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
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
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
rayle / nor the righte of entre that is gyuen by the statute / so as me semeth his nexte heyre maye therefore entre ¶ Student As I perceyue all thy dowte is in this case bycause the assent of the heyre was after the recouerie / for if it hadde ben at the tyme of the recouerie as if the heyre had ben vouched to warrantye in the same recouerie and he had enterred and thereupon the Iugemente had be gyuen thou agreest well / that that recouerye shulde haue auoyded the tayle for euer ¶ Doctoure That is true for it is in the expresse wordes of the statute / but whan the assente is after the recouerye / than me thynketh it is nat so / ne that the right of the fyrste tayle / whiche was reuyed by the sayde statute shall nat be extincte by his fyne / no more than it shall in other tayles ¶ Student I wyll be aduised vpon thy opinion in this mater / but yet one thynge wolde I moue ferther vpō this statute and that is this Some saye that by this statute all other recoueries that haue ben had / ouer and beside these recoueries of 〈◊〉 be affermed / for they say that syth the parliamēt at the makīg of this statute / knewe well that many other recoueries were than vsed and had to defete tayles and that it was lyke that they wolde so continue / which neuertheles the parliament dyd nat prohibite for the time to come as it dyde the sayde recoueries of ioyntours that it is therefore to suppose that they thought that they shulde stāde with lawe and consciēce but bycause iointoures were made rather for the sauynge of the inheritaunce of the husbande / than to destroy the inheritaunce / they say that the parliament thought and adiuged the alienacions and recoueries of suche ioyntours to be agaynste the lawe and consciēce and nat the alienacion of other landes entayled / for if they had they say / that the parliament wolde haue aduoyded recoueries of tayled landes generally aswell as it dyd of recoueries of ioyntoures ¶ Doctoure As to that opinion I wyll answere the thus for this tyme / that though that the makers of the sayde estatute onely put awaye recoueries of ioyntoures / and nat other recoueries that yet it can nat be taken therfore that theyr entent was that the other recoueries shulde stande good and perfite / for they speke thā onely of ioyntours bycause there was no complaynte made in the parliament at that tyme / but agaynst recoueries had of ioyntours / and therfore it semeth that they intended nothynge concernynge other recoueries but that they shulde be of the same effecte as they were byfore and no otherwyse And that will appere more playnly thus / though the makers of the sayd estatute entended to put awaye and adnull suche recoueries as shulde be made of ioyntours after a certayne day limitted in the statute / that yet they entended nat to aduoyde ne afferme suche recoueries of ioyntours as were passed byfore that tyme if they intended nat to aduoyde ne afferme the recoueries had of ioyntoures byfore that tyme than howe can it be taken that they intended to put awaye or afferme other recoueries that were passed byfore that tyme and nat of ioyntours / that wolde nat afferme ne put awaye recoueries passed of ioyntoures byfore that time And so as it semeth they intended to spare the multitude of them that were passed of bothe and nat to comforte any to take them after that tyme. ¶ Student I am contente thy oppinion stande for this tyme / and I wyll aske the another question ☞ The .vi. question of the Student / concernynge tayled landes The .xxxii. Chapitre STudent If tenaunt in tayle be disseased / and dye and an auncestre collaterall to the heyre in tayle release with a warrauntye and dye / and the warrātye descendeth vpō the heyre in the tayle / whether is he thereby barred in conscience / as he is in the law ¶ Doctour Bycause our principall intēt at this tyme is to speke of recoueries and nat of warrāties and also bycause it hath ben of longe tyme takē for a principall maxime of the law that it shuld be a barre to the heyre as well that claymeth by a fee simple as by a state tayly / and for that also that it was nat put away by the sayde statute of westminster the .i. which ordayned the tayle I wil nat at this time make the an answere then / but will take a respite to be aduised ¶ Student Than I praye the yet or we departe shewe me what was the moste principall cause that moued the so moue this question of recoueries had of tayled landes ¶ Doctour This moued me thereto / I haue perceyued many tymes that there be many dyuers oppinions of those recoueries whether they stande with conscience or nat / that it is to dowte that many persones rē into offence of conscience thereby And therefore I thought to fele thy mynde in them whether I coulde perceyue that it were clere / that they serued to breke the tayle in lawe conscience / or that it were clerely agaynste conscience so to breke the the tayle / or that it were a mater in dowt and if it appered a matter in dowte / or that it appered that the matter were vsed clerely agaynste conscience / than I thoughte to do somwhat to make the mater appere as it is to the intent that they that haue the rewle and the charge ouer the people as well the spirituall men as temporall men / shulde the rather endeuer them to se it reformed for the common welth of the people / as well in bodye as in soule For whan any thynge is vsed to the displesure of god / it hurreth nat onelye the body but also the soule And tēporall rewlers haue nat onely cure of the bodyes / but also of the soules / and shall answere for them if they perysshe ī theyr defaute and bycause it semeth by the more apparaunt reason that the tayles be nat brokē ne fully auoyded by the sayd recoueries / that yet neuertheles the great multitude of thē that be passed is righte moche to be pondered Therefore it were very good to prohibite them for tyme to come / to put awaye suche ambiguities and dowtes as ryse now by occasion of the sayde recoueries / and so they be but as snares to deceyue the people / and so wyll they be as longe as they be suffered to continue And me thynketh verily that it were therfore right expediēt that tayled landes shulde from hensforthe eyther be made so stronge in the lawe that the tayle shulde nat be brokē by recouerie fyne with proclamacion collaterall warrantye nor otherwyse / or els that all tayls shulde be made fee simple / so that euery man that liste to sell his lande mighte sell it by his bare feoffement and without any scriple or gruge of conscience thā
