declaratioÌ„ that the action wil not lye for somethinges mencioned in the writ yet the writ may be in force for the remnant as in a writ of Wast if a man assigne parcel of the wast in a thing which cannot properly be said to bee wast the writ notwithstanding shal not abate for the whole and so a writ of Dower shall not abate for the whole though the plaintife doe demaund Dower of something whereof she is not endowable c 9. H. 6. 10. 46 10. H. 6. 5. So in a writ of Accompt brought against one as Bailie if the defendant pleade to parcell that he was lessee for yeares and not Bailie this shal abate the writ onely for that parcel d 18. E. 3. 16. and 8. E. 4. in a writ of Entre brought vpon the statute of 5. of King Richarde the second for entring into a Mannor and into an aduowson because the action will not lie for the aduowson it was held by Lakin that the writ should abate for parcel e 8. E. 4. 3. likewise in an action of Trespas brought by the husband and wife for a batery done to theÌ„ both after verdict found that both of theÌ„ were beaten the writ abated as to the battery of the husband and as to the battery of the wife they recouered their damages f 9. E. 4. 54. and it is said 11. E. 3. that a man may not alleadge in a writ of Eiectment de gard quod blada sua apud B. nuper crescentia messuit blada alia bona c. cepit because proclamation lyeth for the one but not for the other g 11. E. 3. 471. but a man may haue a writ of Detinue of Charters and of Chattels iointly h 44. E. 3. 41. Briefe 583. because there one thing is the ground of the action namely the deteiner and so a man may haue a writ of Det where parcell of the debt is due by obligation and parcel by contract because there the debt is the onely occasion of suit and so in things of the like nature i 41. E. 3. Damag 75. 1. H. 5. 4. one writ may comprehende many wronges and therfore an action vpon the câ—se was maintained for the hindering of the plaintife to holde his Leete for the disturbance of his seruants and tenants in the gathering of his tithe and for threatning made so that the people c. durst not come to a certaine Chappell to doe their deuotion and to present their offeringes and for the takeing of his seruants and chattels k 19. R. ActioÌ„ sur le case 52. but in Adamses case it was ruled that whereas an action vppon the case was brought for speaking these words you haue made a false record I wil make you aunswere where you dare not shewe your face and you haue sought my death the defendant as to the falsifiyng of the recorde iustified because he did make a misentrie once into a rolle in a Court where hee was Stewarde and as to the rest he pleaded non Culpable and hee was founde guiltie of the whole and damages were assessed to twenty poundes and it was mooued for stay of Iudgement that some of the wordes would not beare action as namely to say that he sought his death because that may bee by due meanes in Lawe nor the other wordes that he woulde make him aunswere where he durst not shewe his face wherefore because no action will lie for part of the matter alleaged the assessement of the damages for the whole is not good and therefore iudgement ought not to be giuen to which it was answered that when words are spoken to the disgrace of a man they cannot be otherwise vnderstood then in malam partem and therefore to say to one that he hath beene layed of the pockes is tâ— bee intended of the Frenche pockes and though action will not lye for some of the wordes which were vttered yet it must be intended that damages were assessed for these wordes which are of effect to beare action and this case hath bin adiudged that one called an other villaine and stronge theefe the defendant pleaded non Culpable and he was found guiltie to the damages of xl li. though action doe not lye for the wordes verie villaine yet iudgement was giuen that the plaintife should recouer the entier damages and so was iudgment giuen in the principall case l 25. Elizab. Adamses case Nomomat Wel no more of this giue me leaue 6 An other exception is taken for superfluous alleaging of the day and hower of the trespasse done further to obiect what need you say in your libel die decimo nono Augusti proxime praeteriti for it is not materiall when a wronge is done but mee thinkes it shoulde suffice to alledge that it was done and therefore much lesse neede you haue said hora tertia vel circa againe me thinkes your libel is too prolixe in setting downe the words and circumstances of the iniurie and likewise you haue vsed too many wordes in describing the assault and batterie which might haue bin briefly expressed by