religious man ought to doe fealtie tenaÌ„t ought to do such seruice yea though he be a religious man and professed vnder rule p ca. vnico tit de natura feudi Et tit qualiter vassall iur deb sideli domi Et in ca. vnico tit quib mod feud amittatur Et in quib causis feudum amitt tit quae â—uit pri causa benef amit Canonolog But such a religious man may not say Ego deuenio homo vester nor humiliate himself to execute the rite of homage q C. venieÌ„s C. ex diligenti de Simon grauem de excess praelat cap. fin de re Iud Anglonomo By our Law he may do homage but may not say to his Lord ego deuenio homo vester because he hath professed himself to be onely God his man but he may say I doe vnto you homage and to you shal be faithfull and loyall r Littlet lib. 2. c. 1. Sect. 2. Nonoma Shewe me I pray you some speciall 6. Diuision kinds of these seruices that I may know them morefully and more distinctly Codicgn Seruices are diuersified according 1. The diuerse kindes of seruices in the ciuill Law and their definitions to the qualities of the persons to whom they are to be done if it be to bee done to an Emperour it is to be tearmed an Imperiall seruice if to a King a regall seruice Å¿ Cap. 1. de feud march ducatâ— in ca. 1. quis dicat dux comes marchio if to Religious persons Ecclesiasticall if to Lay men secular t Tit. de his qui feud dar pos tit Episcop vel Abbat but when it is to bee done to a lesser estate then to an Emperour or King as to a Duke Marquesse or Earle then it is called feudum honoratum sometime land is giuen by inferior persons meaner men without expressing any seruice and theÌ„ the Law intendeth that fealty onely is to be done this is called FrancuÌ„ or LiberuÌ„ u Ca. 1. de no. form fidel sometime it is giuen with reseruation of speciall seruice that is feudum non nobile a Ca. fâ— de capilan qui cur vendid somtime it is giueÌ„ in perpetuuÌ„ sometime but for tearme of life and then it is called Perpetuum vel temporale b De feud march in prin de alien feud in fine de feud guard castald But though by the oath of fealtie the vassalle be bound to serue his Lord in warre yet this is limited to such case where the warre is not notoriously vniust or vnlawfull for if it be otherwise though hee doe him no seruice in warre yet he shall not forfeite his tenement c In cap Domino guerram in prin in tit hic sini lex deinde c. neither is he bound to do his seruice to his Lord if his Lorde bee excommunicate or bannished vntill he haue obteined absolution or a recalling from bannishment but d D. cap. Domino guerraÌ„ in sin in a iust warre the vassalle is bound to helpe his Lorde against euery other person who is not the Lorde of the vassalle yea euen against his father brother or sonne Anglonomoph Seruices in our Law are of diuerse 2. The diuerse kindes of seruices in the Common law and their definitions sorts some being more noble and some lesse noble of these which are more noble some belong to the king and some both to the king to subiects of these that belong to the king some be domestical only as Petite Sergeancie some bellicall onely as Knights seruice in Capite some both domesticall bellicall as grand sergeancie some of the more noble seruices belong vnto subiects as well as to the king as knights seruice and homage these which be lesse noble may be diuided into two braÌ„ches for either they are ingenuous or seruile the ingenuous are of two sorts either performable by particular men or a certaine people as fealtie rent seruice the like which make socage tenure or els performable by a certaine people onely as burgage the seruile or base seruice is villenage Of all these seruices saue such only as haue bin before described I will speake somewhat seuerally briefly and in order Petite Sergeancie is where a man holdeth his land of the King paying yerely vnto him a Bow or a speare or a dagger or a launce or a spurre of golde c. e Littlet lib. 2. ca. 9. sect ' 1. Knights seruice in Capite is where a man holdeth his landes or tenements of the king as of his crowne immediatly ab antiquo by doing some warlike seruice Graund sergeancie is where a man holdeth his lands or tenements of the king as of his Crowne immediatly by doing some speciall seruice to the King in person as by carying his banner or launce or by being his marshall or sewer or caruer or butler c. f Litt ' li. 2. ca. 8. sect ' 1. 23. H. 3. Gard 148 of homage and fealtie hath beene spoken before Rent seruice is where the tenant holdeth his lande of his Lorde by a certaine rent for which if it be behinde at the day wherein it ought to be paied the Lord may distreigne for it of common right Burgage is where the tenants of an auncient borough doe holde landes within the Borough of the King or some other person as of his borough by a certaine rent g Litt ' lib. 2. c. 10. sect ' 1. 2. Villenage is where a man holdeth of his Lorde either by doing vnto him some partiticuler base seruice and such a one is called a tenant by villenage or by doing generally whatsoeuer base seruice his Lorde will commaund and impose vpon him such a tenant he is tearmed in our Law a villaine h Litt. lib. 2. c 11. sect ' 1. 2 This miserable estate of villenage had his beginning soone after the diluge and now by the consent of all nations it is ratified for the West Indians though they haue 3 The original of villenage and the nature thereof no knowledge of diuine or humane Lawes yet bondmen they haue and the Mahometistes make Christians their bondeslaues the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market i Bodin lib. 1. de repub c. 5. The Romains had power by their law to sel or kil their villains k Tacit. li. 14. but for mittigation of cruelty the Law Petronia was made whereby it was forbidden that none should put his villaine to death without cause which law was executed by Nero l Senec. lib. 3. de benefic after by Adrianus m Sparcian in Adrian but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine and from the mayming of him n Litâ— ' lib. 2. c. 11. sect ' 32. hauing regard to
tenancie of whom fealtie is demaunded and he refuseth to perfourme it ſ C. vnico que fuit prima causa §. sed non est alia so that the Lorde doe demaunde fealtie at due times and allowed by Lawe because if he should demaund it euerie yere the vassalle should not loose his tenancie t §. si vastallus si de feud de funct ' §. licet vastallus c. domino guerrā in tit hic finit lex c. also the vassall looseth his tenancie if 2 Many causes of the tenants forfaiture in the ciuil Law being at full age he be not in expedition with his Lord or if he doe not depute some able person for the discharge of the duetie or if he doe not pay to his Lord stipendia militiae pro quantitate feodi when he is lawfully demaunded u de pace iuram firm §. fin and that is said to be a due quantitie of a knights see whē the vassall which goeth not in war nor sendeth a sufficient man doth yeelde the halfe part of the yerely value of his tenancy to the Lord. x C. Imperialem § firmiter de prohi feud alien p Freder Angonomo There be many conclusions in our 3 Some cause of forfaiture at the common Law Lawe aunswerable to that which you haue said for it hath bin affirmed that if a man holde his land of his Lord by homage and fealtie and he hath done homage and fealtie to his Lorde and the Lorde hath issue a sonne and dyeth and the seignorie discendeth to the sonne in this case the tenaunt which hath done homage to the father shal not do homage to the sonne because when a tenaunt hath once done homage to his Lorde hee is excused for tearme of lyfe to doe homage to any other heire of the Lord a Litt ' lib. 2. c. 7. sect 13. But if a man bee seised of a Mannour and an other man holdeth lande of him as of the foresayde Mannour by homage and hath done his homage vnto him and a straunger bringeth a Precipe quod reddat against the owner of the Mannour and recouereth the Mannour against him and sueth execution in this case the tenaunt shall agayne doe homage to him that recouered the Mannour though he haue done homage before because the estate of him who receiued the first homage is defeated by the recouerie and it lyeth not in the mouthe of the tenaunt to falsifye or defeate the recouerie which was against his Lorde b Litt ' ibid ' sect ' 17. And if if a tenaunt which ought by his tenure to doe homage to his Lorde come to his Lorde and say vnto him that hee is readie to doe him homage for the tenements which hee holdeth of him and the Lorde doth then refuse to receiue it after such refusall the Lord cannot distreigne the tenaunt for the homage before the Lorde require him to doe homage vnto him and he refuseth c Litt ' lib. 2. c. 7. sect ' 19. 20. and he that holdeth by Knights seruice of the King neede not goe to warre with him if hee will finde a sufficient person conueniently armed and fitte to goe with the King and this seemeth good reason For it may bee that hee that holdeth by such seruices doth languishe in sickenesse so that he cannot goe nor ryde And a Feme sole which holdeth by such seruices may not in such case goe in proper person and it hath beene said that Escuage shall not bee graunted vnlesse the King goe to warre himselfe in proper person and after such a voyage royall it hath beene likewise affirmed that by authoritie of Parliament Escuage shall be assessed and put in certaine how much euery one that holdeth by an entier fee of Knightes seruice which was not with the King by himselfe or by an other for him shall pay to his Lord of whom he holdeth by Escuage as if it be ordeigned by authoritie of Parliament that euery one which holdeth by an entier fee of Knights seruice that was not with the King nor any other c. for him shall pay to his Lord fortie shillinges then euery one that holdeth of his Lord by the moitie of a Knights fee shall pay to his Lorde fortie shillinges and he that holdeth by a fourth parte tenne shillinges and soe pro rata d Litt ' lib. 2. e. 3. sect ' 5. 6. 8. 7. E. 3. 29. Nomom Resolue me I pray you whether when 9. Diuision the tenant hath committed treason or felonie and thereof is conuicted and attainted he shal as to his tenancie incurre any preiudice Codicgn In such case either the offence is 1 Whether when the tenant hath cōmitted felony or treason and is attainted he shall suffer any preiudice in his tenancie 2 A diuersitie in the Ciuil law where the offence is committed against the person of the Lord and where against the person of a straunger committed against the person of his Lord and so he doth preiudice all these that are to succeede him in the land by order and course of Law depriuing them of the aduantage of inheritance e Cap. vnico §. denique in si in illis verbis si tamen fuerit paternumt it que fuit prima causa ben amitt or he hath offended against some other person and not against the person of the Lord then the children onely and such as were to take benefit by the person of the father as issuing from his bodie are repulsed from the inheritance f §. Si vassallus culpam si de feud◠defunct ' and then it goeth to them of the kinred which are nearer in degree g Gloss super verbo reuocabuntur in d. si vassallus culpam Anglonomoph By our Lawe where the tenant is outlawed of felonie it is in the Lords election to haue a writ of Escheate supposing that his tenant was outlawed of felony or that he dyed without heire for by the attainder the bloud is corrupted h 48 E. 3. 2. But it seemeth by Nicholses case 3 That by the common law by attainder of felonie or treason the bloud is corrupted and in the one case the land shall eschete to the king and in the other to the immediate Lord. that the partie attainted ought to bee dead before the lande can escheate for according to the opinion of Dyer and Barham in the Kinges case after the attainder and till Office be found the see simple shall bee in facto in the person attainted so long as he shall liue for as he hath a capacitie to take land of a new purchase so he hath power to hold his auncient possessions and he shall be tenant to euery Precipe and if he died before office found and the land be held of the King the lande shall goe to the King in nature of a common eschete i 18. Eliz. Com̄ 477. Nichols case but this is to be intended in