the waste ¶ StudeÌ„t ye verely ¶ Doct. And what is the lawe of tenantes for tme of lyfe or for tme of yeres if they do waste ¶ Student They be punysshable of wast by the statute shall yelde treble damagê / but at the comon lawe before that statute they were nat punysshable ¶ Doctour But whether thynkest thou that before that statute they myght haue done waste with conscieÌ„ce bycause they were nat punysshable by the law StudeÌ„t I thynke nat / for as I take it the doyng of the wast of suche particuler tenantes for terme of lyfe / for terme of yeres / or of tenantes in dower / or by the curtesye is prohibite by the lawe of reason / for it semeth of reason that whan suche leases be made / or that suche tytles in dower or by the curtesy be gyuen by the lawe that there is onely gyueÌ„ vnto them the annuall ê“fites of the lande and nat the houses trees the grauel to dygge cary away / wherby the hole ê“fite of them in the reuercion shulde be taken away for euer And therfore at the comon lawe for waste done by tenant in dower or tenant by the curtesy there was punysshemeÌ„t ordeyned by the lawe by a ê“hibicion of waste wherby they shulde haue yelded damages to the value of the waste But agaynst tenant for terme of lyfe or for tme of yeres lay no suche ê“hibicion / for there was no maxime iÌ„ the lawe therin agaynst them as there was agaynste the other And I thynke the cause was for as moche as it was iuged a folye in the lessour that made suche a lease for terme of lyfe / or for terme of yeres that at the tyme of the lessee he dyd nat prohibite them that they shulde nat do waste / and sythe he dyd nat prouide no remedye for hym selfe the lawe wolde none ê“uide But yet I thynke nat that the intent of the lawe was that they myght lawfully with good coÌ„scieÌ„ce do waste / but agaynst tenantes in dower by the curtesye the lawe prouided remedy for they had theyr tytle vy the lawe Do. And verely me thynketh that this tenant in tayle as to doyng of waste / shuld be lyke to a tenaunt for terme of lyfe / for he shall haue the lande no lenger than for terme of his lyfe no more thaÌ„ a tenant for terme of lyfe shall / and the waste of this tenant is as great hurte to hym in the reuercion or remayndre / as is the waste of a tenant for terme of lyfe and if he alyene / the donoure shall entre for the forfeyture as he shall vpon the alyenacion of a tenant for terme of lyfe / and if he make defaute in a Precipe ê™ reddat the donour shal be receyued as he shal be vpon the defaute of a tenant for terme of lyfe / and therfore me thynketh he shal also be punysshable of wast / as tenant for terme of lyfe shall ¶ Student If he alyen the donour shal entre / as thou sayst bycause that alyenacion is to his disheritance / and therfore it is a forfeyture of his estate and that is by an auncient maxime of the lawe that gyueth that forfeyture in that selfe case / and if he make defaute in a PrecÌ„ ê™ redd he in the reuercion / as thou sayest shal be receyued / but that is by the statute of West .ii. for at the comon lawe ther was no suche receyt / and as for the statute that gyueth the accion of waste agaynst a tenant for terme of lyfe and for terme of yeres it is a statute penall shall nat be taken by equite / so there is no remedy gyuen agaynste hym / neyther by comon lawe nor by statute / as there is agaynste tenant for terme of lyfe / therfore he is vnpunysshable of waste by the lawe ¶ Doctour And thoughe he be vnpunysshable of waste by the lawe yet neuerthelesse me thynketh he maye nat by conscieÌ„ce do that / that shal be hurtefull to the inheritaunce after his tyme / sythe he hathe the lande but for terme of his lyfe no more than a tenaunte for terme of lyfe may / for than he shulde do as he wolde nat be done to / for thou agreest thy selfe that thoughe a tenaunt for terme of lyfe was nat punysshable of wast before the statute that yet the lawe iuged nat that he myght ryghtfully with good conscieÌ„ce do wast And therfore at this day if a feffement be made to the vse af a man for terme of lyfe / thoughe there lye no accion agaynst hym for waste / yet he offendeth conscience if he do waste as the tenaunte for terme of lyfe dydde afore the statute whan no remedye lay agaynste hym by the lawe ¶ Stud. That is true / but there is great diuersite bytwene this tenant a tenant for terme of lyfe for this tenaunt hath good authorite by the donour to do waste / so hathe nat the tenaunte for terme of lyfe / as it is sayd before For the estate of a tenaunt in tayle after possibilite of yssue extyncte is in this maner Whan landes be gyuen to a man to his wyfe and to the heyres of theyr two bodyes begotten / and after the one of them dyeth without heyres of their bodyes begotten / than he or she that ouerlyueth / is called tenant in tayle after possibilite of yssue extyncte / bycause there can neuer by no possibilite be any heyre that may inheryte by force of that gyfte And thus it apereth that the donees at the tyme of the gyfte receyued of the donour estate of enheritance / which by possibilite might haue continued for euer / wherby they had power to cut downe trees to do all thiÌ„ge that is wast / as tenant iÌ„ fee simple myght and that authorite was as stronge in the lawe as if the lessour that maketh a lease for terme of lyfe say by expresse wordes in the lease that the lesse shall nat be punysshable of waste And therfore if the donour in this case had graunted to the donees that they shulde nat be punisshable of wast that graunt had ben voyde bycause it was included in the gyfte before as it shulde be vpon a gyfte in fe simple so for as moch as by the fyrste gyfte and by the lyuere of season made vpon the same the donees had authorite by the donour to do waste Therfore though the one of the donees be nowe deed without yssue / so that it is certayne that after the dethe of the other the lande shall reuerte to the donour / yet the authorite that they had by the donour to do waste coÌ„tinueth as longe as the gyfte and the lyuerey of season made vpon the same coÌ„tinueth and I take this to be the reason why he shal nat haue in ayde as tenaunt for terme of lyfe shal / that is to say / for that he can nat aske helpe of that maxime
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
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
helde by .xii. d. rente the heyre in the yere folowynge shall paye that .xii. d. for his reÌ„t / other .xii. d for his relyef And that relyefe he muste paye though he be within age at the deth of his auncestre ⧠Also there is an olde law custome in this realme that a freholde by way of feffement gyfte or lease passeth nat without lyuery of season be made vpoÌ„ the laÌ„de according though a dede of feffemeÌ„t be therof made deliuered but by way of surrendre particion eschauÌ„ge a freholde maye passe without liuery ⧠Also if a maÌ„ make a wyll of laÌ„de wherof his is seased iÌ„ his demesne as of fee / that wyll is voyde / but if it had stande in feffes handes it had ben good And also in London suche a wyll is good by the custome of the cytie if it be inrowled ⧠Also a lease for terme of yeres is but a chatel in the lawe / therfore it may passe without any liuery of season / but otherwise it is of a state for terme of lyfe for that is a freholde in the law / therfore lyuerey muste be made therof or els the freholde passeth nat ⧠Also by the olde custome of the