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
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.
de singulis q Stamf. lib. 1. c. 26. Nomomat Well I pray you proceede in your purpose Anglonomoph As to that which is vttered of 10 How treason is committed by coining of money according to the censure of the common law Codicgnostes touching the vnlawfull coyninge of money it is for the most parte consonant to the Common Lawe of this Realme as nowe it is and as it was in auncient times by the testimonies of Bracton r Bract li. 2. tiâ— de crim laes mai Britton Å¿ Britt fol. 16. and Glanuille t Glan lib. 14. and the aforesayd Statute of 25. Edward the 3. maketh it treason for a common person to coine the kings money without his warrant and authentike which the statut calleth Counterfaiting wheras the statute saith the kings mony it must be intended the coine of this Realme or the dominions of it u Sramf 1. lib. 1. ca. 1. and this worde counterfeit doth import that if a man doe counterfait the Kings money though he doe not vtter it this is treason w 6. H. 7. 13. 1. R. 3. 1. and the forging and counterfaiting of coyne of another Realme is made treason awel as the couÌ„terfaiting of the coyne of this Realme a 4. H. 7. c. 18. 1. 2. Phi Ma ca. 11. But then it must be currant by proclamation in this Realme b 1. Mâ—r c. 6. Cromp I P 40. and as to the clipping of money heare the statute of 5. of our Soueraigne Ladie the Queene Be it enacted c. that after the first day of May next coÌ„ming clipping washing rounding or filing for wicked lucre or gaine sake of any the proper money or coyne of this Realme or the dominions thereof or of any other Realme allowed or suffered to be currant within this realme or the dominions thereof c. shal be taken and adiudged to be treason by vertue of this act c. c 5. Eliz. c. 11. Nomomat I pray you now declare the forfaitures and punishments of these seueral treasons Anglonomo The iudgment of him that is conuicted 11 The seueral punishmeÌ„ts of treasons by the common law of high treason is to bee caryed backe to the place whence he came and from thence to be drawne vpon a hurdle vnto the place of execution there to be hanged by the necke and to be cut downe quicke and his entrailes and priuy members to be sundred from his body and to be burnt within his view and his head to bee cut off and his body to be diuided into 4. parts and to be disposed at the Queenes will d Stamf. lib. 3. ca. 19. This is the Iudgement and sentence of condempnation of a man but of a woman it is otherwise namely that she shall be drawne on a hurdle and burnt e Stamf. ibid 23. lib. Ass pl. 2. ComÌ„ 31 6 and the offendour shall forfait his goods and landes to the King of whosoeuer the landes are holden f 25. E. 3. c. 2. Stamf. ibid 1. H. 6. 5. Stamf. li. 2. c. 37. c. 40. lib. 3. ca. 20. 4. H. 7. 11. per Towns but hee which hath estate in landes for terme of life or for yeares shall forfaite his estate onely g Stamf. lib. 3. c. 26. and by the statute of 26. H. 8. ca 13. and 5. and 6. Ed. 6. ca. 11. tenant in taile shall forfait his lande if he offende in high treason but no man shall forfaite lands which he hath in the right of an other as in the right of his wife or in the right of a Church h 5. 6. E. 6. ca. 11. Stamf. lib. 3. c. 26. and with the lande which a man forfaiteth he shall forfaite his â—uidences which concerne the lande i 49. H. 6. 15. and if a man leuie warre against the King and is slaine in it yet his lande shall be forfaited k 7. H. 4. 27. P Mark 34. E. 3. c. 12. 39. H 6. c. 1. Stamf. lib. 3. 29. and in such case the wife of such offendour shall loose her dower and his bloud or linage shall bee corrupt l Stamf. lib. 3. c. 19. But such as clippe washe round or file money are onely to forfait their lands during their life m 5. Eliz. c. 11. but such offence causeth not corruption of bloude nor the losse of Dower Nomomat Now time and order doth require that ye should speake of Homicide The fourtenth Dialogue of Homicide that is Murder Manslaughter Homicide by chaunce or misfortune NOmomat Because the apt diuision 1. Diuision of thinges giueth great light and ministreth exceeding helpe to the knowledge and vnderstanding of them I would therefore knowe Codicgnostes how many kindes of Homicide are set downe in your Law Codicgn Homicide in our Law is either the 1 The seueral kinds of Homicide by the ciuil Law and first murder is described wilful killing of a man of set purpose a l. 1. in princ in §. diuus ff ad l. Corn. de sicar l. 2. C. eod or els the killing of a man in the defence of his owne person as if I. N. should assault I. S. with a sworde he 2 Manslaughter se defendendo by the ciuil law may defend himselfe with a sworde and so auoid the iniurie if otherwise he cannot eschewe it but if I. S. may flie from him without daunger then the Lawe bindeth him to flie but if a man should so assault me that he should driue me to a very narrow pinch so that I cannot find a meane to escape with my life in this case it is lawful for me manfully to defende my selfe though it bee with killing him b Iodoc DaÌ„â—ouderius in reâ—uÌ„ criminal prax c. 78 79 and these sorts of manslaughter may be committed with clubbe c in d. §. Diuus l. 1. ff ad leg Corn de sicar stone sword or dart with arrowes launces pertisanes iauelins or with gunnes d Iusti de pub iudic §. IteÌ„ lex Cornelia or a man may be killed by poyson dd l. 3. §. 