of debt or couenant vpon any especialtie made to the plaintife or plaintifes or vpon any contract supposed to be made between the plaintife or plaintifes and any person or persons or any action bill or plaint of detinue of any goods or chattels where the plaintife or plaintifes shall suppose that the propertie belongeth to them or any of them or any action bill or plaint of Accompt in the which the plaintife or plaintifes suppose the defendant or defendants to be their Bailife or Bailifes receiuer or receiuers of their Manor mease money or goods to yeeld accompt or any action bill or plaint vpon the case or vpon any statute for any offence or wronge personal immediatly supposed to be done to the plaintife or plaintifs and the plaintife or plaintifes in any such kind of action bill or plaint after appearance of the defendant or defendants be nonsuted or that any verdict happen to passe by lawfull trial against the plaintife or plaintifes in any such action bill or plaint that then the defendant or defendants in euerie such action bill or plaint shall haue iudgement to recouer his costes against euerie such plaintife or plaintifes e 23. H. 8. c. 15. Rast Dammages 6. Likewise whereas as you saie that the partie plaintife ought to be warie least hee 6. Suite must not be mainteined before an incompetent iudge according to the common law cause the defendant to appeare before an incoÌ„petent iudge that agreeth fullie with the common lawe for if a man doe sweare vnto me that he will enfeoffe me of such land before such a daie if he do not enfeoffe me I may not sue him in the Ecclesiasticall Court Pro laesione fidei because the acte which is to be done is a temporal acte and ought to be tried by the Common law and therefore if the partie be sued in the Ecclesiasticall Court for it he may haue a prohibition f Fitzh N. B. 43. D. so if a man deuise to one landes or tenements deuiseable the deuisee may not sue for these lands in the ecclesiasticall Court but if he make a deuise of goods or chattels reall as of an estate for tearme of yeares or of a warde for such he may 7. The seueral iurisdiction of diuerse courtes is described sue in that Court g Fitz. 161. F. and if a trespasse bee done vpon the gleabe of a beneficed person this must be tried at the Common lawe h 19. H. 6. 20. but if the termor of certaine land doe deuise his croppe and die the spiritual Court shal hold plea for this crop i 8. H. 3. Prohibit 19. but if a man sue in the spirituall Court for a rent reserued vpoÌ„ a lease for tithes or offerings a prohibition lieth for this is a lay rent k 44. E. 3. 32. and a man may sue a prohibition directed to the Sheriffe that the Sheriffe shall not permit nor suffer the Queenes lay people and subiects to come to any place at the citation of Bishops ad facienduÌ„ aliquas recognitiones vel sacramentuÌ„ praestanduÌ„ nisi in causis matrimonialibus testameÌ„tarijs l Fitzh N. B. 41. A. but if a testameÌ„t beare date at Cane in Normandie yet it may bee proued in England the executors may thereupon haue an action m 18. E. 2. Testam 6. a testameÌ„t shewed vnder the seale of the Ordinaire is not trauersable n 36. H. 6. 31. Paâ—k tit Testam furthermore if one which is of the Queenes houshold sue an other which is not of her Maiesties houshold in the court of Marshalsie the defendaÌ„t may plead to the iurisdictioÌ„ of the Court and if the Court wil not allow this exception he may haue a writ of Error and the iudgement giuen in the Marshalsie may bee reuersed in the Kings bench o 18. E. 4. 22. 19. E. 4. 2. 4. 7. in Scir fa. inter Prior. de Merton Prior. de Bingh per Littlet and if one of the Queenes houshold sue an other of the same houshold and the plaintife is put out of seruice depending the plea the other may shewe this and abate the writte but otherwise it is if the defendant be put out of seruice p Lib. de diuers des Courts fol. 102. b. and if a man be impleaded in the CoÌ„mon place for lands within the cinque portes the tenant may shewe to the Court that the lande is within the Cinque ports and by this plea the Court shall bee outed of iurisdiction but if the tenant do plead a plea in barre which is founde against him so that the demaundant hath iudgement to recouer the land this iudgement shall binde the tenant foreuer q Lib. de diuers des courts 107. and so it is of landes in auncient demesne if a writte bee brought for them in the Common place if the tenant appeare and plead in barre and take no exception to the iurisdiction and the plea is found against him so that the demaundant recouereth the tenant shall not reuerse this by a writte of Error because hee might haue taken in time exception to the iurisdiction of the Court and that should haue beene allowed r Ibidem but the lorde may reuerse this iudgement by a writ of disceite and make the land auncient demesne as it was before Å¿ Ibid. 16. E. 2. Continuall Claime 10. 11. H. 4. 86. 7. H. 4. 44. 8. H. 4. 24. 17. E. 3. 41. 26. E. 3. 33. now I come to the citation â— That the summons of the partie defendant is necessarily exacted by the common law or summons of the partie defendaunt which you haue prooued to bee necessarie by the Ciuill lawe and I will likewise prooue that it is by the Common lawe necessarilie exacted In a writte of Trespasse the Sheriffe returned Non est inuentus wherefore a Capias issued that the defendaunt might bee taken who afterwarde came into the Court and said that hee was sufficient and might haue beene summoned and prayed a writte to make the Sheriffe to come to aunswere to the King and to the partie for his false returne and hee had it t 31. E. 3. Processe 55. and in an attachment vpon a prohibition the Sheriffe returned Non est inuentus the plaintife prayed a Capias to an other Sheriffe in an other Countie but the Clarkes said that he ought not to haue any other processe then an attachment in the other Countie because it may bee that hee hath assets in the other Countie u 13. E. 3. Processe 34. by which hee may be summoned and so 11. H. 4. it is said that in an action of dette or trespasse a Capias will not lie against an Earle or any of like estate because it is to bee intended that they haue assets whereby they may bee summoned and brought to their answere x 11. H. 4. 15. per Hals and in a writte against P. and T.
land it selfe 2. That by the ciuill lawe a man may grant and demise the vse of a thing and yet not grant the thing it selfe The 6. Diuision 1. When a man selleth land wherein treasure is hidden and the vendor knoweth not of it whether the vendee shall haue the treasure 2. How this word treasure is taken in the ciuill lawe 3. That by the ciuill law money and other things necessarie to the common vse of this life are forbidden to be hidden and buried in the ground 4. Plato his superstitious opinion of things hidden in the earth 5. How the ciuill lawe doth order and dispose of treasure 6. What the common lawe doth determine of treasure The diuisions and principall contents of the fourth Dialogue of seignories and seruices The first Diuision 1. THe description of a seignorie by the ciuill lawe 2. By the Canon law 3. Likewise by the common law The 2. Diuision 1. What homage is and how it is to be performed by the common law 2. That homage hath beene practised in ancient time The 3. Diuision 1. What a Manor is and whereof it consisteth 2. The originall of a Manor The 4. Diuision 1. Statutes made for the preseruation of seignories and Manors The 5. Diuision 1. Fealtie is the most generall seruice in the common law 2. In the ciuill law 3. That by the ciuill law the common law and the Canon law a religious man ought to do fealtie The 6. Diuision 1. The diuerse kinds of seruices in the ciuill law and their definitions 2. The diuers kinds of seruices in the common lawe and their definitions 3. The originall of villenage and the nature thereof 4. The tenure whereby a man holdeth of an honour or manor is described and by examples illustrated 5. Certaine honours which be not of the ancientnes of the Crowne 6. Some honours which be annexed to the Crowne The 7. Diuision 1. Whether one within age be compellable by lawe to doe all manner of seruice either by himselfe or some other 2. A diuersitie in the Ciuill lawe whether the father of such an infant died in a iust warre or at home in his bed 3. That by the Common lawe the infant shall be in warde if his father died seised of lande held by Knights seruice without anie such diuersitie 4. A diuersitie in the Common lawe where the heire of the tenaunt by Knightes seruice is within age and a Knight at the time of his fathers death and where not The 8. Diuision 1. What penalties lie vpon the tenaunt if he doe not his seruice 2. Many causes of the tenaunts forfeiture in the Ciuill law 3. Some causes of forfeiture by the Common lawe The 9. Diuision 1. Whether when the tenaunt hath committed felonie or treason and is attainted he shall suffer any preiudice in his tenauncie 2. A diuersitie in the Ciuill lawe where the offence is committed against the person of the lord and where against the person of a straunger 3. That by the Common lawe by the attainder of felonie or treason the bloud is corrupted and in the one case the land shal eschet to the King in the other to the immediate Lord. 4. The aforesaid determinations and conclusions of Ciuill and Common lawe touching the forfeiture of the offendorare examined by the law of God The Diuisions and Principall contents of the fifth Dialogue of iointenauncie and tenauncie in common The first Diuision 1. THat iointenaunts and tenauntes in common ought to haue equall profit 2. That by the Common lawe a writ of account will lie if one iointenaunt take all the profits The 2. Diuision 1. That iointenauncie is dissolued by death vnlesse there be some clause in the creation of the estate to the contrarie The 3. Diuision 1. That by the Ciuill lawe by the ioint gift of all the goods of a man all corporall things passe 2. That by the Common lawe if a man deuise the third part of his goods to his wife it shall so be rated as they were at the time of the death of the testator That the Queene may graunt a thing in action The 4. Diuision 1. That iointenauncie by the Ciuill lawe may be of all such things as lie in contract 2. That the limitation of tenauncie in common is by the partie but the construction of it by the lawe The 5. Diuision 1. That an assignee of a moitie in the Ciuill law is bound by the couenant of his grauntor 2. That by the Common lawe in such case the assignee is bound by the couenant The Diuisions and principall contents of the sixth Dialogue of exchaunges The first Diuision 1. THat by the Ciuill lawe contractes for a certaine price are not exchaunges 2. That by the Common lawe the word excambium must be vsed in the exchaunge 3. That the estates must be equall 4. That the things exchaunged must be in esse 5. That an exchaunge is good though one part of it doe inure by way of extinguishment The 2. Diuision 1. That the incumbents may not exchaunge their benefices by the Cannon lawe 2. That the Chapiter may warrant permutations sede vacante in such benefices wherein they haue interest or authoritie 3. That by the Common law ecclesiasticall persons their patrons and ordinaries ioining together cannot make anie good exchaunge of ecclesiasticall benefices 4. That the statute of mortmaine is most strict and pregnant in words The Diuisions and principall contents of the seuenth Dialogue of Deuises and Legacies The first Diuision 1. THe antiquitie of willes 2. Plato his exception against Solons law concerning willes 3. Solons lawe is maintained and defended against Plato The 2. Diuision 1. Such as be vncapable of inheritaunces and goods may not be deuisees heires or executors by the ciuill lawe 2. A difference in the ciuill law betwixt the making of a deuisee and the making of an executor 3. That by the Common lawe all persons to whom a grant may be made a deuise may be made vnlesse it otherwise happen in some fewe cases 4. That the deuisee must be a person capaple of the thing deuised 5. That by the common lawe the deuisee ought to be capable at the time of the death of the deuisor The 3. Diuision 1. That by the ciuill lawe all such things may be deuised as the testator hath in his owne right at the time of the deuise 2. The three degrees of a testament by the common lawe 3. A difference in the common lawe where a man deuiseth a thing whereof he is not seised particularly and by name and where not 4. That thinges which are not in esse at the time of the deuise made may be deuised 5. That the deuise of tenaunt for life or tenaunt in dower of the corne growing at the time of their death is good 6. That when the partie hath a certaine and lawfull interest in a thing â—e may lease it grant it or deuise it before the existence of it 7. That a deuise may
