A PARALLEL OR CONFERENCE OF THE CIVIL Law, the CANON Law, and the COMMON Law of this Realm of England.  
Wherein the agreement and disagreement of these three Laws, and the causes and reasons of the said agreement and disagreement, are opened and discussed.  
Digested in sundry Dialogues By WILLIAM FULBECKE.  
At the end of these Dialogues is annexed a Table of the Sections or Divisions of the principal points, matters, and questions, which are handled in every Dialogue.  
AT LONDON Printed by Thomas Wight.  
Anno Domini. 1601.   

TO THE MOST Gracious and reverend Father in God JOHN by the providence of God Lord Archbishop of Canterbury, Primate and Metropolitan of all England, and one of the Lords of her majesties most honourable privy Council.  
RIght Reverend, right Honourable, and my singular good Lord, as nothing is more comfortable to the Mariner, or Seaman, then after a great tempest to possess a pleasant calm, and grateful serenity: so nothing is more plausible and acceptable, to them that have employed, and exercised themselves in any part of learning, then after their long and laborious travail, to enjoy the warmth and bright reflection of an honourable countenance, this partly, and (if the great arrearage of duty, and thankfulness, which I own to your Grace, do not challenge priority) especially hath moved and enforced me, to present to your honourable view and patronage these tripartite Dialogues, to whom her sacred Majesty hath committed the executing and maintenance of the Civil and Canon laws, in these Dialogues by my slender pencil rather delineated, then described: and because the Common law cannot otherwise be divided from these twain, than the flower from the root and stalk, therefore this entire discourse I have wholly submitted to your Grace's tuition and disposal: in which I sought rather to profit the understanding, then to please the sense with a plausible, copious, and polished style, or with foreign conceits not belonging to the titles of the Law, which I handle: assuring myself, that as verbal delights and affected, vanities are to your Lordship odious, irksome, and of no account: so they are in truth to the gaping ears of this curious age, very snares, and Sirens. Wherefore humbly referring myself to your Grace's excellent wisdom, and abundant clemency, for the imparting of a favourable regard and countenance to these my unworthy labours, I beseech the almighty God with the most submiss devotion of my heart, that the days of your life (which the Lord of life multiply) may be the degrees of your happiness, to the great good of this Church, and Commonweal, to the exceeding comfort, and contentment of such as be studious of virtue, Law, and equity, and to the immortal propagation of your fame and memory through all ages, and times, until the last time of all ages.  
Your Grace's most humble and bounden William Fulbecke.   

TO THE COVRTEous Reader.  
Courteous Reader it is observed by Seneca, that in one and the same plot of ground, the Hound seeketh for a Hare, the Ox for good grass, and the Stork for a Snake or lizard, 
a Senec. epist. 109. In eodem prato bos herbam quaerit, canis leporem, ciconia lacertam.  and my desire was, that in this book of Dialogues, the several students of the Canon law, the Civil law, and the Common law of this Realm, might have diverse repast according to their disagreeing appetites, 
b Horat. Tres mihi convivae prope dissentire videntur; Poscentes vario multùm diversa palato.  & matters suitable to their distinct contemplations, for it seemed strange unto me, that these three laws, should not as the three Graces have their hands linked together, and their looks directly fixed the one upon the other, but like the two faces of janus, the one should be turned from the other, & should never look toward, or upon the other: and weighing with myself, that these laws are the sinews of a state, the Sciences of government, & the arts of a common weal, I have seriously & often wished, that some joint discourse might be made of these three excellent Laws, whereby the agreement and disagreement of them, and the grounds, and reasons thereof might evidently appear by some very skilful in these Laws well grounded, and if it might be, which I never yet saw, professed in the same: and in such a plentiful harvest of flourishing wits in this land, which are adorned with great variety of reading, as the firmament with diversity of stars, I could not but expect the event of so good a thing: yet in the end, when I saw many days overpass, and slide away without the success of my desire, taking my wish to be somewhat more, then Vigilantis somnium, I thought it better to make some trial of my slender ability, to put my wish in practice, & to lay that heavy burden upon mine own feeble shoulders, then that such a profitable thing should be altogether frustrate of attempt, howsoever void of effect, by that mean (if it might be) to excite, and stir up some other, quem Musae comitantur & arts, to undertake this task, and far more fully judiciously, and learnedly to accomplish this business. For I remember the saying of D. Bartolus, a principal Author in the Civil law, that these things, which are not very well invented, yet may be profitable in this respect, because they may perhaps provoke others to the investigation of the truth 
c Prosunt minùs recte excogitata, cum alios incitent▪ saltem ad veritatis investigationem. Bartol. in tract. test. . Great & forcible reasons have moved me to have in special regard the knowledge of the law, considering that by the good constitution, establishment, & observation thereof, all common weals, which are grown to height and pre-eminence, have had their prosperous rising, their abundant increase, and their fortunate continuance, but by the want, breach, or change of good laws, nothing hath ensued but the desolation, downefal, & inevitable ruin of many dominions, and estates. Not to trouble your patience with instances of petty provinces, and inferior regiments, by your favours let the four most eminent common weals of the world be tried by this touchstone, & let my assertion by their destinated courses be measured and examined; The four common weals I speak of, were the Cretensian, Athenian, Lacedaemonian, and Roman estates: the first was of all these the foremost and most ancient, famosed by the Laws of Minos, who so studiously employed his pains in the making and amending of Laws for the space of nine years together, that this Common weal being well settled, was well fenced against future mishaps, and continued in great prosperity till the Romans grew too strong: The Athenian Common weal was first guided by draco's Laws, written not with ink, but with blood, rather terrors then rules of estate: wherefore these for their too great asperity being canceled, and antiquated, Solon that sage Father, being (contrary to the foolish Proverb or rather by-woord) both a great Clerk, and an excellent wiseman, and having the whole administration of that estate committed to his hands did enact, and establish Laws with such moderation, and equity, that the greatest part of the Law called the Laws of the xii. Tables, that absolute precedent, and worthy platform of all justice (to the full opening and clear expounding, of which it might be wished that some very learned man would put to his painful hand) are said to be the fruit and issue of his deep, and peerless judgement. The Lacedaemonian common weal was established by Lycurgus that famous lawmaker, by whose profitable directions and ordinances that common weal did for the space of six hundred years exceedingly flourish in equity and glory: but when the neglect of these Laws had entered and pierced into the body of that common weal, and wantonness, licentiousness and desire of money had encroached into the place of these commodious orders, they lost their renown with their liberty, and the deformity of men's manners did wholly disfigure the beautiful and decent proportion of that goodly Common weal. Now I come by your favour to the Roman estate, that is, to the miracle of miracles (if any human thing may bear so gorgeous a title) surpassing far her predecessors in greatness, happiness, and continuance of time: the cause of which rare felicity is no other in truth, than the prescript of good Laws, made by Numa, and others, howsoever some partially affected, do as their several fancies led them, ascribe & attribute the same to several causes, whose censures & opinions give me leave by your patience, and permission in humbleness and modesty to examine. That saying of Cicero seemeth not true unto me, that military virtue hath purchased to the people of Rome credit, and to the City eternal glory, and hath made the whole world obedient to that Empire: 
d Cicer. pro Muren● Virtus militaris populo Romano nomen, urbi aeternam gloriam peperit, orbem terrarumparere huic imperio coegit.  nor that of Lactantius accusing the Romans of unjustice in these words: How much profit, differeth from justice, the people of Rome do testify, who proclaiming war by their heralds, and doing injury in form of law, and alway desiring other men's goods, & altering the property by violence, have achieved to themselves the possession of the whole world: 
e Lactant. lib. 4. institution c. 9 Quantum a justitia recedat utilitas, populus ipse Romanus docet, qui per faeciles bella indicendo, & legitime iniurias inferendo, semperque aliena cup●endo & rapiendo possessionem sibi totius orbis occupavit.  nor that of Livy who is directly opposite to Lactantius. The gods (saith he) favour religion and loyalty, by which the Romans ascended to such an height of estate: 
f Livius. lib. 42. Favent pietati fideique Dij, per quae populus Romanus ad tantum fastigij venerit.  nor that of Dio uttered in the person of Caesar: Our ancestors did make our City so great as now it is, by hazarding & exposing to danger their own wealth as if it had been other men's goods, but other Prince's Dominions as belonging unto them they did not doubt to seize: 
g Dio lib. 38. Maiores nostri tantam urbem nostram fecerunt, cum suas fortunas tanquam alienam possessionem semper periculis obiecerunt, aliorum autem ditionem tanquam pertinentem ad se haud cunctanter suam facerent.  nor that of Orosius: The City of Rome like an unsatiable belly did devour all, and yet was always hungry: For into her bosom all the wealth and treasure of other nations rob and spoiled by the Romans was conveyed and transported: 
h Oroisius lib. lib 5. c 18. Quasi inexplebilis venter Roma cuncta consumens, & semper esuriens, cum in sinus ipsius eversarum omnium urbium, nudaturumque terrarum abrasae undique opes cogerentur.  whereupon he further exclaimeth. Look how happily she overcometh, so unhappily other nations are vanquished, and overcomed: the happiness of this City is the unhappiness of the whole world: O unhappy world under this conqueror, a subtle underminer, abitter enemy a bloody tyrant: 
i Quam vincit illa foeliciter tam infaeliciter quidquid extra est, vincitur: faelicitas urbis infoelicitas orbis: Infoelicem sub isto victore orbem, arguto insidiatore, host infesto, domin▪ immiti Orosius lib. 5. c. 1. & lib. 6. c. 12.  though Arnobius a man of great sanctimony do in like sort surmise that this only City was bred for the destruction of all mankind: 
k Civitatem unam in humani generis pernitiem natam. Arnob. adu. gen.  neither do I like Claudian his strange and paradoxical opinion, avouching patience to be the cause of the Romans prosperity. Rome (saith he) never sunk under the burden of mishap, and no wound dismayed it: after the great slaughter of Cannae and the dangerous war of Trebia, she did more lift up her head, & when flames of war did on each side besiege her, and the enemy's ram menaced the wall, she sent her army into the farthest and most remote parts of Spain: 
l Nunquam succubuit damnis, & territa nullo: Vulnere post Cannas maior Trebiamque fremebat, Et cum iam premerent flammae murunque feriret, Hostis, in extreme▪ acien mittebat Iberos. Claudi. 3. stilie.  neither do I agree to Florus and Ammianus both agreeing in opinion. The people of Rome (saith Florius) was tossed by many labours & dangers, so that virtue and fortune might seem to have contended for the procuring of her sovereignty: 
m Populus Romanus laboribus periculisque iactatus est, ut ad cōstituēdū eius imperium contendisse virtus & fortuna viderentur. Flor. in proaem. histor.  to whom Ammianus subscribeth, saying: virtue and fortune did herein jump 
n) Ammian. lib. 14.  for the most part jarring: but the aforesaid Claudian being at another time better advised, doth very fully & truly describe the causes of the Roman prosperity. Rome was the mother of military discipline and laws, & (by these means) dilated & stretched her principality over all countries, & prescribed unto them their first laws & orders: 
o Armorun legumque parens quae fundit in omnes Imperium, primique dedit cunabula juris. Claudi. 3. stilie.  for the good government 
n) Virtus hic convenit & fortuna, plerumque dissidentes.  of their Commonweal at home, did make their wars to prosper abroad, and the giving of laws to others, made others at peace with them, and to bear the yoke of more inclinable obedience: and they which so obey, find more good by the direction of laws, than the protection 
p.) Quò arma vestra pe●uenerunt còdem, ius vestrum hinc profectum peruen●at.  of arms. Wherefore the Rhodians did very wisely make suit to the Romans for their laws, rather than for their garrisons. Whether your weapons have pierced, there let your laws arrive, 
p) Livius lib. 37.  but more fit to judge of these matters, than any above mentioned is Polybius, a man highly commended by a learned civilian; 
q Alberi. Gentil. lib. de arm. Rom. 2. c. 13.  as a good soldier experienced in warlike affairs, 
s Bonus qui rebus interfuit miles.  as a good Captain in the regiment of soldiers, 
t Bonus qui rebus praefuit ductor.  as a good judge in the controversies of great Princes: 
u Bonus qui summis imperatoribus adfuit arbiter.  his opinion of the cause of the Roman glory is this. Fortune only (saith he) did not purchase to the Romans the universal Empire of the world, but virtue and discipline (he meaneth I doubt not, the discipline of religion, of arms, and of law) being all of them fit instruments for such an effect: 
w Polyb. lib. 1 Non fortuna Romanis universal imperium peperit: sed virtus, disciplina apta, ad tantam rem omnia.  and the law is prophesied by Anchises that grave Trojan to be the very ground and occasion of the Roman felicity: for thus he saith to Aeneas. Regard thou (O Roman) to govern nations by just command: these shall be thy arts, to be merciful to the meek, and stern to the proud, and to prescribe order to peace: 
x Virgil. lib. Acneid 6. Tu regere imperio populos Roman memento▪ (Hae tibi erunt arts) pacique imponere morem, Parcere subiectis; & debellare superbos.  and Hannoes' speech in the Senate house of Carthage was, that the best education of young men was to be brought up in the obedience of Laws: he speaketh thus of Hannibal. I think it most fit, to school and train up this young man, under Laws and magistrates, and that he should be taught to live in just manner amongst others, least from this little spark a great scalefire do grow: 
y Ego istum invenem sub legibus, sub magistratibus docēdum vivere equo iure cum caeteris censeo, ne quandoque parvus hic ignis incendium ingens exsuscitet. Livius lib▪ 21.  and as laws have supported and upheld every estate into which they were entertained, so the decay of them hath been the desolation and downfall of all estates: and the commonweal of Rome (if ever any) hath tasted the lamentable bitter, and wonderful experiment hereof. For Cicero in the person of Scipio, that excellent man, doth evidently and amply according to his manner describe the ruin and declining of the Roman glory. Scipio is opinion that the commonweal cannot be governed without great justice, and that as in musical instruments, a consent or harmony is made of distinct sounds, which being changed and distuned, the ears are offended with an unpleasant jarring: so of the principal mean, and inferior sorts of men agreeing amongst themselves, the good estate of a City doth grow, and that which in music is called harmony, in a commonweal is termed concord, which can never be without justice: but when justice was obscured & suppressed in the Roman commonweal, there was not then a vicious commonweal, but which was a great deal worse than that there was no commonweal at all, but a apparent disorder, and confusion. 
a Cicer. in Laelio.  And this was well perceived by that ancient writer Ennius, for he bewailing the great alteration and decay of the Roman commonweal, doth withal disclose the cause of that strange accident: alas whether is the power and strength of Italy vanished: into what a slender shadow are we shrunk: the state of Rome cannot stand without the ancient manners, and magistrates: 
b Heu mihi quo latiae vires urbisque potestas Decidit: in qualem paulati● fluximus umbran: Moribus antiquis stat res Romana virisque. Fragm. Enn.  for these ancient manners which he affirmeth to be wholly preserved and retained by the just government of Magistrates, Cicero avoucheth by way of comment upon Ennius his speech to be good laws and customs. Before our memory (saith he) our ancestors by custom did prefer excellent men to the Magistracy, and themselves being worthy men, did observe the ancient customs and the laws of our forefathers, 
c Fragm. 5. lib Ciceron. de repub. Ante nostram memoriam & mos ipse patrius praestantes viros adhibebat, & veterum morem ac maiorum instituta retinebant excellentes viri.  and Saint Augustine a better judge than any that spoke yet, layeth all the fault & blame of the miserable and wretched estate of the Romans upon the breach and contempt of laws. For (saith Augustine) the noble and un-noble were put to death, not by laws and judgement of Magistrates, but by quarrels and malice of mind. 
d D. Augustinus lib. de civit. dei. 3. c. 24. Neque enim legibus & ordine potestatum, sed turbis animorumque conflictibus, nobiles ignobilesque necabantur.   
This may suffice to conclude and and convince my former assertions, that no Commonweal can flourish without laws, and if they be once received and approved, and afterward altered, defaced, and trod under foot, such contempt and careless neglect of laws procureth the sudden and finale misery, calamity, and distreputation of that Commonweal. Now hear me a little proving likewise unto you the antiquity and long continuance of these three laws (whereof the Dialogues ensuing do bear plentiful discourse) for the good administration and regiment of all Commonweals.  
The Cannon law is more ancient, than the other twain, and of greater continuance. For amongst the ancient Egyptians priests were judges. 
e Elia 〈…〉 lib. 14. vari. Histor. c. 54.  The Druidae the priests of the ancient Galls, did judge of all controversies, as well private as public, and for offences they did ordain and inflict punishment, and if any man did not obey their decree, they did interdict him their sacrifices, which was the greatest punishment amongst them: for all other did avoid the speech and company of such persons as a contagious evil: 
f juli. Caes. lib. 6. come.  Numa Pompilius the second King of the Romans instituted a high priesthood, with an inferior order, and he gave them power to make laws concerning spiritual things, without the control or countermand of any, and as a parcel and member of religious matters, they had in charge the administration of poor men's causes, and of all such matters which in the Civil law are called piae causae. 
g Plinius secun: lib. de viris illustri. c. 3. Eutropis. lib. 1. histor. Dionis. Halicarnas. lib. 2. Livi: lib. 1. Fenestel. lib. de sacerdot. Rom. Plin. li. 13. c. 13 Cicer. pro do. sua & de aruspec: respon.  But what need heathen examples, when the Commonweal, of judaea, that is Gods own Commonweal doth afford plentiful example and authority herein. Heli and Samuel the priests of God did govern amongst the people of Israel. 
h 1. Reg. c. 1. 1 Reg. c. 7. & 8.  And so God hath expressly commanded: My priests shall teach my people, what difference there is betwixt clean, and unclean, and they shall judge my laws and my precepts. 
i Ezech. c. 44  And in another place: Aaron, and the priests shall judge betwixt leprosy and leprosy. 
k Levit. 13  josaphat the King of juda, when he did appoint judges in all the Cities of juda, he did appoint also in jerusalem Levites and Priests, that they might adjudge justice, and the cause of the Lord unto the inhabitants, and he appointed them to judge of every cause of their brethren which was betwixt kindred & kindred, whensoever question should be of law, of commandment, of ceremonies, of justifications; and he appointed Amasias the high Priest in these things, which belong to God: 
l Paralipom. 2. c. 19  afterward the high Priest jesus Christ did give divine laws & rules unto his people: 
m Epistol. ad Hebr. c. 3. 4. 5. 8. 9  after him his apostles, 
n Actor. 15. 2 ad Theslalo. 2.  than Bishops and Prelates in their dioses, 
o De potest. sum. pontiff. in Canon: cuncta per mundum. 9 quaesti▪ 3.  their power, their Cannons, their laws were approved by diverse Emperors and Kings, Philip, Valentinian, Marcus, justinian, Constantine the great, Honorius, and Theodosius, 
p L. cum. l. 4. de sacros. eccles. lib. 1. C. tit. 5. privileg. quae general. l. 12. eod. tit: §. 1. in. ecclesiast. tit. in authent. collat 9 tit. 6. Rusin. lib. 10. hist. eccles. c. 1.  and many others: And by King Henry the eight of famous memory late King of England in his Parliament held the 25. year of his most prosperous reign, and revived in the first year of our renowned Queen and Sovereign Lady Elizabeth. 
q 25. H. 8. c. 19 1. Elizab. c. 1.  As to the original of the Civil law I do not think, that, that which may properly be called Civil law, and was so called at the first, is any other than ius Romanum, or ius antiquum Romanorum, or that which hath been commented thereupon, or added thereunto. It is manifest that Romulus did establish laws, 
r Dionys. Halicarn. li. 3.  and so did the other kings that followed him: and that the law was brought into a convenient form in these times, it is very apparent by this, that M. Tullius being one of the dunmuirs was thrust into a sack, and by Tarquin his commandment was cast into the sea, because corrupted by lucre, and reward, he did suffer the book containing the secrets of the sacred laws of their City, to be copied and written out by Petronius a Sabine: 
s Valer. Maxim. lib. 1. c. 1.  and P. Papyrius is said to have brought all the regal laws into one volume: 
t Valer. Maxim. lib. 2. in princip. E● §. iur. civil. de ●eter▪ iur. enudeat.  and for the perfitting of the other laws, the laws of the 12. tables were given forth by the decemuiri: 
u L. 1. § exactis. de origin. iur. Diodor. Sicul. 12. Dio●s. Halicarnas. lib. 2. & 10.  which excellent laws if they were well, and at large explained, would give such light & intelligence to the makers of laws, that nothing (in my simple conjecture) more commodious could ever hap to any commonweal: these together with other constitutions made upon principal occasion were observed & retained as the levil of the Roman government, & whereas in the times of civil dissension they were repealed or discontinued, Augustus Caesar that admirable and worthy Emperor did revive the good laws, & reform the bad, & by the perfection of that Commonweal brought about by him, the cycle of the whole world as resting upon that centre became presently and universally peaceable & quiet: 
a Veller: Pater. c. lib. 2 histor.  but the emperors succeeding him having more care to be great, then to be good, made small reckoning of these laws, but by voluntary conceit commanding, & forbidding, they rather raged than reigned, & the decrees of some of them, namely Tiberius, Caligula, & Commodus are wittily termed of the learned civilian, furores non judicia 
b Alber. Gentil. lib. lecti. Et Epi. 3. c. 18.  but these laws in the times of Archadius, Theodosius, & justinian, recovered their strength, & shining to all the Common weals of Europe, as the Sun to all the climates of the earth, have for their worthiness, & necessary use & employment received entertainment, countenance & great reward of Emperors, Kings, and Princes.  
The law of this Realm hath as the Realm itself suffered change by conquest: yet as far as I can perceive by record of ancient times, rather reason then sovereignty, and consent rather than command, was the principal agent in the alteration, our greatest lawmakers in former times were Ina, Alured, Guthran, Edward, Ethelstane, Edmund, Edgar, Ethelred, Canutus: after their Reigns ended, and their laws established; K. Edward the Confessor after his inauguration in the throne of England, finding in the garden of the Commonweal some laws like to weeds, others like to flowers, as a diligent be he extracted a good juice out of the better laws, and the worse by him neglected by disusing withered. King William the Conqueror having wholly subdued this Realm, perceiving that his subjects did with great applause savour the laws of King Edward: yet seeing in them somewhat which himself and others in politic consideration disliked, imitating the frugal housewife, who knoweth that the best honey cannot be good until it be clarified and refined, singled out twelve persons out of every shire (imitating perhaps the Romans, who appointed decemuirs for the making of their laws:) Men of approved skill and fidelity, who might by exploration sever the dross from the the gold, and the erroneous laws from the convenient and commodious, 
c Lambard. lib. archaeon.  adding thereunto some customs of Normandy, 
d Lib. des customes de Norman.  whereof many for the resonablenes of them have to this day continued. This law hath had daily increase, many of the old laws standing unaltered, some of them by reason of some sinister effect or sequel happening by them, justly changed, and others by reason of new accidents adjoined unto them: It hath flourished long in this good estate, and of the continuance and prosperity of it, three reasons in my shallow conceit may be rendered. First, because it so agreeth with the law, religion, and discipline of the holy, Catholic, and true Church of Christ, that there is nothing in it which to the law of God is cross or opposite. Secondly, because other nations, with whom we have commerce, & intercourse, do not find their commodities or liberties to be impeached by this law. Thirdly, because they are rather popular, then peremptory, rather accepted, then exacted, and rather embraced, then persuaded. And with this I conclude, leaving these laws to your further and more considerate commendation.  
Thine in all dutiful respect. William Fulbecke.   

The Table of the several Titles of the fifteen Dialogues ensuing.  

1 Of Contracts. Fol. 1. a.  
2 Of Gifts and Grants. 7. b.  
3 Of Bargains and Sales. 11. b.  
4 Of Seignories and Services. 17. b.  
5 Of jointenancy and tenancy in common. 28. b.  
6 Of exchanges. 32. a.  
7 Of Devises and Legacies. 34. b.  
8 Of Borrowing and Lending. 50. b.  
9 Of the bailment or Delivery of goods and chattels. 54. b.  
10 Of the form and manner of ordinary proceeding in matters of Law. 57 b.  
11 Of common Wrongs and Trespasses. 78. a.  
12 Of unlawful Assemblies, Riots, Routs, and forcible Entries. 82. a.  
13 Of Treason and Rebellion. 84. b.  
14 Of Homicide that is Murder, Manslaughter, and Homicide by chance or misfortune. 89. b.  
15 Of Theft, Burglary, and Robbery. 101. a.    

The Introduction to the Dialogues.  
A Gentleman by name Nomomathes, with the riches, fortunes & revenues of this world very plentifully furnished, being liberally minded, and willing that his fountains should flow forth to the benefit of others 
a Proverb. 5. vers. 16. , being a great favourer of learning, and desirous by all means to increase & advance it, maintained and kept with him continually in his house three learned men, & greatly addicted to the study of the Laws, one of them named Canonologus a Canonist, the other Codicgnostes a Doctor of the civil law, and the third Anglonomophylax a Barrister, & professor of the common law of this realm of England: of them he made great account, & of their learning above all human sciences, as being most fit and pertinent to the guiding & administration of public affairs: & as the famous Cosimus, Medici's, & Laurentius his nephew 
b Machia. lib. 7. & 8. Flor. hist. , did harbour in their houses at several times, and with many benefits pleasured the two excellent men & stars of learning Marsilius Ficinus, and joannes Picus Mirandula, being in their houses the nurseries of good learning, as two fair flowers in their natural root: & as Cato 
c Plut. in Cat.  the Utican a long time before the family of Medici's was known in Florence, or Florence was known by the name, had continually in his company three worthy philosophers Apollonides the Stoic, Demetrius the Peripatetic, and Cleanthes a cunning Physician, many times conferring with them, always profiting by them: so this Gentleman of whom I speak, reaping much good and benefit by the persons abovesaid did use them exceeding kindly, and many times proposed diverse questions of the law unto them, wherein he had good resolution; and having sequestered himself from the multitude of private affairs, wherewith he was often molested, having attained to a convenient dispatch and conclusion of them, he allotted certain times of purpose for the hearing of matters of law handled and debated: and sometime in his parlour, and chamber, sometime in his garden, and gallery, he would give diligent ear and attendance to such disputation & discourse, having set down certain rules, & as it were, a good platform of the exercise. The rules were but two in number, which were great in weight. 1. He willed them to exclude all cavilling, to yield unto the better reason, & with joint endeavour to search out the truth of every matter proposed: for he said that nimiùm altercando amittitur veritas. 2. He would not (sithence comparisons were of all things most saucy & malapert) that they should enter into any disdainful comparison of the laws which they professed, but should rather use them as brethren, then as enemies, and should reverence the greatness of knowledge, where they found it, & pardon the weakness when they had discovered it, without bitterness of tongue or venom of heart, assuring themselves that the meanest of these Laws might in some particular things profit the greatest of these lawyers: for as he observed the sayings & doings of Cato in stead of a law, so one of Cato's sententious & judicious oracles he had always in his mouth, Alienan arten temerè ne contemnito: having by these rules as by limits bounded the order & manner of there conference, he proposed certain things distinctly, & in order to be discussed, which were thus by him marshaled. Because in the range of all human affairs subject to the contemplation of law, contracts have from ancient time been the ground of vesting & altering the property of things, he would therefore first have them to begin with a discourse of contracts: & because there be two things following after contracts concluded much in use namely. 1. a gift or grant. 2. a bargain or sale, he would therefore of these two have them diligently to argue: & because gifts have been often made to raise and create a tenure, his desire was that in the 4. place they should discourse of signories and services: & for that grants or gifts be made sometime jointly, or by moieties he would have them to speak somewhat of iointenants or tenants in common: & because they that have things by gift & grant do often exchange them, his mind was they should handle the nature, & manner of exchanges, & since the last disposing of all worldly things is by the last will & testament of the party, he therefore requested them to be painful herein: after as touching the conveyances of lands, which be in the realty he would have them to proceed to personal things, as namely to treat of borrowing and lending, and of the bailment or delivery of goods and chattels: because such things were much in use. And because these and the precedent matters were many times occasions of action, therefore he thought it convenient that they should speak somewhat of the form and manner of ordinary proceeding in matters of law, and when they had finished this task abovesaid, he prayed them to discourse of penal and criminal matters, of common trespasses and wrongs, and other offences against the peace, the order of which he would hereafter set down. The method of their conference being thus digested, and respite of study and deliberation being given, Nomomathes thus spoke to Codicgnostes.   

