o 37. H. 6. 30. but if a man seise in an other right then as deuisee then he neede not depend vpon the deliuerie of the executors therefore the case was 9. E. 4. that an action of dette was brought against one as executor in London and the defendant said that the testator did giue vnto him certaine goods by his deed he shewed in particular what goods they were the testator being at the time of the gift in the village of B. in the countie of Essex that he suffered the goods to be in the possess of the testator vntill his death at London and after the death of the testator he tooke thē absque hoc that he did administer as executor the whole Court helde that the Iurors ought to find this matter of the gift of the goods vpō paine of attaint p 9. E. 4. 40. but where a man ought to take a thing by the deliuery of an other he taketh it of his owne head he is a trespassor and therefore if a man graūt to an other an estouer of wood to be taken by the view deliuery of his Bailie if hee take it without the deliuerie of the Bailie the grauntor may haue an action of trespasse against him Quare vi armis q 8. E. 3. 422. Nomomathes Suppose that a legacie of monie 18. Diuision is deuised to a man in regard of his wife and the testator dieth whether may the husband in this case demaund the legacie without naming the wife Codicgn By our Lawe the husband may demaund 1. That by the Ciuill law the husbande may demaund a legacy due to the wife without naming the wife it without naming the wife r L. Titio centum §. Titio genero ff de condit demonst Anglonomoph I see little reason but that the husband only may demaūd it in his owne name he being the sole deuisee and the thing deuised being a personall thing but if it had bene a reall thing and the wife had bene interested in it then the law would be otherwise Nomoma I pray you put me some cases touching this difference that I may better vnderstande your meaning Anglonomoph The writ of mesne because it 2. That in the Common law there is a diuersitie as touching bring ing of actions in the wifes name where the matter of the writ is real and where it is personall is in the realty ought alwaies to suppose the husbād and wife to be mesnes ſ 13. R. 2. Briefe 642. but in a writ of trespasse it hath bene helde a good declaration if the plaintife alledge that the defendant entred into his mannor of Dale though he haue nothing in the mannor but in right of his wife for this is a a personall wrong done vnto the husband t 4. E. 4 31. and by Danbyes opinion the husband taketh the profites of the land in his owne right u Ibid. per Danby so that it can not be law which is said 21. R. 2. that an actiō of trespasse for trees cut in the land of the wife must be brought as well in the wifes name as in the husbands w 21. R. 2. Briefe 933. and the contrarie is helde for Law 6. H. 4. and 47. E. 3. because as M. Finchden saith well the husband onely may release the dammages when they are recouered x 6. H. 4. 10. 47. E. 3. 9. per Finch neither may Husseyes opinion 7. H. 7. bee admitted for Lawe where he saith that the writte may be brought in both their names a 7. H. 7. 2. ◠Hussey in an actiō of dett brought by the husband vpon an obligation made to him and to his wife the writte may bee brought in the husbands name onely b 12. R. 2. Br̄e 639. and so where a lease is made for yeares rendring rent by the husband and the wife of the lande of the wife the action of dette must bee brought in the name of the husbande onely c 7. E. 4. 5. howsoeuer 2. R. 2. be to the contrarie that in a writte concerning a chattell reall they may ioyne d 2. R. 2. Brief 37. but where the husband is seised of a Seignorie in the right of his wife a mā may not make conusans as baily to the husband but as baily to them both e 12. R. 2. Auowrie 88. but that is because the conusans and auowrie in such case is en le droit f 48. E. 3. 8. ◠Finch but as to such things which concerne the persō of the wife immediatly there the writte must be brought in both their names and therfore the husband cannot sue a writte of appeale 3. That where the wronge doth immediatly concerne the person of the wife the wise must of necessitie be named for the rape of his wife without naming the wife g 8. H. 4. 21. 1. H. 6. 1. 10. H. 4. Br. Baron fem 34. whereas they brought an action of batterie for the beating of them both the writte was adiudged good for the batterie of the wife but not as to the batterie of the husband h 9. E. 4. 54. and the husbande and the wife shall both bring an action of trespasse for the taking away of the goods of the wife before the marriage i 21. H. 6. 33. but in a writte of detinue of charters against husband and wife the declaration was vpon a trouer and the writte was abated k 13. R. ◠Briefe 644. but a writte of couenant was brought by the husband and the wife because the defendant leased vnto them lande for tearme of yeares by deed afterward outed thē and the writ was awarded to be good for if the husband die the woman shall haue the tearme l 47. E. 3. 12. and in this case they were both parties to the couenant and by the bookes of 6. E. 4. 17. E. 4. an action of dette for the arrerages of a rent reserued vpon a lease for yeares made vnto the husband and the wife shall be brought against them bothe and so shall a writte of waste for the wife cannot waiue the lease during the life of the husband m 6. E. 4. 10. 17. E. 4. 7. and 8. Rich. 2. an action vpon the statute of Labourers was brought against husband and wife supposing that the wife had couenanted with the plaintife to be dāsell or waiting womā to his wife for a yeare that she departed out of seruice within the yeare the writ was awarded to be good being brought against them both n 8. R. 2. Laborers 59. Nomoma No more of this matter let me aske 19. Diuision you farther If the testator do deuise to one within age his maintenance to bee giuen allowed him by his executor vntill he come to ripenes of age how shal these words ripenes of age be vnderstood whether of age of
a lease of a house so that the lessee may make his profit of the houses within it the lessee cannot in this case take downe or demolishe the houses nor make wast in them for the intent was not so a 17. E. 3. 17. but if the King graunt to me visum franciplegij in omnibus terris meis feadis I cannot haue this in any landes and tenements which I shall afterwards purchase b 38. H. 6. 10. But 4 Howe the â— Queens grants and licences shal be construed and interpreted if the king graunt to a man that he and his heires shal be quit of taxe for their landes which they haue this is a good graunt though there be no taxe due at the time of the graunt c Ibid And so is the Law of Tenths and fifteenes d 19. H. 6. 62. 21. H. 6. 43. 21. E. 4. 45. and he to whom the King graunteth a licence may not vary from the proper sense the significancy of the words e 18. E. 2. Fines 124. And if the king before the dissolution of Monasteries had licenced an Abbot and his Couent to make a feoffement if the Abbot onely had made it the feoffement had beene voide f 21. H. 7. 8. And 3. Ed. 3. the King licenced one to leuie a fine of the mannour of Dale to the intent to maintayne two Chaplaines and hee woulde haue leuied the fine omitting the Chapleines but was not suffered g 3. E. 3. 5. and 30. Edward 3. the licence was to leuie a Fine of the Mannour of Dale and hee woulde haue leuied the Fine with a foreprise or exception of certaine acres parcell of the Mannour rendering rent but was not admitted to it because it coulde not stande with the licence which was that all the Manour should bee charged with the rent h 30. E. 3. 