haue the thing solde but if the payment bee respited vnto a certaine day vpon the contract this is good ynough so that the money 2 That a contract is not good without money payed in hand or a certaine day of payment limited be payed within the time prefixed l 21. H. 7. 6. and 28. H. 8. it is positiuely set downe for Lawe that a contracte is not good without present payment vnlesse a certaine day of payment bee limited so that the one of them may haue an action of debt for the money the other a writ of Detinue for the wares m 28. H. 8. 30. Dyer An implied consideration is when the Law it selfe doth intende and enforce a consideration and therefore the Hoste of a common Inne may deteine a mans horse if he wil not pay him for his horse meate And so if a Taylor make a gowne for any man he may deteine the gowne till he be paied for his labour n 5. E. 4. 2. Nomomat Doth not the defect of forme in 8. Diuision 1 Whether the defect of forme doe destroy the contract a contract frustrate and defeate the contract Codign Yes for as the substanciall fourme in materiall things is necessary to the essence and constitution of such things o ff ad extiâ—b l. Iulian. §. l. falsi l. si is qui. §. quidem so in contractes a 2 That solempnitie and concurrence of circumstances is required in contracts by the Ciuil law certaine solemnitie and concurrence of circumstances is required for the perfiting of them as their naturall and proper forme p ff de verb. obligat ' l. sciend l. continuus in princip Eo l. §. si quis ita and without such ceremoniousnes the contract is of no force Anglonomo Our law likewise requireth forme either in pronouncing the wordes of the contract or els in obseruing some other circumstances belonging to the contract For the first if a man promise to another xx li. with his daughter in maryage if he marrie the daughter and the money be not paied he shall not haue any action of debt or action vpon the case at the Common Law but he must sue for this money in the Spirituall 3 That matrimoniall contracts if there be no assumpsit in them are to be decided by the ecclesiastical Law if there be an assumpsit by the common law Court. q Fitz. nat br 44. a 14. E. 4. 6. Reg. 46. 48. 15. H. 3 Prohibition 22. 16. H. 3. Prohi 24. For here is no good forme of contract and as Master Bracton sayeth Matrimonium est principale eiusdem iuris id est iurisdictionis esse debet accessorium r Bracton lib. 5. cap. 16. And therefore if a man by reason of matrimonie or testament doe acknowledge in a Spiritual Court that he ought to pay to one a hundreth markes or some other summe at a certaine day if the money bee not payed at the day accordingly he may be sued for this money in the Spirituall Court and no prohibition lyeth s Fitz. na br 41. b. but if in the former case he had promised one x. li. if he would marrie his daughter if he doe marry his daughter and the other will not pay the money hee may not sue him in the Spirituall Court for this money but at the Common Law t Fitz. na br 44. a et 22. Ass pla 70. p Tho. 16. H. 3. Prohibit 22. for now it goeth in fourme of contract as for the other matter where forme is required in obseruing some other circumstance in the contract that may appeare by this case if a felon sell a horse without couin in a market ouert this doth alter the propertie and the verie proprietary cannot haue restitution of the horse notwithstanding the statute of 21. H. 8. c. 11. but if he had solde him out of a market ouert the propertie had not bin altered u 33. H. 6. 5. 18. E. 4. 24. 7. H. 7. 12. Crompt Iust de Peace 172. Nomom I will trouble you no further in this matter but will proceede to inquire somewhat touching Gifts and Graunts The second Dialogue of Gifts and Graunts NOmomathes In handeling the learning 1. Diuision 1 What things may be giuen or graunted of Gifts and Graunts I think it most fit in the first place to be inquired what things may be giuen or graunted wherefore first I pray you satisfie me in this Codicgn A man may giue all such thinges as 2 That all things that lye in commerce and may be receiued may be giuen an other may receiue a l. in aedibus §. fi ff Eo tit for dare accipere sunt correlatiua and all such things may be receiued which lie in commerce Nomomat Then thinges consecrated and ecclesiasticall may not be aliened because they lye not in contract Canonologus Thinges ecclesiasticall though they 3 That things ecclesiasticall though they be not consecrate cannot regularly be graunted be not consecrate cannot regularly be giuen or graunted b Cap. 2. de donation Eod. tit de re ecclesi non alien in antiquis 6. Cle. in c. sine except cap. si quisquis 12. q. 2. in l. Iubemus cum suis authen C. de sacrosan eccle and I did vse this worde regularly because where such alienation may bring profit to the Church it shall be of force c In dict iur Anglonomo In our Lawe a writ of Contraformam alienationis lyeth where a man gaue landes or tenements to an Abobt or house of Religion before the Statute of Quia emptores terrarum to holde of him in frankalmoigne and after the 4 That if an Abbot did alien lands giuen in frankealmoigne to his house the donor might haue a writ of Contra formam collationis Abbot with the Couent did alien the same land in fee to another nowe he that gaue this lande or his heire may sue this writte of Contra formam collationis against the Abbot or his successor but not against the tenant of the lande but when he hath recouered the lande hee may sue a Scirefacias against the tenant of the freehold d Fitz. na br 210. f. and this writ of Contra formam collationis lyeth not though the Abbot doth alien in fee vnlesse the Abbot and the Couent doe alien in fee e 19. E. 3. Contra formam collationis 5. Fitz. nat br 211. c. and if an Abbot with the Couent doe alien an Aduowson in fee at the next auoydance the foundor or his heire may present to the aduowson because they cannot in such case sue a Contra formam collationis f 20. E. 3. Contra form collat 6 Nomom Let me know I pray you how many 2. Diuision kinds of Gifts there be Anglonomoph They be of diuerse sortes some 1 The diuerse kinds of giftes some being fre some compensatory are called
34. because the profites of land the land it self are one the selfe same thing in substance m 10. H. 7. 9. 6. â— 6. 71. Dy. but he may lease his Parke excepting the wood vnderwood his maÌ„nor reseruing the warren but the soile of the wood and warren shall goe to the lessee n 14. H. 8. 1. 33. H. 8. Br. Reseruat 39. Codicgn By our Lawe a man may grant and 2. That by the Ciuill law a man may graÌ„t and demise the vse of a thing and yet not grant the thing it selfe demise the vse of a thing and yet not graunt the thing it selfe Suppose a man graunt vnto mee his mare for a certaine time I may during the time vse the mare at my pleasure but I may not lend her or set her ouer to some other to vse neither caÌ„ I haue the fole which coÌ„meth of her for by the graunt I may claime vsum onely but not vsumfructum and so hee to whom the vse of a mans ground is granted may take the profites of the ground to his owne vse but may not sell theÌ„ to others o Gâ—â—atup in vocabular verbo vti frui Nomom I would gladly know when a man 6. Diuision 1. When a maÌ„ selleth land in which treasure is hidde and the vendor knoweth not of it whether shall the vendee haue the treasure 2. How this word treasure is taken in the Ciuill lawe selleth his land in which there is treasure hidde whether the vendee shall haue the treasure because the vendor knew not of it at the time of the sale Codign It may bee you take the worde Treasure generally not properly as it is vsed strictly in our Lawe for if a man do hide any thing in the grouÌ„d for gaine or through feare or to keep it more safely within time of memorie this may not properly haue the name of treasure p l. nunquam D. de acquir rer domin for a treasure properly is when money or things of good value haue lyen from time out of minde hidden in the ground so that no man now hath propertie in it q d. l. nunquaÌ„ It hath bene forbidden by many 3. That by the Ciuil law money and other things necessary to the commoÌ„ vse of this life are forbidden to be hidden buried in the ground lawes that money may not be buried r l. 4. D. ad leg Iul pecul and these Lawes haue reason for them for it is against the s Aristot Nicomach 5. nature of monie that it should be buried being inuented for the daily and common vse of men and the same may be affirmed of other thinges which are hidden t L. 5. l. â— D. de vsufr ca. re que vs coâ— and these prohibitory lawes are fortified with this penaltie that things so hidden shall be forfeited to the Treasurie Plato had 4. Plato his superstitious opinion of thinges hidden in the earth such a scrupulous or rather such a superstitious conscience that he made by his lawes treasures to be immobâ—les Dijs inferis sacros and his precept is straunge in this case Quae minime deposuisti ne tollito u Plat. lib. 11. de legi Adrianus Caesar made a law as Spartianus reproteth that if any man had found treasure in his owne ground himselfe should haue it if in an other mans he should giue the halfe to the owner of the soyle if in a publique place he should deuide it equally with the treasurie This law was abrogated by other lawes following and reuiued by Iustinian but nowe 5. How the Ciuil law doth order and dispose of treasure and long time agoe our law hath transferred it to the Prince in whose Realme it is found x L. 3. §. Nerati D. de acquir posses Alberic Gentilis Disputati Decad. 1. c. 10. So that I cannot possibly see how the vendee in your case proposed shall by our law haue it Auglonomoph Nor by our law which saith Quod the saurus competit domino regi non domino libertatis si non sit per verba specialia aut per praescriptionem y Fitz. Coro 281. 436. And in this case though he selle 6. What the Common law doth determine of treasure vnto him the profit de terra yet he doth not sell vnto him the profits in terra which treasures are z Plowd coâ—en le informa pur mines Nomom I will content my selfe with this difference which you haue put and will now proceede according to the platforme of our forementioned order to learne something of seignories and seruices The fourth Dialogue of Seignories and seruices NOmomathes Because things are better 1. Diuision and more certainly knowne by the definition of them therefore I pray you let me first haue of you some definition or description of a seignorie Codicgn A seignorie which we call feudum 1. The description of a seignorie by the Ciuill law may be thus described A bountifull granting of land for doing homage or some other speciall seruice a Glo. in vsi feu tit quib mod feod acquir in princip c. vnico §. in primis tit in quib caus feud amit de feud dat mi. valuas ca. vnico melius tit de feud dat in vicem leg coÌ„missor reprob cap vnic Anglonomoph A seignorie with vs is nothing 2. Likewise by the Common law else but a relation of delitie betwixt the tenant and the Lord. Canonolog In our Canon law it is shortly desined 3. By the Canon law The granting of land for homage b C. ex diligenti de simon Nomomath Shew me I pray you how homage 2. Diuision and other seruices had their first existence and beginning but first shew me what homage is Anglonomoph Homage is thus performed The 1. What homage is and how it is to be performed by the Common law tenant that is to doe homage must haue his head discouered and his Lord sitting he must kneele before him vpon both his knees and shall hold forth both his hands betweene the hands of his Lord and shall say as followeth I become your man from this time forward of life and member and earthly honour and to you shall be faithfull and loyall and shall beare vnto you faith for the tenements which I claime to hold of you sauing the faith which I beare to our Lord the King which being done the Lord sitting shall kisse him c Littlet lib. 2. c. 1. Nomom Hath this ceremonie beene auncient Codicgn The kneeling and giuing of a kisse 2. That Homage hath bene practised in auncient times at the doing of such seruice is very auncient for Tiridates the King of Armenia did kneele down before Nero the Emperor whom Nero lifted vp and gaue him a kisse d Tranquil in Neron And longe before his time Alexander the great did imbrace and