these words insultum in eum fecit eum verberauit neither doe I see the vse of these wordes pacifice conseruando neminique iniuriam 8 Exception is takeÌ„ for saying nemini iniuriam inferendo inferendo For what if Titius the plaintife had beene fighting with Seius a straunger is it therefore lawfull for Sempronius the defendant in this case to assault and beate Titius and what neede you say in your libell animo iniurioso for 9 Exception is likewise taken for vsing these words animo iâ—iurioso being taken for a surplâ—sage no wronge can bee done without an iniurious meaning and the secreate meaning must needes appeare by the open description of the wronge Codicgn Giue me leaue to satisfie you in all these particuler obiections and to render a reason of the allegations in the libell The very day 10 Codicgn answereth the exceptions wherein the wronge was done to beginne with your first obiection is necessarily to bee sette downe that the defendant may haue certaine notice of the wrong m §. atrox Institut de iniur and that it may appeare to the Court that the iniurie was committed within the yere c. for a verball iniurie is ended and ceaseth within the yeare c. n l. non solum §. 1. ff de iniur and whereas you disliked the multitude of wordes in discribing the wronge surely the wronge cannot better be discribed then by fulnesse of tearmes which are apte and significant to agrauate the iniurie o l. praetor §. sin l. vulneris l. si est questionis l. sed si vnus §. quidam ff de iniur and whereas you finde fault because it is alleaged in the libell that the plaintife did behaue himselfe peaceably nemini iniuriam inferendo they are to verie good purpose for if the plaintife
a lease of a house so that the lessee may make his profit of the houses within it the lessee cannot in this case take downe or demolishe the houses nor make wast in them for the intent was not so a 17. E. 3. 17. but if the King graunt to me visum franciplegij in omnibus terris meis feadis I cannot haue this in any landes and tenements which I shall afterwards purchase b 38. H. 6. 10. But 4 Howe the â— Queens grants and licences shal be construed and interpreted if the king graunt to a man that he and his heires shal be quit of taxe for their landes which they haue this is a good graunt though there be no taxe due at the time of the graunt c Ibid And so is the Law of Tenths and fifteenes d 19. H. 6. 62. 21. H. 6. 43. 21. E. 4. 45. and he to whom the King graunteth a licence may not vary from the proper sense the significancy of the words e 18. E. 2. Fines 124. And if the king before the dissolution of Monasteries had licenced an Abbot and his Couent to make a feoffement if the Abbot onely had made it the feoffement had beene voide f 21. H. 7. 8. And 3. Ed. 3. the King licenced one to leuie a fine of the mannour of Dale to the intent to maintayne two Chaplaines and hee woulde haue leuied the fine omitting the Chapleines but was not suffered g 3. E. 3. 5. and 30. Edward 3. the licence was to leuie a Fine of the Mannour of Dale and hee woulde haue leuied the Fine with a foreprise or exception of certaine acres parcell of the Mannour rendering rent but was not admitted to it because it coulde not stande with the licence which was that all the Manour should bee charged with the rent h 30. E. 3. 17. So if the Queene licence one to make a Feoffement by deede he cannot make it without deede i 21. H. 7. 8. per Frowike and this Lawe holdeth likewise in a common persons case for if hee that hath a warrant of Attourney to deliuer seisin absolutely doe deliuer-seisin vpon condition this is a disseisin to the feoffour k 12. Ass pâ— 24 And a graunt is not to bee fauoured contrarie to the euident perspicuous sense of the words 5 That a graunt is not to be fauoured contrary to the manifest sense of the words For if a man graunt to an other a loade of wood to take in his soyle euery yeare and the grauntee surceaseth the two first yeares and the third yeare hee taketh three loade hee is a wronge doer for two of them so if a man graunt to an other a common for three beastes yearely and hee taketh nothing the two first yeares he shal not haue common for three beastes the third yeare l 27. H. 6. 10. The aduowson of the Hospitall of Saint Katherins is appendant to the Mannour of B. the Hospitall being voide the Queene graunteth manerium ac omnes aduocationes cum pertinentijs the present presentment doth not passe m 13. Eliz 300. Dyer for it is fructus aduocationis and not the aduowson it selfe n 11. Elizab. 