this case that the party may haue an accion of trespasse agaynste hym that distrayned so that he is taken in the lawe but as a wrong doer / and therfore to pay the money agayne is the sure way as thou hast sayd byfore And I praye the nowe shewe me for what thynge a man maye lawfully distrayne as thou thynkest ⧠For what thyng a man may lawfully distrayne The .ix. Chapitre STudent A maÌ„ may lawfully distrayn for a rent seruice and for all maner of seruices / as homage / fealty / escuage / sute of court / relyefs and suche other Also for a rent reserued vpon a gyfte in tayle / a lease for terme of lyfe / for yeres / or at wyl / if he reserue the reuercion the feoffour shal distrayne of comon ryght though there be no distresse spoken of But in case a man make a feoffement that in fee by indenture reseruyng a rent he shal nat distrayne for that rent oneles a distres be expressely reserued / and if the feoffemeÌ„t be made with outen dede reseruyng a rent that reseruacion is voyde in the lawe / and he shall haue the rent onely in conscience and shal nat distrayne for it / lyke lawe is where a gyfte in tayle or a lease for terme of lyfe is made the remayndre ouer in fee reseruyng a rent that reseruacion is voyd in the lawe Also if a man seased of landes for terme of lyfe graunteth away his hole estate reseruyng a rent / that reseruacion is voyd iÌ„ the lawe without it be by endenture / if it be by endenture yet he shall nat distrayne for the rent but a distresse be reserued Also for a merciamente in a leete the lorde shall distrayne But for a merciament in a courte Baron he shal nat distrayne Also if a man make a lease at Mighelmasse for a yere / reseruynge a rent payable at the feaste of the Annunciacion of our Lady and saynt Michell the Archaungell / in that case he shal distrayne for the rent due at our Lady aye / but nat for the rent due at Mighelmasse / bycause the terme is expired But if a man make a lease at the feast of Christemasse for to endure to the feast of Christemasse next folowynge / that is to say for a yere a reseruyng a rent at the aforsayd feast of the Annunciacion of our Lady saynte Michel the Archaungell there he shall distrayne for both the rentes as long as the terme continueth / that is to say tyll the aforsayd feast of Christemasse ¶ Also if a man haue lande for terme of lyfe of IohaÌ„ at Noke / and maketh a lease for terme of yeres reseruynge a rente / that rente is behynde / and Iohan at Noke dieth / there he shal nat distrayne bycause his reuercion is determined ¶ Also if he to whos vse feffes ben seased maketh a lease for terme of yeres / or for terme of lyfe / or a gyfte in tayle reseruynge a rent / there the reseruacion is good and the lessour shall distrayne ¶ Also if a towneshype be amercied the neyghboures by assent assesseth a certaine summe vpon euery inhabitaunt / and agre that if it be nat payed by suche a day that certayne persones therto assigned shall distrayne In this case the distresse is laweful If lorde and tenauÌ„t be / and the tenauÌ„t dothe holde of the lorde by fealtye rent / the lorde dothe graunt awaye the fealtie reseruynge the rent / and the tenaunt attorneth in this case / he that was lorde maye nat distrayne for the rent / for it is become a rent secke But if a man make a gyfte in tayle to a nother reseruyng fealty and certayne rent / and after that he graunteth awaye the fealty reseruyng the rent and the reuercion to hym selfe / in this case he shall distrayne for the rent / for the grauÌ„te of the fealty is voyde / for the fealty can nat be seuered fro the reuercion Also for heryof seruice the lorde shall distrayne and for heriot custome he shall sease and nat distrayne Also if a rent be assigned to make a particion or assignemente of dower egall he or she to whome that rent is assigned maye distrayne and in all these cases aboue sayd where a man may distrayne he may nat distrayne in the nyght / but for damages fesaunt / that is to say / where beestes do hurt in his grounde he may distrayne in the nyght Also for wastes / for reperacions / for accomptes / for dettes vpon contractes or suche other no maÌ„ may lawfully distrayne ⧠The .viii. question of the student The .x. Chapitre STudent If a man do a trespasse and after make his executours and dye