I pray you Codicgnostes let me know whether any persons are by law prohibited to make any cōtract: 1. Diuision. deliuer your knowledge herein, and let your companions speake to this point, and o­thers that I shal propose, when and as farre forth as shall seeme good vnto them.

The chiefe ground of contracts is cō ­sent, 1. The ground of contractes. L. 1. ff. de pa­ctis, & in c. Antig. Eo. tit. de pact. & l. cō sens. ff. de acti­on. & oblig. l. 1. ff. manda. Et l. sicut C. de a­ctio. & obli. so that the persons which contract must be able to cōsent, and consent groweth of know­ledge and from a mans free wil, directed by suf­ficient vnderstanding: for he that knoweth not what he doth, can not be said to be willing to 2. The con­tracts of in­fants, per­sons distracted of their wittes, and religious persons, whe­ther or how farre foorth they be good. do a thing: as a man that is distract of his wittes: or an infant that is within yeares of discre [...]ion, l. 5. ff. ad leg: Falcid. l. 12 de leg. and the contract or couenant of such persons is not ratified by oath, which by law are forbid­den to contract, l. non dubiū C. de legib. as Monkes and Fryers and such like religious persons.

Indeede such persons are said in our lawe to be mortui mundo, dead to the world, 16. q. vltim. c. si. and they cannot liue without their Cloister no more then a fish without the water, 16. q. 1. plac. and he can haue nothing priuate or proper to himselfe, and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio, De sta. mo. c. 2. & C. ad monaster. Ca. 1. & 2. de postula. 16. q. 1. monach. &c. religios. de procur. in cler. and he cā not be any mans aduocate in a cause, or any mans proxie without the consent of his [Page] Abbot or Soueraigne, and that must be to the vse and behoofe of his monasterie, and the like law is of Friers. Cle. dud. de sepul. & Cle. ex [...]ri de parad. de verbo sig.

But is there no differēce in the Lawe, betwixt the contracts of infants and the contracts of Monkes and Friers?

Yes very great: For Monkes and 3. Monkes are absolutely ꝓ­hibited by the Ciuill lawe to make any cō ­tract: infants are disabled with a certaine qualification. Friers are prohibited by Lawe to make any con­tract, so that as I haue abouesaid, their contract can not be good though it be cōfirmed by oath: But infants are not ture prohibiti, but inhabiles ex iuris dispositione, and therfore their contracts may by oath be established Authent. sa­cramenta pu­berū cum tota sua materia. C. si aduer. vēdit. & in corpore vnde sumitur..

As the former Lawes haue ve­ry greatly disabled Monkes and religious per­sons, who are tied to a certaine rule: so our Law hath very much diminished their ability, as to their intermedling in secular matters. In a Sci­re facias brought by a Prior against a parson out of a recouery had against his predecessor, it was 4. That by the Common law Priors vn­der the obe­dience of a So­ueraigne, and which weare datife and re­moueable, could not im­pleade or bee impleaded without their soueraigne, vn­lesse it were by speciall cu­stome. held that the defendant should not be estopped by the admittance of his predecessor in the first action, to pleade in this Scire facias that the Pri­our was a Monke professed vnder the obedience &c. and was datife and remoueable, 34. H. 6. 2. for though it haue beene helde that a Prior perpetuall may prescribe to implead and to be impleaded with­out his Soueraigne, yet by common intent a Prior datife and remoueable at the will of the party shall haue no action by such vsage, but if he wil haue any plea he must shew some special matter, 39. E▪ 3. 34. and it hath bene said that the knights of [Page 2] S. Iohn of Ierusalem had their possessions seue­rall, 5. The same Lawe was of the knights of S. Iohn of Ie­rusalem. yet they could not vse an action without their Prior, 32. H. 6. 5▪ & 31. and a Prior which was presenta­ble, and had Couent and Common seale, could not before the dissolution of Abbeys and Prio­ries charge his house in perpetuum, without the assent of the Patron and Ordinarie, neyther could hee haue the Writte De aduocatione deci­marum, nor a iuris vtrum, 12. H. 4. Stath. tit. Charge. and a writte was aba­ted beyng brought against a Prioresse, because the Prior of S. Iohnes was commaunder of the house whereof shee was Prioresse, and because she was made Prioresse by him, and was vnder his obedience, and remoueable at his will, not­withstanding that shee had Couent and Com­mon seale and had her possessions seuerall, and was wonte to Lease the lande for tearme of yeares, 12. R. 2. No­nabilitie. 4. and if a contract bee made with an Ab­botte and his Monke, the writ that hath beene groūded vpon this contract hath bene brought against the Abbot onely, 33. E. 3. B [...] 913. 2. H. 4. 21. and so hath a writte of Detinue bene brought being cōceiued vpō a de­liuery of goods made to the Monke to the vse of the Abbot, Ibidem. yet it hath bene thought that an a­ction will lie against a Monke, if he be not in subiection to some Soueraigne. 14. H. 4. 37. But it hath bene taken for a general learning with vs that Monkes & Friers, & Canons professed & the like, could not grant any thing, 14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31. neither could they be graū ­tees of any thing, 5. H. 7. 25. 19. H. 6. 25. neither are they capable by way of deuise, Perk. tit. Deuis. sect. 537 & the couēt of an Abbey or Pri­orie can yeeld so little aduantage to the house in [Page] matter of purchase, that if in former times land had beene giuen to an Abbot and to his couent, this could not be good saue onely during the life of the Abbot for the want of this word (suc­cessors) 11. H. 4. 84. [...] Curi. but touching the abilitie of infants in contractes and purchases the Lawe is diuerse ac­cording to the diuersitie of cases, and if an infant do buy of any a coate or necessarie vestmēt for a certaine summe, or if he make a couenant for his meate paying 12. d. a weeke according to M. Pa­ston his opinion, this couenant is void, yea and if 6. The infants contract for his meate, ap­parell, and ne­cessaries is good, if he be of the age of fourtene yeres. hee make a bonde for it, the bonde likewise is void: but Markeham thinketh the contrarie if the infant that is so bond be of the age of fourtene yeares, 21. H. 6. 31. 18. E. 4. 2. Perk. Grau. 4. D. S. dial. 2. fo. 113. and by M. Brookes opinion this is the better Law, Br. Labou­rers 30. and if an infant lease land for tearme of yeares rendring a rent, or doe sell a horse or 7. That which an infant doth without actual liuery may bee auoyded by a­ction without entre o [...] seisure but that which he doth by a­ctuall liuery can not be a­uoided with­out entre o [...] seisure. any other thing he may chose to haue an action of dette for the rent reserued vpon the Lease, or a writte of trespasse for the occupation of the lande, and so he may haue an action of tres­passe for the occupation of a thing sold by him: and if an infant doe giue to one a horse without actuall deliuerie of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gifte, the infant may haue an action of Trespasse against him, 18. E. 4. 2. and if an Infant make an Obligation or Lease in wri­ting and enseale it, and deliuer it to a straun­ger as a scrowle to deliuer to him to whom it is made when the infant commeth to full age as his deed, and the straunger doth it, this is [Page 3] voide, because it is done by a commaundement, which is void, 27. H. 6. 7. for the cōmandement or assent of an infant is voide in law 11. Ass. pl. 14, so that a difference is to be held, where an infant passeth away a thing to an other by liuery in facto and where not: for in the one case the gift or conueyance is voidable onely, in the other it is void to all in­tents. For if an infant make a lease for tearme of yeares or a lease by dures, if the lessee enter, the infant may haue an assise, but if the infant make a feoffement and deliuer seisin accordingly, he shall haue no assise, for by the liuery of seisin the feoffee had a possession at will at the least: but if hee make a letter of attorney to deliuer seisin he may haue an assise, 9. H. 7. 24. & 2. Mar. 109. Dyer, Rug. case but where any man doth a thing which is for the profite of an in­fant he shall not bee punished as a trespasser, as if an infant commaunde one to repayre his hou­ses and he doth it, this shall excuse him in an a­ction of trespasse. 13. H. 7. 17. [...] Keble.

You haue spoken sufficiently 2. Diuision. Anglonomop. of religious persons and infantes, and of contracts made by them: Now I pray you 1. Whether the contract of the seruāt shall be accōpted in Lawe the con­tract of the mayster. shew vnto me whether the contract of the ser­uaunt shall be accompted in lawe the contract of the maister.

It hath bene held in our bookes that if a man haue a Baily or seruaunt who is 2. That accor­ding to the common Law the mayster shall be bound by the cōtract of a knowne seruant, if the knowne for his seruaunt, if hee sende him to fayres or markets, to buy, to selle, or to doe o­ther thinges markettable, his maister shall be charged with the payment, if the thing which [Page] is Marchandized doe come to his vse, 2. R. 2. Dette 3. per Curi. and it thing Mer­chandised doe come to his vse: and he shall be bound by the cōtract of his factor though the goods neuer came to his possession. hath beene likewise helde that if a man sende his boy to the market to buy thinges for him and he buyeth them and bringeth them to him, and the vendor bringeth an action against the Maister and auerreth that the goods came to his vse, hee shall recouer against him in the a­ction, 4. E. 2. Dette 168. and Pigot his opinion is that if one make an other man his Factor to buy thinges for him, if hee buy Merchandize of any, the Maister shall be charged by this contract though the goods neuer came to his possession, because hee hath giuen vnto him such a power, 8. E. 4. 1. & 9. Dutches de Suffolkes case, per Pigot. But in the eightenth yeare of King Edwarde the second a man was bound in a recognisance to S. to paie at a certaine daie, at which daie the Reconusor came and proferred the monie in Court, and because S. was in the Kinges seruice 3. The acte of a mans Attor­ney or his ge­neral receyuor, doth not binde the maister without spe­ciall warrant. there came one A. as his generall Attourney, and saide that hee was readie to receiue the mo­nie and shewed foorth to the Court a warrant of Attourney, but because the warrant of At­tourney was that hee should bee his Attourney In placitis & quaerelis ad lucrandum & perdendum, and the Recognisans was a thing already adiud­ged and determined, and therefore could nei­ther bee plea nor quarrell, therefore it was thought that his warrant did not extend to re­ceiue money, 18. E. 2. Ex­ecut 245. so in an action of dette brought vpon an obligation the defendant did confesse the deed, and saide that he had paid the summe to one C. the generall receyuor of the plain­tife, [Page 4] and hee made thereof an acquittaunce which hee shewed foorth to the Court, but because hee had acknowledged the obligation, and had shewed no warrant of the plaintife, to pay the sayd money to C. so that the ac­quittance which was shewed, could not bee the deede of the plaintife, The Courte awarded that the plaintife should recouer his dette and his dammages, 5. E. [...]. 63. but as to a mans seruaunt I take the Lawe to bee that his contract shall extend to his Maister, as well for preiudice as aduaun­tage, And therefore if a mans seruant sell to one certaine clothe, and warrant it to bee of a cer­taine length the action will lie against the Maister onely, and not against the seruaunt, and if A. doe assume to cure B. of a wound and hee sendeth his seruaunt to B. to lay medicines to the wound, whereby hee is hurte and empay­red, B. can not haue his action vpon the case against the Seruaunt but against the Maister, 11. E. 4. 6. p▪ Choke & Brian and of late time the Lord North being Chaun­cellour of the augmentation Courte, deliuered an Obligation made to Queene Marie to his Seruaunt to deliuer ouer to the Clarke of the augmentations, the Obligee and the Seruaunt did conspire and cancell the Obligation, the Maister was helde in this case to bee charge­able. 5. Mari. 161. Dyer per Iu­stitia [...].

You haue satisfied mee touching 3. Diuision. contracts made by a mans seruaunt, now I pray 1. Whether the wifes con­tract made in the behalfe of you show me whether a contract made by the wife in the behalfe of the husband will binde [Page] the husband. the husbande, will binde the husband.

In an action of debt brought against husband and wife, and an other, vpon 2. That by the common Law an action of dette brought vpon a cōtract made by the wife for the behoofe of the husband must be brought onely against the husband, without na­ming the wife. a contract made during the couerture, for the woman it was said, that a feme couert can not make a contract, wherefore iudgement was de­maunded of the action, and the husband and the third person pleaded the same matter to the writte, and they could not be admitted to plead to the writte, because the woman had plea­ded to the action: but they pleaded the mat­ter abouesaid in barre of the action, and were receyued, 34. E. 3. Briefe 923. and if the husband and the wife doe borowe money, this shall be accompted the borowing of the husband onely, 33. E. 3. Briefe 913. and if a mans wife doe buy goods of one to the vse of her husband, the wife is not in such case to be named in the writte, that is to be brought hereupon. 2. H. 4. 21. p. Markeham.

By our Law, no mans contract made 3. That by the Ciuill Law the husband is in no sorte to be charged by the contract of his wife. in the behalfe of an other, will binde the other, but such a persons contract who may be bound for the other. C. & ff. de pact. in congr. tit.

You haue shewed vnto me aboun­dantly, how contracts may stand good, and how they may be infringed by reason of the persons, which are parties or agents in the stipulation or contract and efficient causes thereof, by reason of their ability or disability possitiuely set down in Law, now I would haue you proceed to de­clare how by the materiall causes of contracts, they may stand or fall.

A contract hath a materiall substance 4. Diuision. 1 How con­tractes may stand or fal by their material causes, or the defect of thē. whereof it is made, as well as other thinges, and the materiall cause of a contract is the thing for which wee doe contract: for as in mechanicall and artificiall thinges there is required some apt matter, D. L. adeo §. cum quid. whereof a thing may be wrought, so in contracts and conuenants as well these which are determinable by the Law of nations, as these which are sentenced by the Ciuil Law and other Lawes, to the end they may be well perfited and v) ff. de verb. oblig. l. inter Stipulant▪. §. sacram̄et de praescrip̄ verb. l. insula. concluded, some materiall cause is requisite. ^u

Why, are any contractes ordered by 5. Diuision. 1 Some con­tracts are or­dered by the law of Natiōs. the Law of Nations?

Yea, for by that Law an Embassador may be impleaded for such contracts as he mak­eth during the time of his Embassage, least (as Iu­lianus 2 An Embas­sador may ac­cording to the Ciuil Law be impleaded by the Law of na­tions for a cō ­tract made whilest he is Embassador. sayeth) hee presume to take other mens goods with him into his owne countrey, L. 25. D. de iud. or (as Paulus reasoneth plainely and pithily) least men fearing to contract with them, if they be not in this regarde subiect to Lawe, they be excluded from all commerce and entercourse of bargaine: L. 24. de min. l. 11. ad Vell. l. 12. de adm. tu. and this Law is supported by that excellent rule of equitie, that no man ought to growe ritcher by an other mans losse, and if one that is no Em­bassador doe contract with one, and after bee made an Embassador, yet he is now chargeable with the contract: likewise an action will lye a­gainst an Embassador by the Law of Nations if hee couenant to performe a thing when hee is Embassador, if it so fall out that the charge and credit of Embassage be committed vnto him. L. 3. D. de lega: African. L. 2. p. 1. de iud.

I am verie desirous to knowe, Codig­nostes 6. Diuision. 1 Whether cōtracts made with Pirats or robbers in the high way be good in Law. whether contractes made with Pirats and with robbers by the high way are auaileable & of force by the Ciuil law, or the Law of nations.

I doe not thinke that Pirates and rob­bers are to haue aduantage by any Lawe in mat­ter of contract, because they haue cast aside all care of humane societie, and seeke to reduce the world as much as lieth in their power, to the pristinate wildnes and sauagnes of nature, when men did liue like beastes, and as Lucretius sayeth. Lucret. li. 5.

And such persons may not enioy the benefitte of 2 That Pirates and robbers are not to haue aduantage of law in matters of contract. Law to which they are enemies, Paul. l. 63. ad leg. Falc. To such men which haue withdrawne themselues from the communion and societie of men, and (as Florus Flor. lib. 3. sayeth) haue broken the league of mankind, why shoulde the Lawe of nations, which is nothing els but the communion, and league of nations extende any fauour. Pirates (as Plinie saieth) are enemies to all men liuing: Plini lib. 2. ca. 46. and therefore Cicero auoucheth, that if thou doest not bring to rob­bers or Pirates, the raunsome which thou hast promised for thy life, there is neither offence nor fraudulent dealing in thee, no though thou hast promised with an oathe. Cicer. pro leg. Manil. & 3. de offic. Therefore some doe wonder that D. Hotoman dare affirme, Hotom. 7. Illust. question. that the 3 That D. Hotoman er­reth greatly in mainteining that Pirats & robbers may lawfully con­tract. Lawe of nations doth extende to fugitiues and robbers, and his chiefe reason is, because there is no Law which doth intredict and forbid to co­uenant or contract with them, and such thinges [Page 6] in his opinion, as are not verbally forbidden, are implicatiuely permitted, This reason is of no va­liditie, for it may be implicatiuely forbidden, and in that they may be enemies to all men, and doe spare no man, they ought not to protect them­selues by the Lawe of nations, which is the Law of al men: The question is not what may be done vnto them, or how many men haue dealt with them, but howe by rule of equitie and sound­nes of reason they ought to be dealt with: For to dispute of Lawe is to dispute of a publike bond, whereby we are bound and obliged, but we are not bound to such lawles, disorderly, and incor­rigible persons, by any common respecte of duetie.

I will not trouble you farther Codicg. 7. Diuision. with more ample discourse of this matter, but wil rest wel apaied with that which you haue already spoken: Now I lōg to here somwhat of Anglono. touching the matteriall causes of contracts.

A consideration which is the pro­per 1 That by the common Law a considerati­on [...]s the pro­per mater [...]al cause of a con­tract, and that it may be ex­pressed or im­plyed. material cause of a cōtract, may in the conclu­ding of bargains be either expressed, or implied: expressed, as if I buy a horse of you for xx. s. you may keepe the horse til I haue paied you the mo­ny, 10. E. 4. 18. and M. Choke is of opinion that if you buy of one a horse in Smithfield for a certaine summe of money, and doe not pay him the money present­ly, hee may sell the horse to any other inconti­nent, and you can not haue any remedy against him, for otherwise hee might bee compelled to keepe his horse for euer against his will, 17. E. 4. 1. per Choke. [Page] For it is implyed in the bargaine that the ven­dee must pay the money incontinent, otherwise he cannot haue the thing solde, but if the pay­ment bee respited vnto a certaine day vpon the contract this is good ynough, so that the money 2 That a con­tract is not good without money payed in hand, or a certaine day of payment limited. be payed within the time prefixed. 21. H. 7. 6. and 28. H. 8. it is positiuely set downe for Lawe that a con­tracte is not good without present payment vn­lesse a certaine day of payment bee limited, so that the one of them may haue an action of debt for the money, the other a writ of Detinue for the wares: 28. H. 8. 30. Dyer. An implied consideration is when the Law it selfe doth intende and enforce a con­sideration, and therefore the Hoste of a common Inne may deteine a mans horse if he wil not pay him for his horse meate: And so if a Taylor make a gowne for any man he may deteine the gowne till he be paied for his labour. 5. E. 4. 2.

Doth not the defect of forme in 8. Diuision. 1 Whether the defect of forme doe de­stroy the con­tract. a contract frustrate and defeate the contract.

Yes: for as the substanciall fourme in materiall things is necessary to the essence and constitution of such things: ff. ad exti [...]b. l. Iulian. §. & l. falsi. l. si is qui. §. quidem. so in contractes a 2 That so­lempnitie and concurrence of circumstances is required in contracts by the Ciuil law. certaine solemnitie and concurrence of circum­stances is required for the perfiting of them, as their naturall and proper forme: ff. de verb. obligat' l. sci­end. & l. con­tinuus in prin­cip. Eo. l. §. si quis ita. and without such ceremoniousnes the contract is of no force.

Our law likewise requireth forme either in pronouncing the wordes of the con­tract, or els in obseruing some other circumstan­ces belonging to the contract. For the first, if a man promise to another xx. li. with his daughter [Page 7] in maryage, if he marrie the daughter and the money be not paied he shall not haue any action of debt, or action vpon the case at the Common Law, but he must sue for this money in the Spi­rituall 3 That matri­moniall con­tracts, if there be no assump­sit in them, are to be decided by the ecclesi­astical Law: if there be an as­sumpsit, by the common law. Court. Fitz. nat. br. 44. a, 14. E. 4. 6. Reg. 46. & 48. 15. H. 3 Prohi­bition 22. 16. H. 3. Prohi. 24. For here is no good forme of con­tract: and (as Master Bracton sayeth) Matrimo­nium est principale, & eiusdem iuris, id est iurisdicti­onis esse debet accessorium. Bracton lib. 5. cap. 16. And therefore if a man by reason of matrimonie or testament doe ac­knowledge in a Spiritual Court that he ought to pay to one a hundreth markes, or some other summe at a certaine day, if the money bee not payed at the day accordingly, he may be sued for this money in the Spirituall Court, and no pro­hibition lyeth, Fitz. na. br. 41. b. but if in the former case he had promised one x. li. if he would marrie his daugh­ter, if he doe marry his daughter and the other will not pay the money hee may not sue him in the Spirituall Court for this money, but at the Common Law, Fitz. na. br. 44. a, et 22. Ass. pla. 70. p Tho. & 16. H. 3. Prohibit. 22. for now it goeth in fourme of contract, as for the other matter where forme is required in obseruing some other circumstance in the contract, that may appeare by this case: if a felon sell a horse without couin in a market o­uert, this doth alter the propertie, and the verie proprietary cannot haue restitution of the horse notwithstanding the statute of 21. H. 8. c. 11. but if he had solde him out of a market ouert the pro­pertie had not bin altered. 33. H. 6. 5. 18. E. 4. 24. 7. H. 7. 12. Crompt. Iust. de Peace 172.

I will trouble you no further in this matter, but will proceede to inquire somewhat touching Gifts and Graunts.

In handeling the lear­ning 1. Diuision. 1 What things may be giuen or graunted. of Gifts and Graunts, I think it most fit in the first place to be in­quired what things may be giuen or graunted, wherefore first I pray you satisfie me in this.

A man may giue all such thinges as 2 That all things that lye in commerce and may be receiued may be giuen. an other may receiue: l. in aedibus §. fi. ff. Eo. tit. for dare & accipere sunt correlatiua: and all such things may be receiued which lie in commerce.

Then thinges consecrated and ec­clesiasticall may not be aliened, because they lye not in contract.

Thinges ecclesiasticall though they 3 That things ecclesiasticall though they be not consecrate cannot regu­larly be graun­ted. be not consecrate, cannot regularly be giuen or graunted, Cap. 2. de donation: & Eod. tit. de re. ecclesi. non a­lien. in anti­quis 6. & Cle. & in c. sine ex­cept: cap. si quisquis 12. q. 2. & in l. Iube­mus cum suis authen. C. de sacrosan. eccle. and I did vse this worde (regularly) because where such alienation may bring profit to the Church, it shall be of force. In dict. iur.

In our Lawe a writ of Contrafor­mam alienationis lyeth where a man gaue landes or tenements to an Abobt or house of Religion before the Statute of Quia emptores terrarum, to holde of him in frankalmoigne, and after the 4 That if an Abbot did a­lien lands gi­uen in franke­almoigne to his house the donor might haue a writ of Contra formam collationis. Abbot with the Couent did alien the same land in fee to another, nowe he that gaue this lande or his heire may sue this writte of Contra for­mam collationis against the Abbot or his succes­sor, but not against the tenant of the lande, but [Page 8] when he hath recouered the lande, hee may sue a Scirefacias against the tenant of the freehold, Fitz. na. br. 210. f. and this writ of Contra formam collationis lyeth not, though the Abbot doth alien in fee, vn­lesse the Abbot and the Couent doe alien in fee, 19. E. 3. Con­tra formam col­lationis. 5. Fitz. nat. br. 211. c. and if an Abbot with the Couent doe alien an Aduowson in fee, at the next auoydance the foundor or his heire may present to the aduow­son, because they cannot in such case sue a Con­tra formam collationis. 20. E. 3. Con­tra form. collat. 6

Let me know I pray you how many 2. Diuision. kinds of Gifts there be.

They be of diuerse sortes: some 1 The diuerse kinds of giftes, some being fre some compen­satory. are called free gifts, which proceede merely of a mans good will and beneuolence: others may be called Compensatorie, because they are giuen for some cause or consideration: Gifts or graunts of the first kinde are such as I nowe shall recite out of our bookes. First, the Queene may graunt 2 What is wrought by the Queenes graunt ex me­ro motu. to one lande ex mero motu, and though her high­nesse doe rehearse some consideration in the pa­tent of her graunt which is not true, as if the consideration bee, that whereas the grauntee hath done her Maiestie good seruice on the Sea, or beyond the Sea, or in her Maiesties warres, or in some other busines: though the consideration be meerley supposed and not true, and therefore no good consideration in Law, yet the words ex mero motu do make the grant good, 26. H. 8. 1. per Fitz. and where­as the Queene ex certa scientia, & mero motu doth confirme a graunt, supposing that a graunt was made before, where in truth there was no such [Page] thing, it is held that her highnes shall be conclu­ded to say, that no such graunt was made: other­wise it had bin if this worde ( informamur) had 3 What is wrought by her Maiesties graunt by words of In­formamur. bin vsed in reciting the graunt. 9. H. 7. 2. For if her high­nesse graunt any thing vpon the false suggestion of the partie, this graunt is voide, because shee is deceiued in her graunt, 11. E. 4. 1. per Littlet'. and wee haue a rule: Si suggestio non sit vera, literae patentes sunt vacuae. 3. H. 7. 6. For when the graunt is made vpon the sugge­stion of the partie, the wordes of the graunt shal be taken strictely, but when it is ex mero motu it must be construed and interpreted according to the Kings intent, and as fauorably for the graun­tee as reason will permitte, 21. E. 4. 25. Abbe de Wal­thams case per Browne & Genney. and if a common person do without consideration giue to I. S. his goods (indefinitly) al his goods do passe, and if a common person doe by deede enrolled en­feofee the Queene of his lands without any con­sideration, the Queene shal be seised to her owne vse, as hauing such prerogatiue in her person, that she shall not bee seised to the vse of any o­ther. 28. H. 8. 7. Dyer Boken­hams case per Knightley. Gifts made vpon consideration may be ex­plained by cases likewise drawne out of our bookes, though in a common persons case the consideration which is mencioned be false, yet the vse shall be to the feoffees as appeareth by Wilkeses case, who reciting by his deede falsely 4 Whether vpon a false consideration expressed an vse shalbe rai­sed in a com­mon persons case. that in consideration of 700. li. payed, he had en­feoffed A. and B. to haue and to holde to them and to their heires, to the proper vse and behoofe of the said A. and B. in perpetuum: afterwarde by Office it was founde that Wilkes was seised of [Page 9] the lande, and that he helde in Capite, and I. was founde to bee his heire and of full age: yet it was helde that the heire should not be receiued to auerre the consideration false against the ac­knowledgement of his auncestor: 1. Eliz. 169. Dy. Wilk. case. and so it hath beene helde in Villiers his case, that where mo­ney is the consideration expressed an other con­sideratiō shal not be auerred, neither shal a Causa 5 That a con­sideration may be auerred which is not repugnant to the vse ex­pressed. matrimonij prelocuti be auerred where an other consideration is expressed, but where no consi­deration is expressed, there a consideration may be auerred: or where the consideration auerred is not repugnant to the consideration expressed in the deed. 4. Mar. 146. Dy, Villier case And though the consideration be not valuable, yet it may bee a good consideration to raise or to alter an vse: for in Sharingtons case it hath bin adiudged, that the affection of the father for the prouision for the heires males which he may beget, and the affection which he hath that the lande may remaine in his bloud and name, be 6 That an vse may be altered by a conside­ration not va­luable. causes sufficient to make vses in the lande, for (as it is there said) Naturae vis maxima, & Natura bis maxima. 8. Eliz. 298. Com̄: Shering­tons case. And so betwixt brethren pro fraterno a­more is a good consideration to raise an vse, 13. Eliz. 302. Dyer. and a man leuied a fine to the vse of himselfe, and such wife or wifes as he should marry, and after hee tooke to wife A. she shal take in iointure being by way of vse, otherwise it had beene by estate exe­cuted. 10. Eliz. 274 Dy. per Wray, Mead, Plow­den, & Owns­law, & 3. Eliz. 100. Dame Brayes case.

By our law a man cannot giue any thing to the common weale without consideration, but to a priuate person he may. l. hoc iure in princi. ff. de donat. Gl. in d: l. hoc iure: et l. Campanus ff. de oper: li­bert:

By the Cannon Lawe nudum pactum doth binde the partie, especially being confirmed by an othe: much more a bare donation. c. 1. de pact▪

As to the point of consideration wee 3. Diuision. shall better perceiue the strength and properties 1 In what ca­ses graunts shalbe taken most benefici­ally for the grauntee. therof, when we enter into discourse of bargains and sales, now let me knowe in what cases and how farre forth graunts shalbe taken most bene­ficially for the grauntee.

When a graunt is non-certaine, 2 That a grant non certaine must be taken most strongly against the grauntor. it must be taken most strongly against the graun­tor, for if a man graunt an annuitie out of cer­taine lande, and he hath no lande▪ at the [...]ime of the graunt, yet the graunt shal charge his person, 9. H. 6. 12. p Babingt. and if a deede of graunt be good in parcell, and 3 That a grāt may be good in part, and for parcel not. for parcel not, that which is for the aduantage of the grauntee shalbe taken to be good, as if a man graunt vnto me an annuity, prouiso that it shall not charge his person, the prouiso is voide, and the graunt is good; 20. E. 4. 8. p Towns. 14. H. 4. 30. p Hank. And if an annuitie be graun­ted pro consilio impendendo, though the grauntee be well skilled in diuerse sciences or faculties, yet counsel shalbe giuen in that facultie only, which was intended at the time of the graunt, 41. E. 3. 6. Annuit [...]e 19. But in some cases the graunt must be construed accor­ding to a reasonable and indifferent intendment, as if a man make 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, 17. E. 3. 17. but if the King graunt to me visum franciplegij in omnibus terris meis, & fea­dis, [Page 10] I cannot haue this in any landes and tene­ments, which I shall afterwards purchase, 38. H. 6. 10. But 4 Howe the [...] Queens grants and licences shalbe con­strued and in­terpreted. if the king graunt to a man that he and his heires shalbe 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, Ibid: And so is the Law of Tenths and fifteenes, 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. 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, 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, 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, 30. E. 3. 17. So if the Queene licence one to make a Feoffement by deede, he cannot make it without deede, 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, 12. Ass. p [...] 24 And a graunt is not to bee fauoured contrarie [Page] 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. 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: 13. Eliz▪ 300. Dyer. for it is fructus aduocationis, and not the aduowson it selfe. 11. Elizab. 283. Dyer.

The words of a graunt are to bee ta­ken most strictly against the grauntor, because Phil. Deci. in Comm. ad Regul. iur. he might haue expressed his meaning in more full, large, and manifest words.

Nowe resolue me whether a graunt 4. Diuision. that is not good at the first may be made good by matter ex post facto.

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 C [...]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, 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 [Page 11] lande which the husbande holdeth for terme of life, and then attournement is had, the graunte is voide, and the attournement also. 13. E. 3. Bro▪ Iointen. 63. And if a man be bound to a Fem̄ sole, and a straunger re­leaseth to the obligour, and after maryeth the feme, yet the release is not good. 15. E. 3. Fe­offem̄t 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. 2. R. 3. 5.

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. Phili. Decr. Comment. ad reg. iur.

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.

I thinke not: for it is not properly an estate because it wanteth certaintie, 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, 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, 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, 12. E. 4. 5. and if the heire [Page] 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. 14. H. 8. 11.

The estate of such a tenant is none at all in our law, vnlesse he should set downe his will in certaine who demiseth. l. qui se pa­tris C. vnde li­beri.

So it is likewise in our Law. C. de sum­ma tri. & side cathol. l. 1.

I will not insiste any more vpon this matter, but wil passe to the consideration of bar­gaines and sales.

I will not aske yee what 1. Diuision. 1 What things are forbidden to be sold. things may be solde, least perhaps you aunswere me such thinges as may be bought according to your aunswere in your last discourse of Gifts & Graunts, but I would haue ye shew vnto me what things are forbidden to be sold.

Things consecrate & religious may not 2 That by the Canon Lawe things conse­crate and reli­gious may not be solde. be sold, as Monasteries, and other places deputed to religious vses whatsoeuer name they challeng, as Temples, Hospitals, Chappels and such like, C. de Xeno. docti. eo. tit. & C. de Epis. & cle [...]i in l. or­phanatroph. & 42. distinct o­ratorium. and that is accompted a religious place, in which a mans bodie or head is buried, ff. de reli. & sump. sune. and therefore if a man be buried in an orchard parcel of a mans [Page 12] farme, that becommeth Religious, and it may not be pleadged or solde, but demised it may be. C. quae res obligar. poslūt l. 1. l. quid er­go. §. sed si mortuum. ff. de leg. 1.

Of this matter I haue spoken I hope sufficiently in the beginning of our second con­ference or Dialogue.

By our Law euill poysons are forbid­den 3 That poy­sons by the ci­uil law are forbidden to be sold. to be solde. l. quod sepe § veneni. ff. de contrah.

Why say you euill poysons? as if any kinde of poyson can be good.

Yea, there be some good and sit for 4 That there be some poy­sons which be medicinable and profitable, & the prohibi­tion extendeth not to these. the expelling of diuerse diseases, though they be not mixt with any other matter or thing, which is medicinable, so neesingwort doth cure phren­sie or madnesse, wolfe bane the biting of a scor­pion, quicke siluer the scabbe or ytch, and arse­nicke is profitable against the plague, as Mercu­rialis auoucheth, and sheweth further that many artificers doe vse poyson, and many creatures do eate and liue vpon poyson, and pustles be cured by poysons, and poysons were before the fall of Adam, Mercurial. lib. 1. de vene. c. 3. & 4. yet there are some kinds of poison which are euill in themselues, & may not be vsed alone: and though Plato amongst his other lawes pro­mulgeth, that no man ought to sell or any way in­termeddle with poyson. Plat. li. 11. de legi. And Galen doth con­dempne Orpheus who taught the vse of poisons, Galen li. de antid. c. 7. and reporteth that the inuentor of a poysonfull herbe was therfore punished, Galen li. de purg. me: yet because there 5 That some poysons are profitable a­lone, some with the mix­ture of other things. be some which are profitable alone, & other some (as our law speaketh) adiectione alterius materiae, Cai. in d. li. 3 therefore poyson generally and absolutely is not forbidden to be sold by our Law.