1. ff Ad Corn de sicar or by precipitation and being throwne headlong from the toppe of some house or some bridge or some hill or some tree e d. l. 1. ff ad leg Corn de sicar There is an other 3 The discription of selfe-slaughter by the ciuil law kind of Homicide which is tearmed homicidium sui ipsius wheÌ„ a man killeth himselfe such offendors are punished by our Law according to the quality of their minde whereby they were moued for if they kill themselues through griefe or impatience ee G. de Bonâ— eoruÌ„ qui mort sibi consc of some infirmitie no punishmeÌ„t followeth their fact but they are left to the tribunal 4 A diuersitie of killing a mans selfe by the ciuil Law of the almighty Iudge of the quick and the dead but if
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
Corne bee seuered the issue in taile may well deuise it h Park Deuis 100 sect 520. and if a man which is seised of land in fee haue issue a daughter and dyeth his wife being grossement enseint with a sonne and the daughter entreth and soweth the lande and after the sowing and before the seuerance the sonne is borne and one of his next friendes entreth for him yet the daughter may deuise the Corne growing vppon the lande i 19. H. 6. 6. And the Statute of Merton which sayeth that omnes viduae possint legare blada is but an affirmation of the common Lawe which was vsed in the time of King Henry the thirde aboue mencioned in the beginning of his raigne and so it is of other thinges future contingent they may bee deuised well enough for if a man enfeoffe a straunger of his lande vpon payment or non-payment on the part of the feoffee as if the feoffee shall pay vnto the feoffour twentie poundes at the feast of Easter next ensuing that then he may reteigne the lande to him and to his heires and if hee doe not pay that then it shall bee lawfull for the feoffour to re-enter nowe if the feoffour make his will and deuise the money when it shall bee paied to A. and dyeth before the day of payment this is a good deuise condicionally that is if the feoffee pay the mony to the executors k 12. E. 3. Condic 8. For when 6 That when the partie hath a certaine and lawfull interest in a thing he may lease it graunt it or deuise it before the existence of it the partie hath a lawfull and a certaine interest in a thinge hee may graunt lease or deuise it before the thing haue actuall existence therefore the saying of Master Keble that worthie man is well to be marked when hee sayeth that the King cannot graunt any disme before it bee graunted to his highnesse by Parliament neyther a wardshippe cum acciderit otherwise it is of the amerciaments of his tenants in such a village the wrecke of the Sea or catalla felonum for he hath an inheritance in them and a possession in law but in the disme hee hath no interest before the graunt l 21. E. 4. Abbot de Walth case 45. p Keble Codicgn By our Law a man may deuise to one 7 That a deuise may be vncertaine but yet good in Law because it may by special meanes be reduced to certaintie that he shall haue yerely xx loade of stone out of his quarrie in Dale or three load of wood out of his groue or coppies in Sale m ff de legat 1. l. apud Iulian §. si quis and if the testator doe deuise one of his vineyardes one of his horses or one of his rickes of corne it shall be in the election of the heire or the executor what vineyarde what horse or what ricke of corne he will giue him so that he giue him not the verie worst but these which be indifferent n l. legato generaliter ff de lega 1. Anglonomoph So in our Law a man may graunt therefore as I think if one deuise vnto an other one of the horses in his stable and he hath fiue in his stable the grauntee may chose which of them he will haue and if a man graunt to one xx s. of rent charge or xl s. of rent charge I may distreine for which of the rents I will o 9. E. 4. 39. 