byfore any amendes made whether be his executours bouÌ„de in coscience to make amendes for the trespasse if they haue sufficient goodes therto though there be no remedy agaynst them be the lawe to compel them to it ¶ Doctour It is no doute but they are bounde therto in coÌ„science byfore any other dede in charite that they may do for hym of theyr owne deuotion ¶ Stu. Than wolde I wete if the testatour made legacies by his wyll / whether the executores be bouÌ„d to do fyrst / that is to say / to make amendes for the trespasse or to paye the legacies / in case they haue no goodes to do bothe ¶ Doctoure To pay legacies For if they shulde fyrst make recompeÌ„ce for the trespasse / and than haue nat sufficiente to pay the legacies they shulde be taken iÌ„ the lawe as wasters of theyr testatours goodê for they were nat compellable by no lawe to make ameÌ„des for the trespasse bycause euery trespas dyeth with the persone / but the legacies they shulde be coÌ„pelled by the lawe spirituall to fulfyl / and so they shulde be compelled to paye the legacies of theyr owne goodes / and they shall nat be coÌ„pelled therto by no lawe ne conscience / but if the case were that he leue sufficient goodes to do both thaÌ„ me thynketh they be bouÌ„de to do both / that they be bouÌ„den to make amendes for the trespasse byfore they may do any other charitable dede for the testatoure of theyr owne mynde as I haue said byfore / excepte the funerall expeÌ„ces that be necessary whiche muste be alowed byfore all other thynges ¶ Student And what the prouyng of the testament ¶ Doctour The ordinarie may nothyng take by conscience therfore / if there be nat sufficieÌ„t goodes besyde for the funeralles to pay the dettes and to make restitucion And in lyke wyse the executours ben bounde to pay dettes vpon a simple contracte byfore any other dede of charite that they maye do for theyr testatoure of theyr owne deuocion thoughe they shal nat be compelled therto by the lawe ¶ StudeÌ„t And whether thinkest thou that they be bounde to do fyrste / that is to say / to make amendê for the trespasse or to pay the dettes vpon
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
no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
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
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
to the other partie / but if a man that hathe taken sufficient studye in the lawe / mystake the lawe in some poiÌ„t that is harde to come to the knowle of he is nat bounden to suche restitucion / for he hath done that in him is / but if suche a maÌ„ knowyng the lawe gyue couÌ„sayle agaynst the lawe he is bounde in conscience to restitucion of costes damages as thou hast sayd byfore / and also to make amendes for the vntrouthe ¶ Student What if he aske counsayle of one that he knowethe is nat lerned and he gyueth him counsayle iÌ„ this case to entre by force wherof he entreth ¶ Doctoure Than be they bothe bounde in conscience to restitucion / that is to say / the party if he be sufficient and els the couÌ„sayloure bycause he assented and gaue couÌ„sayle to the wronge ¶ StudeÌ„t But what is the counsaylloure in that case bounden to / to hym that he gaue counsayle to ¶ Doctoure To nothynge for there was as moche defaut in him that asked the couÌ„sayle as in hym that gaue it / for he asked couÌ„sayle of hym that he knewe was ignoraunt / and in the other was defaut for the presumpcion that he wolde take vpon him to gyue counsaile in that he was ignorauÌ„t in ¶ Stud. But what if he that gaue the counsayle knewe nat but that he that asked it had trust in hym that he coulde and wolde gyue hym good counsayle and that he asked couÌ„sayle for to order wel his conscience howe be it that the truth was that he coulde nat so do ¶ Doct. Than is he that gaue the counsayle bouÌ„den to offer to the other amendes / but yet the other may nat take it in conscience ¶ Student That were somwhat perilous for haply he wold take it thoughe he haue no ryght to it / excepte the worlde be well amended ¶ Doc. What thynkest thou in that amendement ¶ Sudent I trust euery maÌ„ wyl do nowe in this worlde as they wolde be done to / speake as they thynke / restore where they haue done wroÌ„g / refuse money if they haue no ryght to it though it