realme a man may distreyne for a rent seruice of coÌ„mon right And also for a rent reserued vpoÌ„ a gifte in tayle / a lease terme of lyfe / of yeres at wyll / in suche case the lorde may distreyne the tenauntes of beestes as soon as they come vpoÌ„ the grouÌ„de / but the beastê of strauÌ„gers that come iÌ„ but by maner of an escape / he may nat distreyne tyll they haue beÌ„ leuaÌ„t couchaÌ„t vpoÌ„ the grouÌ„de but for dette vpoÌ„ an obligacioÌ„ nor vpoÌ„ a contracte / nor for accompte ne yet for arerages of accoÌ„pte / nor for no maner of trespasse / reparacions / nor suche other no man may distreyne ⧠Also by the olde law custome of the realme all yssues that shal be ioyned betwixte partie partie in any court of recorde within the realme except a fewe wherof it nedeth nat to treate at thê tyme / must be tryed by .xii. fre lawfull meÌ„ of the visne that be nat of affinitie to none of the parties And in other courtes that be nat of recorde / as in the countye / court baron / hundred suche other lyke / they shal be tryed by the other of the ê“tyes nat other wyse oneles the partyes assente that it shal be tryed by the homage And it is to be noted that lordes / Barons / all pyers of the realme be excepted out of suche trialles if they wyll / but if they wyll wylfully be sworne therin / some say it is no erroure And they may if they wyll haue a writte out of the Chauncerie directed to the Shyryfe coÌ„maundynge hym that he shal nat impanell them vpon no enqueste And of this that is saydbefore it appereth that the customes aforesayd nor other lyke vnto theÌ„ / wherof be very many in the lawes of Englande can nat be proued to haue the strenght of a law onely by reasoÌ„ for how may it be proued by reason that the eldest sone shall onely enherite his father the yoÌ„ger to haue no parte / or that the husbaÌ„de shall haue the hole laÌ„de for terme of his lyfe as tenaunt by the courtesye in suche maner as before appereth And that the wyfe shall haue onely the thyrde parte in the name of her dower / that the husbande shall haue all the goodes of his wyfe as his owne And that if he dye lyuynge the wyfe / that his executours shall haue the goodes / nat the wyfe All these suche other can nat be proued onely by reason that it shulde be so no otherwyse all though they be reasonable / that with the custome theriÌ„ vsed suffiseth in the law And a statute made agaynst suche generall customê ought to be obserued because they be nat merely the law of reason ⧠Also the law of ê“pretie is nat the law of reason / but a law of custome how be it that it is kept / is also right necessarie to be kept in all realmes amoÌ„ge all people And so it may be noÌ„bred amoÌ„ge the generall customes of the realme And it is to vnderstande that there is no statute that treateth of the begynnyng of the sayd customes ne why they shulde beholden for law And therfore after theÌ„ that be lerned in the lawes of the realme the olde custome of the realme is the onely sufficiente auctoritie to them in that behalfe And I pray the shewe me what doctours holde therin / that is to say whether a custome onely be sufficient auctoritie of any lawe ¶ Doctoure doctours holde that a law grouÌ„ded vpon a custome is the moste surest law / but this muste always vnderstaÌ„de therwith that such a custome is nother coÌ„trarie to the lawe of reason / nor to the law of god And now I pray the shewe me somwhat of the maxymes of the lawe of Englande wherof thou haste made mencioÌ„ before in the .iiii. chapitre ¶ StudeÌ„t I wyll with good wyll ☞ Of the .iiii. grounde of the lawe of Englande The .viii. Chapitre STudent The .iiii. grouÌ„de of the law of EnglaÌ„de standeth in diuers principles that be called in the lawe maximes / the which haue ben always takeÌ„ for law iÌ„ this realme / fo that it is nat lawfull for none that is lerned to denye them / for euery one of those maximes is sufficiente auctoritie to hym selfe And whiche is a maxime / whiche nat shall alway be determined by the Iuges / nat by .xii. men And it nedeth nat to assigne any reason / why they were fyrste receyued for maximes for it suffiseth that they be nat agaiÌ„st the law of reason nor the law of god / and that they haue alway be taken for lawe And suche maximes be nat onely holden for law / but also other cases lyke vnto theÌ„ all thynges that necessarily foloweth vpoÌ„ the same / ar to be reduced to lyke law And therfore moste coÌ„meÌ„ly there be assigned some reasons or coÌ„sideracion why suche maximes be resonable to the intente that other cases lyke may the more conueniently be applyed to them And they be of the same strength effect in the law as statutes be And though the generall custome of the realme be the strength warraunte of the sayd maximes as they be of the generall customes of the realme / yet because the sayd generall customes be in maner knowen throughe the realme as well to them that be vnlerned as lerned / may lightly be had knowen and that with lytell studye And the sayd maximes be onely knoweÌ„ in the kynges courtes or amoÌ„ge them that take great studie in the lawe of the realme / amonge fewe other persones Therfore they be set in this writtynge for seuerall groundes he that
the grouÌ„de of the sayde processe is to be referred onely to the maximes customes of the realmes And I haue shewed the these maximes before reherced / nat to the inteÌ„t to shew the specially what is the cause of the law in theÌ„ / for that wolde aske a great respite / but I haue shewed them onely to the inteÌ„t that thou mayste perceyue that the sayde maximes other lyke may conueniently be sette for one of the groundes of the lawes of Englande / moreouer there be diuers cases / wherof I am in doute whether they be onely maximes of the lawe or that they be grounded vpoÌ„ the law of reason / wherin I pray the let me here thyn opinion ¶ Doctoure I pray the shewe those cases that thou meanest I shall make the answere therin as I shall se cause ☞ Hereafter foloweth diuers cases wherein the Student douteth whether they be onely maximes of the law or that they be grounded vpon the lawe of reason The .ix. Chapitre STudeÌ„t The law of EnglaÌ„de is that if a man coÌ„maunde another to do a trespasse he doth it / that the coÌ„mauÌ„dour is a trespasser And I am in doute whether that be onely by a maxime of the law / or that it be by the law of reason ⧠Also I am in doute vpon what law it is grounded that the Accessory shall nat be put to answere before the principal cÌ„ ⧠Also the lawe is that if an Abbot bye a thyng that commeth to the vse of the howse dyed that his successours shal be charge / I am somwhat in doute vpon what grounde that lawe dependeth ⧠Also that he that hathe possession of lande though it be by disseason hath right agaynste all men / but agaynste hym that hath ryghte ⧠Also that if an accion reall be sued agaynste any man that hath nothyng iÌ„ the thynge demaunded he writte shall abate as at the coÌ„mon lawe ⧠Also that the alienacioÌ„ of the tenauÌ„t hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman take an husbaÌ„de hangyng the writ / that the writ shall nat abate ⧠Also if lande rent that is goyng out of the same laÌ„de come in to one maÌ„nes haÌ„de of lyke estate lyke suertye of tytle / the rent is extincte ⧠Also if lande discende to hiÌ„ that hath right to the same lande before / he shal be remitted to his better tytle if he wyll ⧠Also if two tytles be concurraÌ„t togyther / the eldest tytle shal be preferred ⧠Also that euery man is bounde to make recompence for suche hurte as his beastes shall do in the corne or grasse of hys neyghboure though he knowe nat that they were there ⧠Also if the drmaundauÌ„t or playntyfe hangynge his writte wyll entre in to the thynge demauÌ„ded this writte shall abate And it is many tymes very harde and of great difficultie to knowe what cases of the lawe of Englande be grounded vpon the law of reason / what vpon custome of the realme / thoughe it be harde to discusse it yet is very necessary to be knoweÌ„ for the knowele of the parfyte reason of the lawe / if any man thynke that these cases before reherced be grounded vpon the lawe of reason / then he maye referre them to the fyrste grounde of the lawe of Englande whiche is the lawe of reason / wherof is made mencion in the .v. Chepi And if any man thynke that they be grouÌ„ded vpon the law of custome / then he may referre them to the maximes of the lawe / whiche be assigned for the thyrde grounde of the law of Englande / wherof mencion is made in the .viii. Chapitre as before appereth ¶ Doctoure But I praye the shewe me by what auctoritie is it proued in the lawes of EnglaÌ„de that the cases that thou haste put before in the .viii. Chapitre / and suche other whiche thou callest maximes oughte nat to be denyed / but ought to be taken as maximes / for sythe they can nat be proued by reason as thou agreest thy selfe they can nat / they may as lightly be denied as affermed onles there be some sufficient auctoritie to approue theÌ„ ¶ Student Many of the customes maximes of the lawes of Englande be knowen by the vse and the custome of the realme so apparantly that it nedeth nat to haue any law written therof / for what nedeth it to haue any law written that the eldest sone shall enherite his father / or that all the doughters shall enherite togyther as one heyre / if there be no sone / or that the husbande shall haue the goodes chatels of his wyfe that she hath at the tyme of the spouselles or after / or that a bastarde shall nat enheryte as heyre / or that executours shall haue the disposicion of all the goodes of theyr testatoure if there be no executours that the ordinarie shall haue it / that the heyre shall nat medled with the goodes of his auncestre but any particuler custome helpe hym The other maximes customes of the law that be nat so openly knowen amonge the people maye be knowen partly by the lawe of reason partly by the bokes of the lawes of EnglaÌ„de called yeres of termes / partly by diuers recordes remaynynge in the kynges courtes in his tresorie And specially by a boke that is called the regestre / also by diuers statutes wherin many of the sayde customes / maximes be ofte resited / as to a diligeÌ„t sercher wyll euideÌ„tly appere ☞ Of the .v. grounde of the lawe of Englande The .x. Chapitre STudent The .v. grouÌ„de of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / lordshyppes in this realme / the whiche ê‘ticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaiÌ„st the sayde generall customes or maximes of the law yet neuertheles they stande in effecte and be taken for law / but if it ryse iÌ„ question in the kynges courtes whether there be any suche ê‘ticuler custome or nat it shal be tryed by .xii. men / nat by the Iuges / except the same particuler custome be of recorde in the same courte Of whiche particuler customes / I haue hereafter noted some for an example ⧠Fyrste there is a custome in KeÌ„t that is called Bauelkynde / that al the bretherne shall enherit togyther as systers at the common lawe ⧠Also there is another particuler custome / that is called burgheÌ„glisshe wher the yoÌ„ger sone shall enheryte before the eldest that custome is in Notynghame ⧠Also there is a custome in the cytie of LoÌ„don that fre meÌ„ there / may by theyr testameÌ„t inrouled byqueth theyr laÌ„des that they be seased of to whome they wyll / except to mortmayn And if they be cytizieÌ„s
fre men / then they may also byqueth laÌ„des to mortmayne ⧠Also in gauelkynde though the father be hanged the sone shal enheryt / for theyr custome is the father to the bough / the son to the ploughe ⧠Also in some countres the wyfe shall haue the halfe of the husbandes landes in the name of her dowrye as longe as she lyueth sole ⧠Also in some couÌ„tre the husbaÌ„de shall haue the halfe of the enheritauÌ„ce of hê wyfe / though he haue no yssue by her ⧠Also in some couÌ„tre an Infante when he is of the age of .xv. yere maye make a feoffement / and the feoffement good And in some countre when he can mete an elle or clothe ∴ ☞ Of the .vi. grounde of the lawe of Englande The .xi. Chapitre STudent The .vi. grouÌ„de of the lawe of EnglaÌ„de standeth in dyuers statutes made by our soueraygne lord the kynge his progenitours / by the lordes spiritual temporall / the coÌ„mons in diuers parlyamentes in suche cases where the law of reason / the law of god / customes / maximê / ne other grouÌ„des of the law semed nat to be sufficieÌ„t to punysshe euyll meÌ„ / to rewarde good meÌ„ And I remeÌ„bre nat that I haue sene any other grouÌ„des of the law of EnglaÌ„de / but onely these that I haue before remeÌ„bred Furthermore it appereth of that I haue sayd before that oft tymes two or thre grouÌ„des of the lawe of EnglaÌ„de must be ioyned togyther / or that the playntyfe caÌ„ open declare his right / as it may appere by thê example If a maÌ„ entre in to another maÌ„nes lande by force after maketh a feffemeÌ„t for maiÌ„tenauÌ„ce to defraunde the pleyntyfe froÌ„ his accion In this case it appereth that the sayd vnlawfull entre is ê“hibite by the law of reason / but the playntyfe shall recouer treble damages / that is by reason of the statute made in the .viii. yere of kyng Henry the .vi. the ix Cha. And that the dammages shal be seased by .xii. men that is by the custome of the realme And so in this case .iii. grouÌ„des of the law of Englande mayntene the playntyfes accion And so it is in diuers other cases that nede nat to be remeÌ„bred now thus I make an ende for this tyme / to speke any ferther of the groundes of the lawe of Englande ¶ Doctoure I thaÌ„ke the for the greate payne that thou haste takeÌ„ therin / neuertheles for as moche as it appereth that thou haste sayde before that the lerned men of the lawe of Englande pretende / to veryfie that the law of Englande wyll nothynge do / ne attempte agaynst the law of reason / nor the law of god / I pray the aÌ„swere me to some questioÌ„s grouÌ„ded vpoÌ„ the law of EnglaÌ„de howe as the thynketh the law may staÌ„de with reason or coÌ„scieÌ„ce in theÌ„ ¶ StudeÌ„t Put