11. E. 3. Annuity 27. Park Grāts 17. sect 74. Nomomat Let me aske you this question The 4. Diuision Testator hauing but one daughter deuiseth by his wil that 1000. li. shal be payd for the mariage of his daughters meaning as well other daughters that shoulde be borne as her that is liuing there is none afterwarde borne the testator dyethw hether is the executor bounde to pay the whole thousande poundes to the daughter that is liuing Codicgn I thinke he is bounde by Lawe to pay 1 That by the Ciuil law Ius acrescendi taketh effect in legacies the whole summe vnto her p l. qui quartā §. fin ff de legat 1. for ius accrescendi habet locum in legatis q d. §. fin cum l. seq l. a Titio ff de verbo oblatio and so if the testator do deuise that if he shall haue a daughter the executor shoulde giue a C. li. for the mariage of his daughter and two daughters be borne nowe the executor shall pay to euery of them C. li. r l. qui filiabus §. si quis ita ff de legat 1. and if the case be that the testatour doth deuise the sixthe part of his houses of his landes or vineyards to Sempronius whereupon Sempronius demaundeth a sixth part of euery house of euery farme and of euery vineyarde and the heire saith that these thinges cannot well be deuided but that hee is readie to pay to the deuisee the verie 2 Whether when the 6. part of a thing is deuised the heire is compellable to deuide it by the Ciuil law or to render the value value of euery sixth parte the question is whether the law regardeth this aunswere of the heire and for this doubt we haue this generall decision if the thing which is so to be deuided be indiuisible by the nature of it or if it cannot bee commodiously diuided the heire hath the choise to pay the value but if it be deuisible then the law is otherwise ſ l. non amplius §. cum honorum ff de legat 1. Anglonomoph As to your last case our law doth accorde with yours for legacies shal be fauoured and ordered as dower is and if a woman haue title of dower to a house a chamber in the house may be allotted vnto her as the third part of the 3 That by the common law some time there may be a seuerance of the thing deuised sometime of the profits of the thing or of the aduantage house or in allowance of her dower but she shal not so be indowed of a milne but shall haue the third part of the profit of the milne because the milne cannot be seuered and a woman may bee endowed of a villaine ingrosse as to haue his seruices euery third day and of an aduowson in grosse to haue the third presentment and of the moitie of an aduowson ingrosse to haue the sixth presentment and a woman shall be endowed of a bailywicke to haue the third part of the profit of it t 1. H. 5. 1. 45. E. 3. Dower 50. Na. Br. 7. 2. H. 6. 11. 13. E. 2. Dower 161. Fitz. na br 148 C. 150. G. 149. K. 148. C. 12. E. 2. Dower 157. 11. E. 3. Dower 85. 15. E. 3. Dower 81. Nomomat Let the case bee that the Testatour 5. Diuision deuiseth to one a plotte of grounde and speaketh nothinge of the house which is built vppon it
whether shall the deuisee haue the house Codicgn By our Lawe hee shall haue the 1 That if a man deuise a plott of grouÌ„d whereon a house is built the house also passeth house whether it were built before the Testament were made or after u l. seruum silij §. si are ae ff de l. si are ae ff de leg 2. and wee haue a rule in our Lawe Quidquid plantatur seritur vel inaedificatur omne solo cedit radices si tamen egit Anglonomoph It is so likewise in our Lawe 2 A house built vpon laÌ„d entailed after the gift shal be recouered in a Formedon for if a man giue lande in taile and the donee buildeth a house vpon it and dyeth without issue the donor if he be deforced from the land shall demaunde it in a Formedon per nomen mesuagij a 32. H. 8. 47. Dyer Nomomat Put case the Testatour deuiseth to 6. Diuision one a deede or instrument conteyninge a certaine debt whether doth he deuise the debt or noe b l. seruum silij § â—um qui chirographum de legat 1. Codicgn In that case the debt passeth h but 1 That by the ciuil law when an especialtie conteining a debt is deuised to one the debt it selfe passeth if tenne seuerall payments ought to bee made by the condition of a bonde as suppose tenne poundes is to be payd yerely by tenne seueral payments and fiue yeres be past and fiue payments made and the testator deuiseth the summe comprised in the condition to I. S. in this case the deuisee shal not recouer against the executor the whole summe conteigned in the condition but fiue pounds onely c d. l. seruum filij §. sed et si nomen Anglonomoph Master Perkins a man that writeth 2 Master Parkins his opinioÌ„ touching the deuising of an obligation is examined of diuerse Titles of our Law rather subtilly then soundely saieth that if twentie pounds be due to a man vpon an obligation or a contracte which ought to be payd at the