17. So if the Queene licence one to make a Feoffement by deede he cannot make it without deede i 21. H. 7. 8. per Frowike and this Lawe holdeth likewise in a common persons case for if hee that hath a warrant of Attourney to deliuer seisin absolutely doe deliuer-seisin vpon condition this is a disseisin to the feoffour k 12. Ass pâ— 24 And a graunt is not to bee fauoured contrarie to the euident perspicuous sense of the words 5 That a graunt is not to be fauoured contrary to the manifest sense of the words For if a man graunt to an other a loade of wood to take in his soyle euery yeare and the grauntee surceaseth the two first yeares and the third yeare hee taketh three loade hee is a wronge doer for two of them so if a man graunt to an other a common for three beastes yearely and hee taketh nothing the two first yeares he shal not haue common for three beastes the third yeare l 27. H. 6. 10. The aduowson of the Hospitall of Saint Katherins is appendant to the Mannour of B. the Hospitall being voide the Queene graunteth manerium ac omnes aduocationes cum pertinentijs the present presentment doth not passe m 13. Eliz 300. Dyer for it is fructus aduocationis and not the aduowson it selfe n 11. Elizab. 283. Dyer Codicgn The words of a graunt are to bee taken most strictly against the grauntor because nn Phil. Deci. in Comm. ad Regul iur he might haue expressed his meaning in more full large and manifest words Nomom Nowe resolue me whether a graunt 4. Diuision that is not good at the first may be made good by matter ex post facto Anglonomoph In no sorte for if there bee 1 That by the common law a graunt that is not good at the first may not be made good by matter ex post facto neither by the Câ—uil Law Lorde and three iointenauntes and the Lorde graunteth the seruices of one of them to a straunger this is a voyde graunt thoughe the same tenant doe attourne and suruiue his compaignions For no attournement can make an euill graunt to bee good o 5. E. 3. 34. and if a man lease lande to the husbande and wife duringe their liues and after graunteth the reuersion of the lande which the husbande holdeth for terme of life and then attournement is had the graunte is voide and the attournement also p 13. E. 3. Bro Iointen 63. And if a man be bound to a FemÌ„ sole and a straunger releaseth to the obligour and after maryeth the feme yet the release is not good q 15. E. 3. FeoffemÌ„t 63. So it is if in auncient time a Monke Fryer or Cannon professed which was no Soueraigne of an house had graunted to one an annuitie this was a void graunt though he had bin after dereigned or made Soueraigne of the same house or some other r 2. R. 3. 5. Codign As that which is lawfully done cannot be made void to all intents so that which is altogether void at the beginning cannot be strengthned by continuance of time rr Phili. Decr. Comment ad reg iur Nomom Let me aske you this question Anglonomoph 5. Diuision 1 Whether a tenant at wil may graunt ouer his estate whether may a tenant at will graunt ouer his estate or no especially if he in the reuersion doe after agree to it Anglonomoph I thinke not for it is not properly an estate because it wanteth certaintie Å¿ 27. H. 6. 3. but if my 2 That the estate of the tenant at will is in maner no estate tenant at will be outed by a straunger hee may reenter without my commandement for the entre of a stranger doth not determine my will t 11. E. 4. 3. and an other reason why he cannot grant his estate is because his estate dependeth as well vpon his owne will as the will of the lessor and if he lease ouer the land his will as to that intent is determined and by consequent his estate u 22. E. 4. 5. per Brian and his estate is such a non-estate in the eye of Law that he cannot haue ayd of his lessor w 12. E. 4. 5. and if the heire accept a rent reserued vpon a lease at will made by his father this cannot make the lease good because it was void before no more then his acceptance of a rent reserued vpon a lease for yeres which is determined by reentre can make that lease good x 14. H. 8. 11. Codicgn The estate of such a tenant is none at all in our law vnlesse he should set downe his will in certaine who demiseth y l. qui se patris C. vnde liberi Canonologus So it is likewise in our Law z C. de summa tri side cathol l. 1. Nomom I will not insiste any more vpon this matter but wil passe to the consideration of bargaines and sales The third Dialogue of Bargaines and Sales NOmomat I will
legat 3. And if a house be deuised the Bathe belonging to the house and the orcharde also which belongeth to it doe passe if from the house there be a way to the Bathe or orcharde for then they may well be sayd to belong to the house and to be prouided for the benefit of the inhabitant l l. praedijs in §. balneas §. qui domum ff de legat 3. and if a man do by his last wil deuise land liue many daies after the testament made 2 That a mine of coale passeth with the land if it be iointly vsed with it otherwise it is if it be seuerally vsed and in his life time a myne of coale lead or tinne is opened and discouered in the soile then the testator dieth after that hee hath vsed the myne iointly with the land in this case the deuisee shal haue the mine but if he had demised for life or for yeres the mine to one and the land to an other so that they had beene seuered and disioined in particuler interest then the deuisee should not haue had the mine m l. cuÌ„ fundus nominatim ff de legat 2. but if the Testator deuise all his corne which he hath in such a barne and the deuisee being one of his housholde seruants of purpose bringeth a greater quantitie of corne into the barne the deuisee shall not haue this increase because it grewe by the fraude of the deuisee n cum ita legatur in princ ff de legat 2. Anglonomoph As to your two last cases deuises as I haue said before are so to be fauoured as dower and I thinke that if a man doe marrie a wife and die seised of lande and after his death a mine of coale is discouered in the ground and 3 That a woman shall be endowed of a mine of coale discouered after her husbands death then the woman bringeth a writ of dower she shal haue her dower as well of the mine being parcell of the lande as of the lande it selfe being the principal o 14. E. 3. Admeasurement 10. 13. E. 1. Itin North. 17. Fitz. na br 149. C. and as to your other case where the corne in such a barne is deuised and it is afterward increased the deuisee shall haue no more corne then was in the barne at the time of the deuise for it is as much as if he should haue said al the corne which he now hath in his barn for words of the present tense which hath a present beginning and ending may not be drawne either to a time past which hath had his beginning and 4 That words of the present tense in a deuise may not be extended to the future tense end or to a time future which hath neither beginning nor end and therfore if a man be bound to keepe the prisoners of the gaole of D. that they shall not escape this shall extende onely to the prisoners which are in the Gaole at the time of the making of the bonde and not to such which shall be afterwarde in the Gaole vnlesse it had beene expresly said which be or shall be in the Gaole p 21. H. 7. 37. and so if the Queene graunt to me visum franciplegij in omnibus terris meis feodis I shall not haue viewe of frankepledge in any landes but such as I haue at the time of the graunt q 38. H. 6. 10. so if a man be bound for the tenants of I. S. it shall be intended of these tenants onely which I. S. hath at the time of the obligation made r 39. H. 6. 