with a kisse greeted such as made the like protestation of obedience and loyaltie vnto him e Plutarth in Alexand. and long before that as it seemeth it was vsed in Iudaea for vpoÌ„ these words of the Psalme ee Psalm 2. r. 12. kisse the sonne our english glosse addeth by way of interpretation in signe of homage and Tremellius and Iunius in signe of fealty sithence these times this respectiue humiliation hath spred it selfe into other countries and territories for the Duke of Gelderland did conceiue an oath in these words to Charles King of Fraunce Ego deuenio vassallus ligeus Caroli regis Francorum pro ratione quinquaginta millium scutorum auri ante festum diui Rhemigij mihi soluendorum c. e Bodin lib. 1. de repub c. 9. Nomom I desire greatly to know the originall 3. Diuision and first blossoming of other seignories Anglonomoph The most common seignorie of 1. What a Manor is and whereof it coÌ„sisteth accompt which wee haue in our Law is a seignorie by reason of a Manor which may be thus defined A Manor it an inheritance of ancient continuance coÌ„sisting of demesnes and seruices perquisites casualties things appendant and regardant customes liberties c. Nomoma What do so many things concurre to make a Manor will not demesnes and seruices serue Anglono Yes demesnes seruices will suffice as material causes to make a Manor f 26. H. 8. 4. but it is a naked Manor which hath nothing els Nomom I would gladly heare somewhat of the commencement and first creation of a Mannor Anglonomo M. Parkins doth very well originally 2. The originall of a Manor describe it in this manner The originall of a Manor was when the King did giue a thousand acres of lande or a greater or lesse parcell to one of his subiectes and his heires to holde of him and his heyres and the donee edifieth a house vpon this lande as his mansion place and of 20. acres or lesse or greater parcell he doth enfeoffe a straunger before the Statute of Quia empto terrar to holde of him and of his heires as of the same house by the plowing of 10. acres of arable laÌ„d parcell of that which remaineth in his owne possession and enfeoffeth and other of an other parcell to hold of him by carying ordure to his arable land and enfeoffeth a third man of a third parcell to goe with him in the warre against the Scots and so by continuance of time saith he a Manor is made g Park Reseruat fol. 128. Sect. 670. Yet by his fauour somewhat els goeth to the making of a Manor namely suite of Court at his house or mansion place h 33. H. 8. Br. Comprise 31. Mannor 5. and this suit must be the suite of more freeholders then one so that some doubt may be made of M. Kitchins assertion wheÌ„ he saith that in some Manors there be no tenaÌ„ts but copiholders and yet in such Mannors be Court barons i Kitch Court Leete Baron tit Manerâ—um fol. 4. for if all the freeholds do eschete vnto the Lord beside one or if he purchase al but one the maÌ„nor is extinct for it can not be a maÌ„nor vnlesse there be a Court baron belonging to it and a Court baron must be helde before suitors and not before one suitor therfore one freehold can not make a mannor k Br. Ca. Sect. 210. 23. H. 8. Br. Court baron 22. in fi 33. H. 8. Br. Suit 17. Nomom You haue well delared vnto me the 4 Diuision beginnings of Seignories and mannors but haue there bene no lawes made for the strengthning preseruing of theÌ„ for me thinks they be good meanes to increase support the wealth puissance and florishing estate of the Realme Anglono Yes our law in this case hath not either sluÌ„berd or winked For in the ancieÌ„t Statute of Magna Charta it is prouided that Nullus liber homo Statutes made for the preseruation of seignoties and Mannors det de caetero amplius de terra sua vel veÌ„dat de caetero quà m vt de residuo terrae suae possit sufficienter fieri domino feodi seruitium ei debitum quod pertinet ad feoduÌ„ illud l Magna charta c. 31. which statute as M. StaÌ„ford auoucheth is but a confirmation of the CoÌ„mon law he a most diligent and exquisite searcher of the reasons of Lawe so that I may boldly speake of him that which I shall not say impudently vntruly Faelix qui potuit rerum cognoscere causas sifteth out the reason of this Lawe For saith he if one that held by Knights seruice might haue bene suffered to haue aliened the greatest part of his land he would haue aliened the same peraduenture to holde of him but in Socage or by some small rent and then hauing so little a liuelod lefte to himselfe how had he bene able to haue done the seruice of a Knight or man of warre or what should his Lord haue had in warde to haue found one to haue performed the seruice surely little or nothing m Stamf. praerog c. 7. tit Alienati sans licence But it seemeth doubtfull notwithstanding the Statute of Magna Chart. whether the tenaunt might alien his whole tenancie or not whereupon the Statute of Quia emptores terrarum was made which permitted euerie free man to sell his lands or tenements or any part therof at his pleasure to hold of the chief Lord by the same seruice that the feoffer held prouided alwaies that by any such sale there come no lands to mortmain This Statute as M. Stamford noteth remedieth the mischief which was before found in the wardship but not the other mischiefe touching the defence of the Realme for when one mans liuing is so dismembred neuer a one of the feoffees nor the feoffor is able to doe the seruice of a warrior for want of liuelode there being so little quantity of land in euery of their hands yea much more vnable sithence this statute is the feoffor then before for before when he gaue it to hold of himselfe he reserued somewhat in lieu of the land which went from him whereas now he can reserue nothing of common right n Stamf. ibid. And the land which he retaineth in his owne hands may perhaps be of small value Nomom What is the most generall and most common seruice of all 5. Diuision Anglonomoph Fealtie for that is incident to euery 1. Fealtie is the most generall seruice in the Common law 2. And in the Ciuill law tenure vnles it be tenure in frankalmoign o Littlet lib. 2 c. 3. Sect. 13. c. 5. Sect. 22. Codicgn So it is with vs for fealtie which of vs is called fidelitas is due to euerie Lord to whom any seruice is to be performed and euery â— That by the Ciuill law the Common law and the Canon law a
the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed o Exo. 21. ver 26. 27. which lawe Constant the Emperor did put in practise p l. 1. de EmeÌ„d seruor C. but all the lands goods purchased possessed by the villaine the law frankly giueth to the Lord if he wil seise claime theÌ„ q Litt ' lib. 2. c. 11. sect ' 8. 10. wretched I coÌ„fesse is the estate of such men but yet paciently to be tollerated because quaÌ„ potestateÌ„ alijs deferre voluimus ferre debemus and they whose auncestors or theÌ„selues haue acknowledged theÌ„selues to be villains must now duetifully beare the yoake though Cui plus licet quà m parest plus vult quà m licet r Gellius lib. 17. c. 14. and let the Lords of such villaines harken to that which is spoken of an heathen man diuinely Boni moderatoris est restringere potestatem Å¿ Ammian lib. 29. but to leaue these particulers to proceed more generally as one man may hold lands of another by euery of these 4 The tenure wherby a man holdeth of an honor or Manor is discribed and by examples illustrated abouesaid seruices as of his person so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any Honor which is come to his highnes by disceÌ„t from any of his auÌ„cestours he shall not holde in Capite for by the words in the first Chapter of Prerogatiua regis it is euident that if it shal be said a tenure in Capite it must be holden of the Crowne of a long time the words be ab antiquo de Corona and that cannot be when it is but newly comen to the Crowne and the statute of Magna Charta cap. 31. did as Master Stamford saith helpe this matter by expresse words if such an Honor came to the Crowne by way of escheate but not if it came by way of discent or any other way and that statute doth set 5 Certain honors which be not of the auncientnes of the Crowne forth certaine honours by name which be not of the auncientnes of the Crowne that is to say the honor of Wallingford NotinghaÌ„ Bullingbrook and Lancaster therefore he that holdeth of the King as of these Honors holdeth not of the king in chiefe t Stamfords Praerog c. 7. but other honors there be which of so long time haue been annexed to the Crowne that to hold of theÌ„ is to hold in chiefe for wheras one held of the king as of a certaine honor to 6 Some honors which are annexed to the Câ—owne yeeld a certaine rent to the keeping of the Castell of Douer this hath beene taken to be a tenure in chiefe and so it hath been thought if one held of his highnes as of the Honour of the Abbe of Marle u Fitz. nat bre 256. and Anno vndecimo of king Henry the seuenth the honor of Ralegh was annexed to the Crowne therefore if any man hold as of that honor it is a tenure in capite x 34. H. 8. â—r Cas 230. and therefore there is a good rule in the Register of Writtes that a man shall not make a fine for alienation of lands helde of the King as of his honor but for lande helde in Capite onely for there be certaine honors which be held in Capite there is a certain writ that the Eschetor shal not greeue any maÌ„ for alienation of land held as of an Honor for that is as of an honor and not as of the kings person no Fine shall be paied for the alienation of such lande a Regist ' 184. Br. Alienac ' 33. And whereas it was found by Office that lande was helde of the Queene as of her principalitie of Wales by the seruice of goinge with the Prince in Warre at the charge of the Prince per CuriaÌ„ b 18. Eliz. Dy. per Curiam This is no Tenure in capite and Master Finchden putteth this diuersity that where an Honour is seised into the Kings handes if a Manor held of the Honor do escheat to the king by a common Escheate if the King alien the Manor to holde of him the tenant shall hold by the same seruices as hee helde by before of the Honour for the Honour seemeth to bee vice domini in this case and as a meane Lord but if it come to the King by forfaiture of warre or by some other treasoÌ„ or by some other cause which toucheth the Kings person and the King seiseth and enfeoffeth an other the feoffee shall holde of the King as of his Crowne c 47. E. 3. 21. per Finchden and though the Statute of Magna Charta Cap. 31. before recited doe say Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingforde Bolen c. non faciet aliud seruitium quam fecit praeante yet this is to be intended of a common Escheate and not otherwise d 19. H. 8. 〈◊〉 Ca. 114. So a man may holde of the King as of his Manour and yet not holde in Capite for it was found by office that one helde land of the King as of his Manor of Plimpton and other landes as of his Manour of Darington which came to the king by the attainder of treason of the Marquesse of Exetor this hath beene thought to be no Tenure in capite for tenures in chiefe did begin in auncient time vpon the graunts of Kings to defende them against rebelles and enemies and at this day the Queene may create a tenure in Capite if shee giue lande to holde of her person otherwise it is if it be giuen to hold of an Honor Manour c. for a Tenure in chiefe must be immediatly of the King and is created by the King onely for a tenure created by a subiect cannot be a tenure in chiefe nor haue any prerogatiue annexed vnto it and if the tenants of an Honour should holde of the King in Capite the Honour when it came to the King should bee destroyed which may not be and there is no reason that the tenant in whom there is no default should be preiudiced in his tenancie by the offence of the Lorde e 30. H. 8. 44. Dyer and if the Q. purchase a Manour of which I. S. holdeth by knights seruice the tenant shall holde as he helde before and he needeth not to tender his liuerie nor primer seisin for he doth not hold in Capite but as of a Manour and if his heire be in ward by reason thereof he may haue an Ouster le maine at his ful age and if the Queene graunt the Manour afterward to W. N. in fee excepting the seruices of I. S. now I. S. holdeth of the Queene as of her highnesse person yet hee shall not holde in Capite but by such seruices as he