The first Dialogue. Of Contracts.  NOmomathes. 
I pray you Codicgnostes let me know whether any persons are by law prohibited to make any contract: 
1. Division.  deliver your knowledge herein, and let your companions speak to this point, and others that I shall propose, when and as far forth as shall seem good unto them.  Codicg. 
The chief ground of contracts is consent, 
1. The ground of contracts.  
a L. 1. ff. de pactis, & in c. Antig. Eo. tit. de pact. & l. con since. ff. de action. & oblige. l. 1. ff. manda. Et l. sicut C. de actio. & obli.  so that the persons which contract must be able to consent, and consent groweth of knowledge and from a man's free will, directed by sufficient understanding: 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 wits, and religious persons, whether or how far forth they be good.  do a thing: as a man that is distracted of his wits: or an infant that is within years of discretion, 
b l. 5. ff. ad leg: Falcid. l. 12 de leg.  and the contract or covenant of such persons is not ratified by oath, which by law are forbidden to contract, 
c l. non dubium C. de legib.  as Monks and Friars and such like religious persons.  Canonologus. 
Indeed such persons are said in our law to be mortui mundo, dead to the world, 
d 16. q. ultim. c. si.  and they cannot live without their Cloister no more than a fish without the water, 
e 16. q. 1. plac.  and he can have nothing private or proper to himself, and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio, 
f De sta. more. c. 2. & C. ad monaster. Ca 1. & 2. de postula. 16. q. 1. monach. etc. religios. de procur. in cler.  and he can not be any man's advocate in a cause, or any man's proxy without the consent of his Abbot or Sovereign, and that must be to the use and behoof of his monastery, and the like law is of Friars. 
h Cle. dud. de sepul. & Cle. ex●ri de parad. de verbo sig.   Nomomathes. 
But is there no difference in the Law, betwixt the contracts of infants and the contracts of Monks and Friars?  Codicgn. 
Yes very great: For Monks and 
3. Monks are absolutely prohibited by the Civil law to make any contract: infants are disabled with a certain qualification.  Friars are prohibited by Law to make any contract, so that as I have abovesaid, their contract can not be good though it be confirmed by oath: But infants are not ture prohibiti, but inhabiles ex juris dispositione, and therefore their contracts may by oath be established 
i Authent. sacramenta puberum cum tota sua materia. C. si adver. vendit. & in corpore unde sumitur. .  Anglonomoph. 
As the former Laws have very greatly disabled Monks and religious persons, who are tied to a certain rule: so our Law hath very much diminished their ability, as to their intermeddling in secular matters. In a Scire facias brought by a Prior against a parson out of a recovery had against his predecessor, it was 
4. That by the Common law Priors under the obedience of a Sovereign, and which wear datife and removable, could not implead or be impleaded without their sovereign, unless it were by special custom.  held that the defendant should not be estopped by the admittance of his predecessor in the first action, to plead in this Scire facias that the Prior was a Monk professed under the obedience etc. and was datife and removable, 
k 34. H. 6. 2.  for though it have been held that a Prior perpetual may prescribe to implead and to be impleaded without his Sovereign, yet by common intent a Prior datife and removable at the will of the party shall have no action by such usage, but if he will have any plea he must show some special matter, 
39 E▪ 3. 34.  and it hath been said that the knights of S. john of jerusalem had their possessions several, 
5. The same Law was of the knights of S. john of jerusalem.  yet they could not use an action without their Prior, 
m 32. H. 6. 5▪ & 31.  and a Prior which was presentable, and had Covent and Common seal, could not before the dissolution of Abbeys and Priories charge his house in perpetuum, without the assent of the Patron and Ordinary, neither could he have the writ De aduocatione decimarum, nor a juris utrum, 
n 12. H. 4. Stath. tit. Charge.  and a writ was abated being brought against a Prioress, because the Prior of S. johnes was commander of the house whereof she was Prioress, and because she was made Prioress by him, and was under his obedience, and removable at his will, notwithstanding that she had Covent and Common seal and had her possessions several, and was wont to Lease the land for term of years, 
o 12. R. 2. nonability. 4.  and if a contract be made with an abbot and his Monk, the writ that hath been grounded upon this contract hath been brought against the Abbot only, 
p 33. E. 3. B●● 913. 2. H. 4. 21.  and so hath a writ of Detinue been brought being conceived upon a delivery of goods made to the Monk to the use of the Abbot, 
q Ibidem.  yet it hath been thought that an action will lie against a Monk, if he be not in subjection to some Sovereign. 
r 14. H. 4. 37.  But it hath been taken for a general learning with us that Monks & Friars, & Canons professed & the like, could not grant any thing, 
s 14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31.  neither could they be grauntees of any thing, 
t 5. H. 7. 25. 19 H. 6. 25.  neither are they capable by way of devise, 
u Perk. tit. Devis. sect. 537  & the covent of an Abbey or Priory can yield so little advantage to the house in matter of purchase, that if in former times land had been given to an Abbot and to his covent, this could not be good save only during the life of the Abbot for the want of this word (successors) 
a 11. H. 4. 84. ● Curi.  but touching the ability of infants in contracts and purchases the Law is diverse according to the diversity of cases, and if an infant do buy of any a coat or necessary vestment for a certain sum, or if he make a covenant for his meat paying 12. d. a week according to M. Paston his opinion, this covenant is void, yea and if 
6. The infant's contract for his meat, apparel, and necessaries is good, if he be of the age of fourteen years.  he make a bond for it, the bond likewise is void: but Markeham thinketh the contrary if the infant that is so bond be of the age of fourteen years, 
b 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, 
c Br. Labourers 30.  and if an infant lease land for term of years rendering a rent, or do sell a horse or 
7. That which an infant doth without actual livery may be avoided by action without entre o● seizure but that which he doth by actual livery can not be avoided without entre o● seizure.  any other thing he may choose to have an action of debt for the rend reserved upon the Lease, or a writ of trespass for the occupation of the land, and so he may have an action of trespass for the occupation of a thing sold by him: and if an infant do give to one a horse without actual delivery of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gift, the infant may have an action of Trespass against him, 
d 18. E. 4. 2.  and if an Infant make an Obligation or Lease in writing and enseale it, and deliver it to a stranger as a scroll to deliver to him to whom it is made when the infant cometh to full age as his deed, and the stranger doth it, this is void, because it is done by a commandment, which is void, 
e 27. H. 6. 7.  for the commandment or assent of an infant is void in law 
f 11. Ass. pl. 14 , so that a difference is to be held, where an infant passeth away a thing to an other by livery in facto and where not: for in the one case the gift or conveyance is voidable only, in the other it is void to all intents. For if an infant make a lease for term of years or a lease by dures, if the lessee enter, the infant may have an assize, but if the infant make a feoffment and deliver seisin accordingly, he shall have no assize, for by the livery of seisin the feoffee had a possession at will at the least: but if he make a letter of attorney to deliver seisin he may have an assize, 
g 9 H. 7. 24. & 2. Mar. 109. Dyer, Rug. case  but where any man doth a thing which is for the profit of an infant he shall not be punished as a trespasser, as if an infant command one to repair his houses and he doth it, this shall excuse him in an action of trespass. 
h 13. H. 7. 17. ● Keble.   Nomomathes. 
You have spoken sufficiently 
2. Division.  Anglonomop. of religious persons and infants, and of contracts made by them: Now I pray you 
1. Whether the contract of the servant shall be accounted in Law the contract of the master.  show unto me whether the contract of the servant shall be accounted in law the contract of the master.  Anglonomop. 
It hath been held in our books that if a man have a Bailie or servant who is 
2. That according to the common Law the master shall be bound by the contract of a known servant, if the  known for his servant, if he send him to fairs or markets, to buy, to sell, or to do other things markettable, his master shall be charged with the payment, if the thing which is Marchandized do come to his use, 
i 2. R. 2. Debt 3. per Curi.  and it 
thing Merchandised do come to his use: and he shall be bound by the contract of his factor though the goods never came to his possession.  hath been likewise held that if a man send his boy to the market to buy things for him and he buyeth them and bringeth them to him, and the vendor bringeth an action against the Master and averreth that the goods came to his use, he shall recover against him in the action, 
k 4. E. 2. Debt 168.  and Pigot his opinion is that if one make an other man his Factor to buy things for him, if he buy Merchandise of any, the Master shall be charged by this contract though the goods never came to his possession, because he hath given unto him such a power, 
l 8. E. 4. 1. & 9 Duchess de Suffolk's case, per Pigot.  But in the eighteenth year of King Edward the second a man was bound in a recognizance to S. to pay at a certain day, at which day the Reconusor came and proffered the money in Court, and because S. was in the kings service 
3. The act of a man's Attorney or his general receyvor, doth not bind the master without special warrant.  there came one A. as his general Attorney, and said that he was ready to receive the money and showed forth to the Court a warrant of Attorney, but because the warrant of Attorney was that he should be his Attorney In placitis & quaerelis ad lucrandum & perdendum, and the Recognisans was a thing already adjudged and determined, and therefore could neither be plea nor quarrel, therefore it was thought that his warrant did not extend to receive money, 
m 18. E. 2. execute 245.  so in an action of debt brought upon an obligation the defendant did confess the deed, and said that he had paid the sum to one C. the general receyvor of the plaintiff, and he made thereof an acquittance which he showed forth to the Court, but because he had acknowledged the obligation, and had showed no warrant of the plaintiff, to pay the said money to C. so that the acquittance which was showed, could not be the deed of the plaintiff, The Court awarded that the plaintiff should recover his debt and his damages, 
n 5. E. ●. 63.  but as to a man's servant I take the Law to be that his contract shall extend to his Master, as well for prejudice as advantage, And therefore if a man's servant sell to one certain cloth, and warrant it to be of a certain length the action will lie against the Master only, and not against the servant, and if A. do assume to cure B. of a wound and he sendeth his servant to B. to lay medicines to the wound, whereby he is hurt and impaired, B. can not have his action upon the case against the Servant but against the Master, 
o 11. E. 4. 6. p▪ Choke & Brian  and of late time the Lord North being Chancellor of the augmentation Court, delivered an Obligation made to Queen Marie to his Servant to deliver over to the Clerk of the augmentations, the Obligee and the Servant did conspire and cancel the Obligation, the Master was held in this case to be chargeable. 
p 5. Mari. 161. Dyer per Iustitia●.   Nomomath. 
You have satisfied me touching 
3. Division.  contracts made by a man's servant, now I pray 
1. Whether the wife's contract made in the behalf of  you show me whether a contract made by the wife in the behalf of the husband will bind the husband. 
the husband, will bind the husband.   Anglonomoph. 
In an action of debt brought against husband and wife, and an other, upon 
2. That by the common Law an action of debt brought upon a contract made by the wife for the behoof of the husband must be brought only against the husband, without naming the wife.  a contract made during the coverture, for the woman it was said, that a feme covert can not make a contract, wherefore judgement was demanded of the action, and the husband and the third person pleaded the same matter to the writ, and they could not be admitted to plead to the writ, because the woman had pleaded to the action: but they pleaded the matter abovesaid in bar of the action, and were received, 
q 34. E. 3. Brief 923.  and if the husband and the wife do borrow money, this shall be accounted the borrowing of the husband only, 
r 33. E. 3. Brief 913.  and if a man's wife do buy goods of one to the use of her husband, the wife is not in such case to be named in the writ, that is to be brought hereupon. 
s 2. H. 4. 21. p. Markeham.   Codicgn. 
By our Law, no man's contract made 
3. That by the Civil Law the husband is in no sort to be charged by the contract of his wife.  in the behalf of an other, will bind the other, but such a persons contract who may be bound for the other. 
ss C. & ff. de pact. in congr. tit.   Nomom. 
You have showed unto me abundantly, 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 positively set down in Law, now I would have you proceed to declare how by the material causes of contracts, they may stand or fall.  Codicgn. 
A contract hath a material substance 
4. Division. 1 How contracts may stand or fall by their material causes, or the defect of them.  whereof it is made, as well as other things, and the material cause of a contract is the thing for which we do contract: for as in mechanical and artificial things there is required some apt matter, 
t D. L. adeo §. cum quid.  whereof a thing may be wrought, so in contracts and convenants as well these which are determinable by the Law of nations, as these which are sentenced by the Civil Law and other Laws, to the end they may be well perfected and 
v) ff. de verb. oblige. l. inter Stipulant▪. §. sacramet de praescrip verb. l. insula.  concluded, some material cause is requisite. ᵘ  Nomom. 
Why, are any contracts ordered by 
5. Division. 1 Some contracts are ordered by the law of Nations.  the Law of Nations?  Codicgn. 
Yea, for by that Law an Ambassador may be impleaded for such contracts as he maketh during the time of his Embassage, lest (as julianus 
2 An Ambassador may according to the Civil Law be impleaded by the Law of nations for a contract made whilst he is Ambassador.  sayeth) he presume to take other men's goods with him into his own country, 
a L. 25. D. de iud.  or (as Paulus reasoneth plainly and pithily) lest men fearing to contract with them, if they be not in this regard subject to Law, they be excluded from all commerce and intercourse of bargain: 
b L. 24. de min. l. 11. ad Vell. l. 12. de adm. tu.  and this Law is supported by that excellent rule of equity, that no man ought to grow richer by an other man's loss, and if one that is no Ambassador do contract with one, and after be made an Ambassador, yet he is now chargeable with the contract: likewise an action will lie against an Ambassador by the Law of Nations if he covenant to perform a thing when he is Ambassador, if it so fall out that the charge and credit of Embassage be committed unto him. 
c L. 3. D. de lega: African. L. 2. p. 1. de iud.   Nomom. 
I am very desirous to know, Codignostes 
6. Division. 1 Whether contracts made with Pirates or robbers in the high way be good in Law.  whether contracts made with Pirates and with robbers by the high way are available & of force by the Civil law, or the Law of nations.  Codig. 
I do not think that Pirates and robbers are to have advantage by any Law in matter of contract, because they have cast aside all care of human society, and seek to reduce the world as much as lieth in their power, to the pristinate wildness and savagnes of nature, when men did live like beasts, and as Lucretius sayeth. 
d Lucret. li. 5.   
Quod praedae obtulerat fortuna cuique, ferebat  
Sponte sua sibi quisque valere & vivere doctus.  
And such persons may not enjoy the benefit of 
2 That Pirates and robbers are not to have advantage of law in matters of contract.  Law to which they are enemies, 
e Paul. l. 63. ad leg. Falc.  To such men which have withdrawn themselves from the communion and society of men, and (as Florus 
e Flor. lib. 3.  sayeth) have broken the league of mankind, why should the Law of nations, which is nothing else but the communion, and league of nations extend any favour. Pirates (as Pliny saith) are enemies to all men living: 
f Plini lib. 2. ca 46.  and therefore Cicero avoucheth, that if thou dost not bring to robbers or Pirates, the ransom which thou hast promised for thy life, there is neither offence nor fraudulent dealing in thee, no though thou hast promised with an oath. 
g Cicer. pro leg. Manil. & 3. de office  Therefore some do wonder that D. Hotoman dare affirm, 
h Hotom. 7. Illust. question.  that the 
3 That D. Hotoman erreth greatly in maintaining that Pirates & robbers may lawfully contract.  Law of nations doth extend to fugitives and robbers, and his chief reason is, because there is no Law which doth intredict and forbid to covenant or contract with them, and such things in his opinion, as are not verbally forbidden, are implicatively permitted, This reason is of no validity, for it may be implicatively forbidden, and in that they may be enemies to all men, and do spare no man, they ought not to protect themselves by the Law of nations, which is the Law of all men: The question is not what may be done unto them, or how many men have dealt with them, but how by rule of equity and soundness of reason they ought to be dealt with: For to dispute of Law is to dispute of a public bond, whereby we are bound and obliged, but we are not bound to such lawless, disorderly, and incorrigible persons, by any common respect of duty.  Nomom. 
I will not trouble you farther Codicg. 
7. Division.  with more ample discourse of this matter, but will rest well apaied with that which you have already spoken: Now I long to here somewhat of Anglono. touching the material causes of contracts.  Anglonomo. 
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 implied.  material cause of a contract, 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 keep the horse till I have paid you the money, 
i 10. E. 4. 18.  and M. Choke is of opinion that if you buy of one a horse in Smithfield for a certain sum of money, and do not pay him the money presently, he may sell the horse to any other incontinent, and you can not have any remedy against him, for otherwise he might be compelled to keep his horse for ever against his will, 
k 17. E. 4. 1. per Choke.  For it is implied in the bargain that the vendee must pay the money incontinent, otherwise he cannot have the thing sold, but if the payment be respited unto a certain day upon the contract this is good enough, so that the money 
2 That a contract is not good without money paid in hand, or a certain day of payment limited.  be paid within the time prefixed. 
l 21. H. 7. 6.  and 28. H. 8. it is positively set down for Law that a contract is not good without present payment unless a certain day of payment be limited, so that the one of them may have an action of debt for the money, the other a writ of Detinue for the wares: 
m 28. H. 8. 30. Dyer.  An implied consideration is when the Law itself doth intend and enforce a consideration, and therefore the Host of a common Inn may detain a man's horse if he will not pay him for his horse meat: And so if a Tailor make a gown for any man he may detain the gown till he be paid for his labour. 
n 5. E. 4. 2.   Nomomat. 
Doth not the defect of form in 
8. Division. 1 Whether the defect of form do destroy the contract.  a contract frustrate and defeat the contract.  Codign. 
Yes: for as the substantial form in material things is necessary to the essence and constitution of such things: 
o ff. ad exti●b. l. julian. §. & l. falsi. l. si is qui. §. quidem.  so in contracts a 
2 That solemnity and concurrence of circumstances is required in contracts by the Civil law.  certain solemnity and concurrence of circumstances is required for the perfiting of them, as their natural and proper form: 
p ff. de verb. obligat' l. sciend. & l. continuus in princip. Eo. l. §. si quis ita.  and without such ceremoniousnes the contract is of no force.  Anglonomo. 
Our law likewise requireth form either in pronouncing the words of the contract, or else in observing some other circumstances belonging to the contract. For the first, if a man promise to another xx. li. with his daughter in marriage, if he marry the daughter and the money be not paid he shall not have any action of debt, or action upon the case at the Common Law, but he must sue for this money in the Spiritual 
3 That matrimonial contracts, if there be no assumpsit in them, are to be decided by the ecclesiastical Law: if there be an assumpsit, by the common law.  Court. 
q Fitz. nat. br. 44. a, 14. E. 4. 6. Reg. 46. & 48. 15. H. 3 Prohibition 22. 16. H. 3. Prohi. 24.  For here is no good form of contract: and (as Master Bracton sayeth) Matrimonium est principale, & eiusdem juris, id est jurisdictionis esse debet accessorium. 
r Bracton lib. 5. cap. 16.  And therefore if a man by reason of matrimony or testament do acknowledge in a Spiritual Court that he ought to pay to one a hundredth marks, or some other sum at a certain day, if the money be not paid at the day accordingly, he may be sued for this money in the Spiritual Court, and no prohibition lieth, 
s Fitz. na. br. 41. b.  but if in the former case he had promised one x. li. if he would marry his daughter, if he do marry his daughter and the other will not pay the money he may not sue him in the Spiritual Court for this money, but at the Common Law, 
t Fitz. na. br. 44. a, et 22. Ass. pla. 70. p Tho. & 16. H. 3. Prohibit. 22.  for now it goeth in form of contract, as for the other matter where form is required in observing some other circumstance in the contract, that may appear by this case: if a fellow sell a horse without covin in a market overt, this doth alter the property, and the very proprietary cannot have restitution of the horse notwithstanding the statute of 21. H. 8. c. 11. but if he had sold him out of a market overt the property had not been altered. 
u 33. H. 6. 5. 18. E. 4. 24. 7. H. 7. 12. Crompt. just. de Peace 172.   Nomom. 
I will trouble you no further in this matter, but will proceed to inquire somewhat touching Gifts and Grants.   

The second Dialogue of Gifts and Grants.  NOmomathes. 
In handling the learning 
1. Division. 1 What things may be given or granted.  of Gifts and Grants, I think it most fit in the first place to be inquired what things may be given or granted, wherefore first I pray you satisfy me in this.  Codicgn. 
A man may give all such things as 
2 That all things that lie in commerce and may be received may be given.  an other may receive: 
a l. in aedibus §. fi. ff. Eo. tit.  for dare & accipere sunt correlativa: and all such things may be received which lie in commerce.  Nomomat. 
Then things consecrated and ecclesiastical may not be aliened, because they lie not in contract.  Canonologus, 
Things ecclesiastical though they 
3 That things ecclesiastical though they be not consecrate cannot regularly be granted.  be not consecrate, cannot regularly be given or granted, 
b Cap. 2. de donation: & Eod. tit. de re. ecclesi. non alien. in antiquis 6. & Cle. & in c. sine except: cap. si quisquis 12. q. 2. & in l. jubemus cum suis authen. C. de sacrosan. eccle.  and I did use this word (regularly) because where such alienation may bring profit to the Church, it shall be of force. 
c In dict. iur.   Anglonomo. 
In our Law a writ of Contraformam alienationis lieth where a man gave lands or tenements to an Abobt or house of Religion before the Statute of Quia emptores terrarum, to hold of him in frankalmoigne, and after the 
4 That if an Abbot did alien lands given in frankealmoigne to his house the donor might have a writ of Contra formam collationis.  Abbot with the Covent did alien the same land in fee to another, now he that gave this land or his heir may sue this writ of Contra formam collationis against the Abbot or his successor, but not against the tenant of the land, but when he hath recovered the land, he may sue a Scirefacias against the tenant of the freehold, 
d Fitz. na. br. 210. f.  and this writ of Contra formam collationis lieth not, though the Abbot doth alien in fee, unless the Abbot and the Covent do alien in fee, 
e 19 E. 3. Contra formam collationis. 5. Fitz. nat. br. 211. c.  and if an Abbot with the Covent do alien an advowson in fee, at the next avoidance the foundor or his heir may present to the advowson, because they cannot in such case sue a Contra formam collationis. 
f 20. E. 3. Contra form. collat. 6   Nomom. 
Let me know I pray you how many 
2. Division.  kinds of Gifts there be.  Anglonomoph. 
They be of diverse sorts: some 
1 The diverse kinds of gifts, some being free some compensatory.  are called free gifts, which proceed merely of a man's good will and benevolence: others may be called Compensatorie, because they are given for some cause or consideration: Gifts or grants of the first kind are such as I now shall recite out of our books. First, the Queen may grant 
2 What is wrought by the Queen's grant ex mero motu.  to one land ex mero motu, and though her highness do rehearse some consideration in the patent of her grant which is not true, as if the consideration be, that whereas the grantee hath done her Majesty good service on the Sea, or beyond the Sea, or in her majesties wars, or in some other business: 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, 
g 26. H. 8. 1. per Fitz.  and whereas the Queen ex certa scientia, & mero motu doth confirm a grant, supposing that a grant was made before, where in truth there was no such thing, it is held that her highness shall be concluded to say, that no such grant was made: otherwise it had been if this word (informamur) had 
3 What is wrought by her majesties grant by words of Informamur.  been used in reciting the grant. 
h 9 H. 7. 2.  For if her highness grant any thing upon the false suggestion of the party, this grant is void, because she is deceived in her grant, 
i 11. E. 4. 1. per Littlet'.  and we have a rule: Si suggestio non sit vera, literae patentes sunt vacuae. 
k 3. H. 7. 6.  For when the grant is made upon the suggestion of the party, the words of the grant shall be taken strictely, but when it is ex mero motu it must be construed and interpreted according to the King's intent, and as favourably for the grauntee as reason will permit, 
l 21. E. 4. 25. Abbe de waltham's case per Browne & Genney.  and if a common person do without consideration give to I. S. his goods (indefinitely) all his goods do pass, and if a common person do by deed enroled enfeofee the Queen of his lands without any consideration, the Queen shall be seized to her own use, as having such prerogative in her person, that she shall not be seized to the use of any other. 
m 28. H. 8. 7. Dyer Bokenhams case per Knightley.  Gifts made upon consideration may be explained by cases likewise drawn out of our books, though in a common persons case the consideration which is mentioned be false, yet the use shall be to the feoffees as appeareth by Wilkeses case, who reciting by his deed falsely 
4 Whether upon a false consideration expressed an use shallbe raised in a common persons case.  that in consideration of 700. li. paid, he had enfeoffed A. and B. to have and to hold to them and to their heirs, to the proper use and behoof of the said A. and B. in perpetuum: afterward by Office it was found that Wilkes was seized of the land, and that he held in Capite, and I. was found to be his heir and of full age: yet it was held that the heir should not be received to aver the consideration false against the acknowledgement of his ancestor: 
n 1. Eliz. 169. Dy. Wilk. case.  and so it hath been held in Villiers his case, that where money is the consideration expressed an other consideration shall not be averred, neither shall a Causa 
5 That a consideration may be averred which is not repugnant to the use expressed.  matrimonij prelocuti be averred where an other consideration is expressed, but where no consideration is expressed, there a consideration may be averred: or where the consideration averred is not repugnant to the consideration expressed in the deed. 
o 4. Mar. 146. Die, Villier case  And though the consideration be not valuable, yet it may be a good consideration to raise or to alter an use: for in Sharingtons' case it hath been adjudged, that the affection of the father for the provision for the heirs males which he may beget, and the affection which he hath that the land may remain in his blood and name, be 
6 That an use may be altered by a consideration not valuable.  causes sufficient to make uses in the land, for (as it is there said) Naturae vis maxima, & Natura bis maxima. 
p 8. Eliz. 298. Com̄: Sheringtons' case.  And so betwixt brethren pro fraterno amore is a good consideration to raise an use, 
q 13. Eliz. 302. Dyer.  and a man levied a fine to the use of himself, and such wife or wives as he should marry, and after he took to wife A. she shall take in jointure being by way of use, otherwise it had been by estate executed. 
r 10. Eliz. 274 Dy. per Wray, Mead, Plowden, & Ownslaw, & 3. Eliz. 100 Dame Brays case.   Conono. 
By our law a man cannot give any thing to the common weal without consideration, but to a private person he may. 
rr l. hoc iure in princi. ff. de donat. Gl. in d: l. hoc iure: et l. Campanus ff. de oper: libert:   Ganonal. 
By the Cannon Law nudum pactum doth bind the party, especially being confirmed by an oath: much more a bare donation. 
rrr c. 1. de pact.   Nomom. 
As to the point of consideration we 
3. Division.  shall better perceive the strength and properties 
1 In what cases grants shallbe taken most beneficially for the grauntee.  thereof, when we enter into discourse of bargains and sales, now let me know in what cases and how far forth grants shallbe taken most beneficially for the grauntee.  Anglonomoph. 
When a grant is noncertaine, 
2 That a grant non certain must be taken most strongly against the grauntor.  it must be taken most strongly against the grauntor, for if a man grant an annuity out of certain land, and he hath no land▪ at the ●ime of the grant, yet the grant shall charge his person, 
s 9 H. 6. 12. p Babingt.  and if a deed of grant be good in parcel, and 
3 That a grant may be good in part, and for parcel not.  for parcel not, that which is for the advantage of the grantee shallbe taken to be good, as if a man grant unto me an annuity, proviso that it shall not charge his person, the proviso is void, and the grant is good; 
t 20. E. 4. 8. p Towns. 14. H. 4. 30. p Hank.  And if an annuity be granted pro consilio impendendo, though the grantee be well skilled in diverse sciences or faculties, yet counsel shallbe given in that faculty only, which was intended at the time of the grant, 
u 41. E. 3. 6. Annuit●e 19  But in some cases the grant 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 down or demolish the houses, nor make waist in them, for the intent was not so, 
a 17. E. 3. 17.  but if the King grant to me visum franciplegij in omnibus terris meis, & feadis, I cannot have this in any lands and tenements, which I shall afterwards purchase, 
b 38. H. 6. 10.  But 
4 How the ● Queen's grants and licences shallbe construed and interpreted.  if the king grant to a man that he and his heirs shallbe quit of tax for their lands which they have, this is a good grant though there be no tax due at the time of the grant, 
c Ibid:  And so is the Law of Tenths and fifteens, 
d 19 H. 6. 62. 21. H. 6. 43. 21. E. 4. 45.  and he to whom the King granteth a licence may not vary from the proper sense & the significancy of the words. 
e 18. E. 2. Fines 124.  And if the king before the dissolution of Monasteries had licensed an Abbot and his Covent to make a feoffment, if the Abbot only had made it the feoffment had been void, 
f 21. H. 7. 8.  And 3. Ed. 3. the King licensed one to levy a fine of the manor of Dale, to the intent to maintain two Chaplains, and he would have levied the fine omitting the chaplains, but was not suffered, 
g 3. E. 3. 5.  and 30. Edward 3. the licence was to levy a Fine of the Manor of Dale, and he would have levied the Fine with a foreprise or exception of certain acres, parcel of the Manor, rendering rend, but was not admitted to it, because it could not stand with the licence, which was that all the Manor should be charged with the rent, 
h 30. E. 3. 17.  So if the Queen licence one to make a feoffment by deed, he cannot make it without deed, 
i 21. H. 7. 8. per Frowike.  and this Law holdeth likewise in a common persons case, for if he that hath a warrant of Attorney to deliver seisin absolutely, do deliver-seisin upon condition this is a disseisin to the feoffor, 
k 12. Ass. p● 24  And a grant is not to be favoured contrary to the evident & perspicuous sense of the words. 
5 That a grant is not to be favoured contrary to the manifest sense of the words.  For if a man grant to an other a load of wood to take in his soil every year, and the grantee surceaseth the two first years, and the third year he taketh three load, he is a wrong doer for two of them: so if a man grant to an other a common for three beasts yearly, and he taketh nothing the two first years, he shall not have common for three beasts the third year. 
l 27. H. 6. 10.  The advowson of the Hospital of Saint Katherins  appendent to the Manor of B. the Hospital being void the Queen granteth manerium ac omnes advocationes cum pertinentijs, the present presentment doth not pass: 
m 13. Eliz▪ 300. Dyer.  for it is fructus advocationis, and not the advowson itself. 
n 11. Elizab. 283. Dyer.   Codicgn. 
The words of a grant are to be taken most strictly against the grauntor, because 
nn Phil. Deci. in Comm. ad Regul. iur.  he might have expressed his meaning in more full, large, and manifest words.  Nomom. 
Now resolve me whether a grant 
4. Division.  that is not good at the first may be made good by matter ex post facto.  Anglonomoph. 
In no sort: for if there be 
1 That by the common law a grant that is not good at the first may not be made good by matter ex post facto, neither by the C●uil Law.  Lord and three jointenants, and the Lord granteth the services of one of them to a stranger, this is a void grant though the same tenant do attourne, and survive his companions. For no attournment can make an evil grant to be good, 
o 5. E. 3. 34.  and if a man lease land to the husband and wife during their lives, and after granteth the reversion of the land which the husband holdeth for term of life, and then attournment is had, the grant is void, and the attournment also. 
p 13. E. 3. Bro▪ jointen. 63.  And if a man be bound to a Fem sole, and a stranger releaseth to the obligour, and after marrieth the feme, yet the release is not good. 
q 15. E. 3. feoffment 63.  So it is if in ancient time a Monk, Friar, or Cannon professed, which was no Sovereign of an house had granted to one an annuity, this was a void grant, though he had been after dereigned, or made Sovereign of the same house, or some other. 
r 2. R. 3. 5.   Codign. 
As that which is lawfully done cannot be made void to all intents, so that which is altogether void at the beginning cannot be strengthened by continuance of time. 
rr Phili. Decr. Comment. ad reg. iur.   Nomom. 
Let me ask you this question Anglonomoph. 
5. Division. 1 Whether a tenant at will may grant over his estate.  whether may a tenant at will grant over his estate or no, especially if he in the reversion do after agree to it.  Anglonomoph. 
I think not: for it is not properly an estate because it wanteth certainty, 
s 27. H. 6. 3.  but if my 
2 That the estate of the tenant at will is in manner no estate.  tenant at will be outed by a stranger, he may re-enter without my commandment: for the entre of a stranger doth not determine my will, 
t 11. E. 4. 3.  and an other reason why he cannot grant his estate, is because his estate dependeth as well upon his own will, as the will of the lessor, and if he lease over the land, his will as to that intent is determined, and by consequent his estate, 
u 22. E. 4. 5. per Brian.  and his estate is such a non-estate in the eye of Law, that he cannot have aid of his lessor, 
w 12. E. 4. 5.  and if the heir accept a rent reserved upon a lease at will made by his father, this cannot make the lease good, because it was void before, no more than his acceptance of a rent reserved upon a lease for years which is determined by re-enter, can make that lease good. 
x 14. H. 8. 11.   Codicgn. 
The estate of such a tenant is none at all in our law, unless he should set down his will in certain who demiseth. 
y l. qui se patris C. unde liberi.   Canonologus, 
So it is likewise in our Law. 
z C. de summa tri. & side cathol. l. 1.   Nomom. 
I will not insist any more upon this matter, but will pass to the consideration of bargains and sales.   

The third Dialogue of Bargains and Sales.  NOmomat. 
I will not ask ye what 
1. Division. 1 What things are forbidden to be sold.  things may be sold, lest perhaps you answer me such things as may be bought according to your answer in your last discourse of Gifts & Grants, but I would have ye show unto me what things are forbidden to be sold.  Canono. 
Things consecrate & religious may not 
2 That by the Canon Law things consecrate and religious may not be sold.  be sold, as Monasteries, and other places deputed to religious uses whatsoever name they challenge, as Temples, Hospitals, Chapels and such like, 
a C. de Xeno. docti. eo. tit. & C. de Epis. & cle●i in l. orphanatroph. & 42. distinct oratorium.  and that is accounted a religious place, in which a man's body or head is buried, 
b ff. de reli. & sump. sune.  and therefore if a man be buried in an orchard parcel of a man's farm, that becometh Religious, and it may not be pleadged or sold, but demised it may be. 
c C. quae res obligar. poslunt l. 1. l. quid ergo. §. sed si mortuum. ff. de leg. 1.   Anglonom. 
Of this matter I have spoken I hope sufficiently in the beginning of our second conference or Dialogue.  Codicgn. 
By our Law evil poisons are forbidden 
3 That poisons by the civil law are forbidden to be sold.  to be sold. 
d l. quod sepe § veneni. ff. de contrah.   Nomom. 
Why say you evil poisons? as if any kind of poison can be good.  Codicgn. 
Yea, there be some good and sit for 
4 That there be some poisons which be medicinable and profitable, & the prohibition extendeth not to these.  the expelling of diverse diseases, though they be not mixed with any other matter or thing, which is medicinable, so neesingwort doth cure frenzy or madness, wolf bane the biting of a scorpion, quick silver the scab or itch, and arsenic is profitable against the plague, as Mercurialis avoucheth, and showeth further that many artificers do use poison, and many creatures do eat and live upon poison, and pustles be cured by poisons, and poisons were before the fall of Adam, 
e Mercurial. lib. 1. de vene. c. 3. & 4.  yet there are some kinds of poison which are evil in themselves, & may not be used alone: and though Plato amongst his other laws promulgeth, that no man ought to sell or any way intermeddle with poison. 
f Plat. li. 11. de legi.  And Galen doth condemn Orpheus who taught the use of poisons, 
g Galen li. de antid. c. 7.  and reporteth that the inventor of a poisonful herb was therefore punished, 
h Galen li. de purge. me:  yet because there 
5 That some poisons 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, 
i Cai. in d. li. 3  therefore poison generally and absolutely is not forbidden to be sold by our Law.  Anglonomoph. 
By our Law corrupt victual is forbidden to be sold, and leather not sufficiently tanned. 
ii 13. H. 4. 1. 11. E. 4. 7. 1. R. 3. 1.   Nomom. 
Let me hear of you some special kinds 
6 What things are forbidden to be sold by the common Law.  and cases of bargain and sale out of your Law, and some good diversities, whereby me thinks the knowledge and understanding are greatly 
2. Division.  enlightened and increased.  Codicgn. 
If a man bargain and sell lands or 
1 Where a thing was not sold at the first and where it was sold, but the sale is defeasible upon condition.  goods to one upon condition, that if the whole price or that which remaineth to be paid be not paid or satisfied at such a day, than the thing whereof the price is agreed upon betwixt them shall be unbought: now if the money be not paid at the day, the thing whereof the communication was, in the intendment of Law was not sold at the first:  