283. Dyer Codicgn The words of a graunt are to bee taken most strictly against the grauntor because nn Phil. Deci. in Comm. ad Regul iur he might haue expressed his meaning in more full large and manifest words Nomom Nowe resolue me whether a graunt 4. Diuision that is not good at the first may be made good by matter ex post facto Anglonomoph In no sorte for if there bee 1 That by the common law a graunt that is not good at the first may not be made good by matter ex post facto neither by the Câ—uil Law Lorde and three iointenauntes and the Lorde graunteth the seruices of one of them to a straunger this is a voyde graunt thoughe the same tenant doe attourne and suruiue his compaignions For no attournement can make an euill graunt to bee good o 5. E. 3. 34. and if a man lease lande to the husbande and wife duringe their liues and after graunteth the reuersion of the lande which the husbande holdeth for terme of life and then attournement is had the graunte is voide and the attournement also p 13. E. 3. Bro Iointen 63. And if a man be bound to a FemÌ„ sole and a straunger releaseth to the obligour and after maryeth the feme yet the release is not good q 15. E. 3. FeoffemÌ„t 63. So it is if in auncient time a Monke Fryer or Cannon professed which was no Soueraigne of an house had graunted to one an annuitie this was a void graunt though he had bin after dereigned or made Soueraigne of the same house or some other r 2. R. 3. 5. Codign As that which is lawfully done cannot be made void to all intents so that which is altogether void at the beginning cannot be strengthned by continuance of time rr Phili. Decr. Comment ad reg iur Nomom Let me aske you this question Anglonomoph 5. Diuision 1 Whether a tenant at wil may graunt ouer his estate whether may a tenant at will graunt ouer his estate or no especially if he in the reuersion doe after agree to it Anglonomoph I thinke not for it is not properly an estate because it wanteth certaintie Å¿ 27. H. 6. 3. but if my 2 That the estate of the tenant at will is in maner no estate tenant at will be outed by a straunger hee may reenter without my commandement for the entre of a stranger doth not determine my will t 11. E. 4. 3. and an other reason why he cannot grant his estate is because his estate dependeth as well vpon his owne will as the will of the lessor and if he lease ouer the land his will as to that intent is determined and by consequent his estate u 22. E. 4. 5. per Brian and his estate is such a non-estate in the eye of Law that he cannot haue ayd of his lessor w 12. E. 4. 5. and if the heire accept a rent reserued vpon a lease at will made by his father this cannot make the lease good because it was void before no more then his acceptance of a rent reserued vpon a lease for yeres which is determined by reentre can make that lease good x 14. H. 8. 11. Codicgn The estate of such a tenant is none at all in our law vnlesse he should set downe his will in certaine who demiseth y l. qui se patris C. vnde liberi Canonologus So it is likewise in our Law z C. de summa tri side cathol l. 1. Nomom I will not insiste any more vpon this matter but wil passe to the consideration of bargaines and sales The third Dialogue of Bargaines and Sales NOmomat I will
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
14. Diuision a common coÌ„tingent The testator ordeigneth by his will that his daughters shall be married by the appointment and disposall of Titius his brother the Testator dieth Titius also dieth before he hath disposed any thing of the maryage whether may the mariage and the portion be arbitrated disposed by some other or no as namely by the executor of Titius Codicgn I thinke the executor of Titius may 1 That by the Ciuil law if a man ordeigne by his wil that his daughters shall marry by the appointment of Titius that Titius his executor may dispose of the mariage well enough order and accomplishe this matter according to the degree of the daughters the wealthe of the father and the number of the children a l. si filiae pater ff de legat 3. Anglonomoph I thinke quite contrary because there is a confidence reposed specially incommunicably in the person of Titius and there be many cases in our Lawe to proue this assertion Cesty que vse before the statute of 27. of king H. 8. did deuise that A. B. and C. his feoffees should 2. That by the Common law where a confidence is reposed in certaine persons it is incommunicable to others sell his land whereof they were seised to his vse A. dieth it was helde that B. and C. could not sell the land otherwise it had beene if he had spoken generally of his feoffees without naming them specially b 2. Elizab. 