By our Lawe corrupt vitaile is forbidden to be solde, and leather not sufficient­ly tanned. 13. H. 4. 1. 11. E. 4. 7. 1. R. 3. 1.

Let me heare of you some speciall kinds 6 What things are forbidden to be solde by the common Law. and cases of bargaine and sale out of your Law, and some good diuersities, whereby me thinkes the knowledge and vnderstanding are greatly 2. Diuision. enlightned and increased.

If a man bargaine and sell landes or 1 Where a thing was not sold at the first and where it was sold, but the sale is de­feasible vpon condition. goods to one vpon condition, that if the whole price or that which remaineth to be payed bee not payed or satisfied at such a day, then the thinge whereof the price is agreed vppon be­twixt them shall bee vnbought: nowe if the money bee not payed at the day, the thinge whereof the communication was, in the in­tendement of Lawe was not solde at the first:

l. 1. ff. de leg. Comm. & li. qui ea lege C. cod. But if it had beene sayed, that if the mo­ney had not beene payed at the day, then the thinge solde shoulde reuerte to the vendour, heere there had beene a perfitte bargaine and sale, but resolubilis sub conditione, defeasible vp­pon the condition not perfourmed, l. 1. ff. de leg. commissor. and in all conditions of bargaine and sale this is done that eyther an imperfitte sale is perfitted, or a per­fitte sale is defeated. For when communicati­on is had about the buying of a thing, and the price is agreed vppon, and the bargaine con­cluded, nowe if the vendour doe at the time of the bargaine and sale adde such a condition, that if any other man within a moneth or fif­teene daies next after ensuinge, will giue more [Page 13] money for the thing solde, that then the bar­gaine and sale shall bee voide: L. 2. 1. res­pon. ff. de in diem adiec. now the bar­gaine 2. A differēce betwixt a per­fite sale, and a sale to be per­fited vpon a condition per­formed. and sale is perfite, but it is defeasible vpon a condition: but if in the same case the price be agreed vpon so that no person do within a mo­neth or fifteene daies giue more for it, now this sale is to be perfited vpon a cōdition performed, d. l. 2. 2. res­pon. and there is great difference betwixt these two bargaines and sales, For in the first case the buyer doth become owner of the thing Sed retractabi­liter. l. 1. §. sed & Marcellus ff. de addicti. in diem. And in the meane time he shal take, & en­ioy the profits of the thing sold, d. l. 2. in si. l. Item quod di­ctum ff. de in diem addict. & the peril of the thing solde if it bee destroyed, lost, or made worse doth belong vnto him, l. vbi autem §. 1 ff. d. ti. de in diē addict. but in the other case, namely, when an imperfite bargaine and sale is to be perfitted, the bargainee doth not take the profits, neither doth the perill belong to him. d. l. vbi autē in princip.

You haue put good diuersities and we haue many cases suteable vnto them in our Lawe, which I will not omit. If a man grant to one the keeping of his Parke, vpon condition that if the grauntee do not well keepe his Deare within the Parke the graunt shall be helde as no graunt: and after the grantee killeth some of the Deare, the grauntor may bring an action of tres­passe 3. That a pri­uiso though it be placed a­mongst coue­nants, may de­feate a bar­gaine and sale. for the breaking of his Parke, and for the killing of his Deare, 2. R 2. Barre 237. and a prouiso in an Inden­ture of couenants though it be placed amongst couenants, yet it shall be of force in some case wholy to defeate and dissolue the bargaine and sale, as if a man bargaine and sell a mannor with [Page] the aduowson in fee, habendum to the vse of the bargainee and his heires, in such māner as in the Indenture of couenants is agreed, and he coue­nanteth to suffer a recouery to the vse expressed in the Indenture, rēdring a rent to the bargainor and his heires with a distresse for the same, and a nomine paenae, & further pro vlteriore securitate, it is concluded that the bargainor should leuie a fine to the bargainee with a rendring of the rent to the bargainor, prouiso that the bargainee shal regraunt the aduowson for life to the bargainor, and if it be couenaunted farther that all estates afterward to bee made shall bee to the said vses, now if a recouerie be suffered, and a fine leuied, but varying from the Indenture of couenants, & the bargainee dieth before the regraunt of the aduowson, the prouiso in this case is a conditiō, and for the breach of the cōdition the bargainor may enter, 14. Eliz. 311. Dyer. and as to that which you haue said 4. That where a bargaine & sale is perfite but defeasible vpō conditiō, the vēdee shal take the pro­fits till the cō ­dition be per­formed. that where the sale is perfite, but defeasible vpon cōdition, the vendee shal take the profites till the cōdition be performed, it agreeth to a case in our law, where a feofmēt is made to a feme couert of certain land, & the husbād after disagreeth to the feofmēt, yet the mesne profits which were takē betwixt the time of the liuery▪ and the disagree­ment, shall not be restored to the feoffor. For if a Praecipe quodreddat, had bene brought against the husband and the wife after liuerie, and the hus­bande had disagreed pending the writte, the writte shall abate, yet the taking of the profites is iustifiable: for the feofment made to the wo­man is good till the husband disagree. Per Br. Fe­ofm. de terres 36. contra opi­nion. Brian. 1. H. 7. 16.

Suppose that no day be limited whē 3. Diuision. 1. When no day is limited for the pay­ment of a summe what time the Law will require. the vendee is to pay the residue of the money, or a stranger is to offer more money as in your cases put before Codign. shall the defeasance be void? or what time will the Law require for the pay­ment of the money? 2. In such case the party charged with the payment shall by the Ciuill lawe haue lx. daies.

In such cases the Lawe doth limit a time and doth assigne to the party charged with the paiment, the space of lx. daies. Gl. mag. in c. Illo vos de pignori. & fa­cit optime. l. quod si nolit. §. qui mancipiū ff. de Aedil: e­dict.

In our law we haue a rule that whē 3. That by the Common law when no day is limited▪ the monie is pre­sently due, yet in some case by some au­thority the discretion of the Iudge is to limit a time. a mā is boūd in xx. li. to pay x. li. & no day of pay­mēt is limited, the lesser sūme is a duty presently, & ought presently to be tendered, 20. E. 4. 8. & 21. E. 4. 38. le case del maior de Exetor: per touts les Ser­geants & as­cuns des Iu­stices. howbeit in such cases by the opiniō of Starkey, Ibid. per Stark. the discretiō of the Iustices shall limit a time hauing regard to the distance of the place, and to the space of time wherein such a thing may be performed: for the obligor is not cōpelable to pay the mony within one houre, neither may he differ the paimēt the space of 7. yeeres, but the time must be adiudged by law: so if I prescribe to haue cōmō because of vicinage in such a village, namely euery yere after the corne be seuered & caried away, to put in my beasts into the field, & al the terre tenants of the village haue caried away their corne and hay ex­cept one man onely, now the Law shall adiudge whether he had sufficient time to carie away his corne & hay, when his neighbors did carie it a­way, Ibi. p Stark. & [...]airef. & so in the case before, the discretiō of the Iustices ought to measure the time, & surely his opinion seemeth reasonable vnto mee, though I dare not affirme it to be Law. For euery mans [Page] busines ought to be rated by a conuenient time, and therefore the learned Philosopher hath well 4. The defini­tion of time according to the opinion of Aristotle. defined time in this sort: Tempus est mensura mo­tus secundum prius & posterius: and as the motion doth measure the place: so doth time measure motion: for a daies iourney is measured of a day, an howres of an howre, Arist. physi­cor. 4. c. 11. & 12. lib. 1. de a­nim. c. 3. lib. de generat. & corrupt. 2. c. 10 and if a man be bound to enfeoffe one, and no certaine day is limited when the feofment shall be made, that may be done and performed in a reasonable time, 14. E. 3. Dette 138.

Are there no other things to defeat a 4. Diuision. bargaine and sale but onely conditions. 1. That a bar­gaine and sale may be auoy­ded thorough defect of some substantiall thing belong­ing to the acte.

Yes: for a bargaine and sale may be auoided for some defect of some substātial thing required to the perfection of the contract, as where the thing that is sold is not markettable or the price is not certainly sette downe, §. pretium. Iusti. Eo. & C. Eo. l. si. or when lawfull consent is wanting, as when a bargaine and sale is extorted or enforced thorough feare or threatning, Metus causa ff. & C. quod met. causa & l. si voluntate C. de rescin. vend. or when there is fraude and de­ceite in the contract, ff. de dol. l. eleganter l. si voluntate C. de rescin. vēd. as if the thing solde haue some inward fault: As if a horse or some other 2. That fraude and deceite in the cōtract by the Ciuill law doth defeate the contract. beast that is to be sold, be troubled with some in­ward or secrete disease, C. de act. empt. l. emp­tor. l. ex empto. §. animalium quoque ff. eod. for buying and selling being a contract bonae fidei, whatsoeuer thing is done in it vltra probatum vendendi modum is auoi­able by law, d. l. 1. l. Ex empto. §. red­hibition: ff. de act. emp. §. si quis virginem ibid. but the fault in such case, which is 3. A differēce where the fault of the thing solde is Latens or Patens. in the thing sold is either latens or patens: if it be plaine and visible, the bargainor is cleared from fault, §. nūc qua­lit. retractetur l. ea quae §. quaed. ff. de cō ­trahen. emp. but if it bee a secrete fault then a distin­ction must be vsed: for eyther it was in begin­ning and growing at the time of the sale, so that [Page 15] it may easily be cured, and yet not easily percei­ued, & then the seller is not any way to be char­ged: or els the secrete fault was some festered and inueterate disease, and in such case the seller is to be charged, L. mortis C. de per: & com: rei vend: but if the thing that is sold be liquide and gustable, and the buyer doth taste of it, or if it be measurable and hee doth measure it as corne, or if it be ponderable and he doth wey it as mettall: or if he marke a beast which hee hath bought, and the beast be afterward chaun­ged, in all these cases the dammage resteth vpon 4. That whe­ther the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault, hee is bound by the warranty by the Ciuill law. the buyer, L. 1. & l. q [...] si neque §. si. ff. de per: & com: rei vend: l. 2. C. eo. but if the things aforesaid be not ta­sted, measured, weyed, or marked, but be sold at a venture, as if a man sell all his wine or oyle in such a house, and doth warrant it to be good and merchantable, or if he warrant the beasts that he selleth to be sound, the seller in such cases is pu­nishable, l. si vna▪ ff. de per: & com. rei vend. but if he had not warrāted it, then the lawe is otherwise. d. l. 1. §. 1. C. eo. & l. quod saepe §. in his ff. eo.

In these cases, which you haue now put, our Lawe (as I take it) differeth very little, or nothing from yours: for whereas you 5. That bar­gaines & sales, matters in writing and obligatory, may be auoy­ded by alleag­ing that they were made or done per me­nasse or by du­resse. say, that a bargaine or sale enforced by terror may be auoyded: in our Lawe euen matters in wri­ting & obligatory may be for the same cause de­feated and frustrated: and if a man seised of an a­cre of lande doe giue it in taile by deed, and ma­keth a letter of Attourney to deliuer seisin, and al this is done by duresse of imprisonment, and li­uerie of seisin is made, this is a disseisin to the do­nor, and the deed of gift and liuerie may by Law be auoided, 41. E. 3. 9. 2. E. 4. 19. per Littl. Park. tit. Graunts Sect. 17. and if a man menasse me to kill me, [Page] if I wil not grant to him an annuitie of xx. s. & for doubt of death I grant it vnto him, this graunt is voidable, 11. R. 2. Du­resse. 13. But if a man grant an annuitie to an o­ther by threatning him that he wil cary away his goods, whereupō he granteth vnto him the an­nuitie, this grāt is not voidable by reason of such menacing, because he may haue an actiō to reco­uer the goods if they be takē away, 7. E. 4. 21. Park tit. Grāts Sect. 18. but a threat­ning of battery is a good cause to auoid a deed, 4. E. 2. Du­resse. 9. and so is the threatning of imprisonment a good cause to auoid a bonde, 8. H. 6. 12. but otherwise it is of a threatning to burne my house, 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at an other place, 38. H. 6. 13. [...] Moyle. 33. H. 6 24. 2. H. 5. 10. & as to that which you haue spoken of fraud & deceite in bargaines and sales, & the warranting of a thing to be good and sound, which is nought & corrupt, I could put many cases agreing with your assertiōs & diuer­sities. 6. That by the Common law a warrantie made vpō the concluding of a bargaine and sale doth binde, other­wise it is if the warrantie be made after the bargaine con­cluded. If a mā sell vnto one certaine cloth & war­rant it to be of such a length, and it is not of that lēgth, he which buieth the cloth may haue an a­ctiō of disceit against him by vertue of the war­rātie: but if the warrantie be made at some other time after the bargain, he may not haue a writ of disceite, Fitzh. N. B. 98. K. & if a ma sell to an other seeds, & war­rant thē to be of a certaine coūtrie, if they be not so a writ of disceit will lie: otherwise it had bin, if he had warrāted that they should haue growne, or if he should warrant that the horse which he selleth, should go 50. miles in a day: and a writ of deceite lieth for selling corrupt victuale, without warrātie, but not for selling rottē sheepe though [Page 16] it be with warrātie, & the warrāting of a thing to 7. That the warranting of a thing which is euident to the sense is no cause to bring a writte of dis­ceite by the Common law. be black which is blew, where the colours is eui­dent to sense is no cause of bringing a writ of dis­ceit, but is merely void: otherwise it is if the buy­er be blind, or the thing that is bought be absēt, 11. E. 4. 7. 13. H. 4. 1. & if a man sell a horse which hath a disease in his body, or if he sel certain quarters of corne which is ful of grauel, a writ of disceite will lie without warrātie, 20. H. 6. 36. [...] Paston. 11. H. 6. 22. & if one sell to an other certaine tūnes of wine, & warrāt thē to be good & they be cor­rupt, the vendee may haue an actiō vpō the case against the vendor, Fitz. N. B. 94. & the actiō wil lie without warrātie 7. H. 4. 14. according to the opiniō of some, but M. Fitz. saith that there ought to be a warrātie, or els no actiō will lie, for in such case his taste may be his iudge, Fitz. N. B. 94. C. but where it is with warrātie the writte must say that the defend at the time of the warrantie made, knew that the wine which he sold was corrupted 9. H. 6. 53..

You haue spokē enough of this mat­ter: 5. Diuision. now shew me whether by a bargain & sale of of the profites of land, the land it selfe do passe.

The grant or bargaine & sale of the 1. That by the Common law the graunt or sale of the profits of land is the grant of the lād it self. profits of the land is the grant of the lād it self, 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy. & if a mā do lease to one an acre of lād for life, reser­uing to himselfe the herbage, this reseruation is void for he hath reserued the same thing in sub­stance, 38. H. 6. 34. because the profites of land & the land it self are one & the selfe same thing in substance, 10. H. 7. 9. 6. [...]. 6. 71. Dy. but he may lease his Parke excepting the wood & vnderwood, & his mānor reseruing the warren, but the soile of the wood and warren shall goe to the lessee 14. H. 8. 1. 33. H. 8. Br. Re­seruat. 39..

By our Lawe a man may grant and 2. That by the Ciuill law a man may grāt and demise the vse of a thing and yet not grant the thing it selfe. demise the vse of a thing and yet not graunt the thing it selfe, Suppose a man graunt vnto mee his mare for a certaine time, I may during the time vse the mare at my pleasure, but I may not lend her or set her ouer to some other to vse, nei­ther cā I haue the fole which cōmeth of her, for by the graunt I may claime vsum onely, but not vsumfructum: and so hee to whom the vse of a mans ground is granted may take the profites of the ground to his owne vse, but may not sell thē to others. G [...]atup. in vocabular. verbo vti & frui.

I would gladly know when a man 6. Diuision. 1. When a mā selleth land in which treasure is hidde and the vendor knoweth not of it, whether shall the ven­dee haue the treasure. 2. How this word (trea­sure) is taken in the Ciuill lawe. selleth his land in which there is treasure hidde, whether the vendee shall haue the treasure, be­cause the vendor knew not of it at the time of the sale.

It may bee you take the worde Trea­sure generally, not properly & as it is vsed strict­ly in our Lawe, for if a man do hide any thing in the groūd for gaine, or through feare, or to keep it more safely, within time of memorie this may not properly haue the name of treasure, l. nunquam D. de acquir: rer. domin. for a treasure properly is, when money or things of good value haue lyen from time out of minde hidden in the ground, so that no man now hath propertie in it. d. l. nunquā. It hath bene forbidden by many 3. That by the Ciuil law mo­ney and other things necessa­ry to the com­mō vse of this life are forbid­den to be hid­den, & buried in the ground. lawes that money may not be buried, l. 4. D. ad leg. Iul: pecul. and these Lawes haue reason for them, for it is against the s) Aristot. Ni­comach. 5. nature of monie that it should be buried, being inuented for the daily and common vse of men: and the same may be affirmed of other thinges [Page 17] which are hidden: L. 5. l. [...]. D. de vsufr. ca. re. que vs. co [...]. and these prohibitory lawes are fortified with this penaltie, that things so hid­den shall be forfeited to the Treasurie. Plato had 4. Plato his superstitious opinion of thinges hidden in the earth. such a scrupulous, or rather such a superstitious conscience, that he made by his lawes treasures to be immob [...]les, & Dijs inferis sacros, and his precept is straunge in this case. Quae minime de­posuisti, ne tollito. Plat. lib. 11. de legi. Adrianus Caesar made a law (as Spartianus reproteth) that if any man had found treasure in his owne ground, himselfe should haue it: if in an other mans, he should giue the halfe to the owner of the soyle: if in a publique place, he should deuide it equally with the trea­surie. This law was abrogated by other lawes following, and reuiued by Iustinian, but nowe 5. How the Ciuil law doth order and dis­pose of trea­sure. and long time agoe our law hath transferred it to the Prince in whose Realme it is found, L. 3. §. Ne­rati. D. de ac­quir. posses. Alberic. Gen­tilis Disputati. Decad. 1. c. 10. So that I cannot possibly see how the vendee in your case proposed shall by our law haue it.

Nor by our law which saith, Quod the saurus competit domino regi, & non domi­no libertatis, si non sit per verba specialia, aut per prae­scriptionem. Fitz. Coro. 281. 436. And in this case though he selle 6. What the Common law doth deter­mine of trea­sure. vnto him the profit de terra: yet he doth not sell vnto him the profits in terra which treasures are. Plowd. co [...] en le infor­ma. pur mines.

I will content my selfe with this dif­ference which you haue put, and will now pro­ceede according to the platforme of our fore­mentioned order to learne something of seigno­ries and seruices

Because things are bet­ter 1. Diuision. and more certainly knowne by the definition of them, therefore I pray you let me first haue of you some de­finition or description of a seignorie.

A seignorie, which we call feudum 1. The descrip­tion of a seig­norie by the Ciuill law. may be thus described. A bountifull gran­ting of land for doing homage or some other speciall seruice. Glo. in vsi. feu. tit. quib▪ mod. feod. ac­quir. in prin­cip. c. vnico §. in primis & tit. in quib. caus. feud. amit. & de feud. dat: mi. valuas. ca. vnico. & meli­us tit. de feud. dat: in vicem leg: cōmissor: reprob: cap: v­nic:

A seignorie with vs, is nothing 2. Likewise by the Com­mon law. else but a relation of delitie betwixt the tenant and the Lord.

In our Canon law it is shortly de­sined: 3. By the Ca­non law. The granting of land for homage. C. ex dili­genti. de si­mon.

Shew me I pray you how homage 2. Diuision. and other seruices had their first existence and beginning, but first shew me what homage is.

Homage is thus performed. The 1. What ho­mage is, and how it is to be performed by the Common law. tenant that is to doe homage, must haue his head discouered, and his Lord sitting, he must kneele before him vpon both his knees, and shall hold forth both his hands betweene the hands of his Lord, and shall say as followeth. I become your man from this time forward of life and member, and earthly honour, and to you shall be faithfull and loyall, and shall beare vnto you faith for the tenements, which I claime to hold of you sauing the faith which I beare to our Lord the King: which being done the [Page 18] Lord sitting shall kisse him. c) Littlet. lib. 2. c. 1.

Hath this ceremonie beene aunci­ent?

The kneeling and giuing of a kisse 2. That Ho­mage hath bene practised in auncient times. at the doing of such seruice is very auncient: for Tiridates the King of Armenia did kneele down before Nero the Emperor, whom Nero lifted vp and gaue him a kisse. Tranquil. in Neron. And longe before his time, Alexander the great did imbrace, and with a kisse greeted such as made the like protestation of obedience and loyaltie vnto him, Plutarth. in Alexand. and long before that as it seemeth it was vsed in Iudaea, for vpō these words of the Psalme Psalm. 2. r. 12. (kisse the sonne) our english glosse addeth by way of interpreta­tion (in signe of homage) and Tremellius and Iu­nius (in signe of fealty:) sithence these times this respectiue humiliation hath spred it selfe into o­ther countries and territories: for the Duke of Gelderland did conceiue an oath in these words to Charles King of Fraunce: Ego deuenio vassallus ligeus Caroli regis Francorum, pro ratione quinqua­ginta millium scutorum auri ante festum diui Rhe­migij mihi soluendorum, &c. Bodin. lib. 1. de repub. c. 9.

I desire greatly to know the origi­nall 3. Diuision. and first blossoming of other seignories.

The most common seignorie of 1. What a Manor is, and whereof it cō ­sisteth. accompt which wee haue in our Law, is a seig­norie by reason of a Manor, which may be thus defined: A Manor it an inheritance of ancient conti­nuance cōsisting of demesnes and seruices, perquisites, casualties, things appendant and regardant, customes liberties, &c.

What? do so many things concurre to make a Manor: will not demesnes and seruices serue?

Yes, demesnes & seruices will suf­fice as material causes to make a Manor, 26. H. 8. 4. but it is a naked Manor which hath nothing els.

I would gladly heare somewhat of the commencement and first creation of a Man­nor.

M. Parkins doth very well & ori­ginally 2. The origi­nall of a Ma­nor. describe it in this manner. The originall of a Manor was when the King did giue a thousand acres of lande, or a greater or lesse parcell to one of his sub­iectes and his heires, to holde of him and his heyres, and the donee edifieth a house vpon this lande, as his man­sion place and of 20. acres or lesse or greater, parcell, he doth enfeoffe a straunger before the Statute of Quia empto. terrar. to holde of him and of his heires as of the same house by the plowing of 10. acres of arable lād parcell of that which remaineth in his owne possession, and enfeoffeth and other of an other parcell to hold of him by carying ordure to his arable land, and enfeof­feth a third man of a third parcell to goe with him in the warre against the Scots, and so by continuance of time (saith he) a Manor is made. Park. Reser­uat. fol. 128. Sect. 670. Yet by his fauour somewhat els goeth to the making of a Manor: namely, suite of Court at his house or mansion place, 33. H. 8. Br. Comprise. 31. Mannor. 5. and this suit must be the suite of more freeholders then one (so that some doubt may be made of M. Kitchins assertion, whē, he saith, that in some Manors there be no tenāts but copiholders, and yet in such Mannors be Court barons Kitch. Court Leete & Baron tit. Maner [...]um. fol. 4.) for if all the [Page 19] freeholds do eschete vnto the Lord beside one, or if he purchase al but one the mānor is extinct, for it can not be a mānor vnlesse there be a Court ba­ron belonging to it: and a Court baron must be helde before suitors, and not before one suitor, therfore one freehold can not make a mannor Br. Ca. Sect. 210. & 23. H. 8. Br. Court ba­ron. 22. in fi. & 33. H. 8. Br. Suit. 17..

You haue well delared vnto me the 4 Diuision. beginnings of Seignories and mannors: but haue there bene no lawes made for the strengthning & preseruing of thē: for me thinks they be good meanes to increase & support, the wealth, puis­sance, and florishing estate of the Realme.

Yes, our law in this case hath not ei­ther slūberd or winked. For in the anciēt Statute of Magna Charta it is prouided that Nullus liber ho­mo Statutes made for the preser­uation of seig­noties and Mannors. det de caetero amplius de terra sua, vel vēdat de cae­tero, quàm vt de residuo terrae suae possit sufficienter fi­eri domino feodi seruitium ei debitum quod pertinet ad feodū illud, Magna char­ta. c. 31. which statute (as M. Stāford auouch­eth,) is but a confirmation of the Cōmon law: & he (a most diligent and exquisite searcher of the reasons of Lawe, so that I may boldly speake of him, that which I shall not say impudently & vn­truly, Faelix, qui potuit rerum cognoscere causas) sif­teth out the reason of this Lawe. For saith he) if one that held by Knights seruice might haue bene suf­fered to haue aliened the greatest part of his land, he would haue aliened the same peraduenture to holde of him but in Socage, or by some small rent, and then hauing so little a liuelod lefte to himselfe, how had he bene able to haue done the seruice of a Knight or man of warre, or what should his Lord haue had in warde [Page] to haue found one to haue performed the seruice? surely little or nothing. Stamf. prae­rog. c. 7. tit. A­lienati: sans li­cence. But it seemeth doubtfull notwithstanding the Statute of Magna Chart. whether the tenaunt might alien his whole te­nancie or not, whereupon the Statute of Quia emptores terrarum was made, which permitted euerie free man to sell his lands or tenements, or any part therof at his pleasure to hold of the chief Lord by the same seruice, that the feoffer held, prouided alwaies that by any such sale, there come no lands to mortmain. This Statute (as M. Stamford noteth) remedieth the mischief, which was before found in the wardship, but not the other mischiefe touching the defence of the Realme, for when one mans liuing is so dismem­bred, neuer a one of the feoffees nor the feoffor is able to doe the seruice of a warrior for want of liuelode, there being so little quantity of land in euery of their hands, yea much more vnable sithence this statute is the feoffor then before, for before when he gaue it to hold of himselfe, he reserued somewhat in lieu of the land which went from him, whereas now he can reserue no­thing of common right. Stamf. ibid. And the land which he retaineth in his owne hands may perhaps be of small value.

What is the most generall and most common seruice of all? 5. Diuision.

Fealtie, for that is incident to e­uery 1. Fealtie is the most ge­nerall seruice in the Com­mon law. 2. And in the Ciuill law. tenure, vnles it be tenure in frankalmoign. Littlet. lib. 2 c. 3. Sect. 13. &c. 5. Sect. 22.

So it is with vs: for fealtie which of vs is called fidelitas, is due to euerie Lord to [Page 20] whom any seruice is to be performed: and euery [...] That by the Ciuill law the Common law and the Ca­non law, a re­ligious man ought to doe fealtie. tenāt ought to do such seruice, yea though he be a religious man and professed vnder rule. ca. vnico tit: de natura feu­di. Et tit. quali­ter vassall. iur. deb. sideli: do­mi: Et in ca. v­nico tit. quib. mod: feud: a­mittatur. Et in quib. causis feudum amitt. & tit. quae [...]uit pri. causa be­nef. amit.

But such a religious man may not say, Ego deuenio homo vester, nor humiliate himself to execute the rite of homage. C. veniēs & C. ex diligenti. de Simon. gra­uem de excess: praelat: cap. fin: de re Iud:

By our Law he may do homage: but may not say to his Lord ego deuenio homo ve­ster, because he hath professed himself to be one­ly God his man, but he may say, I doe vnto you ho­mage, and to you shalbe faithfull and loyall. Littlet. lib. 2. c. 1. Sect. 2.

Shewe me I pray you some speciall 6. Diuision. kinds of these seruices, that I may know them morefully, and more distinctly.

Seruices are diuersified according 1. The diuerse kindes of ser­uices in the ci­uill Law, and their defini­tions. to the qualities of the persons to whom they are to be done: if it be to bee done to an Emperour, it is to be tearmed an Imperiall seruice: if to a King, a regall seruice, Cap. 1. de feud: march: & ducat [...] & in ca. 1. quis dicat. dux, comes, marchio. if to Religious persons Ecclesiasticall: if to Lay men, secular, Tit. de his qui feud. dar. pos. & tit. E­piscop. vel Abbat. but when it is to bee done to a lesser estate then to an Em­perour or King, as to a Duke, Marquesse, or Earle, then it is called feudum honoratum, some­time land is giuen by inferior persons & meaner men without expressing any seruice, and thē the Law intendeth that fealty onely is to be done, & this is called Francū or Liberū, Ca. 1. de no. form: fidel: sometime it is gi­uen with reseruation of speciall seruice & that is feudum non nobile, Ca. f [...]. de ca­pilan: qui cur: vendid. somtime it is giuē in perpe­tuū & sometime but for tearme of life, and then it is called Perpetuum vel temporale De feud: march: in prin. de alien. feud. in fine, & de feud: guard: & castald.: But though by the oath of fealtie the vassalle be bound to serue [Page] his Lord in warre, yet this is limited to such case where the warre is not notoriously vniust or vn­lawfull: for if it be otherwise, though hee doe him no seruice in warre, yet he shall not forfeite his tenement, In cap: Do­mino guerram in prin. in tit. hic sini. lex de­inde &c. neither is he bound to do his ser­uice to his Lord if his Lorde bee excommuni­cate, or bannished, vntill he haue obteined ab­solution or a recalling from bannishment: but d) D. cap. Do­mino guerrā. in sin: in a iust warre the vassalle is bound to helpe his Lorde against euery other person who is not the Lorde of the vassalle, yea euen against his father, brother, or sonne.