6. and if a man graunt to another housewood and hedge-wood to be burnt in his houses in Dale this shal not extend to houses which are afterward built Å¿ Temps E. 1. Common 28. and though Wilbyes opinion be that if a man graÌ„t to another a way ouer his land with waines and the grauntee hath no freeholde at the time to which he may haue caryage yet if he purchase freehold afterward he may haue a way to it and Hankeford seemeth to be of this opinion 11. H. 4. t 21. E. 3. 2. per Wilby 11. H. 4 82. per Hank because in a generall graunt there needeth to be no naming of a certaine freehold yet in that very case dubito quid sit lex Nomomat Admitte that a man deuise the profittes of his lande for fiue yeres to I. S. the deuisee dyeth within two yeres next after the deuise then the deuisour dyeth whether shall the residue of the terme goe to the benefit of the executor 1 That by the ciuil law if the deuisee of a terme die before the deuisor the executor shal haue the terme or administrator of the deuisee Codicgn We haue expresse authoritie in our Law that it shall a l. vxori vâ—ufru §. quaesituÌ„ ff de vâ—ufru le Angonomoph Brettes case which is very famous in our law is to the coÌ„trary aa 10. Eliz. 46. ComÌ„ Brets case but if a man deuise 2 By the common law a diuersity is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacy executed xx li. to be paied yerely in 4. yeres after his death to I. S. and died and after the deuisee dyeth within foure yeres yet the executours of the deuisee shal haue the money or the residue of it by suite before the Ordinary in the spiritual Court for it is a duetie by the testament or deuise b 24. H. 8. Br. Deuise 27. 45. Condic ' 187. and an administrator may as well sue for that duety in the spiritual Court as he may haue a writte of Couenant at the common law vpon the couenaÌ„t made with the partie intestate c Fitz. na br 146. D. 2. Mar. 112. Dy. Nomom What if the testator do say I deuise such 10. Diuision a thing to God or to Christ what is wrought by this deuise Cononol The thing so deuised is due to the 1 That by the ciuil law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the Testator dwelt Church of the parish where the testator did dwel at the time of the deuise d Authent de ecclesiast ' titÌ„ §. si quis in nomine argu l. quae coÌ„ditio §. sin ff de cond de monstr Anglonomoph In auncient times such deuises were good and so was a fine leuied deo ecclesiae but the lawe is now altered e Scir faci 18. E. 4. 22. 19. E. 4. 2. 4. 7. per Pigot en le cas de Prior de Merton and in the one and twenteth yere of king Richarde the second a deuise of lande was made to one for life the remainder to an other for life the remainder to the Churche of S. Andrew in Holborne and this was adiudged
within yeares of discreâ—ion b l. 5. ff ad leg Falcid l. 12 de leg and the contract or couenant of such persons is not ratified by oath which by law are forbidden to contract c l. non dubiuÌ„ C. de legib as Monkes and Fryers and such like religious persons Canonologus Indeede such persons are said in our lawe to be mortui mundo dead to the world d 16. q. vltim c. si and they cannot liue without their Cloister no more then a fish without the water e 16. q. 1. plac and he can haue nothing priuate or proper to himselfe and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio f De sta mo c. 2. C. ad monaster Ca. 1. 2. de postula 16. q. 1. monach c. religios de procur in cler and he caÌ„ not be any mans aduocate in a cause or any mans proxie without the consent of his Abbot or Soueraigne and that must be to the vse and behoofe of his monasterie and the like law is of Friers h Cle. dud de sepul Cle. exâ—ri de parad de verbo sig Nomomathes But is there no differeÌ„ce in the Lawe betwixt the contracts of infants and the contracts of Monkes and Friers Codicgn Yes very great For Monkes and 3. Monkes are absolutely ê“hibited by the Ciuill lawe to make any coÌ„tract infants are disabled with a certaine qualification Friers are prohibited by Lawe to make any contract so that as I haue abouesaid their contract can not be good though it be coÌ„firmed by oath But infants are not ture prohibiti but inhabiles ex iuris dispositione and therfore their contracts may by oath be established i Authent sacramenta puberuÌ„ cum tota sua materia C. si aduer veÌ„dit in corpore vnde sumitur Anglonomoph As the former Lawes haue very greatly disabled Monkes and religious persons who are tied to a certaine rule so our Law hath very much diminished their ability as to their intermedling in secular matters In a Scire facias brought by a Prior against a parson out of a recouery had against his predecessor it was 4. That by the Common law Priors vnder the obedience of a Soueraigne and which weare datife and remoueable could not impleade or bee impleaded without their soueraigne vnlesse it were by speciall custome held that the defendant should not be estopped by the admittance of his predecessor in the first action to pleade in this Scire facias that the Priour was a Monke professed vnder the obedience c. and was datife and remoueable k 34. H. 6. 2. for though it haue beene helde that a Prior perpetuall may prescribe to implead and to be impleaded without his Soueraigne yet by common intent a Prior datife and remoueable at the will of the party shall haue no action by such vsage but if he wil haue any plea he must shew some special matter 39. E 3. 34. and it hath bene said that the knights of S. Iohn of Ierusalem had their possessions seuerall 5. The same Lawe was of the knights of S. Iohn of Ierusalem yet they could not vse an action without their Prior m 32. H. 6. 5 31. and a Prior which was presentable and had Couent and Common seale could not before the dissolution of Abbeys and Priories charge his house in perpetuum without the assent of the Patron and Ordinarie neyther could hee haue the Writte De aduocatione decimarum nor a iuris vtrum n 12. H. 4. Stath tit Charge and a writte was abated beyng brought against a Prioresse because the Prior of S. Iohnes was commaunder of the house whereof shee was Prioresse and because she was made Prioresse by him and was vnder his obedience and remoueable at his will notwithstanding that shee had Couent and Common seale and had her possessions seuerall and was wonte to Lease the lande for tearme of yeares o 12. R. 2. Nonabilitie 4. and if a contract bee made with an Abbotte and his Monke the writ that hath beene grouÌ„ded vpon this contract hath bene brought against the Abbot onely p 33. E. 3. Bâ—â— 913. 2. H. 4. 21. and so hath a writte of Detinue bene brought being coÌ„ceiued vpoÌ„ a deliuery of goods made to the Monke to the vse of the Abbot q Ibidem yet it hath bene thought that an action will lie against a Monke if he be not in subiection to some Soueraigne r 14. H. 4. 37. But it hath bene taken for a general learning with vs that Monkes Friers Canons professed the like could not grant any thing Å¿ 14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31. neither could they be grauÌ„tees of any thing t 5. H. 7. 25. 19. H. 6. 25. neither are they capable by way of deuise u Perk. tit Deuis sect 537 the coueÌ„t of an Abbey or Priorie can yeeld so little aduantage to the house in matter of purchase that if in former times land had beene giuen to an Abbot and to his couent this could not be good saue onely during the life of the Abbot for the want of this word successors a 11. H. 4. 