helde by before of the Manor for the Queenes acte may not preiudice her tenant f 29. H. 8. Br. Ca. 113. but where a man holdeth of the Q. by reason of an other thing as namely by reason of a Manour this is no tenure in Capite g 3. Eliz. Com̄ 241. Wilgous case but if the King be seised of a Manour and giueth to a straunger an acre of the Manour to haue and to hold to him and to his heires of his body engendred without expressing any seruice the donee shall hold of the king by knights seruice in Capite h Ibid 240. per Car. and tenures likewise may be to hold of one as of his person or of his Manor by diuerse other seruices as if a man had made a feoffement of land before the statute or a gift in taile sithence the statute to holde of him by the making of a bridge ouer certaine land or by making a beacon in the lande giuen this is a good tenure for a man may holde of an other by doing seruice for a common good as well as for the priuate profit of the Lord as to repaire a bridge or a high way or by keeping such a Castle for the Lorde himselfe in this hath profit with others i 11. H. 7. 12. 12. H. 7. 18. p Finch 24. H. 8. Br. Cas 51. Nomom You haue taken some paines Anglonomoph 7. Diuision 1 Whether one within age be compellable by law to do all maner of seruice either by himselfe or some other in discribing the particuler kindes of tenures now I would here somewhat of Codicgn whether one within age be excused from personal seruice because his age is not fit to serue so that the seruiceage is suspēded vntil the maturity of his age or whether he shal be compelled to do his seruice by a substitute Codicgn To dissolue that question a difference is to be taken for either the Father of the heire which is within age died in the warlike seruice 2 A diuersitie in the Ciuill law whether the father of such an infant dyed in a iust warre or at home in his bedde vndertaken for the defence of his Lorde in a iust warre I meane that which is waged for the safetie of the common weale or els he dyed in his house by humane infirmitie without any bearing of armes in the first case he is not bound to doe any seruice either in his owne person or by any other person interposed during his minoritie because his father who died in the field is supposed in Lawe still to serue by the glorie of his valor k Instit de Excus tutor §. sed si in bello ff ad leg Aqu. l. qua actione §. si quis in colluctatione which the best and most learned of all Poets did well imagine who when he had placed Caesar in the middest of extreme troubles to comforte and encourage him representeth vnto him the ghost of Scaeua one that dyed a good while before but yet after many assaults and many woūds stoode out as a Conqueror l Lucan li. 10. which conceite of Lucan Tasso a moderne Italian writer a man of an excellent poeticall witte in the discriptyon of Guidoes funerall doth passionatelye though Popishely glaunce at m S. Torquat Tasso Canto 4. Gierusal liberat but if the father died not in warre nor in the expedition but by naturall death in his owne house then if the heire at the death of his Father bee in his pupillage he must perfourme that seruice by a substitute Anglonomoph But by our Lawe he shall be in 3 That by the common law the infant shal be in warde if his father died seised of land helde by knights seruice without any such diuersitie warde to the Lorde during his minoritie if hee holde his landes by Knightes seruice and the Lorde shall haue the profits of his lande that he may maintaine a sufficient man to doe him seruice in the warre whereas the heire by reason of his tender age cannot personally performe the seruice nor by the want of discretion prouide a conuenient person to accomplishe it n Litt ' lib. 2. c. c 4. sect ' 3. but if he be made a Knight within age then because the Lawe intendeth that he is fit to doe his seruice because knighthoode is bestowed in regarde of precedent merite or of some eminent prowesse and towardnes as may appeare by that saying of Scipio in the Senate ab annis septemdecim ad senectutem semper vos aetatem meam honoribus vestris anteistis ego vestros honores rebus gerendis precessi o Liuius li. 38. the Law is otherwise But 2. Ed. 6. in the case of Sir Anthony Browne of Surrey vicount Mountegue a difference was taken where the tenant by 4 A diuersitie in the commō law where the heire of the tenāt by knights seruice is within age and a knight at the time of his fathers death where not Knights seruice dieth seised his heire being within age and a Knight at the time of his death and when after his death he is made Knight during his minoritie for in the former case it was helde that he should be in warde notwithstanding his knighthoode p 2. E. 6. Br. Gard 42. 72. For otherwise the auncestor may procure his sonne within age to be made knight by collusion to the intent to defraude the Lord of his warde but this seemeth to be but a weake reason because knighthood is not by intendement of the law graunted vpon so sleight a cause but it seemeth to Master Brooke where the heire is in ward and is made knight being in warde this shall free him from wardship for the statute of Magna Chartaca 3. Postquam heres fuerit in custodia cum ad aetatem peruenerit scil 21. annorum habeat heredit atem suam sine releuio sine fine ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra sua remaneat in custodia dominorum vsque ad terminum supradictum this saieth q Br. ibid. Master Brooke verie probaly guyding his opinion by the premisses is onely to be intended where the heire is made Knight within age being in warde after the death of his auncestour and not where he is made knight in the life of the auncestour but admitte this to be meant of such an heire onely yet by no consequence can a man inferre hereof that if an heire within age bee made knight in his fathers life time he shal be in warde after the death of his father nay there is good authoritie for the contrarie r 6. Elizab. Comm̄ 268. Nomomat Let mee knowe I pray you what 8. Diuision penalties lye vpon the tenant if hee doe not his seruice Codicgn By our Lawe the vassalle is depriued 1 What penalties lye vpnon the tenant if he do not his seruice of his
case of felonie for in case of treason the King shall bee presently after the attainder in actuall possession without office founde by the statute of 33. H. 8. cap. 20. and if a man bee executed for felonie or die after Iudgement before he be put in execution yet the writ shall say pro quo suspensus fuit and if he be put to death by some other punishement then hanging though the writte say pro quo suspensus fuit that is not materiall k Fitz. nat bre 144. H. and if the father purchase lande and his eldest sonne is attainted of felonie and dieth hauing issue a sonne and the father dieth the next in degree of discent and worthines of bloud vnto the sonne attainted shall not haue the lande but it shall escheate to the immediate Lord of whom the Land is held for the bloud is corrupted otherwise it had b in if he had died in the life of his father hauing no issue l 32. H. 8. 48. Dyer Nomom Though I must needes confesse that it is verie good reason that the sonnes of thē which are dissoyall subiectes and traitors to their Prince shoulde be barred from the enheritance of their auncestours that their fathers infamy should alwaies accompanie them and that they shoulde liue in perpetuall memorie indignitie and disgrace that their life should be a punishment vnto them and their fathers fault a continual corrisiue for that is done because their fathers vices are feared in them it may be wel thought that being bredde and brought vp of naughtie parents they will be prone to doe the like and punishment in that case is vsed in the nature of a medicine and not in fourme of a penaltie and as it hath the effect of a punishment euerie one is punished for his owne fault onely but as it hath the effect of a medicine so one man is punished for an others fault that by suffering shame hee may be deterred from crime yet here it may be said what place is there left for innocencie if the most guiltles may be punished for the misdemeanor of the most guiltie for as it is not the fault of the corne that it groweth in a badde soile so it is not the fault of the sonnes that they are begotten of lewde fathers therfore it may seeme meet and expedient that there should be ibi paena vbi culpa and that offences should rest vpon the authors and that the falle shoulde goe no further then the fault and there is a Law in Deutronom Non interficiantur patres pro filijs nec filij pro patribus sed quisque pro peccato suo interficiatur m Deut. c. 24. and in an other place vnusquisque in iniquitate sua morietur quicunque comederit vuam acerbam illius dentes obstupescent n Ierem. 31. and againe anima que peccauit ipsa morietur filius non portauit iniquitatē patris nn Ezechi 18. Codicgn But Saule did not obserue that rule in Deutronom when he did put to the sword the citizens of Nobe where he did slay men women children oxe asse and sheepe ore gladij o 1. Reg. 22. Canonol But Dauid did keepe it who woulde 4 The aforesaid determinations conclusions of ciuil and common law touching the forfaiture of the offendor are examined by the Law of God not haue had reuenge taken vpon Isboseth the son of Saul p 2. Reg. 4. and caused them to bee slaine who wrought his death Codicgn Yet God did otherwise who in the diluge did destroy the parentes with their children who spared neither sexe nor age in Sodom who destroied together all the whole nation of the Amalekites who would needs haue Achan destroied with the children who did roote out al the inhabitants of Ierusalem Cononol We must otherwise conceiue of God his iudgements then of mens proceedinges hee hath said viae meae non sunt viae vestrae all perfection goodnes and iustice beginneth at him who doth not any thing because it is iust but it is therefore iust because hee doth it or woulde haue it done and if Achan had bin arrained before an Ordinary tribunall he onely had perished and not his children but God his iudgement is extraordinarie and his will is therefore a Lawe because he is God he is not bound to render accompt to any neither is he guided by any Lawe but by the Lawe of his owne will and though one man know not what an other doth purpose and imagin yet God knoweth the hart and searcheth the reines and might see somewhat condemnable in Achans children which man could not discouer yet in some cases he doth obserue an ordinarie course of punishment for q Numb 26. Core perished onely but not his sonnes but they were kept safe for the Lords seruice and of their posteritie came Samuel Codicg That which I spake before Canono out of the scripture was but by way of obiection for our law punisheth not the Sons with death but only with losse of inheritance in case of treason r ff C. ad l. Iul. mai Anglonomoph The same Lawe doe we obserue both in felonie and treason together with the forfaiture of the goods Codicgn The losse of inheritance in our Lawe doth comprehend the forfaiture of the goods Nomom Ye haue dwelt a long time in this discourse of tenures and seruices now therefore I would haue ye to speake somwhat of Iointenancie and tenancie in common The fifth Dialogue of Jointenancie and tenancy in comon NOmom Let me aske you this question 1. Diuision Codign when two be iointenants or tenants in common as we tearme them whether by rigor of law the profits ought to go to them all in common or no. Codicgn By common right they ought to haue 1 That Iointenants and tenants in cōmon ought to haue equall profit equall profit whether it be of money marchandise or other matter of negociation for if one shold haue more profit thē an other the gaine should not bee alike the societie or as it pleaseth you to tearme it Iointenancy or tenancy in common should be Leonina that is rather the deuouring of Lyons a ff Pro socio l. si non fuerint §. vlti then the deuiding of men or according to the common prouerbe a man should deuide honie with a Beare yet in this equal diuision which the law requireth recompense must be had of thinges persons and the industrie of the parties b l. omnes l. si socij l. l. si non fuerint ff cod Anglonomoph By our law if two bring a writ of warde of the body of the heire being within age and the one of them is summoned and seuered and the other recouereth he which was seuered may haue a writte of accompt against the other for the profites c 45. E. 3. 10. and a writ of accompt lieth if one iointenant take all the profites d 39.