Seruices in our Law are of di­uerse 2. The diuerse kindes of ser­uices in the Common law and their defi­nitions. sorts: some being more noble and some lesse noble: of these which are more noble, some be­long to the king and some both to the king & to subiects: of these that belong to the king, some be domestical only, as Petite Sergeancie: some bel­licall onely as Knights seruice: in Capite some both domesticall & bellicall as grand sergeancie, & some of the more noble seruices belong vnto subiects as well as to the king, as knights seruice and homage: these which be lesse noble may be diuided into two brāches: for either they are in­genuous or seruile: the ingenuous are of two sorts: either performable by particular men, or a certaine people, as fealtie, rent seruice, & the like which make socage tenure: or els performable by a certaine people onely, as burgage: the seruile or base seruice, is villenage. Of all these seruices saue such only as haue bin before described I will speake somewhat, seuerally, briefly, and in order. [Page 21] Petite Sergeancie, is where a man holdeth his land of the King, paying yerely vnto him a Bow, or a speare, or a dagger, or a launce, or a spurre of golde &c. Littlet. lib. 2. ca. 9. sect' 1. Knights seruice in Capite, is where a man holdeth his landes or tenements of the king as of his crowne immediatly ab antiquo, by doing some warlike seruice. Graund sergeancie, is where a man holdeth his lands or tenements of the king as of his Crowne immediatly, by doing some spe­ciall seruice to the King in person, as by carying his banner or launce, or by being his marshall, or sewer, or caruer, or butler, &c. Litt' li. 2. ca. 8. sect' 1. 23. H. 3. Gard 148 of homage and fealtie hath beene spoken before. Rent seruice, is where the tenant holdeth his lande of his Lorde by a certaine rent, for which, if it be behinde at the day, wherein it ought to be paied, the Lord may distreigne for it of common right. Burgage, is where the tenants of an auncient borough doe holde landes within the Borough of the King or some other person, as of his borough by a cer­taine rent. Litt' lib. 2. c. 10. sect' 1. 2. Villenage, is where a man holdeth of his Lorde, either by doing vnto him some parti­ticuler base seruice, and such a one is called a te­nant by villenage, or by doing generally whatso­euer base seruice his Lorde will commaund and impose vpon him, & such a tenant he is tearmed in our Law a villaine. Litt. lib. 2. c 11. sect' 1. & 2 This miserable estate of villenage, had his beginning soone after the di­luge, and now by the consent of all nations it is ratified, for the West Indians though they haue 3 The origi­nal of villenage and the nature thereof. no knowledge of diuine or humane Lawes, yet bondmen they haue, and the Mahometistes make [Page] Christians their bondeslaues, the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market. Bodin. lib. 1. de repub. c. 5. The Romains had power by their law to sel or kil their villains: Tacit. li. 14. but for mittigation of cruelty the Law Petronia was made, whereby it was forbidden that none should put his villaine to death without cause, which law was execu­ted by Nero, Senec. lib. 3. de benefic. & after by Adrianus: Sparcian. in Adrian. but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine, and from the mayming of him, Lit [...]' lib. 2. c. 11. sect' 32. hauing regard to the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed, Exo. 21. ver. 26. & 27. which lawe Constant. the Emperor did put in practise, l. 1. de E­mēd, seruor. C. but all the lands & goods purchased & possessed by the villaine the law frankly giueth to the Lord, if he wil seise & claime thē, Litt' lib. 2. c. 11. sect' 8. 10. wretched I cōfesse is the estate of such men, but yet paciently to be tollera­ted, because quā potestatē alijs deferre voluimus, ferre debemus, and they whose auncestors, or thēselues haue acknowledged thēselues to be villains, must now duetifully beare the yoake, though Cui plus licet quàm parest, plus vult quàm licet, Gellius lib. 17. c. 14. and let the Lords of such villaines harken to that which is spoken of an heathen man diuinely: Boni modera­toris est restringere potestatem, Ammian. lib. 29. but to leaue these particulers & to proceed more generally, as one man may hold lands of another by euery of these 4 The tenure wherby a man holdeth of an honor or Ma­nor is discri­bed, and by ex­amples illu­strated. abouesaid seruices as of his person, so likewise he may hold of him as of his Honor or Manor: for if [Page 22] a man hold of the king as of any Honor which is come to his highnes by discēt from any of his aū ­cestours, he shall not holde in Capite, for by the words in the first Chapter of Prerogatiua regis, it is euident that if it shalbe said a tenure in Capite, it must be holden of the Crowne of a long time, the words be ab antiquo de Corona, and that cannot be when it is but newly comen to the Crowne, and the statute of Magna Charta cap. 31. did (as Ma­ster Stamford saith) helpe this matter by expresse words, if such an Honor came to the Crowne by way of escheate, but not if it came by way of dis­cent, or any other way: and that statute doth set 5 Certain ho­nors which be not of the aun­cientnes of the Crowne. forth certaine honours by name which be not of the auncientnes of the Crowne, that is to say, the honor of Wallingford, Notinghā, Bullingbrook, and Lancaster, therefore he that holdeth of the King as of these Honors, holdeth not of the king in chiefe, Stamfords Praerog. c. 7. but other honors there be which of so long time haue been annexed to the Crowne, that to hold of thē is to hold in chiefe, for wher­as one held of the king as of a certaine honor, to 6 Some ho­nors which are annexed to the C [...]owne. yeeld a certaine rent to the keeping of the Castell of Douer, this hath beene taken to be a tenure in chiefe, and so it hath been thought if one held of his highnes as of the Honour of the Abbe of Marle, Fitz. nat. bre. 256. and Anno vndecimo of king Henry the se­uenth, the honor of Ralegh was annexed to the Crowne, therefore if any man hold as of that ho­nor it is a tenure in capite, 34. H. 8. [...]r. Cas. 230. and therefore there is a good rule in the Register of Writtes, that a man shall not make a fine for alienation of lands [Page] helde of the King as of his honor, but for lande helde in Capite onely: for there be certaine ho­nors which be held in Capite, & there is a certain writ that the Eschetor shal not greeue any mā for alienation of land held as of an Honor, for that is as of an honor, and not as of the kings person, & no Fine shall be paied for the alienation of such lande, Regist' 184. Br. Alienac' 33. And whereas it was found by Office that lande was helde of the Queene as of her princi­palitie of Wales, by the seruice of goinge with the Prince in Warre at the charge of the Prince per Curiā. 18. Eliz. Dy. per Curiam. This is no Tenure in capite, and Ma­ster Finchden putteth this diuersity, that where an Honour is seised into the Kings handes, if a Manor held of the Honor do escheat to the king by a common Escheate, if the King alien the Ma­nor to holde of him, the tenant shall hold by the same seruices as hee helde by before of the Ho­nour (for the Honour seemeth to bee vice domini in this case and as a meane Lord) but if it come to the King by forfaiture of warre or by some o­ther treasō, or by some other cause which touch­eth the Kings person, and the King seiseth, and enfeoffeth an other, the feoffee shall holde of the King as of his Crowne: 47. E. 3. 21. per Finchden. and though the Statute of Magna Charta Cap. 31. before recited doe say, Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingforde, Bolen &c. non faciet aliud seruitium quam fecit praeante: yet this is to be intended of a common Escheate and not otherwise. 19. H. 8. [...] Ca. 114. So a man may holde of the King as of his Manour, and yet not holde in Capite, for it was found by [Page 23] office that one helde land of the King, as of his Manor of Plimpton, and other landes as of his Manour of Darington, which came to the king by the attainder of treason of the Marquesse of Exetor, this hath beene thought to be no Te­nure in capite, for tenures in chiefe did begin in auncient time vpon the graunts of Kings to de­fende them against rebelles and enemies: and at this day the Queene may create a tenure in Ca­pite, if shee giue lande to holde of her person: o­therwise it is if it be giuen to hold of an Honor, Manour, &c. for a Tenure in chiefe must be im­mediatly of the King, and is created by the King onely: for a tenure created by a subiect cannot be a tenure in chiefe, nor haue any prerogatiue annexed vnto it, and if the tenants of an Honour should holde of the King in Capite, the Honour when it came to the King should bee destroyed, which may not be, and there is no reason that the tenant in whom there is no default should be preiudiced in his tenancie by the offence of the Lorde, 30. H. 8. 44. Dyer. and if the Q. purchase a Manour of which I. S. holdeth by knights seruice, the te­nant shall holde as he helde before, and he nee­deth not to tender his liuerie, nor primer seisin: for he doth not hold in Capite, but as of a Ma­nour, and if his heire be in ward by reason there­of he may haue an Ouster le maine at his ful age, and if the Queene graunt the Manour afterward to W. N. in fee, excepting the seruices of I. S. now I. S. holdeth of the Queene as of her high­nesse person: yet hee shall not holde in Capite [Page] but by such seruices as he helde by before of the Manor: for the Queenes acte may not preiudice her tenant, 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, 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, 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. 11. H. 7. 12. 12. H. 7. 18. p Finch. 24. H. 8. Br. Cas. 51.

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 shalbe compelled to do his seruice by a substitute.

To dissolue that question a difference is to be taken, for either the Father of the heire [Page 24] 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, 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, 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, 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.

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 [Page] of his tender age cannot personally performe the seruice, nor by the want of discretion prouide a conuenient person to accomplishe it, 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: 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, 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 [Page 25] terra sua remaneat in custodia dominorum vsque ad terminum supradictum) this (saieth 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 shalbe in warde after the death of his father, nay there is good authoritie for the contrarie. 6. Elizab. Comm̄ 268.

Let mee knowe I pray you what 8. Diuision. penalties lye vpon the tenant if hee doe not his seruice.

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: 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, §. & 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, 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. C. Imperia­lem § firmiter de prohi: feud: alien: p Freder:

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, 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. 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 [Page 26] the tenaunt for the homage, before the Lorde require him to doe homage vnto him and he refuseth, 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. Litt' lib. 2. e. 3. sect' 5. 6. 8. 7. E. 3. 29.

Resolue me I pray you whether when 9. Diuision. the tenant hath committed treason or felonie, [Page] and thereof is conuicted and attainted, he shal as to his tenancie incurre any preiudice.

In such case either the offence is 1 Whether, when the te­nant hath cō ­mitted 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, Cap. vnico §. deni (que) 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, §. Si vassallus culpam: si de feud [...] defunct'. and then it goeth to them of the kinred which are nearer in degree. Gloss. super verbo reuoca­buntur in d. si vassallus cul­pam.

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: 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, 18. Eliz. Com̄ 477. Nichols case. but this is to be intended [Page 27] in case of felonie, for in case of treason the King shall bee presently after the attainder in actuall possession without office founde by the statute of 33. H. 8. cap. 20. and if a man bee executed for felonie or die after Iudgement before he be put in execution, yet the writ shall say pro quo suspen­sus fuit, and if he be put to death by some other punishement then hanging, though the writte say pro quo suspensus fuit, that is not materiall, Fitz. nat. bre. 144. H. and if the father purchase lande, and his eldest sonne is attainted of felonie and dieth, hauing issue a sonne, and the father dieth, the next in de­gree of discent and worthines of bloud vnto the sonne attainted shall not haue the lande, but it shall escheate to the immediate Lord of whom the Land is held, for the bloud is corrupted: o­therwise it had b in if he had died in the life of his father hauing no issue. 32. H. 8. 48. Dyer.

Though I must needes confesse that it is verie good reason that the sonnes of thē, which are dissoyall subiectes and traitors to their Prince shoulde be barred from the enheritance of their auncestours, that their fathers infamy should al­waies accompanie them, and that they shoulde liue in perpetuall memorie, indignitie, and dis­grace, that their life should be a punishment vn­to them, and their fathers fault a continual cor­risiue (for that is done, because their fathers vi­ces are feared in them, & it may be wel thought, that being bredde, and brought vp of naughtie parents, they will be prone to doe the like, and punishment in that case is vsed in the nature of a [Page] medicine and not in fourme of a penaltie: and as it hath the effect of a punishment euerie one is punished for his owne fault onely: but as it hath the effect of a medicine, so one man is punished for an others fault, that by suffering shame hee may be deterred from crime) yet here it may be said what place is there left for innocencie if the most guiltles may be punished for the misdemea­nor of the most guiltie, for as it is not the fault of the corne that it groweth in a badde soile, so it is not the fault of the sonnes that they are begot­ten of lewde fathers, therfore it may seeme meet and expedient that there should be ibi paena, vbi culpa and that offences should rest vpon the au­thors, and that the falle shoulde goe no further then the fault, and there is a Law in Deutronom. Non interficiantur patres pro filijs, nec filij pro patri­bus, sed quisque pro peccato suo interficiatur, Deut. c. 24. and in an other place, vnusquisque in iniquitate sua mo­rietur, & quicunque comederit vuam acerbam illius dentes obstupescent, Ierem. 31. and againe anima que peccauit ipsa morietur, filius non portauit iniquitatē patris. Ezechi. 18.

But Saule did not obserue that rule in Deutronom. when he did put to the sword the ci­tizens of Nobe, where he did slay men, women, children, oxe, asse, and sheepe ore gladij. 1. Reg. 22.

But Dauid did keepe it, who woulde 4 The afore­said determi­nations & con­clusions of ci­uil and com­mon law touching the forfaiture of the offendor are examined by the Law of God. not haue had reuenge taken vpon Isboseth the son of Saul, 2. Reg. 4. and caused them to bee slaine, who wrought his death.

Yet God did otherwise, who in the diluge did destroy the parentes with their chil­dren, [Page 28] who spared neither sexe nor age in Sodom, who destroied together all the whole nation of the Amalekites, who would needs haue Achan destroied with the children, who did roote out al the inhabitants of Ierusalem.

We must otherwise conceiue of God his iudgements, then of mens proceedinges: hee hath said viae meae non sunt viae vestrae, all perfecti­on, goodnes, and iustice beginneth at him, who doth not any thing because it is iust, but it is therefore iust because hee doth it, or woulde haue it done, and if Achan had bin arrained be­fore an Ordinary tribunall he onely had perished and not his children, but God his iudgement is extraordinarie, and his will is therefore a Lawe because he is God, he is not bound to render ac­compt to any: neither is he guided by any Lawe but by the Lawe of his owne will, and though one man know not what an other doth purpose and imagin, yet God knoweth the hart and sear­cheth the reines and might see somewhat con­demnable in Achans children which man could not discouer, yet in some cases he doth obserue an ordinarie course of punishment, for Numb. 26. Core perished onely but not his sonnes, but they were kept safe for the Lords seruice, and of their poste­ritie came Samuel.

That which I spake before ( Canono.) out of the scripture was but by way of obiection, for our law punisheth not the Sons with death, but only with losse of inheritance in case of treason. ff. & C. ad l. Iul. mai.

The same Lawe doe we obserue [Page] both in felonie and treason together with the forfaiture of the goods.

The losse of inheritance in our Lawe doth comprehend the forfaiture of the goods.

Ye haue dwelt a long time in this dis­course of tenures and seruices: now therefore I would haue ye to speake somwhat of Iointenan­cie and tenancie in common.

Let me aske you this que­stion 1. Diuision. Codign. when two be iointe­nants, or tenants in common as we tearme them, whether by ri­gor of law the profits ought to go to them all in common, or no.

By common right they ought to haue 1 That Ioin­tenants, and tenants in cō ­mon ought to haue equall profit. equall profit, whether it be of money, marchan­dise, or other matter of negociation: for if one shold haue more profit thē an other, & the gaine should not bee alike, the societie or as it pleaseth you to tearme it Iointenancy, or tenancy in com­mon should be Leonina, that is rather the deuou­ring of Lyons, ff. Pro socio l. si non fuerint §. vlti. then the deuiding of men, or ac­cording to the common prouerbe, a man should deuide honie with a Beare, yet in this equal diui­sion, which the law requireth, recompense must be had of thinges, persons, and the industrie of the parties. l. omnes, & l. si socij, & l. l. si. non fue­rint ff. cod.

By our law if two bring a writ of warde of the body of the heire being within age, and the one of them is summoned and seue­red, and the other recouereth, he which was se­uered may haue a writte of accompt against the other for the profites, 45. E. 3. 10. and a writ of accompt li­eth, if one iointenant take all the profites, 39. 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, 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, 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, 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, 14. E. 3. Ac­compte. 70. 19. E. 2. Briefe 339. but as receiuor to the common profite of them both, 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: 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. 10. E. 3. 489. 10. E. 4. 5. so if their be two iointenants of a Manor, and the one of them vndertaketh to [Page] be baily for the other for his moity, a writ of ac­cōpt shal be maintenable against him, 21. E. 3. Ac­compt. 66. if he haue any especialty to shewe proouing the assumpsit, otherwise not, 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, 8. E. 2: Ac­compt. 115. and if two Merchants occupie their goods and merchandise in common to their cō ­mon profite, the one of them may haue a writ of accompt against his cōpanion, 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, 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. 39. E. 3. 35. 6. H. 4. 3. 13. E. 3. Execut. 91.

Whether is iointenancie, though 2. Diuision. it be a iointenancie of the inheritance, dissolued and determined by the death of one of the ioin­tenants.

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. ff. pro socio. l. actione §. morte. in fin: Iusti. eo. §. sol­uitur.

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 [Page 30] 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: 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. 5. Mari. 160. Dy.

And by a ciuill death iointenauncie may be determined: ff. pro socio l. actione. §. pu­blicatio. & Iu­sti: eod. §. pu­blicatio. Likewise by the will, and by the alienation of one of the iointenants. L. verum in sin: & l. socie­tatem §. 1. ff. eod. l. tamdiu. C. eod.

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: 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: 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 [Page] the land by suruiuer and not by discent from his companion: 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. Fitzh. N. B. 166. a. 5. E. 4. 3 34. E. 3. Gar­rantie 71.

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.

By our law all corporall things passe both in demesne, and possession, and they are iointenants of them, 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. L. 3. in prin­cip. ff. eo.

By the name of goods in our law no inheritance passeth, but it is a question with vs, if one deuise to his wife the third part of all his goods and chattels, whether this shall be intended as they shall be after the legacies or debts paid, or as they were at the time of the deuise: 30. H. 8. 59. Dyl But this doubt of later time hath re­ceiued decision, for where a man deuised the 2. That by the Common law if a man deuise the third parte of his goods to his wife it shal be so rated as they weare at the time of the death of the testator. 3. That the Queene may graunt a thing in action. moitie of his goods to his wife, and died, it was ruled that she shall haue the goods as they were at the time of the death of the testator, if the te­stator be not indebted: 5. Mari. 164. and as for graunting things in action, we haue this positiue grounde in law, that the Queene may grant ouer her rent and condition of reentrie for the nonpaiment of it, and her action or any thing that her highnes [Page 31] hath in action: but contrariwise it is of a com­mon person. 2. H. 7. 8.

Now shew me of what thinges and 4. Diuision. in what sorte iointenancie or tenancie in com­mon may be.

It may be of all such things as lie in 1. That iointe­nancie by the Ciuil law may be of all such things as lie in contract. contract, as lambe, milke, woll, cheese and corne, and whatsoeuer is gained by the labour of oxē, or the harrowing of horses or the letting to gift of kine: L. si nō fue­rint. ff. pro soc. and by the nature of the contract, when two are agreed to be tenants in common of the profites comming and rising of beasts, the losse of the beastes perteyneth onely to him in whom the very propertie of the beastes be: but the charge of the pasture and labour, which is to be taken about thē belongeth onely to him who is admitted to be tenant in common for the pro­fites. 2. That the li­mitation of tenancie in cō ­mon is by the partie, but the construction of it by the law. The possession in cōmon of beasts doth cō ­tinue vntill they haue yong, if the possessiō were limited at the first vntill they had yoong: and if two be agreed to be tenants in common of all the profites of a certaine ground, the tenancie in cō ­mon ceaseth not till all the profites be taken: and therefore if two be agreed to be tenants in com­mon from the Calends of March, vntill such time as their fields are new to be tilled & sowne, they shal be tenants in common vnto the Calendes of Nouember, because betwixt both the Calendes the fields may be tilled & sowne, or suppose that they haue contracted a tenancie in common of kine from the Calendes of Iuly, vntill they haue yonge, this tenancie in cōmon shall continue till [Page] the Calends of Aprill next ensuing, because for the most part they are wont to calfe betwixt both the Calends. L. si conue­nerit in princ. ff pro socio.

A parson may grant to another the moitie of his tithes for years, whether it be lamb wooll, or corne, & yet he hath no possession of them, because they are not yet in esse, 38. E. 3. 6. but yet he hath an interest in them, & may grant the moitie of them as wel as one may grant to another that it shall be lawfull for him to take euery yeere a Deare, or a Hare, or a Cony within his soile, this is a good grant: 10. H. 7. 30. and by the same reason that he may grant his tithes, he may grant the moitie of them, and so make a tenancy in common.

Suppose the case to be this, that two 5. Diuision. iointenants or tenants in common haue agreed to make a common wall about their ground, or that they should plant a certain number of trees in their common soile, and one of them alieneth his part, whether is his assignee bound to per­forme the couenant? 1. That an as­signee in the Ciuill lawe is bound by the the couenant of his graun­tor.

In our law there be many authori­ties, that he ought to performe the couenant. L. quaesit. §. quod a Titio. ff. de praeca. & arg. l. in hoc iudiciū §. pe­nult. ff. de cō ­mun. diuid. & ff. de damn. in­fect. l. fluminū §. adducitur. & ff. pro soc. l. 1. demque.

To that our law agreeth, for if a man lease a house and land for yeares by deed indented, and the lessee doth couenant that he 2. That by the Common law in such case the assignee is bound by the couenant. and his assignees shall repaire the house, and af­ter the lessee granteth ouer his terme, and the as­signee doth not repaire it, an action of couenāt lieth against the assignee, for this is a couenant which runneth with the land: 25. H. 8. Br. couen. 32. De­putie. 16. and according to M. Brookes opinion, it lieth also against the [Page 32] lessee after that he hath assigned ouer his terme: & if he bring seueral writs of couenāt against thē both, there is no remedie, till he haue had execu­tion against one of them, and then if he sue the other, he may haue an Audit a querela. Br. Couen. 32.

I will content my selfe at this time with your instructions touching iointenants, & tenants in common, & will passe ouer to the exa­mining of the course of exchaunges.

What if two do deale toge­ther 1. Diuision. after this sort: the one of thē gi­ueth a horse and x. s. for the horse of an other man, whether is this a bar­gaine and sale, or an exchaunge.

In such case either it is intended, and 1. That by thē Ciuill law cō ­tracts for a certaine price are not ex­chaunges. vttered betwixt the parties, that the one shal haue such a thing for a certaine price, as namely that A. shall haue the horse of B. for ten pounds: and B. taketh of A. sixe pounds and an other horse in full paiment and satisfactiō, this is cleerely a bar­gaine and sale L. tenetur. §. 1. de action: emp.: but if A. had giuen B. a horse for a horse that had bene an exchaunge Ar. I. item si pretio. §. 1. ff. locat:.

By our Law there must bee the ex­presse 2. That by the Common law the word Ex­cambium must be vsed in the exchaunge. word of exchaūge mētioned, otherwise a thing cā not be said to passe by exchaūge, for the word excambiū only maketh an exchaūge, as the words liberūmaritagiū onely doe make frankma­riage: [Page] for if I giue to one an acre of land by deed indented, and he by the same deed giueth to me an other acre for this acre, nothing passeth ex­cept liuerie be made, and then the 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 exchaū ­ged 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: 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: 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: 9. E. 4. 38. And though it be auouch­ed for lawe, that if by a deed of composition [Page 33] 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: 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, 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, 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, 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. 31. E. 3. Gar­rantie 29.

Whether may Ecclesiasticall be­nefices, 2. Diuision. promotions, and liuings bee exchaun­ged or no.

The incumbents may not by their 1. That incū ­bents may not exchaunge their benefices by the Canon law. sole authoritie chaunge their benefices, but they [Page] 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 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. Glos. in d. Clem. vnic. su­per verbo. Conferantur.

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, 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, 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, Statut. de religios. 7. E. 1. Mortmain. 3. and therefore the case was, [Page 34] 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, 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, 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. 31. Eliz.

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.

First I pray you tell 1. Diuision. me, whether this manner and cu­stome of disposing by a mans last will and Testament, hath bene in auncient time practised or no.

It is very auncient, for it was one 1. The anti­quity of willes. of the Lawes of the twelfe Tables, Vti legassit, suae rei ita ius esto, L. verbis le­gis ff. de verb. signif. But before Solons time it was not lawfull for a man to deuise his goods Ex­tra familiam, to straungers: and therefore, when Solon did by Lawe established, graunt this li­bertie to the Athenians, it was plausibly recei­ued of them, and accompted the best of all his Lawes. Plutarch. in Solon. But Plato in his writings straungely, 2. Plato his exception a­gainst Solon his Law con­cerning willes. howsoeuer diuinely conceited, dispraiseth this Lawe, and calleth the makers of it childish, be­cause by that meane, a window is opened to de­ceite, and to flatterie: for hee saith, that when men are at point of death, they beginne to dote, and their vnderstanding is broken, and there­fore it is very likely, that euery man dying will dispose and appoint many thinges contrarie to the Lawe, to the vsuall practise of them that liue, & to the example of their ancestors. Plat. lib. 11. de legib. This sentence of Plato, Iustinian an Emperour ex­quisitely busied in the compiling of Lawes, because hee had rather erre with Plato, then [Page 35] yeelde vnto the truth with Solon, alloweth, and frameth his Lawes accordingly, Authent. de trient: & sem. in l. Paulus ad Treb. and S. Ierom writeth, that Solons Lawe was repealed in his time, because Priestes which were commonly employed in the making of willes, did greedi­ly and odiously drawe to themselfes, the inhe­ritance of the dead: L. 1. C. de sacr: Eccles. and an other reason may be added in defence of Platoes opinion: because men in daunger of death are for the most parte too prodigall, which Aristotle noted, Diogen. La­erti. in vit. Aristotel. and Ta­citus pronounceth more peremptorily speaking of Otho, Tacit. lib. 2. lustor. Pecunias distributt parce, nec tanquam periturus, hauing affirmed before, Difficilius est temperare, qua te non putes diu vsurum. But Solons 3. Solons lawe is mainteined and defended against Plato. Lawe leaneth to a more stable roote, then that it may bee shaken by the weake blaste of such colourable reprehensions: and Solon did make exceptions to his Lawe for hee made these te­staments voide which were made by any in the extremitie of his disease, or which a man was enforced to make by imprisonment or torment, or by the perswasions and flatterie of his wife: But surely the making of willes is necessarie, L. 3. D. qui test. fa. pos. and without it men can not effect the good e­ducation and bringing vp of their children, nor be able of their proper goodes, chattels and other mooueable substaunce to discharge their dettes, and after their degrees set foorth and aduance their children and posteritie. 32. H. 8. c. 1. Willes 2. nor leaue their wifes such comfortable support as in con­science they ought.

Lette mee know I pray you 2. Diuision. [Page] what persons may be legataries or deuisees, and who not?

Euerie one that may bee made 1. Such as bee vncapable of inheritances & goods may not be deui­sees, heires, or executors by the Ciuill law. 2. A difference in the Ciuill law betwixt the making of a deuisee and the making of an executor. heire or executor may be a legatarie or deuisee, but to thē which are vncapable by Law of inhe­ritances or goods no deuise can be made, neither can they be made heires or executors, C. de haered. instit. l. 1. but there is a difference betwixt the making of a deuisee and the making of an heire or executor, because he that is to be made heire or executor must bee an able person in Lawe, as well at the time of the making of the Testament, as at the death of the testator, and the vndertaking of the ex­ecutorship, or entre into the inheritaunce: ff. de haered. Insti. l. si alienū §. de extraneis & Iust: de haer. qual. & differ. §. in extraneis. but as to the deuisee it is sufficient if he be ca­pable at the time of the death of the testator. ff. de donat. causa mort: l. in mortis. & de condit: & de­mon. l. eū qui. & ff. de iur. fisc: l. non intelligi­tur §. quando.

By our Law to al such persons, to whom a graunt may be made, a deuise may bee 3. That by the Common law all persons to whom a graūt may be made a deuise may be made, vn­lesse it other­wise happen in some fewe ca­ses. made, vnlesse it otherwise happē in some few ca­ses, and the deuise ought to be good & effectual at the time of the death of the deuisor: as if a mā seised of landes deuisable, doe deuise the same to the fellowes of a colledge, or the Priestes of a Chauntery, and there is no such Colledge nor Chauntery at the time of the death of the deui­sor: & after such a colledge or chauntery is made, yet the deuise is void, because deuises are purcha­ses, and when a man taketh lands or tenements 4. That the deuisee must be a person capable of the thing deuised. by purchase, hee must be an able person to take when it falleth to him by the purchase, Park. 97. Sect. 505. 9. H. 6. 23. 2. Eliza. 119. Pl. 18. Dy. 13. Eli. 303. Pl. 49. Dy. & 300. Pl. 39. & 5. E. 4. 6. p Billing. and the Cōminaltie of a guild, which is not incorporate by the kings charter to purchase lands, is not ca­pable [Page 36] of lands, and if a mā seised of lands deuise­able in fee, do deuise the same land to A. for life, to find a Chapleine chaunting in the Church of Dale, the remainder to two of the best men of the Guilde or fraternitie of Whittawers in Lon­dō to find a chaplaine &c. if the Whittawers be not incorporate by the Kings charte [...], & enabled to purchase, this remainder is void, Park. 98. sect. 510. 49. E. 3. 3. and if a rent be granted for life to I. S. the remainder in fee to him that shall first come to Powles the next daie in the morning, this remainder is good though it be vpon condition, if I. S. die not before the next daie, and if one come to Powles the next daie in the morning, if he which commeth thither then be not a person disabled to take by the graunt, 30. Assis. pl. 47. Perk. 13. Sect. 56. so that whereas you say that by your Lawe it is 5. That by the Common law the deuisee ought to be capable at the time of the death of the deuisor. sufficient 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 persō in law, yet by custome heretofore, which the Cōmon 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, Littl. lib. 2. c. 10. Sect. 8. 27. Assis. pl. 60. and then they are not one person. 24. H. 8. Br. Deuis. 34.

Now let me know what things may 3. Diuision. be deuised.

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, ff. de legat. 2. l. vinum §. si rē tuam. & if he happen to deuise a thing, which is not his owne but an other mās, [Page] 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, 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, L. 39. §. Idē 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, 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.

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 cānot 3. A differē o [...] in the Cōmon 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 [Page 37] 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. 10. Eli. Com̄ Brets case, per Louel & touts les Iust.

I pray you let me know more parti­cularly what things may be deuised.

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, 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 lābes 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: 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 [Page] of the deuise in the will, the executors shall bee discharged of perfourming the deuise after the death of the testator. l. Lucius Ti­tius in testa­mento in prin. ff. de legat. 2. gl. in Clem. dudum. de Se­pultur.

It is said in our bookes that if a 5 That the deuise of tenāt for terme of life or tenant i [...] 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, 4 H. 3. De­uis. 26. But if a man seised of lande in fee as in right of his w [...]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: 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. 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 Corne bee seuered, the issue in taile may well deuise it▪ Park. Deuis. 100 sect 520. and if a man which is seised of land in fee, haue issue a daughter, and dyeth, his wife being grossement enseint with a sonne, and [Page 38] the daughter entreth and soweth the lande, and after the sowing and before the seuerance the sonne is borne, and one of his next friendes entreth for him, yet the daughter may deuise the Corne growing vppon the lande, 19. H. 6. 6. And the Statute of Merton, which sayeth that om­nes viduae possint legare blada is but an affirmati­on of the common Lawe which was vsed in the time of King Henry the thirde aboue men­cioned, in the beginning of his raigne: and so it is of other thinges future contingent, they may bee deuised well enough, for if a man en­feoffe a straunger of his lande vpon payment, or non-payment on the part of the feoffee, as if the feoffee shall pay vnto the feoffour twen­tie poundes, at the feast of Easter next ensu­ing, that then he may reteigne the lande to him and to his heires, and if hee doe not pay that then it shall bee lawfull for the feoffour to re­enter, nowe if the feoffour make his will, and deuise the money when it shall bee paied to A. and dyeth before the day of payment, this is a good deuise condicionally, that is, if the fe­offee pay the mony to the executors. 12. E. 3. Condic. 8. For when 6 That when the partie hath a certaine, and lawfull interest in a thing, he may lease it, graunt it, or de­uise it before the existence of it. the partie hath a lawfull and a certaine inte­rest in a thinge, hee may graunt, lease, or de­uise it before the thing haue actuall existence, therefore the saying of Master Keble that wor­thie man is well to be marked, when hee sayeth that the King cannot graunt any disme before it bee graunted to his highnesse by Parliament, neyther a wardshippe cum acciderit, otherwise [Page] it is of the amerciaments of his tenants in such a village, the wrecke of the Sea or catalla felonum, for he hath an inheritance in them and a possessi­on in law, but in the disme hee hath no interest before the graunt. 21. E. 4. Ab­bot de Walth. case 45. p Ke­ble.

By our Law a man may deuise to one 7 That a de­uise may be vncertaine, but yet good in Law, because it may by spe­cial meanes be reduced to cer­taintie. that he shall haue yerely xx. loade of stone out of his quarrie in Dale, or three load of wood out of his groue or coppies in Sale, ff. de legat. 1. l. apud Iuli­an. §. si quis. and if the testa­tor doe deuise one of his vineyardes, one of his horses, or one of his rickes of corne, it shall be in the election of the heire or the executor, what vineyarde, what horse, or what ricke of corne he will giue him, so that he giue him not the verie worst, but these which be indifferent. l. legato ge­neraliter ff. de lega. 1.

So in our Law a man may graunt, & therefore as I think if one deuise vnto an other one of the horses in his stable, and he hath fiue in his stable, the grauntee may chose which of them he will haue: and if a man graunt to one xx. s. of rent charge, or xl. s. of rent charge, I may distreine for which of the rents I will. 9. E. 4. 39. 11. E. 3. An­nuity 27. Park. Grāts 17. sect 74.

Let me aske you this question: The 4. Diuision. Testator hauing but one daughter, deuiseth by his wil that 1000. li. shal be payd for the mariage of his daughters, meaning as well other daugh­ters that shoulde be borne as her that is liuing: there is none afterwarde borne, the testator dy­ethw, hether is the executor bounde to pay the whole thousande poundes to the daughter that is liuing.

I thinke he is bounde by Lawe to pay 1 That by the Ciuil law Ius acrescendi tak­eth effect in le­gacies. [Page 39] the whole summe vnto her, l. qui quartā §. fin. ff. de le­gat. 1. for ius accrescendi habet locum in legatis, d. §. fin. cum l. seq. & l. a Ti­tio. ff. de verbo oblatio. and so if the testator do de­uise that if he shall haue a daughter, the execu­tor shoulde giue a C. li. for the mariage of his daughter, and two daughters be borne, nowe the executor shall pay to euery of them C. li. l. qui filiabus §. si quis ita. ff. de legat. 1. and if the case be, that the testatour doth deuise the sixthe part of his houses, of his landes, or vineyards to Sempronius, whereupon Sempronius demaundeth a sixth part of euery house, of eue­ry farme, and of euery vineyarde: and the heire saith that these thinges cannot well be deuided, but that hee is readie to pay to the deuisee the ve­rie 2 Whether, when the 6. part of a thing is deuised the heire is com­pellable to de­uide it by the Ciuil law, or to render the value. value of euery sixth parte, the question is whether the law regardeth this aunswere of the heire, and for this doubt we haue this generall decision: if the thing which is so to be deuided, be indiuisible by the nature of it, or if it cannot bee commodiously diuided, the heire hath the choise to pay the value: but if it be deuisible then the law is otherwise. l. non ampli­us. §. cum ho­norum. ff. de legat. 1.

As to your last case our law doth accorde with yours, for legacies shalbe fauoured and ordered as dower is, and if a woman haue ti­tle of dower to a house, a chamber in the house may be allotted vnto her, as the third part of the 3 That by the common law some time there may be a seuerance of y ^e thing deuised: sometime of the profits of the thing, or of the aduantage. house or in allowance of her dower, but she shal not so be indowed of a milne, but shall haue the third part of the profit of the milne, because the milne cannot be seuered, and a woman may bee endowed of a villaine ingrosse as to haue his ser­uices euery third day, and of an aduowson in [Page] grosse to haue the third presentment, and of the moitie of an aduowson ingrosse to haue the sixth presentment, and a woman shall be endowed of a bailywicke to haue the third part of the pro­fit of it. 1. H. 5. 1. 45. E. 3. Dower 50. Na. Br. 7. 2. H. 6. 11. 13. E. 2. Dower 161. Fitz. na. br. 148 C. 150. G. 149. K. 148. C. 12. E. 2. Dower 157. 11. E. 3. Dower 85. 15. E. 3. Dower 81.

Let the case bee that the Testa­tour 5. Diuision. deuiseth to one a plotte of grounde, and speaketh nothinge of the house which is built vppon it, whether shall the deuisee haue the house.

By our Lawe hee shall haue the 1 That if a man deuise a plott of groūd whereon a house is built the house also passeth. house, whether it were built before the Testa­ment were made, or after, l. seruum silij §. si are ae ff. de l. si are ae. ff. de leg. 2. and wee haue a rule in our Lawe, Quidquid plantatur, seritur, vel inaedificatur, omne solo cedit, radices si tamen egit.

It is so likewise in our Lawe, 2 A house built vpon lād entailed after the gift shalbe recouered in a Formedon. for if a man giue lande in taile, and the donee buildeth a house vpon it, and dyeth without is­sue, the donor if he be deforced from the land, shall demaunde it in a Formedon per nomen me­suagij. 32. H. 8. 47. Dyer.

Put case the Testatour deuiseth to 6. Diuision. one a deede or instrument conteyninge a cer­taine debt, whether doth he deuise the debt or noe. l. seruum silij § [...]um qui chi­rographum. de legat. 1.

In that case the debt passeth, ^h but 1 That by the ciuil law when an especialtie conteining a debt is deuised to one, the debt it selfe passeth. if tenne seuerall payments ought to bee made by the condition of a bonde, as suppose tenne poundes is to be payd yerely by tenne seueral payments, and fiue yeres be past, and fiue pay­ments made, and the testator deuiseth the summe [Page 40] comprised in the condition to I. S. in this case the deuisee shal not recouer against the executor the whole summe conteigned in the condition, but fiue pounds onely. d. l. seruum filij §. sed et si nomen.