the case I shal make answere theriÌ„ as well as I can ☞ The fyrst question of the Doctoure of the lawe of Englande and conscieÌ„ce The .xii. Chapitre DOctoure I haue harde say / that if a man that is bouÌ„de in an obligacioÌ„ paye the money but he taketh no acquitaunce or if he take one it happeneth hiÌ„ to lese it / that in that case he shall be compelled by the lawes of Englande to paye the money agayne / howe maye it be sayd then / that that law staÌ„deth with reason or conscience / for as it is grounded vpon the law of reason that dettes ought of right to be payde / so it is grouÌ„ded vpon the law of reason as me semeth that wheÌ„ they be payde that he that payed them shulde be discharged ¶ Student Fyrste thou muste vnderstande that it is nat the law of EnglaÌ„de / that if a maÌ„ that is bouÌ„de in an obligacion pay the money without acquitaunce / or if he take acquitauÌ„ce lese it that therfore the law determineth that he ought of right to paye the money eftesones / for that lawe were bothe agaynste reason conscience / but trougth it is that there is a generall maxime in the lawe of Englande / that in an accion of dette sued vpon an obligacion / the defendaunt shall nat plede that he oweth nat the money / ne can in no wyse discarge hiÌ„slefe in that accion / but he haue acquitaunce or some other writtynge sufficiente in the lawe or some other thynge lyke / witnessynge that he hath payde the money / that is ordayned by the law to auoyde a great inconuenience that els myght happen to come to many people that is to say that euery maÌ„ by a nude paroll and by a bare auerment shulde auoyde an oblygacyon / wherfore to auoyde that inconuenience the law hath ordayned that as the defendauÌ„t is charged by a sufficieÌ„t writting / that so he must be discharged by sufficieÌ„t writtynge / or by some other thynge of as hygh auctoritye as the obligacion is And though it may folowe thervpon that in some particuler case a man by occasion of that generall maxime may be compelled to pay the money agayne that he payde before / yet neuertheles no defaute can be therfore assigned in the law For lyke as makers of lawes take hede to suche thynges as maye oft fall / and do moste hurte amonge the people rather theÌ„ to particuler cases So in lykewyse the generall groundes of the lawe of Englande / hede more what is good for many / then what is good for one singuler person onely And because it shulde be a hurte to many / if an obligacion shulde be so lightly auoyded by worde Therfore the law specially preueÌ„teth that hurte vnder suche maner as before appereth And yet intendeth nat / nor commauÌ„deth nat that the money of ryghte ought to be payde agayne / but setteth a general rule / whiche is good and necessary to all the people / that euery man maye well kepe / without it be through his owne defaute / if suche defaut happen in any persone / wherby he is without remedie at the common lawe yet he may be holpen by a Subpena / so he maye in many other cases where conscieÌ„ce serueth for hym / that were to loÌ„ge to reherce now ¶ Doctour But I praye the shewe me vnder what maner a maÌ„ may beholpen by conscience And whether he shal be holpeÌ„ in the same courte or in an other ¶ Student Because it can nat be well declared where a maÌ„ shal be holpen by conscience where nat / but it be fyrst knowen what conscience is therfore because it perteyneth to the moste proprelye / to treate of the nature and qualitie of conscience / therfore I praye the that thou wylte make me some brief declaracion of the nature qualitie of conscieÌ„ce and then I shall answere to thy question as well as I caÌ„ ¶ Doctour I wyll with good wyll do as thou sayste / to the inteÌ„t that thou mayste the
partie Also where there can be had no sufficieÌ„t prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌ„scieÌ„ce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌ„ce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌ„dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌ„s after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌ„scieÌ„ce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌ„science so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌ„scieÌ„ce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌ„cion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌ„science for of suche a lawe made by man coÌ„scieÌ„ce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌ„de of a lawe made by man coÌ„maundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌ„science and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌ„sideracion punysshe hym that dothe it / but leuyth it onely to his coÌ„science And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌ„scieÌ„ce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌ„science to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌ„scieÌ„ce to the halfe ê“fittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌ„science / for the lawe neyther wyllyth ne coÌ„maundyth that one shulde take all the ê“fittes / but leuyth it to theyr coÌ„science so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌ„ce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌ„science all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌ„scieÌ„ce / but the lawe is nat to be lefte for conscience ☞ Addicion ⧠Also many men thynke that if a man haue laÌ„de that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ„ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌ„scieÌ„ce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
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
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that coÌ„science shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat grouÌ„ded vpoÌ„ the lawe of reason / but vpoÌ„ the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condicioÌ„s made vpoÌ„ lande shuld be voyd And whaÌ„ a condicioÌ„ is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter ☞ The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamacioÌ„ be leuyed accordynge to the statute no clayme made within .v. yeres cÌ„ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ StudeÌ„t that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a coÌ„mon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeiÌ„te of title in the landes tenemeÌ„tes comprised in the fyne / It semeth that that fyne extiÌ„cted the title of all other / as well in conscieÌ„ce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. ☞ A questioÌ„ made by the Doctour / how certayne recoueries that be vsed iÌ„ the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whaÌ„ a man that is seased of laÌ„des in the tayle selleth the lande That it is coÌ„monly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaiÌ„st the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundauÌ„tes shall suppose in theyr writte declaracion that the tenaÌ„t hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupoÌ„ the sayde tenaunte in tayle shall appere in the court by coueÌ„ by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle iÌ„ the same terme at that day by assent couen of the partyes / he shall make defaulte vpoÌ„ whiche default bycause it is a default in despite of the court / the demaundauntê shall haue iugemeÌ„t to recouer agaynst the tenaunt in tayle / he ouer in value agaiÌ„st the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with conscieÌ„ce that as it semeth aloweth fauoureth suche fayned recoueries ¶ StudeÌ„t If the tenaÌ„t in tayle sel the laÌ„de for a certayn suÌ„me of money as is agreed betwixte them at suche a pryce as is coÌ„monly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth LeuiticeÌ„ xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the laÌ„de that is gyueÌ„ to him to
fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ Studēt To that some answere say that whan the lande is solde a recouery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto whereupō foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warraūte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ Studēt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cōceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficiēt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge Hēry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whā the parliamēt gaue to suche recouerers auctorite to aduowe iustifie for suche rētes customes seruices as they recouered / that the entēt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue thē suche power / that the parliament shulde els be takē in maner as fortifiers of wrōg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
of a statute shal be taken ferther than the expresse letter stretcheth / but yet there may no entent be taken agaynst the expresse wordes of the statute / for that shulde be rather an interpretacion of the statute than an exposicioÌ„ it can nat be reasonably taken / but that the inteÌ„t of the makers of the statute was that the lande shuld remayne continually in the heyres of the tayle as longe as the tayle endureth / there can no ioyntour be made neyther by dede nor be recouerye / but that the tayle must therby be discontinued / therfore this case of ioyntoure is not lyke to the sayd cases of tenant in dower or tenauÌ„t by the courtesie / for the title of dowrye of tenaunty by the curtesye groweth moste specially by the continuauÌ„ce of the possessioÌ„ in the heyres of the tayle but it is nat so of ioyntoures / therfore by the onely dede of the tenaunte in tayle / there maye no Ioyntour be lawfully made agaynste the expresse wordes of the statute And if there be any made by waye of recouerye / than it semeth that it muste be put vnder the same rewle as other recoueryes muste be of landes intayled ☞ The thyrde question of the Student / concernynge tayled landes ⸫ The .xxix. Chapitre STudent If IohnÌ„ at noke beyng seased of landes in fee of his mere mocioÌ„ make a feoffement of a certayne landes to the inteÌ„t that the feoffes shall therof make a gyfte to the sayde Iohan at noke to haue to him and to his heyres of his body and they make the gyft accordinge And after the sayd Iohan at noke falleth in to dette / wherefore he is taken put in pryson / and therupon for payment of his dettes he selleth the same lande / and for suertye of the byer he suffereth a recouerie to be had agaynst hym in suche maner as byfore appereth / whether standeth that recouerye with conscience or nat ¶ Docto r I wolde here make a litell digression to aske the another question or that I made answere to thyne that is to say to fele thy mynde howe that lawe by the whiche the body of the dettoure shal be taken caste in to pryson there to remayne tyll he haue payde the dette maye stande with conscieÌ„ce specially if the haue nothynge to paye it with / for as it semeth if he wyll relinquisshe his goodes / whiche in some lawes is called in laten Cedere bonis that he shall nat be inprysoned / and that is to vnderstande moste specially if he be fallen in to pouertye and nat through his owne defaute ¶ Student There is no lawe in this realme that the defendaunt may in any case Cedere bonê / and as me semeth if there were suche a lawe it shulde nat be indifferent / for as to the knowlege of hym that the money is owynge to the dettoure mighte Cedere bonis / that is to saye relinquisshe his goodes / and yet retayne to him selfe secretely greate ryches And therefore that lawe in suche case semeth more indiffereÌ„t and rightouse that committeth suche a dettour to the conscieÌ„ce of the plaiÌ„tyfe to whome the money is owynge thaÌ„ that coÌ„mitteth hym to the coÌ„science of hiÌ„ that is the dettour / for in the dettour some defaute maye be assigned / but in hym to whome the money is owynge maye be assinged no defaut ¶ Doctour But if he to whome the dette is owinge / knoweth that the dettoure hath nothyng to pay the det with / that he is falleÌ„ in to that pouertie by some casualtie And nat throughe his owne defaute / doth the lawe of Englande holde that he maye with good conscience kepe the dettour styll in pryson tyll he be payde ¶ Student nay verily but it thinketh more resonable to appoynt the libertie the iugement of conscience in that case to the dette than to the dettoure / for the cause byfore rehersed And than the dette / if he knowe the trouthe is as thou haste sayde bounde in conscience to lett hym go at lybertie though he be nat compellable thereto by the lawe And therfore admittynge it for this tyme / that the law of EnglaÌ„de in this poynt is good iuste I pray the that thou wilte make answere to my question ¶ Doctour I wyll with good wyll / therfore as me semeth for as moch as it appereth that the sayd gyft was made of the mere liberte fre wyll of the said Iohan at noke / without any recompeÌ„ce that therefore it can nat be otherwyse taken / but that the intent of the sayde IohaÌ„ at noke as well at the tyme of the sayd feoffement / as at the tyme that he receyued agayne the sayd gyfte in the tayle / was that if he happened afterwardes to falle in to pouertie / that he might alyen the sayd laÌ„de to releue hym with / for howe may it be though that a man wyll so moche pondre the welthe of his heyre / that he wyll forget hym selfe / so it semeth that nat onely the sayde recouerye standeth with conscience but also that if he had made onely a feoffement of the lande that that feoffement shulde be in conscience a good barre of the tayle / but if the sayd feoffement and gyfte had ben made in consideracioÌ„ of any recompence of money or for any matrimony or suche other / than the feoffemente of the sayd Iohan at noke shulde nat bynde his heyre / and if he than suffred any recouerye thereof than that recouerye shulde be of lyke effecte as other recoueries whereof we haue treated byfore / the whiche I sayd it was good to fauour rather for theyr multitude than for the conscience the same lawe is that if the sonne and the heyre of the sayd Iohan at noke in case that the sayde gyfte was made without recompence alyen the lande for pouertye after the deth of his father that recouerye byndeth nat but as other recoueries do / for it caÌ„ nat be thought that the enteÌ„t of the father was that any of his heyres in tayle shulde for any necessite dissherite all other heyres in tayle that shuld come after hym but for hiÌ„ selfe me thinketh it is resonable to iuge in suche maner as I haue sayd byfore ¶ Student And though the intent of the sayde Iohan at noke whan he made the sayde feoffement / and whan he toke agayne the sayde gyfte in tayle were that if he fell in nede that he mighte alien yet I suppose that he maye nat alien though percase for the more suerte he declared his intent to be suche vpon the lyueries of season for that intente was contrary to the gyfte that he frelye toke vpon hym and whan any intent or condicion is declared or reserued agaynst the state that any maÌ„ maketh or accepteth than suche an inteÌ„t or condicion is voyde by the lawe as by a case that hereafter foloweth wyll appere / that is to