k l. 1. ff. de leg. Comm. & li. qui ea lege C. cod.  But if it had been said, that if the money had not been paid at the day, than the thing sold should revert to the vendour, here there had been a perfect bargain and sale, but resolubilis sub conditione, defeasible upon the condition not performed, 
l l. 1. ff. de leg. commissor.  and in all conditions of bargain and sale this is done that either an imperfitte sale is perfitted, or a perfect sale is defeated. For when communication is had about the buying of a thing, and the price is agreed upon, and the bargain concluded, now if the vendour do at the time of the bargain and sale add such a condition, that if any other man within a month or fifteen days next after ensuing, will give more money for the thing sold, that then the bargain and sale shall be void: 
m L. 2. 1. respon. ff. de in diem adiec.  now the bargain 
2. A difference betwixt a perfit sale, and a sale to be perfected upon a condition performed.  and sale is perfit, but it is defeasible upon a condition: but if in the same case the price be agreed upon so that no person do within a month or fifteen days give more for it, now this sale is to be perfected upon a condition performed, 
n d. l. 2. 2. respon.  and there is great difference betwixt these two bargains and sales, For in the first case the buyer doth become owner of the thing Sed retractabiliter. 
o l. 1. §. sed & Marcellus ff. de addicti. in diem.  And in the mean time he shall take, & enjoy the profits of the thing sold, 
p d. l. 2. in si. l. Item quod dictum ff. de in diem addict.  & the peril of the thing sold if it be destroyed, lost, or made worse doth belong unto him, 
q l. ubi autem §. 1 ff. d. ti. de in diem addict.  but in the other case, namely, when an imperfect bargain and sale is to be perfitted, the bargainee doth not take the profits, neither doth the peril belong to him. 
r d. l. ubi auten in princip.   Anglonomop. 
You have put good diversities and we have many cases suitable unto them in our Law, which I will not omit. If a man grant to one the keeping of his Park, upon condition that if the grantee do not well keep his Dear within the Park the grant shall be held as no grant: and after the grantee killeth some of the Dear, the grauntor may bring an action of trespass 
3. That a priviso though it be placed amongst covenants, may defeat a bargain and sale.  for the breaking of his Park, and for the kill of his Dear, 
s 2. R 2. Bar 237.  and a proviso in an Indenture of covenants though it be placed amongst covenants, yet it shall be of force in some case wholly to defeat and dissolve the bargain and sale, as if a man bargain and sell a manor with the advowson in fee, habendum to the use of the bargainee and his heirs, in such manner as in the Indenture of covenants is agreed, and he covenanteth to suffer a recovery to the use expressed in the Indenture, rendering a rent to the bargainor and his heirs with a distress for the same, and a nomine paenae, & further pro ulteriore securitate, it is concluded that the bargainor should levy a fine to the bargainee with a rendering of the rent to the bargainor, proviso that the bargainee shall regraunt the advowson for life to the bargainor, and if it be covenanted farther that all estates afterward to be made shall be to the said uses, now if a recovery be suffered, and a fine levied, but varying from the Indenture of covenants, & the bargainee dieth before the regraunt of the advowson, the proviso in this case is a condition, and for the breach of the condition the bargainor may enter, 
t 14. Eliz. 311. Dyer.  and as to that which you have said 
4. That where a bargain & sale is perfit but defeasible upon condition, the vendee shall take the profits till the condition be performed.  that where the sale is perfit, but defeasible upon condition, the vendee shall take the profits till the condition be performed, it agreeth to a case in our law, where a feoffment is made to a feme covert of certain land, & the husband after disagreeth to the feoffment, yet the mesne profits which were taken betwixt the time of the livery▪ and the disagreement, shall not be restored to the feoffor. For if a Praecipe quodreddat, had been brought against the husband and the wife after livery, and the husband had disagreed pending the writ, the writ shall abate, yet the taking of the profits is justifiable: for the feoffment made to the woman is good till the husband disagree. 
u Per Br. Feofm. de terres 36. contra opinion. Brian. 1. H. 7. 16.   Nomom. 
Suppose that no day be limited when 
3. Division. 1. When no day is limited for the payment of a sum 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 Civil law have lx. days.   Codicgn. 
In such cases the Law doth limit a time and doth assign to the party charged with the payment, the space of lx. days. 
a Gl. mag. in c. Illo vos de pignori. & facit optime. l. quod si nolit. §. qui mancipium ff. de Aedil: edict.   Anglono. 
In our law we have a rule that when 
3. That by the Common law when no day is limited▪ the money is presently due, yet in some case by some authority the discretion of the judge is to limit a time.  a man is bound in xx. li. to pay x. li. & no day of payment is limited, the lesser sum is a duty presently, & ought presently to be tendered, 
b 20. E. 4. 8. & 21. E. 4. 38. le case del maior de Exetor: per touts les Sergeants & ascuns des justices.  howbeit in such cases by the opinion of Starkey, 
c Ibid. per Stark.  the discretion of the justices shall limit a time having 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 compelable to pay the money within one hour, neither may he differ the payment the space of 7. years, but the time must be adjudged by law: so if I prescribe to have common because of vicinage in such a village, namely every year after the corn be severed & carried away, to put in my beasts into the field, & all the terre tenants of the village have carried away their corn and hay except one man only, now the Law shall adjudge whether he had sufficient time to carry away his corn & hay, when his neighbours did carry it away, 
d Ibi. p Stark. & ●airef.  & so in the case before, the discretion of the justices ought to measure the time, & surely his opinion seemeth reasonable unto me, though I dare not affirm it to be Law. For every man's business ought to be rated by a convenient 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 days journey is measured of a day, an hours of an hour, 
e 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 enfeoff one, and no certain day is limited when the feoffment shall be made, that may be done and performed in a reasonable time, 
f 14. E. 3. Debt 138.   Nomom. 
Are there no other things to defeat a 
4. Division.  bargain and sale but only conditions. 
1. That a bargain and sale may be avoided through defect of some substantial thing belonging to the act.   Codicgn. 
Yes: for a bargain and sale may be avoided for some defect of some substantial thing required to the perfection of the contract, as where the thing that is sold is not markettable or the price is not certainly set down, 
g §. pretium. justi. Eo. & C. Eo. l. si.  or when lawful consent is wanting, as when a bargain and sale is extorted or enforced through fear or threatening, 
h Metus causa ff. & C. quod met. causa & l. si voluntate C. de rescin. vend.  or when there is fraud and deceit in the contract, 
i ff. de dol. l. eleganter l. si voluntate C. de rescin. vend.  as if the thing sold have some inward fault: As if a horse or some other 
2. That fraud and deceit in the contract by the Civil law doth defeat the contract.  beast that is to be sold, be troubled with some inward or secret disease, 
k C. de act. empt. l. emptor. l. ex empto. §. animalium quoque ff. eod.  for buying and selling being a contract bonae fidei, whatsoever thing is done in it ultra probatum vendendi modum is avoiable by law, 
l 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 difference where the fault of the thing sold is Latens or Patens.  in the thing sold is either latens or patens: if it be plain and visible, the bargainor is cleared from fault, 
m §. nunc qualit. retractetur l. ea quae §. quaed. ff. de contrahen. emp.  but if it be a secret fault than a distinction must be used: for either it was in beginning and growing at the time of the sale, so that it may easily be cured, and yet not easily perceived, & then the seller is not any way to be charged: or else the secret fault was some festered and inveterate disease, and in such case the seller is to be charged, 
n L. mortis C. de per: & come: rei vend:  but if the thing that is sold be liquid and gustable, and the buyer doth taste of it, or if it be measurable and he doth measure it as corn, or if it be ponderable and he doth weigh it as metal: or if he mark a beast which he hath bought, and the beast be afterward changed, in all these cases the damage resteth upon 
4. That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault, he is bound by the warranty by the Civil law.  the buyer, 
o L. 1. & l. q● si neque §. si. ff. de per: & come: rei vend: l. 2. C. eo.  but if the things aforesaid be not tasted, measured, weighed, or marked, but be sold at a venture, as if a man sell all his wine or oil 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, 
p l. si una▪ ff. de per: & come. rei vend.  but if he had not warranted it, than the law is otherwise. 
q d. l. 1. §. 1. C. eo. & l. quod saepe §. in his ff. eo.   Anglonomoph. 
In these cases, which you have now put, our Law (as I take it) differeth very little, or nothing from yours: for whereas you 
5. That bargains & sales, matters in writing and obligatory, may be avoided by alleging that they were made or done per menasse or by duresse.  say, that a bargain or sale enforced by terror may be avoided: in our Law even matters in writing & obligatory may be for the same cause defeated and frustrated: and if a man seized of an acre of land do give it in tail by deed, and maketh a letter of Attorney to deliver seisin, and all this is done by duresse of imprisonment, and livery of seisin is made, this is a disseisin to the donor, and the deed of gift and livery may by Law be avoided, 
r 41. E. 3. 9 2. E. 4. 19 per Littl. Park. tit. Grants Sect. 17.  and if a man menasse me to kill me, if I will not grant to him an annuity of xx. s. & for doubt of death I grant it unto him, this grant is voidable, 
s 11. R. 2. Duresse. 13.  But if a man grant an annuity to an other by threatening him that he will carry away his goods, whereupon he granteth unto him the annuity, this grant is not voidable by reason of such menacing, because he may have an action to recover the goods if they be taken away, 
t 7. E. 4. 21. Park tit. Grants Sect. 18.  but a threatening of battery is a good cause to avoid a deed, 
u 4. E. 2. Duresse. 9  and so is the threatening of imprisonment a good cause to avoid a bond, 
x 8. H. 6. 12.  but otherwise it is of a threatening to burn my house, 
a 39 H. 6. 51.  and a duresse or menacing at one place shall avoid an obligation made at an other place, 
b 38. H. 6. 13. ● moil. 33. H. 6 24. 2. H. 5. 10.  & as to that which you have spoken of fraud & deceit in bargains and sales, & the warranting of a thing to be good and sound, which is nought & corrupt, I could put many cases agreeing with your assertions & diversities. 
6. That by the Common law a warranty made upon the concluding of a bargain and sale doth bind, otherwise it is if the warranty be made after the bargain concluded.  If a man sell unto one certain cloth & warrant it to be of such a length, and it is not of that length, he which buyeth the cloth may have an action of deceit against him by virtue of the warranty: but if the warranty be made at some other time after the bargain, he may not have a writ of deceit, 
c Fitzh. N. B. 98. K.  & if a ma sell to an other seeds, & warrant than to be of a certain country, if they be not so a writ of deceit will lie: otherwise it had been, if he had warranted that they should have grown, or if he should warrant that the horse which he selleth, should go 50. miles in a day: and a writ of deceit lieth for selling corrupt victuale, without warranty, but not for selling rotten sheep though it be with warranty, & the warranting of a thing to 
7. That the warranting of a thing which is evident to the sense is no cause to bring a writ of deceit by the Common law.  be black which is blue, where the colours is evident to sense is no cause of bringing a writ of deceit, but is merely void: otherwise it is if the buyer be blind, or the thing that is bought be absent, 
d 11. E. 4. 7. 13. H. 4. 1.  & if a man sell a horse which hath a disease in his body, or if he sell certain quarters of corn which is full of gravel, a writ of deceit will lie without warranty, 
e 20. H. 6. 36. ● Paston. 11. H. 6. 22.  & if one sell to an other certain tons of wine, & warrant them to be good & they be corrupt, the vendee may have an action upon the case against the vendor, 
f Fitz. N. B. 94.  & the action will lie without warranty 
g 7. H. 4. 14.  according to the opinion of some, but M. Fitz. saith that there ought to be a warranty, or else no action will lie, for in such case his taste may be his judge, 
h Fitz. N. B. 94. C.  but where it is with warranty the writ must say that the defend at the time of the warranty made, knew that the wine which he sold was corrupted 
i 9 H. 6. 53. .  Nomom. 
You have spoken enough of this matter: 
5. Division.  now show me whether by a bargain & sale of of the profits of land, the land itself do pass.  Anglono. 
The grant or bargain & sale of the 
1. That by the Common law the grant or sale of the profits of land is the grant of the land itself.  profits of the land is the grant of the land itself, 
k 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy.  & if a man do lease to one an acre of land for life, reserving to himself the herbage, this reservation is void for he hath reserved the same thing in substance, 
l 38. H. 6. 34.  because the profits of land & the land itself are one & the self same thing in substance, 
m 10. H. 7. 9 6. ●. 6. 71. Dy.  but he may lease his Park excepting the wood & underwood, & his mamnor reserving the warren, but the soil of the wood and warren shall go to the lessee 
n 14. H. 8. 1. 33. H. 8. Br. Reseruat. 39 .  Codicgn. 
By our Law a man may grant and 
2. That by the Civil law a man may grant and demise the use of a thing and yet not grant the thing itself.  demise the use of a thing and yet not grant the thing itself, Suppose a man grant unto me his mare for a certain time, I may during the time use the mare at my pleasure, but I may not lend her or set her over to some other to use, neither can I have the fool which cometh of her, for by the grant I may claim usum only, but not usumfructum: and so he to whom the use of a man's ground is granted may take the profits of the ground to his own use, but may not sell them to others. 
o G●●atup. in vocabular. verbo uti & frui.   Nomom. 
I would gladly know when a man 
6. Division. 1. When a man selleth land in which treasure is hid and the vendor knoweth not of it, whether shall the vendee have the treasure. 2. How this word (treasure) is taken in the Civil law.  selleth his land in which there is treasure hid, whether the vendee shall have the treasure, because the vendor knew not of it at the time of the sale.  Codign. 
It may be you take the word Treasure generally, not properly & as it is used strictly in our Law, for if a man do hide any thing in the ground for gain, or through fear, or to keep it more safely, within time of memory this may not properly have the name of treasure, 
p l. nunquam D. de acquir: rer. domin.  for a treasure properly is, when money or things of good value have lain from time out of mind hidden in the ground, so that no man now hath property in it. 
q d. l. nunquam.  It hath been forbidden by many 
3. That by the Civil law money and other things necessary to the common use of this life are forbidden to be hidden, & buried in the ground.  laws that money may not be buried, 
r l. 4. D. ad leg. Iul: pecul.  and these Laws have reason for them, for it is against the 
s) Aristot. Nicomach. 5.  nature of money that it should be buried, being invented for the daily and common use of men: and the same may be affirmed of other things which are hidden: 
t L. 5. l. ●. D. de usufr. ca re. que us. co●.  and these prohibitory laws are fortified with this penalty, that things so hidden shall be forfeited to the Treasury. Plato had 
4. Plato his superstitious opinion of things hidden in the earth.  such a scrupulous, or rather such a superstitious conscience, that he made by his laws treasures to be immob●les, & Dijs inferis sacros, and his precept is strange in this case. Quae minime deposuisti, ne tollito. 
u Plat. lib. 11. de legi.  Adrianus Caesar made a law (as Spartianus reproteth) that if any man had found treasure in his own ground, himself should have it: if in an other man's, he should give the half to the owner of the soil: if in a public place, he should divide it equally with the treasury. This law was abrogated by other laws following, and revived by justinian, but now 
5. How the Civil law doth order and dispose of treasure.  and long time ago our law hath transferred it to the Prince in whose Realm it is found, 
x L. 3. §. Nerati. D. de acquir. possess. Alberic. Gentilis Disputati. Decad. 1. c. 10.  So that I cannot possibly see how the vendee in your case proposed shall by our law have it.  Auglonomoph. 
Nor by our law which saith, Quod the saurus competit domino regi, & non domino libertatis, si non sit per verba specialia, aut per praescriptionem. 
y Fitz. Coro. 281. 436.  And in this case though he sell 
6. What the Common law doth determine of treasure.  unto him the profit de terra: yet he doth not sell unto him the profits in terra which treasures are. 
z Ploughed. co●en le informa. pur mines.   Nomom. 
I will content myself with this difference which you have put, and will now proceed according to the platform of our forementioned order to learn something of signories and services   

The fourth Dialogue of Seignories and services.  NOmomathes. 
Because things are better 
1. Division.  and more certainly known by the definition of them, therefore I pray you let me first have of you some definition or description of a signory.  Codicgn. 
A signory, which we call feudum 
1. The description of a signory by the Civil law.  may be thus described. A bountiful granting of land for doing homage or some other special service. 
a Glo. in usi. feu. tit. quib▪ mod. feod. acquir. in princip. c. unico §. in primis & tit. in quib. cause. feud. amit. & de feud. dat: mi. valuas. ca unico. & melius tit. de feud. dat: in vicem leg: commissor: reprob: cap: vnic:   Anglonomoph. 
A signory with us, is nothing 
2. Likewise by the Common law.  else but a relation of delitie betwixt the tenant and the Lord.  Canonolog. 
In our Canon law it is shortly defined: 
3. By the Canon law.  The granting of land for homage. 
b C. ex diligenti. de simon.   Nomomath. 
Show me I pray you how homage 
2. Division.  and other services had their first existence and beginning, but first show me what homage is.  Anglonomoph. 
Homage is thus performed. The 
1. What homage is, and how it is to be performed by the Common law.  tenant that is to do homage, must have his head discovered, and his Lord sitting, he must kneel before him upon both his knees, and shall hold forth both his hands between 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 faithful and loyal, and shall bear unto you faith for the tenements, which I claim to hold of you saving the faith which I bear to our Lord the King: which being done the Lord sitting shall kiss him. 
c) Littlet. lib. 2. c. 1.   Nomom. 
Hath this ceremony been ancient?  Codicgn. 
The kneeling and giving of a kiss 
2. That Homage hath been practised in ancient times.  at the doing of such service is very ancient: for Tiridates the King of Armenia did kneel down before Nero the Emperor, whom Nero lifted up and gave him a kiss. 
d Tranquil. in Neron.  And long before his time, Alexander the great did embrace, and with a kiss greeted such as made the like protestation of obedience and loyalty unto him, 
e Plutarth. in Alexand.  and long before that as it seemeth it was used in judaea, for upon these words of the Psalm 
ee Psalm. 2. r. 12.  (kiss the son) our english gloss addeth by way of interpretation (in sign of homage) and Tremellius and junius (in sign of fealty:) since these times this respective humiliation hath spread itself into other countries and territories: for the Duke of Gelderland did conceive an oath in these words to Charles King of France: Ego devenio vassallus ligeus Caroli regis Francorum, pro ratione quinquaginta millium scutorum auri ante festum divi Rhemigij mihi soluendorum, etc. 
e Bodin. lib. 1. de repub. c. 9   Nomom. 
I desire greatly to know the original 
3. Division.  and first blossoming of other signories.  Anglonomoph. 
The most common signory of 
1. What a Manor is, and whereof it consists.  account which we have in our Law, is a signory by reason of a Manor, which may be thus defined: A Manor it an inheritance of ancient continuance consisting of demesnes and services, perquisites, casualties, things appendent and regardant, customs liberties, etc.  Nomoma. 
What? do so many things concur to make a Manor: will not demesnes and services serve?  Anglono. 
Yes, demesnes & services will suffice as material causes to make a Manor, 
f 26. H. 8. 4.  but it is a naked Manor which hath nothing else.  Nomom. 
I would gladly hear somewhat of the commencement and first creation of a Manor.  Anglonomo. 
M. Parkins doth very well & originally 
2. The original of a Manor.  describe it in this manner. The original of a Manor was when the King did give a thousand acres of land, or a greater or less parcel to one of his subjects and his heirs, to hold of him and his heirs, and the donee edifieth a house upon this land, as his mansion place and of 20. acres or less or greater, parcel, he doth enfeoff a stranger before the Statute of Quia empto. terrar. to hold of him and of his heirs as of the same house by the ploughing of 10. acres of arable land parcel of that which remaineth in his own possession, and enfeoffeth and other of an other parcel to hold of him by carrying ordure to his arable land, and enfeoffeth a third man of a third parcel to go with him in the war against the Scots, and so by continuance of time (saith he) a Manor is made. 
g Park. Reseruat. fol. 128. Sect. 670.  Yet by his favour somewhat else goeth to the making of a Manor: namely, suit of Court at his house or mansion place, 
h 33. H. 8. Br. Comprise. 31. Manor. 5.  and this suit must be the suit of more freeholders than one (so that some doubt may be made of M. kitchens assertion, when, he saith, that in some Manors there be no tenants but copiholders, and yet in such Manors be Court barons 
i Kitch. Court Leete & Baron tit. Maner●um. fol. 4. ) for if all the freeholds do escheat unto the Lord beside one, or if he purchase all but one the mamnor is extinct, for it can not be a mamnor unless there be a Court baron belonging to it: and a Court baron must be held before suitors, and not before one suitor, therefore one freehold can not make a manor 
k Br. Ca Sect. 210. & 23. H. 8. Br. Court baron. 22. in fi. & 33. H. 8. Br. Suit. 17. .  Nomom. 
You have well delared unto me the 
4 Division.  beginnings of Seignories and manors: but have there been no laws made for the strengthening & preserving of them: for me thinks they be good means to increase & support, the wealth, puissance, and flourishing estate of the Realm.  Anglono. 
Yes, our law in this case hath not either slumberd or winked. For in the ancient Statute of Magna Charta it is provided that Nullus liber homo 
Statutes made for the preservation of seignoties and Manors.  det de caetero amplius de terra sua, vel vendat de caetero, quàm ut de residuo terrae suae possit sufficienter fieri domino feodi seruitium ei debitum quod pertinet ad feodum illud, 
l Magna charta. c. 31.  which statute (as M. Stanford avoucheth,) is but a confirmation of the Common law: & he (a most diligent and exquisite searcher of the reasons of Law, so that I may boldly speak of him, that which I shall not say impudently & untruly, Faelix, qui potuit rerum cognoscere causas) sifteth out the reason of this Law. For saith he) if one that held by Knight's service might have been suffered to have aliened the greatest part of his land, he would have aliened the same peradventure to hold of him but in Socage, or by some small rent, and then having so little a livelihood left to himself, how had he been able to have done the service of a Knight or man of war, or what should his Lord have had in ward to have found one to have performed the service? surely little or nothing. 
m Stamf. praerog. c. 7. tit. Alienati: sans licence.  But it seemeth doubtful notwithstanding the Statute of Magna Chart. whether the tenant might alien his whole tenancy or not, whereupon the Statute of Quia emptores terrarum was made, which permitted every free man to sell his lands or tenements, or any part thereof at his pleasure to hold of the chief Lord by the same service, that the feoffer held, provided always 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 mischief touching the defence of the Realm, for when one man's living is so dismembered, never a one of the feoffees nor the feoffor is able to do the service of a warrior for want of livelihood, there being so little quantity of land in every of their hands, yea much more unable sithence this statute is the feoffor then before, for before when he gave it to hold of himself, he reserved somewhat in am of the land which went from him, whereas now he can reserve nothing of common right. 
n Stamf. ibid.  And the land which he retaineth in his own hands may perhaps be of small value.  Nomom. 
What is the most general and most common service of all? 
5. Division.   Anglonomoph. 
Fealty, for that is incident to every 
1. Fealty is the most general service in the Common law. 2. And in the Civil law.  tenure, unless it be tenure in frankalmoign. 
o Littlet. lib. 2 c. 3. Sect. 13. etc. 5. Sect. 22.   Codicgn. 
So it is with us: for fealty which of us is called fidelitas, is due to every Lord to whom any service is to be performed: and every 
● That by the Civil law the Common law and the Canon law, a religious man ought to do fealty.  tenant ought to do such service, yea though he be a religious man and professed under rule. 
p ca unico tit: de natura feudi. Et tit. qualiter vassal. iur. deb. sideli: domi: Et in ca unico tit. quib. mod: feud: amittatur. Et in quib. causis feudum amitt. & tit. quae ●uit pri. causa benef. amit.   Canonolog. 
But such a religious man may not say, Ego devenio homo vester, nor humiliate himself to execute the rite of homage. 
q C. veniens & C. ex diligenti. de Simon. gravem de excess: praelat: cap. fin: de re Iud:   Anglonomo. 
By our Law he may do homage: but may not say to his Lord ego devenio homo vester, because he hath professed himself to be only God his man, but he may say, I do unto you homage, and to you shallbe faithful and loyal. 
r Littlet. lib. 2. c. 1. Sect. 2.   Nonoma. 
Show me I pray you some special 
6. Division.  kinds of these services, that I may know them morefully, and more distinctly.  Codicgn. 
Services are diversified according 
1. The diverse kinds of services in the civil Law, and their definitions.  to the qualities of the persons to whom they are to be done: if it be to be done to an Emperor, it is to be termed an Imperial service: if to a King, a regal service, 
s Cap. 1. de feud: march: & ducats & in ca 1. quis dicat. dux, comes, marchio.  if to Religious persons Ecclesiastical: if to Lay men, secular, 
t Tit. de his qui feud. dar. pos. & tit. Episcop. vel Abbot.  but when it is to be done to a lesser estate then to an Emperor or King, as to a Duke, marquess, or Earl, than it is called feudum honoratum, sometime land is given by inferior persons & meaner men without expressing any service, and then the Law intendeth that fealty only is to be done, & this is called Francum or Liberun, 
u Ca 1. de no. form: fidel:  sometime it is given with reservation of special service & that is feudum non nobile, 
a Ca f●. de capilan: qui cur: vendid.  sometime it is given in perpetuum & sometime but for term of life, and then it is called Perpetuum vel temporale 
b De feud: march: in prin. de alien. feud. in fine, & de feud: guard: & castald. : But though by the oath of fealty the vassalle be bound to serve his Lord in war, yet this is limited to such case where the war is not notoriously unjust or unlawful: for if it be otherwise, though he do him no service in war, yet he shall not forfeit his tenement, 
c In cap: Domino guerram in prin. in tit. hic sini. lex deinde etc.  neither is he bound to do his service to his Lord if his Lord be excommunicate, or banished, until he have obtained absolution or a recalling from banishment: but 
d) D. cap. Domino guerran. in sin:  in a just war the vassalle is bound to help his Lord against every other person who is not the Lord of the vassalle, yea even against his father, brother, or son.  Anglonomoph. 
Services in our Law are of diverse 
2. The diverse kinds of services in the Common law and their definitions.  sorts: some being more noble and some less noble: of these which are more noble, some belong to the king and some both to the king & to subjects: of these that belong to the king, some be domestical only, as Petite Sergeancie: some bellical only as Knight's service: in Capite some both domestical & bellical as grand sergeancie, & some of the more noble services belong unto subjects as well as to the king, as knight's service and homage: these which be less noble may be divided into two branches: for either they are ingenuous or servile: the ingenuous are of two sorts: either performable by particular men, or a certain people, as fealty, rend service, & the like which make socage tenure: or else performable by a certain people only, as burgages: the servile or base service, is villeinage. Of all these services save such only as have been before described I will speak somewhat, severally, briefly, and in order. Petite Sergeancie, is where a man holdeth his land of the King, paying yearly unto him a Bow, or a spear, or a dagger, or a lance, or a spur of gold etc. 
e Littlet. lib. 2. ca 9 sect' 1.  Knight's service in Capite, is where a man holdeth his lands or tenements of the king as of his crown immediately ab antiquo, by doing some warlike service. Grand sergeancie, is where a man holdeth his lands or tenements of the king as of his Crown immediately, by doing some special service to the King in person, as by carrying his banner or lance, or by being his marshal, or sewer, or carver, or butler, etc. 
f Litt' li. 2. ca 8. sect' 1. 23. H. 3. Guard 148  of homage and fealty hath been spoken before. Rend service, is where the tenant holdeth his land of his Lord by a certain rent, for which, if it be behind at the day, wherein it ought to be paid, the Lord may distreigne for it of common right. Burgages, is where the tenants of an ancient borough do hold lands within the Borough of the King or some other person, as of his borough by a certain rent. 
g Litt' lib. 2. c. 10. sect' 1. 2.  Villeinage, is where a man holdeth of his Lord, either by doing unto him some partiticuler base service, and such a one is called a tenant by villeinage, or by doing generally whatsoever base service his Lord will command and impose upon him, & such a tenant he is termed in our Law a villain. 
h Litt. lib. 2. c 11. sect' 1. & 2  This miserable estate of villeinage, had his beginning soon after the deluge, and now by the consent of all nations it is ratified, for the West Indians though they have 
3 The original of villeinage and the nature thereof.  no knowledge of divine or human Laws, yet bondmen they have, and the Mahometistes make Christians their bondslaves, the Portugallians make villains of the Mahometistes which they sell by companies as flocks of sheep in the market. 
i Bodin. lib. 1. de repub. c. 5.  The Romans had power by their law to sell or kill their villains: 
k Tacit. li. 14.  but for mitigation of cruelty the Law Petronia was made, whereby it was forbidden that none should put his villain to death without cause, which law was executed by Nero, 
l Senec. lib. 3. de benefic.  & after by Adrianus: 
m Sparcian. in Adrian.  but our law a more concionable favourer of life hath restrained the hands of the Lord from the bloodshed of his villain, and from the maiming of him, 
n Lit● ' lib. 2. c. 11. sect' 32.  having regard to the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blows maimed, 
o Exo. 21. ver. 26. & 27.  which law Constant. the Emperor did put in practice, 
p l. 1. de Emend, seruor. C.  but all the lands & goods purchased & possessed by the villain the law frankly giveth to the Lord, if he will seize & claim them, 
q Litt' lib. 2. c. 11. sect' 8. 10.  wretched I confess is the estate of such men, but yet patiently to be tolerated, because quam potestatem alijs deferre voluimus, far debemus, and they whose ancestors, or themselves have acknowledged themselves to be villains, must now dutifully bear the yoke, though Cui plus licet quàm parest, plus vult quàm licet, 
r Gellius lib. 17. c. 14.  and let the Lords of such villains hearken to that which is spoken of an heathen man divinely: Boni moderatoris est restringere potestatem, 
s Ammian. lib. 29.  but to leave these particulars & to proceed more generally, as one man may hold lands of another by every of these 
4 The tenure whereby a man holdeth of an honour or Manor is described, and by examples illustrated.  abovesaid services as of his person, so likewise he may hold of him as of his Honour or Manor: for if a man hold of the king as of any Honour which is come to his highness by descent from any of his ancestors, he shall not hold in Capite, for by the words in the first Chapter of Prerogativa regis, it is evident that if it shallbe said a tenure in Capite, it must be holden of the Crown of a long time, the words be ab antiquo de Corona, and that cannot be when it is but newly comen to the Crown, and the statute of Magna Charta cap. 31. did (as Master Stamford saith) help this matter by express words, if such an Honour came to the Crown by way of escheat, but not if it came by way of descent, or any other way: and that statute doth set 
5 Certain honours which be not of the ancientness of the Crown.  forth certain honours by name which be not of the ancientness of the Crown, that is to say, the honour of Wallingford, Notinghan, Bullingbrook, and Lancaster, therefore he that holdeth of the King as of these Honours, holdeth not of the king in chief, 
t Stamfords' Praerog. c. 7.  but other honours there be which of so long time have been annexed to the Crown, that to hold of them is to hold in chief, for whereas one held of the king as of a certain honour, to 
6 Some honours which are annexed to the Clown.  yield a certain rent to the keeping of the Castle of Dover, this hath been taken to be a tenure in chief, and so it hath been thought if one held of his highness as of the Honour of the Abbe of Marle, 
u Fitz. nat. bre. 256.  and Anno undecimo of king Henry the seventh, the honour of Ralegh was annexed to the Crown, therefore if any man hold as of that honour it is a tenure in capite, 
x 34. H. 8. ●r. Cas. 230.  and therefore there is a good rule in the Register of Writes, that a man shall not make a fine for alienation of lands held of the King as of his honour, but for land held in Capite only: for there be certain honours which be held in Capite, & there is a certain writ that the escheator shall not grieve any man for alienation of land held as of an Honour, for that is as of an honour, and not as of the king's person, & no Fine shall be paid for the alienation of such land, 
a Regist' 184. Br. Alienac' 33.  And whereas it was found by Office that land was held of the Queen as of her principality of Wales, by the service of going with the Prince in War at the charge of the Prince per Curian. 
b 18. Eliz. Dy. per Curiam.  This is no Tenure in capite, and Master Finchden putteth this diversity, that where an Honour is seized into the King's hands, if a Manor held of the Honour do escheat to the king by a common Escheat, if the King alien the Manor to hold of him, the tenant shall hold by the same services as he held by before of the Honour (for the Honour seemeth to be vice domini in this case and as a mean Lord) but if it come to the King by forfeiture of war or by some other treason, or by some other cause which toucheth the King's person, and the King seizeth, and enfeoffeth an other, the feoffee shall hold of the King as of his Crown: 
c 47. E. 3. 21. per Finchden.  and though the Statute of Magna Charta Cap. 31. before recited do say, Si quis tenuerit de nobis de aliqua escaeta ut de honore Wallingforde, Bolen etc. non faciet aliud seruitium quam fecit praeante: yet this is to be intended of a common Escheat and not otherwise. 
d 19 H. 8. 〈◊〉 Ca 114.  So a man may hold of the King as of his Manor, and yet not hold in Capite, for it was found by office that one held land of the King, as of his Manor of Plimpton, and other lands as of his Manor of Darington, which came to the king by the attainder of treason of the marquess of Exetor, this hath been thought to be no Tenure in capite, for tenors in chief did begin in ancient time upon the grants of Kings to defend them against rebels and enemies: and at this day the Queen may create a tenure in Capite, if she give land to hold of her person: otherwise it is if it be given to hold of an Honour, Manor, etc. for a Tenure in chief must be immediately of the King, and is created by the King only: for a tenure created by a subject cannot be a tenure in chief, nor have any prerogative annexed unto it, and if the tenants of an Honour should hold of the King in Capite, the Honour when it came to the King should be destroyed, which may not be, and there is no reason that the tenant in whom there is no default should be prejudiced in his tenancy by the offence of the Lord, 
e 30. H. 8. 44. Dyer.  and if the Q. purchase a Manor of which I. S. holdeth by knight's service, the tenant shall hold as he held before, and he needeth not to tender his livery, nor primer seisin: for he doth not hold in Capite, but as of a Manor, and if his heir be in ward by reason thereof he may have an Ouster le main at his full age, and if the Queen grant the Manor afterward to W. N. in fee, excepting the services of I. S. now I. S. holdeth of the Queen as of her highness person: yet he shall not hold in Capite but by such services as he held by before of the Manor: for the Queen's act may not prejudice her tenant, 
f 29. H. 8. Br. Ca 113.  but where a man holdeth of the Q. by reason of an other thing, as namely by reason of a Manor, this is no tenure in Capite, 
g 3. Eliz. Come 241. Wilgous' case.  but if the King be seized of a Manor, and giveth to a stranger an acre of the Manor, to have and to hold to him and to his heirs of his body engendered without expressing any service, the donee shall hold of the king by knight's service in Capite, 
h Ibid 240. per Car.  and tenors likewise may be to hold of one as of his person or of his Manor by diverse other services, as if a man had made a feoffment of land before the statute or a gift in tail since the statute, to hold of him by the making of a bridge over certain land, or by making a beacon in the land given, this is a good tenure: for a man may hold of an other by doing service for a common good, as well as for the private profit of the Lord as to repair a bridge, or a high way, or by keeping such a Castle, for the Lord himself in this hath profit with others. 
i 11. H. 7. 12. 12. H. 7. 18. p Finch. 24. H. 8. Br. Cas. 51.   Nomom. 
You have taken some pains Anglonomoph. 
7. Division. 1 Whether one within age be compellable by law to do all manner of service either by himself or some other.  in describing the particular kinds of tenors: now I would here somewhat of Codicgn. whether one within age be excused from personal service, because his age is not fit to serve, so that the serviceage is suspended until the maturity of his age: or whether he shallbe compelled to do his service by a substitute.  Codicgn. 
To dissolve that question a difference is to be taken, for either the Father of the heir which is within age died in the warlike service 
2 A diversity in the Civil law, whether the father of such an infant died in a just war, or at home in his bed.  undertaken for the defence of his Lord in a just war, I mean that which is waged for the safety of the common weal, or else he died in his house by human infirmity without any bearing of arms, in the first case he is not bound to do any service either in his own person or by any other person interposed during his minority, because his father who died in the field is supposed in Law still to serve by the glory of his valour, 
k Instit. de Excus. tutor. §. sed si in bello ff ad leg. Aqu. l. qua actione, §. si quis in colluctatione.  which the best and most learned of all Poets did well imagine: who when he had placed Caesar in the midst of extreme troubles, to comfort and encourage him, representeth unto him the ghost of Scaeva, one that died a good while before, but yet after many assaults and many wounds stood out as a Conqueror, 
l Lucan. li. 10.  which conceit of Lucan, Tasso a modern Italian writer, a man of an excellent poetical wit in the discriptyon of Guidoes' funeral doth passionately though Popishely glance at, 
m S. Torquat. Tasso Canto. 4. Gierusal. liberat.  but if the father died not in war, nor in the expedition, but by natural death in his own house, then if the heir at the death of his Father be in his pupillage, he must perform that service by a substitute.  Anglonomoph. 
But by our Law he shall be in 
3 That by the common law the infant shall be in ward if his father died seized of land held by knight's service without any such diversity.  ward to the Lord during his minority, if he hold his lands by knights service, and the Lord shall have the profits of his land that he may maintain a sufficient man to do him service in the war, whereas the heir by reason of his tender age cannot personally perform the service, nor by the want of discretion provide a convenient person to accomplish it, 
n Litt' lib. 2. c. c 4. sect' 3.  but if he be made a Knight within age, then because the Law intendeth that he is fit to do his service, because knighthood is bestowed in regard of precedent merit, or of some eminent prowess and towardness, as may appear by that saying of Scipio in the Senate. ab annis septemdecim ad senectutem semper vos aetatem meam honoribus vestris anteistis, ego vestros honores rebus gerendis precessi: 
o Livius li. 38.  the Law is otherwise: But 2. Ed. 6. in the case of Sir Anthony Browne of Surrey viscount Mountegue, a difference was taken, where the tenant by 
4 A diversity in the common law where the heir of the tenant by knight's service is within age, and a knight at the time of his father's death & where not.  Knight's service dieth seized his heir being within age, and a Knight at the time of his death, and when after his death he is made Knight during his minority, for in the former case it was held that he should be in ward notwithstanding his knighthood, 
p 2. E. 6. Br. Guard 42. & 72.  For otherwise the ancestor may procure his son within age to be made knight by collusion, to the intent to defraud the Lord of his ward, but this seemeth to be but a weak reason, because knighthood is not by intendment of the law granted upon so slight a cause: but it seemeth to Master Brooke, where the heir is in ward, and is made knight being in ward, this shall free him from wardship, for the statute of Magna Chartaca. 3. (Postquam heres fuerit in custodia, cum ad aetatem pervenerit scil. 21. annorum habeat heredit atem suam sine relevio & sine fine: ita tamen quod si ipse dum infra aetatem fuerit fiat miles, nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradictum) this (saith 
q Br. ibid.  Master Brooke) very probaly, guiding his opinion by the premises, is only to be intended where the heir is made Knight within age being in ward after the death of his ancestor, and not where he is made knight in the life of the ancestor, but admit this to be meant of such an heir only, yet by no consequence can a man infer hereof, that if an heir within age be made knight in his father's life time he shallbe in ward after the death of his father, nay there is good authority for the contrary. 
r 6. Elizab. Comm̄ 268.   Nomomat. 
Let me know I pray you what 
8. Division.  penalties lie upon the tenant if he do not his service.  Codicgn. 
By our Law the vassalle is deprived 
1 What penalties lie upnon the tenant if he do not his service.  of his tenancy, of whom fealty is demanded, and he refuseth to perform it: 
s C. unico, que fuit prima causa. §. sed non est alia.  so that the Lord do demand fealty at due times and allowed by Law, because if he should demand it every year the vassalle should not lose his tenancy, 
t §. & si vastallus si de feud: de funct'. §. licet vastallus etc. domino guerran in tit. hic finite. lex etc.  also the vassal looseth his tenancy, if 
2 Many causes of the tenants forfeiture in the civil Law.  being at full age, he be not in expedition with his Lord, or if he do not depute some able person for the discharge of the duty, or if he do not pay to his Lord stipendia militiae pro quantitate feodi, when he is lawfully demanded, 
u de pace iuram: firm: §. fin:  and that is said to be a due quantity of a knights see, when the vassal which goeth not in war, nor sendeth a sufficient man, doth yield the half part of the yearly value of his tenancy to the Lord. 
x C. Imperialem § firmiter de prohi: feud: alien: p Freder:   Angonomo. 
There be many conclusions in our 
3 Some cause of forfeiture at the common Law.  Law answerable to that which you have said, for it hath been affirmed, that if a man hold his land of his Lord by homage and fealty, and he hath done homage and fealty to his Lord, and the Lord hath issue a son and dieth, and the signory descendeth to the son, in this case the tenant which hath done homage to the father shall not do homage to the son, because when a tenant hath once done homage to his Lord he is excused for term of life to do homage to any other heir of the Lord, 
a Litt' lib. 2. c. 7. sect 13.  But if a man be seized of a Manor, and an other man holdeth land of him as of the foresaid Manor by homage, and hath done his homage unto him, and a stranger bringeth a Precipe quod reddat against the owner of the Manor, and recovereth the Manor against him, and sueth execution, in this case the tenant shall again do homage to him that recovered the Manor, though he have done homage before, because the estate of him who received the first homage is defeated by the recovery, and it lieth not in the mouth of the tenant to falsify or defeat the recovery which was against his Lord. 
b Litt' ibid' sect' 17.  And if if a tenant which ought by his tenure to do homage to his Lord come to his Lord and say unto him, that he is ready to do him homage for the tenements which he holdeth of him, and the Lord doth then refuse to receive it, after such refusal the Lord cannot distreigne the tenant for the homage, before the Lord require him to do homage unto him and he refuseth, 
c Litt' lib. 2. c. 7. sect' 19 20.  and he that holdeth by Knight's service of the King, need not go to war with him, if he will find a sufficient person conveniently armed, and fit to go with the King, and this seemeth good reason: For it may be, that he that holdeth by such services doth languish in sickness, so that he cannot go, nor ride: And a Feme sole which holdeth by such services may not in such case go in proper person, and it hath been said, that Escuage shall not be granted unless the King go to war himself in proper person, and after such a voyage royal it hath been likewise affirmed, that by authority of Parliament Escuage shall be assessed and put in certain how much every one that holdeth by an entire fee of knights service, which was not with the King by himself or by an other for him, shall pay to his Lord of whom he holdeth by Escuage, as if it be ordained by authority of Parliament that every one which holdeth by an entire fee of Knight's service that was not with the King nor any other etc. for him shall pay to his Lord forty shillings, than every one that holdeth of his Lord by the moiety of a Knight's fee, shall pay to his Lord forty shillings, and he that holdeth by a fourth part ten shillings, and so pro rata. 
d Litt' lib. 2. e. 3. sect' 5. 6. 8. 7. E. 3. 29.   Nomom. 
Resolve me I pray you whether when 
9 Division.  the tenant hath committed treason or felony, and thereof is convicted and attainted, he shall as to his tenancy incur any prejudice.  Codicgn. 
In such case either the offence is 
1 Whether, when the tenant hath committed felony or treason and is attainted, he shall suffer any prejudice in his tenancy. 2 A diversity in the Civil law where the offence is committed against the person of the Lord, and where against the person of a stranger.  committed against the person of his Lord, and so he doth prejudice all these that are to succeed him in the land by order and course of Law depriving them of the advantage of inheritance, 
e Cap. unico §. denique in si: in illis verbis si tamen fuerit paternumt. it: que fuit prima causa been: amitt:  or he hath offended against some other person, and not against the person of the Lord, than the children only, and such as were to take benefit by the person of the father, as issuing from his body are repulsed from the inheritance, 
f §. Si vassallus culpam: si de feuds defunct'.  and then it goeth to them of the kindred which are nearer in degree. 
g Gloss. super verbo revocabuntur in d. si vassallus culpam.   Anglonomoph. 
By our Law where the tenant is outlawed of felony, it is in the Lord's election to have a writ of Escheat, supposing that his tenant was outlawed of felony, or that he died without heir, for by the attainder the blood is corrupted: 
h 48 E. 3. 2.  But it seemeth by Nicholses case, 
3 That by the common law by attainder of felony or treason the blood is corrupted, and in the one case the land shall escheat to the king: and in the other to the immediate Lord.  that the party attainted aught to be dead before the land can escheat, for according to the opinion of Dyer and Barham in the kings case after the attainder, and till Office be found the see simple shall be in facto in the person attainted so long as he shall live, for as he hath a capacity to take land of a new purchase, so he hath power to hold his ancient possessions, and he shall be tenant to every Praecipe, and if he died before office found, and the land be held of the King, the land shall go to the King in nature of a common escheat, 
i 18. Eliz. Come 477. Nichols case.  but this is to be intended in case of felony, for in case of treason the King shall be presently after the attainder in actual possession without office found by the statute of 33. H. 8. cap. 20. and if a man be executed for felony or die after judgement 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 punishment then hanging, though the writ say pro quo suspensus fuit, that is not material, 
k Fitz. nat. bre. 144. H.  and if the father purchase land, and his eldest son is attainted of felony and dieth, having issue a son, and the father dieth, the next in degree of descent and worthiness of blood unto the son attainted shall not have the land, but it shall escheat to the immediate Lord of whom the Land is held, for the blood is corrupted: otherwise it had b in if he had died in the life of his father having no issue. 
l 32. H. 8. 48. Dyer.   Nomom. 
Though I must needs confess that it is very good reason that the sons of them, which are disloyal subjects and traitors to their Prince should be barred from the inheritance of their ancestors, that their father's infamy should always accompany them, and that they should live in perpetual memory, indignity, and disgrace, that their life should be a punishment unto them, and their father's fault a continual corrisive (for that is done, because their father's vices are feared in them, & it may be well thought, that being bred, and brought up of naughty parents, they will be prone to do the like, and punishment in that case is used in the nature of a medicine and not in form of a penalty: and as it hath the effect of a punishment every one is punished for his own fault only: but as it hath the effect of a medicine, so one man is punished for an others fault, that by suffering shame he may be deterred from crime) yet here it may be said what place is there left for innocency if the most guiltless may be punished for the misdemeanour of the most guilty, for as it is not the fault of the corn that it groweth in a bad soil, so it is not the fault of the sons that they are begotten of lewd fathers, therefore it may seem meet and expedient that there should be ibi paena, ubi culpa and that offences should rest upon the authors, and that the fall should go no further than the fault, and there is a Law in Deutronom. Non interficiantur patres pro filijs, nec filii pro patribus, sed quisque pro peccato suo interficiatur, 
m Deut. c. 24.  and in an other place, unusquisque in iniquitate sua morietur, & quicunque comederit vuam acerbam illius dentes obstupescent, 
n jerem. 31.  and again anima que peccavit ipsa morietur, filius non portavit iniquitatem patris. 
nn Ezechi. 18.   Codicgn. 
But Saul did not observe that rule in Deutronom. when he did put to the sword the citizens of Nobe, where he did slay men, women, children, ox, ass, and sheep o'er gladij. 
o 1. Reg. 22.   Canonol. 
But David did keep it, who would 
4 The aforesaid determinations & conclusions of civil and common law touching the forfeiture of the offendor are examined by the Law of God.  not have had revenge taken upon Isboseth the son of Saul, 
p 2. Reg. 4.  and caused them to be slain, who wrought his death.  Codicgn. 
Yet God did otherwise, who in the deluge did destroy the parents with their children, who spared neither sex nor age in Sodom, who destroyed together all the whole nation of the Amalekites, who would needs have Achan destroyed with the children, who did root out all the inhabitants of jerusalem.  Cononol. 
We must otherwise conceive of God his judgements, then of men's proceedings: he hath said viae meae non sunt viae vestrae, all perfection, goodness, and justice beginneth at him, who doth not any thing because it is just, but it is therefore just because he doth it, or would have it done, and if Achan had been arraigned before an Ordinary tribunal he only had perished and not his children, but God his judgement is extraordinary, and his will is therefore a Law because he is God, he is not bound to render account to any: neither is he guided by any Law but by the Law of his own will, and though one man know not what an other doth purpose and imagine, yet God knoweth the heart and searcheth the reins and might see somewhat condemnable in achan's children which man could not discover, yet in some cases he doth observe an ordinary course of punishment, for 
q Numb. 26.  Core perished only but not his sons, but they were kept safe for the Lords service, and of their posterity came Samuel.  Codicg. 
That which I spoke before (Canono.) out of the scripture was but by way of objection, for our law punisheth not the Sons with death, but only with loss of inheritance in case of treason. 
r ff. & C. ad l. jul. may.   Anglonomoph. 
The same Law do we observe both in felony and treason together with the forfeiture of the goods.  Codicgn. 
The loss of inheritance in our Law doth comprehend the forfeiture of the goods.  Nomom. 
Ye have dwelled a long time in this discourse of tenors and services: now therefore I would have ye to speak somewhat of jointenancy and tenancy in common.   