84. â— Curi but touching the abilitie of infants in contractes and purchases the Lawe is diuerse according to the diuersitie of cases and if an infant do buy of any a coate or necessarie vestmeÌ„t for a certaine summe or if he make a couenant for his meate paying 12. d. a weeke according to M. Paston his opinion this couenant is void yea and if 6. The infants contract for his meate apparell and necessaries is good if he be of the age of fourtene yeres hee make a bonde for it the bonde likewise is void but Markeham thinketh the contrarie if the infant that is so bond be of the age of fourtene yeares b 21. H. 6. 31. 18. E. 4. 2. Perk. Grau 4. D. S. dial 2. fo 113. and by M. Brookes opinion this is the better Law c Br. Labourers 30. and if an infant lease land for tearme of yeares rendring a rent or doe sell a horse or 7. That which an infant doth without actual liuery may bee auoyded by action without entre oâ— seisure but that which he doth by actuall liuery can not be auoided without entre oâ— seisure any other thing he may chose to haue an action of dette for the rent reserued vpon the Lease or a writte of trespasse for the occupation of the lande and so he may haue an action of trespasse for the occupation of a thing sold by him and if an infant doe giue to one a horse without actuall deliuerie of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gifte the infant may haue an action of Trespasse
haue the thing solde but if the payment bee respited vnto a certaine day vpon the contract this is good ynough so that the money 2 That a contract is not good without money payed in hand or a certaine day of payment limited be payed within the time prefixed l 21. H. 7. 6. and 28. H. 8. it is positiuely set downe for Lawe that a contracte is not good without present payment vnlesse a certaine day of payment bee limited so that the one of them may haue an action of debt for the money the other a writ of Detinue for the wares m 28. H. 8. 30. Dyer An implied consideration is when the Law it selfe doth intende and enforce a consideration and therefore the Hoste of a common Inne may deteine a mans horse if he wil not pay him for his horse meate And so if a Taylor make a gowne for any man he may deteine the gowne till he be paied for his labour n 5. E. 4. 2. Nomomat Doth not the defect of forme in 8. Diuision 1 Whether the defect of forme doe destroy the contract a contract frustrate and defeate the contract Codign Yes for as the substanciall fourme in materiall things is necessary to the essence and constitution of such things o ff ad extiâ—b l. Iulian. §. l. falsi l. si is qui. §. quidem so in contractes a 2 That solempnitie and concurrence of circumstances is required in contracts by the Ciuil law certaine solemnitie and concurrence of circumstances is required for the perfiting of them as their naturall and proper forme p ff de verb. obligat ' l. sciend l. continuus in princip Eo l. §. si quis ita and without such ceremoniousnes the contract is of no force Anglonomo Our law likewise requireth forme either in pronouncing the wordes of the contract or els in obseruing some other circumstances belonging to the contract For the first if a man promise to another xx li. with his daughter in maryage if he marrie the daughter and the money be not paied he shall not haue any action of debt or action vpon the case at the Common Law but he must sue for this money in the Spirituall 3 That matrimoniall contracts if there be no assumpsit in them are to be decided by the ecclesiastical Law if there be an assumpsit by the common law Court. q Fitz. nat br 44. a 14. E. 4. 6. Reg. 46. 48. 15. H. 3 Prohibition 22. 16. H. 3. Prohi 24. For here is no good forme of contract and as Master Bracton sayeth Matrimonium est principale eiusdem iuris id est iurisdictionis esse debet accessorium r Bracton lib. 5. cap. 16. And therefore if a man by reason of matrimonie or testament doe acknowledge in a Spiritual Court that he ought to pay to one a hundreth markes or some other summe at a certaine day if the money bee not payed at the day accordingly he may be sued for this money in the Spirituall Court and no prohibition lyeth s Fitz. na br 41. b. but if in the former case he had promised one x. li. if he would marrie his daughter if he doe marry his daughter and the other will not pay the money hee may not sue him in the Spirituall Court for this money but at the Common Law t Fitz. na br 44. a et 22. Ass pla 70. p Tho. 16. H. 3. Prohibit 22. for now it goeth in fourme of contract as for the other matter where forme is required in obseruing some other circumstance in the contract that may appeare by this case if a felon sell a horse without couin in a market ouert this doth alter the propertie and the verie proprietary cannot haue restitution of the horse notwithstanding the statute of 21. H. 8. c. 11. but if he had solde him out of a market ouert the propertie had not bin altered u 33. H. 6. 5. 18. E. 4. 24. 7. H. 7. 12. Crompt Iust de Peace 172. Nomom I will trouble you no further in this matter but will proceede to inquire somewhat touching Gifts and Graunts The second Dialogue of Gifts and Graunts NOmomathes In handeling the learning 1. Diuision 1 What things may be giuen or graunted of Gifts and Graunts I think it most fit in the first place to be inquired what things may be giuen or graunted wherefore first I pray you satisfie me in this Codicgn A man may giue all such thinges as 2 That all things that lye in commerce and may be receiued may be giuen an other may receiue a l. in aedibus §. fi ff Eo tit for dare accipere sunt correlatiua and all such things may be receiued which lie in commerce Nomomat Then thinges consecrated and ecclesiasticall may not be aliened because they lye not in contract Canonologus Thinges ecclesiasticall though they 3 That things ecclesiasticall though they be not consecrate cannot regularly be graunted be not consecrate cannot regularly be giuen or graunted b Cap. 2. de donation Eod. tit de re ecclesi non alien in antiquis 6. Cle. in c. sine except cap. si quisquis 12. q. 2. in l. Iubemus cum suis authen C. de sacrosan eccle and I did vse this worde regularly because where such alienation may bring profit to the Church it shall be of force c In dict iur Anglonomo In our Lawe a writ of Contraformam alienationis lyeth where a man gaue landes or tenements to an Abobt or house of Religion before the Statute of Quia emptores terrarum to holde of him in frankalmoigne and after the 4 That if an Abbot did alien lands giuen in frankealmoigne to his house the donor might haue a writ of Contra formam collationis Abbot with the Couent did alien the same land in fee to another nowe he that gaue this lande or his heire may sue this writte of Contra formam collationis against the Abbot or his successor but not against the tenant of the lande but when he hath recouered the lande hee may sue a Scirefacias against the tenant of the freehold d Fitz. na br 210. f. and this writ of Contra formam collationis lyeth not though the Abbot doth alien in fee vnlesse the Abbot and the Couent doe alien in fee e 19. E. 3. Contra formam collationis 5. Fitz. nat br 211. c. and if an Abbot with the Couent doe alien an Aduowson in fee at the next auoydance the foundor or his heire may present to the aduowson because they cannot in such case sue a Contra formam collationis f 20. E. 3. Contra form collat 6 Nomom Let me know I pray you how many 2. Diuision kinds of Gifts there be Anglonomoph They be of diuerse sortes some 1 The diuerse kinds of giftes some being fre some compensatory are called