feast of Easter and he euiseth it to a straunger this is a good deuise if the money bee afterward payd but if he had deuised the obligation or the counterpaine of the Indenture of couenants wherein the bond is conteined the deuisee shall not vse an action vpon the bonde in his owne name but he may giue or sell the obligation to the obligor or to a straunger d Perkins 101. sect ' 527. but howe bonds or things in action may passe directly from one to another by way of graunt or deuise I cannot yet perceiue by any authenticke opinion in our yere bookes for to say that the especialty or bonde conteyning the debt or duety doth passe vnto the deuisee though the debt doe not passe as namely the parchment ynke and waxe but not the summe conteigned is as if one shoulde imagine that a man roweth ouer Thames in body and yet remaineth at the Temple staires in soule for if the debt being the principall doe not passe I cannot vnderstand how the parchment or paper or the deede it selfe being the accessorie can passe for accessorium sequitur suum principale Nomom Resolue in this if a man deuise to an 7. Diuision other a horse a garment or the like and they perishe in the handes of the executour whether is the executor bounde by Law to make them good Codicgn In such case either the executor doth linger and delay the deliuery or giuing of the thing deuised to him to whom it was deuised and then I doubt not but he is bound to pay the 1 That by the Ciuil Law the executor is bound to make good the thing which perisheth through his default value of the thing which perisheth through his default or there is no default in him and then he is not to bee charged with the making of it good e l. cum heres §. si l. huiusmodi §. si cui homo ff de legat 1. and then the executor or heire may bee said to delay the administration of the legacye when he may speedily performe it and will not but if he be by the acte of a straunger hindered from executing the bequest as suppose he hath not the monie readie which is deuised or the deuise be that hee shall purchase an other mans lande with the money of the deuisor and assure 2 That in some cases the time of performing legacies is left to the discretion of the Iudges it to I. S. if he cannot easilie compasse this purchase doing his best endeuour the rigor of lawe is to be tempered in this case by discretion and respite must bee giuen by the arbitrage of the Iudge f l. si domus §. in pecunia ff de legat 1. Anglonomoph In our Law we haue many cases wherein they that are charged with the deliuery of a thing vpon some trust and confidence 3 That by the common law the executors are bound to performe the deuise in conuenient time reposed in them and the thing that should be deliuered perisheth through their default they are enforced by lawe to make full amendes for if a man be seised of lande deuisable in fee and deuiseth by his Testament that his executors shall sell his land and shall distribute the profits comming thereof to the vse of the poore and the deuisor dyeth if a straunger tender vnto them monie for the lande but not so much as the lande is worthe in their opinion and they to the intent they may sell it more deere differre the sale for two yeres space and take the profit themselues nowe the heire for their longe delaying may enter 4 A diuersitie betwixt an obligee and a deuisee and put them out of the land g 38. Ass pl. 3. 39. Ass pl. 3. but if a man be bound in xx li. to pay x. li. at the feast of Saint Michael the obligee refuseth the money when it is tendered in pollardes which afterward are embased the obligor shall beare the losse of the embasement because he must pleade vncore prist h 7. E. 6. 83. Dyer and yet the refusal was the default of the obligee Nomom Put case that a man deuiseth to one a 8. Diuision beadsteede whether shall the deuisee by force of this deuise haue the curtaines of the bed Codicgn The accessorie goeth alwaies with the 1 That things which are accâ—ssory doe passe with their principal principal and the curtaines therefore in this case shall passe with the bedsteade i l. liberorum §. sin ibi glo de legat ' 3. so if a man deuise to one his land or his house the arrerages due by the farmor or inhabitant from the death of the Testator are payable to the deuisee but not the arrerages before k l. praedijs §. 1. ff de legat 3. l. Nomen §. filio ex parte de