be offred them do that they ought for to do by coÌ„scieÌ„ce / though they can nat be coÌ„pelled to it by no lawe that none wyl gyue couÌ„saile but that they shal thynke to be accordynge to coÌ„science / and if they do to do that they can to refourme it / and nat to entremit them selfe with suche maters as they be ignoraunt in / but in suche cases to sende them that aske the counsayle to other that they shall thynke be more connynge than they are ¶ Doct. It were very well if it were as thou haste sayd / but the more petie is it is nat alwaye so / specially there is great defaute in gyuers of counsayle / for some for theyr owne lucre and profyte gyue couÌ„sayle to coÌ„forte other to sue that they knowe haue no ryght / but I truste there be but fewe of theÌ„ / some for drede / some for fauoure / some for malyce / and some vpon confederacies and to haue as moche done for them a nother tyme to hyde the trouthe And some take vpon them to gyue counsayle in that they be ignoraunt in / and yet whaÌ„ they knowe the trouthe wyll nat withdrawe that they haue misdone / for they thynke it shulde be greately to theyr rebuke / and suche ê‘sones folowe nat this couÌ„sayle that sayth That we haue vnaduisedly done lette vs with good aduyse reuoke agayne ¶ Student And if a maÌ„ gyue couÌ„sayle in this realme after as his lerninge and coÌ„science gyueth hym / and regardethe nat the lawes of the realme / gyueth he good counsayle ¶ Doc. If the lawe of the realme be nat iÌ„ that case agaynst the lawe of god nor agaynste the law of reasoÌ„ he gyueth nat good couÌ„sayle / for euery man is bouÌ„de to folowe the lawe of the contrey where he is / so it be nat agaynste the sayd lawes / so maye the case be that he may bynde hym selfe to restitucion ¶ Student At this tyme I wyll no ferther trouble the in this question ⧠The .xviii. question of the student The .xx. Chapitre ¶ STudent If a man of his mere mocion gyue landê to Henry herte and to his heyres by indenture vpon condicion that he shall yerely at a certayne daye pay to Iohanat Style out of the same lande a certayne rent / and if he do nat that than it shal be lawful to the sayd Iohan at style to entre c. if the rent iÌ„ this case be nat paied to Iohan at style / whether maye the sayd Iohan at style entre in to the landes by coÌ„science thoughe he maye nat entre by the lawe ¶ Doctour May he nat entre in this case by the lawe syth the wordê of the indenture be that he shall entre ¶ StudeÌ„t No verelye for there is an auncient maxime in the lawe that no man shall take aduauntage of a condicion but he that is ê‘tie or priuey to the condicion / and this maÌ„ is nat partie nor priuey / wherfore he shall haue none aduauntage of it ¶ Doctoure Thoughe he can haue none aduauntage of it as partie yet bycause it appereth euidentely that the intente of the gyuer was that if he were nat payed of the rente that he shulde haue the lande It semeth that in coÌ„science he ought to haue it thoughe he can nat haue it by the lawe ¶ Student In many cases the entente of the partie is voyde to all intentes if it be nat grounded accordynge to the lawe And therfore if a man make a lease to a nother for terme of life / and after of his mere mocion he confermeth his estate for terme of lyfe / to remayne after his dethe to a nother and to his heyres / in this case that remayndre is voyde in lawe and conscience / for by the lawe there can no remayndre depeÌ„de vpon no estate but that the same estate begiÌ„neth at the same time that the remaiÌ„dre dothe / and in this case the estate beganne byfore and the confirmacion enlarged nat his estate nor gaue hym no newe estate / but if a lease be made to a man for terme of a nother mannes lyfe and after the lessour onely of his mere mocion confermeth the lande to his lesse for terme of his owne lyfe the remayndre ouer in fee / this is a good remayndre in lawe and conscience / and so me thynketh the intent of the partie shall nat be regarded in this case ¶ Doctoure And in the fyrst case that thou hast put me thynketh though it passe nat by way of remayndre that yet it shall passe as by waye of graunt of the reuercion / for euery dede shal be takeÌ„ most stronge agaynst the grauÌ„tour and the takyng of the dede iÌ„ this case is an attournament in it selfe ¶ StudeÌ„t That can nat be / for he in the remayndre