177. Dy. Likewise a man deuised that after the death of his wife his land should be sold by his executors together with the assent of A. and maketh his wife and a stranger his executors and dieth the wife dieth A. dieth the authoritie of selling the land is fully determined and gone c 5. Eliz. 219. Dy. and so it was held per curiam that if a man did declare his will that B. and C. his executors should sell his land and the testator dieth and B. dieth and C. maketh M. his executor and dieth and M. selleth it this sale is void for the trust is strict but M. Brudnell saith that if a man deuise by his will that H. and N. his executors shall sell his land and they refuse to be executors yet they may sell the land because they are named by their proper names d 19. H. 8. 9. But where the executors are not specially named for the sale of the land there one of them onely may well enough sell the land for the case was that a man did deuise all his lands to his sister except one manor which he appointed to pay his debts and he made two executors and died the one executor died yet the other may sell the mannor and pay the debts per intentionem testatoris the words of the deuise as touching the sale were generall which I appointe to pay my debts e 23. Eliz. 371. Dy. Nomomath I haue often heard that a deuise 15. Diuision shall be taken most largely and beneficially for the profite and auaile of the deuisee I praie yee let me heare some cases which may coÌ„firme this vnto me Codicgnostes If the testator doe deuise all his 1. That by the Ciuill law deuises are for the most parte construed for the deuisce horses to one all his horses and mares shall passe by the deuise f L. legatis seruis §. iuÌ„ctis ff de legat 3. and if the testator doe deuise all his beastes all fourefooted cattaile which are beasts of pasture doe passe by this deuise g D. l. legatis §. pecoribus if a flocke of Sheepe bee deuised the Lambes and the Rammes are conteined in the deuise h L. seruis legat §. si ff but if he deuise his Sheepe without saying his flocke of sheepe his lambes do not passe i D. l. legatis seruis §. ouibus and if a man deuise his plough horses to one and after the deuisor selleth the horses and buyeth and vseth mares for his plough and dieth now the mares shall passe by the deuise k L. qui duos mulos ff de legat 3. and if the testator doe deuise to one all his woolle all his woâ—lle as wel washed as not washed spunne as not spunne generally al his woolle which is not wrought into clothe is deuised l L. si cui lana in princip in §. lanae ff de legat 3. and herein it differeth from lyne because vnder the name of lyne euen lyne that is wrought or linnen is conteined m D. l. si cui lana §. lino so if a man deuise all his siluer to one his siluer cuppes and all his other vessels of siluer doe passe n L. cum aurum ff de auro argent leg in princip l. lana §. fi ff de legat 3. but no siluer coine doth passe o L. Quintus in prin ff de aur argent leg otherwise it had beene if he had deuised all his siluer wrought or laboured p Ibid. for if the testator deuise to one all his cloth which is in such a cheste no garments nor apparell are contained within the deuise but onely the rude and plaine matter of clothe because when marble is deuised the imageries of marble are not meant but the grosse matter of marble q L. quaesitum §. illud fortassis ff de legat 3. and if wood be deuised onely wood fit to be burnt is comprehended in the deuise but not timber r L. ligna ff de legat 3. yet the testator his meaning is in these later cases to be examined by circumstances Å¿ L. pediculi §. labeo ff de aur arg leg Anglonomoph And by our Lawe the fauour of which is equally diuided betwixt the aduantage of the deuisee and the intent of the deuisor Deuises are often times ampliated and extended by beneficiall construction for the helpe and profite of the deuisee if they be not repugnant to 2. That the Common law so fauoureth deuises that it vpholdeth equitie the correspoÌ„dence of reason law but if they bee repugnant the Lawe then as a Lady iealous of her Iustice doth vtterly frustrate and make voide the deuises That which I affirme shall by cases and examples better appeare The L. Latimer did deuise to his Ladie and wife the third part of all his goods and chattels and great question was made whether this deuise should be intended of the third part of the goods and chattels as it should be after the dettes and legacies paied or as it was at the death of the testator and whether the third parte of the dets due to the testator doe passe by this deuise but it was agreed by the Iustices that by the woord vtensils Plate and Iewels doe not passe and if a man deuise to his daughter fiue huÌ„dred pouÌ„ds for and towarde her mariage and she dieth before the mariage by the opinion of the greater parte