The fifth Dialogue of Jointenancie, and tenancy in common.  NOmom. 
Let me ask you this question 
1. Division.  Codign. when two be jointenants, or tenants in common as we term them, whether by rigour of law the profits ought to go to them all in common, or no.  Codicgn. 
By common right they ought to have 
1 That jointenants, and tenants in common aught to have equal profit.  equal profit, whether it be of money, merchandise, or other matter of negotiation: for if one should have more profit than an other, & the gain should not be alike, the society or as it pleaseth you to term it jointenancy, or tenancy in common should be Leonina, that is rather the devouring of Lions, 
a ff. Pro socio l. si non fuerint §. ulti.  than the dividing of men, or according to the common proverb, a man should divide honey with a Bear, yet in this equal division, which the law requireth, recompense must be had of things, persons, and the industry of the parties. 
b l. omnes, & l. si socij, & l. l. si. non fuerint ff. cod.   Anglonomoph. 
By our law if two bring a writ of ward of the body of the heir being within age, and the one of them is summoned and severed, and the other recovereth, he which was severed may have a writ of account against the other for the profits, 
c 45. E. 3. 10.  and a writ of account lieth, if one jointenant take all the profits, 
d 39 E. 3. 35.  and 
2. That by the Common law a writ of account will lie, if one jointenant take all the profits.  for cutting of wood which is held pro indiviso & the selling of it, a writ of account will lie for the one jointenant against the other, 
e 47. E. 3. 22.  and the plaintiff need not show in certain in his writ of account, by whose hands the resceit of the money given for the profits was, 
f 39 E. 3. 35.  and if one of the jointenants do cut wood and carry it away, the other may take it, and remove it to his own house, 
g 2. E. 4. 24. p Danby.  but if one of the jointenants take money for all the profits, the writ of account shall not be brought against him as receivor generally, 
h 14. E. 3. Account. 70. 19 E. 2. Brief 339.  but as receivor to the common profit of them both, 
i 30. E. 1. Account 127.  and if two executors be, & the one assigneth auditors, he that assigneth auditors shall not have a writ of debt sole for the arrearages of account without his companion: 
k 9 H. 6. 11.  also there is an other case in our books, that E. and I. did deliver an hundred pounds to R. and T. and R. and T. did put a hundred pounds of their own together with this money to merchandise with the whole stock for the common profit of them all, according to the rate of every one of them, in such case E. sole may not have a writ of account against R. and T. 
l 10. E. 3. 489. 10. E. 4. 5.  so if their be two jointenants of a Manor, and the one of them undertaketh to be bailie for the other for his moiety, a writ of account shall be maintenable against him, 
m 21. E. 3. Account. 66.  if he have any especialty to show proving the assumpsit, otherwise not, 
n 17. E. 2. Account. 122.  yet in an account brought against one as the bailie of his Manor which the plaintiff had in farm, the defendant said that himself was joint farmor with the plaintiff of the lease of A. & this plea was allowed, though the plaintiff showed forth a deed of demise made to him only, 
o 8. E. 2: Account. 115.  and if two Merchants occupy their goods and merchandise in common to their common profit, the one of them may have a writ of account against his companion, 
p Fitzh. Nat. Bre. 117. D. 10. H. 7. 16.  or the writ may suppose that the defendant was receivor of the plaintiffs money & the defendants for all manner of contracts to their common profit, 
q 30. E. 1. Account. 127. 39 E. 3. 35. 16. H. 7. 16. p Keb.  but one executor shall not have a writ of account against his coexecutor for the goods of the dead. 
r 39 E. 3. 35. 6. H. 4. 3. 13. E. 3. Execut. 91.   Nomomath. 
Whether is jointenancy, though 
2. Division.  it be a jointenancy of the inheritance, dissolved and determined by the death of one of the jointenants.  Codicgn. 
jointenancy is dissolved by natural 
1. That jointenancy is dissolved by death, unless there be some clause in the creation of the estate to the contrary.  death, unless there be some clause in the demise of the land and in the creation of the estate to the contrary. 
s ff. pro socio. l. actione §. morte. in fin: justi. eo. §. soluitur.   Anglonomoph. 
Indeed there be such clauses sometimes used in demises, for we have such a case that a lease was made to two habendum ijs pro termino vitae successive uni eorum post alterum, sicut nominantur in Indentura, & non coniunctim: the question was in this case, whether they were jointenants or no, & it was ruled without argument that they were not jointenants, but that there is a remainder to him who is put in the second place in the Indenture: 
t 20. Eliz. 361 Dy.  And so where a lease was made to three, by the premises habendum to the one for life, the remainder to the second, the remainder to the third, the opinion of the court was that they should take successively & not jointly. 
u 5. Mari. 160. Dy.   Codicgn. 
And by a civil death jointenancy may be determined: 
w ff. pro socio l. actione. §. publicatio. & justi: eod. §. publicatio.  Likewise by the will, and by the alienation of one of the jointenants. 
x L. verum in sin: & l. societatem §. 1. ff. eod. l. tamdiu. C. eod.   Anglonomo. 
By our law the nature of jointenancy is such, that he that surviveth shall have the whole tenancy according to such estate as he should have had if the jointure had still continued. For if there be three iointenants in fee simple, and the one of them hath issue & dieth, yet they that survive shall have the whole tenements to themselves, & the issue shall have nothing: 
y Littl. lib. 3. c. 3. Sect. 5.  and if lands be given to two, & the heirs of one of them, this is a good jointure, & the one hath freehold & the other fee simple, & if he which hath the fee die, he that hath the frehold shall have the entierty by survivor for the term of his life: 
z Littl. lib. 3. c. 3. Sect. 13.  and if two iointenants be seized of an estate of fee simple, and the one of them granteth by his deed a rend charge to another man out of so much of the laud as belongeth to him, in this case during the life of the grauntor, the rend charge is effectual, but after his decease the grant is void as to charge the land, and he that holdeth by the survivor shall hold it discharged, because he claimeth the land by survivor and not by descent from his companion: 
a Littlet. lib. 3. c. 5. Sect. 15.  And so the law seemeth to have been when one jointenant did enter into religion, lest the freehold of a moiety might be in suspense, as well as an assize of Mortdauncestor will lie, and a warranty collateral may descend in the like case. 
b Fitzh. N. B. 166. a. 5. E. 4. 3 34. E. 3. guarantee 71.   Nomoma. 
If a man grant all his goods to two what passeth by this. 
3. Division. 1. That by the Civil law by the joint gift of all the goods of a man all corporal things pass.   Codicgn. 
By our law all corporal things pass both in demesne, and possession, and they are jointenants of them, 
c ff. eo. l. 1. & 2.  but actions do not pass, but the grauntor if he will have the grantees to take any benefit by the grant, must make the grantees or one of them his procurators to sue in his name, and to recover to their own use. 
d L. 3. in princip. ff. eo.   Anglonomoph. 
By the name of goods in our law no inheritance passeth, but it is a question with us, if one devise 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 devise: 
d 30. H. 8. 59 Dyl  But this doubt of later time hath received decision, for where a man devised the 
2. That by the Common law if a man devise the third part of his goods to his wife it shall be so rated as they wear at the time of the death of the testator. 3. That the Queen may grant a thing in action.  moiety of his goods to his wife, and died, it was ruled that she shall have the goods as they were at the time of the death of the testator, if the testator be not indebted: 
e 5. Mari. 164.  and as for granting things in action, we have this positive ground in law, that the Queen may grant over her rent and condition of re-entry for the nonpaiment of it, and her action or any thing that her highness hath in action: but contrariwise it is of a common person. 
f 2. H. 7. 8.   Nomom. 
Now show me of what things and 
4. Division.  in what sort jointenancy or tenancy in common may be.  Codicgn. 
It may be of all such things as lie in 
1. That jointenancy by the Civil law may be of all such things as lie in contract.  contract, as lamb, milk, will, cheese and corn, and whatsoever is gained by the labour of oxen, or the harrowing of horses or the letting to gift of kine: 
g L. si non fuerint. ff. pro soc.  and by the nature of the contract, when two are agreed to be tenants in common of the profits coming and rising of beasts, the loss of the beasts pertaineth only to him in whom the very property of the beasts be: but the charge of the pasture and labour, which is to be taken about them belongeth only to him who is admitted to be tenant in common for the profits. 
2. That the limitation of tenancy in common is by the party, but the construction of it by the law.  The possession in common of beasts doth continued until they have young, if the possession were limited at the first until they had young: and if two be agreed to be tenants in common of all the profits of a certain ground, the tenancy in common ceaseth not till all the profits be taken: and therefore if two be agreed to be tenants in common from the Calends of March, until such time as their fields are new to be tilled & sown, they shall be tenants in common unto the kalends of November, because betwixt both the kalends the fields may be tilled & sown, or suppose that they have contracted a tenancy in common of kine from the kalends of july, until they have young, this tenancy in common shall continue till the Calends of April next ensuing, because for the most part they are wont to calf betwixt both the Calends. 
h L. si convenerit in princ. ff pro socio.   Anglono. 
A parson may grant to another the moiety of his tithes for years, whether it be lamb wool, or corn, & yet he hath no possession of them, because they are not yet in esse, 
i 38. E. 3. 6.  but yet he hath an interest in them, & may grant the moiety of them as well as one may grant to another that it shall be lawful for him to take every year a Dear, or a Hare, or a Coney within his soil, this is a good grant: 
k 10. H. 7. 30.  and by the same reason that he may grant his tithes, he may grant the moiety of them, and so make a tenancy in common.  Nomoma. 
Suppose the case to be this, that two 
5. Division.  jointenants or tenants in common have agreed to make a common wall about their ground, or that they should plant a certain number of trees in their common soil, and one of them alieneth his part, whether is his assignee bound to perform the covenant? 
1. That an assignee in the Civil law is bound by the the covenant of his grauntor.   Codicgn. 
In our law there be many authorities, that he ought to perform the covenant. 
l L. quaesit. §. quod a Titio. ff. de praeca. & arg. l. in hoc judicium §. penult. ff. de commun. divid. & ff. de damn. infect. l. fluminun §. adducitur. & ff. pro soc. l. 1. demque.   Anglonomoph. 
To that our law agreeth, for if a man lease a house and land for years by deed indented, and the lessee doth covenant that he 
2. That by the Common law in such case the assignee is bound by the covenant.  and his assignees shall repair the house, and after the lessee granteth over his term, and the assignee doth not repair it, an action of covenant lieth against the assignee, for this is a covenant which runneth with the land: 
m 25. H. 8. Br. coven. 32. Deputy. 16.  and according to M. Brookes opinion, it lieth also against the lessee after that he hath assigned over his term: & if he bring several writs of covenant against them both, there is no remedy, till he have had execution against one of them, and then if he sue the other, he may have an Audit a querela. 
n Br. Coven. 32.   Nomom. 
I will content myself at this time with your instructions touching jointenants, & tenants in common, & will pass over to the examining of the course of exchanges.   

The sixth Dialogue of exchanges.  NOnomath. 
What if two do deal together 
1. Division.  after this sort: the one of them giveth a horse and x. s. for the horse of an other man, whether is this a bargain and sale, or an exchange.  Codicgn. 
In such case either it is intended, and 
1. That by them Civil law contracts for a certain price are not exchanges.  uttered betwixt the parties, that the one shall have such a thing for a certain price, as namely that A. shall have the horse of B. for ten pounds: and B. taketh of A. six pounds and an other horse in full payment and satisfaction, this is clearly a bargain and sale 
a L. tenetur. §. 1. de action: emp. : but if A. had given B. a horse for a horse that had been an exchange 
b Ar. I. item si pretio. §. 1. ff. locat: .  Anglonom. 
By our Law there must be the express 
2. That by the Common law the word Excambium must be used in the exchange.  word of exchange mentioned, otherwise a thing can not be said to pass by exchange, for the word excambium only maketh an exchange, as the words liberummaritagium only do make frank-marriage: for if I give to one an acre of land by deed indented, and he by the same deed giveth to me an other acre for this acre, nothing passeth except livery be made, and then the livery only transferreth the land: otherwise it had been if the word (exchange) had been used in the deed, and the estate which the parties are to have in the land exchanged aught to be equal: 
3. That the estates most be equal.  and Choke saith that both the things exchanged ought to be in esse at the time of the exchange, and therefore an exchange of land for rend granted de novo is not good, but an exchange betwixt 
4. That the things exchanged must be in Esse.  a rent and a common which are in esse at the time of the exchange is good, and so it is of land and rent: 
c 9 E. 4. 21. p Brian, Choke, & Nedham.  And according to his opinion an exchange of the right which the dissesee hath to the land whereof the disseisin is committed, for an acre of land in which the disseisor hath right is no good exchange: 
d 3. E. 4. 10. p Choke.  And where the word (exchange) is mentioned, though the conveyance be but an Indenture of covenants, yet it shall amount to a good exchange: for an Indenture of covenants was made betwixt a Prior and the Master of Gunnell hall in Cambridge that the Master should have three acres of land to him and to his successors, in perpetual exchange for one chamber of two chambers to be assigned by the said Master at his election to the said Prior and his successors, this hath been held to be a good exchange, though it be by way of covenant: 
e 9 E. 4. 38.  And though it be avouched for law, that if by a deed of composition it be agreed betwixt two, that the one shall have such lands in allowance of other lands belonging to him, that this is a good exchange: 
f 3. E. 3. 19  yet I doubt whether an exchange may be accomplished by such countervailable words: but a man may 
5. That an exchange is good, though the one part of it do mure by way of extinguishment.  give land in exchange for a release which cannot mure but only by way of extinguishment, though there be some authority against it, 
g 7. E. 3. 37.  & therefore Nortons' opinion is justly denied by Thorpe, whereas he held that in every exchange there must be a mutual transmutation of the possession, 
h 16. E. 3. Exchange 2.  for if a man release to an other his estover of wood, which he is to take yearly in his wood, in exchange for land given to him in exchange for the same release, this is a good exchange though the release take effect by way of extinguishment: but it is as great a profit and advantage to the tenant to be discharged of the estovers, as if so much had been granted unto him out of an other man's wood, 
i Park. tit. Exchaun. 53. 31. E. 1. Exchange 16.  and the Law well perceiveth the profit which a man may have by way of extinguishment, for if the father being tenant in tail do alien the land entailed with warranty, and hath a rend charge in fee issuing out of the land of his Son which doth descend unto the son, this is a good assets in value notwithstanding the extinguishment. 
k 31. E. 3. guarantee 29.   Nomomath. 
Whether may Ecclesiastical benefices, 
2. Division.  promotions, and livings be exchanged or no.  Canonolog. 
The incumbents may not by their 
1. That incumbents may not exchange their benefices by the Canon law.  sole authority change their benefices, but they may exchange them Interueniente authoritate Episcoporum, ad quos pertinet collatio: but there is a question in the gloss, whether the Chapter 
2. That the Chapter may warrant permutations seed vacant in such benefices wherein they have interest or authority.  may authorize such permutations' seed vacant 
l C. quaesitum de rer: permut: glos. in Clem: unica. E. tit. : and it resolveth briefly, that in such things, wherein they have a common collation, either by reason of authority, or by reason of interest and consent, it may authorize exchanges seed vacant, but in other cases not. 
m Glos. in d. Clem. vnic. super verbo. Conferantur.   Anglonomophylax. 
The reason in our Law 
3. That by the Common law Ecclesiastical persons their patrons and ordinaries joining together can not make any good exchange of Ecclesiastical benefices.  wherefore such ecclesiastical persons, nor their patrons and ordinaries, though they all agree can not exchange the inheritances of spiritual livings, is because the statute, strictly provideth that no alienation be made in mortmain: 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 own presentation without the king's licence, it is forfeited though it were amortised before, 
n 19 E. 3. Mortmain. 8.  and in such case where one Abbot did alien to an other, the collusion was to be inquired of, as well as in the alienation of land made by a secular man to a religious corporation, 
o 16. Assis. pl. 1.  for the words of the Statute of Mortmain be very 
4. That the statute of Mortmain is most strict and pregnant in words.  strong and large against such purchaser, which are thus: Provisum 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 deveniant, 
p Statut. de religios. 7. E. 1. Mortmain. 3.  and therefore the case was, that a femme sole purchased land in fee, and took to husband the villain of a Bishop, which he had in right of his Bishopric, and the Bishop entered and this was adjudged a mortmain, for according to Wickinghams' opinion the words of the Statute of Mortmain are quocunque modo: otherwise it shall be if the tenant of the Bishop do die without heir, 
q 41. E. 3. 21.  but 19 Henr. 6. the contrary is held to be Law, but if the villain himself purchase land, it is held there that in such case a Bishop or an Abbot can not enter, 
r 19 H. 6. 56.  but Thorpes opinion is 41. E. 3. that though he may not enter in the case aforesaid, yet he may retain the land against the villain, and the king may afterward ratify his estate, which is no more in plain terms, then that an estate so gained is voidable only and not void, and as to the exchange of benefices betwixt parson and parson it is severely punished by edict of Parliament in our realm. 
s 31. Eliz.   Nomomathes. 
I will not stay longer upon the inquiry of exchanges for you have opened unto me the nature of them, and how far they extend in these few cases: now let us pass to a larger examination of the doubts and points of devices and legacies.   