is nat partie to the dede and therfore it can nat be taken by waye of graunte of the reuercion / for no graūte can be made but to hym that is partie to the dede excepte it be by way of remayndre / and therfore if a mā make a lease for terme of life / and after the lessour graunt to a staūger that the tenaūt for terme of lyfe shal haue the lande to him and to his heyres / that graunt is voyde if it be made onely of his mere mocion without recompence And in lyke wyse if a mā make a lease for terme of lyfe after graūt the reuerciō to one for terme of lyfe / the remayndre ouer in fee / and the renaūt atturneth to hym that hath the state for terme of lyfe onely / intēdyng that he onely shulde haue aduauntage of the graūte his entēt is voyde / and both shall take aduauntage therof / and the atturnament shal be taken good accordynge to the graunte / and so in this case though the feoffoure entended that if the rente were nat payed that the straūger shulde entre / yet bycause the lawe gyuethe hym no entre in that case that intent is voyde / and the same staunger shall neyther entre into the lande by lawe nor conscience ¶ Doctour What shal than be done with the lande as thou thynkest after the cōdicion broken ¶ Student I thynke that the feoffour in this case may lawfully reentre / for whan the feoffemēt was made vpon condicion that the feoffe shulde pay a rent to a straunger in tho wordes is concluded in the lawe that if the rent were nat payed to the straunger that the feoffoure shulde reentre for tho wordes vpon condicion / implie so moche in the lawe thoughe it be expressed And than whā the feoffour went ferther and sayd that if the rēt were nat payed that the straunger shulde entre / those wordes were voyde in the lawe / and so the effecte of the dede stode vpon the fyrst wordes wherby the feoffour maye reentre in lawe and conscience but if the fyrst wordes had nat ben cōdicionall I wolde haue holden it the greater doute ¶ Doctour I praye the put the case therof in certayne with suche wordes as be nat condicionall that I may the better perceyue what thou meanest therin ⧠The .xix. question of the studente The .xxi. Chapitre SSudent A man maketh a feoffement by dede indetted / and by the same dede it is agreed that the feffe shal pay to A.B. to his heyres a certayne rēt yerely at certayn dayes / that if he pay nat the rēt thā it is agreed that A.B. or his heyres shall entre into the lande / and after the feoffe payeth nat the rent / than the question is who ought in cōscience to haue this lande and rent ¶ Doctoure Or we argue what conscience wyll let vs knowe fyrste what the lawe wyll therin ¶ Student I thynke that by the lawe neyther the feoffoure ne yet the sayd A.B. shall neuer entre into the lande in this case for nat paymente of the rent for there is no reentre in this case gyuen to the feoffour for nat payment of the rent as there is in the case next byfore / and the entre that is gyuen to the sayd A. B. for nat paymēt therof is voyde in the lawe bycause he is estraūge to the dede as it appereth also in the next Chapitre byfore And therfore me thynketh that the greatest doute in this case is to se to what vse this feoffement shal be taken ¶ Doctour There appereth in this case as thou haste put it no consideracion ne recompence gyuen to the feoffour whervpon any vse may be deriuied / if the case be so in dede that the feoffour declared neuer his mynde therin / to what vse shall it thā be takē ¶ Stu. I thynke it shal be taken to be to the vse of the feoffe as longe as he payeth the rente / for there is no reason why the feoffe shulde be busied with paymēt of the rent hauyng nothynge for his labour / ne it may nat cōueniently be taken that the intent of the feoffour was so / excepte he expressed it / thā it must be taken that he intended to recōpense the feffe for the busynes that he shuld haue in the payment ouer / and by the wordes folowyng his intent appereth to be so as me thynketh / for if the rēt were nat payed he wolde that A.B. shulde entre / and so it semeth he entended nat to haue any vse hym selfe and thus as me semeth this case shulde varye fro the comō case of vses / that is to saye / if a man seased of lande make a feoffement therof and it