„st coÌ„science except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he