The Seventh Dialogue. Of Devises and Legacies.  NOmomathes. 
First I pray you tell 
1. Division.  me, whether this manner and custom of disposing by a man's last will and Testament, hath been in ancient time practised or no.  Codicgn. 
It is very ancient, for it was one 
1. The antiquity of wills.  of the Laws of the twelve Tables, Vti legassit, suae rei ita ius esto, 
a L. verbis legis ff. de verb. signif.  But before Solon's time it was not lawful for a man to devise his goods Extra familiam, to strangers: and therefore, when Solon did by Law established, grant this liberty to the Athenians, it was plausibly received of them, and accounted the best of all his Laws. 
b Plutarch. in Solon.  But Plato in his writings strangely, 
2. Plato his exception against Solon his Law concerning wills.  howsoever divinely conceited, dispraiseth this Law, and calleth the makers of it childish, because by that mean, a window is opened to deceit, and to flattery: for he saith, that when men are at point of death, they begin to dote, and their understanding is broken, and therefore it is very likely, that every man dying will dispose and appoint many things contrary to the Law, to the usual practice of them that live, & to the example of their ancestors. 
c Plat. lib. 11. de legib.  This sentence of Plato, justinian an Emperor exquisitely busied in the compiling of Laws, because he had rather err with Plato, then yield unto the truth with Solon, alloweth, and frameth his Laws accordingly, 
d Authent. de trient: & sem. in l. Paulus ad Treb.  and S. jerom writeth, that Solon's Law was repealed in his time, because Priests which were commonly employed in the making of wills, did greedily and odiously draw to themselves, the inheritance of the dead: 
dd L. 1. C. de sacr: Eccles.  and an other reason may be added in defence of Plato's opinion: because men in danger of death are for the most part too prodigal, which Aristotle noted, 
e Diogen. Laerti. in vit. Aristotel.  and Tacitus pronounceth more peremptorily speaking of Otho, 
f Tacit. lib. 2. lustor.  Pecunias distributt parce, nec tanquam periturus, having affirmed before, Difficilius est temperare, qua te non putes diu usurum. But Solon's 
3. Solon's law is maintained and defended against Plato.  Law leaneth to a more stable root, then that it may be shaken by the weak blast of such colourable reprehensions: and Solon did make exceptions to his Law for he made these testaments void which were made by any in the extremity of his disease, or which a man was enforced to make by imprisonment or torment, or by the persuasions and flattery of his wife: But surely the making of wills is necessary, 
g L. 3. D. qui test. fa. pos.  and without it men can not effect the good education and bringing up of their children, nor be able of their proper goods, chattels and other movable substance to discharge their debts, and after their degrees set forth and advance their children and posterity. 
h 32. H. 8. c. 1. wills 2.  nor leave their wifes such comfortable support as in conscience they ought.  Nomomathes. 
Let me know I pray you 
2. Division.  what persons may be legataries or devisees, and who not?  Codicgnostes. 
Every one that may be made 
1. Such as be uncapable of inheritances & goods may not be devisees, heirs, or executors by the Civil law. 2. A difference in the Civil law betwixt the making of a devisee and the making of an executor.  heir or executor may be a legatary or devisee, but to them which are uncapable by Law of inheritances or goods no devise can be made, neither can they be made heirs or executors, 
i C. de haered. instit. l. 1.  but there is a difference betwixt the making of a devisee and the making of an heir or executor, because he that is to be made heir or executor must be an able person in Law, as well at the time of the making of the Testament, as at the death of the testator, and the undertaking of the executorship, or entre into the inheritance: 
k ff. de haered. Insti. l. si alienum §. de extraneis & Iust: de haer. qual. & differ. §. in extraneis.  but as to the devisee it is sufficient if he be capable at the time of the death of the testator. 
l ff. de donat. causa mort: l. in mortis. & de conduit: & daemon. l. eum qui. & ff. de iur. fisc: l. non intelligitur §. quando.   Anglonom. 
By our Law to all such persons, to whom a grant may be made, a devise may be 
3. That by the Common law all persons to whom a grant may be made a devise may be made, unless it otherwise happen in some few cases.  made, unless it otherwise hap in some few cases, and the devise ought to be good & effectual at the time of the death of the devisor: as if a man seized of lands devisable, do devise the same to the fellows of a college, or the Priests of a Chauntery, and there is no such College nor Chauntery at the time of the death of the devisor: & after such a college or chauntery is made, yet the devise is void, because devices are purchases, and when a man taketh lands or tenements 
4. That the devisee must be a person capable of the thing devised.  by purchase, he must be an able person to take when it falleth to him by the purchase, 
m 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 Commonalty of a guild, which is not incorporate by the king's charter to purchase lands, is not capable of lands, and if a man seized of lands deviseable in fee, do devise the same land to A. for life, to find a Chaplain chanting in the Church of Dale, the remainder to two of the best men of the Guild or fraternity of Whittawers in London to find a chaplain etc. if the Whittawers be not incorporate by the King's charte●, & enabled to purchase, this remainder is void, 
n 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 Paul's the next day in the morning, this remainder is good though it be upon condition, if I. S. die not before the next day, and if one come to Paul's the next day in the morning, if he which cometh thither then be not a person disabled to take by the grant, 
o 30. Assis. pl. 47. Perk. 13. Sect. 56.  so that whereas you say that by your Law it is 
5. That by the Common law the devisee ought to be capable at the time of the death of the devisor.  sufficient that the devisee be capable at the time of the death of the testator, so it is likewise by our law: for though a man may not grant nor give lands to his wife during the coverture, because they both are but one person in law, yet by custom heretofore, which the Common law did favour, and now by statute, he might or may devise his lands to his wife to have in fee simple, or otherwise, because such devise taketh not effect till the death of the devisor, 
p Littl. lib. 2. c. 10. Sect. 8. 27. Assis. pl. 60.  and then they are not one person. 
q 24. H. 8. Br. Devis. 34.   Nomom. 
Now let me know what things may 
3. Division.  be devised.  Codicgn. 
Whatsoever things the testator hath 
1. That by the Civil law all such things may be devised as the testator hath in his own right at the time of the devise  as in his own right, 
r ff. de legate. 2. l. vinum §. si rem tuam.  & if he happen to devise a thing, which is not his own but an other man's, the executor is by our Law compelable to buy it, and to give it to the devisee by virtue of the will, or if the owner will not sell it, he ought to pay the very value and full estimation of it to the devisee, 
s ff. de legate: 3. l. dubium §. ulti.  and if land be bought by the devisor, for which he hath not paid any money, or not all the money, if he died, and the devisee will have the land, he must pay the money, and so enjoy the land, 
t L. 39 §. Idem julianus de legate. 1.  but if the devisor have sold land, and hath not received the money, and he deviseth the land so sold to I. S. the devisee in this case shall not have the land sold, but the money that is to be paid for it, for an argument is rightly drawn ab augmento ad diminutionem, 
u L. si ex toto eo. tit.  so that this conclusion may be made, is the thing bought due to the devisee? then the devisee ought to pay the money: is the thing not sold not due to the devisee? then he must have the money that is to be paid for it.  Anglonomoph. 
In our Law the making of a testament 
2. The three degrees of a testament by the Common law.  hath three parts, Inception, which is the writing of the testament, Progression, which is the publication of it, & Consummation, which is the death of the party, and when after the devise the devisor purchaseth other lands, it cannot 
3. A differen o● in the Common law where a man deviseth a thing whereof he is not seized particularly, and by name, and where not.  be intended by any possibility that he would have them to pass by the devise: for there is nothing contained in the will which doth purport such intent: but it was held in Brettes case, that if a man devise land in certainty, as the manor of Dale, or white acre, and he hath no interest nor possession in them at the time of the making of the will, and after the doth purchase it, in such case it shall pass to the devisee, for than it shall be taken that his intent was to purchase it as it is said 39 Henr. 6. 13. and it was likewise said that the statutes of 32. and 34. Henr. 8. required that the devisors should be seized of the land devised at the time of the devise, for the words be Every person having, or which after this act shall have etc. 
a 10. Eli. Come bret's case, per Lovel & touts les just.   Nomom. 
I pray you let me know more particularly what things may be devised.  Codicgn. 
A thing may be devised which is not 
4 That things which are not in esse at the time of the devise made may be devised.  in rerum natura at the time of the devise, if afterward it may be, as the corn which shall grow in such a soil, or the lambs which shall come of his flock of sheep in such a field, 
b Instit. de legate. §. ea quoque res. & ff. de legate. 1. l. quod in rerum.  but if the testator do devise ten quarter of corn coming of the corn which shall grow in such a soil, or two tons of wine of his grapes in such a vineyard, or ten lambs of such a flock, though so much corn, or wine, or so many lambs do not arise of the things abovesaid, yet the heir or executor is compellable by law to make them good integraliter, because he may seem to have mentioned the soil, the vineyard, and the flock, rather by way of demonstration then by way of condition: 
c l. quid testamento in prin. ff. de leg. 1. & l. Paulo Callimacho. §. jullanus Severus ff. de legate. 3. & l. Lucius ff. de alim. leg:  but if the testator do devise certain goods, or a certain sum of money to I. S. and in his life time after recovery of his health, he giveth the goods or payeth the money to the said I. S. now without any alteration of the devise in the will, the executors shall be discharged of performing the devise after the death of the testator. 
d l. Lucius Titius in testamento in prin. ff. de legate. 2. gl. in Clem. dudum. de Sepultur.   Angonomoph. 
It is said in our books that if a 
5 That the devise of tenant for term of life or tenant i● dower, of corn growing at the time of their death is good.  man which hath estate for life, or tenant in dower do devise their corn growing upon the land at the time of their death, this is a good devise, and he in the reversion shall not have the Corn, 
e 4 H. 3. Devis. 26.  But if a man seized of land in fee as in right of his w●fe, do lease the same land for years to a stranger, and the lessee soweth the land, and after the woman dieth, the corn being not ripe, in this case the lessee may devise the corn growing upon the land, and yet this estate is determined, and it was certain, but a thing noncertaine was the cause of the determination of it: 
f 7. E. 3. 67. 7. E. 4. 17. Park. 99 sect 513. 10. E. 3. 29.  And if a man be seized of land in the right of his wife, and sow it, ad deviseth the corn growing upon the land, and dieth before it be severed, the devisee shall have it, and not the wife: but otherwise it is of herbs or meadow growing upon the land, and not severed at the time of the death of the devisor. 
g 7. Ass. pl. 16.  And if tenant in tail of land lease the land for life, and the lessee soweth the land with Corn, and the tenant in tail dieth, and the issue recovereth in a Formedon in discender before the Corn be severed, the issue in tail may well devise it▪ 
h Park. Devis. 100 sect 520.  and if a man which is seized of land in fee, have issue a daughter, and dieth, his wife being grossement enseint with a son, and the daughter entereth and soweth the land, and after the sowing and before the severance the son is borne, and one of his next friends entereth for him, yet the daughter may devise the Corn growing upon the land, 
i 19 H. 6. 6.  And the Statute of Merton, which sayeth that omnes viduae possint legare blada is but an affirmation of the common Law which was used in the time of King Henry the third above mentioned, in the beginning of his reign: and so it is of other things future contingent, they may be devised well enough, for if a man enfeoff a stranger of his land upon payment, or nonpayment on the part of the feoffee, as if the feoffee shall pay unto the feoffor twenty pounds, at the feast of Easter next ensuing, that then he may retain the land to him and to his heirs, and if he do not pay that then it shall be lawful for the feoffor to re-enter, now if the feoffor make his will, and devise the money when it shall be paid to A. and dieth before the day of payment, this is a good devise conditionally, that is, if the feoffee pay the money to the executors. 
k 12. E. 3. Condic. 8.  For when 
6 That when the party hath a certain, and lawful interest in a thing, he may lease it, grant it, or devise it before the existence of it.  the party hath a lawful and a certain interest in a thing, he may grant, lease, or devise it before the thing have actual existence, therefore the saying of Master Keble that worthy man is well to be marked, when he sayeth that the King cannot grant any disme before it be granted to his highness by Parliament, neither a wardship cum acciderit, otherwise it is of the amerciaments of his tenants in such a village, the wreck of the Sea or catalla felonum, for he hath an inheritance in them and a possession in law, but in the disme he hath no interest before the grant. 
l 21. E. 4. Abbot de Walth. case 45. p Keble.   Codicgn. 
By our Law a man may devise to one 
7 That a devise may be uncertain, but yet good in Law, because it may by special means be reduced to certainty.  that he shall have yearly xx. load of stone out of his quarry in Dale, or three load of wood out of his grove or copies in Sale, 
m ff. de legate. 1. l. apud julian. §. si quis.  and if the testator do devise one of his vineyards, one of his horses, or one of his ricks of corn, it shall be in the election of the heir or the executor, what vinyeard, what horse, or what rick of corn he will give him, so that he give him not the very worst, but these which be indifferent. 
n l. legato generaliter ff. de lega. 1.   Anglonomoph. 
So in our Law a man may grant, & therefore as I think if one devise unto an other one of the horses in his stable, and he hath five in his stable, the grantee may choose which of them he will have: and if a man grant to one xx. s. of rend charge, or xl. s. of rend charge, I may distrain for which of the rents I will. 
o 9 E. 4. 39 11. E. 3. Annuity 27. Park. Grants 17. sect 74.   Nomomat. 
Let me ask you this question: The 
4. Division.  Testator having but one daughter, deviseth by his will that 1000 li. shall be paid for the marriage of his daughters, meaning as well other daughters that should be borne as her that is living: there is none afterward borne, the testator dyethw, hither is the executor bound to pay the whole thousand pounds to the daughter that is living.  Codicgn. 
I think he is bound by Law to pay 
1 That by the Civil law Ius acrescendi taketh effect in legacies.  the whole sum unto her, 
p l. qui quartan §. fin. ff. de legate. 1.  for ius accrescendi habet locum in legatis, 
q d. §. fin. cum l. seq. & l. a Titio. ff. de verbo oblatio.  and so if the testator do devise that if he shall have a daughter, the executor should give a C. li. for the marriage of his daughter, and two daughters be borne, now the executor shall pay to every of them C. li. 
r l. qui filiabus §. si quis ita. ff. de legate. 1.  and if the case be, that the testator doth devise the sixth part of his houses, of his lands, or vineyards to Sempronius, whereupon Sempronius demandeth a sixth part of every house, of every farm, and of every vinyeard: and the heir saith that these things cannot well be divided, but that he is ready to pay to the devisee the very 
2 Whether, when the 6. part of a thing is devised the heir is compellable to divide it by the Civil law, or to render the value.  value of every sixth part, the question is whether the law regardeth this answer of the heir, and for this doubt we have this general decision: if the thing which is so to be divided, be indivisible by the nature of it, or if it cannot be commodiously divided, the heir hath the choice to pay the value: but if it be divisible than the law is otherwise. 
s l. non amplius. §. cum honorum. ff. de legate. 1.   Anglonomoph. 
As to your last case our law doth accord with yours, for legacies shallbe favoured and ordered as dower is, and if a woman have title of dower to a house, a chamber in the house may be allotted unto her, as the third part of the 
3 That by the common law some time there may be a severance of the thing devised: sometime of the profits of the thing, or of the advantage.  house or in allowance of her dower, but she shall not so be endowed of a milne, but shall have the third part of the profit of the milne, because the milne cannot be severed, and a woman may be endowed of a villain engross as to have his services every third day, and of an advowson in gross to have the third presentment, and of the moiety of an advowson engross to have the sixth presentment, and a woman shall be endowed of a bailywicke to have the third part of the profit of it. 
t 1. H. 5. 1. 45. E. 3. Dower 50. Na. Br. 7. 2. H. 6. 11. 13. E. 2. Dower 161. Fitz. na. br. 148 C. 150. G. 149. K. 148. C. 12. E. 2. Dower 157. 11. E. 3. Dower 85. 15. E. 3. Dower 81.   Nomomat. 
Let the case be that the testator 
5. Division.  deviseth to one a plot of ground, and speaketh nothing of the house which is built upon it, whether shall the devisee have the house.  Codicgn. 
By our Law he shall have the 
1 That if a man devise a plot of ground whereon a house is built the house also passeth.  house, whether it were built before the Testament were made, or after, 
u l. servum silij §. si are ae ff. de l. si are ae. ff. de leg. 2.  and we have a rule in our Law, Quidquid plantatur, seritur, vel inaedificatur, omne solo cedit, radices si tamen egit.  Anglonomoph. 
It is so likewise in our Law, 
2 A house built upon land entailed after the gift shallbe recovered in a Formedon.  for if a man give land in tail, and the donee buildeth a house upon it, and dieth without issue, the donor if he be deforced from the land, shall demand it in a Formedon per nomen mesuagij. 
a 32. H. 8. 47. Dyer.   Nomomat. 
Put case the testator deviseth to 
6. Division.  one a deed or instrument containing a certain debt, whether doth he devise the debt or Noah. 
b l. servum silij § ●um qui chirographum. de legate. 1.   Codicgn. 
In that case the debt passeth, ʰ but 
1 That by the civil law when an especialty containing a debt is devised to one, the debt itself passeth.  if ten several payments ought to be made by the condition of a bond, as suppose ten pounds is to be paid yearly by ten several payments, and five years be past, and five payments made, and the testator deviseth the sum comprised in the condition to I. S. in this case the devisee shall not recover against the executor the whole sum contained in the condition, but five pounds only. 
c d. l. servum filii §. sed et si nomen.   Anglonomoph. 
Master Perkins, a man that writeth 
2 Master Parkins his opinion touching the devising of an obligation is examined.  of diverse Titles of our Law, rather subtly, then soundly, saith that if twenty pounds be due to a man upon an obligation or a contract, which ought to be paid at the feast of Easter, and he eviseth it to a stranger, this is a good devise, if the money be afterward paid: but if he had devised the obligation, or the counterpane of the Indenture of covenants, wherein the bond is contained, the devisee shall not use an action upon the bond in his own name, but he may give or sell the obligation to the obligor, or to a stranger, 
d Perkins 101. sect' 527.  but how bonds, or things in action may pass directly from one to another by way of grant, or devise, I cannot yet perceive by any authentic opinion in our year books: for to say that the especialty, or bond containing the debt or duty, doth pass unto the devisee, though the debt do not pass, as namely the parchment, ink, and wax, but not the sum conteigned, is as if one should imagine, that a man roweth over Thames in body, and yet remaineth at the Temple stairs in soul, for if the debt being the principal do not pass, I cannot understand how the parchment or paper, or the deed itself, being the accessory can pass, for accessorium sequitur suum principale.  Nomom. 
Resolve in this, if a man devise to an 
7. Division.  other a horse, a garment, or the like, and they perish in the hands of the executor, whether is the executor bound by Law to make them good.  Codicgn. 
In such case either the executor doth linger and delay the delivery, or giving of the thing devised to him, to whom it was devised, and then I doubt not, but he is bound to pay the 
1 That by the Civil 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 be charged with the making of it good, 
e l. cum heres §. si. & l. huiusmodi, §. si cui homo. ff. de legate. 1.  and then the executor or heir may be said to delay the administration of the legacy, when he may speedily perform it, and will not, but if he be by the act of a stranger hindered from executing the bequest, as suppose he hath not the money ready which is devised, or the devise be that he shall purchase an other man's land with the money of the devisor, and assure 
2 That in some cases the time of performing legacies is left to the discretion of the judges.  it to I. S. if he cannot easily compass this purchase doing his best endeavour, the rigour of law is to be tempered in this case by discretion, and respite must be given by the arbitrage of the judge. 
f l. si domus §. in pecunia. ff. de legate. 1.   Anglonomoph. 
In our Law we have many cases, wherein they that are charged with the delivery of a thing upon some trust and confidence 
3 That by the common law the executors are bound to perform the devise in convenient time.  reposed in them, and the thing that should be delivered perisheth through their default, they are enforced by law to make full amends, for if a man be seized of land devisable in fee, and deviseth by his Testament that his executors shall sell his land, and shall distribute the profits coming thereof to the use of the poor, and the devisor dieth, if a stranger tender unto them money for the land, but not so much as the land is worth in their opinion, and they to the intent they may sell it more dear, differre the sale for two years space, and take the profit themselves, now the heir for their long delaying may enter, 
4 A diversity betwixt an obligee and a devisee.  and put them out of the land, 
g 38. Ass. pl. 3. & 39 Ass. pl. 3.  but if a man be bound in xx. li. to pay x. li. at the feast of Saint Michael, the obligee refuseth the money when it is tendered in pollardes, which afterward are embased, the obligor shall bear the loss of the embasement, because he must plead uncore priest, 
h 7. E. 6. 83. Dyer.  and yet the refusal was the default of the obligee.  Nomom. 
Put case that a man deviseth to one a 
8. Division.  beadsteede, whether shall the devisee by force of this devise have the curtains of the bed.  Codicgn. 
The accessory goeth always with the 
1 That things which are accessary do pass with their principal.  principal, and the curtains therefore in this case shall pass with the bedstead, 
i l. liberorum §. sin. & ibi glo: de legat' 3.  so if a man devise to one his land or his house, the arrearages due by the farmor or inhabitant from the death of the Testator are payable to the devisee, but not the arrearages before. 
k l. praedijs. §. 1. ff de legate: 3. l. Nomen. §. filio ex part de legate: 3.  And if a house be devised, the  belonging to the house, and the orchard also which belongeth to it do pass, if from the house there be a way to the  or orchard, for than they may well be said to belong to the house and to be provided for the benefit of the inhabitant, 
l l. praedijs in §. balneas, & §. qui domum ff. de legate: 3.  and if a man do by his last will devise land, & live many days after the testament made, 
2 That a mine of coal passeth with the land if it be jointly used with it, otherwise it is if it be severally used.  and in his life time a mine of coal, lead, or tin is opened and discovered in the soil, than the testator dieth after that he hath used the mine jointly with the land, in this case the devisee shall have the mine, but if he had demised for life, or for years, the mine to one, and the land to an other, so that they had been severed, and disjoined in particular interest, than the devisee should not have had the mine, 
m l. cum fundus nominatim. ff. de legate. 2.  but if the Testator devise all his corn which he hath in such a barn, and the devisee being one of his household servants of purpose bringeth a greater quantity of corn into the barn, the devisee shall not have this increase, because it grew by the fraud of the devisee. 
n cum ita legatur in princ. ff. de legate. 2.   Anglonomoph. 
As to your two last cases, devices as I have said before are so to be favoured as dower, and I think that if a man do marry a wife, and die seized of land, and after his death a mine of coal is discovered in the ground, and 
3 That a woman shall be endowed of a mine of coal discovered after her husband's death.  then the woman bringeth a writ of dower, she shall have her dower as well of the mine being parcel of the land, as of the land itself being the principal, 
o 14. E. 3. Admeasurement 10. 13. E. 1. Itin: North. 17. Fitz. na. br. 149. C.  and as to your other case where the corn in such a barn is devised, and it is afterward increased, the devisee shall have no more corn than was in the barn at the time of the devise, for it is as much as if he should have said (all the corn which he now hath in his barn) for words of the present tense which hath a present beginning and ending, may not be drawn either to a time past which hath had his beginning and 
4 That words of the present tense in a devise may not be extended to the future tense  end, or to a time future which hath neither beginning nor end, and therefore if a man be bound to keep the prisoners of the jail of D. that they shall not escape, this shall extend only to the prisoners which are in the jail at the time of the making of the bond, and not to such which shall be afterward in the jail, unless it had been expressly said which be, or shall be in the jail, 
p 21. H. 7. 37.  and so if the Queen grant to me visum franciplegij in omnibus terris meis, & feodis, I shall not have view of frankepledge in any lands, but such as I have at the time of the grant, 
q 38. H. 6. 10.  so if a man be bound for the tenants of I. S. it shall be intended of these tenants only which I. S. hath at the time of the obligation made, 
r 39 H. 6. 6.  and if a man grant to another housewood and hedge-wood to be burnt in his houses in Dale, this shall not extend to houses which are afterward built, 
s Temps E. 1. Common 28.  and though Wilbyes' opinion be, that if a man grant to another a way over his land with wanes, and the grantee hath no freehold at the time to which he may have carriage, yet if he purchase freehold afterward, he may have a way to it, and Hankeford seemeth to be of this opinion 11. H. 4. 
t 21. E. 3. 2. per Wilby 11. H. 4 82. per Hank.  because in a general grant there needeth to be no naming of a certain freehold, yet in that very case dubito quid sit lex.  Nomomat. 
Admit that a man devise the profits of his land for five years to I. S. the devisee dieth within two years next after the devise, than the devisor dieth, whether shall the residue of the term go to the benefit of the executor 
1 That by the civil law if the devisee of a term die before the devisor the executor shall have the term.  or administrator of the deuisee.  Codicgn. 
We have express authority in our Law that it shall. 
a l. uxori v●ufru: §. quaesitum ff. de v●ufru: le:   Angonomoph. 
Brettes case which is very famous in our law is to the contrary: 
aa 10. Eliz. 46. Come bret's case.  but if a man devise 
2 By the common law a diversity is taken where the devisee dieth in the life of the devisor, and where after his death but before the legacy executed  xx. li. to be paid yearly in 4. years after his death to I. S. and died, and after the devisee dieth within four years, yet the executors of the devisee shall have the money or the residue of it by suit before the Ordinary in the spiritual Court, for it is a duty by the testament or devise, 
b 24. H. 8. Br. Devise 27. 45. Condic' 187.  and an administrator may as well sue for that duty in the spiritual Court, as he may have a writ of Covenant at the common law upon the covenant made with the party intestate. 
c Fitz. na. br. 146. D. 2. Mar. 112. Dy.   Nomom. 
What if the testator do say I devise such 
10. Division.  a thing to God or to Christ, what is wrought by this devise?  Cononol. 
The thing so devised is due to the 
1 That by the civil law when a thing is devised to God or to Christ, it shall go to the Church of the parish where the Testator dwelled.  Church of the parish where the testator did dwell at the time of the devise. 
d Authent: de ecclesiast' tit̄ §. si quis in nomine argu: l. quae conditio. §. sin: ff. de cond: & de monstr:   Anglonomoph. 
In ancient times such devices were good, and so was a fine levied deo, & ecclesiae, but the law is now altered, 
e Scir: faci: 18. E. 4. 22. 19 E. 4. 2. 4. 7. per Pigot en le cas de Prior de Merton.  and in the one and twentieth year of king Richard the second a devise of land was made to one for life, the remainder to an other for life, the remainder to the Church of S. Andrew in Holborn, and this was adjudged a good devise, 
f 21. R. 2. Devis. 27.  but now such a devise is made void by the statute of 23. H. 8. cap. 10. but before that statute it appeareth by the book of 37. H. 6. that upon a gift made to the parishioners 
2 That by the common law, and by the statute of 23. H. 8. such a devise is void.  of such a parish without naming them the Churchwardens might have an action, 
g 37. H. 6. 3●.  but then the gift must have been of a personal thing, for of inheritance of land they cannot take to the use of the Church, 
h 12. H. 7. 27.  but if a man in ancient time had given his lands or his goods deo & Ecclesiae sanct' Petr' Westimonast ' this had been a good devise, because the Church is not the house, nor the walls, but the entire spiritual house, that is the Abbot and the Covent, 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 Covent is not persona capax: but a church 
3 What is meant by a Church parochial according to Rolfes opinion.  parochial by Rolfes opinion (as to the endowment of it with land) cannot otherwise be intended, but a house made of stones, walls and roof, which cannot take by any gift or feoffment, and so it is of a Church conventual which lacketh a sovereign. 
i 8. H. 5. 4. per Babi. & Rolfe.   Nomom. 
Suppose that two testaments be exhibited 
11. Division.  to the ordinary which were made in one day, containing several sums to the same devisees bequeathed, whether shall they both be approved, and the legacies of both stand good.  Codicgn. 
These legacies only shall stand good, 
1 That by the civil law where two testaments contain in them several sums, that which containeth the lessee shall stand but by the common law the later.  which do contain in them a lesser sum. 
k l. Sempronius Procul. ff. de legate. 2.   Anglonomoph. 
In our Law we have a case, that if a man make a testament, and in it he maketh one only 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 proved, that only shall stand, 
l 2. H. 5. 8.  but by other authority the later only shall take place, what sums soever they contain. 
ll 4. H. 7. 13.   Nomomat. 
Say that an ox is devised to one, and 
13. Division.  the ox dieth without any default in the executor, whether is the skin or hide of the ox due to the devisee or no?  Codicgn. 
By our Law it is not due: 
m l. mortuo 'bove. ff. de legate: 2.  for the 
1 That by the Civil law if an ox be devised and he die the skin is not due to the devisee.  thing devised, that is the ox, did perish and was non ens before the skin were taken off, and the skin was not taken from an ox, but from a carcase.  Anglonomoph. 
It seemeth in that case, that the 
2 That by the common law, it seemeth to be due, otherwise it should be if there had been▪ an exception of the hide.  devisee shall have the hide, for it is parcel of the ox, and the ox was an entire thing, but if he had given the ox, excepting the hide, that perhaps would amount to a severance in law, so that the ox living should have belonged to the devisee: but being killed the flesh should belong to the devisee, the hide to the executor of the devisor, and if a man make a lease of land, excepting the trees which grow upon the land, the trees are severed in Law, for he hath no reversion of them, and if he sell them and after the sale make a feoffment the feoffee shall not have them because they were severed by the vendition. 
n 20. H. 6. 22.   Nomomat. 
Put case that I. S. do borrow a C. 
13. Division.  li. of I. N. and for the sure repayment thereof he bindeth all his lands and goods by recognisans of statute Merchant to the said I. N. after he deviseth all his lands to the recognize and dieth, the recognisans is forfeited, the recognize bringeth an action of debt, and recovereth against the executors, and hath execution of the goods of the testator by Fierifacias, and then he claimeth the land by virtue of the devise, whether is his claim good or no? 
1 That if the recognisor devise all his goods to the recognizee, yet he shall have execution of the land.   Codicgn. 
I think he may claim the land also, if it may not be proved by circumstances, or directly, that the land was devised unto him in satisfaction of the debt, and upon condition implied that he should not alter the property of the goods by execution. 
o l. creditorem ff. de legate: 2.   Anglonomoph. 
I do not perceive any repugnancy in our Law to that which you have said.  Nomomath. 
If he had made his creditor his executor in this case, what would then have followed.  Anglonomoph. 
Then the debt had been extinct: 
p 11. H. 4. pl. 31.  
2 That if the obligee make the obligor his executor the det is extinct.  for if two be bound to one in a certain sum of money, and the obligee maketh one of them his executor, this is a release in law of the bond, and debt to them both, 
q 21. E. 4. 81.  so if one make his debtor and an other his executors and die, in this case if the executor, who was not indebted survive, he shall not have an action of debt against the executor of his coexecutour, although the party indebted did not administer in his life time: for the action was once extinguished and determined, for no action can be brought but in the name of them both, 
r 20. E. 4. 17. 21. E. 4. 3. 21. H. 7. 31. per Fineux.  but if one that is indebted make his creditor, and an other his executors, the creditor may have an action, if he do not administer, 
s 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 regard of the testator, yet the debt is still in esse in respect of strangers. 
t 7. H. 4. 18. 27 H. 6. en Scire fac' 7. Eliz. Come Greysbrookes' case 275.   Codicgn. 
When the creditor maketh the debtor his executor, by the executorship the debt is confounded, and because of impossibility in Law, forsomuch as the executor may not bring an action of debt against himself being one, and the same person, the obligation therefore is by secret act of Law disannulled. 
u Philip. Deci ad reg. iur.   Nomom. 
Now I will put you a case, which is 
14. Division.  a common contingent, The testator ordeigneth by his will that his daughters shall be married by the appointment and disposal of Titius his brother, the Testator dieth, Titius also dieth before he hath disposed any thing of the marriage, whether may the marriage and the portion be arbitrated & disposed by some other or no, as namely by the executor of Titius?  Codicgn. 
I think the executor of Titius may 
1 That by the Civil law if a man ordain by his will that his daughters shall marry by the appointment of Titius, that Titius his executor may dispose of the marriage.  well enough order and accomplish this matter according to the degree of the daughters, the wealth of the father, and the number of the children. 
a l. si filiae pater ff. de legate. 3.   Anglonomoph. 
I think quite contrary because there is a confidence reposed specially & incommunicably in the person of Titius, and there be many cases in our Law to prove this assertion, Cesty que use before the statute of 27. of king H. 8. did devise that A. B. and C. his feoffees should 
2. That by the Common law where a confidence is reposed in certain persons, it is incommunicable to others.  sell his land, whereof they were seized to his use. A. dieth: it was held that B. and C. could not sell the land, otherwise it had been if he had spoken generally of his feoffees, without naming them specially: 
b 2. Elizab. 177. Dy.  Likewise a man devised, 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 authority of selling the land is fully determined and gone: 
c 5. Eliz. 219. Dy.  and so it was held per curiam, that if a man did declare his will, that B. and C. his executors should sell his land and the testator dieth and B. dieth: and C. maketh M. his executor and dieth, and M. selleth it, this sale is void, for the trust is strict: but M. Brudnell saith that if a man devise by his will that H. and N. his executors shall sell his land, and they refuse to be executors, yet they may sell the land, because they are named by their proper names: 
d 19 H. 8. 9  But where the executors are not specially named for the sale of the land, there one of them only may well enough sell the land: for the case was, that a man did devise 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 manor and pay the debts per intentionem testatoris, the words of the devise as touching the sale were general (which I appoint to pay my debts). 
e 23. Eliz. 371. Dy.   Nomomath. 
I have often heard, that a devise 
15. Division.  shall be taken most largely, and beneficially for the profit and avail of the devisee, I pray ye let me hear some cases, which may confirm this unto me.  Codicgnostes. 
If the testator do devise all his 
1. That by the Civil law devices are for the most part construed for the devisce.  horses to one, all his horses and mares shall pass by the devise, 
f L. legatis servis. §. iunctis. ff. de legate. 3.  and if the testator do devise all his beasts, all fourfooted cat-tail, which are beasts of pasture, do pass by this devise, 
g D. l. legatis §. pecoribus.  & if a flock of Sheep be devised, the Lambs and the Rams are contained in the devise 
h L. servis legate. §. si. ff. , but if he devise his Sheep, without saying his flock of sheep, his lambs do not pass, 
i D. l. legatis servis. §. ovibus.  and if a man devise his plough horses to one, and after the devisor selleth the horses, and buyeth and useth mares for his plough, and dieth, now the mares shall pass by the devise 
k L. qui duos mulos. ff. de legate: 3. , and if the testator do devise to one all his wool, all his wool as well washed, as not washed, spun as not spun, & generally all his wool which is not wrought into cloth is devised, 
l L. si cui lana. in princip. & in §. lanae. ff. de legate. 3.  and herein it differeth from line, because under the name of line, even line that is wrought or linen is contained, 
m D. l. si cui lana. §. lino.  so if a man devise all his silver to one, his silver cups and all his other vessels of silver do pass 
n L. cum aurum. ff. de auro & argent:: leg: in princip. & l. lana. §. fi. ff. de legate. 3. , but no silver coin doth pass, 
o L. Quintus in prin. ff. de aur: & argent:: leg.  otherwise it had been if he had devised all his silver wrought or laboured 
p Ibid. , for if the testator devise to one all his cloth which is in such a chest, no garments nor apparel are contained within the devise, but only the rude and plain matter of cloth, because when marble is devised the imageries of marble are not meant, but the gross matter of marble, 
q L. quaesitum §. illud fortassis. ff. de legate: 3.  and if would be devised, only wood fit to be burnt is comprehended in the devise, but not timber, 
r L. ligna. ff. de legate: 3.  yet the testator his meaning is in these later cases to be examined by circumstances. 
s L. pediculi §. labeo. ff. de aur: & arg▪ leg:   Anglonomoph. 
And by our Law, the favour of which is equally divided betwixt the advantage of the devisee, and the intent of the devisor. Devises are often times ampliated and extended by beneficial construction for the help and profit of the devisee if they be not repugnant to 
2. That the Common law so favoureth devices that it upholdeth equity & the correspondence of reason.  law: but if they be repugnant, the Law then, as a Lady jealous of her justice, doth utterly frustrate, and make void the devices: That which I affirm shall by cases and examples better appear: The L. Latimer did devise to his Lady and wife the third part of all his goods and chattels, and great question was made, whether this devise should be intended of the third part of the goods and chattels as it should be after the debts and legacies paid, or as it was at the death of the testator: and whether the third part of the debts due to the testator do pass by this devise, but it was agreed by the justices, that by the word (utensils) Plate and jewels do not pass, and if a man devise to his daughter five hundred pounds, for and toward her marriage, and she dieth before the marriage, by the opinion of the greater part her executor shall have the sum, otherwise it had been if the words of the devise had been (to be paid at the day of her marriage, or at the age of 21. years) and she dieth before, 
t 36. H. 8. 59 Dy.  and 16. Eliz. A man devised laud to one so that he do pay 10. li. and if not that it should remain to his house, provided that the lands shall not be sold, but shall go to the next of blood being male, it was held that this was an estate tail, & that these words (shall go to his house) shall be construed to the eldest person of his family, and these words (being male) shall be construed in the future tense, and in many cases an estate may be limited in a devise by implication: as if a man devise land to one and to his heirs males in fee simple, the remainder to the next heirs males of the kin, there is an entailement both in the first estate and also in the remainder, 
u 16. Eliz. 333. Dy. 2. Eli. 171. Dy.  but where a devise is contrary to Law, it is void of effect: for a man devised land in London to the 
3. That the Common law frustrateth these devices which are repugnant to Law.  Prior & Covent of S. Bartholomew's, so that they pay to the Dean and Chapter of Paul's 10. li. yearly, and if they failed, than their estate to cease, and that the land should remain to the Dean, and it was held by Fitzh. & Baldwin justices that this was a void remainder, because it could not be limited after an estate in fee, and as of a condition the Dean & Chapter could not have advantage but the heir, 
a 29. H. 8. 32. Dy.  and so if a man devise land to one in fee, & that if he die without heir that then it shall remain to an other in fee, this is a void remainder because one fee simple cannot depend upon an other 
b 19 H. 8. 8. .  Nomom. 
What if the testator do devise to his 
16. Division.  wife certain land, whilst she should live chastened, and she marrieth, whether is her estate determined?  Canonolog. 
I think it is not determined, for 
1. That by the Cannon law if land be devised to a woman whilst she shall live chastened, marriage is not implicatively and absolutely prohibited.  though the words of the devise do imply a condition, yet the condition is not broken, because matrimonium est reshonesta, and therefore not to be imagined to be within the intent of the condition. 
c Authent. de nupt: in princ: 28. quaest. 1. ca sic enim 33. q. 2. c. 2. l. 2. C. de indict: viduit: toll:   Nomoma. 
Yet it seemeth that the condition faileth, Quia coitus & castitas opponuntur, 
d D. authent. de nup. §. quaa vero.  therefore it may seem that she should lose the legacy as well by marrying, as by living incontinently.  Canonol. 
But I think rather that she shall not lose the legacy, because there was no condition expressed in the devise that she should not marry, and therefore she can not be said in marrying to do against the will of her husband: but yet it may seem, that if she had married within a year after the death of the testator, she had broke the condition, 
e ff. de iur. patron: l. adigere §. fi.  for doubtless otherwise, Mulier secundò nubeus castitatem servat. 
f D. authen: de nup. §. fin. autem & idem Extra. de divor. c. gaudeamus. in fin: l. mulier. §. cum proponaretur. ff. ad Trebel.  
2. That the Civil law, and Common law do favour marriage.   Codicgn. 
Our Law in such cases favoureth matrimony, 
g ff. de reg. iur: l. In ambiguis. & l. in testamentis eod:  and where there is no condition prohibitory expressed, the Law will not in such case intend it. 
h In authent. hoc locum C. de secund: nupt.   Anglonomop. 
In our Law we have a case that King Edward the sixth granted to his sister the Lady Mary the manor of D. as long as she should continue unmarried, and this is admitted in our Law to be a good limitation but no condition, as hath been before surmised. 
i 4. Mar. 1. 141. Dy. 37. H. 6. 29. 10. Assis. pl. 8. 17. Assis. pl. 7. 3. Assis. pl. 9 & 6.   Nomom. 
Let this be the case: the husband deviseth 
17. Division.  to his wife the profits of all his goods, the question is whether the wife may take the profits by her sole authority, or by the appointment of the judge, or by the administration of the executor. 
1. That there is a diversity, in the Civil law where a man maketh his wife usufructuariam of his goods, and where he deviseth them to her.   Codicgn. 
In our law we take this difference: where he maketh his wife by his will usufructuariam of the goods, and where he doth devise unto her his goods: For where he maketh her usufructuariam, she may of her own power take the profit and benefit of the goods, and she needeth not to expect or attend the courtesy of the executor: 
k L. si habitatio §. si usus fundi. & l. fundi ff: de usu & hab:  But if he devise his goods, or the profits of his goods, or command and charge his heir or executor by his will, that they allow sufficient maintenance to his wife out of his lands or goods, now the woman is a devisee, and she must take that which is devised, by the hands of the heir or executor, or else sue for it by law. 
l ff. de usufruct: legate. l. patrimonij & l. si quis.   Anglonomoph. 
By our law the power and authority 
2. That by the Common law the administration of the goods and chattels of the testator doth appertain only to the executor.  of delivering goods and chattels, or putting the devisee in possession belongeth only to the executors, who must see debts paid before legacies performed: 
m 37. H. 6. 30. ● Prisot. 2. H. 6 16. Perkins Testam. 94. D. S. Dialog. 2. 79.  And therefore if a stranger take goods devised to me out of the possession of the executors, I cannot have an action of trespass for the taking: For it is not like to a gift of goods which is presently executed: and if a man devise the forth part of his goods to another, the devisee may not seize the fourth part but he must sue for it in the spiritual court, 
n 27. H. 6.  but if a man devise a book or some other thing to one for term of life, the remainder to an other for ever, if the executor deliver the book or the goods to the first devisee, the second devisee may seize them without livery of the executor, for the possession of the first devisee was the possession of them both, otherwise it is if the first devisee hath the possession & die 
o 37. H. 6. 30. : but if a man seize in an other right then as devisee, than he need not depend upon the delivery of the executors: & therefore the case was 9 E. 4. that an action of debt was brought against one as executor in London, and the defendant said that the testator did give unto him certain goods by his deed, & he showed in particular what goods they were, the testator being at the time of the gift in the village of B. in the county of Essex, & that he suffered the goods to be in the possess. of the testator until his death at London, and after the death of the testator he took them, absque hoc that he did administer as executor: & the whole Court held that the jurors ought to find this matter of the gift of the goods upon pain of attaint 
p 9 E. 4. 40. , but where a man ought to take a thing by the delivery of an other, & he taketh it of his own head, he is a trespasser: and therefore if a man grant to an other an estover of wood to be taken by the view, & delivery of his Bailie, if he take it without the delivery of the Bailie, the grauntor may have an action of trespass against him, Quare vi & armis 
q 8. E. 3. 422. .  Nomomathes. 
Suppose that a legacy of money 
18. Division.  is devised to a man in regard of his wife, and the testator dieth, whether may the husband in this case demand the legacy without naming the wife?  Codicgn. 
By our Law the husband may demand 
1. That by the Civil law the husband may demand a legacy due to the wife without naming the wife..  it, without naming the wife. 
r L. Titio centum. §. Titio genero. ff. de conduit: & demonst:   Anglonomoph. 
I see little reason but that the husband only may demand it in his own name, he being the sole devisee: and the thing devised being a personal thing: but if it had been a real thing, and the wife had been interested in it, than the law would be otherwise.  Nomoma. 
I pray you put me some cases touching this difference, that I may better understand your meaning.  Anglonomoph. 
The writ of mesne because it 
2. That in the Common law there is a diversity as touching bringing of actions in the wife's name where the matter of the writ is real and where it is personal.  is in the realty ought always to suppose the husband and wife to be mesnes, 
s 13. R. 2. Brief 642.  but in a writ of trespass it hath been held a good declaration, if the plaintiff allege that the defendant entered into his manor of Dale though he have nothing in the manor but in right of his wife: for this is a a personal wrong done unto the husband 
t 4. E. 4: 31. : and by Danbyes' opinion the husband taketh the profits of the land in his own right, 
u Ibid. per Danby.  so that it can not be law, which is said 21. R. 2. that an action of trespass for trees cut in the land of the wife must be brought as well in the wife's name as in the husbands, 
w 21. R. 2. Brief 933.  and the contrary is held for Law, 6. H. 4. and 47. E. 3. because as M. Finchden saith, well the husband only may release the damages when they are recovered, 
x 6. H. 4. 10. 47. E. 3. 9 per Finch.  neither may Husseyes' opinion 7. H. 7. be admitted for Law where he saith that the writ may be brought in both their names 
a 7. H. 7. 2. ●. Hussey. , & in an action of debt brought by the husband upon an obligation made to him and to his wife the writ may be brought in the husband's name only 
b 12. R. 2. Bre. 639. , and so where a lease is made for years rendering rend by the husband and the wife of the land of the wife, the action of debt must be brought in the name of the husband only 
c 7. E. 4. 5. , howsoever 2. R. 2. be to the contrary that in a writ concerning a chattel real they may join 
d 2. R. 2. Brief. 37. , but where the husband is seized of a signory in the right of his wife, a man may not make conusans as bailie to the husband, but as bailie to them both 
e 12. R. 2. avowry 88 , but that is because the conusans and avowry in such case is en le droit 
f 48. E. 3. 8. ● Finch. : but as to such things which concern the person of the wife immediately, there the writ must be brought in both their names, and therefore the husband cannot sue a writ of appeal 
3. That where the wrong doth immediately concern the person of the wife, the wise must of necessity be named.  for the rape of his wife without naming the wife 
g 8. H. 4. 21. 1. H. 6. 1. 10. H. 4. Br. Baron & fem. 34. , & whereas they brought an action of battery for the beating of them both, the writ was adjudged good for the battery of the wife, but not as to the battery of the husband 
h 9 E. 4. 54. , and the husband and the wife shall both bring an action of trespass for the taking away of the goods of the wife before the marriage 
i 21. H. 6. 33. : but in a writ of detinue of charters against husband and wife the declaration was upon a trover, and the writ was abated 
k 13. R. ●. Brief. 644. , but a writ of covenant was brought by the husband and the wife, because the defendant leased unto them land for term of years by deed, & afterward outed them, and the writ was awarded to be good, for if the husband die, the woman shall have the term 
l 47. E. 3. 12. , and in this case they were both parties to the covenant, and by the books of 6. E. 4. & 17. E. 4. an action of debt for the arrearages of a rent reserved upon a lease for years made unto the husband and the wife shall be brought against them both, and so shall a writ of waste: for the wife cannot waive the lease during the life of the husband 
m 6. E. 4. 10. 17. E. 4. 7. , and 8. Rich. 2. an action upon the statute of Labourers was brought against husband and wife supposing that the wife had covenanted with the plaintiff to be dansell or waiting woman to his wife for a year, & that she departed out of service within the year, & the writ was awarded to be good being brought against them both 
n 8. R. 2. labourers 59 .  Nomoma. 
No more of this matter, let me ask 
19 Division.  you farther, If the testator do devise to one within age his maintenance to be given & allowed him by his executor until he come to ripeness of age, how shall these words (ripeness of age) be understood, whether of age of discretion, or full age?  Codicgn. 
I think it shall be meant of his full age: 
1. That by the Civil law when maintenance is devised to one till the ripeness of age▪ is intended of full age.  for that is the common intendment, & the authorities of our books do sway to that point 
o l. Mela. ff. de aliment. & ci●a. leg. .  Anglono. 
In our law though there be but two ages for the heir male namely, the age of 14. which is the age of discretion, and the full age 
2. The diversities of ages by the Common law.  which is the age of 21. years 
oo Littlet. lib. 2. c. 4. Sect. 8. & 9 , yet the heir female hath in our Law many ages, namely at 7. years to have aid to be married, and 9 years to deserve dower, and 12. years to consent to marriage, and 14. years to be out of ward: and 16. years for the lord to tender unto her a marriage: and 21. years to make a feoffment or a deed which may bind her 
p 35. H. 6. 4●. , but by common intendment ripeness of age is fullness of age: & full age by constitution of our law is the age of one and twenty.  Nomom. 
Then I know your opinion as touching 
20. Division.  this question, now let me demand an other. If the testator do devise his mansion house which he hath in the parish of S. Andrew: and that hath some appurtenances lying in the parish of S. Giles, whether do these appurtenances pass by the devise or no?  Codicgn. 
The appurtenances do pass, & we 
1. That by the Civil law when a mansion house that is in one parish is devised, the appurtenances in an other parish do pass by the devise.  have good authority for it in our Law 
q L. patronus. §. Sempronio. ff. de legate. 3. .  Anglonomoph. 
And me thinks the appurtenances being in an other parish do not pass by this devise, for not to aid myself with ancient authority of law, it hath been lately, fully, & upon ample discourse of this very point ruled, that nothing shall be said to be appurtenant to a house, save only the garden, the curtilage, and the close adjoining to the house, and no other land, though other land have been occupied with 
2. That by the Common law land cannot be appurtenant to land.  the house 
r 23. H. 8. Br. Feosm. 53. , for land cannot belong to a house, because they be of several natures: for the house is a place to inhabit, & land is a thing to be ploughed, or sowed, or improved, & so cannot properly be appurtenant to a house: no more than one liberty may be appurtenant to an other liberty of several nature as a warren to a leete, or a leete to a hundred 
s 3. Mar: come. 168. Hills case. per Walpoole, Rastall, & Morgan. , and all the justices but Cook who spoke not to this point in partridges case agreed that land cannot appertain to a house, and this Montague said was a ground in the law: but Hales there said, that a garden may contain 11. acres in quantity and by such special mean be parcel of a house 
t 6. & 7. E. 6. Comm. 85. Partridges case. , this is sufficient to prove that the appurtenances do not in this case pass by the devise of the house, without the authority of 27. H. 6. where it is consonantly avouched, that though a man may give an acre of land unto me by the name of a carve, & a carve by the name of a Manor, yet by a deed of feoffment of a house, land cannot be conveyed as parcel of the house 
u 27. H. 6. 2. .  Nomomath. 
Ye have removed all the doubts touching devices which perplexed my mind: & we have been long in conference of this title, now from real things let us pass to personal, in which I pray ye continue your pains according to your former diligence, and first ye are to speak of borrowing and lending.   