the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed o Exo. 21. ver 26. 27. which lawe Constant the Emperor did put in practise p l. 1. de EmeÌ„d seruor C. but all the lands goods purchased possessed by the villaine the law frankly giueth to the Lord if he wil seise claime theÌ„ q Litt ' lib. 2. c. 11. sect ' 8. 10. wretched I coÌ„fesse is the estate of such men but yet paciently to be tollerated because quaÌ„ potestateÌ„ alijs deferre voluimus ferre debemus and they whose auncestors or theÌ„selues haue acknowledged theÌ„selues to be villains must now duetifully beare the yoake though Cui plus licet quà m parest plus vult quà m licet r Gellius lib. 17. c. 14. and let the Lords of such villaines harken to that which is spoken of an heathen man diuinely Boni moderatoris est restringere potestatem Å¿ Ammian lib. 29. but to leaue these particulers to proceed more generally as one man may hold lands of another by euery of these 4 The tenure wherby a man holdeth of an honor or Manor is discribed and by examples illustrated abouesaid seruices as of his person so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any Honor which is come to his highnes by disceÌ„t from any of his auÌ„cestours he shall not holde in Capite for by the words in the first Chapter of Prerogatiua regis it is euident that if it shal be said a tenure in Capite it must be holden of the Crowne of a long time the words be ab antiquo de Corona and that cannot be when it is but newly comen to the Crowne and the statute of Magna Charta cap. 31. did as Master Stamford saith helpe this matter by expresse words if such an Honor came to the Crowne by way of escheate but not if it came by way of discent or any other way and that statute doth set 5 Certain honors which be not of the auncientnes of the Crowne forth certaine honours by name which be not of the auncientnes of the Crowne that is to say the honor of Wallingford NotinghaÌ„ Bullingbrook and Lancaster therefore he that holdeth of the King as of these Honors holdeth not of the king in chiefe t Stamfords Praerog c. 7. but other honors there be which of so long time haue been annexed to the Crowne that to hold of theÌ„ is to hold in chiefe for wheras one held of the king as of a certaine honor to 6 Some honors which are annexed to the Câ—owne yeeld a certaine rent to the keeping of the Castell of Douer this hath beene taken to be a tenure in chiefe and so it hath been thought if one held of his highnes as of the Honour of the Abbe of Marle u Fitz. nat bre 256. and Anno vndecimo of king Henry the seuenth the honor of Ralegh was annexed to the Crowne therefore if any man hold as of that honor it is a tenure in capite x 34. H. 8. â—r Cas 230. and therefore there is a good rule in the Register of Writtes that a man shall not make a fine for alienation of lands helde of the King as of his honor but for lande helde in Capite onely for there be certaine honors which be held in Capite there is a certain writ that the Eschetor shal not greeue any maÌ„ for alienation of land held as of an Honor for that is as of an honor and not as of the kings person no Fine shall be paied for the alienation of such lande a Regist ' 184. Br. Alienac ' 33. And whereas it was found by Office that lande was helde of the Queene as of her principalitie of Wales by the seruice of goinge with the Prince in Warre at the charge of the Prince per CuriaÌ„ b 18. Eliz. Dy. per Curiam This is no Tenure in capite and Master Finchden putteth this diuersity that where an Honour is seised into the Kings handes if a Manor held of the Honor do escheat to the king by a common Escheate if the King alien the Manor to holde of him the tenant shall hold by the same seruices as hee helde by before of the Honour for the Honour seemeth to bee vice domini in this case and as a meane Lord but if it come to the King by forfaiture of warre or by some other treasoÌ„ or by some other cause which toucheth the Kings person and the King seiseth and enfeoffeth an other the feoffee shall holde of the King as of his Crowne c 47. E. 3. 21. per Finchden and though the Statute of Magna Charta Cap. 31. before recited doe say Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingforde Bolen c. non faciet aliud seruitium quam fecit praeante yet this is to be intended of a common Escheate and not otherwise d 19. H. 8. 〈◊〉 Ca. 114. So a man may holde of the King as of his Manour and yet not holde in Capite for it was found by office that one helde land of the King as of his Manor of Plimpton and other landes as of his Manour of Darington which came to the king by the attainder of treason of the Marquesse of Exetor this hath beene thought to be no Tenure in capite for tenures in chiefe did begin in auncient time vpon the graunts of Kings to defende them against rebelles and enemies and at this day the Queene may create a tenure in Capite if shee giue lande to holde of her person otherwise it is if it be giuen to hold of an Honor Manour c. for a Tenure in chiefe must be immediatly of the King and is created by the King onely for a tenure created by a subiect cannot be a tenure in chiefe nor haue any prerogatiue annexed vnto it and if the tenants of an Honour should holde of the King in Capite the Honour when it came to the King should bee destroyed which may not be and there is no reason that the tenant in whom there is no default should be preiudiced in his tenancie by the offence of the Lorde e 30. H. 8. 44. Dyer and if the Q. purchase a Manour of which I. S. holdeth by knights seruice the tenant shall holde as he helde before and he needeth not to tender his liuerie nor primer seisin for he doth not hold in Capite but as of a Manour and if his heire be in ward by reason thereof he may haue an Ouster le maine at his ful age and if the Queene graunt the Manour afterward to W. N. in fee excepting the seruices of I. S. now I. S. holdeth of the Queene as of her highnesse person yet hee shall not holde in Capite but by such seruices as he
but it is a question with vs if one deuise to his wife the third part of all his goods and chattels whether this shall be intended as they shall be after the legacies or debts paid or as they were at the time of the deuise d 30. H. 8. 59. Dyl But this doubt of later time hath receiued decision for where a man deuised the 2. That by the Common law if a man deuise the third parte of his goods to his wife it shal be so rated as they weare at the time of the death of the testator 3. That the Queene may graunt a thing in action moitie of his goods to his wife and died it was ruled that she shall haue the goods as they were at the time of the death of the testator if the testator be not indebted e 5. Mari. 164. and as for graunting things in action we haue this positiue grounde in law that the Queene may grant ouer her rent and condition of reentrie for the nonpaiment of it and her action or any thing that her highnes hath in action but contrariwise it is of a common person f 2. H. 7. 