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
haue the rent in coÌ„science shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am coÌ„tent with thy conceyte in this matter for this tyme. ⧠The .xvi. question of the student The .xviii. Chapitre STudent A vylleyne is graunted to a maÌ„ for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec ¶ Doctour Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hiÌ„ his landes and goodes and put his body in prysoÌ„ if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so to hym ¶ Sudent That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bisshoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe haue seased the landes and goodê of theyr vylleyns therby and cal it theyr ryght enheritaunce so to do that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with conscieÌ„ce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made ¶ Doctour Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes that the vylleyne purchaseth in fee to hym and to his heyres ¶ Student I verely I take it so ¶ Doctour I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenauÌ„t for terme of lyfe entreth he shal haue there none other estate iÌ„ the lande than he had in the seygnourye / and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne ¶ Stud. The cases be nat lyke / for in that case of the eschete the tenaunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignourie / that is to saye / in the place of the seignourie / the seignourie is clerely extincte / but in this case he hathe nat the lande iÌ„ the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ê“fyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne of lande in fee simple of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease accordyng to the lawe byfore the vylleyne alien or elles he shall haue nothynge ¶ Doctoure Verely and if the lawe be so / I thynke conscience folowethe the lawe therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres he purchaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre ¶ Student A fee simple / but that shal be to the behoue of the testatoure and shal be an assesse in his handes ¶ Doctoure Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question ¶ Ttudente For as moche as it appereth in this case and in some other byfore that the knowlege of the law of EnglaÌ„de is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what dauÌ„ger it is in conscience for the mistakynge of it ¶ Doctour I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge ⧠The .xvii. question of the student The .xix. Chapitre STudent A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenauÌ„t for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenauÌ„t for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that couÌ„sayle he in the reuercion entreth / by reason of the whiche entre great sutes and expences folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle ¶ Doctour Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste the lawe / or that he was ignoraunt of the lawe ¶ Student That he was ignorauÌ„t of the lawe for if he knewe the lawe gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampnified by it ¶ Doctour Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge to haue knowlege of the law after his capacite or that he toke vpon hiÌ„ to gyue counsayle and toke no study competent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile And also
the law that if a Bisshope be vouched to warrātie the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were graūted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaīdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ Studēt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the rēt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the assēt of the chapitre shall nat charge the chapitre ī that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience c̄ ☞ Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor consciēce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reētre / it forceth litle in the lawe in whome the defaute be that the cōdicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be excepte it be in the feffoure hīselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without cōdiciō / where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot
a man at the comon lawe knowyng that he hath sufficient matter to be discharged in the chauncery that he may nat pleade at the comon lawe The .vi. chapitre Fo. 17. ¶ The .vi. questioÌ„ of the StudeÌ„t / whether a maÌ„ may with conscience be of counsayl agaynst the feoffour of truste in an accion of trespas that he bryngeth agaynste his feoffe of trust for takyng the profites The .vii. chapitre Fo. 19. ¶ The .vii. question of the StudeÌ„t if a maÌ„ that by way of distres cometh to his det / but he ought nat to haue distreyned for it what restitucion he is bounde to make The .viii. chapitre Fo. 21. ¶ For what thynge a man may lawfully distrayne The .ix. chapi Fo. 23. ¶ The .viii. question of the Student whether executours be bounde in conscience to make restitucion for a trespas done by the testatoure / and whether they be bouÌ„de to paye dettes vpon a contracte fyrste / or make the sayde restitucion The .x. chapitre Fo. 25. ¶ The .ix. question of the Student / whether he that hath goodes deliuered hym by force of a legaci be bounde in conscieÌ„ce to pay a dette vpon a contracte that the testatoure ought / if the executours haue none other goodes in theyr handes The .xi. chapitre Fo. 28. ¶ The .x. question of the Student if a maÌ„ haue issue two sones dyed seased of certayne landes in fee the eldest dyeth without issue the tongest recouereth by assise of mortdauncestre the lande with damages fro the dethe of the father / whether he be bounde in conscience to pay the damages to the executours of the eldest brother for the tyme he leued The .xii. cha Fo. 31. ¶ The .xi. question of the Student what damages the tenant in dower shall recouer in conscience where hyr husbaÌ„de dyed nat seased / but she