her executor shall haue the summe otherwise it had beene if the wordes of the deuise had bene to be paied at the daie of her mariage or at the age of 21. yeares and she dieth before t 36. H. 8. 59. Dy. and 16. Eliz. A man deuised laude to one so that he doe paie 10. li. and if not that it should remaine to his house prouided that the lands shall not be sold but shall goe to the next of bloud being male it was helde that this was an estate taile that these words shall goe to his house shal be construed to the eldest person of his familie and these wordes being male shall be construed in the future tense and in many cases an estate may be limited in a deuise by implication as if a man deuise lande to one and to his heires males in fee simple the remainder to the next heires males of the kinne there is an entailemeÌ„t both in the first estate and also in the remainder u 16. Eliz. 333. Dy. 2. Eli. 171. Dy. but where a deuise is contrarie to Law it is voide of effect for a man deuised land in London to the 3. That the Common law frustrateth these deuises which are repugnant to Lawe Prior Couent of S. Bartholmewes so that they pay to the Deane and Chapiter of Powles 10. li. yeerely and if they failed then their estate to cease and that the lande should remaine to the Deane and it was helde by Fitzh Baldwin Iustices that this was a void remainder because it could not be limited after an estate in fee and as of a condition the Deane Chapiter could not haue aduantage but the heire a 29. H. 8. 32. Dy. and so if a man deuise laÌ„d to one in fee that if he die without heire that then it shall remaine to an other in fee this is a voide remainder because one fee simple cannot depend vpon an other b 19. H. 8. 8. Nomom What if the testator doe deuise to his 16. Diuision wife certaine land whilest she should liue chastly and she marieth whether is her estate determined Canonolog I thinke it is not determined for 1. That by the Cannon lawe if land be deuised to a woman whilest she shall liue chastly mariage is not implicatiuely and absolutely prohibited though the words of the deuise do implie a coÌ„dition yet the condition is not broken because matrimonium est reshonesta and therefore not to be imagined to be within the intent of the condition c Authent de nupt in princ 28. quaest 1. ca. sic enim 33. q. 2. c. 2. l. 2. C. de indict viduit toll Nomoma Yet it seemeth that the condition faileth Quia coitus castitas opponuntur d D. authent de nup. §. quâ—a vero therefore it may seeme that she should lose the legacie as well by marying as by liuing incontinently Canonol But I thinke rather that she shal not lose the legacie because there was no condition expressed in the deuise that shee should not marrie and therefore she can not be said in marying to do against the will of her husband but yet it may seeme that if she had maried within a yeare after the death of the testator she had broke the condition e ff de iur patron l. adigere §. fi for doubtles otherwise Mulier secundò nubeus castitatem seruat f D. authen de nup. §. fin autem ideÌ„ Extra de diuor c. gaudeamus in fin l. mulier §. cum proponaretur ff ad Trebel 2. That the Ciuill law and Common law do fauour mariage Codicgn Our Lawe in such cases fauoureth matrimonie g ff de reg iur l. In ambiguis l. in testamentis eod and where there is no condition prohibitorie expressed the Law will not in such case intende it h In authent hoc locum C. de secund nupt Anglonomop In our Law we haue a case that King Edward the sixth graunted to his sister the Ladie Mary the mannor of D. as long as shee should continue vnmaried and this is admitted in our Law to be a good limitation but no condition as hath bene before surmised i 4. Mar. 1. 141. Dy. 37. H. 6. 29. 10. Assis pl. 8. 17. Assis pl. 7. 3. Assis pl. 9. 6. Nomom Let this be the case the husbaÌ„d deuiseth 17. Diuision to his wife the ê“fits of al his goods the question is whether the wife may take the profits by her sole authoritie or by the appointment of the iudge or by the administration of the executor 1. That there is a diuersitie in the Ciuill lawe where a man maketh his wife vsufructuariam of his goods and where he deuiseth them to her Codicgn In our law we take this difference where he maketh his wife by his will vsufructuariam of the goods and where he doth deuise vnto her his goods For where he maketh her vsufructuariam she may of her owne power take the profit and benefit of the goods and she needeth not to expect or attend the curtisie of the executor k L. si habitatio §. si vsus fuÌ„di l. fundi ff de vsu hab But if he deuise his goods or the profits of his goods or commaund and charge his heire or executor by his will that they allow sufficient maintenaunce to his wife out of his lands or goods now the woman is a deuisee and she must take that which is deuised by the haÌ„ds of the heire or executor or else sue for it by law l ff de vsufâ—uct legat l. patrimonij l. si quis Anglonomoph By our law the power and authoritie 2. That by the Common law the administration of the goods and chattels of the testator doth appertaine only to the executor of deliuering goods and chattels or putting the deuisee in possession belongeth onely to the executors who must see debts paide before legacies performed m 37. H. 6. 