liuerie onely transferreth the land otherwise it had beene if the word exchaunge had beene vsed in the deede and the estate which the parties are to haue in the land exchaunged ought to be equal 3. That the estates most be equall and Choke saith that both the things exchanged ought to be in esse at the time of the exchaunge and therefore an exchange of land for rent granted de nouo is not good but an exchaunge betwixt 4. That the things exchaūged must be in Esse a rent and a common which are in esse at the time of the exchaunge is good and so it is of land and rent c 9. E. 4. 21. p Brian Choke Nedham And according to his opinion an exchange of the right which the dissesee hath to the land wherof the disseisin is committed for an acre of land in which the disseisor hath right is no good exchaunge d 3. E. 4. 10. p Choke And where the worde exchaunge is mentioned though the conueyance be but an Indenture of couenants yet it shall amount to a good exchaunge for an Indenture of couenants was made betwixt a Prior and the Maister of Gunnell hall in Cambridge that the Maister should haue three acres of land to him and to his successors in perpetuall exchaunge for one chamber of two chambers to be assigned by the said Maister at his election to the said Prior and his successors this hath beene held to be a good exchaunge though it be by way of couenant e 9. E. 4. 38. And though it be auouched for lawe that if by a deed of composition it be agreed betwixt two that the one shall haue such landes in allowance of other lands belonging to him that this is a good exchaunge f 3. E. 3. 19. yet I doubt whether an exchange may be accōplished by such counteruaileable words but a man may 5. That an exchaunge is good though the one parte of it doe mure by way of extinguishment giue land in exchāge for a release which cannot mure but only by way of extinguishmēt though there be some authoritie against it g 7. E. 3. 37. therefore Nortons opiniō is iustly denied by Thorpe wheras he held that in euery exchaūge there must be a mutuall transmutation of the possession h 16. E. 3. Exchaunge 2. for if a man release to an other his estouer of wood which he is to take yeerely in his wood in exchaunge for land giuen to him in exchaunge for the same release this is a good exchange though the release take effect by way of extinguishmēt but it is as great a profite and aduauntage to the tenant to be discharged of the estouers as if so much had bene graunted vnto him out of an other mans wood i Park tit Exchaun 53. 31. E. 1. Exchange 16. and the Law well perceiueth the profite which a man may haue by way of extinguishment for if the father being tenant in taile doe alien the land entailed with warrantie and hath a rent charge in fee issuing out of the lande of his Sonne which doth discend vnto the sonne this is a good assets in value notwithstanding the extinguishment k 31. E. 3. Garrantie 29. Nomomath Whether may Ecclesiasticall benefices 2. Diuision promotions and liuings bee exchaunged or no. Canonolog The incumbents may not by their 1. That incūbents may not exchaunge their benefices by the Canon law sole authoritie chaunge their benefices but they may exchaunge them Interueniente authoritate Episcoporum ad quos pertinet collatio but there is a question in the glosse whether the Chapiter 2. That the Chapiter may warrant permutations sede vacāte in such benefices wherein they haue interest or authoritie may authorise such permutations sede vacante l C. quaesitū de rer permut glos in Clem vnica E. tit and it resolueth briefly that in such things wherein they haue a common collation either by reason of authoritie or by reason of interest and consent it may authorise exchanges sede vacante but in other cases not m Glos in d. Clem. vnic super verbo Conferantur Anglonomophylax The reason in our Lawe 3. That by the Common law Ecclesiasticall persons their patrons and ordinaries ioyning together can not make any good exchange of Ecclesiasticall benefices wherefore such ecclesiasticall persons nor their patrons and ordinaries though they all agree can not exchaunge the inheritances of spirituall liuings is because the statute strictly prouideth that no alienation be made in mortmaine for a thing which was amortised before may be again amortised and therefore if a religious person do appropriate a Church which is of his owne presentation without the kings licence it is forfeited though it were amortised before n 19. E. 3. Mortmain 8. and in such case where one Abbot did alien to an other the collusion was to bee enquired of as well as in the alienation of land made by a secular man to a religious corporation o 16. Assis pl. 1. for the wordes of the Statute of Mortmaine bee very 4. That the statute of Mortmain is most strict and pregnant in wordes strong and large against such purchasors which are thus Prouisum est quòd nullus religiosus emere vel sub colore donationis aut termini aut alterius tituli cuiuscunque ab aliquo recipere aut arte vel ingenio sibi appropriare praesumat per quod terrae tenementa huiusmodi ad manum mortuam quocunque modo deueniant p Statut. de religios 7. E. 1. Mortmain 3. and therefore the case was that a femme sole purchased lande in fee and tooke to husbād the villaine of a Bishop which he had in right of his Bishoprike and the Bishop entred and this was adiudged a mortmain for according to Wickinghams opiniō the words of the Statute of Mortmaine are quocunque modo otherwise it shall be if the tenant of the Bishop do die without heire q 41. E. 3. 21. but 19. Henr. 6. the contrarie is held to be Lawe but if the villaine himselfe purchase lande it is helde there that in such case a Bishop or an Abbot can not enter r 19. H. 6. 56. but Thorpes opinion is 41. E. 3. that though hee may not enter in the case aforesaid yet hee may reteigne the land against the villaine and the king may afterward ratifie his estate which is no more in plaine tearmes then that an estate so gained is voidable onely and not voide and as to the exchaunge of benefices betwixt parson and parson it is seuerely punished by edict of Parliament in our realme ſ 31. Eliz. Nomomathes I will not stay longer vpon the inquirie of exchaunges for you haue opened vnto mee the nature of them and how farre they extende in these few cases now let vs passe to a larger examination of the doubts and pointes of deuises and legacies The
that the deuisee be capable at the time of the death of the testator so it is likewise by our law for though a man may not graunt nor giue lands to his wife during the couerture because they both are but one persoÌ„ in law yet by custome heretofore which the CoÌ„mon law did fauour and now by statute he might or may deuise his lands to his wife to haue in fee simple or otherwise because such deuise taketh not effect till the death of the deuisor p Littl. lib. 2. c. 10. Sect. 8. 27. Assis pl. 60. and then they are not one person q 24. H. 8. Br. Deuis 34. Nomom Now let me know what things may 3. Diuision be deuised Codicgn Whatsoeuer things the testator hath 1. That by the Ciuill law all such things may bee deuised as the testator hath in his owne right at the time of the deuise as in his owne right r ff de legat 2. l. vinum §. si reÌ„ tuam if he happen to deuise a thing which is not his owne but an other maÌ„s the executor is by our Lawe compelable to buy it and to giue it to the deuisee by vertue of the will or if the owner will not sell it hee ought to pay the very value and full estimation of it to the deuisee Å¿ ff de legat 3. l. dubium §. vlti and if lande bee bought by the deuisor for which he hath not payed any monie or not all the monie if he died and the deuisee will haue the land hee must pay the monie and so enioy the land t L. 39. §. IdeÌ„ Iulianus de legat 1. but if the deuisor haue solde lande and hath not receiued the monie and he deuiseth the lande so solde to I. S. the deuisee in this case shall not haue the lande solde but the monie that is to bee payed for it for an argument is rightly drawne ab augmento ad diminutionem u L. si ex toto eo tit so that this conclusion may bee made is the thing bought due to the deuisee then the deuisee ought to pay the monie is the thing not solde not due to the deuisee then hee must haue the monie that is to bee payed for it Anglonomoph In our Lawe the making of a testament 2. The three degrees of a testament by the Common law hath three partes Inception which is the writing of the testament Progression which is the publication of it Consummation which is the death of the partie and when after the deuise the deuisor purchaseth other lands it caÌ„not 3. A differeÌ„ oâ— in the CoÌ„mon law where a man deuiseth a thing wherof he is not seised particularly and by name and where not be intended by any possibilitie that hee would haue them to passe by the deuise for there is nothing conteined in the will which doth purport such intent but it was held in Brettes case that if a man deuise land in certaintie as the mannor of Dale or white acre and he hath no interest nor possession in them at the time of the making of the will and after the doth purchase it in such case it shall passe to the deuisee for then it shall be taken that his intent was to purchase it as it is said 39. Henr. 6. 13. and it was likewise sayd that the statutes of 32. and 34. Henr. 8. required that the deuisors should bee seised of the land deuised at the time of the deuise for the words be Euerie person hauing or which after this acte shall haue c. a 10. Eli. ComÌ„ Brets case per Louel touts les Iust Nomom I pray you let me know more particularly what things may be deuised Codicgn A thing may be deuised which is not 4 That things which are not in esse at the time of the deuise made may be deuised in rerum natura at the time of the deuise if afterwarde it may be as the corne which shall grow in such a soyle or the lambes which shall come of his flocke of sheepe in such a field b Instit de legat §. ea quoque res ff de legat 1. l. quod in rerum but if the testator doe deuise tenne quarter of corne comming of the corne which shall growe in such a soyle or two tunnes of wine of his grapes in such a vineyard or tenne lambes of such a flock though so much corne or wine or so many laÌ„bes doe not arise of the thinges abouesaid yet the heire or executor is compellable by law to make them good integraliter because he may seeme to haue mencioned the soile the vineyard and the flocke rather by way of demonstration then by way of condition c l. quid testamento in prin ff de leg 1. l. Paulo Callimacho §. Iullanus Seuerus ff de legat 3. l. Lucius ff de alim leg but if the testator doe deuise certaine goods or a certaine summe of money to I. S. and in his life time after recouerie of his health he giueth the goods or payeth the money to the said I. S. now without any alteration of the deuise in the will the executors shall bee discharged of perfourming the deuise after the death of the testator d l. Lucius Titius in testamento in prin ff de legat 2. gl in Clem. dudum de Sepultur Angonomoph It is said in our bookes that if a 5 That the deuise of tenaÌ„t for terme of life or tenant iâ— dower of corne growing at the time of their death is good man which hath estate for life or tenaunt in dower doe deuise their corne growing vpon the lande at the time of their death this is a good deuise and hee in the reuersion shall not haue the Corne e 4 H. 3. Deuis 26. But if a man seised of lande in fee as in right of his wâ—fe doe lease the same land for yeares to a straunger and the lessee soweth the lande and after the woman dyeth the corne being not ripe in this case the lessee may deuise the corne growing vppon the lande and yet this estate is determined and it was certaine but a thing non-certaine was the cause of the determination of it f 7. E. 3. 67. 7. E. 4. 17. Park 99. sect 513. 10. E. 3. 29. And if a man bee seysed of lande in the right of his wife and sowe it ad deuiseth the corne growing vpon the lande and dyeth before it bee seuered the deuisee shall haue it and not the wife but otherwise it is of hearbes or meadowe growing vpon the lande and not seuered at the time of the death of the deuisour g 7. Ass pl. 16. And if tenaunt in taile of lande lease the lande for life and the lessee soweth the lande with Corne and the tenaunt in tayle dyeth and the issue recouereth in a Formedon in discender before the