demaunded hyr dower and was denyed The .xiii. chapitre Folio 33. ¶ The .xii. question of the Student if a man knowynge a nother to haue right to his lande causeth a fyne with proclamacion to be leuyed accordynge to the statute / and he that hath right maketh no clayme within .v. yeres whether he be barred in conscience as he is in the lawe The .xiiii. chapitre Fo. 36. ¶ The .xiii. question of the Student / if a man that hath had a chylde by his wyfe do that in hym is to haue possession of his wyfes landes and she dyeth or he caÌ„ haue it / whether in conscience he shal be tenauÌ„t by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a reÌ„te enfeffe the grauÌ„te of the rente of parte of the lande cÌ„ whether the hole rente be extincte in conscieÌ„ce as it is in the lawe The .xvi. chapitre Folio 41. ¶ The xv question of the Student / if he that hath a rent out of .ii. acres be named in a recouerye of the one acre he nat knowynge thereof cÌ„ whether his hole rente be extincte in conscience cÌ„ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth laÌ„des iÌ„ fee he that hath the villayn entreth / whether he may with coÌ„cieÌ„ce kepe the laÌ„des to hiÌ„ to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questioÌ„ of the StudeÌ„t if a maÌ„ in the case next before enforme hym that is in the reuercioÌ„ of the villayn that after the dethe of the villayn he hath right to the laÌ„de couÌ„sayleth hiÌ„ to entre / wherupoÌ„ great sute charges folowe / what dauÌ„ger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpoÌ„ a feffemeÌ„t made vpoÌ„ coÌ„dicioÌ„ that the feffe shall pay a rent to a strauÌ„ger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the StudeÌ„t is vpoÌ„ a feofement in fee / it is agreed that the feffe shall pay a rente to a straunger / howe that feffement shall way in law conscience The .xxi. chapitre Fo. 51. ¶ Howe vses in lande began by what law the cause why so moche laÌ„de is put in vse The .xxii. chapitre Fo. 54. ¶ The diuersite bytwene two cases wherof one is put in the .xx. chapitre and the other in the .xxi. chapitre of this present boke The .xxiii. chapitre Fo. 57. ¶ What is a nude coÌ„tracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupoÌ„ The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the StudeÌ„t if a maÌ„ that hath two sones one borne before espousels the other after espousels by his wyll byqueteth to his sone heyre all his goodes / whiche of the sones shall haue the goodes in conscieÌ„ce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with conscieÌ„ce present to an aduouson of a churche that belongeth to the howse without assent of the coueÌ„t The .xxvi. chapitre Fo. 72. ¶ If a maÌ„ fynde beestes in his corne doiÌ„g hurt / whether he may by his owne authorite take them and kepe them tyll he be satisfied for the hurt The .xxvii. cha Fo. 75 ¶ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. chapitre Fo. 76. ¶ If a man be conuicte of heresye before the ordinarie / whether his goodes be forfet The .xxix. chapitre Fo. 78. ¶ Where diuers patrons be of an aduouson the churche voydeth / the patrons varye in theyr presentementes / whether the Bisshop shall haue libertie to present whiche of the incumbentes that he wyll The .xxx. chapitre Fo. eodem ¶ Howe long tyme the patron shall haue to present to a benefice The .xxxi. chapitre Fo. 80. ¶ If a man be excoÌ„menged / whether he may in any case be assoyled withoute makynge satisfaccion The .xxxii. cha Fo. 83. ¶ Whether a prelate may refuse a legaci The .xxxiii. chapitre Fo. 84. ¶ Whether a gyfte made vnder a condicioÌ„ be voyde if the souerayne onely breke the condicion The .xxxiiii. cha Fo. 87. ¶ Whether a couenaunt made vpon a gift to the churche that it shall nat be aliened be good The .xxxv. chapi Fo. 89. ¶ If the patroÌ„ present nat within .vi. monethes who shall present The .xxxvi. chapitre Fo. 91. ¶ Whether the presentemente collacion of all benefices and dignities voydyng at Rome belonge onely to the Pope The .xxxvii. chapitre Fo. 95. ¶ If a howse by chaunce fall vpoÌ„ a horse that is borowed who shall bere the losse The .xxxviii. chapitre Fo. 97. ¶ If a preeste haue wonne moche money by saynge masse / whether he maye gyue those goodes or make a wyll of them The .xxxix. chapitre Fo. 99. ¶ Who shall succede to a clerke that dyeth intestate The .xl. chapitre Fo. 101. ☞ Addicion ¶ If a man be outlawed of felonye / or be attaynted for murdre or felony / or that is an Ascismus may be slayne by euery strauÌ„ger The .xli. chapitre Fo. 102. ☞ Addicion ¶ Whether a man shal be bouÌ„de by the act or offeÌ„ce of his seruaunt or officer The .xlii. chapitre Fo. 104. ♣ Addicion ¶ Whether a villayn or a bondeman may gyue a waye his goodes The .xliii. chapitre Fo. 106. ¶ If a clerke be promoted to the title of his patrimony after selleth his patrimony falleth to pouerty / whether he shall haue his title therin The .xliiii. chapitre Folio 108. ¶ Diuers questions takeÌ„ out by the Student of the summes called Summa rosella Summa angelica whiche me thiÌ„keth are necessary to be sene how they stande agree with the lawe of the realme The .xlv. chapitre Fo. 111. ¶ Where ignoraunce of the lawe excuseth in the lawes of Englande where nat The .xlvi. chapitre Fo. 115. ¶ Certayne cases groundes where ignorauÌ„ce of the dede excuseth in the lawes of Englande where nat The .xlvii. chapitre Fo. 119. ☞ Addicion ¶ The fyrst question of the Doctour how the law of Englande may be sayde reasonable that prohibiteth cÌ„ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takeÌ„ as heyre bycause it is nat knowen but that the eldest brother is ded be in conscience a barre to the eldest brother as it is in the lawe The .xlix. chapitre Fo. 124. ¶ The thyrde question of the Doctoure / whether if a maÌ„ procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in coÌ„science as it is in the lawe The .l. chapitre Fo. 127. ¶ The fourth question of the Doctoure / is of wreke of the see The .li. chapitre Folio 129. ¶ The fyft question of the Doctour / whether it stande with conscience to prohibite a Iurye of meate drynke tyll they be agreed of theyr verdite The .lii. chapitre Folio 131. ¶ The .vi. question of the Doctoure is / whether the colours that be gyuen at the comon lawe in assises / accions of trespas and diuers other accions stande with coÌ„science bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. ☞ Addicion ¶ The .vii. questioÌ„ of the Doctour / coÌ„cerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade iÌ„ suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questioÌ„ of the Doctour / how the statute that was made in the .xlv. yere of kynge Edwarde the thyrde concernynge the tythe of woode maye stande with conscience The .lv. chapitree Folio 140. ¶ Finis Tabule ¶ Thus endeth the seconde Dialogue in Englisshe / with the Addicions bytwene a Doctoure of of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LoddoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC.XXXii The fyrst day of the moneth of Iuly ⸫