Master Perkins, a man that wri­teth 2 Master Par­kins his opiniō touching the deuising of an obligation is examined. of diuerse Titles of our Law, rather subtilly, then soundely, saieth that if twentie pounds be due to a man vpon an obligation or a contracte, which ought to be payd at the feast of Easter, and he euiseth it to a straunger, this is a good deuise, if the money bee afterward payd: but if he had deuised the obligation, or the counterpaine of the Indenture of couenants, wherein the bond is conteined, the deuisee shall not vse an action vpon the bonde in his owne name, but he may giue or sell the obligation to the obligor, or to a straunger, Perkins 101. sect' 527. but howe bonds, or things in ac­tion may passe directly from one to another by way of graunt, or deuise, I cannot yet perceiue by any authenticke opinion in our yere bookes: for to say that the especialty, or bonde contey­ning the debt or duety, doth passe vnto the de­uisee, though the debt doe not passe, as name­ly the parchment, ynke, and waxe, but not the summe conteigned, is as if one shoulde ima­gine, that a man roweth ouer Thames in bo­dy, and yet remaineth at the Temple staires in soule, for if the debt being the principall doe not passe, I cannot vnderstand how the parch­ment or paper, or the deede it selfe, being the accessorie can passe, for accessorium sequitur suum principale.

Resolue in this, if a man deuise to an 7. Diuision. other a horse, a garment, or the like, and they pe­rishe in the handes of the executour, whether is the executor bounde by Law to make them good.

In such case either the executor doth linger and delay the deliuery, or giuing of the thing deuised to him, to whom it was deuised, and then I doubt not, but he is bound to pay the 1 That by the Ciuil Law the executor is bound to make good the thing which perish­eth through his default. value of the thing which perisheth through his default, or there is no default in him, and then he is not to bee charged with the making of it good, l. cum heres §. si. & l. huius­modi, §. si cui homo. ff. de le­gat. 1. and then the executor or heire may bee said to delay the administration of the legacye, when he may speedily performe it, and will not, but if he be by the acte of a straunger hindered from executing the bequest, as suppose he hath not the monie readie which is deuised, or the deuise be that hee shall purchase an other mans lande with the money of the deuisor, and assure 2 That in some cases the time of per­forming lega­cies is left to the discretion of the Iudges. it to I. S. if he cannot easilie compasse this pur­chase doing his best endeuour, the rigor of lawe is to be tempered in this case by discretion, and respite must bee giuen by the arbitrage of the Iudge. l. si domus §. in pecunia. ff. de legat. 1.

In our Law we haue many ca­ses, wherein they that are charged with the deli­uery of a thing vpon some trust and confidence 3 That by the common law the executors are bound to performe the deuise in con­uenient time. reposed in them, and the thing that should be de­liuered perisheth through their default, they are enforced by lawe to make full amendes, for if a man be seised of lande deuisable in fee, and de­uiseth [Page 41] by his Testament that his executors shall sell his land, and shall distribute the profits com­ming thereof to the vse of the poore, and the de­uisor dyeth, if a straunger tender vnto them mo­nie for the lande, but not so much as the lande is worthe in their opinion, and they to the intent they may sell it more deere, differre the sale for two yeres space, and take the profit themselues, nowe the heire for their longe delaying may en­ter, 4 A diuersitie betwixt an ob­ligee and a de­uisee. and put them out of the land, 38. Ass. pl. 3. & 39. Ass. pl. 3. but if a man be bound in xx. li. to pay x. li. at the feast of Saint Mi­chael, the obligee refuseth the money when it is tendered in pollardes, which afterward are em­based, the obligor shall beare the losse of the em­basement, because he must pleade vncore prist, 7. E. 6. 83. Dyer. and yet the refusal was the default of the obligee.

Put case that a man deuiseth to one a 8. Diuision. beadsteede, whether shall the deuisee by force of this deuise haue the curtaines of the bed.

The accessorie goeth alwaies with the 1 That things which are ac­c [...]ssory doe passe with their principal. principal, and the curtaines therefore in this case shall passe with the bedsteade, l. liberorum §. sin. & ibi glo: de legat' 3. so if a man deuise to one his land or his house, the arrerages due by the farmor or inhabitant from the death of the Testator are payable to the deuisee, but not the arrerages before. l. praedijs. §. 1. ff de legat: 3. l. Nomen. §. filio ex parte de 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. praedijs in §. balneas, & §. qui domum ff. de legat: 3. and if a man do by his last wil deuise [Page] 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, l. cū 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. cum ita le­gatur in princ. ff. de legat. 2.

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, 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 [Page 42] 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, 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, 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, 39. H. 6. 6. and if a man graunt to another housewood and hedge­wood to be burnt in his houses in Dale, this shal not extend to houses which are afterward built, Temps E. 1. Common 28. and though Wilbyes opinion be, that if a man grāt 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. 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.

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 [Page] 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.

We haue expresse authoritie in our Law that it shall. l. vxori v [...]u­fru: §. quaesitū ff. de v [...]ufru: le:

Brettes case which is very famous in our law is to the cōtrary: 10. Eliz. 46. Com̄ 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, 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 couenāt made with the partie intestate. Fitz. na. br. 146. D. 2. Mar. 112. Dy.

What if the testator do say I deuise such 10. Diuision. a thing to God or to Christ, what is wrought by this deuise?

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. Authent: de ecclesiast' tit̄ §. si quis in no­mine argu: l. quae cōditio. §. sin: ff. de cond: & de monstr:

In auncient times such deuises were good, and so was a fine leuied deo, & eccle­siae, but the lawe is now altered, 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, 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 [Page 43] 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, 37. H. 6. 3 [...]. but thē the gift must haue bin of a personal thing, for of inheritance of land they cannot take to the vse of the Church, 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 Couēt 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. 8. H. 5. 4. per Babi. & Rolfe.

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.

These legacies onely shal stand good, 1 That by the ciuil law where two testamēts conteigne in them seueral summes, that which con­teineth the lessee shal stād but by the cō ­mon law the later. which do conteigne in them a lesser summe. l. Semproni­us Procul. ff. de legat. 2.

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, [Page] that onely shall stande, 2. H. 5. 8. but by other au­thoritie the later onely shall take place, what summes soeuer they conteigne. 4. H. 7. 13.

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?

By our Lawe it is not due: 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.

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 seuerāce 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. 20. H. 6. 22.

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 [Page 44] 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 re [...]onusee, yet he shall haue execution of the land.

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. l. creditorē ff. de legat: 2.

I doe not perceiue any repug­nancie in our Lawe to that which you haue saide.

If he had made his creditour his executour in this case, what woulde then haue followed.

Then the debt had bin extinct: 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, 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, 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 [Page] action, if he doe not administer, 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. 7. H. 4. 18. 27 H. 6. en Scire fac' 7. Eliz. Com̄ Greys­brookes case 275.

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. Philip. Deci ad reg. iur.

Now I will put you a case, which is 14. Diuision. a common cōtingent, 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?

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. l. si filiae pater ff. de legat. 3.

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. [Page 45] 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: 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: 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: 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). 23. Eliz. 371. Dy.

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 cōfirme this vnto me.

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, L. legatis seruis. §. iūctis. 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, D. l. legatis §. pecoribus. & if a flocke of Sheepe bee deuised, the Lambes and the Rammes are conteined in the deuise L. seruis le­gat. §. si. ff., but if he deuise his Sheepe, without saying his flocke of sheepe, his lambes do not passe, 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 L. qui duos mulos. ff. de le­gat: 3., and if the testator doe deuise to one all his woolle, all his wo [...]lle as wel washed, as not washed, spunne as not spunne, & generally al his woolle which is not wrought into clothe is deuised, 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, 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 L. cum au­rum. ff. de auro & argent: leg: in princip. & l. lana. §. fi. ff. de legat. 3., but no siluer coine doth passe, L. Quintus in prin. ff. de aur: & argent: leg. other­wise it had beene if he had deuised all his sil­uer wrought or laboured 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 [Page 46] matter of clothe, because when marble is deui­sed the imageries of marble are not meant, but the grosse matter of marble, 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, L. ligna. ff. de legat: 3. yet the testa­tor his meaning is in these later cases to be exami­ned by circumstances. L. pediculi §. labeo. ff. de aur: & arg▪ leg:

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 correspōdence 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 hūdred poūds, for and towarde her mariage, and she dieth be­fore the mariage, by the opinion of the greater parte her executor shall haue the summe, other­wise it had beene if the wordes of the deuise [Page] had bene (to be paied at the daie of her mariage, or at the age of 21. yeares) and she dieth before, 36. H. 8. 59. Dy. and 16. Eliz. A man deuised laude to one so that he doe paie 10. li. and if not that it should remaine to his house, prouided that the lands shall not be sold, but shall goe to the next of bloud being male, it was helde that this was an estate taile, & that these words (shall goe to his house) shal be construed to the eldest person of his familie, and these wordes (being male) shall be construed in the future tense, and in many cases an estate may be limited in a deuise by implication: as if a man deuise lande to one and to his heires males in fee simple, the remainder to the next heires males of the kinne, there is an entailemēt both in the first estate and also in the remainder, 16. Eliz. 333. Dy. 2. Eli. 171. Dy. but where a deuise is contrarie to Law, it is voide of effect: for a man deuised land in London to the 3. That the Common law frustrateth these deuises which are re­pugnant to Lawe. Prior & Couent of S. Bartholmewes, so that they pay to the Deane and Chapiter of Powles 10. li. yeerely, and if they failed, then their estate to cease, and that the lande should remaine to the Deane, and it was helde by Fitzh. & Baldwin Iu­stices that this was a void remainder, because it could not be limited after an estate in fee, and as of a condition the Deane & Chapiter could not haue aduantage but the heire, 29. H. 8. 32. Dy. and so if a man deuise lād to one in fee, & that if he die without heire that then it shall remaine to an other in fee, this is a voide remainder because one fee simple cannot depend vpon an other 19. H. 8. 8..

What if the testator doe deuise to his 16. Diuision. [Page 47] wife certaine land, whilest she should liue chast­ly, and she marieth, whether is her estate deter­mined?

I thinke it is not determined, for 1. That by the Cannon lawe if land be de­uised to a wo­man whilest she shall liue chastly, ma­riage is not implicatiuely and absolutely prohibited. though the words of the deuise do implie a cō ­dition, yet the condition is not broken, because matrimonium est reshonesta, and therefore not to be imagined to be within the intent of the con­dition. Authent. de nupt: in princ: 28. quaest. 1. ca. sic enim 33. q. 2. c. 2. l. 2. C. de indict: viduit: toll:

Yet it seemeth that the condition faileth, Quia coitus & castitas opponuntur, D. authent. de nup. §. qu [...]a vero. there­fore it may seeme that she should lose the legacie as well by marying, as by liuing incontinently.

But I thinke rather that she shal not lose the legacie, because there was no condition expressed in the deuise that shee should not mar­rie, and therefore she can not be said in marying to do against the will of her husband: but yet it may seeme, that if she had maried within a yeare after the death of the testator, she had broke the condition, ff. de iur. pa­tron: l. adigere §. fi. for doubtles otherwise, Mulier se­cundò nubeus castitatem seruat. D. authen: de nup. §. fin. autem & idē Extra. de di­uor. c. gaudea­mus. in fin: l. mulier. §. cum proponaretur. ff. ad Trebel. 2. That the Ciuill law, and Common law do fauour ma­riage.

Our Lawe in such cases fauoureth matrimonie, ff. de reg. iur: l. In ambiguis. & l. in testa­mentis eod: and where there is no condition prohibitorie expressed, the Law will not in such case intende it. In authent. hoc locum C. de secund: nupt.

In our Law we haue a case that King Edward the sixth graunted to his sister the Ladie Mary the mannor of D. as long as shee should continue vnmaried, and this is admitted in our Law to be a good limitation but no con­dition, as hath bene before surmised. 4. Mar. 1. 141. Dy. 37. H. 6. 29. 10. Assis. pl. 8. 17. Assis. pl. 7. 3. Assis. pl. 9. & 6.

Let this be the case: the husbād deui­seth 17. Diuision. to his wife the ꝓfits of al his goods, the que­stion is whether the wife may take the profits by her sole authoritie, or by the appointment of the iudge, or by the administration of the executor. 1. That there is a diuersitie, in the Ciuill lawe where a man maketh his wife vsu­fructuariam of his goods, and where he de­uiseth them to her.

In our law we take this difference: where he maketh his wife by his will vsufru­ctuariam of the goods, and where he doth deuise vnto her his goods: For where he maketh her v­sufructuariam, she may of her owne power take the profit and benefit of the goods, and she nee­deth not to expect or attend the curtisie of the executor: L. si habita­tio §. si vsus fū ­di. & l. fundi ff: de vsu & hab: But if he deuise his goods, or the profits of his goods, or commaund and charge his heire or executor by his will, that they allow sufficient maintenaunce to his wife out of his lands or goods, now the woman is a deuisee, and she must take that which is deuised, by the hāds of the heire or executor, or else sue for it by law. ff. de vsuf [...]u­ct: legat. l. pa­trimonij & l. si quis.

By our law the power and au­thoritie 2. That by the Common law the admini­stration of the goods and chattels of the testator doth appertaine on­ly to the exe­cutor. of deliuering goods and chattels, or put­ting the deuisee in possession belongeth onely to the executors, who must see debts paide before legacies performed: 37. H. 6. 30. [...] Prisot. 2. H. 6 16. Perkins Testam. 94. D. S. Dialog. 2. 79. And therefore if a straun­ger take goods deuised to me out of the posses­sion of the executors, I cannot haue an action of trespasse for the taking: For it is not like to a gift of goods which is presently executed: and if a man deuise the [...]ourth part of his goods to another, the deuisee may not seise the fourth part but he must sue for it in the spiritual court, 27. H. 6. but if a man deuise a booke or some other thing to [Page 48] one for tearme of life, the remainder to an other for euer, if the executor deliuer the booke or the goods to the first deuisee, the second deuisee may seise thē without liuerie of the executor, for the possessiō of the first deuisee was the possessiō of thē both, otherwise it is if the first deuisee hath the possessiō & die 37. H. 6. 30.: but if a man seise in an other right then as deuisee, then he neede not depend vpon the deliuerie of the executors: & therefore the case was 9. E. 4. that an action of dette was brought against one as executor in London, and the defendant said that the testator did giue vnto him certaine goods by his deed, & he shewed in particular what goods they were, the testator be­ing at the time of the gift in the village of B. in the countie of Essex, & that he suffered the goods to be in the possess. of the testator vntill his death at London, and after the death of the testator he tooke thē, abs (que) hoc that he did administer as exe­cutor: & the whole Court helde that the Iurors ought to find this matter of the gift of the goods vpō paine of attaint 9. E. 4. 40., but where a man ought to take a thing by the deliuery of an other, & he ta­keth it of his owne head, he is a trespassor: and therefore if a man graūt to an other an estouer of wood to be taken by the view, & deliuery of his Bailie, if hee take it without the deliuerie of the Bailie, the grauntor may haue an action of tres­passe against him, Quare vi & armis 8. E. 3. 422..

Suppose that a legacie of monie 18. Diuision. is deuised to a man in regard of his wife, and the testator dieth, whether may the husband in this [Page] case demaund the legacie without naming the wife?

By our Lawe the husband may de­maund 1. That by the Ciuill law the husbande may demaund a legacy due to the wife with­out naming the wife.▪ it, without naming the wife. L. Titio cen­tum. §. Titio genero. ff. de condit: & de­monst:

I see little reason but that the husband only may demaūd it in his owne name, he being the sole deuisee: and the thing deuised being a personall thing: but if it had bene a reall thing, and the wife had bene interested in it, then the law would be otherwise.

I pray you put me some cases touch­ing this difference, that I may better vnderstande your meaning.

The writ of mesne because it 2. That in the Common law there is a di­uersitie as touching bring ing of actions in the wifes name where the matter of the writ is real and where it is personall. is in the realty ought alwaies to suppose the hus­bād and wife to be mesnes, 13. R. 2. Briefe 642. but in a writ of tres­passe it hath bene helde a good declaration, if the plaintife alledge that the defendant entred into his mannor of Dale though he haue nothing in the mannor but in right of his wife: for this is a a personall wrong done vnto the husband 4. E. 4: 31.: and by Danbyes opinion the husband taketh the pro­fites of the land in his owne right, Ibid. per Danby. so that it can not be law, which is said 21. R. 2. that an actiō of trespasse for trees cut in the land of the wife must be brought as well in the wifes name as in the husbands, 21. R. 2. Briefe 933. and the contrarie is helde for Law, 6. H. 4. and 47. E. 3. because as M. Finchden saith, well the husband onely may release the dam­mages when they are recouered, 6. H. 4. 10. 47. E. 3. 9. per Finch. neither may Husseyes opinion 7. H. 7. bee admitted for Lawe where he saith that the writte may be brought in [Page 49] both their names 7. H. 7. 2. [...]. Hussey., & in an actiō of dett brought by the husband vpon an obligation made to him and to his wife the writte may bee brought in the husbands name onely 12. R. 2. Br̄e. 639., and so where a lease is made for yeares rendring rent by the husband and the wife of the lande of the wife, the action of dette must bee brought in the name of the husbande onely 7. E. 4. 5., howsoeuer 2. R. 2. be to the contrarie that in a writte concerning a chat­tell reall they may ioyne 2. R. 2. Brief. 37., but where the hus­band is seised of a Seignorie in the right of his wife, a mā may not make conusans as baily to the husband, but as baily to them both 12. R. 2. A­uowrie 88., but that is because the conusans and auowrie in such case is en le droit 48. E. 3. 8. [...] Finch.: but as to such things which con­cerne the persō of the wife immediatly, there the writte must be brought in both their names, and therfore the husband cannot sue a writte of ap­peale 3. That where the wronge doth immedi­atly concerne the person of the wife, the wise must of necessitie be named. for the rape of his wife without naming the wife 8. H. 4. 21. 1. H. 6. 1. 10. H. 4. Br. Baron & fem. 34., & whereas they brought an action of batterie for the beating of them both, the writte was adiudged good for the batterie of the wife, but not as to the batterie of the husband 9. E. 4. 54., and the husbande and the wife shall both bring an action of trespasse for the taking away of the goods of the wife before the marriage 21. H. 6. 33.: but in a writte of detinue of charters against husband and wife the declaration was vpon a trouer, and the writte was abated 13. R. [...]. Briefe. 644., but a writte of couenant was brought by the husband and the wife, be­cause the defendant leased vnto them lande for tearme of yeares by deed, & afterward outed thē, [Page] and the writ was awarded to be good, for if the husband die, the woman shall haue the tearme 47. E. 3. 12., and in this case they were both parties to the co­uenant, and by the bookes of 6. E. 4. & 17. E. 4. an action of dette for the arrerages of a rent reser­ued vpon a lease for yeares made vnto the hus­band and the wife shall be brought against them bothe, and so shall a writte of waste: for the wife cannot waiue the lease during the life of the husband 6. E. 4. 10. 17. E. 4. 7., and 8. Rich. 2. an action vpon the statute of Labourers was brought against hus­band and wife supposing that the wife had coue­nanted with the plaintife to be dāsell or waiting womā to his wife for a yeare, & that she departed out of seruice within the yeare, & the writ was awarded to be good being brought against them both 8. R. 2. La­borers 59..

No more of this matter, let me aske 19. Diuision. you farther, If the testator do deuise to one with­in age his maintenance to bee giuen & allowed him by his executor vntill he come to ripenes of age, how shal these words (ripenes of age) be vn­derstood, whether of age of discretiō, or ful age?

I thinke it shal be meant of his ful age: 1. That by the Ciuil law whē maintenance is deuised to one till the ripenes of age▪ is in­tended of full age. for that is the cōmon intendmēt, & the authori­ties of our bookes do sway to that point l. Mela. ff. de aliment. & ci­ [...]a. leg..

In our law though there be but two ages for the heire male namely, the age of 14. which is the age of discretion, and the full age 2. The diuersi­ties of ages by the Common law. which is the age of 21. yeares Littlet. lib. 2. c. 4. Sect. 8. & 9., yet the heire fe­male hath in our Lawe many ages, namely at 7. yeares to haue aide to be maried, and 9. yeares to [Page 50] deserue dower, and 12. yeares to consent to ma­riage, and 14. yeares to be out of warde: and 16. yeares for the lord to tender vnto her a mariage: and 21. yeares to make a feofmēt or a deed which may bind her 35. H. 6. 4 [...]., but by cōmon intendment ripe­nes of age is fulnes of age: & full age by constitu­tion of our law is the age of one and twentie.

Then I know your opiniō as touch­ing 20. Diuision. this question, now let me demaund an other. If the testator do deuise his māsion house which he hath in the parish of S. Andrew: and that hath some appurtenaunces lying in the parishe of S. Giles, whether doe these appurtenances passe by the deuise or no?

The appurtenances do passe, & we 1. That by the Ciuill law whē a mansion house that is in one parishe is deuised, the appurtenances in an other parishe doe passe by the deuise. haue good authoritie for it in our Law L. patronus. §. Sempronio. ff. de legat. 3..

And me thinks the appurtenan­ces being in an other parish doe not passe by this deuise, for not to aid my self with ancient autho­ritie of law, it hath bin lately, fully, & vpō ample discourse of this verie point ruled, that nothing shall be said to bee appurtenant to a house, saue onely the garden, the curtilage, and the close adioyning to the house, and no other lande, though other lande haue bene occupied with 2. That by the Common law land cannot be appurtenant to land. the house 23. H. 8. Br. Feosm. 53., for land cānot belong to a house, be­cause they be of seuerall natures: for the house is a place to inhabite, & land is a thing to be plow­ed, or sowed, or improued, & so cānot properly be appurtenant to a house: no more then one li­berty may be appurtenant to an other liberty of seueral nature as a warren to a leete, or a leete to a [Page] [...] [Page 50] [...] [Page] hundred 3. Mar: com. 168. Hilles case. per Wal­poole, Rastall, & Morgan., and all the Iustices but Cooke who spake not to this point in Patridges case agreed that land cannot appertaine to a house, and this Mountague said was a ground in the law: but Hales there said, that a garden may containe 11. acres in quantitie and by such speciall meane be parcell of a house 6. & 7. E. 6. Comm. 85. Partriges case., this is sufficient to prooue that the appurtenances doe not in this case passe by the deuise of the house, without the authoritie of 27. H. 6. where it is consonantly auouched, that though a man may giue an acre of land vnto me by the name of a carue, & a carue by the name of a Manor, yet by a deede of feofment of a house, land cannot be cōueied as parcel of the house 27. H. 6. 2..

Ye haue remoued all the doubtes touching deuises which perplexed my mind: & we haue bin long in cōference of this title, now frō reall things let vs passe to personall, in which I pray yee continue your paines according to your former diligence, and first ye are to speake of borowing and lending.

I would knowe the per­fite 1. Diuision. difference by the Ciuill lawe be­twixt Mutuum and Commodatum, I pray you Codicgn. let me vse your help herein.

They differ in our Law many waies.

1. That which wee call Mutuum, doth consist 1. The diffe­rence in the Ciuill law be­twixt mutuum and Commo­datum. onely in things which are consumed by the very vse, which consist in nūber, weight, or measure, as corne, spices, salt, and such like: Cōmodatum is that which by vsing is not spēt, & as it is not de­liuered by weight nor measure, so neither is it re­stored by weight or measure, as bookes, apparel, & the like. 2. In lending that which we cal mu­tuum, the very propertie of the thing leant doth passe, L. 2. §. ap­pellata. ff. si cert. pet. but wee doe still retaine the propertie of that which wee call Commodatum. L. rei com­modatae. cum l. seq: ff. com­mod. 3 That which wee call Mutuum is leant for euery vse in generall, as if the lender should say vnto him that boroweth, Vtare, fruare pro tuo arbitrio, sicut do­minus, L. in re mā ­data. C. man­dat: but Cōmodatum is leant for a certaine, & prescript vse, L. in cōmo­dato. §. sicut ff. commod. and if any man doe vse it other­wise, he cōmitteth theft L. 5. §. quin imo▪ ff. eo. & §. placuit. instit. de oblig. quae ex delicto nasc.. 4. If the thing which we call Mutuum be made worse or perish, he to whom the loane is made shall not susteine any dammages: otherwise it is of Commodatum, if through his faulte, defaulte, couin, or negli­gence, the thing leant doe perishe or become worse L. si vt certo §. nunc viden. vers. quod vero l. cum, qui in princ. l. ad eos, & l. argentum cum l. sin. ff. commod..

What persons may be bound by 2. Diuision. borowing and lending?

Euery particular person euerie 1. That parti­cular persons, corporations and Churches parochial may be bound by contract of borowing and lending by the Ciuill law. church being parochiall or conuentuall, In authent▪ hoc ius porre­ctum C. de sa­cros. Eccles. euery vniuersitie, comminaltie or corporation, L. ciuitas & ibi plene per Ba [...]tolum. ff. si cert. pet. yet with this restreint if the monie be conuerted to the vse of the Citie or Church Innocent. in c. 1. Ext. de pos. & per Fer­rar. in form: li­bell. de act. hypoth. in glos. super verb. sub. ead▪ obligati..

Indeed thereto doth our Lawe accord, for before the dissolution of Abbeys & [Page] monasteries the successor of a Prior should haue 2. That by the Common law Abbots, Prior [...] and such reli­gious persons might charge the house by their contract, and by recog­nisans. bene charged with an annuitie graunted by his predecessor, pro consilio impenso & impendendo without the couent where counsaile was giuen in the matters of the predecessor, & of the couēt, for so it was a thing which came to the vse of the house which must needs charge the successor 38. H. 6. 22. 39. H. 6. 21., & it was said by M. Littlet. 14. E. 4. that an Abbot or Prior by matter of record as by recognisance, might charge the successour, though nothing coūteruailable did come to the vse of the house, & he said that this hath bene diuerse times ad­iudged, & he said that the cause was for that the Couent cānot be partie to such record, but only the Abbot, otherwise it is of Deane & Chapter, for the Chapiter may be partie to a matter of re­corde 14. E. 4. Abbe 4., and an Abbot might haue beene char­ged in a writte of dette vpon a loane of money made to his predecessor which came to the vse of the house Fitzh. N. B. 121. K. 9. H. 6. 25. 22. H. 6. 64., and an Abbot should haue bene charged by a writte of dette for vitaile and other thinges bought by his caterer, or manciple, or o­ther officer deputed to make purueyance for the Abbey in time of vacation Fitzh. N. B. 122. F. 25. E. 3. 48. 26. E. 3. 55. 4. E 2. Dette 168..

Codicgnost. how many kinds are 3. Diuision. there of borrowing and lending?

Two: one that is called naturall, 1. Two kindes of borowing, and lending by the Ciuill lawe naturall and ciuill. when the thing which is lent vnto A. by B. is deliuered vnto him by B. or by some other in the name of B. L. certi con­dictio in sin. l. singularia, & l. proinde ff. si cert. pet. & not. per Bartol. in l. 2. §. appel­lata eod. titu. the other is called Ciuill which is onely contracted by the confession and ac­knowledgement of the partie as when a man [Page 52] confesseth by worde of mouth or writing, that hee hath had and borowed so much of such a one L. 1. 2. & 3. C. de nō num: pecun: & In­stit: de literat: oblig: inprinc..

From this diuersitie our Lawe 2. That the Common law acknowled­geth this dif­ference in sub­stance and ef­fect. dissenteth not: for when a man lendeth to an o­ther money, and paieth it into his hands, or some other for him, which you tearme a naturall len­ding, if this be vntill a certaine day, and the daie be incurred, and the monie not paied, the credi­tor▪ may sue an action of dette against the det­tor Fitzh. N. B. 119. G., and whereas you say that a man by confes­sing that hee hath borowed so much monie of such a man may make himselfe a dettor, it is true and agreeable to our Lawe, for when a man ma­keth such a bill, namely this bill doth witnes that I. A. haue borowed so much mony of C. without saying more, this shal charge the executor as wel as an obligation: and the testator could not haue waged his law against this bill: or if it be Memo­randum quod I. S. debet A. B. 10. li. or that I. S. acknowledgeth that he doth owe to A. B. 10. li. & this be by writing, & be deliuered as the deed of the partie, this is a good oblig': for these words recepisse or debere: or teneri ad soluendum 20. li. or where a mā reciteth, that wheras he borowed of I. S. 20. li. he hath paied vnto him 15. li. so that 5. li. remaineth to be paied, this is a good obligation, & shal bind the executor: for euery word which proueth a mā to be a dettor, or to haue a strangers monie in his hāds, though it be by bill, yet it shal charge the exec': As if a bil be made which wit­nesseth, that I haue found 20. li. belōging to I. S. [Page] without other wordes, I shall bee charged, and shall be outed of my Law 28. H. 8. 20. Cores C. per Fitzia: & Moū ­tag..

Let me know now whether vsu­rie, 4 Diuision. or lending for interest, be prohibited by your Lawes yea or no? and me thinkes (to speake by way of obiection) that it should not, for first it seemeth not repugnant to the law of nature or to 1. An vsurous lending or lending of mo­ney for inte­rest, is by way of obiection mainteined. naturall reason, because reason enforceth and nature moueth vs to this, that wee should doe well to them that haue done well to vs, other­wise wee might incurre the sault of ingratitude, which drieth vp the verie fountaine of liberali­tie, and besides by the Lawe of nature it is law­full for euery one to lende of his owne as he list, and to receiue for his owne as it pleaseth him: and it seemeth to bee permitted by the Lawe of God when it is said: Ego veniens cum vsuris exegis­sem illud, Luc: 19. and so it is appointed in Deuteronom. Faeneraberis gentibus multis, Deuter. 29. And hereto agreeth the opinion of Aquinas, who writing vpon Ec­clesiast. 2. Aquinas his authoritie is vrg [...]d for proofe h [...]reof. saith thus: Faenerare proximo tuo in tem­pore necessitatis illius: And againe: Redde proximo tuo in tempore suo. Multi quasi inuentionem aestima­uerunt faenus & praestiterunt molestiam suis qui se adiuuerunt. Donec accipiat osculatur dantis manum, & in promissionibus humiliat vocem suam, & in tem­pore redditionis postulabit tempus, & loquetur verba taedij & murmurationum, & tempus causabitur Aquin. in Ecclesiast c. 29.: And surely me thinkes it is a point of brotherly loue to lende vnto a needy brother a competent summe of monie, so much as will serue him for a reasonable surplusage of increase.

Vsurie may well be called the diuels 3 The obiecti­on is aunswe­red by the Co­monist. charitie: for as the diuell cannot doe any good howsoeuer he would seeme to doe it, because it is against his nature to doe any good thing: so his charitie howoseuer it may seeme to doe good, yet in truth cannot performe any good thing, be­cause the nature of it is opposite to all goodnesse being by Cato resembled to murder, by the Ca­non law to theft: Ca: si quis v­suram: l. 4. q. 4. yet it maketh some show to doe good, but so as if a man were troubled with a burning ague, and greatly inflamed in his bo­die, shoulde in the extremitie of his heate aske a cuppe of single beare of one that standeth by, and hee reacheth it vnto him this cooleth the heate for a time, and the sicke man thanketh him for it, but when the disease doth reuerte vpon him and his fittes growe worse then they were before, & he perceiueth that the drinke which he drunke hath two much inflamed him, then he beginneth to complaine of the hurtfull curtesie and pitie of the other man: so when the vsurer lendeth mo­ny at the first he that boroweth it thanketh him, and thinketh himselfe deepely beholden to him, but in the ende when he findeth that his goods decrease and his debts increase by the vsurers kindnes, when not onely potte and panne, but e­uen garments and iewels must be either gaged or sold to satisfie the vsurer, & whē they perceiue the Bee that had a flower in her mouth to haue a stinge in her taile, then (that is to say) too late they finde that vnder this baite lyeth a hooke, vnder this charitie crueltie. And as to Aquinas his opi­nion [Page] [...] [Page 53] [...] [Page] of this matter quis tumidum guttur miretur in 4 Aquinas his authority dis­proued. Alpibus? and who will wonder if Aquinas patro­nize an errour in diuinitie? yet he defendeth it straungely for he holdeth in the very same place, that it is prohibted by the Law of God, and yet that it maybe tollerated in a politik respect, is not this Theomachein? is not this to permit vnto flesh and bloud, which the spirit of God hath forbid­den, but to aunswere you more particularly: First vsury is against the lawe of nature, because it is against the Law of nature that money should in­gender money, and against the Lawe of God, in which it is said: Si pecuniam mutuò dederis pupillo meo pauperi, non vrgebis eum quasi exactor nec vsuris opprimes, Exod. 22. and againe mutuum date, nihil inde spe­rantes, and by our law it is flatly forbidden. 14. quest: 4. ca. 1. cum se­quent: & in Clem. 1. de vsur.

So it seemeth by our Law which in 5 The Ciuil law in con­dempning vsu­rie agreeth with the Ca­non Law. this professeth it selfe to imitate the Canon law for the Emperor saith of this matter, leges non de­dignantur Authent: de Ecclesiast: tit: imitari sacros Canones, and he commaun­deth the foure general Counsels to be obserued, wherein vsurie is forbidden. l. 1. C. de sum: trin: & sid: Catholic.

But Anglonomoph. I thinke your law doth winke at vsurie if it take but after the rate of x. li. in the hundred.

It winketh at it as he that shoo­teth 6 The cōmon law in this a­greeth with both other Lawes. in a Caleeuer at birdes, who winketh with one eye and woundeth with the other, so our law seeth not when the vsurer letteth foorth his money to interest, but when an information is exhibited against him then it seeth the fact, con­demneth the fault, and punisheth the offendour: [Page 54] and though he take but after the rate of 10. li. in the hundred, yet he shall forfaite the full value of the interest, and worthily truly doth the statute note vsurie with termes of disgrace censuring it to be vice, increasing by corrupt shifts, to the im­portable hurt of the common wealth. 13. Eliz. Ca. 8. Vsury 8.

Ye haue in this point satisfied mee 5. Diuision. now, I will▪ further proceed in questioning, Sup­pose that a man lend money to an other, and the other woulde repay it in some kinde of coine is debased, whether is the lender boūd to take it?