legat 3. And if a house be deuised the Bathe belonging to the house and the orcharde also which belongeth to it doe passe if from the house there be a way to the Bathe or orcharde for then they may well be sayd to belong to the house and to be prouided for the benefit of the inhabitant l l. praedijs in §. balneas §. qui domum ff de legat 3. and if a man do by his last wil deuise land liue many daies after the testament made 2 That a mine of coale passeth with the land if it be iointly vsed with it otherwise it is if it be seuerally vsed and in his life time a myne of coale lead or tinne is opened and discouered in the soile then the testator dieth after that hee hath vsed the myne iointly with the land in this case the deuisee shal haue the mine but if he had demised for life or for yeres the mine to one and the land to an other so that they had beene seuered and disioined in particuler interest then the deuisee should not haue had the mine m l. cuÌ„ fundus nominatim ff de legat 2. but if the Testator deuise all his corne which he hath in such a barne and the deuisee being one of his housholde seruants of purpose bringeth a greater quantitie of corne into the barne the deuisee shall not haue this increase because it grewe by the fraude of the deuisee n cum ita legatur in princ ff de legat 2. Anglonomoph As to your two last cases deuises as I haue said before are so to be fauoured as dower and I thinke that if a man doe marrie a wife and die seised of lande and after his death a mine of coale is discouered in the ground and 3 That a woman shall be endowed of a mine of coale discouered after her husbands death then the woman bringeth a writ of dower she shal haue her dower as well of the mine being parcell of the lande as of the lande it selfe being the principal o 14. E. 3. Admeasurement 10. 13. E. 1. Itin North. 17. Fitz. na br 149. C. and as to your other case where the corne in such a barne is deuised and it is afterward increased the deuisee shall haue no more corne then was in the barne at the time of the deuise for it is as much as if he should haue said al the corne which he now hath in his barn for words of the present tense which hath a present beginning and ending may not be drawne either to a time past which hath had his beginning and 4 That words of the present tense in a deuise may not be extended to the future tense end or to a time future which hath neither beginning nor end and therfore if a man be bound to keepe the prisoners of the gaole of D. that they shall not escape this shall extende onely to the prisoners which are in the Gaole at the time of the making of the bonde and not to such which shall be afterwarde in the Gaole vnlesse it had beene expresly said which be or shall be in the Gaole p 21. H. 7. 37. and so if the Queene graunt to me visum franciplegij in omnibus terris meis feodis I shall not haue viewe of frankepledge in any landes but such as I haue at the time of the graunt q 38. H. 6. 10. so if a man be bound for the tenants of I. S. it shall be intended of these tenants onely which I. S. hath at the time of the obligation made r 39. H. 6. 6. and if a man graunt to another housewood and hedge-wood to be burnt in his houses in Dale this shal not extend to houses which are afterward built Å¿ Temps E. 1. Common 28. and though Wilbyes opinion be that if a man graÌ„t to another a way ouer his land with waines and the grauntee hath no freeholde at the time to which he may haue caryage yet if he purchase freehold afterward he may haue a way to it and Hankeford seemeth to be of this opinion 11. H. 4. t 21. E. 3. 2. per Wilby 11. H. 4 82. per Hank because in a generall graunt there needeth to be no naming of a certaine freehold yet in that very case dubito quid sit lex Nomomat Admitte that a man deuise the profittes of his lande for fiue yeres to I. S. the deuisee dyeth within two yeres next after the deuise then the deuisour dyeth whether shall the residue of the terme goe to the benefit of the executor 1 That by the ciuil law if the deuisee of a terme die before the deuisor the executor shal haue the terme or administrator of the deuisee Codicgn We haue expresse authoritie in our Law that it shall a l. vxori vâ—ufru §. quaesituÌ„ ff de vâ—ufru le Angonomoph Brettes case which is very famous in our law is to the coÌ„trary aa 10. Eliz. 46. ComÌ„ Brets case but if a man deuise 2 By the common law a diuersity is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacy executed xx li. to be paied yerely in 4. yeres after his death to I. S. and died and after the deuisee dyeth within foure yeres yet the executours of the deuisee shal haue the money or the residue of it by suite before the Ordinary in the spiritual Court for it is a duetie by the testament or deuise b 24. H. 8. Br. Deuise 27. 45. Condic ' 187. and an administrator may as well sue for that duety in the spiritual Court as he may haue a writte of Couenant at the common law vpon the couenaÌ„t made with the partie intestate c Fitz. na br 146. D. 2. Mar. 112. Dy. Nomom What if the testator do say I deuise such 10. Diuision a thing to God or to Christ what is wrought by this deuise Cononol The thing so deuised is due to the 1 That by the ciuil law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the Testator dwelt Church of the parish where the testator did dwel at the time of the deuise d Authent de ecclesiast ' titÌ„ §. si quis in nomine argu l. quae coÌ„ditio §. sin ff de cond de monstr Anglonomoph In auncient times such deuises were good and so was a fine leuied deo ecclesiae but the lawe is now altered e Scir faci 18. E. 4. 22. 19. E. 4. 2. 4. 7. per Pigot en le cas de Prior de Merton and in the one and twenteth yere of king Richarde the second a deuise of lande was made to one for life the remainder to an other for life the remainder to the Churche of S. Andrew in Holborne and this was adiudged
doct ' in l. quod â—eruus eod dict l. 1. §. est autem §. penult l. Lucius eod l. licâ—t in sin eod and in the one is the propertie in the other the trust Angonomoph To this our Law accordeth for 2 The nature and course of it at the common law if a man deliuer goods chattels to one to keepe and he will deliuer them he that deliuered them may haue a writ of Detinue against the other for these goods and chattels and so if a man deliuer goods or mony to an other in a bagge ensealed b Fitz. na br 138. A. or not ensealed c 18. H. 6. 20. or in a chest or coffer to deliuer to an other and hee to whom they are deliuered will not deliuer them ouer accordingly hee to whom they should bee deliuered may haue a writ of Detinue but if a man deliuer money to one being not in a bagge or coffer to redeliuer to him or to deliuer ouer to a straunger in such case neither he that deliuereth nor he to whom the money or goods are to bee deliuered shall haue a writte of Detinue for the money but a writte of Accompt because a writte of Detinue ought to be of a thing certaine as of money in a 3 A diuersitiâ— where a writ of Accompt of Detinue and of Trespas are to be brought concerning things deliuered at the coÌ„mon law bagge or of a horse or twentie kyne or such things in certaine d Fitz na br 138. A. 7. H. 4. 13. 13. E. 3. Detin 53. 6. E. 4. 11. 36. H. 6. 9. per WaÌ„gef Billing 5 Ma 152. Dy. 39. E. 3. 30. 46. E. 3. 16. if the bailie open the bagg in which money is deliuered the partie to whom the mony belongeth may haue a writ of Trespas or Detinue at his pleasure e 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him f 33. H. 6. 26. per Litt ' 20. H. 6. 17. So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a straunger and hee deliuereth it without mencioning the condition a writ of Detinue will lye against the first Bailie and no other remedy may be had g 9. H. 6. 37. per Curiam and where I deliuer goods and a straunger taketh them out of the possession of the Bailie I may haue a writ of Detinue against the straunger or against my Bailie h 20. E. 4. 11. for my Bailie is chargable into whose haÌ„ds soeuer the goods do come but if he deliuer them ouer to an other that baily is not chargeable to me but onely for the possession i 12. E. 4. 12. Nomomat Suppose that a man enfeoffeth me 2. Diuision of certaine landes with warrantie who reteigneth all the deeds and euidences concerning the landes in his owne possession whether may these deedes after liuery made to me of the lands be said to bee my depositum in his handes as a thing which I haue left in his hands and whether will a writ of Detinue lye for them at the common law Codicgn They cannot be said to be deposita in 1 That a thing cannot be said to be a depositum at the ciuil law except it be deliuered to the partie his hands because a thing cannot be said to be deposituÌ„ except it be deliuered to the partie k l. 1. ff de pos ibi Doct ' and if these writings which you speake of do belong to the feoffor as I thinke they doe then they cannot be said to be deposita for wee haue a rule in our law that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur and it is contra l quirem eod bonaÌ„ fidem that the owner should redeliuer his goods in which he hath a propertie to an other man m l. bona fides ff depos in sâ— Anglonomoph It is good to be considered to 2 That by the common law the feoffee of the land is to haue the charters when the feoffement is without warrantie otherwise it is when it is with warrantie whom these charters or deedes aboue mencioned doe belong The authority is very pregnant that if a man make a feoffement of his land to an other by deede the feoffee shall haue the charters concerning the land though the feoffor doe not expresly giue them to the feoffee n 18. E. 4. 14. 9. E. 4. 53. 39. E. 3. 22. 7. H. 4. 7. 34. H. 6. 1. And if a man make a lease for terme of yeares and after confirme the estate of the lessee in fee and he to whom the confirmation was made dyeth now his heire shall haue as well the deed of the lease for terme of yeares as well as the deed of confirmation because that deed maketh the confirmation good o 9. E. 4. 53. Fitz. nat br 138. K. and so where a gift is made to one for life the remainder to an other in taile if the donor release all his right to the tenant for life he in the remainder cannot haue a writte of Detinue for this release after the death of the tenaunt for terme of life p 9. H. 6. 54. But in the case which you haue proposed because the feoffement is with warrantie so that the feoffour is bounde to warrantie nowe the feoffee shall not haue the charters concerning the lande for so the feoffour might sayle of the maintenance of his warrantie and so if a man be enfeoffed with warrantie and after enfeoffeth an other with warrantie the heire of the feoffour may haue a writte of Detinue against a straunger in whose possession are any deedes or charters concerning the lande because he may haue aduauntage of this warrantie q Fitz. na br ibid ' L. but let the feoffement or gift bee made without warrantie it is cleare that the donee or feoffee may claime the charters concerning the inheritance de iure and therefore if a gift of lande be made to A. in taile the remainder to B. in fee and after A. dyeth without issue B. shall haue the deede r 3. H. 7. 15. so if laÌ„ds be giuen to two and the heires of one of them by deede now if the tenant for life die hee that hath the fee simple shall haue a writte of Detinue for the deede Å¿ Fitz. nat br 138. F. for the deede runneth with the land and is of the nature of the inheritance and therefore a repleuin lyeth not for such charters t 4. H. 7. 10. and it is saide by Newton 22. H. 6. that he in the remainder in taile shall not haue a writte of Detinue against the tenant for terme of life if he haue the deed specifying the remainder yet he cannot haue a Formed on in the remainder nor an action of Waste without shewing the deede u 22. H.