30. â— Prisot 2. H. 6 16. Perkins Testam 94. D. S. Dialog 2. 79. And therefore if a straunger take goods deuised to me out of the possession of the executors I cannot haue an action of trespasse for the taking For it is not like to a gift of goods which is presently executed and if a man deuise the â—ourth part of his goods to another the deuisee may not seise the fourth part but he must sue for it in the spiritual court n 27. H. 6. but if a man deuise a booke or some other thing to one for tearme of life the remainder to an other for euer if the executor deliuer the booke or the goods to the first deuisee the second deuisee may seise theÌ„ without liuerie of the executor for the possessioÌ„ of the first deuisee was the possessioÌ„ of theÌ„ both otherwise it is if the first deuisee hath the possessioÌ„ die
be vncertaine but yet good in law because it may by speciall meane be reduced to certaintie The 4. Diuision 1. That by the Ciuill law Ius accerscendi taketh effect in legacies 2. Whether when the sixt part of a thing is deuised the heire or executor is compellable by the ciuil law to diuide it or to render in value 3. That by the common lawe sometime there may be a seuerance of the thing deuised sometimes of the profits or of the aduantage of the thing The 5. Diuision 1. That if a man deuise a plot of ground whereupon a house is built the house also passeth 2. A house built vpon land entailed after the gift shall be recouered in a Formedon The 6. Diuision 1. That by the Ciuill lawe when an especialtie contayning a debt is deuised to one the debt it selfe passeth 2. Maister Parkins his opinion touching the diuising of an Obligation is examined The 7. Diuision 1. That by the Ciuill law the executor is bouÌ„d to make good the thing which perisheth through his default 2. That in some cases the time of performing legacies is left to the discretioÌ„ of the iudges 3. That by the Common law the executors are bound to performe the deuise in conuenient time 4. A diuersitie betwixt an obligee and a deuisee The 8. Diuision 1. That things which are accessorie do passe with their principall 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 3. That a womaÌ„ shall be endowed of a mine of coale discouered after the husbands death 4. That words of the Present tense in a deuise may not be extended to the Future tense The 9. Diuision 1. That by the Ciuill law if the deuisee of a tearme die before the deuisor the executor shal haue the tearme 2. By the Common law a diuersitie is taken where the deuisee dieth in the life of the deuisor and where after his death but before the legacie executed The 10. Diuision 1. That by the Ciuill law when a thing is deuised to God or to Christ it shall goe to the Church of the parishe where the testator dwelt 2. That by the Common law and by the statute of 23. H. 8. such deuise is void 3. What is meant by a Church parochiall according to Rolfes opinion The 11. Diuision 1. That by the Ciuill law where two testaments containe in them seuerall summes that which conteyneâ—h the lesser shall stand but by the Common law the latter testament The 12. Diuision 1. That by the Ciuill law if an oxe be deuised to one he die the skinne is not due to the deuisee 2. That by the CoÌ„mon law it seemeth to be due otherwise it had bene if there had bene an exception of the hyde The 13. Diuision 1. That if the reconusor deuise al his goods to the reconusee yet he shal haue execution of the land 2. If the obligee make the obligor his executor the dette is extinct The 14. Diuision 1. That by the Ciuill lawe if a man ordeyne by his will that his daughters shal marie by the appointmeÌ„t of Titius that Titius his executor may dispose of this mariage 2. that by the CoÌ„moÌ„ law where a confidence is reposed in certaine persons it is incommunicable to others The 15. Diuision 1. That by the Ciuill law deuises are coÌ„struâ—d for the most parte most fauorably for the deuisee 2. That the CoÌ„mon lawe so fauoreth deuises that it vpholdeth equitie the corespondencie of reason 3. That the CoÌ„mon law frustrateth these deuises which are repugnaÌ„t to Law The 16. Diuision 1. That by the Canon law if land be deuised to a woman whilest she shall liue chastly her mariage is not implicatiuely and absolutely prohibited 2. That the Ciuil law and Common law do fauour mariage The 17. Diuision 1. That there is a diuersitie in the Ciuill law where a man maketh his wife vsufructuariaÌ„ of his goods where he deuiseth them to her 