8. Nomom Now shew me of what thinges and 4. Diuision in what sorte iointenancie or tenancie in common may be Codicgn It may be of all such things as lie in 1. That iointenancie by the Ciuil law may be of all such things as lie in contract contract as lambe milke woll cheese and corne and whatsoeuer is gained by the labour of oxē or the harrowing of horses or the letting to gift of kine g L. si nō fuerint ff pro soc and by the nature of the contract when two are agreed to be tenants in common of the profites comming and rising of beasts the losse of the beastes perteyneth onely to him in whom the very propertie of the beastes be but the charge of the pasture and labour which is to be taken about thē belongeth onely to him who is admitted to be tenant in common for the profites 2. That the limitation of tenancie in cōmon is by the partie but the construction of it by the law The possession in cōmon of beasts doth cōtinue vntill they haue yong if the possessiō were limited at the first vntill they had yoong and if two be agreed to be tenants in common of all the profites of a certaine ground the tenancie in cōmon ceaseth not till all the profites be taken and therefore if two be agreed to be tenants in common from the Calends of March vntill such time as their fields are new to be tilled sowne they shal be tenants in common vnto the Calendes of Nouember because betwixt both the Calendes the fields may be tilled sowne or suppose that they haue contracted a tenancie in common of kine from the Calendes of Iuly vntill they haue yonge this tenancie in cōmon shall continue till the Calends of Aprill next ensuing because for the most part they are wont to calfe betwixt both the Calends h L. si conuenerit in princ ff pro socio Anglono A parson may grant to another the moitie of his tithes for years whether it be lamb wooll or corne yet he hath no possession of them because they are not yet in esse i 38. E. 3. 6. but yet he hath an interest in them may grant the moitie of them as wel as one may grant to another that it shall be lawfull for him to take euery yeere a Deare or a Hare or a Cony within his soile this is a good grant k 10. H. 7. 30. and by the same reason that he may grant his tithes he may grant the moitie of them and so make a tenancy in common Nomoma Suppose the case to be this that two 5. Diuision iointenants or tenants in common haue agreed to make a common wall about their ground or that they should plant a certain number of trees in their common soile and one of them alieneth his part whether is his assignee bound to performe the couenant 1. That an assignee in the Ciuill lawe is bound by the the couenant of his grauntor Codicgn In our law there be many authorities that he ought to performe the couenant l L. quaesit §. quod a Titio ff de praeca arg l. in hoc iudiciū §. penult ff de cōmun diuid ff de damn infect l. fluminū §. adducitur ff pro soc l. 1. demque Anglonomoph To that our law agreeth for if a man lease a house and land for yeares by deed indented and the lessee doth couenant that he 2. That by the Common law in such case the assignee is bound by the couenant and his assignees shall repaire the house and after the lessee granteth ouer his terme and the assignee doth not repaire it an action of couenāt lieth against the assignee for this is a couenant which runneth with the land m 25. H. 8. Br. couen 32. Deputie 16. and according to M. Brookes opinion it lieth also against the lessee after that he hath assigned ouer his terme if he bring seueral writs of couenāt against thē both there is no remedie till he haue had execution against one of them and then if he sue the other he may haue an Audit a querela n Br. Couen 32. Nomom I will content my selfe at this time with your instructions touching iointenants tenants in common will passe ouer to the examining of the course of exchaunges The sixth Dialogue of Exchaunges NOnomath What if two do deale together 1. Diuision after this sort the one of thē giueth a horse and x. s. for the horse of an other man whether is this a bargaine and sale or an exchaunge Codicgn In such case either it is intended and 1. That by thē Ciuill law cōtracts for a certaine price are not exchaunges vttered betwixt the parties that the one shal haue such a thing for a certaine price as namely that A. shall haue the horse of B. for ten pounds and B. taketh of A. sixe pounds and an other horse in full paiment and satisfactiō this is cleerely a bargaine and sale a L. tenetur §. 1. de action emp. but if A. had giuen B. a horse for a horse that had bene an exchaunge b Ar. I. item si pretio §. 1. ff locat Anglonom By our Law there must bee the expresse 2. That by the Common law the word Excambium must be vsed in the exchaunge word of exchaūge mētioned otherwise a thing cā not be said to passe by exchaūge for the word excambiū only maketh an exchaūge as the words liberūmaritagiū onely doe make frankmariage for if I giue to one an acre of land by deed indented and he by the same deed giueth to me an other acre for this acre nothing passeth except liuerie be made and then the
doct ' in l. quod â—eruus eod dict l. 1. §. est autem §. penult l. Lucius eod l. licâ—t in sin eod and in the one is the propertie in the other the trust Angonomoph To this our Law accordeth for 2 The nature and course of it at the common law if a man deliuer goods chattels to one to keepe and he will deliuer them he that deliuered them may haue a writ of Detinue against the other for these goods and chattels and so if a man deliuer goods or mony to an other in a bagge ensealed b Fitz. na br 138. A. or not ensealed c 18. H. 6. 20. or in a chest or coffer to deliuer to an other and hee to whom they are deliuered will not deliuer them ouer accordingly hee to whom they should bee deliuered may haue a writ of Detinue but if a man deliuer money to one being not in a bagge or coffer to redeliuer to him or to deliuer ouer to a straunger in such case neither he that deliuereth nor he to whom the money or goods are to bee deliuered shall haue a writte of Detinue for the money but a writte of Accompt because a writte of Detinue ought to be of a thing certaine as of money in a 3 A diuersitiâ— where a writ of Accompt of Detinue and of Trespas are to be brought concerning things deliuered at the coÌ„mon law bagge or of a horse or twentie kyne or such things in certaine d Fitz na br 138. A. 7. H. 4. 13. 13. E. 3. Detin 53. 6. E. 4. 11. 36. H. 6. 9. per WaÌ„gef Billing 5 Ma 152. Dy. 39. E. 3. 30. 46. E. 3. 16. if the bailie open the bagg in which money is deliuered the partie to whom the mony belongeth may haue a writ of Trespas or Detinue at his pleasure e 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him f 33. H. 6. 26. per Litt ' 20. H. 6. 17. So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a straunger and hee deliuereth it without mencioning the condition a writ of Detinue will lye against the first Bailie and no other remedy may be had g 9. H. 6. 37. per Curiam and where I deliuer goods and a straunger taketh them out of the possession of the Bailie I may haue a writ of Detinue against the straunger or against my Bailie h 20. E. 4. 11. for my Bailie is chargable into whose haÌ„ds soeuer the goods do come but if he deliuer them ouer to an other that baily is not chargeable to me but onely for the possession i 12. E. 4. 12. Nomomat Suppose that a man enfeoffeth me 2. Diuision of certaine landes with warrantie who reteigneth all the deeds and euidences concerning the landes in his owne possession whether may these deedes after liuery made to me of the lands be said to bee my depositum in his handes as a thing which I haue left in his hands and whether will a writ of Detinue lye for them at the common law Codicgn They cannot be said to be deposita in 1 That a thing cannot be said to be a depositum at the ciuil law except it be deliuered to the partie his hands because a thing cannot be said to be deposituÌ„ except it be deliuered to the partie k l. 1. ff de pos ibi Doct ' and if these writings which you speake of do belong to the feoffor as I thinke they doe then they cannot be said to be deposita for wee haue a rule in our law that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur and it is contra l quirem eod bonaÌ„ fidem that the owner should redeliuer his goods in which he hath a propertie to an other man m l. bona fides ff depos in sâ— Anglonomoph It is good to be considered to 2 That by the common law the feoffee of the land is to haue the charters when the feoffement is without warrantie otherwise it is when it is with warrantie whom these charters or deedes aboue mencioned doe belong The authority is very pregnant that if a man make a feoffement of his land to an other by deede the feoffee shall haue the charters concerning the land though the feoffor doe not expresly giue them to the feoffee n 18. E. 4. 