6. 1. p Newt Nomomath Whether ought he to whom the 3. Diuision goods be deliuered make them good if they be stolne and embeasilde from him or by some other mischance doe perishe Codicgn He is not to be charged if the goods 1 That the bailie is not to be charged with the losse of the goods which happeneth merely by casualty be lost by any casualtie but onely in such case where there is default deceipt and couin or apparant negligence in him x l. quod Nerua Iaco But in l. in re mandata C. Mandati Iustit quib mod re contra oblig §. penult Anglonomoph If a man deliuer to me his goods to keepe and I put them amongest mine owne they be embesiled I shal not be charged for the goods y 29. Ass pl. 28 and if a man be bounde to bring mee a summe of money and he is robbed of it by the way he shall be by Law excused z 40. E. 3. 6. But 9. E. 4. he shall not be excused vnlesse he vndertake to keepe it and to bring it as he wil his owne goods and then he may pleade this in discharge of accompt before auditors but not in barre of Accompt so that it appeareth by this Booke that if he vndertake generally to bring the goods he must bring them at his perill But 3. H. 7. is that if a 9. E. 4. 40. the Baily be robbed of the goods he shall not be further charged but if the goods be taken away by a trespassor whom the Baily doth know he shal be charged ouer to his Bailor because he may haue an action against the trespassor b 3. H. 7. 4. But 20. E. 4. it is said that if I. S. deliuer goods to one to keepe and a straunger taketh them out of his possession I. S. may haue an action against him or against his Bailie c 20. E. 4. 11. but in that case if the goods be stolne from the Bailie in the endictment of the felon the wordes must bee bona I. S. in custodia talis d 7. E. 4. 14. Lamb. Eirenar 494. 495. The tenth Dialogue of the forme of ordinarie proceeding in matters of Law NOmomat It remaineth Codicgn that 1. Diuision ye should now speak of the forme and manner of ordinarie proceeding in matters of Lawe which because it dependeth wholy vpon the practise and custome of Courts in which I haue imployed no great trauaile nor obseruance I must therefore request you to stretche your sinewes in this regarde and not onely to argue but open things vnto me and be not angrie with me if in the handeling of these matters I bring ye from the hil that is your high and intricate pointes to the valley or plaine that is to matters more plaine and easie and againe from the valley to the hill when I finde in my selfe strengthe of vnderstandinge to ascende First I pray you shew vnto me what is to bee done at the commencement or beginning of a suit or action Codicgn Because in euery controuersie of law 1 The things which are to be obserued of the plaintife at the beginning of a suit by the Ciuil law there must be a plaintife and a defendant it is not amisse nor impertinent to mention such thinges as ought to be obserued regarded of the plaintife when he draweth any man into suit and they are three in number the one concerning profit the other necessitie and the third vrbanitie It is a point of profit or warinesse for the plaintife before he commence suit against any to be well aduised and assured whether himselfe be a lawfull person to stande in iudgement and to demaunde that which he bringeth into question a l. 1. C. qui legit person standi in iud hab he ought likewise to be sure that he haue a good cause of controuersie or els in some cases hee must be adiudged to pay the costes to the defendant in other some he must beare the losse of the charges of the suit b l. eum quem temere ff de iudicijs likewise he ought to beware least he draw the defendant before an incompetent Iudge 2. It is a point of necessitie that the partie whom the plaintife sueth be cited or summoned before for against the partie not summoned nor heard nothing can bee determined c l. de vnoquo que ff de re iud c. 1. exc de caus poss ê“prietat Citation as we say is parcell or the 2 Citation is proued to be of the substaÌ„ce of the proceeding contrary to the opinion of some ciuilians Lawe of nature d Clem pastoralis de re iud therefore of necessitie the partie defendant must be summoned because in euerie action the iudgement hath a retrospect to the originall and to the summons and as we say in plaine tearmes to that part of the action which is de in ius vocando e Ext. de procurat C. in nostra in sin l. prolatam C. de sent interloq om iud otherwise the iudgemeÌ„t is erronious f Iusti de offic iud in princ in §. omnem in authen delitigios Gloss in cap prudentia §. 