The eight Dialogue of Borrowing and Lending.  NOmomath. 
I would know the perfit 
1. Division.  difference by the Civil law betwixt Mutuum and Commodatum, I pray you Codicgn. let me use your help herein.  Codicgn. 
They differ in our Law many ways.  
1. That which we call Mutuum, doth consist 
1. The difference in the Civil law betwixt mutuum and Commodatum.  only in things which are consumed by the very use, which consist in number, weight, or measure, as corn, spices, salt, and such like: Commodatum is that which by using is not spent, & as it is not delivered by weight nor measure, so neither is it restored by weight or measure, as books, apparel, & the like. 2. In lending that which we call mutuum, the very property of the thing leaned doth pass, 
a L. 2. §. appellata. ff. si cert. pet.  but we do still retain the property of that which we call Commodatum. 
b L. rei commodatae. cum l. seq: ff. commod.  3 That which we call Mutuum is leaned for every use in general, as if the lender should say unto him that borroweth, Vtare, fruare pro tuo arbitrio, sicut dominus, 
c L. in re mandata. C. mandat:  but Commodatum is leaned for a certain, & prescript use, 
d L. in commodato. §. sicut ff. commod.  and if any man do use it otherwise, he committeth theft 
e L. 5. §. quin imo▪ ff. eo. & §. placuit. instit. de oblige. quae ex delicto nasc. . 4. If the thing which we call Mutuum be made worse or perish, he to whom the loan is made shall not sustain any damages: otherwise it is of Commodatum, if through his fault, default, covin, or negligence, the thing leaned do perish or become worse 
f L. si ut certo §. nunc viden. verse. quod vero l. cum, qui in princ. l. ad eos, & l. argentum cum l. sin. ff. commod. .  Nomomath. 
What persons may be bound by 
2. Division.  borrowing and lending?  Codicgnost. 
Every particular person every 
1. That particular persons, corporations and Churches parochial may be bound by contract of borrowing and lending by the Civil law.  church being parochial or conventual, 
g In authent▪ hoc ius porrectum C. de sacros. Eccles.  every university, commonalty or corporation, 
h L. civitas & ibi plene per Ba●tolum. ff. si cert. pet.  yet with this restraint if the money be converted to the use of the City or Church 
i Innocent. in c. 1. Ext. de pos. & per Ferrar. in form: libel. de act. hypoth. in glos. super verb. sub. ead▪ obligati. .  Anglonomoph. 
Indeed thereto doth our Law accord, for before the dissolution of Abbeys & monasteries the successor of a Prior should have 
2. That by the Common law Abbots, Prior● and such religious persons might charge the house by their contract, and by recognisans.  been charged with an annuity granted by his predecessor, pro consilio impenso & impendendo without the covent where counsel was given in the matters of the predecessor, & of the covent, for so it was a thing which came to the use of the house which must needs charge the successor 
k 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 recognizance, might charge the successor, though nothing countervailable did come to the use of the house, & he said that this hath been diverse times adjudged, & he said that the cause was for that the Covent cannot be party to such record, but only the Abbot, otherwise it is of Deane & Chapter, for the Chapter may be party to a matter of record 
l 14. E. 4. Abbe 4. , and an Abbot might have been charged in a writ of debt upon a loan of money made to his predecessor which came to the use of the house 
m Fitzh. N. B. 121. K. 9 H. 6. 25. 22. H. 6. 64. , and an Abbot should have been charged by a writ of debt for victual and other things bought by his caterer, or manciple, or other officer deputed to make purveyance for the Abbey in time of vacation 
n Fitzh. N. B. 122. F. 25. E. 3. 48. 26. E. 3. 55. 4. E 2. Debt 168. .  Nomomath. 
Codicgnost. how many kinds are 
3. Division.  there of borrowing and lending?  Codicgnost. 
Two: one that is called natural, 
1. Two kinds of borrowing, and lending by the Civil law natural and civil.  when the thing which is lent unto A. by B. is delivered unto him by B. or by some other in the name of B. 
n 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 Civil which is only contracted by the confession and acknowledgement of the party as when a man confesseth by word of mouth or writing, that he hath had and borrowed so much of such a one 
o L. 1. 2. & 3. C. de non num: pecun: & Instit: de literat: oblige: inprinc. .  Anglonomoph. 
From this diversity our Law 
2. That the Common law acknowledgeth this difference in substance and effect.  dissenteth not: for when a man dareth to an other money, and payeth it into his hands, or some other for him, which you term a natural lending, if this be until a certain day, and the day be incurred, and the money not paid, the creditor▪ may sue an action of debt against the debtor 
p Fitzh. N. B. 119. G. , and whereas you say that a man by confessing that he hath borrowed so much money of such a man may make himself a debtor, it is true and agreeable to our Law, for when a man maketh such a bill, namely this bill doth witness that I. A. have borrowed so much money of C. without saying more, this shall charge the executor as well as an obligation: and the testator could not have 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 delivered as the deed of the party, this is a good oblig': for these words recepisse or debere: or teneri ad soluendum 20. li. or where a man reciteth, that whereas he borrowed of I. S. 20. li. he hath paid unto him 15. li. so that 5. li. remaineth to be paid, this is a good obligation, & shall bind the executor: for every word which proveth a man to be a debtor, or to have a stranger's money in his hands, though it be by bill, yet it shall charge the exec': As if a bill be made which witnesseth, that I have found 20. li. belonging to I. S. without other words, I shall be charged, and shall be outed of my Law 
q 28. H. 8. 20. Cores C. per Fitzia: & Mountag. .  Nomomath. 
Let me know now whether usury, 
4 Division.  or lending for interest, be prohibited by your Laws yea or no? and me thinks (to speak by way of objection) that it should not, for first it seemeth not repugnant to the law of nature or to 
1. An usurous lending or lending of money for interest, is by way of objection maintained.  natural reason, because reason enforceth and nature moveth us to this, that we should do well to them that have done well to us, otherwise we might incur the salt of ingratitude, which drieth up the very fountain of liberality, and beside by the Law of nature it is lawful for every one to lend of his own as he list, and to receive for his own as it pleaseth him: and it seemeth to be permitted by the Law of God when it is said: Ego veniens cum usuris exegissem illud, 
r Luc: 19  and so it is appointed in Deuteronom. Faeneraberis gentibus multis, 
s Deuter. 29.  And hereto agreeth the opinion of Aquinas, who writing upon Ecclesiast. 
2. Aquinas his authority is urged for proof hereof.  saith thus: Faenerare proximo tuo in tempore necessitatis illius: And again: Red proximo tuo in tempore suo. Multi quasi inventionem aestimaverunt faenus & praestiterunt molestiam suis qui se adiwerunt. Donec accipiat osculatur dantis manum, & in promissionibus humiliat vocem suam, & in tempore redditionis postulabit tempus, & loquetur verba taedij & murmurationum, & tempus causabitur 
t Aquin. in Ecclesiast c. 29. : And surely me thinks it is a point of brotherly love to lend unto a needy brother a competent sum of money, so much as will serve him for a reasonable surplusage of increase.  Cononol. 
Usury may well be called the devils 
3 The objection is answered by the Comonist.  charity: for as the devil cannot do any good howsoever he would seem to do it, because it is against his nature to do any good thing: so his charity howosever it may seem to do good, yet in truth cannot perform any good thing, because the nature of it is opposite to all goodness being by Cato resembled to murder, by the Canon law to theft: 
a Ca: si quis usuram: l. 4. q. 4.  yet it maketh some show to do good, but so as if a man were troubled with a burning ague, and greatly inflamed in his body, should in the extremity of his heat ask a cup of single bear of one that standeth by, and he reacheth it unto him this cooleth the heat for a time, and the sick man thanketh him for it, but when the disease doth reverte upon him and his fits grow worse than they were before, & he perceiveth that the drink which he drunk hath too much inflamed him, than he beginneth to complain of the hurtful courtesy and pity of the other man: so when the usurer dareth money at the first he that borroweth it thanketh him, and thinketh himself deeply beholden to him, but in the end when he findeth that his goods decrease and his debts increase by the usurers kindness, when not only pot and pan, but even garments and jewels must be either gauged or sold to satisfy the usurer, & when they perceive the Bee that had a flower in her mouth to have a sting in her tail, than (that is to say) too late they find that under this bait lieth a hook, under this charity cruelty. And as to Aquinas his opinion of this matter quis tumidum guttur miretur in 
4 Aquinas his authority disproved.  Alpibus? and who will wonder if Aquinas patronize an error in divinity? yet he defendeth it strangely for he holdeth in the very same place, that it is prohibted by the Law of God, and yet that it maybe tolerated in a politic respect, is not this Theomachein? is not this to permit unto flesh and blood, which the spirit of God hath forbidden, but to answer you more particularly: First usury is against the law of nature, because it is against the Law of nature that money should engender money, and against the Law of God, in which it is said: Si pecuniam mutuò dederis pupillo meo pauperi, non urgebis eum quasi exactor nec usuris opprimes, 
b Exod. 22.  and again mutuum date, nihil inde sperantes, and by our law it is flatly forbidden. 
c 14. quest: 4. ca 1. cum sequent: & in Clem. 1. de usur.   Codicgn. 
So it seemeth by our Law which in 
5 The Civil law in condemning usury agreeth with the Canon Law.  this professeth itself to imitate the Canon law for the Emperor saith of this matter, leges non dedignantur 
Authent: de Ecclesiast: tit:  imitari sacros Canon's, and he commandeth the four general Counsels to be observed, wherein usury is forbidden. 
e l. 1. C. de sum: trin: & sid: Catholic.   Nomomat. 
But Anglonomoph. I think your law doth wink at usury if it take but after the rate of x. li. in the hundred.  Anglonomoph. 
It winketh at it as he that shooteth 
6 The common law in this agreeth with both other Laws.  in a caliver at birds, who winketh with one eye and woundeth with the other, so our law seethe not when the usurer letteth forth his money to interest, but when an information is exhibited against him than it seethe the fact, condemneth the fault, and punisheth the offender: and though he take but after the rate of 10. li. in the hundred, yet he shall forfeit the full value of the interest, and worthily truly doth the statute note usury with terms of disgrace censuring it to be vice, increasing by corrupt shifts, to the importable hurt of the common wealth. 
f 13. Eliz. Ca 8. Usury 8.   Nomomath. 
Ye have in this point satisfied me 
5. Division.  now, I will▪ further proceed in questioning, Suppose that a man lend money to an other, and the other would repay it in some kind of coin is debased, whether is the lender bound to take it?  Codicgn. 
The change of money may happen two ways, for either it may be changed in respect of the matter, whereof it is made, as if in stead of silver, brasse-coine be used, or in stead of gold, silver: for the ancient Germans, as Tacitus reporteth, had silver in greater price than gold, 
g Tacit: de moribus Germanor:  and in Pisana silver money is of more account than gold, because the people of that country do pay many tributes and taxes to the Pope, whose collectors and officers will not take any payment in gold, in Sparta yron-money was only in use, 
h Polyb. lib. 6. Plutarch. in Lych.  or else 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 form is respected, but the determination 
1 A diversity in the Civil 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 well, that money is not censured by nature but by law, & is of such value, as the law published of it doth determine, 
i Aristot: lib. 5. Ethic.  which Galen likewise showeth, 
k Galen lib. 2. de pulls. diff.  in both these cases if the debasement were before the day of payment the debtor may pay the det in the coin embased, 
l Argum: l. vinum, & l. quod te: ff. si cert. pet.  but if it were after the day of payment than the law is otherwise, because he paid it not in due time. 
m arg. dictae. l. quod te, & l. vinum.  
2 To the aforesaid diversity the common law seemeth to agree, 6. Division.   Anglonomoph. 
To that reason our law seemeth likewise to incline. 
n 7. E. 6. 82. Dyer.   Nomom. 
If a man borrow money of one, and procure one to become surety for the repayement, whether is he that borroweth the money discharged of the payment, or else charged as principal?  Codicgn. 
Though the surety in our Law be 
1 That by the bond of the surety the principal debtor is not discharged by the civil law.  termed Fideiussor, because alienam obligationem in suam suscepit fidem, yet the principal debtor remaineth still obliged: 
o Hostiens. in sum: de mutu: & commod: & l. 1. C. de Const. pecun.  and by intendment of Law the surety (as he is a surety) is therefore bound, because the principal debtor is bound. 
p Ferrar. in form: lib: count plur:   Anglonomoph. 
To that the Common Law agreeth, 
2 That by the common law aswell the one as the other may be sued.  and that an action may be maintained as well against the one as the other. 
q 44. E. 3. 21. per Monbr.    

The ninth Dialogue of the bailment or delivery of goods and Chattelles.  NOmomat. 
It remaineth now by the order of your conference, that you should speak of the baylement and delivery of goods and chattels, in which I would have you to be very brief, because I had rather be resolved in other matters belonging to the next title, whereof year to treat, wherein I shall stand in need of more instructions▪ but because some doubts touching the aforesaid title do trouble me, ye shall give me leave to move unto ye some two or three questions thereupon, what is that Codicgn. which in the Civil law ye do properly call depositum? for I do imagine that the true 
1. Division.  knowledge thereof will ease my mind of many doubts.  Codicgn. 
Depositum, is that which is committed 
1 The definition of depositum by the civil law.  to the credit and faithfulness of a man, to keep safely to the use of him that delivereth it, to the end that it may be restored, when he shall call for it, 
a l. 1. ff. depos. ubi 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 property, in the other the trust.  Angonomoph. 
To this our Law accordeth, for 
2 The nature and course of it at the common law.  if a man deliver goods & chattels to one to keep and he will deliver them, he that delivered them may have a writ of Detinue against the other for these goods and chattels, and so if a man deliver goods or money to an other in a bag ensealed, 
b Fitz. na. br. 138. A.  or not ensealed, 
c 18. H. 6. 20.  or in a chest, or coffer, to deliver to an other and he to whom they are delivered will not deliver them over accordingly, he to whom they should be delivered, may have a writ of Detinue, but if a man deliver money to one being not in a bag or coffer, to redeliver to him, or to deliver over to a stranger, in such case, neither he that delivereth, nor he to whom the money, or goods are to be delivered, shall have a writ of Detinue for the money, but a writ of Account, because a writ of Detinue ought to be of a thing certain, as of money in a 
3 A diversity where a writ of Account, of Detinue, and of Trespass are to be brought concerning things delivered at the common law.  bag, or of a horse, or twenty kine, or such things in certain, 
d Fitz na. br. 138. A. 7. H. 4. 13. 13. E. 3. Detin: 53. 6. E. 4. 11. 36. H. 6. 9 per Wangef. & Billing. 5 Ma: 152. Dy. 39 E. 3. 30. 46. E. 3. 16.  & if the bailie open the bag, in which money is delivered, the party to whom the money belongeth may have a writ of Trespass, or Detinue at his pleasure, 
e 21. E. 4. 36.  or if he do burn or consume the things delivered unto him, 
f 33. H. 6. 26. per Litt' 20. H. 6. 17.  So where a deed is delivered to one to deliver over upon a condition to be performed to a stranger, and he delivereth it without mentioning the condition, a writ of Detinue will lie against the first Bailie, and no other remedy may be had, 
g 9 H. 6. 37. per Curiam.  and where I deliver goods, and a stranger taketh them out of the possession of the Bailie, I may have a writ of Detinue against the stranger, or against my Bailie, 
h 20. E. 4. 11.  for my Bailie is chargeable into whose hands soever the goods do come: but if he deliver them over to an other, that bailie is not chargeable to me, but only for the possession. 
i 12. E. 4. 12.   Nomomat. 
Suppose that a man enfeoffeth me 
2. Division.  of certain lands with warranty, who reteigneth all the deeds and evidences concerning the lands in his own possession, whether may these deeds after livery made to me of the lands be said to be my depositum in his hands as a thing which I have left in his hands, and whether will a writ of Detinue lie for them at the common law?  Codicgn. 
They cannot be said to be deposita in 
1 That a thing cannot be said to be a depositum at the civil law, except it be delivered to the party.  his hands, because a thing cannot be said to be depositum, except it be delivered to the party, 
k l. 1. ff. de pos. & ibi Doct'.  and if these writings, which you speak of, do belong to the feoffor, as I think they do, than they cannot be said to be deposita: for we have a rule in our law, that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur, and it is contra 
l) quirem: eod:  bonam fidem that the owner should redeliver his goods in which he hath a property to an other man. 
m l. bona fides ff: depos. in s●:   Anglonomoph. 
It is good to be considered to 
2 That by the common law the feoffee of the land is to have the charters when the feoffment is without warranty: otherwise it is, when it is with warranty.  whom these charters or deeds above mentioned do belong. The authority is very pregnant, that if a man make a feoffment of his land to an other by deed, the feoffee shall have the charters concerning the land, though the feoffor do not expressly give them to the feoffee. 
n 18. E. 4. 14. 9 E. 4. 53. 39 E. 3. 22. 7. H. 4. 7. 34. H. 6. 1.  And if a man make a lease for term of years, and after confirm the estate of the lessee in fee, and he to whom the confirmation was made dieth, now his heir shall have as well the deed of the lease for term of years, as well as the deed of confirmation, because that deed maketh the confirmation good, 
o 9 E. 4. 53. Fitz. nat. br. 138. K.  and so where a gift is made to one for life, the remainder to an other in tail, if the donor release all his right to the tenant for life, he in the remainder cannot have a writ of Detinue for this release after the death of the tenant for term of life: 
p 9 H. 6. 54.  But in the case which you have proposed, because the feoffment is with warranty, so that the feoffor is bound to warranty, now the feoffee shall not have the charters concerning the land, for so the feoffor might sail of the maintenance of his warranty, and so if a man be enfeoffed with warranty and after enfeoffeth an other with warranty, the heir of the feoffor may have a writ of Detinue against a stranger in whose possession are any deeds or charters concerning the land, because he may have advantage of this warranty, 
q Fitz. na. br. ibid' L.  but let the feoffment or gift be made without warranty, it is clear that the donee or feoffee may claim the charters concerning the inheritance de iure, and therefore if a gift of land be made to A. in tail the remainder to B. in fee, and after A. dieth without issue, B. shall have the deed, 
r 3. H. 7. 15.  so if lands be given to two, and the heirs of one of them by deed, now if the tenant for life die he that hath the fee simple shall have a writ of Detinue for the deed, 
s Fitz. nat. br. 138. F.  for the deed runneth with the land and is of the nature of the inheritance, and therefore a replevin lieth not for such charters, 
t 4. H. 7. 10.  and it is said by Newton 22. H. 6. that he in the remainder in tail shall not have a writ of Detinue against the tenant for term of life, if he have the deed specifying the remainder, yet he cannot have a Form on in the remainder, nor an action of Waste without showing the deed. 
u 22. H. 6. 1. p▪ Newt.   Nomomath. 
Whether ought he to whom the 
3. Division.  goods be delivered make them good if they be stolen and embeasilde from him or by some other mischance do perish?  Codicgn. 
He is not to be charged if the goods 
1 That the bailie is not to be charged with the loss of the goods which happeneth merely by casualty.  be lost by any casualty, but only in such case where there is default, deceit, and covin, or apparent negligence in him. 
x l. quod Nerua: & jaco: But: in l. in re mandata C. Mandati, & justit. quib: mod: re: contra oblige: §. penult.   Anglonomoph. 
If a man deliver to me his goods to keep, and I put them amongst mine own, & they be embesiled, I shall not be charged for the goods, 
y 29. Ass. pl. 28  and if a man be bound to bring me a sum of money and he is rob of it by the way, he shall be by Law excused, 
z 40. E. 3. 6.  But 9 E. 4. he shall not be excused, unless he undertake to keep it, and to bring it as he will his own goods, and then he may plead this in discharge of account before auditors, but not in bar of Account, so that it appeareth by this Book, that if he undertake generally to bring the goods, he must bring them at his peril. But 3. H. 7. is that if 
a) 9 E. 4. 40.  the Bailie be rob of the goods, he shall not be further charged, but if the goods be taken away by a trespasser, whom the Bailie doth know, he shallbe charged over to his Bailor, because he may have an action against the trespasser. 
b 3. H. 7. 4.  But 20. E. 4. it is said that if I. S. deliver goods to one to keep, and a stranger taketh them out of his possession, I. S. may have an action against him or against his Bailie, 
c 20. E. 4. 11.  but in that case if the goods be stolen from the Bailie, in the endictment of the fellow the words must be bona I. S. in custodia talis. 
d 7. E. 4. 14. Lamb. Eirenar. 494. & 495.    

