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.
E. 3. 35. and 2. That by the Common law a writ of accompt will lie if one iointenant take all the profites for cutting of wood which is held pro indiuiso the selling of it a writte of accompt will lie for the one iointenant against the other e 47. E. 3. 22. and the plaintife need not shew in certaine in his writte of accompt by whose handes the resceit of the mony giuē for the profits was f 39. E. 3. 35. and if one of the iointenants doe cut wood and carie it away the other may take it and remooue it to his owne house g 2. E. 4. 24. p Danby but if one of the iointenants take monie for all the profites the writte of accompt shal not be brought against him as receiuor generally h 14. E. 3. Accompte 70. 19. E. 2. Briefe 339. but as receiuor to the common profite of them both i 30. E. 1. Accompt 127. and if two executors be the one assigneth auditors he that assigneth auditors shal not haue a writ of dette sole for the arrerages of accompt without his compaignion k 9. H. 6. 11. also there is an other case in our bookes that E. and I. did deliuer an hundred pounds to R. and T. and R. and T. did put a hundred pounds of their owne together with this monie to merchandise with the whole stocke for the common profite of them al according to the rate of euery one of thē in such case E. sole may not haue a writte of accompt against R. and T. l 10. E. 3. 489. 10. E. 4. 5. so if their be two iointenants of a Manor and the one of them vndertaketh to be baily for the other for his moity a writ of accōpt shal be maintenable against him m 21. E. 3. Accompt 66. if he haue any especialty to shewe proouing the assumpsit otherwise not n 17. E. 2. Accompt 122. yet in an accōpt brought against one as the baily of his Manor which the plaintife had in ferme the defendant said that himselfe was ioint farmor with the plaintif of the lease of A. this plea was allowed though the plaintife shewed forth a deed of demise made to him onely o 8. E. 2 Accompt 115. and if two Merchants occupie their goods and merchandise in common to their cōmon profite the one of them may haue a writ of accompt against his cōpanion p Fitzh Nat. Bre. 117. D. 10. H. 7. 16. or the writ may suppose that the defendant was receiuor of the plaintifes monie the defendants for all manner of contracts to their cōmon profit q 30. E. 1. Accompt 127. 39. E. 3. 35. 16. H. 7. 16. p Keb. but one executor shal not haue a writ of accompt against his coexecutor for the goods of the dead r 39. E. 3. 35. 6. H. 4. 3. 13. E. 3. Execut. 91. Nomomath Whether is iointenancie though 2. Diuision it be a iointenancie of the inheritance dissolued and determined by the death of one of the iointenants Codicgn Iointenancie is dissolued by naturall 1. That iointenancie is dissolued by death vnlesse there be some clause in the creation of the estate to the contrarie death vnlesse there be some clause in the demise of the land and in the creation of the estate to the contrarie ſ ff pro socio l. actione §. morte in fin Iusti eo §. soluitur Anglonomoph Indeede there be such clauses sometimes vsed in demises for wee haue such a case that a lease was made to two habendum ijs pro termino vitae successiue vni eorū post alterū sicut nominantur in Indentura non coniunctim the question was in this case whether they were iointenants or no it was ruled without argumēt that they were not iointenants but that there is a remainder to him who is put in the secōd place in the Indenture t 20. Eliz. 361 Dy. And so where a lease was made to three by the premisses habendum to the one for life the remainder to the second the remainder to the third the opiniō of the court was that they should take successiuely not iointly u 5. Mari. 160. Dy. Codicgn And by a ciuill death iointenauncie may be determined w ff pro socio l. actione §. publicatio Iusti eod §. publicatio Likewise by the will and by the alienation of one of the iointenants x L. verum in sin l. societatem §. 1. ff eod l. tamdiu C. eod Anglonomo By our law the nature of iointenancy is such that he that suruiueth shall haue the whole tenancy according to such estate as he should haue had if the iointure had stil continued For if there be three iointenāts in fee simple and the one of thē hath issue dieth yet they that suruiue shall haue the whole tenementes to thēselues the issue shal haue nothing y Littl. lib. 3. c. 3. Sect. 5. and if lands be giuē to two the heirs of one of thē this is a good iointure the one hath freehold the other fee simple if he which hath the fee die he that hath the frehold shal haue the entierty by suruiuor for the terme of his life z Littl. lib. 3. c. 3. Sect. 13. and if two iointenāts be seised of an estate of fee simple and the one of thē grāteth by his deed a rent charge to another mā out of so much of the laud as belōgeth to him in this case during the life of the grauntor the rent charge is effectuall but after his decease the graunt is void as to charge the lande and he that holdeth by the suruiuor shall holde it discharged because he claimeth the land by suruiuer and not by discent from his companion a Littlet lib. 3. c. 5. Sect. 15. And so the law seemeth to haue beene when one iointenant did enter into religion least the freehold of a moitie might be in suspence as well as an assise of Mortdauncestor will lie and a warrantie collaterall may discende in the like case b Fitzh N. B. 166. a. 5. E. 4. 3 34. E. 3. Garrantie 71. Nomoma If a man grant all his goods to two what passeth by this 3. Diuision 1. That by the Ciuill lawe by the ioint gift of all the goods of a man all corporall things passe Codicgn By our law all corporall things passe both in demesne and possession and they are iointenants of them c ff eo l. 1. 2. but actions doe not passe but the grauntor if he will haue the grauntees to take any benefit by the graunt must make the grauntees or one of them his procurators to sue in his name and to recouer to their owne vse d L. 3. in princip ff eo Anglonomoph By the name of goods in our law no inheritance passeth
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
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