1. de offic de leg because Citation is of the substance of the proceeding for that is the beginning of the suit howsoeuer some holde opinion that the suit is not begun ante litis contestationem g d. authen de litigios §. si vero a preside l. apertisaimi C. de Iudic before the appearance of the party def and the libel exhibited in Court notice taken thereof by the def by by some responsory act because say they post litis contestationeÌ„ non potest forum declinari h ff de iudic l. 1. 2. C. de litis Contest the iurisdiction cannot be auoided after the apparaÌ„ce the exhibiting of the libel any kind of aunswere applied but others hold in my opinioÌ„ more agreable to the truth that it is one of the fundamentall beginnings of the suit and one of the essentiall and formall parts of the iudgement because the omitting of it doth frustrate the iudgement i l. de vno quoque ff de re iud in c. 1. de caus poss ê“prietat extra 3. The other point is a matter of ciuilitie or curtesie because humanitie doth require that before any man doe contende in suite and doe prepare and addresse himselfe ad experiendum summum ius that hee friendly and mildely doe admonishe him with whom he is to deale of his duetie that if by faire meanes he may be wonne the rigor of Law may not be exercised m l. quid vberius ff de seruitut vrban praed l. debitores C. de pign Anglonomoph These cautels which your Law 3 The cautch to be obserued at the commoÌ„ law in the coÌ„mencement of an action prescribeth to
your action which you call actionem iniuriarum that it may bee more certaine and manifest vnto me Codicgn I haue it here written in a Booke which I haue readie at hand Nomomath I praie you thē read it as distinctlie as you can for I meane diligently to obserue 1. The libel of an action of iniuries is fully set downe according to the forme of the Ciuill law the points and parcels of it Codicgn The libell stādeth thus in the booke Coram vobis clarissimo magno potenti viro c. dicit ponit asserit quatenus c. iustificare intēdit Titius quod ipse existēte die 19. mēsis Augusti proximè praeteriti hora tertia vel circa in arenis Nemāsensibus ante ecclesiā S. Petri in Comitiua pluriū nobiliū personarū pacificè conseruando neminique iniuriā inferēdo superuenit ibidem dictus Sempronius reus qui animo iniurioso ipsum actorem prouocauit incitauit per rixosas iniuriosas allocutiones quāquā dictus actor ipsum reum dulcibus placabilibus verbis refraenare mitigare niteretur dictus tamen reus semper magis atque magis insistebat iniurias prorūpebat et in tantū quòd in ipsum actorē talia verba seu in effectu similia bonorum nominis famae ipsius actoris denigratoria infamatoria iniuriosè protulit dicens Thou naughtie theefe thou doest nothing but robbe quia dictus actor talia sibi imponendo dixit quòd mentiebatur dictus reus non contentus de verbalibus iniurijs praefatis ad reales facti iniurias processit in personam ipsius actoris irruit cum pugno pluribus ictibus ipsum actorem in faciem percussit liuores concussiones fecit alias iniurias plurimas intulit quas quidem iniurias dictus actor mox illico incontinenti ad animum reuocauit iterum reuocat nolens tales tam atroces iniurias sibi illatas fuisse pro summa mille librarum coron quinimmo suadet tantum perdidisse quà m dictas iniurias sustinuisse vel passus fuisse et ad quam quidem summam dictas iniurias existimat iudiciali tamē vestra semper taxatione salua Quare ex his alijs ex processu result ātibus agit dictus actor contra dictū reum petit per vos vestramq definitiuam sentētiam pro suorum nominis famae redintegratione dictum reum ad publice dissonandum profitendum declarandum dicta verba diffamatorta iniurio sa fuisse per eum inconsultò contra veritatem dicta prolata pro satisfactione iniuriarum dictarum ad dandum soluendum eidem actori summam praedictam mille librarum coron iudiciali tamen vestra vt saepe dictum est taxatione salua vnà cum omnibus expensis factis fiendis de quibus dictus actor per expressum protestatur condemnari condēnatumque cogi cōpelli vijs iuris remedijs optimis et aliâs petit in omnibus ius iustitiā sibi fieri administrari vestrū benignū quod quale quātum decet officium humiliter etiā loco actionis si opus fuerit implorando Nomomath This is a very long circumstantiall libell to my vnderstāding many exceptions may be taken to it which you shall giue me leaue for argument sake and for my more vnderstanding in order to pursue First when you say 2. Exception is taken to the forme of the libell for vncertaintie in declaring the words which are the originall occasion of