apperethe nat to what vse the feoffement was made ne it is nat vpon any bargayne or other recompence than it shal be taken to be to the vse of the feoffoure / excepte the contrarie can be proued by some bargaine or other lyke / or that his intēt at the tyme of the lyuerey of season was expressed that it shulde be to the vse of the feoffe or of some other / than it shall go accordynge to his entent / but in this case me thynketh it shal be taken that his entent was that it shulde fyrst be to the vse of the feoffe for the cause byfore reherced excepte the contrarie can be proued / so the knowlege of the intēt of the feoffour is the greatest certaynte for knowelege of the vse in this case as me semeth / but whā the feoffour goeth ferther and sayeth that if the rent be nat payed thā the sayd A.B. shulde entre into the lande / thā it appereth that his entent was that the rente shulde cease / and that A. B. shulde entre into the lande / and thoughe he maye nat by those wordes entre into the lande after the rules of the lawe / and to haue freholde / yet those wordes seme to be sufficient to proue that the intēt of the feoffour was that he shulde haue the vse of the lande / for sythe he had the rente to his owne vse and nat to the vse of the feoffoure so it semeth he shal haue the vse of the lande that is assigned to hym for nat paymente of the rente ¶ Doctour But I am somwhat in doute whether he had the rente to his owne vse / for the intēt of the feoffour myght be that he shuld pay the rēt for hī to some other or some other vse myght be appoynted therof by the feoffour ¶ Student If suche an entēt can be proued than that intent must be obserued / but we be ī the case to wete to what vse it shal be taken if the entēt of the feoffour can nat be proued / thā me thynketh it can nat be otherwyse takē but that it shal be to the vse of hī to whome it shulde be payed / for though it be called a rent yet
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
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
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
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
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
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
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
therin ¶ What is a nude contracte or naked promyse after the lawes of Englande / and whether any accion may lye thervpon The .xxiiii. Chapitre ¶ STudent Fyrste it is to be vnderstande that contractes be grounded vpon a custome of the realme and by the law that is called Ius gentium and nat dyrectely by the lawe of reason / for whan all thynges were in comon it neded nat to haue contractes / but after ê“perty was broughte in they were ryght expediente to all people / so that a man myght haue of his neyghboure that he had nat of his owne / and that coulde nat be lawfully but by his gyfte / by way of lendynge / concorde / or by some lease / bargaine / or sale / and suche bargaynes and sales be called contractes / and be made by assent of the parties vpon agrement bytwene them of goodes or landes for money or for for other recompence / but of money vsuell / for money vsuell is no contracte Also a concorde is properly vpoÌ„ an agremeÌ„t bytwene the parties with diuers artycles therin / some rysyng on the one ê‘t and some on the other / as if Iohan at style letteth a chambre to Henry herte and it is ferther agreed bytwene them that the said HeÌ„ry herte shall go to borde with the sayd Iohan at style / and the sayd Henry herte to paye for the chaÌ„bre and bordynge a certayne suÌ„me cÌ„ this is ê“perly called a concorde / but it is also a contracte and a good accion lyeth vpoÌ„ it / howe beit it is nat moche argued in the lawes of EnglaÌ„de what diuersitie is bytwene a coÌ„tracte / a coÌ„corde / a ê“myse / a gyfte / a loue / or a pledge / a bargayne / a couenaunt / or suche other / for the intente / of the lawe is to haue the effecte of the mater argued and nat the termes / and a nude contracte is where a man makethe a bargayne or a sale of his goodes or landes wtout any recoÌ„pence appoynted for it As if I saye to a nother I sell the all my lande or all my goodes and nothyng is assigned that the other shall gyue or pay for it / that is a nude