The tenth Dialogue of the form of ordinary proceeding in matters of Law.  NOmomat. 
It remaineth Codicgn. that 
1. Division.  ye should now speak of the form and manner of ordinary proceeding in matters of Law, which because it dependeth wholly upon the practice and custom of Courts, in which I have employed no great travail, nor observance, I must therefore request you to stretch your sinews in this regard, and not only to argue, but open things unto me, and be not angry with me, if in the handling of these matters I bring ye from the hill, that is your high and intricate points, to the valley or plain, that is to matters more plain and easy, and again from the valley to the hill, when I find in myself strength of understanding to ascend. First I pray you show unto me what is to be done at the commencement or beginning of a suit or action.  Codicgn. 
Because in every controversy of law, 
1 The things which are to be observed of the plaintiff at the beginning of a suit by the Civil law.  there must be a plaintiff and a defendant, it is not amiss nor impertinent to mention such things as aught to be observed & regarded of the plaintiff, when he draweth any man into suit: and they are three in number, the one concerning profit, the other necessity, and the third urbanity. It is a point of profit or wariness for the plaintiff before he commence suit against any, to be well advised and assured whether himself be a lawful person to stand in judgement, and to demand that which he bringeth into question, 
a l. 1. C. qui legit: person: standi in iud: hab:  he ought likewise to be sure that he have a good cause of controversy, or else in some cases he must be adjudged to pay the costs to the defendant: in other some he must bear the loss of the charges of the suit, 
b l. eum quem temere ff. de judicijs.  likewise he ought to beware, lest he draw the defendant before an incompetent judge. 2. It is a point of necessity that the party whom the plaintiff sueth, be cited, or summoned before: for against the party not summoned, nor heard, nothing can be determined, 
c l. de unoquo. que ff. de re: iud: etc. 1. exc. de cause. poss. & ꝓprietat:  Citation (as we say) is parcel or the 
2 Citation is proved to be of the substance of the proceeding, contrary to the opinion of some civilians.  Law of nature, 
d Clem: pastoralis de re iud:  therefore of necessity the party defendant must be summoned, because in every action the judgement hath a retrospect to the original, and to the summons, and as we say in plain terms to that part of the action which is the in ius vocando: 
e Ext. de procurat: C. in nostra in sin: & l. prolatam C. de sent: & interloq: am: iud.  otherwise the judgement is erroneous, 
f justi: de office: iud: in princ: & in §. omnem in authen: delitigios. Gloss. in cap prudentia. §. 1. de office: de leg:  because Citation is of the substance of the proceeding, for that is the beginning of the suit, howsoever some hold opinion that the suit is not begun ante litis contestationem, 
g d. authen: de litigios §. si vero a preside. l. apertisaimi. C. de judic:  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 contestationem non potest forum declinari, 
h ff. de iudic: l. 1. & 2. & C. de litis Contest.  the jurisdiction cannot be avoided after the appearance & the exhibiting of the libel, & any kind of answer applied, but others hold in my opinion more agreeable to the truth, that it is one of the fundamental beginnings of the suit, and one of the essential and formal parts of the judgement, because the omitting of it doth frustrate the judgement. 
i l. de uno quoque ff. de re: iud: & in c. 1. de cause. poss. & ꝓprietat: extra  3. The other point is a matter of civility, or courtesy, because humanity doth require that before any man do contend in suit, and do prepare and address himself ad experiendum summum ius, that he friendly and mildly do admonish him, with whom he is to deal, of his duty, that if by fair means he may be won, the rigour of Law may not be exercised. 
m l. quid uberius ff. de seruitut: urban. praed: & l. debitores C. de pign:   Anglonomoph. 
These cautels which your Law 
3 The cautch to be observed at the common law in the commencement of an action.  prescribeth to such as enter into suit, are not utterly rejected of our law, for as to the 2. first which concern profit and necessity, 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 courteous to an other, but it being a science rather politic then moral, doth more respect the justice of causes, than the courteous gestures of men, our law doth urge men to deal well and honestly, & if they do otherwise it doth punish them, but courtesy is a free, spontaneal & ingenious quality, to which no enforcement may be used, but I will first examine by your patience, how farforth our law regardeth the ability of the person, which is to implead an other, and then by course will examine all the parts of your precedent speech, enquiring by our books how they may sort, and be suitable to our law. First it hath been received of us as a currant rule from all antiquity, that the desendant may 
4 Disablements in the person of the plaintiff at the common Law.  plead outlawry in disablement of the plaintiff, but if he do imparle now he cannot plead outlawry to the disablement of his person, but yet he may well plead it in bar of the action, 
n 32. H. 6. 32. 35. H. 6. 36.  so in a writ brought by one as son and heir to I. S. after imparlance the tenant cannot plead to the writ that he is bastard, or that he is not heir, but he may very well plead it in bar of the action, 
o 22. E. 4. 35.  and so outlawry is a good plea in bar of an action of debt: for by the outlawry of the plaintiff, the debt if it grow by especialty is vested in the Queen, otherwise it is of an action of debt upon a contract: 
p 16. E. 4. 4.  for in that case the debtor might wage his law against the debtee who is outlawed, and as it seemeth by 10. Hen. 7. the outlawry goeth rather in bar of the action, then to the writ, for there it is said, that where a man cannot plead to the writ, but by showing of a matter in bar, there he may show it and conclude to the writ: for in an action of debt a man may plead outlawry in the plaintiff, and conclude to the person, and yet the matter goeth in bar, and he may plead it also in bar, 
q 10. H. 7. 11.  and conclude to the action, and after that a voucher is counterpleaded, and the tenant put to an other answer, he may notwithstanding plead that the demandant is outlawed, 
r 21. E. 4. 64.  but after voucher the tenant may not plead to the form of the writ, 
s 5. E. 3. 223.  and 32. Hen. 6. is very plain, that where a man pleadeth that the plaintiff is an alien borne, or a villain, or an outlawed person it is left to his choice, whether he will conclude these special matters to the writ or to the action, 
t 32. H. 6. 27.  and though the defendant have made an attorney in a replevin, yet he may afterward allege that the plaintiff is his villain, 
u 29. E. 3. 24.  So 21. R. 2. in Assize brought by the husband and wife against diverse persons, the tenants said that the wife of the plaintiff was entered into religion in the house of B. and there was a Nun professed, & demanded judgement if she should be answered, and the Assize was adjourned into the common place, and a writ was sent to the Bishop to certify, who certified that she was professed, wherefore the defendants prayed that the husband and wife might be barred forever, and it was held by the whole Court, that forsomuch as the pea did stretch only to disable the wife of the plaintiff, and if the husband and wife had purchase jointly, that the baron should notwithstanding the disablement have an Assize of the whole, but otherwise it is if the husband and wife bring an Assize, and a feoffment or release of the husband or the wife or of some ancestor of one of them be pleaded in bar, both of them shall be barred, therefore in this case it was held that the judgement ought not to be that the husband should be barred, but by the advise of the whole Court it was awarded that the husband and the wife nihil capiant per breve suum, sed essent in misericordia. 
x 21. R. 2. Judgemnt 263.  and in the third year of Henry the sixth it was held a good plea to say that the demandant was an alien borne in Portugal, which is out of the King's legiance with conclusion, sil serra respondu. 
a 3. H. 6. 11.  and therefore Master Theloall in his Digest of writs well observeth, that an exception taken to a writ propter defectum nationis, vel potius defectum subiectionis, vel ligeantiae is peremptory, and that the action can not be revived by peace, or league subsequent, and that the King may grant licence to aliens to implead, and likewise that such aliens as come into the Realm by the kings licence and safe conduit may use personal actions by writ, though they be not made denizens, and that denizens lawfully made by the Kings grant, and such aliens borne which are within the express words of the statute of 25. of Edward the third, may use actions real by originalll writ, 
b Thelo: Digest de briefs lib. 1. ca 6.  And where a man is excommunicated, and he sueth an action real or personal, the tenant or defendant may plead that the plaintiff is excommunicated, and hereof he ought to show the bishops letters under his seal testifying the excommunication, and then he may demand judgement whether he ought to be answered, 
c Litt' lib. 2. ca 11. sect' 42.  but if the demandant or plaintiff cannot deny this, the writ shall not abate, but the judgement shallbe that the tenant or def. shall go quite without day: because when the demandant, or plaintiff hath purchased letters of absolution, and they are showed forth to the Court, he may have a resummons or reattachement upon his original according to the nature of his writ, 
d Litt' ibid.  and whereas you say, that it behoveth the plaintiff to be sure that he have a good cause of action lest he pay the costs, that now by statute is made common Law, for by the statute of 23. H. 
5 The statute of 23. H. 8. of giving damages to the defendant is compared with the rule of the civil Law.  8. it is enacted that if any person or persons, commence or sue in any Court of Record, or elsewhere, in any other Court, any action, bill, or plaint of trespass upon the statute of King Richard the second, made in the fifth year of his reign for Entries into lands or tenements where no entry is given by the Law, or any action, bill, or plaint of debt or covenant upon any especialty made to the plaintiff or plaintiffs, or upon any contract supposed to be made between the plaintiff or plaintiffs, and any person or persons, or any action, bill, or plaint of detinue of any goods or chattels where the plaintiff or plaintiffs shall suppose that the property belongeth to them or any of them, or any action, bill, or plaint of Account, in the which the plaintiff or plaintiffs suppose the defendant or defendants to be their bailiff, or bailiffs, receiver or receivers of their Manor, mess, money or goods to yield account, or any action, bill, or plaint upon the case, or upon any statute for any offence or wrong personal, immediately supposed to be done to the plaintiff or plaintiffs, and the plaintiff or plaintiffs in any such kind of action, bill or plaint after appearance of the defendant or defendants be nonsuited, or that any verdict happen to pass by lawful trial against the plaintiff or plaintiffs in any such action, bill, or plaint: that then the defendant or defendants in every such action, bill or plaint, shall have judgement to recover his costs against every such plaintiff or plaintiffs 
e 23. H. 8. c. 15. Rast. Damages 6. . Likewise whereas as you say, that the party plaintiff ought to be wary, lest he 
6. Suit must not be maintained before an incompetent judge according to the common law.  cause the defendant to appear before an incompetent judge, that agreeth fully with the common law, for if a man do swear unto me that he will enfeoff me of such land before such a day, if he do not enfeoff me, I may not sue him in the Ecclesiastical Court Pro laesione fidei, because the act which is to be done, is a temporal act and aught to be tried by the Common law, and therefore if the party be sued in the Ecclesiastical Court for it, he may have a prohibition 
f Fitzh. N. B. 43. D. , so if a man devise to one lands or tenements deviseable, the devisee may not sue for these lands in the ecclesiastical Court, but if he make a devise of goods or chattels real as of an estate for term of years, or of a ward, for such he may 
7. The several jurisdiction of diverse courts is described.  sue in that Court 
g Fitz. 161. F. , and if a trespass be done upon the glebe of a beneficed person, this must be tried at the Common law 
h 19 H. 6. 20. , but if the termor of certain land do devise his crop and die, the spiritual Court shall hold plea for this crop 
i 8. H. 3. Prohibit. 19 , but if a man sue in the spiritual Court for a rent reserved upon a lease for tithes or offerings, a prohibition lieth, for this is a lay rend 
k 44. E. 3. 32. , and a man may sue a prohibition directed to the Sheriff, that the Sheriff shall not permit, nor suffer the Queens lay people and subjects to come to any place at the citation of Bishop's ad faciendum aliquas recognitiones vel sacramentum praestandum nisi in causis matrimonialibus & testamentarijs 
l Fitzh. N. B. 41. A. , but if a testament bear date at Cane in Normandy, yet it may be proved in England, & the executors may thereupon have an action 
m 18. E. 2. Testam. 6. , & a testament showed under the seal of the Ordinaire is not traversable 
n 36. H. 6. 31. Pa●k. tit. Testam. : furthermore, if one which is of the Queen's household sue an other, which is not of her majesties household in the court of Marshalsea, the defendant may plead to the jurisdiction of the Court, and if the Court will not allow this exception, he may have a writ of Error, and the judgement given in the Marshalsea may be reversed in the King's bench 
o 18. E. 4. 22. 19 E. 4. 2. 4. 7. in Scir. fa. inter Prior. de Merton. & Prior. de Bingh. per Littlet. , and if one of the Queen's household sue an other of the same household, and the plaintiff is put out of service depending the plea, the other may show this and abate the writ, but otherwise it is if the defendant be put out of service 
p Lib. de divers. des Courts fol. 102. b. , and if a man be impleaded in the Common place for lands within the cinque ports, the tenant may show to the Court that the land is within the Cinque ports, and by this plea the Court shall be outed of jurisdiction, but if the tenant do plead a plea in bar, which is found against him, so that the demandant hath judgement to recover the land, this judgement shall bind the tenant forever 
q Lib. de divers. des courts 107. , and so it is of lands in ancient demesne, if a writ be brought for them in the Common place, if the tenant appear and plead in bar and take no exception to the jurisdiction, and the plea is found against him, so that the demandant recovereth, the tenant shall not reverse this by a writ of Error, because he might have taken in time, exception to the jurisdiction of the Court, and that should have been allowed 
r Ibidem. , but the lord may reverse this judgement by a writ of deceit, and make the land ancient demesne as it was before 
s Ibid. & 16. E. 2. Continual Claim 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 party defendant is necessarily exacted by the common law.  or summons of the party defendant, which you have proved to be necessary by the Civil law, and I will likewise prove that it is by the Common law necessarily exacted: In a writ of Trespass the Sheriff returned Non est inventus, wherefore a Capias issued that the defendant might be taken, who afterward came into the Court, and said that he was sufficient, and might have been summoned, and prayed a writ to make the Sheriff to come to answer to the King, and to the party for his false return, and he had it 
t 31. E. 3. Process 55. , and in an attachment upon a prohibition, the Sheriff returned Non est inventus, the plaintiff prayed a Capias to an other Sheriff in an other County, but the Clerks said that he ought not to have any other process than an attachment in the other County, because it may be that he hath assets in the other County 
u 13. E. 3. Process 34. , (by which he may be summoned) and so 11. H. 4. it is said that in an action of debt or trespass, a Capias will not lie against an Earl, or any of like estate, because it is to be intended that they have assets whereby they may be summoned, and brought to their answer 
x 11. H. 4. 15. per Hals. , and in a writ against P. and T. and A. the wife of T. by diverse praecipes: in the summons A. was omitted, wherefore the writ abated 
a 2. E. 3. 39 8. E. 3. 44. 10. E. 3. 532. 27. H. 6: 6 , likewise in a writ of dower by several praecipes, the name of one of the tenants was omitted in the clause inde queritur and in the summons, whereupon the writ was abated 
b 12. E. 3. Brief. 671. , furthermore if a man recover in a writ of waste by the default of the defendant, where he was not summoned, he may have a 
9 That by the default of lawful summons the proceeding of the plaintiff is frustrated by the Common law.  writ of deceit 
c 19 E. 3. Deceit 3. 20. E. 3. Deceit 5. 29. E. 3. 54. 48. E. 3. 19 19 E. 2. Deceit 56. 17. E. 3. 58. Fitzh. N. B. 98. b. 105. a. , & in this writ of deceit (if there wear two summoners returned upon the writ, in which the summons failed) if the Sheriff do return one of the summoners dead, yet the other summoner shall be examined: and if it be found that he did not summon the party, he shall be restored to his land 
d 8. E. 3. Deceit 7. 1. E. 2. Deceit 48. , but if the summons be returned to be made by four men, whereas in truth they did not execute the summons of the writ, as long as two of them live, the tenant who lost in the writ may have a writ of deceit 
e Fitzh. N. B. 98. D. , but if three of them die, a writ of deceit may not be brought 
f 35. H. 6. 46. , but an action upon the case 
g 1. H. 6. 1. , & in a Praecipe quod reddat against the husband and the wife, if at the grand Cape the husband appear in person, and the wife appeareth by Attorney, who hath a warrant of Attorney which is not sufficient, & therefore judgement is given upon the wife's default against the husband and wife, yet they may have a writ of deceit if they were not summoned 
h 18. E. 2. Deceit. 54. & 55. Fitzh. N. B. 99 B. , and how necessary a summons is, may appear very plainly by the book of 7. H. 6. where in a Formedon they were at issue, and the tenant at the Nisi prius made default, & the demandant showed how he was in prison in the ward of the Marshal, and prayed that they would send for him to appear, otherwise he would save his default afterward by imprisonment, wherefore the Court sent for him and he came 
i 7. H. 6. 38. .  Nomomath. 
Ye have spent a great deal of 
2. Division.  time in treating of the commencement or beginning of a suit or action: yet I desire to have some further knowledge of the nature of a citation or summons, therefore resolve me, when a man is summoned to appear within two or three days after such a return, whether shall the second or third day be accounted in the citation, so that then he that is cited may well enough appear, when as in the one case one day is past, so that he doth not appear within the two days appearing first in the morning of the second day: in the other case two days be past, so that he appearing the third day doth not appear within the three days so that if he will save his default, me thinketh he should appear the first day of al.  Codicgn. 
This question is easily resolved, for if 
1. That by the Civil law if a man be bound to appear within ten days the tenth day is taken inclusive.  he appear within the two days or three days, it is clearly sufficient because the last day that is put in the citation, doth imply that he may differre his appearance unto the last day 
k ff. de verb. oblige. l. qui ante Calendas & l. eum qui ita ff. eod. , and though an appeal be to be brought within 10. days after the judgement, yet the last day is taken inclusive, and not exclusive 
l ff. de success. edict: l. 1. §. dicimus. : and if time be given to one either by the party or by Law, that he may pay so much money within, or do or propound anything de iure suo within 10. days, or from hence until 10. days, he may pay, do or propound the 10. day without any prejudice or surcease of time 
m Instit. de verb. oblige. §. si in diem. .  Anglonomo. 
If a man be bound to pay money in festo sanctae Trinitatis, if he tender the money in the vigil of the feast, it is not good, nor in the octaves, but the tender must be made the very day of the feast, but if the payment had been limited on this side the feast, or before the feast, than it may well be made in the vigil of the feast 
n 21. E. 4. 52. , and these words ab octabis sanctae Trinitatis must be intended a 4. die octabis Trinitatis: & thereupon M. Brooke noteth, that to this intent the first day and the 
2. That the first day and the fourth day of appearance are all one at the Common law.  fourth day & all the days mean are but one day in law 
o 21. E: 4. 43. Br. jour & iours en court 57 , & therefore if after the day of the return of the writ of Capias, and before the fourth day which is full term, the Sheriff doth arrest a man this arrest is not justifiable, because the first day and the fourth day be all one day 
p 33. H. 6. 42. .  Nomom. 
I would not have you to insist longer 
3. Division.  upon this matter, but now show unto me how causes are opened, declared & disclosed in your Courts, and how faults and wrongs are manifested to the judges.  Anglonomoph. 
All wrongs & offences are either 
1. A diversity of opening & prosecuting of private and public offences at the Common law.  private, or public, private offences, which are done by one man to the hurt of an other, are made known to the Court, & remedied by original writ, bill or plaint: public offences, which are committed by the party against the Queen and Commonweal, are opened & punished by way of inditement and information, which is put in practice by common informers.  Nomom. 
The manner of such informing seemeth 
2. Exception is taken to informations used by common informers.  to me to be a very hard course of justice: for by that mean lewd persons are animated to terrify & impeach poor simple men, and to bring them into danger? for what mischief will they not do, when a reward is proposed unto them?  Codicg. 
It is true & our law doth generally disallow such proceeding, & therefore the name of a delator or informer is in our law accounted dishonest 
q L. 3. C. de Iniur. : and therefore it saith expressly. Delatores 
3. Many objections are made out of the Civil law against common informers.  inimici generis humani, maximum humanae vitae malum, & execranda pernities 
r De Delatoribus C. lib. 10 & lib. 10. C. Theod. de petition: & ultro dat. & delat. . Plutarch calleth them, Impios, & dijs invisos homines 
s Plutarch. in Dion. . Tacitus calleth them Genus hominum publico exitio repertum, & paenis nunquam satis coercitum 
t Tacit. lib. 4. annati: . The Roman Senate after the death of Nero demanded instantly, that such kind of men might be punished more maiorum 
u Tacit. lib. 2. & 4. histor. , and these words (more maiorum) an interpreted by Alciat and Faber, to be the most extreme punishment that could be devised 
x Alciat. lib. 4. Parerg. c. 21. Faber lib. 2. semestr. c. 7. . In like fault & punishable after the same manner doth our law adjudge suborners to be, which do minister occasion to the informer, & do serve his turn in the prosecuting of his information 
a 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 informs sharp & severe punishments were 
4. Punishments ordained by diverse Empeiours against common informers.  adjudged & established by Titus 
b Sueton. c. 8. , Pertinax 
c Herodia. lib. 2. , severn's 
d Herodia. ibi. , Macrinus 
e Herodi. li. 5. , Gordianus 
f Herod. lib. 7. , Aurelianus 
g Vopise. , Traianus 
h Plin. in Panegyr. , these men were in ancient time banished unto the Gaetulian sands, which are in the remote parts of Africa 
i Martial. lib. 1. epigram. , and this sort of men did never flourish in the Roman common weal but under tyrants, as namely Nero, Tiberius, Commodus, and the like, and therefore these exclamations were heard when they were dead, Delatores ad leonem, Delatoribus metum, Delatores de senatu, Delatoribus f●stem 
k Lamprid. in commod. .  Anglonomo. 
Thus you deter informers from their just accusations by minatory speeches, uttered by malcontented persons, but as archers when they aim at a mark do often shoot beside it, so you disputing of this question, have spoken 
5. Codicgnostes is▪ charged by Anglonomophylax to mistake the point in question.  clean beside the purpose, for the question is not whether some delators or informers be dishonest men, & intolerable in a common weal: for none will doubt of that: but whether no informers ought to be suffered in a good Common weal: and these censures of informers which you have brought out of histories and out of the Civil law do only respect, and concern such 
6. He is likewise charged eo mistake the Civil law in this point.  lewd persons, which by slanderous detraction do traduce and falsely accuse men of honest life and good report, through the vile and corrupt desire of unjust lucre, whose informations Tacitus calleth Interpretationes, interpretations, that is a wresting to an ill sense of that which was well meant, or a misconstruing of that which was done without evil intent or conveyance 
l Tacit. lib. 3. anuali. : and Suetonius termeth them Calumnias slanderous accusations 
m Sueton. in Domiti. c. 9 , such men did not openly prove, but secretly impeach the good name of others, as Cuiaci well observeth 
o Cuiaci. ad Paulum. , but none of your former speeches do touch these, which prove directly and fully that which they allege in their information neither doth your law (for I look sometime into it) punish such 
p L. 8. 10. 12. C. Th: de pet. & delat. l. 1. ad S. C. Tump. ff. , but if they do not prove their surmises, they are worthily punished: 
7. The statute of 18. of our sovereign lady the Queen touching common informers is compared with the edicts of Emperors.  & by the statut of 18. Eliz. it is well provided, that if any such informer shall willingly delay his suit or shall discontinue, or be nonsuit in the same, or shall have the trial or matter pass against him therein by verdict, or judgement of law, that then in every such case the same informer shall yield, satisfy, and pay unto the said defendant his costs, charges & damages to be assigned by the court in which the same suit shall be attempted 
q 18. Eliz. c. 5. Rast. Inform. 1 : & whereas you say that your law doth generally disallow such proceeding, by your favour it is not so, for he which by office is appointed and charged to inform, or by some other obligation of Law is bound to inform, & he which doth it directly for the profit of the common weal is allowed by your law to execute that course of proceeding 
r L. 1. l. 2. & l. 6. Ad S. C. Turpil: ff. , 
Codicgnostes his surmise that informations were not used in the best times of the Romans is answered and confuted.  furthermore in that you say, that informers did never flourish in the Roman common weal, but under tyrants, it is not true, for in the times betwixt the 2. and last Carthaginian war the Romans did most excel in virtue, & were most renowned for good example & desert as witnesseth Sallust a great judge in matters of state, and in the manners of men, whose testimony S. Augustine neither doth affirm nor deny but qualifieth with this censure, Toto illo interuallo ●uorum bellorum punicorum tolerabilior infaelicitas fuit 
s S. Augustin. lib. 3. de civitate dei. c. 21. : & Florus writeth agreeably to Sallust: Hactenus populus Romanus pulcher, egregius, pius, sanctus, atque magnificus 
t Flor. histor. lib. 2. c. 19 : I say in these happy times, or if you will in these last unhappy times of the Roman common weal, certain informers were earnestly busied in courts which were then termed (as appeareth by Plautus 
u Plaut. in Pers. , who lived in those times) quadruplatores, because they had the 4. part of the forfeiture of the defendant 
x Festus. , if their information were true, & these were accounted alone, & in the same degree with delatores 
a Vopisc. in Aureli. . This may suffice to infringe that which you have delivered, Codicgn. against informers: Now give me I pray you a little leave to prove that informers are not only tolerable in a well governed common weal, but even expedient and 
9 It is showed likewise that informations are expedient for the administration of justice.  necessary instruments for the good administration of justice: but always I require in them honesty, faithfulness, & conscience taking this to be an infallible rule, that he can never be a good informer, who is not a good man. These qualities being in them, & truth being the ground of their proceeding, I see no reason but that their pains should be recompensed & rewarded, sometime with the 4. part, sometime the third, sometime the moiety of the forfeiture, which the defendant by diverse penal statutes is to foreit & incur: for by reward the spirits of a man are stirred up & quickened: without it they linger, languish, & consume away, & why is reward due unto such men? The causes and reasons be many, without information there will be hardly any punishment inflicted upon many offenders, & sithence nothing is more acceptable to God, or beneficial to the common weal, than that offenders should receive their proper & condign punishment, all lawful means must be assayed to attain to this effect, and what doth restrain men more from committing offences then a continual fear of the informer's eye to be cast upon them, or his ears to be open for the hearkening out of their offences: wherefore as the Huntsman doth bestow upon his dogs some part of these beasts which he taketh & killeth in hunting, that by such enticements they may be afterward drawn to pursue there pray fiercely & eagerly, so it behoveth a lawmaker diligently to hunt out the domestical lions & wolves, and to allow some reward to the hounds of the Common weal, which informers are 
b Plutar. in Lucul. : Conanus the king of Scots did make a law, that in every great Church there should be a chest having some holes in the top, into which the informers might put in at pleasure their several bills of information, wherein the fault committed, the place, the time, the witnesses and the parties accused wear contained: then the Magistrate openeth the chest, bringeth the matter into question, and the guilty person being condemned the half part of the goods forfeited goeth to the informer: which law is now put in practice, by them of Milan 
c Bodin. li. 4. de repub. c. 6. .  Nomomath. 
You have spoken enough of this 
4. Division.  matter Anglonomoph. I desire greatly to know, whether if a man do allege some impediment happened by the act of God, whereby he could not appear, this be a sufficient excuse of his default in Law. Codicgn. Process of contempt which we call literas 
Defaults are dispensed with all by the Civil and Common law when they happen by the act of God.  contumaciales, are never addressed against such as be hindered by inevitable accident, as namely when the place where the court is held is besieged of enemies, or when the plague is hot in that place: for citatus ad locum non tutum non arctatur comparere 
d De appell. extra. C. ex part. & in Clem. Pastoralis. & ibi glos: sup. verbo Notorum. de re judicat. , & so it is if through great snow, or inundation of water the ways & passages be stopped and shut up, in these and the like cases, the Law doth dispense with defaults, and therefore the matter of delays is for the most part committed arbitrio judicis 
e L. 2. ff. de re iudicata. , who may take certain notice of these things.  Anglonomo. 
It is a received opinion with us, that infirmity or the fall of a man from his horse whilst he was in his journey, though the party be by the fall in danger of death, is no sufficient cause to save a default, but the swelling and overflowing of waters is a good and sufficient cause, & so is an imprisonment 
f 38. H. 6. 12. , for though the imprisonment do originaly happen by the act of the party, yet it is an impediment of appearance against his will, & it is a restraint imposed by act of Law 
g 3. H. 6. 46. : so that the party is as it were by▪ Law made corpus immobile, & therefore his default must needs be excused 4. H. 5. sickness was held a good excuse to avoid an outlawry 
h 4. H. 5. Challenge 153. Br. Saver. de def. 45. , but M. Br. doubteth of that, because sickness may be feigned, yet upon the book of 4. H. 4. cited in the book called the abridgement of assizes, because there malady was pleaded against outlawry & was admitted 
i Abridgem. d●ssise 48. , he beginneth to wayver in opinion 
k Br. Saver de def. 48. , & therefore I may with more colour leave it doubtful.  Nomomath. 
Which is the most common action 
5. Division.  in your law Codicgnostes.  Codcignost. 
The action which is called actio 
1. The most common action in the Civil law is actio iniurarium, which is either civilis or praetoria.  iniurarium, which is either civilis or praetoria. Civilis, if a man do assault an other, or do beat him, or do enter into his house 
l ff. de iniur. l. lex Cornelia. , in all other cases it is praetoria: but both kinds agree in this, that the fault & injury is punished 
m Instit. de iniur: §. penult. & ff. de iniur: l. iniuriarum. : and in the pursuing of it a man may deal either civilly or criminally, but one of the ways being choose, the other may not be entered into 
n L. quod senatus. & l. praetor. §. 1. ff. de Iniurijs. , and if the party bring civilem actionem iniuriarum, he shall recover the damages 
o ff. Iniur: eod: l. Idem apud §. si quis servo. : but if he bring praetoriam he shall effect nothing thereby but vindictam, the punishment of the party which hath offended.  Anglonomoph. 
This your speech tendeth to no other purpose as it seemeth, than to insinuate that such wrongs may be pursued by action or inditement, 
2. Actions and inditements at the Common▪ law are compared with Civil & praetorian actions.  wherein our Law doth not any whit disagree. For if four men enter into land, and one of them entereth by force, this is force in them all & they may be impleaded by action or impeached by indictment 
p 2. E. 3. 12. li. ass. 33. Crompt. I. P. 61. , but if a man 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 only) he shall not be punished by way of action, but by way of inditement 
q 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 years, if the disseisie bring an action upon the Statute of 8. H. 6. he shall be barred by this matter pleaded, but otherwise it is in an indictment upon that statute, which is the Queen's suit, and upon such indictment the party shall have restitution, though he may not have an action 
r 14. H. 7. 29. per Fineux, read, & Tremaile. , and if the disseisie out the disseisor with force, the disseisor shall not have an action, but yet the disseisie may be indicted upon the aforesaid statute, and the disseisor shall thereby be restored 
6. Division.  
s 15. H. 7. 17. Fitz. N. B. 248. .  Nomomath. 
I would have you to proceed Codicgnostes in describing unto me, the form of your action which you call actionem iniuriarum, that it may be more certain and manifest unto me.  Codicgn. 
I have it here written in a Book, which I have ready at hand.  Nomomath. 
I pray you then read it as distinctly as you can: for I mean diligently to observe 
1. The libel of an action of injuries is fully set down according to the form of the Civil law.  the points and parcels of it.  Codicgn. 
The libel standeth thus in the book: Coram vobis clarissimo, magno, & potenti viro etc. dicit, ponit, asserit & quatenus &c. iustificare intendit Titius, quod ipse existent die. 19 mensis Augusti proximè praeteriti hora tertia vel circa in arenis Nemansensibus ante ecclesiam S. Petri & in Comitiva plurium nobilium personarum pacificè conseruando, neminique iniuriam inferendo, superuenit ibidem dictus Sempronius reus, qui animo iniurioso ipsum actorem provocavit, & incitavit per rixosas & iniuriosas allocutiones, & quamquam dictus actor ipsum reum dulcibus & placabilibus verbis refraenare & mitigare niteretur: dictus tamen reus semper magis atque magis insistebat, & iniurias prorumpebat, et in tantum quòd in ipsum actorem talia verba, seu in effectu similia, bonorum nominis & famae ipsius actoris denigratoria, & infamatoria iniuriosè protulit, dicens: Thou naughty thief, thou dost nothing but rob, & quia dictus actor, talia sibi imponendo dixit, quòd mentiebatur dictus reus, non contentus de verbalibus iniurijs praefatis ad reals, & facti iniurias processit, & in personam ipsius actoris irruit, & cum pugno pluribus ictibus ipsum actorem in faciem percussit, livores, & concussiones fecit, & alias iniurias plurimas intulit, quas quidem iniurias dictus actor mox illico & incontinenti ad animum revocavit, & iterum revocat, nolens tales & tam atroces iniurias sibi illatas fuisse pro summa mill librarum coron: quinimmo suadet tantum perdidisse quàm dictas iniurias sustinuisse, vel passus fuisse: et ad quam quidem summam dictas iniurias existimat, iudiciali tamen vestra semper taxatione salva. Quare ex his & alijs ex processu result antibus agit dictus actor contra dictum reum, & petit per vos vestramq, definitivam sententiam 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 mill librarum coron: iudiciali tamen vestra ut saepe dictum est taxatione salva, unà cum omnibus expensis factis & fiendis: de quibus dictus actor per expressum protestatur condemnari, condennatumque cogi & compelli vijs juris, & remedijs optimis: et aliâs petit in omnibus ius, & justitiam sibi fieri & administrari, vestrum benignun, quod, quale, & quantum decet, officium humiliter etiam, loco actionis si opus fuerit, implorando.  Nomomath. 
This is a very long & circumstantial libel, & to my understanding, many exceptions may be taken to it, which you shall give me leave for argument sake, and for my more understanding in order to pursue. First when you say 
2. Exception is taken to the form of the libel for uncertainty.  in declaring the words, which are the original occasion of this action, that he spoke talia verba seu in effectu similia, me thinks that should not be good form, for your libel being like to a declaration at the Common law, should be certain, and without ambiguous or equivocal terms, but of this matter I require the censure of Anglonomophylax.  Anglonomoph. 
Your exception is good, and 
3. The exception is approved by the common law.  maintenable by our Law: for in an action upon the case brought for calling the plaintiff false justice of Peace, vel his similia, these words his similia were ordered by the Court to be expunged, or blotted out by reason of the uncertainty 
t 4. E. 6. Br. Action sur le case. 112. .  Nonomath. 
Your libel likewise displeaseth me 
4. Exception is likewise taken to the libel for mingling things of several and diverse natures in it.  in an other matter, because if I conceive aright, you lay and allege in your libel as the ground of your action things far distant in nature, which it seemeth to me might very well bear two several actions: for when as you say, that the defendant uttered these words (thou naughty thief etc.) me thinks that of itself should be are action: & when you say further that (in personam ipsius actoris irruit, & cum pugno pluribus ictibus ipsum actorem in faciem percussit livores & concussiones fecit) I think under favour that these words of themselves require a several and distinct action, and not such an action as lieth for utterance of slanderous words.  Anglonomoph. 
Your opinion is good and sound 
5 This exception likewise is maintained by common law.  in reason, and as for several diseases there be diverse medicines, so for several wrongs (I mean such as are different in nature) there should be several Actions, lest the offering of these things jointly to the understanding, which are different in substance, there arise a great confusion and disproportionable Chaos: Wherefore by our law, if things of sundry natures be mingled in one action, and the action is good for the one & not for the other, in such case the writ shall abate as to that for which it was misconceived, for example in a writ of Trespass for breaking his close, and taking away certain lambs, whereas the lambs were supposed to be tithe, and the close to be the Churchyard parcel of the Vicarage, brought by the Parson against the Vicar, it was held that the Court should be outed of jurisdiction as to the lambs, and the defendant should answer to the residue, 
u 13. R. 2. Iurisdict' 19  and so in an action of Trespass brought against the Lord for breaking his close, and taking his horse vi & armis, it was ruled that the writ should abate for taking the horse, did not as to the breaking of the close: 
x 48. E. 3. 6.  For the Lord cannot justify the breaking of his tenants close, 
a 20. E. 4. 2. 7. R. 2 Brief 632. 8 H. 4. 16 8. E. 4. 15: 10. E. 4. 7.  So in an action of Trespass for entering into a Warren brought by the tenant against the Lord of the soil, and for chase there, & taking of coneys the writ shall abate as to the entre into the warren vi & armis, and shall stand good for the remnant, 
b 3. H. 6. 13.  & if it appear by the writ or the declaration that the action will not lie, for somethings mentioned in the writ, yet the writ may be in force for the remnant, as in a writ of Waste, if a man assign parcel of the waist in a thing which cannot properly be said to be waist, the writ notwithstanding shall not abate for the whole, and so a writ of Dower shall not abate for the whole, though the plaintiff do demand Dower of something, whereof she is not endowable, 
c 9 H. 6. 10. 46 10. H. 6. 5.  So in a writ of Account brought against one as Bailie, if the defendant plead to parcel that he was lessee for years, and not Bailie, this shall abate the writ only for that parcel, 
d 18. E. 3. 16.  and 8. E. 4. in a writ of Entre brought upon the statute of 5. of King Richard the second for entering into a Manor and into an advowson, because the action will not lie for the advowson, it was held by Lakin, that the writ should abate for parcel, 
e 8. E. 4. 3.  likewise in an action of Trespass brought by the husband and wife for a batery done to them both, after verdict found that both of them were beaten, the writ abated as to the battery of the husband, and as to the battery of the wife they recovered their damages, 
f 9 E. 4. 54.  and it is said 11. E. 3. that a man may not allege in a writ of Ejectment de guard, quod blada sua apud B. nuper crescentia messuit & blada & alia bona etc. cepit, because proclamation lieth for the one, but not for the other, 
g 11. E. 3. 471.  but a man may have a writ of Detinue of Charters and of Chattels jointly, 
h 44. E. 3. 41. Brief 583.  because there one thing is the ground of the action, namely the deteiner, and so a man may have a writ of Det, where parcel of the debt is due by obligation, and parcel by contract, because there the debt is the only occasion of suit, and so in things of the like nature 
i) 41. E. 3. Damag: 75. 1. H. 5. 4.  one writ may comprehend many wrongs, and therefore an action upon the c●se was maintained for the hindering of the plaintiff to hold his Leete, for the disturbance of his servants and tenants in the gathering of his tithe, and for threatening made, so that the people etc. durst not come to a certain Chapel to do their devotion, and to present their offerings, and for the taking of his servants and chattels, 
k 19 R. Action sur le case 52.  but in Adamses case it was ruled, that whereas an action upon the case was brought for speaking these words (you have made a false record, I will make you answer where you dare not show your face, and you have sought my death) the defendant as to the falsifiing of the record justified, because he did make a misentrie once into a roll in a Court where he was Steward, and as to the rest he pleaded none Culpable, and he was found guilty of the whole, and damages were assessed to twenty pounds, and it was moved for stay of judgement, that some of the words would not bear action, as namely to say (that he sought his death,) because that may be by due means in Law: nor the other words (that he would make him answer where he durst not show his face) wherefore because no action will lie for part of the matter alleged, the assessment of the damages for the whole is not good, and therefore judgement ought not to be given: to which it was answered that when words are spoken to the disgrace of a man, they cannot be otherwise understood then in malam partem, and therefore to say to one that he hath been laid of the pocks is t● be intended of the French pocks, and though action will not lie for some of the words which were uttered, yet it must be intended that damages were assessed for these words which are of effect to bear action: and this case hath been adjudged that one called an other villain and strong thief, the defendant pleaded none Culpable, and he was found guilty to the damages of xl. li. though action do not lie for the words very villain, yet judgement was given that the plaintiff should recover the entire damages: and so was judgement given in the principal case. 
l 25. Elizab. Adamses case.   Nomomat. 
Well no more of this: give me leave 
6 An other exception is taken for superfluous alleging of the day and hour of the trespass done.  further to object, what need you say in your libel die decimo nono Augusti proxime praeteriti? for it is not material when a wrong is done, but me thinks it should suffice to allege that it was done, and therefore much less need you have said hora tertia vel circa: again, me thinks your libel is too prolix in setting down the words and circumstances of the injury: and likewise you have used too many words in describing the assault and battery, which might have been briefly expressed by these words insultum in eum fecit & eum verberavit, neither do I see the use of these words pacifice conseruando, neminique iniuriam 
8 Exception is taken for saying nemini iniuriam inferendo.  inferendo: For what if Titius the plaintiff had been fight, with Seius a stranger, is it therefore lawful for Sempronius the defendant in this case to assault and beat Titius? and what need you say in your libel, animo iniurioso: for 
9 Exception is likewise taken for using these words animo i●iurioso being taken for a surplusage.  no wrong can be done without an injurious meaning, and the secret meaning must needs appear by the open description of the wrong.  Codicgn. 
Give me leave to satisfy you in all these particular objections, and to render a reason of the allegations in the libel. The very day 
10 Codicgn. answereth the exceptions.  wherein the wrong was done (to begin with your first objection) is necessarily to be set down, that the defendant may have certain notice of the wrong: 
m §. atrox: Institut: de iniur:  and that it may appear to the Court, that the injury was committed within the year etc. for a verbal injury is ended and ceaseth within the year etc. 
n l. non solum: §. 1. ff. de iniur:  and whereas you disliked the multitude of words in describing the wrong, surely the wrong cannot better be described then by fullness of terms, which are apt and significant to aggravate the injury, 
o l. praetor. §. sin: & l. vulneris & l. si est questionis, & l. sed si unus. §. quidam. ff. de iniur.  and whereas you find fault, because it is alleged in the libel, that the plaintiff did behave himself peaceably nemini iniuriam inferendo: they are to very good purpose, for if the plaintiff had been a quarrelous, or contentious person, and had given some occasion of strife, the wrong might with more reason be imputed to him, than the defendant, 
p Glo. in l. ob haec verba ff. de his qui no: inf: & in l. 1. §. cum arietes ff. si quad●up. paup: fec:  and he cannot be said to have done a wrong, who incontinently for his safeguard after the same manner, whereby he is assaulted doth defend himself, for when a man is assaulted by weapons, he may resist with weapons, 
q l. ut vim: ff. de inst: & iure l. si quis percustor: C. add leg: Cor. de sicar:  but if he do exceed measure in repealing injury, as if being vexed with words he resist with weapons, and by such resistance do beat or wound the party, he that is so grieved may have an action of injury against him, 
r l. sententiam §. qui cum aliter, ff. ad l. Aquil.  & recover damages: 
s l. item apud La be onen. §. si quis servo ff. de iniur:  and to prescribe some temper & moderation in the resisting of verbal & actual injuries, I remember a verse not altogether unpleasant:  
Res dare pro rebus, pro verbis verba solemus,  
Pro bufis bufas, pro trufis reddere trufas:  
Things must be recompensed with things, buffets with blows:  
And words with words, and taunts with mocks, and mows.  
And to conclude, you seem not (with your favour be it spoken) justly to reprove these words animo iniurioso, for they are expressed for difference sake, because if a man in jesting wise should strike an other or use broad boward against him, this would not bear an action, because it was not done animo iniuriandi, sed iocandi. 
t l. illud peraeque, ff. de inim: & l. si non convicij C. cod:  this I think you are sufficiently quieted in opinion as to the doubts which you proposed.  Nomomat. 
Nay verily I rest as yet doubtful, and for the fuller clearing of my mind, I would have Anglonomoph. to speak somewhat of these things out of the common Law, which in matters of declaration and pleading is very curious and exquisite.  Anglonomoph. 
Truth and error are both equally 
11 Anglo. particularly examineth & discusseth the exceptions.  beholden unto you, for in some things by the censure of our Law one of you hath the upper hand, in other some the other: for proof hereof I will by your patience particularly handle every of the aforesaid objections, which hath in it any colour of truth, as to the day of the month wherein the wrong is supposed to be done, I do not with Codicgnostes think that in this case the very day necessarily aught to have been mentioned, because it is not traversable nor material to make any issue, but it is sufficient (for observing formality) to set down any day that is past.  Codicgn. 
But with us it is material, and if the day be not truly set down, the defendant may take advantage of it.  Anglonomoph. 
With us it is not so, for as Newton saith 20. H. 6. the day in an action of Trespass and replevin are not traversable, for if the defendant justify at an other day after, he ought to say without that he took them before, 
u 20. H. 6. 40. per Newt.  and so 19 H. 6. in a trespass of battery the def. said that the plaintiff did assault him at an other time, than he hath declared, & that the hurt which was done unto him came of his own wrong, sans ceo that he was Culp before or after, & this i'll he was enforced to pled by the court, 
x 19 H. 6. 47.  yet in some case the day and time for avoiding uncertainty, and that the jury may more easily find out the truth is issuable, & therefore in an action of trespass supposing a battery, the defendant said, that the same day, wherein the trespass was supposed, the plaintiff and the defendant by common accord did play together at cudgels, and the hurt which he did unto him was by that play, without that, that he hurt him in any other manner, judgement si action: To which the plaintiff replied, that the same day when they were departed, the defendant came unto him and assaulted him and beat him of his own wrong, and the defendant rejoined that all the day and at every time of the day by their common accord they played together, without that that he beat him in other manner, 
a 12. R. 2. Bar 244.  And so in a replevin of his beasts wrongfully taken, the first day of August the defendant avowed, because the plaintiff held the land etc. of him by homage and fealty and suit at his Court at such a place, and because he was summoned to be at his Court the fifth day of the said month and year, and did not come he was amerced, and for the said amerciament he took the beasts the twentieth day of August, without that, that he took them the first day of August, and it was said by Markeham that this was no plea: for if you took them at an other day before the presentment it is wrongful, wherefore you ought to say without that that you took the beasts before the twentieth day: but issue was in this case taken, without that he took them the first day of August, 
b 20. H. 6. 40.  whereupon Master Fitzherbert noteth, that the day in a writ of Trespass or Replevin is not traversable, but where the special matter doth require it, 
c Fitz. Repl. 7.  and this he seemeth to ground upon 2. H. 4. likewise in an action of trespass for the taking of goods the 8. day of April the defendant said that the plaintiff was possessed of them as his proper goods and chattels, and sold them to such a one who left them in the custody of the plaintiff, and after he sold them to the defendant, wherefore he took them at the time time supposed, to which the plaintiff replied, that he was possessed of them until the defendant took them the 8. day of April as before hath been alleged, sans ceo that the other sold them to the defendant before that day, and hereupon they were at issue. 
d 2. E. 4. 16.   Nomomas. 
Well let this matter pass, what say you to the multitude of words used in the description of the wrong? is that the tolerable in your Law?  Anglonomoph. 
Surely it is convenient that the 
12 Anglo. Excuseth and defendeth the abundance of words in declarations and libels.  quality of every thing should be apparanted by terms of efficacy, & it is better to have a declaration too copious then carion-leane, neither is any thing more plausible to a good understanding, than that words be ponderous and emphatical, where the matter seemeth to bleed, wherefore Virgil in describing the lofty pace of the lusty and courageous horses, maketh his verse after a sort to gallop, and doth in lively terms as it were present it to the eye,  
Quadrupedante putrem cursu quatit ungula campum. And Persius decently maketh his verse to rise and swell with the matter.  Torua Mimalloneis inflarunt cornua bombis. 
But not to digress from our purpose, in an appeal of mayhen the wrong must be in this form, or the like set down. johannes 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 etc. ibi venit pndictus W. vi & armis viz. baculis ut felo, insidiando, et ex insultu premeditato adtunc & ibidem in dictum Io. insultum fecit & adtunc & ibidem cum quodam baculo pretij etc. quem praedictus W. adtunc & ibidem in manibus suis tenuit, praedictum querentem super brachium dextrum felonice tunc percussit, per quod venae & nerui brachij sui praedicti restricti fuerunt ac sicct & mortificati devenerunt etc. 
e Lib. de diuersit des Courts 115.  Here you have the Mayhem described from the beginning to the end in full terms: and yet every of them, or at least almost all, so necessary, that if you take away one of these flowers ye mar the whole garland, and so in a writ of trespass for the hurting of his sheep (though briefs be short comprehensions of things) the wrong is fully set down in this sort, Quare vi & armis centunoves ipsius A. apud T. inventas cum quibusdam canibus fugavit, canes illos ad mordendum oves praedictas intantùm incitando quod per fugationem illam & morsus canum praedictorum oves praedictae multipliciter deterioratae fuerunt & magna pars ovium illarum faetus abortivos fecit. 
f Fitz. na. br. 89. L.   Nomom. 
Well what say you to these words (animo iniurioso) whether are they needles or not.  Anglonomoph. 
These words carry sense in their foreheads: for they amount to as much as malitiose in our Law and that aught to be set down to distinguish it from iocose as Codicgn. hah before very well reasoned: and when the action soundeth to malice, the word malitiose or the like in substance is to be used, as well as when the action soundeth to deceit, the word fraudlenter or some equivolent term is of necessity to be expressed.  Nomomat. 
Of these matters than I know what to think, and will move no other doubt or question of them: Now Anglonomoph. because I think at the common law an action upon the case conceived upon a slander doth most resemble this action of injury before described, let me therefore know the form of the declaration, which is fit for that action.  Anglonomoph. 
You have conceived in this a 
13 The form of a declaration upon an action upon the case, resembling actionem aniu●iarum.  right opinion, and I will roundly show unto you the form of the declaration whereof you spoke, because it is very plain and much in use, 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 conversationis, gesture, & conditionis fuerit & ut verus ligeus domine Regine nunc, absque illo scandalo ac sine quacunque macula latrocinij, furti, falsitatis, vel cuiusuis alij criminis ac sine ullo scandalo earunden macularun, & ab omnibus huiusmodi fallacijs, dolis, & malis ille sus, intactus, et immaculatus a tempore nativitatis sue hucusque se gesserit, habuerit & gubernaverit & huiusmodi status, conversationis, & honestatis apud vicinos suos & universos fideles dominae Reginae nunc subditos quibus idem W. cognitus 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, & perversa malitia, machinans statum, honestatem, necnon famam & opinionem dicti W. laededere, & funditus depravare, ac eunden W. de tam malis conversatione conditione & gestura, apud omnes dominae Reginae fideles subditos acceptare, ut idem W. omnino periret ac totaliter destrueretur ac ut universi fideles subditi dictae dominae Reginae a consortio ipsius W. penitus se subtraherent 25. die Septembris anno etc. apud L. in presentia & audientia A. B. & aliorum multorum fide dignorum dicte domine Reginae eodem W. notorum, de eodem W. dixit, retulit, publicavit, & alta voce pronunciavit & asseruit in haec verbain Anglicis verbis sequentibus videlicet, Thou art a thief and thou hast received xx. pounds of my goods: quorum quidem verborum propalationis & relationis pretextu, predictus W. de suo statu bono nomine & in negocijs suis: quibus cum honestis personis & dictis domine Regine subditis usus fuit, & consortium habuerit multipliciter laesus, & deterioratus existit, unde dicit quod deterioratus est, et damnum habet ad valentiam ducentarum librarum etc.  Nomomath. 
These two proceed do little differre in substance, & there is in them me thinketh great redundancy of words, which might well be spared, but tell me I pray you is there such necessity of these formal terms, that if they be wanting or changed, the declaration, or proceeding shall abate?  Codicgn. 
Surely, because the tedious and odious 
14 The cutting off of delays by the civil law.  protracting of suits did greatly offend justice, therefore to cut off delays, and that suits might not be endless, and immortal (for matters of form and the exceptions to them were grown to such an excessive heap & infinite number, that the whole age of man did scaresely suffice for the trial of one suit, and he that failed in a syllable failed in the cause) our lawmakers therefore, that justice might walk in a shorter and more compendious way, did therefore very willingly root up the thorny grove of cavils, and sophistical wrangelinges, which had mingled themselves with good and reasonable exceptions, and scouring the stream of such weeds and sedges, they have now made a smooth and more easy passage for justice. 
g In rubr: & nigr: C. de form: & impetrat: action: jublat:   Anglono. 
Upon like consideration & to the very 
15 The diminishing of delays by the common law.  same purpose our lawmakers have made laws for amendment of writs, declarations, and other proceed in matters of form, as may appear by several statutes made for the establishing of such amendments, 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 divers amendementes have been made and used in our law, and therefore in an action of debt grounded upon a recovery of damages had in an assize, the date of the writ of Assize was not put in the writ of debt, and it was held that it should be amended, because the Clerk had the record for his instruction, 
h 13. H. 7. 21.  but whereas a writ of debt was brought per johannem Gargrave Esquire, and the obligation was joan Gargrave only, this was not amended, but abated, because this misprision came of the plaintiffs part, Quaere tamen, but 8. E. 4. and 11. E. 4. if an action of debt the Clerk of the Chancery have the obligation with him at the time of the making of the writ, and there be variance between the writ and the obligation, it is clearly amendable, but if no addition be given to the defendant, that is not amendable, 
i 8. E. 4. 4. 11. E. 4. 2.  and 22. Ed. 4. if an action of debt be brought against executors of the debt of the testator, if the writ be in the Debet and Detinet, it is not amendable, 
k 22. E. 4. 21. per Cur.  and in a writ 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 midst, whereupon the writ was amended by statute, because that was not of the substance of the name, or surname, and also it was to be intended that the Clerk had the Indenture of Defeasance at the time of the making of the writ, 
l 21 H. 6. 8.  and so in an action of debt, where the writ was Hill, and the Obligation was Hulle, the writ was amended, 
m 22. H. 6. Amendmnt 31. 37. H. 6. 32.  and where more was in the Obligation then in the writ, it was amended, 
n 19 H. 6. Amendmnt 47.  but 41. E. 3. it is held by Finch. that a writ original shall abate for default of form, and shall not be amended in the Courts of common Law, for though it be pleadable there, yet (as Master Statham reasoneth) the Chancery is an other Court, and a superior Court: 
o Stath. ti● Amend 20. H. 6.  and therefore the things done there cannot bealtered in Courts of common Law, 
p 41. E. 3. 14. ● Finch. 9 H. 7. 16. per Vavis. & 2●. E. 4. 20.  and for the more full & forcible destruction of delays and ambushes in pleading, it is by the common Law ruled, that every demurrer upon a plea which goeth in bar, and to the disproof of the Title is peremptory: and though a plea in Abatement of a writ be not peremptory, but a respondeat ulterius▪ yet if the plea in Abatement of a writ be tried by the Country, this is doubtless peremptory for the delay of the party, 
q 48. E. 3. 10. ● Finch. 34. H. 6. 8. 50. E. 3. 20. 34. H. 6. 37.  But it is peremptory only against the tenant or defendant, not against the plaintiff or demandant, for he is still at large. 
r 5. E. 4. 90. 2. E. 4. 10.   Nomomath. 
Let me interrupt you Anglonomoph. for I do very much desire to hear of you and Codicgnostes, the forms of the defences or bars, which the defendants are to make against these declarations, before recited by you.  Codicgn. 
I will make known unto you the most common and usual form of pleading in bar in this case.  vobis clarissimo magnifico 
16 The form of a defence or bar in an action of injuries.  etc. constet & legit●me appareat de innocentijs, inculpabilitatibus, legitimisque defensionibus predicti Sempronij delati, preventi, seu inquisiti, ipsumque ad malam, iniustam, dolosam, & iniquam nonnullorum suorum malevolorum & inimicorum delationem, instigationem, seu denunciationem fuisse preventum, & in processu involutum, et per vos vestramque definitivam sententiam dictus etc. delatus, seu puentus, seu inquisitus, pronuncietur & declaretur innocens, exoneratus, & minime culpabilis sibi impositorum, ut ab eisdem impositis eadem vestra sententia absoluatur: dictus vero denuntiator in omnibus damnis, interest, & expenssis erga eundem praeventum delatum seu inquisitum condemnetur, condemnatusque ad refarciendum & soluendum cogatur & compellatur, & aliâs ius & justicia eidem praevento & intitulato fiat & administretur: Inprimis igitur dicit, ponit, asserit & quatenùs opus erit, prout supra, iustificare intendit, quòd ipse praeventus, seu denunciatus ex nobilibus, catholicis, legalibus, probis, honestis, & in omni genere virtutis exercitatis parentibus, seu genitoribus, traxit originem. Item dicit & ponit, quòd dictus intitulatus & preventus 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 laboraverit infamia, sinistra suspicion, aut mala fama. Item & quòd semper pacifice, & quiet inter omnes se habuit & conversatus 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, livores, vel concussiones intulisse, Ex quibus apparet dictum intitulatum seu praeventum fuisse & esse a sibi impositis innocentem & minime culpabilem, indebiteque & injust intulatum & preventum, & in processu involutum fuisse, & per consequentiam in via absolutionis & relaxationis fore & esse.  Nomomat. 
This bar is somewhat long, let me hear the form of your bar Anglonomoph. which I hope is a great deal shorter.  Anglonomoph. 
It is so, if you will have the ordinary plea in bar which comprehendeth the 
17. The form of a defence in an action upon the case.  general issue. For it is no more than this: Et praedictus P. L. per R. attornatum suum venit & defendit vim & iniuriam quando etc. & dicit quòd ipse non dixit, retulit, nec propalavit de praedicto W. verba praedicta etc. modo & forma quibus idem H. superiùs versus eum queritur, & de hoc ponit se super patriam & praedictus H. similiter etc.  Nomomath. 
This is brief and substantial, but now what is to be done according to the order of your proceeding?  Codcign. 
Now that the matter is grown to 
18. The form of trial by the Civil law.  this ripeness, so that the one maketh perfit affirmation the other absolute denial, the matter is to be tried by proofs & witnesses, which now are to be examined.  Anglonomoph. 
So it is with us: for the cause 
19 The form of trial by the Common law.  now being come to issue, the trial is to be by the country, which as to such matters in facto, are to be directed by the testimony and evidence of witnesses.  Nonomath. 
Well if the defendant happen to be found not guilty, what is then the judgement upon these precedents.  Codicgn. 
It is thus: Et nos Seneschallus praedictus 
20. The form of judgement in the Civil law.  visis, & diligenter jurisperitorum nostrae praesidialis Curiae consilio totius praesentis processus merit' appensate, diligenter, & accurate examinatis, Quia per processum defensionalem dicti rei praeventi denuntiati, & intitulati, elicitur intentio praedicti querentis, ideo exhis, & alijs ex processu result antibus, per hanc nostram definitivam sententiam, quam pro tribunali more maiorum nostrorum sedenies in his ferimus scriptis dicimus, pronuntiamus & declaramus dictum reum denuntiatum & praeventum non fuisse, vel esse criminum sibi impositorum culpabilem: Quinimmo à dictis criminibus sibi impositis fore, & esse absoluendum, quem eadem nostra sententia absoluimus, expensas hinc inde factas in causacompensando etc.  Anglonomoph. 
Our form of judgement is a great deal shorter, for it runneth thus: Ideo consideratum 
21. The form of entering judgement at the Common law.  est quòd praedictus W. nihil capiat per breve suum praedictum sed sit in misericordia sua pro falso clamore suo inde, & praedictus P. L. eat inde sine die.  Nomomath. 
Well ye have been long in handling these matters of formal proceeding, wherefore I will ask you of this, but one question more, and then will pass over to entreat somewhat of common trespasses & wrongs, resolve me first in this, whether may the executor of the testator that 
7. Division.  was wronged by such diffamatory speeches, have an action for the said slander after the death of the restator?  Codicgn. 
It neither lieth for the executor of 
1. That by the Civil law an action of injuries will not lie by executor against executor.  him that is slandered, nor against the executor of him that did slander, because noxa caput sequitur, unless the suit were begun in the life of the testator, in which case the executor may well prosecute it 
a Insti. de iniu●. §. non omnes. & §. penales ff. de miur. ●miuriarum. .  Anglonomoph. 
It is a rule with us that actio personalis 
2. That by the Common law actio personal● moritur cum persona. unless it be in some special cases.  moritur cum persona: yet this is not generally and indefinitely to be admitted, but only in such case, where the wrong did principally & immediately rest upon a man's person, & when (as the Civilians say) it is ita affixa ostibus ut in alium transferri non possit. 
b ff. de pecu. l. si quis ergo. . And therefore where one is entitled to have a writ of account, or an action of trespass for the taking away of his goods, and is attainted of treason or felony, the Queen shall have these actions as forfeited to her highness 
c 30. H. 6. 5. 28. E. 3. 92. , but otherwise it is of a trespass of battery 
d Stamf. fol. 188. , and so it hath been pronounced for law, that if a termor make waist, & after he maketh his executors and dieth, the action of waste is gone, for it lieth not against his executors 
e 23. H. 8. Br. Waste 138. 46. E. 3. 31. , but though a covenant be a thing merely personal, yet both an executor & an administrator may have a writ of covenant 
f Fitzh. N. B. 146. D. 2. Mari. 112. Dy. .   