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
a good deuise f 21. R. 2. Deuis 27. but now such a deuise is made voide by the statute of 23. H. 8. cap. 10. but before that statute it appeareth by the booke of 37. H. 6. that vpon a gift made to the parishioners 2 That by the common law and by the statute of 23. H. 8. such a deuise is void of such a parish without naming them the Churchwardens might haue an action g 37. H. 6. 3â— but theÌ„ the gift must haue bin of a personal thing for of inheritance of land they cannot take to the vse of the Church h 12. H. 7. 27. but if a man in auncient time had giuen his landes or his goods deo Ecclesiae sanct ' Petr ' Westimonast ' this had ben a good deuise because the Church is not the house nor the walles but the entier spiritual house that is the Abbot and the Couent and because they may take by such a gift it is good but if the Abbot were dead at the time of the gift it is not good be cause the CoueÌ„t is not persona capax but a church 3 What is meant by a Church parochiall according to Rolfes opinion parochiall by Rolfes opinion as to the endowement of it with lande cannot otherwise be intended but a house made of stones walles and roofe which cannot take by any gift or feoffement and so it is of a Church conuentual which lacketh a soueraigne i 8. H. 5. 4. per Babi Rolfe Nomom Suppose that two testaments be exhibited 11. Diuision to the ordinary which were made in one day conteining seuerall summes to the same deuisees bequethed whether shall they both be approued and the legacies of both stand good Codicgn These legacies onely shal stand good 1 That by the ciuil law where two testameÌ„ts conteigne in them seueral summes that which conteineth the lessee shal staÌ„d but by the coÌ„mon law the later which do conteigne in them a lesser summe k l. Sempronius Procul ff de legat 2. Anglonomoph In our Law we haue a case that if a man make a testament and in it he maketh one onely man his executor and then he maketh an other testament and in it he maketh him and a stranger executors and the first testament is proued that onely shall stande l 2. H. 5. 8. but by other authoritie the later onely shall take place what summes soeuer they conteigne ll 4. H. 7. 13. Nomomat Say that an oxe is deuised to one and 13. Diuision the oxe dyeth without any default in the executor whether is the skinne or hide of the oxe due to the deuisee or no Codicgn By our Lawe it is not due m l. mortuo boue ff de legat 2. for the 1 That by the Ciuil law if an oxe be deuised and he dye the skin is not due to the deuisee thing deuised that is the oxe did perish and was non ens before the skinne were taken off and the skin was not taken from an oxe but from a carcasse Anglonomoph It seemeth in that case that the 2 That by the common law it semeth to be due otherwise it should be if there had bin an exception of the hide deuisee shall haue the hide for it is parcel of the oxe and the oxe was an entier thing but if hee had giuen the oxe excepting the hide that perhaps would amount to a seueraÌ„ce in law so that the oxe liuing should haue belonged to the deuisee but being killed the flesh should belong to the deuisee the hide to the executor of the deuisor and if a man make a lease of land excepting the trees which grow vpon the lande the trees are seuered in Law for hee hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition n 20. H. 6. 22. Nomomat Put case that I. S. doe borow a C. 13. Diuision li. of I. N. and for the sure repayment thereof he bindeth all his landes and goods by recognisans of statute Marchant to the said I. N. after he deuiseth all his landes to the recognisee and dyeth the recognisans is forfaited the recognisee bringeth an action of dette and recouereth against the executors and hath execution of the goods of the testator by Fierifacias and then he claimeth the land by vertue of the deuise whether is his claime good or no 1 That if the recognisor deuise all his goods to the reâ—onusee yet he shall haue execution of the land Codicgn I thinke he may claime the lande also if it may not be prooued by circumstances or directly that the land was deuised vnto him in satisfaction of the debt and vpon condition implyed that he should not alter the propertie of the goods by execution o l. creditoreÌ„ ff de legat 2. Anglonomoph I doe not perceiue any repugnancie in our Lawe to that which you haue saide Nomomath If he had made his creditour his executour in this case what woulde then haue followed Anglonomoph Then the debt had bin extinct p 11. H. 4. pl. 31. 2 That if the obligee make the obligor his executor the det is extinct for if two be bound to one in a certaine summe of money and the obligee maketh one of them his executor this is a release in law of the bond and debt to them both q 21. E. 4. 81. so if one make his dettor and an other his executours and die in this case if the executor who was not indebted suruiue he shall not haue an action of debt against the executour of his coexecutour although the partie indebted did not administer in his life time for the action was once extinguished and determined for no action can be brought but in the name of them both r 20. E. 4. 17. 21. E. 4. 3. 21. H. 7. 31. per Fineux but if one that is indebted make his creditour and an other his executours the creditour may haue an action if he doe not administer Å¿ 8. E. 4. 3. per Brian but when the testator is indebted to me and maketh me his executor I may deteigne the goods for my bebt so that it seemeth that though the action be extinct in regarde of the testatour yet the debt is still in esse in respect of straungers t 7. H. 4. 18. 27 H. 6. en Scire fac ' 7. Eliz. ComÌ„ Greysbrookes case 275. Codicgn When the creditour maketh the debtor his executor by the executorship the debt is confounded and because of impossibilitie in Lawe forsomuch as the executor may not bring an action of debt against himselfe being one and the same person the obligation therefore is by secreate act of Law disanulled u Philip. Deci ad reg iur Nomom Now I will put you a case which is
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