The change of money may happen two waies, for either it may be changed in res­pect of the matter, wherof it is made, as if in stead of siluer, brasse-coine be vsed, or in stead of gold, siluer: for the auncient Germanes, as Tacitus re­porteth, had siluer in greater price then golde, Tacit: de moribus Ger­manor: and in Pisana siluer money is of more accompt then golde, because the people of that countrie doe pay many tributes and taxes to the Pope, whose collectors and officers will not take any payment in gold, in Sparta yron-money was one­ly in vse, Polyb. lib. 6. Plutarch. in Lych. or els it may be changed in the value, as if a Floren, which was worth 4. li. to be debased to 3. li. for in the value of money, neither the mat­ter nor forme is respected, but the determination 1 A diuersitie in the Ciuil law when mo­ney is tendered at the day of payment▪ and is after emba­sed, and when it is tendered after. of the Prince, wherefore Aristotle said wel, that mony is not cēsured by nature but by law, & is of such value, as the law published of it doth deter­mine, Aristot: lib. 5. Ethic. which Galen likewise sheweth, Galen lib. 2. de puls. diff. in both these cases if the debasement were before the day of paimēt the debtor may pay the det in the coine [Page] embased, Argum: l. vi­num, & l. quod te: ff. si cert. pet. but if it were after the day of paye­ment then the law is otherwise, because he paied it not in due time. arg. dictae. l. quod te, & l. vinum. 2 To the a­foresaid diuer­sitie the com­mon law see­meth to agree, 6. Diuision.

To that reason our law seemeth likewise to incline. 7. E. 6. 82. Dyer.

If a man borowe money of one, and procure one to become suertie for the repaye­ment, whether is he that boroweth the money discharged of the payment, or else charged as principall?

Though the suretie in our Lawe be 1 That by the bond of the suertie the principal deb­tor is not dis­charged by the ciuil law. tearmed Fideiussor, because alienam obligationem in suam suscepit fidem, yet the principall debtor re­maineth still obliged: Hostiens. in summ: de mu­tu: & cōmod: & l. 1. C. de Const. pecun. and by intendement of Law the suretie (as hee is a suretie) is therefore bounde, because the principal debtor is bound. Ferrar. in form: lib: cont: plur:

To that the Common Lawe a­greeth, 2 That by the common law aswel the one as the other may be sued. and that an action may be maintained as well against the one as the other. 44. E. 3. 21. per Monbr̄.

It remaineth now by the order of your conference, that you shoulde speake of the baylement and deliuerie of goods and chat­tels, in which I would haue you to be verie briefe, because I had rather be resol­ued in other matters belonging to the next title, [Page 55] whereof yeare to treate, wherein I shall stande in neede of more instructions▪ but because some doubtes touching the aforesaid title doe trouble me, ye shall giue me leaue to moue vnto ye some two or three questions thereupon, what is that Codicgn. which in the Ciuil law ye doe proper­ly call depositum? for I doe imagine that the true 1. Diuision. knowledge thereof will ease my minde of ma­ny doubtes.

Depositum, is that which is commit­ted 1 The defini­tion of deposi­tum by the ci­uil law. to the credit and faithfulnesse of a man, to keepe safely to the vse of him that deliuereth it, to the ende that it may be restored, when he shal call for it, l. 1. ff. depos. vbi doct', & in l. quod [...]eruus eod: & dict: l. 1. §. est autem: & §. penult. & l. Lucius eod: l. lic [...]t in sin: eod: and in the one is the propertie, in the other the trust.

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, Fitz. na. br. 138. A. or not ensealed, 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 [Page] ought to be of a thing certaine, as of money in a 3 A diuersiti [...] where a writ of Accompt, of Detinue, and of Trespas are to be brought concerning things deliue­red at the cō ­mon law. bagge, or of a horse, or twentie kyne, or such things in certaine, Fitz na. br. 138. A. 7. H. 4. 13. 13. E. 3. Detin: 53. 6. E. 4. 11. 36. H. 6. 9. per Wāgef. & 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, 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him, 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, 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, 20. E. 4. 11. for my Bailie is charg­able into whose hāds 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. 12. E. 4. 12.

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?

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 depositū, except it be deliuered to the partie, l. 1. ff. de pos. & ibi Doct'. and [Page 56] 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: bonā fidem that the owner should redeliuer his goods in which he hath a propertie to an other man. l. bona fides ff: depos. in s [...]:

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. 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, 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: 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 [Page] 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, 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, 3. H. 7. 15. so if lāds 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, 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, 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. 22. H. 6. 1. p▪ Newt.

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?

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 [Page 57] where there is default, deceipt, and couin, or ap­parant negligence in him. l. quod Ner­ua: & Iaco: But: in l. in re man­data C. Man­dati, & Iustit. quib: mod: re: contra oblig: §. penult.

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, 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, 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 shalbe charged ouer to his Bailor, because he may haue an action against the trespassor. 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, 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. 7. E. 4. 14. Lamb. Eirenar. 494. & 495.

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.

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 [Page 58] 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, 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, 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, l. de vnoquo. que ff. de re: iud: &c. 1. exc. de caus. poss. & ꝓprietat: Citation (as we say) is parcell or the 2 Citation is proued to be of the substāce of the procee­ding, contrary to the opinion of some ciuili­ans. Lawe of nature, 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: Ext. de pro­curat: C. in no­stra in sin: & l. prolatam C. de sent: & inter­loq: om: iud. otherwise the iudgemēt is erro­nious, 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, 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 contestationē non potest forum declinari, ff. de iudic: l. 1. & 2. & C. de litis Contest. the iurisdiction cannot be auoided after the apparāce & the exhibiting of the libel, & any kind of auns­were applied, but others hold in my opiniō more [Page] 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. l. de vno quo­que ff. de re: iud: & in c. 1. de caus. poss. & ꝓprietat: 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. l. quid vbe­rius ff. de ser­uitut: vrban. praed: & l. de­bitores C. de pign:

These cautels which your Law 3 The cautch to be obserued at the commō law in the cō ­mencement of an action. prescribeth to such as enter into suit, ar not vtter­ly reiected of our law, for as to the 2. first which concerne profit and necessitie, our law doth ri­gorously exact them: as to the other it is not a­gainst it, for it doth not forbid, nor hinder any man to be curteouse to an other, but it being a science rather politike then morall, doth more respect the Iustice of causes, then the curteous gestures of men, our law doth vrge men to deale well and honestly, & if they do otherwise it doth punish thē, but curtesy is a free, spontaneal & in­genious quality, to which no inforcement may be vsed, but I wil first examine by your patience, how farreforth our law regardeth the abilitie of the person, which is to impleade an other, and then by course will examine all the partes of your precedent speech, inquiring by our bookes howe they may sort, and be sutable to our law. First it hath beene receiued of vs as a currant [Page 59] rule from all antiquitie, that the desendant may 4 Disablemēts in the person of the plaintife at the comon Law. plead outlawrie in disablement of the plaintife, but if he doe imparle nowe he cannot plead out­lawrie to the disablement of his person, but yet he may well plead it in barre of the action, 32. H. 6. 32. 35. H. 6. 36. so in a writ brought by one as sonne and heire to I. S. after imparlance the tenant cannot pleade to the writte that hee is bastarde, or that hee is not heire, but he may verie well pleade it in barre of the action, 22. E. 4. 35. and so outlawrie is a good plea in barre of an action of debt: for by the outlawrie of the plaintife, the debt if it growe by especialtie is vested in the Queene, other­wise it is of an action of debt vpon a contract: 16. E. 4. 4. for in that case the debtor might wage his lawe against the debtee who is outlawed, and as it seemeth by 10. Hen. 7. the outlawrie goeth ra­ther in barre of the action, then to the writte, for there it is sayde, that where a man cannot pleade to the writte, but by shewing of a matter in barre, there he may shewe it and conclude to the writte: for in an action of debt a man may pleade outlawrie in the plaintife, and conclude to the person, and yet the matter goeth in barre, and he may pleade it also in barre, 10. H. 7. 11. and con­clude to the action, and after that a voucher is counterpleaded, and the tenant put to an other aunswere, hee may notwithstanding plead that the demaundant is outlawed, 21. E. 4. 64. but after vou­cher the tenant may not plead to the fourme of the writte, 5. E. 3. 223. and 32. Hen. 6. is verie playne, that where a man pleadeth that the plaintife is [Page] an alien borne, or a villaine, or an outlawed per­son it is left to his choise, whether he will con­clude these special matters to the writte or to the action, 32. H. 6. 27. and though the defendant haue made an attourney in a repleuin, yet he may afterward alleadge that the plaintife is his villaine, 29. E. 3. 24. So 21. R. 2. in Assise brought by the husbande and wife against diuerse persons, the tenantes sayde that the wife of the plaintife was entred into re­ligion in the house of B. and there was a Nun professed, & demaunded iudgment if she should be aunswered, and the Assise was adiorned into the common place, and a writte was sent to the Bishoppe to certifie, who certified that she was professed, wherefore the defendants praied that the husband and wife might be barred foreuer, and it was helde by the whole Court, that for­somuch as the pea did stretche onely to disable the wife of the plaintife, and if the husbande and wife had purchase iointly, that the baron should notwithstanding the disablement haue an Assise of the whole, but otherwise it is if the husbande and wife bring an Assise, and a feoffe­ment or release of the husbande or the wife or of some auncestour of one of them bee pleaded in barre, both of them shall be barred, there­fore in this case it was helde that the iudge­ment ought not to be that the husbande should be barred, but by the aduise of the whole Court it was awarded that the husbande and the wife nihil capiant per breue suum, sed essent in miseri­cordia. 21. R. 2. Judgem̄t 263. and in the thirde yeare of Henry the [Page 60] sixth it was held a good plea to say that the de­mandant was an alien borne in Portugall, which is out of the Kings legeance with conclusion, sil serra respondu. 3. H. 6. 11. and therefore Master Theloall in his Digest of writtes well obserueth, that an ex­ception taken to a writ propter defectum nationis, vel potius defectum subiectionis, vel ligeantiae is peremptorie, and that the action can not bee reuiued by peace, or league subsequent, and that the King may graunt lycence to aliens to impleade, and likewise that such aliens as come into the Realme by the Kinges licence and safe conduite may vse personall actions by writte, though they bee not made denizens, and that denizens lawfully made by the Kinges graunt, and such aliens borne which are within the expresse wordes of the statute of 25. of Edward the thirde, may vse actions reall by originalll writte, Thelo: Di­gest de briefes lib. 1. ca. 6. And where a man is excommunicated, and hee sueth an action reall or personall, the tenant or defendant may pleade that the plain­tife is excommunicated, and hereof he ought to shewe the Bishoppes letters vnder his seale te­stifying the excommunication, and then he may demaunde iudgement whether he ought to bee aunswered, Litt' lib. 2. ca. 11. sect' 42. but if the demaundant or plaintife cannot denie this, the writ shal not abate, but the iudgement shalbe that the tenant or def. shall go quite without day: because when the demandāt, or plaintife hath purchased letters of absolution, and they are shewed forth to the Court, he may haue a resummons or reattachement vpon his o­riginall [Page] according to the nature of his writte, Litt' ibid. and whereas you say, that it behoueth the plain­tife to be sure that he haue a good cause of acti­on least he pay the costes, that now by statute is made common Law, for by the statute of 23. H. 5 The statute of 23. H. 8. of giuing dama­ges to the de­fendant is cō ­pared with the rule of the ci­uil Law. 8. it is enacted that if any person or persons, com­mence or sue in any Court of Recorde, or else­where, in any other Court, any action, bille, or plaint of trespasse vpon the statute of King Ri­charde the seconde, made in the fifthe yeare of his raigne for Entries into landes or tenements where no entrie is giuen by the Law, or any acti­on, bill, or plaint of debt or couenant vpon any especialtie made to the plaintife or plaintifes, or vpon any contract supposed to be made between the plaintife or plaintifes, and any person or persons, or any action, bill, or plaint of detinue of any goods or chattels where the plaintife or plaintifes shall suppose that the propertie be­longeth to them or any of them, or any action, bill, or plaint of Accompt, in the which the plaintife or plaintifes suppose the defendant or defendants to be their Bailife, or Bailifes, recei­uer or receiuers of their Manor, mease, money or goods to yeeld accompt, or any action, bill, or plaint vpon the case, or vpon any statute for any offence or wronge personal, immediatly suppo­sed to be done to the plaintife or plaintifs, and the plaintife or plaintifes in any such kind of action, bill or plaint after appearance of the defendant or defendants be nonsuted, or that any verdict hap­pen to passe by lawfull trial against the plaintife [Page 61] or plaintifes in any such action, bill, or plaint: that then the defendant or defendants in euerie such action, bill or plaint, shall haue iudgement to recouer his costes against euerie such plaintife or plaintifes 23. H. 8. c. 15. Rast. Dam­mages 6.. Likewise whereas as you saie, that the partie plaintife ought to be warie, least hee 6. Suite must not be main­teined before an incompe­tent iudge ac­cording to the common law. cause the defendant to appeare before an incō ­petent iudge, that agreeth fullie with the com­mon lawe, for if a man doe sweare vnto me that he will enfeoffe me of such land before such a daie, if he do not enfeoffe me, I may not sue him in the Ecclesiasticall Court Pro laesione fidei, be­cause the acte which is to be done, is a temporal acte and ought to be tried by the Common law, and therefore if the partie be sued in the Ecclesi­asticall Court for it, he may haue a prohibition Fitzh. N. B. 43. D., so if a man deuise to one landes or tenements de­uiseable, the deuisee may not sue for these lands in the ecclesiasticall Court, but if he make a de­uise of goods or chattels reall as of an estate for tearme of yeares, or of a warde, for such he may 7. The seueral iurisdiction of diuerse courtes is described. sue in that Court Fitz. 161. F., and if a trespasse bee done vpon the gleabe of a beneficed person, this must be tried at the Common lawe 19. H. 6. 20., but if the termor of certaine land doe deuise his croppe and die, the spiritual Court shal hold plea for this crop 8. H. 3. Pro­hibit. 19., but if a man sue in the spirituall Court for a rent reserued vpō a lease for tithes or offerings, a pro­hibition lieth, for this is a lay rent 44. E. 3. 32., and a man may sue a prohibition directed to the Sheriffe, that the Sheriffe shall not permit, nor suffer the Queenes lay people and subiects to come to any [Page] place at the citation of Bishops ad faciendū aliquas recognitiones vel sacramentū praestandū nisi in causis matrimonialibus & testamētarijs Fitzh. N. B. 41. A., but if a testamēt beare date at Cane in Normandie, yet it may bee proued in England, & the executors may there­upon haue an action 18. E. 2. Te­stam. 6., & a testamēt shewed vn­der the seale of the Ordinaire is not trauersable 36. H. 6. 31. Pa [...]k. tit. Te­stam.: furthermore, if one which is of the Queenes houshold sue an other, which is not of her Maie­sties houshold in the court of Marshalsie, the de­fendāt may plead to the iurisdictiō of the Court, and if the Court wil not allow this exception, he may haue a writ of Error, and the iudgement gi­uen in the Marshalsie may bee reuersed in the Kings bench 18. E. 4. 22. 19. E. 4. 2. 4. 7. in Scir. fa. inter Prior. de Mer­ton. & Prior. de Bingh. per Littlet., and if one of the Queenes hous­hold sue an other of the same houshold, and the plaintife is put out of seruice depending the plea, the other may shewe this and abate the writte, but otherwise it is if the defendant be put out of seruice Lib. de di­uers. des Courts fol. 102. b., and if a man be impleaded in the Cōmon place for lands within the cinque portes, the tenant may shewe to the Court that the lande is within the Cinque ports, and by this plea the Court shall bee outed of iurisdiction, but if the tenant do plead a plea in barre, which is founde against him, so that the demaundant hath iudgement to recouer the land, this iudge­ment shall binde the tenant foreuer Lib. de di­uers. des courts 107., and so it is of landes in auncient demesne, if a writte bee brought for them in the Common place, if the tenant appeare and plead in barre and take no exception to the iurisdiction, and the plea is [Page 62] found against him, so that the demaundant re­couereth, the tenant shall not reuerse this by a writte of Error, because hee might haue taken in time, exception to the iurisdiction of the Court, and that should haue beene allowed Ibidem., but the lorde may reuerse this iudgement by a writ of disceite, and make the land auncient de­mesne as it was before Ibid. & 16. E. 2. Continuall Claime 10. 11. H. 4. 86. 7. H. 4. 44. 8. H. 4. 24. 17. E. 3. 41. 26. E. 3. 33.: now I come to the ci­tation [...]. That the summons of the partie de­fendant is ne­cessarily ex­acted by the common law. or summons of the partie defendaunt, which you haue prooued to bee necessarie by the Ciuill lawe, and I will likewise prooue that it is by the Common lawe necessarilie ex­acted: In a writte of Trespasse the Sheriffe re­turned Non est inuentus, wherefore a Capias is­sued that the defendaunt might bee taken, who afterwarde came into the Court, and said that hee was sufficient, and might haue beene summoned, and prayed a writte to make the Sheriffe to come to aunswere to the King, and to the partie for his false returne, and hee had it 31. E. 3. Pro­cesse 55., and in an attachment vpon a prohibition, the Sheriffe returned Non est inuentus, the plain­tife prayed a Capias to an other Sheriffe in an o­ther Countie, but the Clarkes said that he ought not to haue any other processe then an attach­ment in the other Countie, because it may bee that hee hath assets in the other Countie 13. E. 3. Pro­cesse 34., (by which hee may be summoned) and so 11. H. 4. it is said that in an action of dette or trespasse, a Capias will not lie against an Earle, or any of like estate, because it is to bee intended that they haue assets whereby they may bee sum­moned, [Page] and brought to their answere 11. H. 4. 15. per Hals., and in a writte against P. and T. and A. the wife of T. by diuerse praecipes: in the summons A. was omitted, wherefore the writte abated 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6: 6, likewise in a writ of dower by seuerall praecipes, the name of one of the tenants was omitted in the clause inde queri­tur and in the summons, whereupon the writte was abated 12. E. 3. Brief. 671., furthermore if a man recouer in a writ of waste by the default of the defendant, where hee was not summoned, hee may haue a 9. That by the default of lawfull sum­mons the pro­ceeding of the plaintife is frustrated by the Common law. writ of disceit 19. E. 3. Dis­ceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit 56. 17. E. 3. 58. Fitzh. N. B. 98. b. 105. a., & in this writ of disceit (if there weare two summoners returned vpon the writ, in which the summons failed) if the Sheriffe do returne one of the summoners dead, yet the other summoner shall be examined: and if it be found that he did not summon the partie, he shal be re­stored to his land 8. E. 3. Dis­ceit 7. 1. E. 2. Disceit 48., but if the summons be retur­ned to be made by foure men, whereas in truth they did not execute the summons of the writ, as long as two of them liue, the tenant who lost in the writ may haue a writ of disceit Fitzh. N. B. 98. D., but if three of thē die, a writ of disceit may not be brought 35. H. 6. 46., but an action vpon the case 1. H. 6. 1., & in a Praecipe quod reddat against the husband and the wife, if at the grand Cape the husband appeare in person, and the wife appeareth by Attorney, who hath a warrant of Attorney which is not sufficient, & therefore iudgement is giuen vpon the wifes de­fault against the husband and wife, yet they may haue a writ of disceit if they were not summo­ned 18. E. 2. Dis­ceit. 54. & 55. Fitzh. N. B. 99. B., and how necessarie a summons is, may ap­peare verie plainly by the booke of 7. H. 6. where [Page 63] in a Formedon they were at issue, and the tenant at the Nisi prius made default, & the demandant shewed how hee was in prison in the warde of the Marshall, and praied that they would sende for him to appeare, otherwise hee would saue his default afterward by imprisonment, where­fore the Court sent for him and he came 7. H. 6. 38..

Yee haue spent a great deale of 2. Diuision. time in treating of the commencement or begin­ning of a suit or action: yet I desire to haue some further knowledge of the nature of a citation or summons, therefore resolue mee, when a man is summoned to appeare within two or three daies after such a returne, whether shall the second or third daie be accompted in the citation, so that then he that is cited may well enough appeare, when as in the one case one daie is past, so that he doth not appeare within the two daies ap­pearing first in the morning of the second daie: in the other case two daies be past, so that he ap­pearing the third daie doth not appeare within the three daies so that if he will saue his default, me thinketh he should appeare the first day of al.

This question is easily resolued, for if 1. That by the Ciuill law if a man be boūd to appeare within tenne daies the tēth day is taken inclusiue. he appeare within the two daies or three daies, it is clearely sufficient because the last daie that is put in the citation, doth implie that he may dif­ferre his appearaunce vnto the last daie ff. de verb. oblig. l. qui an­te Calendas & l. eum qui ita ff. eod., and though an appeale be to be brought within 10. daies after the iudgement, yet the last daie is ta­ken inclusiue, and not exclusiue ff. de success. edict: l. 1. §. di­cimus.: and if time be gi­uen to one either by the partie or by Lawe, that [Page] he may paie so much monie within, or doe or propound anything de iure suo within 10. daies, or from hence vntill 10. daies, he may paie, do or propound the 10. daie without any preiudice or surcease of time Instit. de verb. oblig. §. si in diem..

If a man be bound to paie monie in festo sanctae Trinitatis, if he tender the monie in the vigil of the feast, it is not good, nor in the oc­taues, but the tender must be made the very daie of the feast, but if the paimēt had bin limited on this side the feast, or before the feast, then it may well be made in the vigill of the feast 21. E. 4. 52., and these words ab octabis sanctae Trinitatis must be intēded à 4. die octabis Trinitatis: & thereupon M. Brooke noteth, that to this intent the first daie and the 2. That the first day and the fourth day of appearance are all one at the Common law. fourth daie & al the daies meane are but one day in law 21. E: 4. 43. Br. Iour & iours en court 57., & therfore if after the day of the returne of the writ of Capias, and before the fourth day which is ful tearme, the Sheriffe doth arrest a mā this arrest is not iustifiable, because the first day and the fourth day be all one daie 33. H. 6. 42..

I would not haue you to insist longer 3. Diuision. vpon this matter, but now shewe vnto mee how causes are opened, declared & disclosed in your Courts, and how faults and wrongs are manife­sted to the iudges.

Al wrōgs & offences are either 1. A diuersitie of opening & prosecuting of priuate and publike offen­ces at the Cō ­mon law. priuate, or publique, priuate offences, which are done by one mā to the hurt of an other, are made knowne to the Court, & remedied by originall writte, bil or plaint: publique offences, which are committed by the partie against the Queene and Commonweale, are opened & punished by way [Page 64] of enditement and information, which is put in practise by common informers.

The māner of such informing seemeth 2. Exceptiō is taken to infor­mations vsed by common informers. to me to be a very harde course of Iustice: for by that meane lewde persons are animated to terrifie & impeach poore simple men, and to bring them into danger? for what mischiefe will they not do, when a reward is proposed vnto them?

It is true & our law doth generally dis­allow such proceeding, & therfore the name of a delator or informer is in our law accompted dis­honest L. 3. C. de Iniur.: and therefore it saith expresly. Delatores 3. Many ob­iections are made out of the Ciuill lawe against com­mon infor­mers. inimici generis humani, maximū humanae vitae malū, & execranda pernities De Delato­ribus C. lib. 10 & lib. 10. C. Theod. de pe­tion: & vltro dat. & delat.. Plutarch calleth them, Im­pios, & dijs inuisos homines Plutarch. in Dion.. Tacitus calleth them Genus hominū publico exitio repertum, & paenis nun­quā satis coercitū Tacit. lib. 4. annati:. The Romane Senate after the death of Nero demaūded instantly, that such kind of men might be punished more maiorum Tacit. lib. 2. & 4. histor., and these words ( more maiorum) an interpreted by Al­ciat and Faber, to be the most extreme punishmēt that could be deuised Alciat. lib. 4. Parerg. c. 21. Faber lib. 2. se­mestr. c. 7.. In like fault & punisha­ble after the same manner doth our law adiudge suborners to be, which do minister occasion to the informer, & do serue his turne in the ꝓsecu­ting of his information L. 2. §. 3. & 4. l. 22. 23. 24. de iur: sisci. ff. Harmenop. li. 2. tit. 15. & l. 1. §. pen: Ad S. C. Turp: ff.. Against such suborners and informes sharpe & seuere punishmēts were 4. Punishmēts ordeined by diuerse Empe­iours against common in­formers. adiudged & established by Titus Sueton. c. 8., Pertinax Herodia. lib. 2., Se­uerns Herodia. ibi., Macrinus Herodi. li. 5., Gordianus Herod. lib. 7., Aurelianus Vopise., Traia­nus Plin. in Pa­negyr., these menne were in auncient time ban­nished vnto the Gaetulian sandes, which are in the remote partes of Affricke Martial. lib. 1. epigram., and this sorte [Page] of men did neuer florish in the Romane cōmon weale but vnder tyrans, as namely Nero, Tiberius, Commodus, and the like, and therfore these excla­mations were heard when they were dead, Dela­tores ad leonem, Delatoribus metum, Delatores de se­natu, Delatoribus f [...]stem Lamprid. in commod..

Thus you deterre informers frō their iust accusations by minatorie speaches, vtte­red by male-contented persons, but as archers when they ayme at a marke do often shoote be­side it, so you disputing of this questiō, haue spo­ken 5. Codicgno­stes is▪ charged by Anglono­mophylax to mistake the point in que­stion. cleane beside the purpose, for the question is not whether some delators or informers be dis­honest men, & intollerable in a common weale: for none will doubt of that: but whether no in­formers ought to be suffered in a good Common weale: and these censures of informers which you haue brought out of histories and out of the Ciuill law do onely respect, and concerne such 6. He is like­wise charged eo mistake the Ciuill law in this point. lewde persons, which by slaunderous detractiō doe traduce and falslie accuse men of honest life and good report, thorough the vile and corrupt desire of vniust lucre, whose informations Taci­tus calleth Interpretationes, interpretations, that is a wresting to an ill sense of that which was well meant, or a miscōstruing of that which was done without euill intent or conueyance Tacit. lib. 3. anuali.: and Sueto­nius tearmeth thē Calumnias slaunderous accusa­tions Sueton. in Domiti. c. 9., such men did not openly prooue, but se­cretely impeach the good name of others, as Cu­iaci well obserueth Cuiaci. ad Paulum., but none of your former speeches do touch these, which prooue directly [Page 65] and fully that which they alleage in their infor­mation neither doth your law (for I looke some­time into it) punish such L. 8. 10. 12. C. Th: de pet. & delat. l. 1. ad S. C. Tu [...]p. ff., but if they doe not proue their surmises, they are worthily punished: 7. The statute of 18. of our soueraigne la­dy the Queene touching com­mō informers is compared with the e­dicts of Em­perours. & by the statut of 18. Eliz. it is wel prouided, that if any such informer shal willingly delay his suit or shall discontinue, or be nonsuit in the same, or shall haue the triall or matter passe against him therin by verdict, or iudgemēt of law, that thē in euery such case the same informer shal yeeld, sa­tisfie, and paie vnto the said defendant his costes, charges & dāmages to be assigned by the court in which the same suit shal be attēpted 18. Eliz. c. 5. Rast. Inform. 1: & wheras you say that your lawe doth generally disallow such proceeding, by your fauour it is not so, for he which by office is appointed and charged to informe, or by some other obligation of Lawe is boūd to informe, & he which doth it directly for the profite of the common weale is allowed by your law to execute that course of proceeding L. 1. l. 2. & l. 6. Ad S. C. Turpil: ff., Codicgnostes his surmise that informa­tions were not vsed in the best times of the Romanes is answered and confuted. furthermore in that you say, that informers did neuer florish in the Romane cōmon weale, but vnder tyrants, it is not true, for in the times be­twixt the 2. and last Carthagenian warre the Ro­manes did most excell in vertue, & were most re­nowmed for good exāple & desert as witnesseth Salust a great iudge in matters of state, and in the māners of mē, whose testimonie S. Augustine nei­ther doth affirme nor denie but qualifieth with this censure, Toto illo interuallo [...]uorum bellorum punicorū tolerabilior infaelicitas fuit S. Augustin. lib. 3. de ciui­tate dei. c. 21.: & Florus wri­teth agreeably to Salust: Hactenus populus Roma­nus [Page] pulcher, egregius, pius, sanctus, at (que) magnificus Flor. histor. lib. 2. c. 19.: I saie in these happie times, or if you will in these last vnhappy times of the Romane cōmō weale, certen informers were earnestly busied in courts which were thē tearmed (as appeareth by Plau­tus Plaut. in Pers., who liued in those times) quadruplatores, be­cause they had the 4. part of the forfeiture of the defendāt Festus., if their informatiō were true, & these were accōpted alone, & in the same degree with delatores Vopisc. in Aureli.. This may suffice to infring that which you haue deliuered, Codicgn. against informers: Now giue me I pray you a little leaue to proue that informers are not onely tolerable in a well gouerned cōmon weale, but euen expedient and 9. It is shew­ed likewise that informa­tions are expe­dient for the administration of Iustice. necessarie instruments for the good administra­tion of Iustice: but alwaies I require in thē hone­stie, faithfulnes, & consciēce taking this to be an infallible rule, that he can neuer be a good infor­mer, who is not a good man. These qualities be­ing in thē, & truth being the groūd of their pro­ceeding, I see no reason but that their paines should be recompensed & rewarded, sometime with the 4. parte, somtime the third, sometime the moitie of the forfeiture, which the defendant by diuerse penall statuts is to foreit & incurre: for by reward the spirits of a mā are stirred vp & quick­ned: without it they linger, languish, & consume away, & why is reward due vnto such men? The causes and reasons be many, without informatiō there wil be hardly any punishmēt inflicted vpō manie offendors, & sithence nothing is more ac­ceptable to God, or beneficiall to the common [Page 66] weale, then that offendors should receiue their proper & cōdigne punishment, all lawful meanes must be assaied to atteine to this effect, and what doth restraine men more frō cōmitting offences thēn a continuall feare of the informers eie to be cast vpon thē, or his eares to be opē for the hark­ning out of their offences: wherfore as the Hūts­mā doth bestow vpō his dogs some part of these beasts which he taketh & killeth in hunting, that by such inticements they may bee afterwarde drawne to pursue there praie fiercely & eagerly, so it behoueth a lawmaker diligently to hunt out the domestical lions & wolfes, and to allow some reward to the hounds of the Common weale, which informers are Plutar. in Lucul.: Conanus the king of Scots did make a law, that in euery great Church there should be a cheste hauing some holes in the top, into which the informers might put in at plea­sure their seuerall billes of information, wherein the fault committed, the place, the time, the wit­nesses and the parties accused weare conteined: then the Magistrate openeth the cheste, bringeth the matter into question, and the guiltie person being condemned the halfe parte of the goods forfeited goeth to the informer: which lawe is now put in practise, by them of Millaine Bodin. li. 4. de repub. c. 6..

You haue spoken enough of this 4. Diuision. matter Anglonomoph. I desire greatlie to know, whether if a man doe alleage some impediment happened by the acte of God, whereby he could not appeare, this be a sufficient excuse of his de­fault in Law. [Page] Codicgn. Processe of contēpt which we cal li­teras Defaults are dispensed with all by the Ci­uill and Com­mon law whē they happen by the acte of God. cōtumaciales, are neuer addressed against such as be hindred by ineuitable accident, as namely whē the place where the court is held is besie­ged of enemies, or whē the plague is hote in that place: for citatus ad locū non tutum non arctatur cō ­parere De appell. extra. C. ex parte. & in Clem. Pasto­ralis. & ibi glos: sup. verbo Notorum. de re iudicat., & so it is if through great snow, or inun­dation of water the waies & passages be stopped and shut vp, in these and the like cases, the Law doth dispense with defaults, and therefore the matter of delaies is for the most parte committed arbitrio iudicis L. 2. ff. de re iudicata., who may take certaine notice of these things.

It is a receiued opinion with vs, that infirmitie or the fall of a mā from his horse whilest he was in his iourney, though the partie be by the fall in daunger of death, is no sufficient cause to saue a default, but the swelling and ouer­flowing of waters is a good and sufficient cause, & so is an imprisonment 38. H. 6. 12., for though the impri­sonment do originaly happen by the acte of the partie, yet it is an impediment of apparance a­gainst his will, & it is a restraint imposed by acte of Lawe 3. H. 6. 46.: so that the partie is as it were by▪ Law made corpus immobile, & therfore his default must needs be excused 4. H. 5. sicknes was held a good excuse to auoid an outlawrie 4. H. 5. Cha­lenge 153. Br. Sauer. de def. 45., but M. Br. doub­teth of that, because sicknesse may be feined, yet vpō the booke of 4. H. 4. cited in the boke called the abridgment of assises, because there maladie was pleaded against outlawry & was admitted Abridgem. d [...]ssise 48., he beginneth to wayuer in opiniō Br. Sauer de def. 48., & therfore [Page 67] I may with more colour leaue it doubtfull.

Which is the most common actiō 5. Diuision. in your law Codicgnostes.

The action which is called actio 1. The most cōmon action in the Ciuill law is actio in­iurariū, which is either ciuilis or praetoria. iniurariū, which is either ciuilis or praetoria. Ciuilis, if a man do assault an other, or do beat him, or do enter into his house ff. de iniur. l. lex Cornelia., in all other cases it is praeto­ria: but both kinds agree in this, that the fault & iniurie is punished Instit. de iniur: §. penult. & ff. de iniur: l. iniuriarum.: and in the pursuing of it a man may deale either ciuilly or criminally, but one of the waies being chosē, the other may not be entred into L. quod se­natus. & l. prae­tor. §. 1. ff. de Iniurijs., and if the partie bring ciuilem actionē iniuriarum, he shal recouer the damages ff. Iniur: eod: l. Idē apud §. si quis seruo.: but if he bring praetoriam he shall effect nothing thereby but vindictam, the punishment of the partie which hath offended.