this action that he spoke talia verba seu in effectu similia me thinkes that should not be good forme for your libell being like to a declaration at the Common lawe should be certaine and without ambiguous or equiuocall tearmes but of this matter I require the censure of Anglonomophylax Anglonomoph Your exception is good and 3. The exception is approued by the common law maintenable by our Lawe for in an action vpon the case brought for calling the plaintife false Iustice of Peace vel his similia these words his similia were ordered by the Court to bee expunged or blotted out by reason of the vncertaintie t 4. E. 6. Br. Action sur le case 112. Nonomath Your libel likewise displeaseth me 4. Exception is likewise taken to the libell for mingling things of seuerall and diuerse natures in it in an other matter because if I conceiue aright you lay and alleage in your libell as the groūd of your actiō things farre distāt in nature which it seemeth to me might very well beare two seueral actiōs for whē as you say that the defendant vttered these words thou naughtie theefe c. me thinks that of it self should be are action whē you say further that in personam ipsius actoris irruit cum pugno pluribus ictibus ipsum actorem in faciem percussit liuores concussiones fecit I thinke vnder fauour that these wordes of them selues require a seueral and distincte action and not such an action as lyeth for vtterance of slaunderous wordes Anglonomoph Your opinion is good and sound 5 This exception likewise is maintained by common law in reason and as for seueral diseases there be diuerse medicines so for seueral wronges I meane such as are different in nature there should be seuerall Actions least the offeringe of these thinges iointly to the vnderstandinge which are different in substaunce there arise a great confusion and disproportionable Chaos Wherfore by our law if things of sundrie natures be mingled in one action and the action is good for the one not for the other in such case the writ shal abate as to that for which it was misconceiued for example in a writ of Trespas for breaking his close and taking away certaine lambes whereas the lambes were supposed to be tithe and the close to be the Churchyard parcell of the Vicarage brought by the Parson against the Vicar it was helde that the Court should be outed of iurisdiction as to the lambes and the defendant should aunswere to the residue u 13. R. 2. Iurisdict ' 19. and so in an action of Trespas brought against the Lorde for breaking his close and taking his horse vi armis it was ruled that the writte shoulde abate for taking the horse did not as to the breaking of the close x 48. E. 3. 6. For the Lord cannot iustifie the breaking of his tenants close a 20. E. 4. 2. 7. R. 2 Briefe 632. 8 H. 4. 16 8. E. 4. 15 10. E. 4. 7. So in an action of Trespasse for entering into a Warren brought by the tenant against the Lord of the soile and for chasing there taking of conies the writ shall abate as to the entre into the warren vi armis and shal stand good for the remnant b 3. H. 6. 13. if it appeare by the writ or the
a man to bring an actiō vpon the case for a slaunder and therefore if one man call an other bankerupt an action vpon the case will lie n 6. E. 6. 72. Dy. or if one say to an other that he is infected of the robberie and murder lately committed and smelles of the murder an action vpon the case will lie for these wordes o 15. Elizab. 317. Dy. and the Duke of Buckingham brought an action de scandalis magnatū against one Lucas because he said that the said Duke had no more conscience thē a dogge and so he had goods he cared not how he came by them p 4. H. 8. rotul 659. infinite other cases might be brought tending to this purpose Nomomath I wil trouble you no further herein 2 Diuision but tell me Codicgnostes whether by your law may the husband haue an action for the wrong doneto his wife the father for a wrong done to his sonne and the maister for an iniurie done to 1. That by the Ciuill law an action of trespasse lieth by the father husband maister for a wrōg done to the sonne wife seruant his seruant Codicgn They may and the Praetors edict in our Law to that intent is very manifest and notorious q L. 1. ff de iniur Anglonomoph To that our law accordeth and first to shew that the husbād may haue an action 2. That by the Common law the husband may haue an action for a wrong done to his wife for a wrōg done to his wife it seemeth that these words cam cūbonis catallis praedicti A. mariti ad valentiā c. abduxit are necessarie in the writ for as to the taking and deteining onely of the woman it seemeth that the suit