contracte / and as I take it it is voyde in the lawe and conscience / and a nude or naked promyse is where a man promyseth an other to gyue hym certayne money suche a day or to buylde hym an house / or to do hym suche certayne seruyce / and nothynge is assigned for the money / for the buyldynge / nor for the seruyce / these be called naked promyses / bycause there is nothyng assigned why they shuld be made / and I thynke no accion lyethe in those cases thoughe they be nat perfourmed Also if I promyse to a nother to kepe hym suche certayne goodes sauely to such a tyme / and after I refuse to take theÌ„ ther lyeth no accion againste me for it / but if I take them and after they be lost or empeyred throughe my negligent kepynge / there an accion lyeth ¶ Doctour But what opinion holde they that be lerned in the law of EnglaÌ„de in suche promyses that be called naked or nude promyses / whether doo they holde that they that make the ê“myse be bouÌ„den in coÌ„science to perfourme theyr promyse thoughe they can nat be compelled therto by the lawe or nat ¶ Student The bokes of the lawe of EnglaÌ„de treate lytell therof / for it is lefe to the determinacion of doctoures / and therfore I pray the shewe me somewhat nowe of thy mynde therin / and than I shall shewe the therin somwhat of the myndes of diuerse that be lerned in the lawe of the realme ¶ Doctoure To declare that mater playnly after the saynge of doctoures it wolde aske a longe tyme and therfore I wyl touche it briefly to gyue the occasion to desyre to here more therin here after Fyrste thou shalte vnderstande that there is a promyse that is called an aduowe / that is a promyse made to god / and he that dothe make suche a vowe vpon a deliberate mynde entendynge to perfourme it is bounde in conscience to do it / thoughe it be onely made in the herte without pronouncynge of wordes / and of other promyses made to man vpon a certayne consideracion / if the promyse be nat agaynste the lawe As if A. promyse to gyue B. xx pounde / bycause he hathe made hym suche a house or hathe lente hym suche a thynge or suche other lyke / I thynke hym bouÌ„de to kepe his promyse But if his promyse be so naked that there is no maner of coÌ„sideracioÌ„ why it shulde be made / than I thynke hym nat bounde to perfourme it / for it is to suppose that there was some errour in the making of the promyse / but if suche a promyse be made to an vniuersitie / to a citie / to the churche / to the clergy / or to pore men of suche a place / and to the honoure of god or suche other cause lyke / as for mayntenaunce of lernynge / of the comon welthe / of the seruyce of god / or in relyefe of pouertie or suche other / than I thynke that he is bounden in conscience to perfourme it thoughe there be no coÌ„sideracion of worldly profite that the grauntour hath had or enteÌ„deth to haue for it / and in all suche promyses it must be vnderstande that he that made the promyse intended to be bounde by his ê“myse / for els comoÌ„ly after al doctoures he is nat bounde / oneles he were bounde to it byfore his promyse As if a man promyse to gyue his father a gowne that hathe nede of it to kepe hym fro colde / and yet thiÌ„keth nat to gyue it hym / neuertheles he is bouÌ„de to gyue it for he was bounde therto byfore Also after some doctours a man may be excused of suche a promyse in conscience by a casualite that cometh after the promyse if it be so that if he had knowen of that casualite at the makyng of the ê“myse he wolde nat haue made it And also suche promyses if they shall bynde they muste be honeste / lawful / and possible / and elles they are nat to be holden in conscience though there be a cause c. And if the promyse be good and with a cause thoughe no worldly profyte shall growe therby to hiÌ„ that maketh the promyse but onely a spirituall profyte as in the case byfore rehersed of a ê“myse made to an vniuersitie / to a citie / to the churche / or suche other and with a cause / as to the honoure of god other / there it is moste comonly holden that an accion vpon those promises lyeth in the lawe canon ¶ Stu. Whether dost thou meane in suche promyses made to a vniuersite / to a citie / or to suche other as thou haste reherced byfore / with a cause / as to the honoure of god or suche other That the