This your speech tēdeth to no other purpose as it seemeth, thē to insinuate that such wrongs may be pursued by actiō or endite­ment, 2. Actions and enditements at the Common▪ law are com­pared with Ciuill & prae­torian actions. wherein our Law doth not any whit disa­gree. For if foure men enter into land, and one of them entreth by force, this is force in them all & they may be impleaded by action or impeached by enditemēt 2. E. 3. 12. li. ass. 33. Crōpt. I. P. 61., but if a mā enter by force where his entre is lawful (so that there is no fault in the matter of his title, but in the manner of his entre onely) he shall not be punished by way of actiō, but by way of enditement 15. H. 7▪ 17. Fitzh. I. P. fol. 117. Br. Forcib. entre 11. 9. H. 6. 19. Fitzh. N. B. 248., and so if the dissei­sor hold possession by force during the space of three yeares, if the disseisie bring an action vpon the Statute of 8. H. 6. hee shall be barred by this matter pleaded, but otherwise it is in an indite­ment [Page] vpō that statute, which is the Queenes suit, and vpon such inditement the partie shall haue restitution, though hee may not haue an acti­on 14. H. 7. 29. per Fineux, Reade, & Tre­maile., and if the disseisie oute the disseisor with force, the disseisor shall not haue an action, but yet the disseisie may bee indited vpon the afore­said statute, and the disseisor shall thereby be re­stored 6. Diuision. 15. H. 7. 17. Fitz. N. B. 248..

I would haue you to proceed Co­dicgnostes in describing vnto mee, the forme of your action which you call actionem iniuriarum, that it may bee more certaine and manifest vnto me.

I haue it here written in a Booke, which I haue readie at hand.

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.

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, nemini (que) iniuriā inferēdo, superuenit ibidem dictus Sempronius reus, qui animo iniurioso ipsum actorem prouocauit, & in­citauit per rixosas & iniuriosas allocutiones, & quā ­quā dictus actor ipsum reum dulcibus & placabilibus verbis refraenare & mitigare niteretur: dictus tamen reus semper magis at (que) magis insistebat, & iniurias prorūpebat, et in tantū quòd in ipsum actorē talia ver­ba, [Page 68] 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 quàm 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 ā ­tibus 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, condēnatum (que) cogi & cōpelli vijs iuris, & remedijs optimis: et aliâs petit in omnibus ius, & iustitiā sibi fieri & administrari, vestrū benignū, [Page] quod, quale, & quātum decet, officium humiliter etiā, loco actionis si opus fuerit, implorando.

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.

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 4. E. 6. Br. A­ction sur le case. 112..

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 [Page 69] 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.

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, 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: 48. E. 3. 6. For the Lord cannot iustifie the break­ing of his tenants close, 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 [Page] 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, 3. H. 6. 13. & if it appeare by the writ or the declaratiō 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, 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, 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, 8. E. 4. 3. likewise in an action of Trespas brought by the husband and wife for a batery done to thē both, after verdict found that both of thē were beaten, the writ abated as to the battery of the husband, and as to the battery of the wife they re­couered their damages, 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, 11. E. 3. 471. but [Page 70] a man may haue a writ of Detinue of Charters and of Chattels iointly, 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 c [...]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, 19. R. Actiō 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 [Page] 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 t [...] 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. 25. Elizab. Adamses case.

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 [Page 71] 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 takē 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 i [...]iurioso being taken for a surpl [...]sage. no wronge can bee done without an iniurious meaning, and the secreate meaning must needes appeare by the open description of the wronge.

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: §. 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. 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, 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 had beene a quarrellous, or contencious person, and had giuen some occasion of strife, the wrong might with more reason bee imputed to him, [Page] then the defendant, Glo. in l. ob haec verba ff. de his qui no: inf: & in l. 1. §. cum arietes ff. si quad [...]up. paup: fec: and hee cannot be sayd to haue done a wrong, who incontinently for his safegarde after the same maner, whereby hee is assaulted doth defende himselfe, for when a man is assaulted by weapons, he may resist with wea­pons, l. vt vim: ff. de inst: & iure l. si quis percustor: C. ad leg: Cor. de sicar: but if he doe exceed measure in repealing iniurie, as if being vexed with wordes he resiste with weapons, and by such resistance doe beate or wounde the partie, he that is so grieued may haue an action of iniurie against him, l. sententiam §. qui cum ali­ter, ff. ad l. Aquil. & recouer damages: l. item apud La be onē. §. si quis seruo ff. de iniur: and to prescribe some temper & mo­deration in the resisting of verbal & actuall iniu­ries, I remēber a verse not altogether vnpleasant:

Thinges must be recompenced with thinges, buffets with blowes:

And wordes with wordes, and taunts with mockes, and mowes.

And to conclude, you seeme not (with your fa­uour be it spoken) iustly to reproue these words animo iniurioso, for they are expressed for diffe­rence sake, because if a man in iesting wise should strike an other or vse broad boward against him, this woulde not beare an action, because it was not done animo iniuriandi, sed iocandi. l. illud per­aeque, ff. de in­im: & l. si non conuicij C. cod: this I think you are sufficiently quieted in opinion as to the doubts which you proposed.

Nay verily I rest as yet doubtful, and for the fuller clearing of my minde, I woulde haue Anglonomoph. to speake somewhat of these thinges out of the common Law, which in mat­ters [Page 72] of declaration and pleading is very curious and exquisite.

Truth and error are both equal­ly 11 Anglo. par­ticularly exa­mineth & dis­cusseth the ex­ceptions. beholden vnto you, for in some thinges by the censure of our Law one of you hath the vpper hand, in other some the other: for proofe hereof I will by your patience particularly handle eue­ry of the aforesaid obiections, which hath in it any colour of truthe, as to the day of the moneth wherein the wronge is supposed to be done, I doe nott with Codicgnostes thinke that in this case the very day necessarily ought to haue bin men­tioned, because it is not trauersable nor materiall to make any issue, but it is sufficient (for obser­uing formalitie) to set downe any day that is past.

But with vs it is material, and if the day be not truely set downe, the defendant may take aduantage of it.

With vs it is not so, for as Newton saith 20. H. 6. the day in an action of Trespas and repleuin are not trauersable, for if the defendant iustify at an other day after, he ought to say with­out that he tooke them before, 20. H. 6. 40. per Newt. and so 19. H. 6. in a trespas of battery the def. said that the plaintife did assault him at an other time, then he hath de­clared, & that the hurt which was done vnto him came of his own wrōg, sans ceo that he was Culp̄ before or after, & this ple he was enforced to pled by the court, 19. H. 6. 47. yet in some case the day and time for auoiding vncertainty, and that the Iurie may more easily find out the truth is issuable, & there­fore in an action of trespas supposing a batterie, [Page] the defendant said, that the same day, wherein the trespas was supposed, the plaintif and the de­fendant by common accorde did play together at cudgels, and the hurte which he did vnto him was by that play, without that, that he hurt him in any other maner, iudgmēt si action: To which the plaintife replyed, that the same day when they were departed, the defendant came vnto him and assaulted him and beate him of his owne wronge, and the defendant reioined that all the day and at euerie time of the day by their com­mon accorde they played together, without that that he beate him in other maner, 12. R. 2. Barr̄ 244. And so in a repleuin of his beastes wrongfully taken, the first day of August the defendant auowed, because the plaintife helde the lande &c. of him by ho­mage and fealtie and suit at his Court at such a place, and because he was summoned to bee at his Court the fifth day of the said moneth and yeare, and did not come he was amerced, and for the sayd amerciament hee tooke the beastes the twenteth day of August, without that, that he tooke them the first day of August, and it was sayd by Markeham that this was no plea: for if you toke thē at an other day before the present­ment it is wrongful, wherefore you ought to say without that that you tooke the beastes before the twentith day: but issue was in this case taken, without that he tooke them the first day of Au­gust, 20. H. 6. 40. whereupon Master Fitzherbert noteth, that the day in a writte of Trespasse or Repleuin is not trauersable, but where the speciall matter [Page 73] doth require it, Fitz. Repl. 7. and this he seemeth to ground vpon 2. H. 4. likewise in an action of trespasse for the taking of goods the 8. day of Aprill the defen­dant said that the plaintife was possessed of them as his proper goods and chattels, and solde them to such a one who left them in the custodie of the plaintife, and after he solde them to the de­fendant, wherefore he tooke them at the time time supposed, to which the plaintife replyed, that he was possessed of them vntil the defendant took them the 8. day of April as before hath bin alleaged, sans ceo that the other solde them to the defendant before that day, and hereupon they were at issue. 2. E. 4. 16.

Well let this matter passe, what say you to the multitude of wordes vsed in the des­cription of the wrong? is that the tollerable in your Law?

Surely it is conuenient that the 12 Anglo. Ex­cuseth and de­fendeth the a­bundance of words in de­clarations and libels. qualitie of euery thing should be apparanted by termes of efficacie, & it is better to haue a decla­ration too copious then carion-leane, neither is any thing more plausible to a good vnderstan­ding, then that words be ponderous and empha­ticall, where the matter seemeth to bleed, where­fore Virgill in describing the loftie pace of the lu­sty and couragious horses, maketh his verse after a sort to gallop, and doth in liuely termes as it were present it to the eye,

Quadrupedante putrem cursu quatit vngula campum. And Persius decently maketh his verse to rise and swell with the matter.

But not to digresse from our purpose, in an ap­peale of mayhē the wrong must be in this forme, or the like set downe. Iohannes Nan propria persona sua hic instanter appellat W. G. de eo, quòd cum idem querens tali die et anno fuit in pace dei & dominae Re­ginae nunc apud talem villam in tali comitatu circa ho­ram sextam &c. ibi venit p̄dictus W. vi & armis viz. baculis vt felo, insidiando, et ex insultu premeditato ad­tunc & ibidē in dictū Io. insultum fecit & adtunc & ibidem cum quodam baculo pretij &c. quem praedictus W. adtunc & ibidem in manibus suis tenuit, praedictū querentem super brachium dextrum felonice tunc per­cussit, per quod venae & nerui brachij sui praedicti re­stricti fuerunt ac sicct & mortificati deuenerunt &c. Lib. de di­uersit des Courts 115. Here you haue the Mayhem described from the beginning to the end in ful termes: and yet euery of them, or at least almost all, so necessarie, that if you take away one of these flowres ye marre the whole garland, and so in a writ of trespasse for the hurting of his sheepe (though briefes be shorte comprehensions of things) the wronge is fully set downe in this sort, Quare vi & armis centūoues ipsius A. apud T. inuentas cum quibusdam canibus fu­gauit, canes illos ad mordendum oues praedictas intan­tùm incitando quod per fugationem illam & morsus canum praedictorum oues praedictae multipliciter dete­rioratae fuerunt & magna pars ouium illarum faetus abortiuos fecit. Fitz. na. br. 89. L.

Wel what say you to these words ( ani­mo iniurioso) whether are they needles or not.

These words carry sense in their [Page 74] foreheads: for they amount to as much as maliti­ose in our Law and that ought to be set downe to distinguishe it from iocose as Codicgn. hah before verie well reasoned: and when the action soun­deth to malice, the worde malitiose or the like in substance is to be vsed, as well as when the acti­on soundeth to deceite, the worde fraudlenter or some equiuolent tearme is of necessitie to bee expressed.

Of these matters then I know what to thinke, and will moue no other doubt or que­stion of them: Now Anglonomoph. because I think at the cōmon law an action vpon the case concei­ued vpō a slander doth most resēble this actiō of iniury before discribed, let me therfore know the forme of the declaratiō, which is fit for that actiō.

You haue conceiued in this a 13 The forme of a declaratiō vpon an acti­on vpon the case, resemb­ling actionem aniu [...]iarum. right opinion, and I wil roundly shew vnto you the forme of the declaration whereof you spake, because it is verie plaine and much in vse, it is thus: W. C. queritur de P. L. in custodia Marr' pro eo videlicet, quod cum predictus W. bonorum mominis ac fame ac honest arùm conuersationis, gesture, & con­ditionis fuerit & vt verus ligeus domine Regine nunc, abs (que) illo scandalo ac sine quacun (que) macula latrocinij, furti, falsitatis, vel cuiusuis alij criminis ac sine vllo scandalo earundē macularū, & ab omnibus huiusmodi fallacijs, dolis, & malis ille sus, intactus, et immacula­tus a tēpore natiuitatis sue hucus (que) se gesserit, habuerit & gubernauerit & huiusmodi status, conuersationis, & honestatis apud vicinos suos & vniuersos fideles dominae Reginae nūc subditos quibus idem W. cognitus [Page] erat sine aliqua criminosa nequitia latrocinij furti & cuiuscunque insignis fraudis aut huiusmodi criminis hucusque immaculatus fuerit: praedictus tamen P. L. praemissorum non ignarus, ex eius diabolica instiga­tione, & peruersa malitia, machinans statum, hone­statem, necnon famam & opinionem dicti W. laede­dere, & funditus deprauare, ac eundē W. de tam malis conuersatione cōditione & gestura, apud omnes domi­nae Reginae fideles subditos acceptare, vt idem W. omni­no periret ac totaliter destrueretur ac vt vniuersi fi­deles subditi dictae dominae Reginae a consortio ipsi­us W. penitus se subtraherent 25. die Septembris an­no &c. apud L. in presentia & audientia A. B. & aliorum multorum fide dignorum dicte domine Regi­nae eodem W. notorum, de eodem W. dixit, retulit, pub­licauit, & alta voce pronunciauit & asseruit in haec verbain Anglicis verbis sequentibus videlicet, Thou art a theefe and thou hast receiued xx. poundes of my goodes: quorum quidem verborum propala­tionis & relationis pretextu, predictus W. de suo sta­tu bono nomine & in negocijs suis: quibus cum ho­nestis personis & dictis domine Regine subditis vsus fuit, & consortium habuerit multipliciter laesus, & deterioratus existit, vnde dicit quod deterioratus est, et damnum habet ad valentiam ducentarum librarū &c.

These two proceedings doe little differre in substance, & there is in them me think­eth great redundancie of wordes, which might wel be spared, but tell me I pray you is there such necessity of these formall termes, that if they be wanting or changed, the declaration, or procee­ding shall abate?

Surely, because the tedious and odi­ous 14 The cut­ting off of de­laies by the ciuil law. protracting of suites did greatly offende iu­stice, therefore to cut off delaies, and that suits might not be endles, and immortal (for matters of forme and the exceptions to them were growne to such an excessiue heap & infinite number, that the whole age of man did scaresely suffice for the triall of one suit, and he that failed in a sillable fai­led in the cause) our lawmakers therefore, that Iustice might walke in a shorter and more com­pendious way, did therefore verie willingly roote vp the thornie groue of cauils, and sophi­sticall wrangelinges, which had mingled them­selues with good and reasonable exceptions, and scouring the streame of such weedes and sedges, they haue nowe made a smooth and more easie passage for Iustice. In rubr: & nigr: C. de form: & impe­trat: action: Iublat:

Vpon like consideration & to the ve­ry 15 The dimi­nishing of de­laies by the common law. same purpose our lawmakers haue made lawes for amendement of writs, declarations, and other proceedings in matters of forme, as may appeare by seuerall statutes made for the establishing of such amendements, as namely 14. E. 3. ca. 6. 9. H. 5. c. 4. 4. H. 6. c. 3. 8. H. 6. c. 12. & 15. 32. H. 8. c. 30. 18. Eliz. c. 14. 27. Eliz. c. 5. and by the equity and direct meaning of these statutes diuers amendementes haue bin made and vsed in our law, and therfore in an action of debt grounded vpon a recouerie of damages had in an assise, the date of the writ of Assise was not put in the writ of debt, and it was held that it should be amended, because the Clarke had the recorde for his instruction, 13. H. 7. 21. but [Page] whereas a writte of debt was brought per Iohan­nem Gargraue Esquire, and the obligation was Ioan Gargraue onely, this was not amended, but a­bated, because this misprision came of the plain­tifes part, Quaere tamen, but 8. E. 4. and 11. E. 4. if an action of debt the Clarke of the Chauncerie haue the obligation with him at the time of the making of the writte, and there be variance be­tweene the writte and the obligation, it is clere­ly amendable, but if no addition bee giuen to the defendant, that is not amendable, 8. E. 4. 4. 11. E. 4. 2. and 22. Ed. 4. if an action of debt bee brought against executors of the debt of the testator, if the writ be in the Debet and Detinet, it is not amendable, 22. E. 4. 21. per Cur. and in a writte of Audita querela the surname of the defendant was Langawaite, and in the Inden­ture of Defeasance his name was Langwaite without the letter (a) in the middest, whereup­pon the writ was amended by statute, because that was not of the substance of the name, or sur­name, and also it was to bee intended that the Clarke had the Indenture of Defeasance at the time of the making of the writte, 21 H. 6. 8. and so in an action of debt, where the writte was Hille, and the Obligation was Hulle, the writte was amen­ded, 22. H. 6. Amendm̄t 31. 37. H. 6. 32. and where more was in the Obligation then in the writte, it was amended, 19. H. 6. A­mendm̄t 47. but 41. E. 3. it is helde by Finch. that a writte originall shall abate for default of forme, and shall not bee a­mended in the Courtes of common Lawe, for though it be pleadable there, yet (as Master Sta­tham reasoneth) the Chauncerie is an other [Page 76] Court, and a superiour Court: Stath. ti [...] A­mend 20. H. 6. and therefore the things done there cannot bealtered in Courts of common Law, 41. E. 3. 14. [...] Finch. 9. H. 7. 16. per Vauis. & 2 [...]. E. 4. 20. and for the more ful & forci­ble destruction of delayes and ambushes in plea­ding, it is by the common Lawe ruled, that e­uerie demurrer vpon a plea which goeth in barre, and to the disproofe of the Title is per­emptorie: and thoughe a plea in Abatement of a writte bee not peremptorie, but a respon­deat vlterius▪ yet if the plea in Abatement of a writte bee tryed by the Cuntrie, this is doubt­lesse peremptorie for the delay of the partie, 48. E. 3. 10. [...] Finch. 34. H. 6. 8. 50. E. 3. 20. 34. H. 6. 37. But it is peremptorie onely against the tenant or defendant, not against the plaintife or demaun­dant, for he is still at large. 5. E. 4. 90. 2. E. 4. 10.

Let mee interrupt you Anglono­moph. for I doe verie much desire to heare of you and Codicgnostes, the fourmes of the de­fences or barres, which the defendants are to make against these declarations, before recited by you.

I will make knowne vnto you the most common and vsuall forme of pleading in barre in this case. Vt vobis clarissimo magnifico 16 The forme of a defence or barre in an ac­tion of iniuries. &c. constet & legit [...]me appareat de innocentijs, in­culpabilitatibus, legitimisque defensionibus predicti Sempronij delati, preuenti, seu inquisiti, ipsumque ad malam, iniustam, dolosam, & iniquam nonnullorum suorum maleuolorum & inimicorum delationē, insti­gationem, seu denunciationem fuisse preuentum, & in processu inuolutū, et per vos vestram (que) definitiuā sen­tentiā dictus &c. delatus, seu p̄uentus, seu inquisitus, [Page] [...] [Page 76] [...] [Page] pronuncietur & declaretur innocens, exoneratus, & minime culpabilis sibi impositorum, vt ab eisdem impositis eadem vestra sententia absoluatur: dictus vero denuntiator in omnibus damnis, interesse, & ex­penssis erga eundem praeuentum delatum seu inquisi­tum condemnetur, condemnatusque ad refarciendum & soluendum cogatur & compellatur, & aliâs ius & iusticia eidem praeuento & intitulato fiat & admini­stretur: Inprimis igitur dicit, ponit, asserit & quate­nùs opus erit, prout supra, iustificare intendit, quòd ip­se praeuentus, seu denunciatus ex nobilibus, catholicis, legalibus, probis, honestis, & in omni genere virtutis exercitatis parentibus, seu genitoribus, traxit origi­nem. Item dicit & ponit, quòd dictus intitulatus & preuentus vestigia dictorum parentum suorum inse­quens, toto tempore vitae suae, fuit & est catholicus, le­galis, probus, honestus, absque eo & praeter id, quòd Titius praedictus querens, de eodem intitulato seu prae­uento aliqua laborauerit infamia, sinistra suspicione, aut mala fama. Item & quòd semper pacifice, & quie­te inter omnes se habuit & conuersatus fuit omnibus prodessendo, & neminem ledendo seu offendendo. Item negat se dictum Tittum pulsasse, verberasse & ei vel cuiquam alteri via facti, seu dicti, seu aliâs no­cuisse, & vulnera, liuores, vel concussiones intulisse, Ex quibus apparet dictum intitulatum seu praeuen­tum fuisse & esse a sibi impositis innocentem & mi­nime culpabilem, indebiteque & iniuste intulatum & preuentum, & in processu inuolutum fuisse, & per consequentiam in via absolutionis & relaxationis fo­re & esse.

This barre is somewhat longe, let [Page 77] me heare the forme of your barre Anglonomoph. which I hope is a great deale shorter.

It is so, if you will haue the or­dinary plea in barre which comprehendeth the 17. The forme of a defence in an action vpō the case. generall issue. For it is no more then this: Et prae­dictus P. L. per R. attornatum suum venit & defendit vim & iniuriam quando &c. & dicit quòd ipse non dixit, retulit, nec propalauit de praedicto W. verba prae­dicta &c. modo & forma quibus idem H. superiùs versus eum queritur, & de hoc ponit se super patriam & praedictus H. similiter &c.

This is briefe and substantiall, but now what is to be done according to the or­der of your proceeding?

Now that the matter is growne to 18. The forme of triall by the Ciuill law. this ripenes, so that the one maketh perfite affir­mation the other absolute deniall, the matter is to be tried by proofes & witnesses, which now are to be examined.

So it is with vs: for the cause 19. The forme of triall by the Commō law. now being come to issue, the triall is to be by the countrie, which as to such matters in facto, are to bee directed by the testimonie and euidence of witnesses.

Well if the defendant happen to be found not guiltie, what is then the iudgement vpon these precedents.

It is thus: Et nos Seneschallus praedi­ctus 20. The forme of iudgement in the Ciuill law. visis, & diligenter Iurisperitorum nostrae praesi­dialis Curiae consilio totius praesentis processus merit' appensate, diligenter, & accurate examinatis, Quia per processum defensionalem dicti rei praeuenti denun­tiati, [Page] & intitulati, elicitur intentio praedicti querētis, ideo exhis, & alijs ex processu result antibus, per hanc nostram definitiuā sententiā, quā pro tribunali more maiorū nostrorū sedenies in his ferimus scriptis dici­mus, pronuntiamus & declaramus dictū reum denū ­tiatum & praeuentum non fuisse, vel esse criminū sibi impositorum culpabilem: Quinimmo à dictis crimini­bus sibi impositis fore, & esse absoluendum, quem ea­dem nostra sententia absoluimus, expensas hinc in­de factas in causacompensando &c.

Our forme of iudgement is a great deale shorter, for it runneth thus: Ideo consi­deratum 21. The forme of entring iudgement at the Common law. est quòd praedictus W. nihil capiat per breue suum praedictū sed sit in misericordia sua pro falso clamore suo inde, & praedictus P. L. eat inde sine die.

Well ye haue bin long in hādling these matters of formal proceeding, wherefore I wil aske you of this, but one question more, and then will passe ouer to intreate somewhat of cō ­mon trespasses & wrongs, resolue me first in this, whether may the executor of the testator that 7. Diuision. was wrōged by such diffamatorie speeches, haue an action for the said slaunder after the death of the restator?

It neither lieth for the executor of 1. That by the Ciuill lawe an action of iniu­ries will not lie by executor a­gainst execu­tor. him that is slaūdered, nor against the executor of him that did slaunder, because noxa caput sequi­tur, vnlesse the suit were begūne in the life of the testator, in which case the executor may well prosecute it Insti. de in­iu [...]. §. non om­nes. & §. pena­les ff. de miur. [...]miuriarum..

It is a rule with vs that actio per­sonalis 2. That by the Common law actio personal [...] moritur cum persona. vnlesse it be in some speciall cases. moritur cū persona: yet this is not generally [Page 78] and indefinitely to be admitted, but onely in such case, where the wrōg did principally & immedi­atly rest vpō a mans person, & whē (as the Ciuili­ans say) it is ita affixa ostibus vt in aliū transferri non possit. ff. de pecu. l. si quis ergo.. And therefore where one is entitled to haue a writ of accōpt, or an actiō of trespasse for the taking away of his goods, and is attainted of treason or felony, the Queene shall haue these a­ctiōs as forfaited to her highnes 30. H. 6. 5. 28. E. 3. 92., but otherwise it is of a trespasse of batterie Stamf. fol. 188., and so it hath bene pronounced for law, that if a termor make wast, & after he maketh his executors and dieth, the action of waste is gone, for it lieth not against his executors 23. H. 8. Br. Waste 138. 46. E. 3. 31., but though a couenant bee a thing merely personal, yet both an executor & an admi­nistrator may haue a writ of couenant Fitzh. N. B. 146. D. 2. Mari. 112. Dy..

Now that ye must treate of 1. Diuision. common wrōgs & trespasses, I doubt not but you wil be lesse troubled with my questions, because such matters ar more plaine to you, and to me not very difficult. Notwithstanding for learning sake, & because I would ground my selfe vpon some certaintie of knowledge, I will mooue some doubts of these matters: first how many sorts or wrōgs are there?

Iniurie as we say is two folde, for either 1. The diuerse kinds of iniu­ries in the Ci­uill lawe. it is done re or verbis: re, when a man is assaulted [Page] or beaten: verbis, when a man is slaundered and by tearmes disgraced or discredited L. 1. ff. de in­iut [...]s..

I pray you Anglonomophylax illu­strate and explaine the members of this diuision by some conuenient cases.

Very willingly, and to beginne 2. What an assault is ac­cording to the Commo law. with the first: an assault is made when one man menaceth an other with a weapon or staffe, though neuer a blow bestroken, yet this is an as­sault 22. Assis. pl. 60., and 43. E. 3. the writte was Quare insultum fecit vulnerauit, verberauit & maihemauit, and it was allowed though the wrong did sound to be mayhem 43. Assis. 39., and as it was held per Curiam, where a man maketh an assault it is not lawfull for any to beate him, if the partie assaulted may escape with his life 2. H. 4. 8., yet the opinion of M. Brooke is that he may beate him if he cannot otherwise escape without stripes or wounds or mayming Br. Trespasse 71., yet the opinion of 9. E. 4. is, that I may beate a man if he will take my goods from me: and a seruant may iustifie a batterie in the defence of his maister 9. E. 4. 28. & 48., but the assembling of people in a warlike māner is no assault, but he that is the ringleader of such assemblies, before hee may be impeached of as­sault must doe something els, as namely by vtte­ring contumelious speeches, or stretching out his armes, or some other token whereby his in­tent may be knowen 17. E. 4. 4., and he that commeth in companie of them that make the assault, or hee which commeth to ayd them, is a principal tres­passor 22. Assis. pl. 43., and if a Iustice of Peace see a man doing an assault, he may presently arrest him by com­mandement [Page 79] or worde, to the intent that he may finde suretie of the peace 9. E. 4. 3., and it is lawfull for one mā to beate an other in defense of his goods and chattels or of his wife 19. H. 6. 31. 35. H. 6. 51., and a man may like­wise haue an action of trespasse for the entring into his house Fitzh. N. B. 88. l., but if a man licence one to come into his house, & he doth a trespasse there he shal be punished for the trespasse but not for the en­tre which was graūted vnto him 3. H. 7. 15. p Townes., and nothing 3. That the Common law giueth an acti­on vpon the case for a slaunder. is more vsuall then 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 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 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 4. H. 8. rotul. 659., infinite other cases might be brought tending to this purpose.

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?

They may, and the Praetors edict in our Law to that intent is very manifest and no­torious L. 1. ff. de in­iur:.

To that our law accordeth: and [Page] 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 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 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 D. Cosins in li. de iurisdict. ecclesiastic.: (vnlesse he wil receiue her without ecclesiastical cōpulsiō 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 [Page 80] abduct a cū bonis viri by some authority, because it is not properly a mariage till she assent 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 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 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 43. E. 3. 23., and if a man do ca­rie 3. In wh [...] ca­ses by the Cō ­mon 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 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 woū ­ding of the seruant, the maister hath the losse of his seruice 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 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 [Page] [...] [Page 80] [...] [Page] labourers 11. H. 4. 23. Br. Trespasse. 92.: Lastly it is plaine by our law, that the 4. In what ca­ses by the Cō ­mon 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 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, and with her the apparell 11. H. 4. 31. Br. Trespas 93., and as the fa­ther may haue this remedie for his sonne & heire apparant, so may the mother, likewise if shee be an inheritrix 30. E. 3: Brief 300.: so that I meruaile at M. Catesbies opinion 9. E. 4. that this writte lieth not for the wife 9. E. 4. 53..

I will require no more at your hands Anglonomoph. of this matter, now I pray you Codicgnostes resolue me in this, whether whē any mans beasts do any hurt vnto an other mā, if this be not done by the owners acte, default, or procurement, shall the maister make good the dammage susteined by such wrong.

Surely brute beastes, because they 1. How the owner shal be punished by the Ciuill law for a trespasse done by his beasts. want vnderstanding and reason, cannot be said properly to bind their owner ( noxaliter, so that the fault should be accompted his) for any rauin, hurt, or dammage whatsoeuer, neither do such wrongs bind the owner of the beasts ex quasi de­licto, for a matter like vnto a wrong: yet notwith­standing for preuenting of hurt, that may in such sort happē, the law doth prouide, that if the ow­ner wil not voluntarily yeeld vp the beast as a re­compence to him that is endāmaged, he must rē ­der the dāmages, or els by the authoritie of the iudge be awarded & compelled to yeeld vp the beast L. 1. ff. si quadrup: paup: fec: dic., and therfore if any man do keepe or nou­rish a Mastife, or Boare, or Foxe, or Beare, or Lion or Wolfe, or some like beast which doth hurt or damnifie an other mā, he that receiueth the hurt shall recouer dāmages against the owner of the beast §. Caeterùm Instit. si qua­dru: pauperiē fecisse dicatur., but if such a beast do escape away frō me, 2. In what case he shall not be punish­ed though his beasts do hurt to an other man. or goeth so farre from my pasture or warde that I cannot by pursuing recouer it, neither doe I know whether it is fledde, and so being esca­ped from me it doe hurt an other man, in this case I am not to susteyne any dammage, because in this case, I am free from fault: for the beast by [Page] such escape ceaseth to be mine, and may become his that shall take, or seise, or kill it d. l. 1. §. in bestijs & §. Caeterù [...], ver­sic. Denique si vrsus..

To this our Lawe agreeth: for we haue a writ of Trespasse which saith, Qua­re vi & armis centum oues ipsius A. cum quibus­dam canibus fugauit canes illos ad mordendum oues praedictas intantùm incitando quòd per fugationem illam & morsus canum praedictorum oues praedictae multiplititer deterioratae fuerunt & magna pars o­uium illarum faetus abortiuos fecit &c. per quod 3. That by the Common law a man shal be punished for a trespasse done by his beasts. &c. Fitzh. N. B. 89. L. But if a Dogge doe kill or hurte any mans beastes, the Maister being ignorant of his mis­chieuous property, he is not punishable 28. H. 8. 25. Dy. & 29. Dy., wher­by I gather that if hee know of his propertie (though he do not set on his dogge or mainteine him to doe hurt to others) hee shall be punished by action of trespasse, and if a man doe driue his beastes thorough the Queenes highe way, to which way my land that is sowne with corne is adioining, and the beasts doe enter & spoile my corne, the owner shall bee punished for this, though hee did driue them out presently, or ear­nestly endeuour to chase them out of the corne 10. E. 4. 7., so if a man chase his beastes in the highe way, and they doe escape into land, which is not in­closed, ond the owner doth freshly pursue them, and chaseth them out, yet this is no good plea in barre without shewing that the tenant of the lande, and all those whose estate hee hath in the lande, haue vsed to inclose the said land toward the high way 15. H. 7. 17..

I craue no more of this matter: [Page 82] now I would haue you to transferre your inuen­tiō to the discourse of other offences against the peace, which I doe thus dispose and distribute to your handling: because all offences against the peace are either in an inferior degree, as these whereof ye haue lastly spoken, or in a middle de­gree, as vnlawfull assemblies, riots, routes, and forcible entres, or in a higher degree, and they be of three sortes, namely such as be committed against the dignitie of man as treason and rebel­lion: or against the life of man, as murder, man­slaughter, and homicide by chaunce, or against the good estate of man, as thefte, burglarie and robberie: I would therefore haue you first to begin to treate of vnlawfull assemblies, riots &c. and then to goe on with the rest, accordinglie as I haue set them downe.

Codignostes, Canonologus, Anglonomophylax, we are willing to pleasure you in anie thing that we can, and as you propose doubtes of euerie of these titles seuerallie, we will endeuour to satis­fie and resolue you to our power.

Tell me Codicgnostes what 1. Diuision. doe you take to be publique force in your Lawe?

When an vnlawfull [Page] assembly is mette together in the highe streete, 1. The descri­ption of pu­blike force by the Ciuill law. or in the open sight of men to offer abuse, hurte, or iniurie to a mans person, or to take away his goods from him by violence and strength of hand L. armatos. ff. ad L Iul: de vi pub:.

That likewise is publique 2. That in the matter of pu­blike force, the Common law agreeth with the ciuill. force by our law: of priuate force done to a mās person wee haue spoken before, which if it be publickly done, it turneth to be publicke force, but as to the taking away of goods by open force, if a man doe disseisie an other, and when hee hath entred▪ hee doth carie away the chat­tels of the disseisie, this is in our Lawe a dis­seisin 3. A differēce by the Com­mon lawe be­twixt publike force and op [...]n force. with force and armes, and the disseisor shall be punished by imprisonment 11. H. 4. 16. Westminst. 1. c. 37. 4. H. 4. c. 8., and a man disselsed an other but not with force at his first entre, and it was found by assise that incontinent after his first entre he cut downe trees, and this was awarded a disseisin with force and armes 30. Assis. 50. Assis. 301..

What punishment haue they by your lawes which commit such force?