14. 9. E. 4. 53. 39. E. 3. 22. 7. H. 4. 7. 34. H. 6. 1. And if a man make a lease for terme of yeares and after confirme the estate of the lessee in fee and he to whom the confirmation was made dyeth now his heire shall haue as well the deed of the lease for terme of yeares as well as the deed of confirmation because that deed maketh the confirmation good o 9. E. 4. 53. Fitz. nat br 138. K. and so where a gift is made to one for life the remainder to an other in taile if the donor release all his right to the tenant for life he in the remainder cannot haue a writte of Detinue for this release after the death of the tenaunt for terme of life p 9. H. 6. 54. But in the case which you haue proposed because the feoffement is with warrantie so that the feoffour is bounde to warrantie nowe the feoffee shall not haue the charters concerning the lande for so the feoffour might sayle of the maintenance of his warrantie and so if a man be enfeoffed with warrantie and after enfeoffeth an other with warrantie the heire of the feoffour may haue a writte of Detinue against a straunger in whose possession are any deedes or charters concerning the lande because he may haue aduauntage of this warrantie q Fitz. na br ibid ' L. but let the feoffement or gift bee made without warrantie it is cleare that the donee or feoffee may claime the charters concerning the inheritance de iure and therefore if a gift of lande be made to A. in taile the remainder to B. in fee and after A. dyeth without issue B. shall haue the deede r 3. H. 7. 15. so if laÌ„ds be giuen to two and the heires of one of them by deede now if the tenant for life die hee that hath the fee simple shall haue a writte of Detinue for the deede Å¿ Fitz. nat br 138. F. for the deede runneth with the land and is of the nature of the inheritance and therefore a repleuin lyeth not for such charters t 4. H. 7. 10. and it is saide by Newton 22. H. 6. that he in the remainder in taile shall not haue a writte of Detinue against the tenant for terme of life if he haue the deed specifying the remainder yet he cannot haue a Formed on in the remainder nor an action of Waste without shewing the deede u 22. H.
and A. the wife of T. by diuerse praecipes in the summons A. was omitted wherefore the writte abated a 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6 6 likewise in a writ of dower by seuerall praecipes the name of one of the tenants was omitted in the clause inde queritur and in the summons whereupon the writte was abated b 12. E. 3. Brief 671. furthermore if a man recouer in a writ of waste by the default of the defendant where hee was not summoned hee may haue a 9. That by the default of lawfull summons the proceeding of the plaintife is frustrated by the Common law writ of disceit c 19. E. 3. Disceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit 56. 17. E. 3. 58. Fitzh N. B. 98. b. 105. a. in this writ of disceit if there weare two summoners returned vpon the writ in which the summons failed if the Sheriffe do returne one of the summoners dead yet the other summoner shall be examined and if it be found that he did not summon the partie he shal be restored to his land d 8. E. 3. Disceit 7. 1. E. 2. Disceit 48. but if the summons be returned to be made by foure men whereas in truth they did not execute the summons of the writ as long as two of them liue the tenant who lost in the writ may haue a writ of disceit e Fitzh N. B. 98. D. but if three of thē die a writ of disceit may not be brought f 35. H. 6. 46. but an action vpon the case g 1. H. 6. 1. in a Praecipe quod reddat against the husband and the wife if at the grand Cape the husband appeare in person and the wife appeareth by Attorney who hath a warrant of Attorney which is not sufficient therefore iudgement is giuen vpon the wifes default against the husband and wife yet they may haue a writ of disceit if they were not summoned h 18. E. 2. Disceit 54. 55. Fitzh N. B. 99. B. and how necessarie a summons is may appeare verie plainly by the booke of 7. H. 6. where in a Formedon they were at issue and the tenant at the Nisi prius made default the demandant shewed how hee was in prison in the warde of the Marshall and praied that they would sende for him to appeare otherwise hee would saue his default afterward by imprisonment wherefore the Court sent for him and he came i 7. H. 6. 38. Nomomath Yee haue spent a great deale of 2. Diuision time in treating of the commencement or beginning of a suit or action yet I desire to haue some further knowledge of the nature of a citation or summons therefore resolue mee when a man is summoned to appeare within two or three daies after such a returne whether shall the second or third daie be accompted in the citation so that then he that is cited may well enough appeare when as in the one case one daie is past so that he doth not appeare within the two daies appearing first in the morning of the second daie in the other case two daies be past so that he appearing the third daie doth not appeare within the three daies so that if he will saue his default me thinketh he should appeare the first day of al. Codicgn This question is easily resolued for if 1. That by the Ciuill law if a man be boūd to appeare within tenne daies the tēth day is taken inclusiue he appeare within the two daies or three daies it is clearely sufficient because the last daie that is put in the citation doth implie that he may differre his appearaunce vnto the last daie k ff de verb. oblig l. qui ante Calendas l. eum qui ita ff eod and though an appeale be to be brought within 10. daies after the iudgement yet the last daie is taken inclusiue and not exclusiue l ff de success edict l. 1. §. dicimus and if time be giuen to one either by the partie or by Lawe that he may paie so much monie within or doe or propound anything de iure suo within 10. daies or from hence vntill 10. daies he may paie do or propound the 10. daie without any preiudice or surcease of time m Instit de verb. oblig §. si in diem Anglonomo If a man be bound to paie monie in festo sanctae Trinitatis if he tender the monie in the vigil of the feast it is not good nor in the octaues but the tender must be made the very daie of the feast but if the paimēt had bin limited on this side the feast or before the feast then it may well be made in the vigill of the feast n 21. E. 4. 52. and these words ab octabis sanctae Trinitatis must be intēded à 4. die octabis Trinitatis thereupon M. Brooke noteth that to this intent the first daie and the 2. That the first day and the fourth day of appearance are all one at the Common law fourth daie al the daies meane are but one day in law o 21. E 4. 43. Br. Iour iours en court 57. therfore if after the day of the returne of the writ of Capias and before the fourth day which is ful tearme the Sheriffe doth arrest a mā this arrest is not iustifiable because the first day and the fourth day be all one daie p 33. H. 6. 42. Nomom I would not haue you to insist longer 3. Diuision vpon this matter but now shewe vnto mee how causes are opened declared disclosed in your Courts and how faults and wrongs are manifested to the iudges Anglonomoph Al wrōgs offences are either 1. A diuersitie of opening prosecuting of priuate and publike offences at the Cōmon law priuate or publique priuate offences which are done by one mā to the hurt of an other are made knowne to the Court remedied by originall writte bil or plaint publique offences which are committed by the partie against the Queene and Commonweale are opened punished by way of enditement and information which is put in practise by common informers Nomom The māner of such informing seemeth 2. Exceptiō is taken to informations vsed by common informers to me to be a very harde course of Iustice for by that meane lewde persons are animated to terrifie impeach poore simple men and to bring them into danger for what mischiefe will they not do when a reward is proposed vnto them Codicg It is true our law doth generally disallow such proceeding therfore the name of a delator or informer is in our law accompted dishonest q L. 3. C. de Iniur and therefore it saith expresly Delatores 3. Many obiections are made out of the Ciuill lawe against common informers