2 That by the Common law the administration of the goods and chattels of the testator doth apperteine onely to the executor The 18. Diuision 1. That by the Ciuil law the husband may demand a legacie due to the wife without naming the wife 2. That in the Common law there is a diuersitie as touching bringing of actions in the wifes name where the matter of the writ is reall where it is personall 3. That where the wrong doth immediately coÌ„cerne the person of the wife the wife of necessitie must be named The 19. Diuision 1. That by the Ciuill law when maintenance is deuised to one till ripenes of age is intended of full age 2. The diuersitie of ages by the Common law The 20. Diuision 1. That by the ciuill law wheÌ„ a maÌ„sion house that is in one parish is deuised the appurtenaÌ„ces in another parish do passe by the deuise 2. That by the Common law land cannot be appurtenant to land The Diuisions and principall contents of the eight Dialogue of Borowing and Lending The first Diuision 1. THe difference in the Ciuill law betwixt mutuum and commodatum The 2. Diuision 1. That particular persons corporatioÌ„s churches parochial may be bound by contract of borowing and lending by the Ciuill law 2. That by the Common law Abbots Priors and such religious persons might charge their house by their contract and by recognisans The 3. Diuision 1. Two kinds of borowing leÌ„ding by the Ciuill law naturall ciuil 2. That the CoÌ„mon law acknowledgeth this difference in substance effect The 4. Diuision 1. An vsurous leÌ„ding or lending of monie for interest is by way of obiectioÌ„ mainteined 2. Aquinas his authoritie is vrged for proofe hereof 3. The obiection is answered by the Canonist 4. Aquinas his authoritie disproued 5. The Ciuill law in condeÌ„ning vsury agreeth with the Canon 6. The Common law in this agreeth with the other lawes The 5. Diuision 1. A diuersitie in the Ciuill law when monie is teÌ„dered at the day of paymeÌ„t is after embased when it is tendered after 2. To the aforesaid diuersitie the Common law seemeth to agree The 6. Diuision 1. That by the bond of the surety the principall dettor is not discharged by the Ciuill law 2. That by the CoÌ„mon law as well the one as the other may be sued The Diuisions and principall contents of the ninth Dialogue of the baylement and deliuery of goods and chattels Hhe first Diuision 1. THe definition of depositum by the Ciuill law 2. The nature course of it at the Common law 3. A diuersitie where a writte of accompt of detinue and of trespasse are to be brought concerning things deliuered at the Common law The 2. Diuision 1. That a thing cannot be said to be a deposituÌ„ at the Ciuill law except it be deliuered to the partie 2. That by the Canon law the feoffee of the land is to haue the charters when the feoffement
is without warrantie The 3. Diuision 1. That the Baylie is not to bee charged with the losse of the goods which happeneth meerely by casualtie The Diuisions and principall contents of the tenth Dialogue of the forme and manner of ordinarie proceeding in matters of Lawe The first Diuision 1. THe things which are to be obserued of the plaintife at the beginning of a suit by the Ciuil law 2. Citation is proued to be of the substāce of the proceeding cōtrary to the opinion of some Ciuilians 3. The cautels to bee obserued at the Common law in the cōmencement of an action 4. Disablements in the person of the plaintife at the Common law 5. The statute of 23. of H. 8. of giuing dāmages to the defendant is cōpared with the rule of the Ciuil law 6. Suit must not be mainteined before an incompetent iudge according to the Common law 7. The seuerall iurisdiction of diuerse Courts is described 8. That the summons of the partie defendant is necessarily exacted by the Common law 9. That by the default of lawfull summons the proceeding of the plaintife is frustrate by the Common law The 2. Diuision 1. That by the Ciuill lawe if a man be bound to appeare within 10. daies the tenth day is taken inclusiue 2. That the first day and fourth day of appearance are all one by the Common law The 3. Diuision 1. A diuersitie of opening and prosecuting of priuate and publike offences at the Common law 2. Exception is taken to informations vsed by cōmon informers 3. Many obiections are made out of the Ciuill law against cōmon informers 4. Punishments ordeined by diuerse Emperors against cōmon informers 5. Codicgnostes is charged by Anglonomophylax to mistake the point in question 6. He is likewise charged to mistake the Ciuill law in this point 7. The statute of 18. of our soueraigne Lady the Queene is cōpared with the edicts of Emperours 8. Codicgnostes his surmise that informations were not vsed in the best