The punishment of this fault in our 4. The punish­ment of pub­like force by the Ciuil law. law is diuersified by the qualitie of the persons that commit it: for otherwise bondmen, other­wise they that are free, are punished: and if it be mixed with an other fault, it was punished in a free man by ancient Lawes, with perpetuall ban­nishment, & the confiscatiō of goods L. 2. ff. de publ iudic: & l. si quis ad se fundun. C. eod. & §. item lex. I [...]st: eod:, but now it is punished with bannishment for a certaine time without confiscation of goods §. relegati. Instit: quib: mod: ius patr [...] potest. soluit., but it is to be noted that the said punishment onely taketh place, when force is actually done or cōmitted, [Page 83] but if nothing bee done forcibly, but certaine men hauing weapons are assembled in a great multitude together to committe force, the pu­nishment of that offence is arbitrarie and leste to the discretion of the Iudge, but the Lawe set­teth downe this mulcte in certaine, that if he be a man of woorth hee shall paie to the common treasurie an hundred pounds in gold, whosoeuer in such sort offendeth L. si. C. Ad L. Iul. de vi pu­bl: l. 1. & 2. in prin. ff. eod..

By our Lawe if a disseisin bee 5. That by the Common law the Counsay­lors and com­mittors of force are alike punished. found to bee done by diuerse men, and to bee done by force, and one of them is found to bee but a coūsailor of the disseisin, yet euery of them shall be awarded to prison 17. Assis. pl. 14., and if a man be attainted of Trespasse at the suite of the partie, or of a disseisin with force, wherefore hee is commaunded to prison, if he be present, or that hee shall be attached, if he be absent, where­upon hee is attached and put in prison at the Kinges suite, vntill hee haue payed a fine to the King, and after hee findeth pledges for his fine, and prayeth that hee may be at large, he shall not be permitted to goe at large, vntill the Court be sufficiently enformed that hee hath agreed with the partie, if the plaintife doe require be­fore that his bodie may continue in prison, vn­till the defendant haue agreed with him 22. Assis. pl. 74.. An vnlawfull assemblie is where aboue the num­ber of two doe assemble to doe some vnlaw­full 6. What an vnlawfull as­sembly is by the Common law. 7. What a rout is. acte, and they doe it not in facte, but af­ter their saide assemblie they departe without doing more, and a route is their tumultuous [Page] proceeding to performe the acte purposed: but a 8. What [...] ryot is. riot is when more thē two do assemble together to the intent to do an vnlawfull act, as to beate or to maime an other, and they do this in fact: but if diuerse assemble, & none know to what intēt, this is not punishable till the intēt be knowne Fitzh. Iust. de Peace. 28. Mar [...]. lect. 8. Crompt. Iust. de peace 53., and when men are indited of riot, they cōmonly pray to be admitted to their fine, that by the pay­ing of their fine they may escape imprisonment, but de rig ore iuris they ought as well to be impri­soned as fined Crompt. Iu­stic. de peace. 53. b..

I would know of you Canonolo­gus, whether there be any penaltie in your Lawe prescribed for such offences.

Yes there is a penaltie set downe 9. The punish­ment of the aforesaid of­fences by the Canon law. for Clarkes, & such as haue takē holy orders, for if they do commit publique force, they are to be excōmunicated vntil they be reformed, and they may be depriued for such publique offence c [...]veritatis ext. de dolo & contum: &c. Inquisitionis, &c. qualiter & quando, extr. de accusat. &c. licet Heli extr. de simon. &c. Generali de elect. lib. 6..

But what if the Magistrates in the 2. Diuision. countrie be negligent and remisse in punishing such offences, hath not your Lawe Codicgnostes prouided reformation for them.

Yes, if any Iudge will not do iustice 1. The punish­ment of the Iustice not pu­nishing such offēces by the Ciuill law. in the repressing and punishing of such offen­dors, but shall either differre the punishment, or neglect to giue sentēce, or shal partially demeane himselfe in the smothering of that fault, or shall not inflict the punishment due to such offences, the said magistrate is by Lawe to bee made infa­mous, to be depriued of his office, & to be made vncapable and vnable for any other office, and [Page 84] further he is to be fined a C. li. in gold L. fin. C. ad leg: Iul. de vi public. vel pri­uat..

Our Law is likewise seuere a­gainst 2. That the Iustices of Peace by the Common law are punished for remiss [...]nes of punishing others, for the afore [...]aid faults. such: for if the Iustices of Peace & sheriffe or vndersheriffe do record the force, and do not commit the riotors to prison, or if they commit them, and do not record the force, they shall pay euerie of them a C. li. for the statute is that they shall recorde and cōmit 13. H. 4. c. 7., and if any riots, routs, or assemblies of people bee done against the Lawe, two Iustices of Peace at the least with the Sheriffe or vndersheriffe must goe to the place where the riot &c. is cōmitted, & they must take the offendors &c. & this is by the statute of 13. H. 4. c. 7. but notwithstanding this statute Fineux chiefe Iustice was of opinion 14. H. 7. that forso­much as the statute is but merely in the affirma­tiue, that therefore one Iustice of Peace may goe & take power with him, and represse the riotors &c. and he needeth not to stay for his cōpaniōs, nor for the Sheriffe, nor &c. because the statute is a beneficiall Lawe made to auoid a mischiefe which might otherwise happen if one Iustice should stay for his companiōs 14. H. 7. 10. ꝑ Fin. Fitzh. Iust. de P. 16▪, and the Sheriffe and Iustices of Peace may take with thē as many men in harnesse as are necessarie and gunnes &c. and may kill the riotors if they wil not yeeld thē ­selfes: and if the two Iustices which be nearest vnto the place, where the riot is committed, and the Sheriffe or vndersheriffe do not execute the saide Statute of 13. Henr. 4. they shall euery of them paie an hūdred poūd, as before I haue said and the other Iustices of the same countie, where [Page] the riot is committed shall bee fined for the not repressing of the riot, if there bee any de­fault in them 23. Eliz. Crompt. I. P. 54., but in such case it seemeth that the Iustices of the Peace should haue notice of the riot giuen vnto them, or els that it should be so notorious that by common intent they may take notice of it Crompt. I. P. 54. b. Dy. 210..

Wee will proceed no further in this matter, but will now passe to the title conse­quently ensuing.

Let me know Codicg­nostes, before we enter into parti­culer 1. Diuision. inquirie of the thinges, which are in themselfes, and ipso facto treason, what in auncient times, & other common weales, hath bene taken to be treason, & how hath it bin punished, for I thinke that will giue great light to matters subsequent, because that which is past was the originall of that which is present, and it is good in matters of Common weale to haue a diligent retrospect to the course of former ages. 1. The reason is shewed by Codicgnostes wherfore trea­son is aptly tearmed a fault against the dignitie of man.

It is true: and first I will shew how aptly you haue tearmed this offence to bee a crime or fault against the dignitie of man: for as nothing should more debase mans nature, thē if [Page 85] against mā, whom God hath made little inferiour to the Angels, whom he hath crowned with glo­rie & worship, whom he hath made Lord of the workes of his hands, and hath put all things vn­der his feete: Psal. 8. ver. 6. 7. 8. 9. If I say against him the beastes of the fielde should rage and rebell, as it happened in Roome, when as a preamble of the fatall con­fusion of that Citie, all the beastes subiecte and necessarie to mans vse, namely dogges, horses, asses, oxen, &c. would not suffer their Masters to touche them, or come neare them without de­struction and perill: Orosi: lib. 5. Iuli: Obsequēs in lib. de prodit D. Augustin: lib. 3. de ciui­tat: dei c. 23. so surely when they, who are in subiection to a Prince or monarche, doe violently and mutinously breake the bonde of o­bedience and loyaltie, and will doe as they list, and thereupon rebell, and trecherously conspire against the life of their Prince, this is against the dignitie of man, who being Lorde of brutishe creatures, doth imitate them, and becommeth as wilde and sauage and disobedient as they. Now I will call to remembrance, how this disloyaltie or trecherie in the highest degree, hath in other ages receiued censure and punishment. Traytors 2 The punish­ment of treasō in auncien [...] times. were alwaies loathed, detested, and sharpely pu­nished of the Romanes: and treason was accōp­ted farre more greeuous then paricide, Dionis. Ha­licarnass. tit: 2. & 8. somtime they were throwne headlong downe a rocke, as Cassius: sometime hanged, as Lentulus and o­thers of Catilines seditious societie, or by some speciall kind of infamous death executed, as Sue­tonius reporteth, Sueton: in Neron: c. 49. and they which conspired a­gainst Augustus, when he was newly come to [Page] the Empire, bore the smart of their treacherous designements, and were seuerely punished for the imagination of that heinous mischiefe. Dio Nicae: in August: This Iustice of the heathens is iustified by diuine au­thoritie. Non mittam manum meam in vnctum do­mini. 1. Reg. c. 24 Quare non timuisti mittere manum tuam vt occideres vnctum domini: 2. Reg. c. 1. for surely the maiestie of a Prince offended and hurt, doth require a deepe reuenge: and if Nemesis, that is Reuenge it selfe, doe take sharpe punishment of those which of­fer any violence to the person of an Embassador, Appian [...]in select: representing a Prince or monarche; with what extremitye of payne are they to bee tortured, which imagin or goe about to compasse the death and downefall of their liege and dread soueraigne: Wherefore worthily doth the excel­lent Lawier out of the Code applye these titles of Maiestie vnto kings & Monarches: Celeste oracu­lum, diuinitas, Eternitas, Eternales vultus. Alber [...]c: Gentilis lib. 2. lection: & epi­stolar: c. 14. Maiestie therefore, which by some is said to be the daugh­ter of honor & reuerēce, ought alwaies, and in al things to be respected with honor & reuerence.

Shew me I pray you what may pro­perly 2. Diuision. and iustly be termed treason by your lawes. 1. The diuerse kindes of trea­son by the ci­uil law.

It is treason when any thing is sedici­ously attempted against the Prince or common weale: Likewise to help the enemies of the king, or common weale with munition, money or coū ­sail, likewise to take any castles, fortresses or holds against the king or common weale: also to suffer him to goe out of prison who is accused of this fault, and he that coineth or causeth false mony, l. 1. 2. 3. & 4. ff. ad l. Iul: ma­iest: & l. quis­quis C. eo: & C. de fals. mo­net: l. pen: which may be committed diuerse waies. I. Whē [Page 86] he coineth money, which hath no authority to 2 The diuerse kinds of trea­son by coyning of money in the ciuil law. coine, l. qui falsam. l. qui nomine & l. lege Cor­nelia testam: ff. ad leg: Cor: de fals. because to coine or forme money ad rega­lia pertinet, C. vnico, quae sunt regalia in vsib: f [...]ud: l. 2. §. de inde cum aeratium ff. de origaur: 2. When money is coined in an vn­lawful & disproportionable matter, as when the diuers impressions of particuler coines of siluer and gold are stamped vpon copper, brasse or tin, or pewter, l. 1. in prin: C. de fals. mo­net: & l. quicū ­que nummos ff. ad l. Corn: de fals. 3. When one that hath authority or licence to coine mony with a peculiar impressi­on or character, doth vse a strange and vnlawful stampe of his owne deuising, d. l. lege Cornelia te­stam: in princ: 4. When the law­ful & ordinarie weight of the coine is falsified, & altered by one that hath no authority to alter. c. quanto de iur [...] iur: extra. & l. 1. de vete­ris numism: potest. C. li. 11. 5. To vtter or cause to be vttered false mony know­ing 3 The punish­ments of tray­tors by the ci­uil law. it to be false, l. lege Cor­nel: cauetur. ff. de fals. In all which cases, except the last, the offenders doe suffer punishment of death, some of them being burnt by fier, gloss. in l. 2. C. de fals: Mo­neta: sup verb: flammarū in 3. solut. ad ar­gum: l: 1. other some be­ing throwne to deuouring beasts, l: quicun (que) cū sequent: ff: ad leg: Cor: defal: & their goods be confiscated, l: si quis in prine: C. de fal: mon: but he which vttereth false coine is punished with seruing all his life time to them which dig in mines for mettal, ff. de varijs & extra or: crim: and the punish­ment of them that clippe mony is by our law ca­pital. d. l. quicun (que) ff. ad leg: Cor: de fals. But he that coineth mony with the impres­sion of a strange prince is not punished with a na­tural, but with a ciuill death: for he is punished with perpetual exile, & his goods are cōfiscated, for euery Prince of euery nation and kingedome hath his seuerall stampe and coine, and so they had in auncient times: the Aetolians did giue for 4 The seueral coines of forain princes in aun­cient time. their coine the image of Hercules breaking with his club the hornes of Achelous: the Thebanes did giue the twibil of Hercules: the Trachinians Hercules sitting: the Macedoniās Hercu: his club b l: 3. ff: eod; [Page] and the hornes of a goate: the Thasians, Bacchus crowned, and Hercules their Deliuerer: the Dy­means a goate, which did treade vpon a frogge: the Corinthians Pegasus, with Neptune hauing a three-forked mase in his hand, sitting vpon him: the Naxians did giue Bacchus with a lōg beard, & a Satyre with a potte in his hand: the Metapon­tiniās Ceres with a sheafe of corne: the Baeotians did giue a Fly with a Harte, and Bacchus his ma­zarde with a cluster of grapes: the Dardanians did giue two cockes fighting, the Athenians an Owle: the Argiues a Wolfe. Alexander the great gaue for his coine the image of Bucephalus his horse with victorie hauing winges: Pyrrhus, Pal­las hauing a speare in her hand sitting on a thron: August. Caesar the starre of Capricorne, vnder which he was borne. Pollux. So­phocles inter­pres. Hadrian: Iunius. de re nummar. in Nomen: clat:

I will particularly examine all the precedent matters of your last discourse, which haue any resemblance or be of any vse in our Lawe, sithence order enforceth me to speake of disorder, and of the disloyal, and seditious, and traiterous attemptes against the person of the prince, and the good estate of the common weale, which may fully appeare by a statute made 25. E: 3. de proditionibus ca. 2. and likewise by the com­mon Law, for as Thorpe sayeth 22. E. 3. 22. E. 3. p. 49 it is trea­son 5 The diuerse kindes of trea­son by the cō ­mon Law. to succor the kings enemies, & to leuie warre against the King in his Realme, or to bee adhe­rent to the Kings enemies in his Realme, by gi­uing them aide and comfort in his Realme or o­ther-where is made treason by the abouesayde [Page 87] statute, as may appeare by the case of Sir Nicholas Throgmorton, who was arraigned for being of Counsaile with Wyat in leuying his seditious warre. 1. Mari. Dy. 98. Crom. Iust. P. 40. And D. Storie being beyond the sea, and practising with a forreine Prince, to inuade the Realme and to worke the death of our dread so­ueraigne Lady the Queene, was iustly attainted of high treason, 13. Eliz. 298. Dyer. and Sherleys a French man, tak­ing with Stafford the Castle of Scarborough re­belliously in Yorkeshire, was arraigned in the Kinges Bench vpon an indictement of treason, which was contra ligeantiam suam debitam. 4. Mari. 144. Dyer.

It seeme [...]h to me that these wordes should onely extende to lieges, and subiects.

Nay they doe extend to any one 6 How farre forth this word (leage­ance) doth ex­tend by the, common law. who is in the Realme in the time of peace, and he that hath the benefitte of the Queenes peace (forrainer or other) ought not to violate or di­sturbe it any way, but if it had beene in time of war betwixt the two kingdomes, then he could not haue beene arrained, but should haue beene ransomed: but he that in a forraine common­weale, 4. Mati. 144: Dyer. 7 How the Q. enemies are to be pun [...]shed by the com­mon law a­greeing with the law of God. where he is permitted to soiourne, will raise tumults, and kindle rebellion, deserueth to be punished as a rebell, and therefore it is tru­ly, and iudicially said of Albericus Gentilis: Cri­minosos, violentos, ne quidem veri dei tuetur altare, quos neque intuetur deus, nisi iratus, Alberic: Gentil. lib 2. de Arm. Rom. c. 2. And againe: Innocentia praestat securitatem. Alb: Gentil: lib. 1. de Arm: Rom: c. 2. And therefore the Romanes did well in arraigning Bomilcar of treason, who being a straunger conspired a­gainst their state: Salust: in Iu­gurth. But it is true which before I [Page] sayd, that if warre bee betwixt two Kinges, as namely the King of Fez, and the King of Polo­nia, if the king of Polonia doe in his owne king­dome take prisoner one of the subiectes of the King of Fez working mischiefe against him, this is lawfull: but to arraigne him or put him to death is vnlawfull: for a prisoner so taken is to be putte to his raunsome, but not to open shame as a traytor: and therefore the Prophet sayd vn­to the King of Israel: An quos captiuos abduceres, gladio tuo & arcu tuo eos percuteres? Eliseus by a wonderfull miracle did make the Syrians ene­mies to the King of Israel his captiues, whom the King woulde haue slaine, but the Prophet did forbid him by this argument, that they which are taken in warre ought not to bee slaine, much lesse these whom God had giuen vp into his hands. 4. Reg. c. 6. Ioseph. 9. Am­brosi: 1. de of­fic: 29.

Indeed so is our law, which saith, Ho­stem 8 How ene­mies are puni­shed by the Canon law. pugnantem necessitas perimat, sicut resistenti vi­olentia redditur, ita victo, vel capto misericordia de­betur: c. 3. 23. q. 1. and this Lawe hath beene practised of the Grecians, Plutar. in apoph. Romaines, Alex. 4. gen. 7. Thessalians, Illeri­ans, Triballians, and Bulgarians, Nic Grego. lib 4. 6. and to this pur­pose it hath bin said, vendere cum possis captiuum, occidere noli. Horat. ep. ad Quin.

I haue interrrupted you Anglonomo. But I pray you continue that course which you propsed to your selfe in comparing the assertions of the Ciuil Law touching matters of treason, with your rules of common Law.

Whereas he hath said that to suf­fer [Page 88] one to goe out of prison for treason which is impeached for that crime, is treason: that is also agreable to our Lawe established by Statute: whereof I will recite the wordes: de prisonarijs prisonam frangentibus dominus rex vult & precipit, quòd nullus de cetero qui prisonam fregerit subeat iudicium vitae vel membrorum pro fractione prisonae tantùm, nisi causa pro qua captus, & imprisonatus fue­rit tale iudicium requirat, si de illa secundum legem & consuetudinem terrae fuisset conuictus: 1. E. 1. c. 2. Rast. Felony 2.

Doe ye then accompt euerie suffe­sering of a prisoner to eschape, to be a breach of prison?

Yea, for if a man arrest one for 9 How break­ing of prison is taken in the common law. felonie, and after let him goe at large, whe­ther hee will: if hee be arrested for Felonie it is Felonie, if for Treason it is Treason, if for a Trespasse it is a Trepasse & sic de singulis. Stamf. lib. 1. c. 26.

Well, I pray you proceede in your purpose.

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, Bract: li. 2. ti [...] de crim: laes, mai: Britton, Britt. fol. 16. and Glan­uille, 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 [Page] the dominions of it: 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: 6. H. 7. 13. 1. R. 3. 1. and the forging and counter­faiting of coyne of another Realme is made trea­son awel as the coūterfaiting of the coyne of this Realme. 4. H. 7. c. 18. 1. & 2. Phi: & Ma: ca. 11. But then it must be currant by pro­clamation in this Realme, 1. M [...]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 cōming, 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. shalbe taken and adiudged to be trea­son by vertue of this act &c. 5. Eliz. c. 11.

I pray you now declare the forfai­tures and punishments of these seueral treasons.

The iudgment of him that is con­uicted 11 The seue­ral punish­mēts 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. 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 [Page 89] she shall be drawne on a hurdle and burnt, Stamf. ibid, & 23. lib. Ass. pl. 2. Com̄ 31 6 and the offendour shall forfait his goods and landes to the King of whosoeuer the landes are hol­den, 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, 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, 5. & 6. E. 6. ca. 11. Stamf. lib. 3. c. 26. and with the lande which a man forfaiteth, he shall forfaite his [...]uidences which concerne the lande, 49. H. 6. 15. and if a man leuie warre a­gainst the King, and is slaine in it, yet his lande shall be forfaited, 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, Stamf. lib. 3. c. 19. But such as clippe, washe, round, or file money are onely to forfait their lands during their life: 5. Eliz. c. 11. but such offence causeth not corruption of bloude, nor the losse of Dower.

Now time and order doth require that ye should speake of Homicide.

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.

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: 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, Iodoc: Dā ­ [...]ouderius in re [...]ū criminal. prax. c. 78 & 79 and these sorts of manslaugh­ter may be committed with clubbe, in d. §. Diuus l. 1. ff. ad leg. Corn: de sicar: stone, sword or dart, with arrowes, launces, pertisanes, iaue­lins, or with gunnes, Iusti: de pub: iudic: §. Itē lex Cornelia. or a man may be killed by poyson, 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, 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, whē a man killeth himselfe, & such offendors are punished by our Law according to [Page 90] the quality of their minde, whereby they were moued: for if they kill themselues through griefe or impatience G. de Bon [...] eorū qui mort: sibi consc: of some infirmitie, no punishmēt 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 they kill themselues vpon any other cause, their goods are confiscated, Authen: bo­na damnatorū C. de Bon: dā ­nat: Nouel: 134. c. fin: ff. de iur: sisc: & C. de priuil. sisc. tit̄ lit: and their bo­dies though they be dead, and so impassible, and free from punishmēt, yet for the terror of thē that liue, they are thus ordered. The body is drawne out of the house, wherin the man did kil himselfe, with ropes, not by the dore, but through some hoal or pit made vnder the threshold of the dore, [...] The pu­nishment of selfe-slaughter by the ciuil law. because it is vnworthy to be brought out the same way, which the man whilest he liued, did vse: and hee is drawne by a horse to the place of punishment or shame, where he is hanged vpon a gibbet, and none may take the body downe, but by the authoritie of the magistrate: Dāhouder. in prax. rer: cri­minal: c. 88. and none may weare any mourning roabe for such an of­fendour. l. liberorum §. Pomponius in versic: nō so­lent. ff. de his qui notan: in­famia. The last kinde of Homicide is Ho­micide 6 Homicide by casualtie is described. per infortunium, or homicidium casuale, as if a Tiler with one of his tyles, which he vseth about his worke, doe hurt or kill one that pas­seth by, hee is not to be punished for this hurte or fault, if he did giue warning before in cōueni­ent time, Argum. l. cū quis l. si solu­tu [...]us ff. de so­lut: l. 1. in prin­cip: & l. de pu­pillo. §. in p [...]u­ [...]iū, ff. de no [...]. oper. nuntiat. the like may be said of these which vse bowes, or crossebowes, which loppe trres, or cut them downe by the roote, if a man be slaine thereby, l. si putator: ff. ad l. Aquil: ff. Item si puta­tor, de l. Aquil: So it is of them that ride a race, if they giue warning, and so it is of Carmen or Coach­men, and so it is of others, whilest they doe [Page] [...] [Page 90] [...] [Page] such thinges as are permitted by Law, yet such persons must susteigne an arbitrary punishment, because so great a mischiefe ensueth, Damhorder rer: criminal: prax: cap. 85. and so it is of others which throw sodainly, staffes or stones at birds or dogges, and by that meanes hurt or kil a man, Damhor­der ibid. but yet God would haue man to be free from this fault, and therefore such offendors had Asyla, temples of mercie permitted vnto them as things necessary for their absolution. Deutero. 19. ver. 5.

It seemeth that wee make more 7 Anglo. Tak­eth exception to the diuision of homicide by the ciuil law. kindes of Homicide then you, for with vs there is one kinde of Homicide of malitious purpose, which we call murder, an other which is com­mitted vpon the sodaine in a heate and furie of minde, which we terme Manslaughter, a thirde which wee call se defendendo, a fourth per infortu­nium, the fifth Homicide of a mans selfe, whereby the offendor is called Felo de se.

Indeede Codicgnostes you haue not, as to me seemeth, comprehēded in your diuision all the particuler kindes of Homicide: for you seeme vnder your first member, which is the wil­full killing of a man of malice forethought, to comprehend manslaughter, which is done in the heate and furie of anger and sodaine falling out.

In deed so I did meane it, for our most 8 An other diuision of ho­micide by the ciuil Law. compendious and complete diuision of Homi­cide is thus: either it is done destinatò, or necessa­riò, or casu destinato, when a man of malice pre­conceiued doth kill himselfe or an other man, as Nero, Iudas, and others, which kinde of man­slaughter is impious, because the power of life & [Page 91] death is Gods and not ours, and therefore is not to be vsurped by man, wherefore we haue a ve­rie good rule. Nemo membrorum suorum dominus est: l. liber homo ff. ad leg. A­quil. & l. lex Cornelia §. Constitutū ff. ad l. Corn. de sicar. Necessariò a man committeth manslaughter, when he doth it in his owne defence, and to beate backe force by force, which kinde of man­slaughter being done by necessitie, & not by will, deserueth pardon according to the saying:

And it is a Maxime in our Law: Quod quis (que) in tu­telam corporis sui fecerit, iure fecisse existimatur: l. vt vim. ff. de inst. & iur. Casu Homicide is committed, when a man kil­leth one not purposing that, but doeing an other thing, as the Hebrewes doe report of Lamech, that meaning to strike a wild beast he killed Cain with his darte, Ioh. Wolph. in Comm. ad Deuteronom. lib. 2. and so you may perceiue that we comprehende that which you call murder, and that which you call manslaughter vnder that kinde of Homicide which is committed destinatò.

I doe rather perceiue it, then approoue it: wherefore I woulde haue you Anglonomoph. to shewe the difference betwixt these two kindes in their seuerall natures, and what difference they holde from other kindes of Homicide, that so I may more easily vnder­stande wherein your Lawes agree or disagree, and likewise the reasons of the said accordance and disagreement.

The dyfference of killinge [Page] men voluntarie and inuoluntarylie is verie aun­cient. 8 The diffe­rence of kil­ling men vo­luntarily and inuoluntarily is shewed to be auncient. Genes. 9. & 4. Exod: 21. Deutre. 5. Le­uit. 24. Num. 35. Deuter. 19. And Demosthenes sayeth, that the Phae­nicians dyd punnishe such as did voluntarylie kill menne with death, and with the losse of all that they had: but such as did vnwillinglie cause the death of a man, they did pardon, and forgiue: Demost. in orat. contr. Mid. But the difference betwixt mur­der and manslaughter hath not beene hereto­fore much opened, or effectuallie stoode vp­pon, which because it is large, and of great compasse in our Lawe, I will (God permitting mee) by some cases make cleare and apparant and then discende to the discription of the o­ther 9 The defini­tion of murder by the com­mon law. kindes of Homicide. Murder is when a man killeth an other feloniously vppon malice fore thought, Pl. Com̄ 261. and it is not materiall whether hee kill him openly or secreatly, or whether he that is slaine bee an Englishman, or of other nation, if hee liue in this Realme vnder the Queenes protection, Stamf. 18. and hee can not haue 10 Malice whereof mur­der commeth, is shewed to be twofolde and diuerse ca­ses are put thereupon. the benefitte of Clergie and Sanctuarie, 22. H. 8. c. 1. and there bee two sortes of malice which are mo­tiues to this horrible acte, namely a malice im­plyed and a malice expressed: malice implyed is when one killeth an other sodainelie, with­out any defence on the part of the other: ma­lice expressed, when it is knowne that there is malice betwixt the parties: Crompt. Iust. P. 19. I wil illustrate both these seuerall kindes with seuerall cases, begin­ning first with malice implyed. A Gaoler had malice to a Recusant who was in his warde, be­cause he suspected that he was too familiar with [Page 92] his wife, and after the prisoner purchased to goe out of prison, as hee went before for his dis­porte, and the Gaoler suddenly stroke the pri­soner vpon the head, so that he fel to the ground, whereupon he died, and this was adiudged mur­der at the Assises at Chester: Cromp. Iu. P. 20. And if a theefe rob an other man, and kil him, this is murder, though he did neuer see the man slaine before, & though hee had neuer inueterate malice against him: yet hee had malice before the murder to this in­tent, that hee woulde rather kill him then bee disappointed of his purpose. Com. 474. Two fought to­gether of malice forethought, hauing purpose to kill, and a straunger came to part them, and one of them killed him, this was felony in them both, and they both were executed because they had an intent the one of them to kill the other, and this acte came originally of that: 22. E. 3. Co­ [...]on̄ 262. & Dyer 120. And if the Iu­stices of Peace with the Sherife come to sup­presse riotours, and one which attendeth vp­pon them is slaine by one of the riotors, this is murder in him, & in all the other riotors which are present, Cromp. Iu. P. 21. And if a man without quarrell offered doe kill one of the standers by this is murder, Crompt. Iu. P. 22. proceeding from implyed malice, Lam. E [...]re­narch. 255. Thus farre of malice implyed: malice expres­sed may more easily appeare vnto you, as if a man bring an appeale of felony against B. and the said B. meeteth the plaintife and they quar­rell together vpon the vsing of the said appeale, and fight, and B. killeth the plaintife, this see­meth to be murder. Cromp. Iu. P. 21. and if a man be attainted [Page] of murder hee shall suffer paine of death, and 11 The pu­nishment of murder by the common law. shall sorfaite landes and goods and chattels: but manslaughter as it is in facte lesse heinous, so it is 12 The dis­cription of manslaughter by the com­mon law. in punishment lesse greeuous: for it is then com­mitted when two or more fight together vpon the suddaine without malice precedent, and the one of them killeth the other, in such case 13 The pu­nishment of manslaughter by the com­mon law. the offendour shall haue his Clergie, Cromp. I. P. 23. Com. 261. but shall forfaite his goods, and if two doe fight toge­ther without malice precedent, and after diuerse blowes giuen, the one of them flyeth a greate space from the other, and the other goeth into a house verie neare for a weapon, and pursu­eth incontinent, and killeth him that flyeth, this is but manslaughter, because it was done in a continuing fury, Crompt. Iust. P. 23. and two did fight together vppon the sodaine without malice preconcei­ued, and one commeth to part them, and the one of them, which fighteth killeth him, this is manslaughter in him, because the fighting was an vnlawfull acte: 22. Ass. Co­ron̄. 180. but if they had fought to­gether Ex malitia precogitata, and the one of them had slaine him, this had beene felonie in them both. (22. E. 3. Co­ro. 266. Stāf. 16 Manslaughter se defendendo is, where 14 Māslaugh­ter se defenden­do by the com­mon law. two fight together vpon the sodaine, and be­fore a mortall wounde on either partie, the one flyeth vnto the wall, or to some other place, beyond which he cannot passe, for the safegard of his life, and the other pursueth him, and hee which flyeth killeth him that pursueth, this is manslaughter in his owne defence, 3. E. 3. Coro. 284. & 286. and it is not materiall in this case which of them begunne the [Page 93] affray, or which of them gaue the first stroke Stamf. 15., and the offendor in this case shall forfeit his goods 4. H. 7. 2. 43. Assis. pl. 3. 21. E. 3. 17., homicide by misaduenture is no other 16. Homicide by misaduen­ture. then hath bene described by Codign. for he hath recited out of the Ciuill law almost all the cases which wee read in our lawbookes: and his di­stinction likewise is of force and effect with vs: for if a man do an vnlawfull acte, and any misad­uenture 17. The pu­nishmēt of it. do happen vpon it, by which a man is slaine, this is felonie though it bee not murder: and for euery homicide by mischance a man shal forfeit his goods 22. Assis. cor. 180. Stamf. li. 1. c. 8., likewise hee that is a homi­cide 18. Homicide of a mans selfe and the pu­nishment of it. of himselfe, is such as hath bene before dis­couered by Codicgnostes, and he by our Law shall forfait his goods Fitz. Coron. 301. 362. 426..

I pray you let mee know this Co­dicgnostes, 2. Diuision. whether he that counsaileth, comman­deth, abetteth or assisteth a murderer, ought by yuor law to be takē and censured as a murderer?

Yes verily, for homicide is either 1. Homicide is shewed to be twofold in the Ciuill law, consili [...], and operis. consilij or operis, and therefore if a man counsaile one to doe a murder, who if the counsaile had not bene would haue done it, he that executeth the counsaile, and he that giueth the counsaile, are both in the eye of Lawe murderers c. sicut dig­num 1. §. qui verò de homi­cid. Extra & cap. fin. eo. tit. lib. 6. & l. qui seruo. ff. de furt. &c. Nul­lus ex consilio de regal. iur. in sexto.. But when it is done by commaundement by persons executing the cōmandement, which otherwise would not haue done it, then the commaunder onely is accompted guiltie of homicide l. 3. §. item versi. item qui author. ff. ad leg. Corn. de sica [...] cap. fi. de homici. lib. 6. l. In hoc iudi­cio. ff. de seru. corrupt., and if one lende one a sworde to kill an other man or himselfe, he is guiltie of homicide l. nihil inter­est. ff. ad leg. Corn. de sicar: l. 15. qui opem. ff. de furt: & in §. interdum quoque Iusti. de oblig. quae ex quas. delic. nascuntur., & if a mā be cooperant in the act, he is a principal offendor Gloss: c. sicut l. dignum §. illi vero verb: mors de Ho­mic: extra..

By our Law the counsailor, cō ­mandor, 2. By the Cō ­mon lawe the counsailor and assistor in murder are accōp­ted principall offendors. or assistor are without any such diffe­rence or limitation as you haue made, guiltie of homicide, & principall offendors: for al that be present, ayding, abetting or comforting him that doth murder, are principal offēdors though they giue no stroke, for the stroke of him that smiteth & woundeth is the wounding, and striking of all the others in law 4. H. 7. 18. Comm. 100. 3. E. 3. Coro. 309 13. H. 7. 10.: & therfore they which come in the assemblie or companie of others into any place where any euil is done, be it homicide, rob­bery, or any other misdemenor, shal be held prin­cipal offendors though they stād apart, & do no­thing 2. E. 3. Indi­tem. 22. Stamf. 40. [...]ōm. 475. 3. E. 3 Cor. 314 & 350., but in these cases it is necessary that they be confederate in the fact: for if they be not cō ­federate, they shall be punished by fine, and no o­therwise 8. E. 2. Cor. 395. & 293., but if they leuie hue & crie & stretch out their handes to take the offendors they shall not be fined Stamf. 40., and he which is within age shall not be fined in such case 14. H. 7. 31..