absolutely prohibited by the ciuill law to make any contract infants are disabled with a certaine qualification 4. That by the common law priors vnder the obedience of a soueraigne and which were datife and remouerable could not implead or be impleaded without their soueraigne vnlesse it were by speciall custome 5. The same law was of the Knights of S. Iohn of Ierusalem 6. The infants contract for his meate apparrell and necessaries is good if he be of the age of fourteene yeeres 7. That which the infant doth without actuall liuerie may be auoided by action with out entrie or seisure but that which he doth by actuall liuerie cannot be auoided without entrie or seisure The 2. Diuision 1. Whether the cōtract of the seruant shal be accounted in law the cōtract of the master 2. That according to the cōmon law the master shall be bound by the contract of a knowne seruant if the thing marchandised be come to his vse and he shal be bound by the contract of his factor though the goods neuer come to his possession 3. The act of a mans attorney or his generall receiuer doth not bind the master without speciall warrant The 3. Diuision 1. Whether the wifes contract made in the behalfe of the husband will binde the husband 2. That by the common law an action of debt brought vpon a contract made by the wife for the behoofe of the husband must be brought onely against the husband without naming the wife 3. That by the ciuill lawe the husband is in no sort to be charged by the contract of his wife The 4. Diuision 1. How contractes may stand or fall by their materiall causes o◠the defect of them The 5. Diuision 1. Some contracts are ordered by the lawe of nations 2. An Embassador may according to the Ciuill lawe be impleaded by the lawe of nations for a contract made whilest hee is Embassadour The 6. Diuision 1. Whether contracts made with Pirates or robbers in the high way be good in law 2. That Pirates and robbers are not to haue aduantage of lawe in matters of contract 3. That D. Hotoman erreth greatly in maintaining that pirates and robbers may lawfully contract The 7. Diuision 1. That by the Common lawe a consideration is the proper materiall cause of a contract and that it may be expressed or implied 2. That a contract is not good without money paid in hand or a certaine day limited for the paiment The 8. Diuision 1. Whether the defect of forme doe destroie the contract 2. That solemnitie and concurrence of circumstances is required in contractes by the Ciuill lawe 3. That matrimoniall contractes if there be no assumpsit in them ar to be deuided by the ecclesiasticall law if there be an assumpsit by the Common lawe The diuisions and principall contents of the second Dialogue of giftes and graunts The first Diuision 1. WHat things may be giuen or granted 1. That all things that lie in commerce and may be receiued may be giuen 3. That things ecclesiasticall though they be not consecrate cannot regularly be granted 4. That if an Abbott did alien landes giuen in Frankalmoigne to his house the donor might haue a writ contra formam collationis The 2. Diuision 1. The diuerse kindes of giftes some being free and some compensatorie 2. What is wrought by the Queenes grant ex mero motu 3. What is wrought by her Maiesties graunt by of informamur c. 4. Whether vpon a false considelation expressed an vse shal be raised in a common persons case 5. That a consideration may be auerred which is not repugnant to the vse expressed 6. That an vse may be altered by a consideration not valuable The 3. Diuision 1. In what cases graunts shall be taken most beneficially for the grauntee 2. That a graunt noncertaine must be taken most strongly against the grauntor 3. That a graunt may be good in part and for parcell not 4. How the Queenes graunts and licences shall be construed and interpreted 5. A graunt is not to be fauored contrarie to the manifest sense of the words The 4. Diuision 1. That by the Common lawe a graunt that is not good at the first may not be made good by matter ex post facto nor by the Ciuill lawe The 5. Diuision 1. Whether a tenaunt at will may graunt ouer his estate 2. That the estate of the tenaunt at will is in manner no estate The Diuisions and principall contentes of the third Dialogue of bargaines and sales The first Diuision 1. WHat things are forbidden to be solde 2. That by the Cannon law things consecrate and religious may not be solde 3. That poysons by the Ciuill law are forbidden to be solde 3. That there be some poysons which be medicinable and profitable and the prohibition extendeth not to these 5. That some poisons are medicinable alone some with the mixture of other things 6. What things are forbidden to be solde by the Common lawe The 2. Diuision 1. Where a thing was not solde at the first and where it was solde but the sale was defeasible vpon condition 2. A difference betwixt a perfit sale and a sale to be perfited vpon a condition performed 3. That a prouiso though it be placed amongest couenants may defeat a bargaine and sale 4. That where a bargaine and sale is perfit but defeasible vpon condition the vendee shal take the profits till the condition be performed The 3. Diuision 1. When no day is limited for the payment of a summe of money what time the law will require 2. In such case the partie charged with the payment shall by the ciuill lawe haue threescore daies 3. That by the common law when no day is limited the money is presently due yet in some cases by some authoritie the discretion of the Iudges is to limit a time 4. The definition of time according to the opinion of Aristotle The 4. Diuision 1. That a bargaine and sale may be auoyded by the defect of some substantiall thing belonging to the act 2. That fraud and deceit in the contract by the ciuill law doth defeate the contract 3. A difference where the default of the thing sold is Latens or Patens 4. That whether the default be Latens or Patens if the bargainor doe warrant the thing sold to be without fault he is bound by the warrantie by the ciuill law 5. That bargaines and sales matters in writing and obligatorie may be auoyded by alleaging that they were made or done per minas or by duresse 6. That by the common lawe a warrantie made vpon a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine bee concluded 7. That the warranting of a thing which is euident to the sense is no cause to bring a writ of disceit by the common lawe The 5. Diuision 1. That by the common lawe the bargaine and sale or the grant of the profits of land is the grant of the