and A. the wife of T. by diuerse praecipes in the summons A. was omitted wherefore the writte abated a 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6 6 likewise in a writ of dower by seuerall praecipes the name of one of the tenants was omitted in the clause inde queritur and in the summons whereupon the writte was abated b 12. E. 3. Brief 671. furthermore if a man recouer in a writ of waste by the default of the defendant where hee was not summoned hee may haue a 9. That by the default of lawfull summons the proceeding of the plaintife is frustrated by the Common law writ of disceit c 19. E. 3. Disceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit 56. 17. E. 3. 58. Fitzh N. B. 98. b. 105. a. in this writ of disceit if there weare two summoners returned vpon the writ in which the summons failed if the Sheriffe do returne one of the summoners dead yet the other summoner shall be examined and if it be found that he did not summon the partie he shal be restored to his land d 8. E. 3. Disceit 7. 1. E. 2. Disceit 48. but if the summons be returned to be made by foure men whereas in truth they did not execute the summons of the writ as long as two of them liue the tenant who lost in the writ may haue a writ of disceit e Fitzh N. B. 98. D. but if three of thē die a writ of disceit may not be brought f 35. H. 6. 46. but an action vpon the case g 1. H. 6. 1. in a Praecipe quod reddat against the husband and the wife if at the grand Cape the husband appeare in person and the wife appeareth by Attorney who hath a warrant of Attorney which is not sufficient therefore iudgement is giuen vpon the wifes default against the husband and wife yet they may haue a writ of disceit if they were not summoned h 18. E. 2. Disceit 54. 55. Fitzh N. B. 99. B. and how necessarie a summons is may appeare verie plainly by the booke of 7. H. 6. where in a Formedon they were at issue and the tenant at the Nisi prius made default the demandant shewed how hee was in prison in the warde of the Marshall and praied that they would sende for him to appeare otherwise hee would saue his default afterward by imprisonment wherefore the Court sent for him and he came i 7. H. 6. 38. Nomomath Yee haue spent a great deale of 2. Diuision time in treating of the commencement or beginning of a suit or action yet I desire to haue some further knowledge of the nature of a citation or summons therefore resolue mee when a man is summoned to appeare within two or three daies after such a returne whether shall the second or third daie be accompted in the citation so that then he that is cited may well enough appeare when as in the one case one daie is past so that he doth not appeare within the two daies appearing first in the morning of the second daie in the other case two daies be past so that he appearing the third daie doth not appeare within the three daies so that if he will saue his default me thinketh he should appeare the first day of al. Codicgn This question is easily resolued for if 1. That by the Ciuill law if a man be boūd to appeare within tenne daies the tēth day is taken inclusiue he appeare within the two daies or three daies it is clearely sufficient because the last daie that is put in the citation doth implie that he may differre his appearaunce vnto the last daie k ff de verb. oblig l. qui ante Calendas l. eum qui ita ff eod and though an appeale be to be brought within 10. daies after the iudgement yet the last daie is taken inclusiue and not exclusiue l ff de success edict l. 1. §. dicimus and if time be giuen to one either by the partie or by Lawe that he may paie so much monie within or doe or propound anything de iure suo within 10. daies or from hence vntill 10. daies he may paie do or propound the 10. daie without any preiudice or surcease of time m Instit de verb. oblig §. si in diem Anglonomo If a man be bound to paie monie in festo sanctae Trinitatis if he tender the monie in the vigil of the feast it is not good nor in the octaues but the tender must be made the very daie of the feast but if the paimēt had bin limited on this side the feast or before the feast then it may well be made in the vigill of the feast n 21. E. 4. 52. and these words ab octabis sanctae Trinitatis must be intēded à 4. die octabis Trinitatis thereupon M. Brooke noteth that to this intent the first daie and the 2. That the first day and the fourth day of appearance are all one at the Common law fourth daie al the daies meane are but one day in law o 21. E 4. 43. Br. Iour iours en court 57. therfore if after the day of the returne of the writ of Capias and before the fourth day which is ful tearme the Sheriffe doth arrest a mā this arrest is not iustifiable because the first day and the fourth day be all one daie p 33. H. 6. 42. Nomom I would not haue you to insist longer 3. Diuision vpon this matter but now shewe vnto mee how causes are opened declared disclosed in your Courts and how faults and wrongs are manifested to the iudges Anglonomoph Al wrōgs offences are either 1. A diuersitie of opening prosecuting of priuate and publike offences at the Cōmon law priuate or publique priuate offences which are done by one mā to the hurt of an other are made knowne to the Court remedied by originall writte bil or plaint publique offences which are committed by the partie against the Queene and Commonweale are opened punished by way of enditement and information which is put in practise by common informers Nomom The māner of such informing seemeth 2. Exceptiō is taken to informations vsed by common informers to me to be a very harde course of Iustice for by that meane lewde persons are animated to terrifie impeach poore simple men and to bring them into danger for what mischiefe will they not do when a reward is proposed vnto them Codicg It is true our law doth generally disallow such proceeding therfore the name of a delator or informer is in our law accompted dishonest q L. 3. C. de Iniur and therefore it saith expresly Delatores 3. Many obiections are made out of the Ciuill lawe against common informers
and with her the apparell i 11. H. 4. 31. Br. Trespas 93. and as the father may haue this remedie for his sonne heire apparant so may the mother likewise if shee be an inheritrix k 30. E. 3 Brief 300. so that I meruaile at M. Catesbies opinion 9. E. 4. that this writte lieth not for the wife l 9. E. 4. 53. Nomomath I will require no more at your hands Anglonomoph of this matter now I pray you Codicgnostes resolue me in this whether wheÌ„ any mans beasts do any hurt vnto an other maÌ„ if this be not done by the owners acte default or procurement shall the maister make good the dammage susteined by such wrong Codicgn Surely brute beastes because they 1. How the owner shal be punished by the Ciuill law for a trespasse done by his beasts want vnderstanding and reason cannot be said properly to bind their owner noxaliter so that the fault should be accompted his for any rauin hurt or dammage whatsoeuer neither do such wrongs bind the owner of the beasts ex quasi delicto for a matter like vnto a wrong yet notwithstanding for preuenting of hurt that may in such sort happeÌ„ the law doth prouide that if the owner wil not voluntarily yeeld vp the beast as a recompence to him that is endaÌ„maged he must reÌ„der the daÌ„mages or els by the authoritie of the iudge be awarded compelled to yeeld vp the beast m L. 1. ff si quadrup paup fec dic and therfore if any man do keepe or nourish a Mastife or Boare or Foxe or Beare or Lion or Wolfe or some like beast which doth hurt or damnifie an other maÌ„ he that receiueth the hurt shall recouer daÌ„mages against the owner of the beast n §. Caeterùm Instit si quadru pauperieÌ„ fecisse dicatur but if such a beast do escape away froÌ„ me 2. In what case he shall not be punished though his beasts do hurt to an other man or goeth so farre from my pasture or warde that I cannot by pursuing recouer it neither doe I know whether it is fledde and so being escaped from me it doe hurt an other man in this case I am not to susteyne any dammage because in this case I am free from fault for the beast by such escape ceaseth to be mine and may become his that shall take or seise or kill it o d. l. 1. §. in bestijs §. Caeterù◠versic Denique si vrsus Anglonomoph To this our Lawe agreeth for we haue a writ of Trespasse which saith Quare vi armis centum oues ipsius A. cum quibusdam canibus fugauit canes illos ad mordendum oues praedictas intantùm incitando quòd per fugationem illam morsus canum praedictorum oues praedictae multiplititer deterioratae fuerunt magna pars ouium illarum faetus abortiuos fecit c. per quod 3. That by the Common law a man shal be punished for a trespasse done by his beasts c. p Fitzh N. B. 89. L. But if a Dogge doe kill or hurte any mans beastes the Maister being ignorant of his mischieuous property he is not punishable q 28. H. 8. 25. Dy. 29. Dy. wherby I gather that if hee know of his propertie though he do not set on his dogge or mainteine him to doe hurt to others hee shall be punished by action of trespasse and if a man doe driue his beastes thorough the Queenes highe way to which way my land that is sowne with corne is adioining and the beasts doe enter spoile my corne the owner shall bee punished for this though hee did driue them out presently or earnestly endeuour to chase them out of the corne r 10. E. 4. 7. so if a man chase his beastes in the highe way and they doe escape into land which is not inclosed ond the owner doth freshly pursue them and chaseth them out yet this is no good plea in barre without shewing that the tenant of the lande and all those whose estate hee hath in the lande haue vsed to inclose the said land toward the high way Å¿ 15. H. 7. 17. Nomomath I craue no more of this matter now I would haue you to transferre your inuentioÌ„ to the discourse of other offences against the peace which I doe thus dispose and distribute to your handling because all offences against the peace are either in an inferior degree as these whereof ye haue lastly spoken or in a middle degree as vnlawfull assemblies riots routes and forcible entres or in a higher degree and they be of three sortes namely such as be committed against the dignitie of man as treason and rebellion or against the life of man as murder manslaughter and homicide by chaunce or against the good estate of man as thefte burglarie and robberie I would therefore haue you first to begin to treate of vnlawfull assemblies riots c. and then to goe on with the rest accordinglie as I haue set them downe Codignostes Canonologus Anglonomophylax we are willing to pleasure you in anie thing that we can and as you propose doubtes of euerie of these titles seuerallie we will endeuour to satisfie and resolue you to our power The twelfth Dialogue of vnlawfull assemblies riots routes and forcible entries NOmomath Tell me Codicgnostes what 1. Diuision doe you take to be publique force in your Lawe Codignostes When an vnlawfull assembly is mette together in the highe streete 1. The description of publike force by the Ciuill law or in the open sight of men to offer abuse hurte or iniurie to a mans person or to take away his goods from him by violence and strength of hand a L. armatos ff ad L Iul de vi pub Anglonomophylax That likewise is publique 2. That in the matter of publike force the Common law agreeth with the ciuill force by our law of priuate force done to a maÌ„s person wee haue spoken before which if it be publickly done it turneth to be publicke force but as to the taking away of goods by open force if a man doe disseisie an other and when hee hath entred hee doth carie away the chattels of the disseisie this is in our Lawe a disseisin 3. A differeÌ„ce by the Common lawe betwixt publike force and opâ—n force with force and armes and the disseisor shall be punished by imprisonment b 11. H. 4. 16. Westminst 1. c. 37. 4. H. 4. c. 8. and a man disselsed an other but not with force at his first entre and it was found by assise that incontinent after his first entre he cut downe trees and this was awarded a disseisin with force and armes c 30. Assis 50. Assis 301. Nomomath What punishment haue they by your lawes which commit such force Codicgn The punishment of this fault in our 4. The punishment of publike force by the Ciuil law law is