will onely lie in the spirituall Court where things any waie touching matrimonie or to be decided yet I wil not be peremptorie herein because M. Fitzherh opiniō is r Fitzh N. B. 52. K. that the suit for the taking of the woman onely without mentioning any other thing in the writ is maintenable at the Common lawe howbeit he putteth this case that if a man sue in court Christian for the taking and deteining of his wife which was lawfully maried to him if the other sue a prohibition hereupon hee may haue a consultation quatenus pro restitutione vxoris suae duntaxat prosequitur ſ Fitzh ibid. and if the woman do lie asunder from her husband the suit will lie in the spiritual Court to haue againe the fellowship of mariage and to dwell together as may appeare by these wordes of the statute t D. Cosins in li. de iurisdict ecclesiastic vnlesse he wil receiue her without ecclesiastical cōpulsiō u 13. E. 1. c. 34 Westminst 2. but where a man bringeth an actiō at the cōmon Law de muliere abduct a cum bonis viri he must be sure that his wife hath atteined to age of consent that she hath actually cōsēted to the mariage for where a mā marrieth a wife before she be of the age of 12. yeares after she commeth to the age of 12. yeares before she assent or disassent one taketh or carieth her away the husband in this case cānot haue a writ of trespasse cū muliere abduct a cū bonis viri by some authority because it is not properly a mariage till she assent x 47. E. 3. Br. Trespasse 420. yet M. Brooke doubteth hereof rather thinketh vpon very good reason the contrary because it shall be intēded a good mariage vntill the womā do disassēt a Brooke ibid. but where the mariage is cōplete without all daunger of contradiction though the wife be dead or diuorced at the time of the actiō brought yet the action is maintenable for the husband b 43. E. 3. 22. but the worde rapuit must be in the writ as well as the word abduxit and therefore it will not lie against a woman because one woman cannot rauish an other c 43. E. 3. 23. and if a man do carie 3. In wh◠cases by the Cōmon lawe an action will lie for the maister for a wrong done to his seruant away a woman by the licence of her husband this writte will not lie d 1. E. 4. 1. for it is vi armis and as to the bringing of an action by the maister for some hurt done to his seruant it is frequēt in our bookes for by the beating or maiming or woūding of the seruant the maister hath the losse of his seruice e 3. H. 6. 53. therefore if any man take the seruāt of an other mā out of his seruice an action of trespas wil lieagainst him that taketh him f 39. E. 3 38. Fitzh N. B 91. I. 21. H. 6. 31. but if a mā find an other mās seruant wādring abroad and reteyne him this is lawfull if he knew nothing of the fist reteiner But though by the common law an action of trespasse quare vi armis did lie against him that tooke an other mans seruant out of his seruice yet if he did only procure him to go out of seruice thē reteined him the maister could haue had by the Common law no action but only an action vpō the case but now by parliamēt an action is giuē vpon the statute of labourers g 11. H. 4. 23. Br. Trespasse 92. Lastly it is plaine by our law that the 4. In what cases by the Cōmon law an action will lie for the father for a wrong done to the sonne father may haue an action for the taking away of his sonne and heire but in the writte he must say cuius maritagium ad ipsum pertinet for this writte is giuen vnto the father because the mariage of his sonne and heire or of his daughter and heire doth of right appertaine vnto him and if the father haue maried his heire before so that he hath once enioyed the fruite and benefite of the mariage which the law allotted vnto him he shall not haue this writte h 12. H. 4. 16. 8. E. 2. Trespas 235. 32. E. 3. Garde 32. and if a man take away an other mans sonne and heire apparāt and bestow vpon him good apparell and the father seiseth his sonne as he lawfully may he shall not be impeached for the taking of the apparell for in that he may make a good iustification for the taking of the body the iustificatiō must needs extēd to the apparell of the bodie because the law considereth not bare and elementall bodies but bodies apparelled And Haukf with others resoneth well that if a man put an other into apparell and speaketh nothing of the loane of it neither by expresse acte reserueth the propertie to himselfe this is a gift in law and if an aduowterer do take a woman from her husband and apparelleth her with good attire the husband may take the wife againe
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