times of the Romanes is aunswered and confuted 9. It is shewed likewise that informations are expedient for the administration of Iustice The 4. Diuision 1. Defaultes are dispensed withall by the Ciuill lawe when they happen by the acte of God The 5. Diuision 1. The most common action in the Ciuill law is actio iniuriarum which is eyther Ciuilis or praetoria 2. Actions and enditements at the Common law are compared with ciuill and pretorian actions The 6. Diuision 1. The libell of an action of iniuries is fully set downe according to the forme of the Ciuill law 2. Exception is taken to the forme of the libell for vncertaintie 3. The exceptiō is approued by the Cōmon law 4. Exception likewise is taken to the libell for mingling thinges of diuerse seuerall natures in it 5. This exception likewise is mainteined by the Common law 6. An other exception is takē for the superfluous alleaging of the day houre of the trespasse done 7. Exception also is taken for vsing too many wordes in describing the wrong 8. Exception is taken for saying nemini iniuriam inferendo 9. Exception is likewise taken for vsing these words animo iniurioso being taken for a surplusage 10. Codicgnostes answereth the exceptions 11. Anglonomophylax particularly examineth discusseth the exceptions 12. Anglonomophylax excuseth defendeth the abundance of words in declarations libels 13. The forme of a declaration vpon an action vpon the case resembling actionē iniuriarū 14. The cutting off of delaies by the Ciuill law 15. The diminishing of delaies by the Cōmon law 16. The forme of a defence or barre in an action of iniuries 17. The forme of a defence in an action vpon the case 18. The forme of triall by the Ciuill law 19. The forme of trial by the Cōmon law 20. The forme of iudgemēt in the Ciuil law 21. The forme of entring iudgement at the cōmon law The 7. Diuision 1. That by the Ciuill law an action of iniuries wil not lie by the executor against the executor 2. That by the Common law actio personalis moritur cū persona vnlesse it be in some speciall cases The Diuisions and particular contents of the Eleuenth Dialogue of common Wrongs and Trespasses The first Diuision 1. THe diuerse kinds of iniuries in the Ciuill law 2. What an assault is according to the Common law 3. That the Common law giueth an action vpon the case for a slaunder The 2. Diuision 1. That by the Ciuil law an action of trespasse lieth for the father husband maister for a wrōg done to the sonne wife seruant 2. That by the Common law the husband may haue an action for a wrong done to his wife 3. In what cases an action will lie for the maister for a wrong done to his seruant 4. In what cases by the Common law an action will lie for the father for a wrong done to his sonne The 3. Diuision 1. How the owner shall be punished by the Ciuil law for a trespasse done by his beasts 2. In what case hee shall not bee punished though his beastes doe hurt to an other man 3. That by the Common law a man shall be punished for a trespasse done by his beasts The Diuisions and principall contents of the twelfth Dialogue of vnlawfull assemblies riots c. The first Diuision 1. THe description of publike force by the Ciuill law 2. That in the matter of publike force the Cōmon law agreeth with the ciuill 3. A differēce by the Cōmon law betwixt publike force open force 4. The punishment of publike force by the Ciuill law 5. That by the Common law the counsaylers cōmitters of force are alike punished 6. What an vnlawfull assembly is by the Common law 7. What a rout is 8. What a ryot is 9. The punishmēt of the aforesaid offences by the Cannon law The 2. Diuision 1. The punishment of the Iustice not punishing such offences by the Ciuill law 2. That the Iustices of peace by the Common law are punished for remissenes of punishing others for the aforesaid faultes The Diuisions and principall contents of the thirtenth Dialogue of Treason and Rebellion The first Diuision 1. THe reason is shewed by Codignostes wherefore Treason is aptly tearmed a fault against the dignitie of man 2. The punishment of treason in auncient times The 2. Diuision 1. The diuers kindes of treason by the Ciuill law 2. The diuers kindes of treason by coyning of money in the Ciuill law 3. The punishments of traytors by the Ciuill law 4. The seuerall coines of forreine princes in auncient time 5. The diuers kindes of treason by the Common lawe 6. How farre forth this word Ligeance doth extend by the Common law 7. How the Queens enemies are to be punished by the Common law agreeing with the law of God 8. How enemies are punished by the Coannon law 9. How breaking of prison is taken in the Cōmon law 10. How treason is committed by coyning of money according