I pray ye shew me whether they that 3. Diuision▪ kill men by witchcraft, or make their bodies to languish and consume away, are punishable by death in your Law? for some be of opinion that there be no witches.

They may as wel thinke that there be 1. Homicide by witchcraft is described. no diuels, surely Europe is too ful of such wicked wretches, which either by magicall artes calling vp damned spirites, or corrupting the elements, which God hath made for the vse of this life, do worke the destructiō of many innocēt persons, or els by acquainting thēselfes with familiar diuels [Page 94] do effect the like mischiefe, & their iudgmēt in 2. The punish­ment of wit­ches, and ma­gicians by the Ciuill law. our law, because they are such strāgers to nature, is, quòd feralis bestia eos absumat l. multi. C. de malefic. & mathem., & such as by I­mages of waxe inchaunted do cause the death of any mā, if they be cōuicted & do cōfesse the fault they are punished as is before said, but if they wil not cōfesse their flesh is torne frō the bone with nailes & with hookes l. si excepta § si quis C. de malefic., & not onely witches, but 3. They that haue asked counsaile of witches haue bene in aunci­ent time pu­nished. euen such as haue asked counsaile of witches for the remedie of diseases, haue bene in former times punished. For Ammianus reporteth that in the time of the sonnes of Constantine, & the other Emperors, which next succeeded thē, if any man did weare about his neck any thing as a remedy of the feuer quartaine, or any other infirmity, he was punish­ed capitally as accessarie to witchcraft Ammian. Marcellin. lib. 19.: & he telleth in an other place that a certain simple old womā, because shee was wonte to cure feuers by a kinde of in­chātment was put to death as guilty of witchcraft: and a yong mā in the bath putting his hands sometime to a marble stone, and sometime to his brest, and rehearsing withall, certaine letters of the Alphabet, imagining this to be a good remedy against the payne of the sto­mache, was put to death by the sword Ammian. lib. 29..

The Romanes it seemeth were in this, strāgely opinionated: for the Graeciās & others did approoue such medicines. Pericles did hold that diseases might be cured by hanging certaine written bookes about the necke of the diseased Plutar. in Pe [...]ic.. And Bion the Atheist was of the same opiniō Diogen. La­ert. in vit. B [...]on., the Indians (as Strabo testifieth) do accōpt this the onely Phi­sicke Strabo lib. 15., and Vallesius reporteth that charmes haue bene called remedies of Cato, Varro, Theophrastus, [Page] Serenus, Trallianus and of many Physitions of I­talie, Greece, and Arabia Valles. lib. de sa. philos.. And Vlpian sheweth that many haue affirmed vnto him, that such charmes & inchantments haue done thē good l. 1. §. Medi­cos, ff. de extr. cogn., and we know that there was a kind of exorcisme 4. An obiectiō is made of ex­orcisme vsed in the church. and we know that there was a kind of exorcisme or coniuration vsed in the Church, whereby the diuels were restreined from doing hurte vnto men l. 6. C. de Ep: & cler. Alciat. lib. 2. parerg. c. 23., and Iosephus saith, that this was Salomons inuention Ioseph. lib. 8. antiquit., wherefore me thinkes they that vse such things, or worke any good effect by such things, should in no sort be punished. For (as A­puleius saith) Nihil quod salutis causa fit, criminosum est Apulei. apo­log. 1..

It may be that Codicgnostes had ra­ther beleeue the cēsures of Romane magistrates in matters of Iustice, then the opinions of Ro­mane and Graecian Philosophers in table talke and common speech. I know by good authority these thinges are condemned, and therefore it is said of such men and their medicines in the Ca­non. Quae alij scelera, isti remedia nominant c. Illud quod 26. q. 2.: And Tacitus clearely affirmeth that such things medi­corum disciplina condemnat Tacit. lib. 1. histor.: And Plutarch calleth such practises Insanias Plutarch. in pericl.: and if Lucian be of any authoritie with you, he saith, Per verbula & in­cantationes sanitatem operari non credo Lucian. in Philopseud.. Plinie like­wise speketh to the same purpose in these words: Maximae quaestionis & semper incertae est, valeantur aliquid verba & incantamenta carminum in meden­do: sed viritim sapientissimi cuius (que) respuit fides Plini. lib. 28. c. 2.: As for these exorcismes heretofore vsed in the Church, Bodinus teacheth that the Prophets ne­uer [Page 95] vsed in their times any such matter Bodin. lib. 3. daemon., and he 5. Answere is made to the a­foresaid obie­ction accor­ding to the o­pinion of Bo­dmus. saith further, that the primitiue Church neuer vsed them, and he disalloweth the testimonie of Iosephus and disprooueth it in this point: but si­thence the matter is so doubtfull, I do not thinke that the law-maker ought to punishe the vsing and applying of charmes or such things, which are for that purpose hanged about the necke of the sicke bodie, if they be innocently done and without mixture of magicke or euill arte, with death: but it principally apperteineth to diuines and preachers to extirpate such superstitions out of the hearts of men, and to teach them that it is irreligious and against the glorie of God, to goe for remedie to such dumbe thinges and not to God himselfe, and that false is that saying of Apu­leius, Nihil quod salutis causa fit criminosum est: for there is nothing subiect to the vse of man so good, but it may be abused: yet surelie the Lawes ought not to extend their leueritie against this last recited faulte, if no greater fault bee ioyned with it.

I am reasonably taught for this matter: but I pray you shew me whether witches haue any such power as hath beene before spo­ken of.

Doubtles they haue and that may be 6. The great and straunge power of witchcraft. prooued by innumerable authorities. Virgil saith that they haue this power: Sistere aquam fluuijs, & vertere sydera retrò Virgil. 4. Aenedi.. And againe, Carmina vel coelo possunt deducere lunam Virgil. in Pharm.: and Claudian affir­meth the like, Thessalidas patrijs lunare venenis in­cestare [Page] iubar. But most fully, most deepely, & most 7. Lucan is cō ­mended for his ample dis­closing of the detestable se­cretes of for­cery. exquisitely doth Lucan in his sixth booke de­scribe, and discourse of these things.

These are the friuolous imagina­tions of poets, which maie lie for the whetstone.

But in manie thinges, and doubtlesse in this, they doe neither lie nor dallie: for wher­as Virgil saith, Atque satas aliò vidi traducere mes­ses, this is no flying fancie, but the sage and graue determination of the makers of the Lawes of 8. The lawes of the twelfe tables do con­demne witch­crafte. the twelfe Tables where it is saide in the olde Latine, Qui alie­nas fruges excantaue­rit quiue ali­enam segetē pellexerit. Quei alienas fruces excantassit queiue alie­nam secetem pelexerit: and therefore vaine is the surmise of Seneca when hee saith of such mat­ters, 9. Seneca his opinion of charmes and inchantments is disliked. Rudis adhûc antiquitas & attrahi imbres can­tibus, & repelli credebat: quorum nihil fieri posse tam palam est, vt huius rei causa nullius Philosophi sohola intranda sit Senec. lib. 4: naturali quae­stion. c. 7.. Whom S. Augustine doth iu­dicially 10. S. Augu­stine confuteth the opinion of Seneca. confute in his eight booke De Ciuitate Dei, where he absolutely affirmeth, Haec maleficia generi humano pernicio sa esse non dubium est D. Augustin. lib. de Ciuit. dei 8. c. 19.. And 11. It is like­wise disproued by Pausania. Pausania a credible writer witnesseth, that hee hath seene men, Qui sacris & incantamentis gran­dinem auerterent Pausan. li. 2..

If such hurt be done, it is done by the diuell, & the wicked spirits his ministers, which suggest such thinges to selie old women, and are readie to performe them at their commaund: but what fault can be iustly imputed to these womē. 12. Witches are prooued to be apostates & in what man­ner they be­come apo­states.

Surely their offence is very great, for they are most abominable apostats, & workers of extreame mischiefe, they haue denied Christ and [Page 96] vowed thēselfs to the diuel, which māner of vow is done either secretly or expresly: secretly, whē one witch or cōiurer voweth with an other con­iurer or witch, that in consideration that A. hath promised to B. that he shall do great and meruai­lous things, as namely that he shall know future things, & do other things, which others shal not be able to do, B. therfore repromiseth to A. that therfore he wil renoūce the catholike faith, that he will obstinately despise the holy Sacraments, that he will with all his strength & power wor­ship & cleaue to his maister, and will giue to him all kind of adoration vnder the forme of idols: & this is called a secreate protestation because it is not done to the Diuell himselfe but to his seruaunt c. qui sme saluatore. 26. q. 2. Sum: con­fession: eo. tit. q. 3. & 6. & q. 10. in sin., the other protestation is called the expresse protestation and it is double, either pri­uate, or solemne & publicke, the solemne or pu­blike is that, which is done to the diuell sitting in the throne of his pride, to receiue the generall assemblies of all witches, coniurers and inchaū ­ters, as is very liuely and wittily described by Torquato Tasso in his Ierusalem &c Tasso Gie­rusa. liberat. Canto. 4..

At what place and in what time is this wickednes done?

It is done in woddie places, or in caues vnder the earth, which are farre remote & distant from the places of mens cōuersation, such darke and shadowed groues, and corners as are very fullie portraited by Lucan Lucan. lib. 3..

In such desolate places, or in ruinated Castels this mischiefe is celebrated, & commonly it is done in the darknes of a most tempestuous night c. Episcopi 26. q. 5., for the Diuell falling from Paradise fell into ex­treame darkenes, and by defect of grace deliteth in darkenes Thom. A­quinas in tra­ctat. 44. quae­stion. 16. artic. 1. est in tit. de daemon., so that all the workes that proceed from him are blacke, horrible, and full of darke­nes, cleane contrarie to the workes of our Saui­our Christ, which he did in the open light, for the glorifying of his father and the edifying of his Church.

Yet my assertion remaineth firme, [Page 97] that al the euils whereof you haue before spokē, are done by the diuell, and not by the witche.

They are done by the witch coope­rating 13. It is pro­ued that the bodies of wit­ches do worke with their minds in lewd enterprises. with the diuell, who will not do any such hurt without their commaūd, for surely the be­witching of mens bodies must needs be accōp­ted their owne worke. The bodies of aged per­sons or impure, which when they waxe canke­red in malice, they vse their very breath and their fight being apte for contagion, and by the diuell whetted for such purpose, to the vexation and destruction of others: for if they which are trou­bled with the disease of the eies called Ophthal­mia, doe infect others that looke earnestly vpon them: is it any meruaile that these wicked crea­tures hauing both bodies and minds in a higher degree corrupted, should worke both these and greater mischiefs? but their malice doth especi­ally exercise it selfe vpon the weake and tender bodies of children and yong women, which are most subiect to the impression of the ayre that is infected by them as Heliodorus plainely shew­eth Heliod. Ae­thiopic. lib. 3., and that it hath bene so thought in ancient time, may appeare by Theocritus speaking of the remedie which was woont to bee vsed against such witchcraft Theocrit. eidyl. 6. & 7., & againe they deserue seuere­ly to be punished, not onely for vowing them­selfes to the diuell, but also for mingling them­selfes in the companie of wicked spirites, which must needes infect their bodies and soules, and so make them apte instruments for the hurting of others.

I do not thinke, that, that is possi­ble 14. Alciate his opinion touch­ing the mee­ting of witches amongst thē ­selfes, and the meeting of the the diuell is vrged. to be done, which is commonly reported of witches, dwelling in seuerall places, meeting one an other, and meeting likewise the Diuell, and that opinion holdeth Alciat Alciat. lib. 8. parerg: c. 22., and some o­ther in these daies: wherfore I see no reason that they should be punished for it.

That is both true and possible, as 15. Alciate his said opinion is confronted by the authoritie of Bodinus. against Alciat, and other writers straungely con­ceited in this point Bodinus hath largely & lear­nedly disputed: Alciat denieth it to be possible, that naturally bodies, which are saide to meete in places farre distant, should at the naming of Iesus vanishe into the ayre, and be caried swift­ly and inuisibly thether, but this is possible e­nough: For if the Spirites cannot in a moment withdrawe the sight of thinges, surely they can doe very little: for this is manie waies done, and Iuggelers and professours of feates can per­forme it, and as to the swifte transporting of them to remote places, Bodinus reasoneth well; that if the Spirite of the eight Sphaere of the heauens, doe mooue a thing of so great com­passe and quantitie in so shorte a space, that in one howre it passeth aboue a hundred times an hundred miles, why may not a wicked Spi­rite carie the small bodies of such Witches in the minute of an howre, the space of a hundred or two hundred miles: yet I doe not thinke it possible which some affirme, that the bodies of such witches may pierce through a chinke or riffe of a walle (for the nature of the bodie can­not [Page 98] bee altered) but this seemeth rather to be an illusion of the diuell offered to witches: but what of this? suppose that a witche doe confesse vnto a Magistrate, that shee went in by a risse of the walle to kill a childe, which shee did kill, because it is not possible that the witche should passe through such a narrowe creuise, shall the Magistrate therfore absolue the witche as guilt­lesse of the childes death? Nay rather let him diuide the matter, and seuer that which is im­possible, from that which may bee, namely the passing thorough the riffe of the walle, from the killing of the childe: for it may bee, that in trueth the Diuell brought her in at the dore to kill the childe, though hee made it seeme to her that she came in at a chinke of the wall: but sure­ly if there were no other fault in witches, then the renouncing of God and the abiuring of the Sacramentes; yet this being in it selfe consum­mate apostasie, doth deserue extreame punish­ment, and whosoeuer thinketh that witches, be­cause for the most part they be sottish, old, & do­ting are verie easily deceiued, and therfore ought to be spared, hee is in a great errour, for malice driueth them to desire that, which by the diuels meanes they compasse; whē they haue obteined it, their froward nature doth ioy in it, and the diuel for the most part leaueth them, before they leaue him.

Indeed so it seemeth: for whē they fall into the handes of Iustice, and bee cast into close prison, the Diuell commonly practiseth [Page] no more feates for thē, but suffereth them to su­steine the punishment of law without any inter­medling for them: but I haue much wondered what should be the cause of this.

That is done for two causes. First, 16. A double reason is allea­ged wherefore the diuell wor­keth not for witches after that they be imprisoned. because the diuell seeketh nothing more desi­rously then the gaine of their soules: for when he thinketh that the soule is wholly brought vnder his power, he expecteth for nothing so greedily, as the departure of the soule from the bodie, that he may torment the soule, which before the death of the partie he doth retinere sub pacto, and he not onely laboureth, but hasteneth his death as much as hee can, least repentance (God is the God of mercy) doe deliuer the miserable caytife out of the snare of damnation: c. Nec mirū 26. q. 5. D. Au­gustin. lib. 3. de Trinit. 10. de ciuitat. dei. Thom. Aqui­nas in tractat. 44. primae par­tis quaest. 5. in tit. de mira. an other reason is, wherefore they being imprisoned cannot es­cape, though the diuell would deliuer them out of prison, is because the Iustice of almightie God will not suffer the diuell to exercise his na­turall power for thē: for if he should permit him, God might perhaps seeme to weake and shallow consciences, to haue cast of the care of humane affaires, and of doing Iustice: wherefore for his truth and glorie he will not suffer it D. August. d. lib. 10. de ciuit. dei, & Thom. Aquin. in d. tractat. 44. d. q. 5..

You haue spoken sufficiently of witches, and their lewde practises, of their pu­nishment, and daunger of their soules. Now I would haue you to speake of cōiuration, & ne­cromancie, whether the practises of it are able to worke such effects, as is commōly reported, and how by your law they be punishable.

This wickednes hath bene in an­cient 17. That Ne­cromancie & Magike was vsed in ancient time. times practised. Suetonius in the life of Ne­ro saith, Facto per magos sacro euocare manes tenta­uit Sueton. in Neron: c. 34.. And Tacitus maketh mention of a certaine yong man misled to this naughtines: Iuuenem improuidum & facilem inanibus, ad Chaldaeorum pro­missa, magorum sacra, somniorum etiam interpretes impulit, tentatus vt infernas vmbras carminibus eli­ceret Tacit. lib. 2. Annal..

I pray you tell mee when there be such apparitiōs in the persons of the dead, whe­ther are they diuels or dead mens bodies that are so raised vp.

It is an easie matter to resolue this question, but a harde matter to discourse of it: but shortly to answere it: I thinke they bee Diuels which resemble men that are dead.

Yet in the booke of Ecclesiasticus 18 A discourse of the appari­tiō in the like­nes of Sa­muel. there is speech made of the bodie of Samuell rai­sed by the witch of Endor Ecclesiast. c. 46..

But that booke is not Canonicall Scripture.

But a man may reason out of Ca­nonical Scripture that it was no diuell, which appeared to Saul in the likenes of Samuel, be­cause the diuel would not vse such holy speeches as ar attributed to Samuel in the first booke of Sa­muel, which is Canonicall Scripture 1. Sam. c. 28..

What meruaile is that? when the diuell can transforme himselfe into an Angell of light? and so hee did deliuer true testimonie of Christ Matth. 8. Mar. 1. Luc. 4., though to a false and euill purpose, and [Page] likewise of Paule Act. 16., but holy Samuel would not haue suffered any such adoration, as is expressed in that Scripture: and therefore Tremellius and Iunius do rightly comment vpon that place, that it is not in the power of the diuell, nor of the witche his seruant, to drawe againe into the world iust men, but that it was a craftie and false pretense of the diuell, to make men thinke, that the true worshipers of God are in his hāds after their death.

You haue almost made me of your opinion. But tell me Codicgnostes what punish­ment hath your Lawe ordeined for Necroman­cers and Coniurers.

They are by our law either executed 19. The pu­nishment of necromancers and coniurers by the Ciuill law. vpon a gibbet, or throwne out to deuouring beasts Paulus lib. 5. tit. 23..

By a statute made in the fifth yeare of the fortunate raigne of our soueraigne Ladie 20▪ The pu­nishment of Necromācers and Witches by statute. Queene Elizabeth it is enacted that if any mā do vse any inuocatiō or cōiuration of euil spirits for any cause, or haue vsed any witchcraft, inchante­mēt, charming, & sorcery, wherby any person is slaine or destroied, this is felonie in thē their ay­dors & counsailors, & they shall lose Clergie, and Sāctuarie: and if any do languish in his bodie by such witchcraft, inchantmēt or sorcery, the offē ­dor cōuicted shal suffer a yeares imprisonmēt, & shal stād on the pillory in some market towne in the said Countie where the said offence is com­mitted, on the market day once in euery quarter of that yeare, & this offence if it be cōmitted the second time, is made felonie 5. Elizab. c. 16..

It is an excellent law, & worthie of 21. The pu­nishment of coniurers by the Canon lawe. so noble a law-maker: by our lawe, which stret­cheth not to the taking of mans life, such offen­dors are shauē & made baulde on the head 26. q. 1. ca▪ de benedicto., and they weare a miter on their heads wherein their offence is in great letters painted ca. episcopi. ibid:, & they are set vpon a ladd [...]r whilest the people go to heare di­uine seruice In d. c. Epis­copi. & ca. de benedicto., and so they are cast out of the pa­rish 26. q. ca. E­piscopi., & diocese ca. Episcopi, & ca. de bene­dict.: and if they haue anie office or benefice they are depriued of it Glos [...]. sin: in ca. 1: de sorti. Extra c▪ non o­portet. 26. q. 5., & if they be of the clergie & not beneficed they are disgraded Cap: Admo­nendi 26. q. 7. de haere..

You haue not yet shewed vnto me, 4 Diuision. whether if a woman doe procure a liue-child to be killed in her wombe, or causeth it as soone as it hath receiued life to be cast out of her wombe being by that meane an abortiue, & so is deliue­red of it, whether the womā in this case be guil­tie of Homicide or no by your lawes?

Surely by our lawe, if any woman 1. Homicide committed by the Canon law by procu­ring the vn­timely birth of a child if death doe ensue. without malice or euil cōueiance do bring forth an abortiue child which hath receiued life and is borne before his due time and it dieth, the wo­man is accompted homicida occasionaliter ca: quod ve­ro. &c. Moses 23. q: 2. & ca: si expositus. 87. Dist:.

Our law punisheth the womā whe­ther 2. The Ciuill law punisheth such offence whether the child haue re­ceiued life or no. the childe hath receiued life or no, if it bee done of malice and euil meaning, for though the Phisitions do make a distinction, & seuerall de­grees of that which is conceiued in a womans wombe, as namely: first there must be a thing in­gendred: the next degree is a thing that is in­creased in the wombe: the thirde degree is a thing formed or delineated like to a man: the [Page] fourth, a child or infant: yet our Law punisheth vndistinctly, and without difference the imma­ture eiecting of any of these out of the wombe: and the reason is for the onely hope and possibi­litie of a child that may be borne l. Cicero. de paen. ff. & l. di­uus. ff. de ex­traord. crimin. gloss. in cap. si aliquis. de ho­micid. Extra. l. si mulierem. Ad l. Corn: de sicar: ff., and therfore with vs such things as are done for the hinde­ring of the conception of a child are punished Paulus lib. 5. sent. tit. 23. & l. 38. §. qui abortionis de paen:, & that worthily, because it is done to the iniurie of nature, & in contempt of the most high God, who hath said Crescite & multiplicamini, and that by no other meane, then by cōtinuall generation of mankind: howsoeuer there be some, of whom Victor maketh mention, which thinke that the woman cōmitteth no fault in this act Pet. Victor. lib. 27. vari. lect. c. 2., but as to the punishment of this fault in our Law, if it be done for the gaine of mony, the Lawe inflicteth punishmēt of death, if through hatred or malice, with exile for a certaine time d. l. Cicer. & d. l. diuus..

In Bractons time it seemeth that 3. That though in Bra­ctons time the Common law did agree with the Ciuill and Canon lawes, in the punish­ing of abor­ti [...]ements yet now there is no such punish­ment by the Common law. our Law did in this point somewhat neerely a­gree with yours: for he hath these words: Si sit a­liquis qui mulierē praegnantē percusserit, vel ei vene­nū dederit per quod fecerit abortiuū, si puerperiūiam formatū, vel animatum fuerit, & maxime, si animatū, facit homicidium Bract. lib. 2.: but now the Lawe is altered: for by the Lawe now in force, Homicide can­not be cōmitted, vnlesse the thing slaine be in re­rum natura: and therefore if a man kill an infant in his mothers wombe, this is not felonie, neither shall he forfeit any thing, because it cannot bee certainely knowne, whether the infant died by the stroke or no 3. Assis. pl. 2. 22. Assis. pl. 44 1. E. 3. 24. Brit. 45..

Time nowe requireth that ye shoulde deliuer your opinions of these crimes which are against the good estate of man as theft, burglarie, and robberie, and because theft is either single as Pettie larcenie, and the sole act of taking away fe­loniously a mans goods: or els compounded and mixt with other wrongful acts, as when burgla­rie and robberie are committed, therefore first I would haue you to speake of the former, and af­ter of the latter: wherefore shew me first Codicgn. what is accompted Pettie larcenie on pilfering theeuery in your law, & how it is to be punished.

I thinke it fittest by your fauour, to de­clare 1. Diuision. first what theft in general is, and then to dis­course of the particular kindes of it as you haue proposed them.

I like your course well, I pray you therefore proceed.

Theft is thus defined in our Law: (A 1 The defini­tion of theft by the Ciuil law. fraudulent contrectation of an other mās corpo­ral moueable goods, which is done against the will of the owner, with a minde to gaine either by the things stolne, or by the possession of them, or by the vse of them.) ff. de paen: l. 1. in [...]: and this word (Fraudu­lent) 2 Wherefore the worde (faudulent) is vsed in the de­finitiō of theft. is therefore vsed in the definition, because if a man take away another mans goods as thinck­ing him to be the owner that biddeth him take [Page] them, or mistaking the goods which the owner appointeth him to take, he is not in this case guil­tie of theft, Iusti. vi: bon: rapt: §. ita ta­men. because neither the cōtrectation on­ly, nor the fraud only doth make a theefe, Arg: d. l. 1. §: inde sola. By the 3 How pettie theeuery is pu­nished by the ciuil law. imperial law, if a man do steale any thing worthe v. s. or about, he shalbe hanged, and if it be of a lesse value, then he shall be whipped, c. 1. §. si quis quinque soli­dos de Feudis: & glos in §. & iudican: Au­thent: de de­fens. ciuitat. glos. in l. fin: & ibi Alexan: ff. de in ius vo­cand: glos. in §. fin: in f [...]: instit: de pen: temere litigant: but if he commit the seconde time, he is punished with the cuttinge off of one of his eares, or of one of his handes: and if he commit it the thirde time he is to be hanged, Authen: sed nouo iure C. de se [...]u: fug: & Authen: vt nul: iud: §. quia ve­rò nos oport. and the first time he is called fur: the second time, consuetus fur: the third time famosus fur: d. Authent: sed nouo iure. and he that stealeth a sheepe, a goat or a swine is lesse punished then he that stealeth an horse or an oxe: for he may be whipped if he be of a seruile condition: ff. de paen: l. in seruorum. Or if he be a free­man 4 How the stealing of things of grea­ter value is pu­nished by the ciuil Law. he may bee bannished for a certaine time: l. 1. ff. De abigeis. but he that stealeth a flocke, as tenne sheepe or foure swine: or he that stealeth an horse or an oxe shalbe adiudged to perpetual banishment. l. 1. §. quan­quam ff. eo.

By our Law it is felony, if a man 5 What is fe­lony by the cōmon law, & what is pettie larceny. steale aboue the value of xij. [...]. but if it do not ex­ceede the value of xij. [...]. it is then pettie larcenie, for the which the partie shall haue imprison­ment according to the discretion of the Iustices, Stamf. lib. 1. c. 15. Cor. 178. but as to the stealinge of lesser or greater thinges which be aboue the value of xij. d. 22. ass. p. 39. si soit est felony, ideo cest error. we haue no difference of iudgment or punishmēt in our law.

Declare I pray you whether these that 2. Diuision. receiue and fauour theeues, are not guilty of theft by your lawes and punishable as theeues.

Because these receiuors are a lewd sort [Page 102] of men, without whom malefactors cannot long 1 Receiuors and theeues haue the like punishment in the ciuil Law, but yet with many diuersi­ties and limi­tations. be vnknowne, therefore our law inflicteth vpon them and the others which commit theft the like punishment, l. 1. C. de his qui latron: vel alijs crim: reos occultant: but if a man do not receiue them, but do gainsay or refuse to offer vnto the trial and iudgment of law such offendors, which do lurke in his graunge or in his manor, if he be personal­ly resiant, & do keepe house there, he for this fact shall forfait his graunge or Manor if he haue an inheritance in it, but if he haue onely estate for yeres or at wil, he shalbe punished with perpetu­all exile: l. sin: in sin: eod: and they shal in both cases forfait their goods, l. 1. eod: but that this matter may more clerely appere vnto you, it is good to obserue that if a mā either keepeth the theefe in his house, graung, or Manor, not knowing him to be a theefe, or knowing him to haue committed theft: in the first case he shal not incur the aforesaid forfaiture, vnlesse he refuse to yeeld vp the theefe into the hand of Iustice, when he is pursued: l. 1. eod: in vers [...]: vel offer­re. & l. requirē ­di, C. de se [...]ui [...] fugit: But if the owner of the house or graunge &c. do know that a theefe lurketh within the precinctes of his house or graunge &c. then he is either a theefe simply, or a theefe compositiue, as a robber by the hige way, or a burglarer: if he be a theefe simply, he that hideth him, must susteine the same punishmēt that the theefe himselfe, d. l. C. de his qui latron: which punishment is some­time wayed by the quality of the person, by the greatnes of offēces, & by the multitude of offēces iterated as before hath bin shewed: but if he whō he hideth, haue cōmitted robery, or burglary, of what estat soeuer he be, & thogh it were the first [Page] offence, both in the theefe and in the fauourer: yet either of them shal susteine the like punishe­ment: d. l. 1. C. de his qui latron: & l. 1. §. in pa­ri: ff. de recep­tat. but here an other distinction is to be vsed, for either he sauoured the theefe, or the theft: if he fauour the theft, he shall haue equal punishe­ment with the theefe, l. secunda. §. non tantum ff. de incend. ruin: naufrag. but if he fauour not the theft, but onely the person of the theefe, then he is punishable by the same Lawe, but not by the same paine, for then his punishment is arbitrary, and left wholy to the discretion of the Iudge, l. 1. in sin: ff. de receptat. and in the verie same state are they, which when they may apprehende such malefactours doe ei­ther for lucre, or for part of the things stolne let them goe. d. l. 1. ff. eo.

By our Canon law, they that are re­ceiuors of heretikes are Excommunicated, and are accursed with the highest degree of maledi­ction, and when they are dead, Christian burial is to be denied vnto them, ca. sicut ait. de heretic. Ex­tra. But this is to be vn­derstood 2 How the re­ceiuers of he­retikes, and o­ther offendo [...]s are punished by the Can­non law. of such receiuors, as fauour the person, but not the heresie, for they are punished by the same punishment which our Law doth appoint for the heretikes thēselues, ca. 2. de hae­re: lib. 6. but in other crimes, which are not heresies, our law vseth this distin­ctiō: either the receiuors are publikely diffamed, or not: if they be publikely diffamed, they are pu­nished as the offendors thēselues are punishable by our Law, but if not publikely diffamed, then they are punished with a milder punishment. Gloss. in ca. 1. sup: verb: re­ceptauerit: de homic: lib. 6. ar. eor. quae habētur, in ca. cum non ab homi: de iudic: in ca: tuae: de paen [...] & in ca. fin: de furt: Extra. 3 How recei­uers of felons are punished by the com­mon law, and who be ac­compted re­ceiuers.

Our law punisheth the receiuors of felons, with great and rigorous seueritie, and without respect of the qualitie and circumstance [Page 103] of the persons: and if goods be stolne and I. S. knowing they be stolne receiueth them, in this case, though he receiue the goods onely, and not the felon himselfe, yet he is accessarie to the fe­lonie, 3. E. 6. ca. 24 & 27. Eliz. per Wind. Iustice al Ass. al Staff. Cromp. Iust. P. 37. Stāf. 43. but in case of high treason there be no ac­cessaries, but all be principall, 3. H. 7. 9. But otherwise it is in case of petty treason: Stamf. 40. but in high treason as well the commaunders as the assistors, abbettors, and receiuors knowing thereof are principall, Exposit. ter­min: leg: sol. 4. If a man receiue one that is attainted of felony by outlawrie in the same Countie &c. he is ac­cessarie to the felonie, because the outlawrie is a matter of recorde, of which euery one ought to take notice, Stamf. 96. Dyer 355. but the Lawe would be otherwise if he should receiue him in an other Countie, 12. E. 2. Cor: 377. and the reason wherefore the receiuors and ac­cessaries should be punished, as well as the prin­cipal offendors, Lucan wittily sheweth in the per­son of one of his rebellious captaines:

Now I pray you proceed and open 3. Diuision. vnto me the offence of robberie, how it is in your Lawes, and how it is to be punished.

Robberie is committed, when a man 1 The discrip­tion of robbe­rie by the ciuil law. 2 The punish­ment of rob­berie by the said law. by force bereaueth an other of his goods, lying in awaite in highwaies and secreate pathes, in woods, in heathes and in other places remoued from the sight and testimonie of men: for this, the offendors head shalbe cutt off with a sword, and he shall sorfait his goods, and his body shall be layed vpon a wheele, vnto which are fastned the [Page] boughes of these trees, vnder which the robbe­rie was committed, as the witnesses of the crime, l. 1. C. de his qui latron: oc­cult: & l. 1. ff. de receptato. & he that doth wittingly & willingly receiue such felons, is no lesse capitally punished then they. d. l. 1. ff. de recept:

This crime is so odious in our Law, 3. The punish­ment of rob­berie by the cannon lawe. that it suffereth not temples to be sanctuaries, or places of protection to such offendors. c. inter alia Ext: de immu: Eccles.

By our law robberie is then cō ­mitted, 4. The discrip­tion of robbery according to the common law. when a man taketh any thing from the parson of an other man feloniouslie, though it be but of the value of a penie, yet he shalbe hang­ed: 22. Ass. pl. 55 31. H. 6. 16. and if a man do threaten one to deliuer his purse incontinent, and if he will not that he will kill him, whereupon he deliuereth it presently, this is robbery as well as that, where he taketh it from a mans person by force: Stamf. 27. and therefore the case was that two did laie hold on a man, and did make him sweare vpon a booke that he woulde bring vnto thē xx. li. by force wherof he brought vnto them xx. li. and they tooke it, this is robery, for it must be intended to be done by force of the threatning and against his will, 44. E. 3. 14. 4. H. 4. 3. but where a theefe taketh xl. s. from an other man by the high way, without assaulting him, and putting him in feare of loosing his life, this is not robberie, but he shall be put to his Clergie. 5. Eliz. 224. Dyer.

Now I would know somewhat of the offence which is commonly called Burglary, or breaking of houses in the night time, and stea­ling thinges out of them, and how it is to be pu­nished. 4. Diuision.

They which breake into any mans [Page 104] house in the night time with purpose to kill, if a­ny 1. W [...]at kinde of house-breach is capitall in the ciuill law. mā be within the house that will resist their violence, are accounted in our Lawe famous theeues and are punished capitally. l. Capitalli [...] §. Famosos ff. de poenis.

Burglarie is where any man in 2. The defini­tion of burgla­rie by the com­mon lawe. time of peace, and in the night time, doth breake any dwelling house, church, walles, towers, or gates to commit felony there, and he entreth, though he carry nothing away, yet this is bur­glary and the offendor shall be hanged. 22. Ass. pl. 95 & 39. Stam. 30 Brit. 17. Dy. 99 18. Eliz. c. 6.

I giue ye great thankes for your paines bestowed in the clering of these doubts, which I moued vnto you: I will not trouble you further in these matters; accompting my selfe for your trauaile so long continued, to be greatly beholden, and very much bound in all duetiful kind­nes vnto yee.