The eleventh Dialogue of common wrongs and Trespasses.  NOmomath. 
Now that ye must treat of 
1. Division.  common wrongs & trespasses, I doubt not but you will be less troubled with my questions, because such matters are more plain to you, and to me not very difficult. Notwithstanding for learning sake, & because I would ground myself upon some certainty of knowledge, I will move some doubts of these matters: first how many sorts or wrongs are there?  Codicg. 
Injury as we say is two fold, for either 
1. The diverse kinds of injuries in the Civil law.  it is done re or verbis: re, when a man is assaulted or beaten: verbis, when a man is slandered and by terms disgraced or discredited 
a L. 1. ff. de injuries. .  Nomomath. 
I pray you Anglonomophylax illustrate and explain the members of this division by some convenient cases.  Anglonomoph. 
Very willingly, and to begin 
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 staff, though never a blow bestroken, yet this is an assault 
b 22. Assis. pl. 60. , and 43. E. 3. the writ was Quare insultum fecit vulneravit, verberavit & maihemavit, and it was allowed though the wrong did sound to be mayhem 
c 43. Assis. 39 , and as it was held per Curiam, where a man maketh an assault it is not lawful for any to beat him, if the party assaulted may escape with his life 
d 2. H. 4. 8. , yet the opinion of M. Brooke is that he may beat him if he cannot otherwise escape without stripes or wounds or maiming 
e Br. Trespass 71. , yet the opinion of 9 E. 4. is, that I may beat a man if he will take my goods from me: and a servant may justify a battery in the defence of his master 
f 9 E. 4. 28. & 48. , but the assembling of people in a warlike manner is no assault, but he that is the ringleader of such assemblies, before he may be impeached of assault must do something else, as namely by uttering contumelious speeches, or stretching out his arms, or some other token whereby his intent may be known 
g 17. E. 4. 4. , and he that cometh in company of them that make the assault, or he which cometh to aid them, is a principal trespasser 
h 22. Assis. pl. 43. , and if a justice of Peace see a man doing an assault, he may presently arrest him by commandment or word, to the intent that he may find surety of the peace 
i 9 E. 4. 3. , and it is lawful for one man to beat an other in defence of his goods and chattels or of his wife 
k 19 H. 6. 31. 35. H. 6. 51. , and a man may likewise have an action of trespass for the entering into his house 
l Fitzh. N. B. 88 l. , but if a man licence one to come into his house, & he doth a trespass there he shall be punished for the trespass but not for the entre which was granted unto him 
m 3. H. 7. 15. p towns. , and nothing 
3. That the Common law giveth an action upon the case for a slander.  is more usual than a man to bring an action upon the case for a slander, and therefore if one man call an other bankrupt an action upon the case will lie 
n 6. E. 6. 72. Dy. , or if one say to an other that he is infected of the robbery and murder lately committed and smells of the murder, an action upon the case will lie for these words 
o 15. Elizab. 317. Dy. , and the Duke of Buckingham brought an action de scandalis magnatum against one Lucas, because he said that the said Duke had no more conscience than a dog, and so he had goods he cared not how he came by them 
p 4. H. 8. rotul. 659. , infinite other cases might be brought tending to this purpose.  Nomomath. 
I will trouble you no further herein, 
2 Division.  but tell me Codicgnostes, whether by your law may the husband have an action for the wrong doneto his wife, the father for a wrong done to his son, and the master for an injury done to 
1. That by the Civil law, an action of trespass lieth by the father, husband, master, for a wrong done to the son, wife, servant.  his servant?  Codicgn. 
They may, and the Praetor's edict in our Law to that intent is very manifest and notorious 
q L. 1. ff. de iniur: .  Anglonomoph. 
To that our law accordeth: and first to show, that the husband may have an action 
2. That by the Common law the husband may have an action for a wrong done to his wife.  for a wrong done to his wife, it seemeth that these words: & came cumbonis & catallis praedicti A. (mariti) ad valentiam etc. abduxit, are necessary in the writ, for as to the taking and detaining only of the woman, it seemeth that the suit will only lie in the spiritual Court, where things any way touching matrimony or to be decided: yet I will not be peremptory herein, because M. Fitzherh. opinion is 
r Fitzh. N. B. 52. K. , that the suit for the taking of the woman only, without mentioning any other thing in the writ, is maintenable at the Common law, howbeit he putteth this case, that if a man sue in court Christian for the taking and detaining of his wife, which was lawfully married to him, if the other sue a prohibition hereupon, he may have a consultation quatenus pro restitutione uxoris suae duntaxat prosequitur 
s Fitzh. ibid. , and if the woman do lie asunder from her husband the suit will lie in the spiritual Court to have again the fellowship of marriage and to dwell together as may appear by these words of the statute 
t D. Cousins in li. de iurisdict. ecclesiastic. : (unless he will receive her without ecclesiastical compulsion 
u 13. E. 1. c. 34 Westminst. 2. ) but where a man bringeth an action at the common Law de muliere abducta cum bonis viri: he must be sure that his wife hath attained to age of consent, & that she hath actually consented to the marriage: for where a man marrieth a wife before she be of the age of 12. years, & after she cometh to the age of 12. years, & before she assent or disassent one taketh or carrieth her away, the husband in this case cannot have a writ of trespass cum muliere abducta cum bonis viri by some authority, because it is not properly a marriage till she assent 
x 47. E. 3. Br. Trespass 420. : yet M. Brooke doubteth hereof & rather thinketh upon very good reason the contrary, because it shall be intended a good marriage until the woman do disassent 
a Brook ibid. : but where the marriage is complete, & without all danger of contradiction, though the wife be dead or divorced at the time of the action brought, yet the action is maintenable for the husband 
b 43. E. 3. 22. , but the word (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 ravish an other 
c 43. E. 3. 23. , and if a man do carry 
3. In wh● cases by the Common law an action will lie for the master for a wrong done to his servant.  away a woman by the licence of her husband this writ will not lie 
d 1. E. 4. 1. , for it is vi & armis, and as to the bringing of an action by the master for some hurt done to his servant, it is frequent in our books: for by the beating, or maiming or wounding of the servant, the master hath the loss of his service 
e 3. H. 6. 53. : & therefore if any man take the servant of an other man out of his service, an action of trespass will lieagainst him that taketh him 
f 39 E. 3 38. Fitzh. N. B 91. I. 21. H. 6. 31. , but if a man find an other man's servant wandering abroad, and retain him, this is lawful, if he knew nothing of the fist reteiner. But though by the common law an action of trespass quare vi & armis did lie against him that took an other man's servant out of his service: yet if he did only procure him to go out of service, & then retained him, the master could have had by the Common law no action, but only an action upon the case, but now by parliament an action is given upon the statute of labourers 
g 11. H. 4. 23. Br. Trespass. 92. : Lastly it is plain by our law, that the 
4. In what cases by the Common law an action will lie for the father for a wrong done to the son.  father may have an action for the taking away of his son and heir, but in the writ he must say cuius maritagium ad ipsum pertinet: for this writ is given unto the father, because the marriage of his son and heir or of his daughter and heir doth of right appertain unto him, and if the father have married his heir before, so that he hath once enjoyed the fruit and benefit of the marriage, which the law allotted unto him, he shall not have this writ 
h 12. H. 4. 16. 8. E. 2. Trespass 235. 32. E. 3. guard. 32. , and if a man take away an other man's son and heir apparent and bestow upon him good apparel, and the father seizeth his son as he lawfully may, he shall not be impeached for the taking of the apparel; for in that he may make a good justification for the taking of the body, the justification must needs extend to the apparel of the body, because the law considereth not bare and elemental bodies, but bodies appareled: And Haukf. with others reasoneth well, that if a man put an other into apparel, and speaketh nothing of the loan of it, neither by express act reserveth the property to himself, this is a gift in law: and if an advowterer do take a woman from her husband, and appareleth her with good attire, the husband may take the wife again, and with her the apparel 
i 11. H. 4. 31. Br. Trespass 93. , and as the father may have this remedy for his son & heir apparent, so may the mother, likewise if she be an inheritrix 
k 30. E. 3: Brief 300. : so that I marvel at M. Catesby's opinion 9 E. 4. that this writ lieth not for the wife 
l 9 E. 4. 53. .  Nomomath. 
I will require no more at your hands Anglonomoph. of this matter, now I pray you Codicgnostes resolve me in this, whether when any man's beasts do any hurt unto an other man, if this be not done by the owner's act, default, or procurement, shall the master make good the damage sustained by such wrong.  Codicgn. 
Surely brute beasts, because they 
1. How the owner shall be punished by the Civil law for a trespass done by his beasts.  want understanding and reason, cannot be said properly to bind their owner (noxaliter, so that the fault should be accounted his) for any ravine, hurt, or damage whatsoever, neither do such wrongs bind the owner of the beasts ex quasi delicto, for a matter like unto a wrong: yet notwithstanding for preventing of hurt, that may in such sort hap, the law doth provide, that if the owner will not voluntarily yield up the beast as a recompense to him that is endamaged, he must tender the damages, or else by the authority of the judge be awarded & compelled to yield up the beast 
m L. 1. ff. si quadrup: paup: fec: dic. , and therefore if any man do keep or nourish a Mastiff, or Boar, or Fox, or Bear, or Lion or Wolf, or some like beast which doth hurt or damnify an other man, he that receiveth the hurt shall recover damages against the owner of the beast 
n §. Caeterùm Instit. si quadru: pauperien fecisse dicatur. , but if such a beast do escape away from me, 
2. In what case he shall not be punished though his beasts do hurt to an other man.  or goeth so far from my pasture or ward that I cannot by pursuing recover it, neither do I know whether it is fled, and so being escaped from me it do hurt an other man, in this case I am not to sustain any damage, because in this case, I am free from fault: for the beast by such escape ceaseth to be mine, and may become his that shall take, or seize, or kill it 
o d. l. 1. §. in bestijs & §. Caeterù●, versic. Denique si ursus. .  Anglonomoph. 
To this our Law agreeth: for we have a writ of Trespass which saith, Quare vi & armis centum oves ipsius A. cum quibusdam canibus fugavit canes illos ad mordendum oves praedictas intantùm incitando quòd per fugationem illam & morsus canum praedictorum oves praedictae multiplititer deterioratae fuerunt & magna pars ovium illarum faetus abortivos fecit etc. per quod 
3. That by the Common law a man shall be punished for a trespass done by his beasts.  etc. 
p Fitzh. N. B. 89. L.  But if a Dog do kill or hurt any man's beasts, the Master being ignorant of his mischievous property, he is not punishable 
q 28. H. 8. 25. Dy. & 29. Dy. , whereby I gather that if he know of his property (though he do not set on his dog or maintain him to do hurt to others) he shall be punished by action of trespass, and if a man do drive his beasts through the Queen's high way, to which way my land that is sown with corn is adjoining, and the beasts do enter & spoil my corn, the owner shall be punished for this, though he did drive them out presently, or earnestly endeavour to chase them out of the corn 
r 10. E. 4. 7. , so if a man chase his beasts in the high way, and they do escape into land, which is not enclosed, and the owner doth freshly pursue them, and chaseth them out, yet this is no good plea in bar without showing that the tenant of the land, and all those whose estate he hath in the land, have used to enclose the said land toward the high way 
s 15. H. 7. 17. .  Nomomath. 
I crave no more of this matter: now I would have you to transfer your invention to the discourse of other offences against the peace, which I do thus dispose and distribute to your handling: because all offences against the peace are either in an inferior degree, as these whereof ye have lastly spoken, or in a middle degree, as unlawful assemblies, riots, routs, and forcible enters, or in a higher degree, and they be of three sorts, namely such as be committed against the dignity of man as treason and rebellion: or against the life of man, as murder, manslaughter, and homicide by chance, or against the good estate of man, as theft, burglary and robbery: I would therefore have you first to begin to treat of unlawful assemblies, riots etc. and then to go on with the rest, accordingly as I have set them down.  
Codignostes, Canonologus, Anglonomophylax, we are willing to pleasure you in any thing that we can, and as you propose doubts of every of these titles severally, we will endeavour to satisfy and resolve you to our power.   

The twelfth Dialogue of unlawful assemblies, riots, routs, and forcible entries.  NOmomath. 
Tell me Codicgnostes what 
1. Division.  do you take to be public force in your Law?  Codignostes. 
When an unlawful assembly is met together in the high street, 
1. The description of public force by the Civil law.  or in the open sight of men to offer abuse, hurt, or injury to a man's person, or to take away his goods from him by violence and strength of hand 
a L. armatos. ff. ad L Iul: de vi pub: .  Anglonomophylax. 
That likewise is public 
2. That in the matter of public force, the Common law agreeth with the civil.  force by our law: of private force done to a man's person we have spoken before, which if it be publicly done, it turneth to be public force, but as to the taking away of goods by open force, if a man do disseisie an other, and when he hath entered▪ he doth carry away the chattels of the disseisie, this is in our Law a disseisin 
3. A difference by the Common law betwixt public force and op●n force.  with force and arms, and the disseisor shall be punished by imprisonment 
b 11. H. 4. 16. Westminst. 1. c. 37. 4. H. 4. c. 8. , and a man disselsed an other but not with force at his first entre, and it was found by assize that incontinent after his first entre he cut down trees, and this was awarded a disseisin with force and arms 
c 30. Assis. 50. Assis. 301. .  Nomomath. 
What punishment have they by your laws which commit such force?  Codicgn. 
The punishment of this fault in our 
4. The punishment of public force by the Civil law.  law is diversified by the quality 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 Laws, with perpetual banishment, & the confiscation of goods 
d L. 2. ff. de publs iudic: & l. si quis ad se fundun. C. eod. & §. item lex. I●st: eod: , but now it is punished with banishment for a certain time without confiscation of goods 
e §. relegati. Instit: quib: mod: ius patr● potest. soluit. , but it is to be noted that the said punishment only taketh place, when force is actually done or committed, but if nothing be done forcibly, but certain men having weapons are assembled in a great multitude together to commit force, the punishment of that offence is arbitrary and lest to the discretion of the judge, but the Law setteth down this mulct in certain, that if he be a man of worth he shall pay to the common treasury an hundred pounds in gold, whosoever in such sort offendeth 
f L. si. C. Ad L. jul. de vi publ: l. 1. & 2. in prin. ff. eod. .  Anglonomoph. 
By our Law if a disseisin be 
5. That by the Common law the Counsellors and committors of force are alike punished.  found to be done by diverse men, and to be done by force, and one of them is found to be but a counsellor of the disseisin, yet every of them shall be awarded to prison 
g 17. Assis. pl. 14. , and if a man be attainted of Trespass at the suit of the party, or of a disseisin with force, wherefore he is commanded to prison, if he be present, or that he shall be attached, if he be absent, whereupon he is attached and put in prison at the kings suit, until he have paid a fine to the King, and after he findeth pledges for his fine, and prayeth that he may be at large, he shall not be permitted to go at large, until the Court be sufficiently informed that he hath agreed with the party, if the plaintiff do require before that his body may continue in prison, until the defendant have agreed with him 
h 22. Assis. pl. 74. . An unlawful assembly is where above the number of two do assemble to do some unlawful 
6. What an unlawful assembly is by the Common law. 7. What a rout is.  act, and they do it not in fact, but after their said assembly they depart without doing more, and a rout is their tumultuous proceeding to perform the act purposed: but a 
8. What ● riot is.  riot is when more than two do assemble together to the intent to do an unlawful act, as to beat or to maim an other, and they do this in fact: but if diverse assemble, & none know to what intent, this is not punishable till the intent be known 
i Fitzh. just. de Peace. 28. Mar●. lect. 8. Crompt. just. de peace 53. , and when men are indicted of riot, they commonly pray to be admitted to their fine, that by the paying of their fine they may escape imprisonment, but de rig ore juris they ought as well to be imprisoned as fined 
k Crompt. justice. de peace. 53. b. .  Nomomath. 
I would know of you Canonologus, whether there be any penalty in your Law prescribed for such offences.  Canonolog. 
Yes there is a penalty set down 
9 The punishment of the aforesaid offences by the Canon law.  for Clerks, & such as have taken holy orders, for if they do commit public force, they are to be excommunicated until they be reform, and they may be deprived for such public offence 
l c●veritatis ext. de dolo & contum: etc. Inquisitionis, etc. qualiter & quando, extr. de accusat. etc. licet Heli extr. de simon. etc. Generali de elect. lib. 6. .  Nonomath. 
But what if the Magistrates in the 
2. Division.  country be negligent and remiss in punishing such offences, hath not your Law Codicgnostes provided reformation for them.  Codicgn. 
Yes, if any judge will not do justice 
1. The punishment of the justice not punishing such offences by the Civil law.  in the repressing and punishing of such offenders, but shall either differre the punishment, or neglect to give sentence, or shall partially demean himself in the smothering of that fault, or shall not inflict the punishment due to such offences, the said magistrate is by Law to be made infamous, to be deprived of his office, & to be made uncapable and unable for any other office, and further he is to be fined a C. li. in gold 
m L. fin. C. add leg: jul. de vi public. vel private. .  Anglonomoph. 
Our Law is likewise severe against 
2. That the justices of Peace by the Common law are punished for remissness of punishing others, for the aforesaid faults.  such: for if the justices of Peace & sheriff or undersheriffe do record the force, and do not commit the rioters to prison, or if they commit them, and do not record the force, they shall pay every of them a C. li. for the statute is that they shall record and commit 
n 13. H. 4. c. 7. , and if any riots, routs, or assemblies of people be done against the Law, two justices of Peace at the least with the Sheriff or undersheriffe must go to the place where the riot etc. is committed, & they must take the offenders etc. & this is by the statute of 13. H. 4. c. 7. but notwithstanding this statute Fineux chief justice was of opinion 14. H. 7. that forsomuch as the statute is but merely in the affirmative, that therefore one justice of Peace may go & take power with him, and repress the rioters etc. and he needeth not to stay for his companions, nor for the Sheriff, nor &c. because the statute is a beneficial Law made to avoid a mischief which might otherwise happen if one justice should stay for his companions 
o 14. H. 7. 10. ꝑ Fin. Fitzh. just. de P. 16. , and the Sheriff and justices of Peace may take with them as many men in harness as are necessary and guns etc. and may kill the rioters if they will not yield themselves: and if the two justices which be nearest unto the place, where the riot is committed, and the Sheriff or undersheriffe do not execute the said Statute of 13. Henr. 4. they shall every of them pay an hundred pound, as before I have said and the other justices of the same county, where the riot is committed shall be fined for the not repressing of the riot, if there be any default in them 
p 23. Eliz. Crompt. I. P. 54. , but in such case it seemeth that the justices of the Peace should have notice of the riot given unto them, or else that it should be so notorious that by common intent they may take notice of it 
q Crompt. I. P. 54. b. Dy. 210. .  Nomomath. 
We will proceed no further in this matter, but will now pass to the title consequently ensuing.   

The thirteenth Dialogue of Treason and Rebellion.  NOmomath. 
Let me know Codicgnostes, before we enter into particular 
1. Division.  inquiry of the things, which are in themselves, and ipso facto treason, what in ancient times, & other common weals, hath been taken to be treason, & how hath it been punished, for I think that will give great light to matters subsequent, because that which is passed was the original of that which is present, and it is good in matters of Common weal to have a diligent retrospect to the course of former ages. 
1. The reason is showed by Codicgnostes wherefore treason is aptly termed a fault against the dignity of man.   Codicgn. 
It is true: and first I will show how aptly you have termed this offence to be a crime or fault against the dignity of man: for as nothing should more debase man's nature, than if against man, whom God hath made little inferior to the Angels, whom he hath crowned with glory & worship, whom he hath made Lord of the works of his hands, and hath put all things under his feet: 
a Psal. 8. ver. 6. 7. 8. 9  If I say against him the beasts of the field should rage's and rebel, as it happened in Room, when as a preamble of the fatal confusion of that City, all the beasts subject and necessary to man's use, namely dogs, horses, asses, oxen, etc. would not suffer their Masters to touch them, or come near them without destruction and peril: 
b Orosi: lib. 5. juli: Obsequens in lib. de prodit D. Augustin: lib. 3. de civitat: dei c. 23.  so surely when they, who are in subjection to a Prince or monarch, do violently and mutinously break the bond of obedience and loyalty, and will do as they list, and thereupon rebel, and treacherously conspire against the life of their Prince, this is against the dignity of man, who being Lord of brutish creatures, doth imitate them, and becometh as wild and savage and disobedient as they. Now I will call to remembrance, how this disloyalty or treachery in the highest degree, hath in other ages received censure and punishment. Traitors 
2 The punishment of treason in ancient times.  were always loathed, detested, and sharply punished of the Romans: and treason was accounted far more grievous than parricide, 
c Dionis. Halicarnass. tit: 2. & 8.  sometime they were thrown headlong down a rock, as Cassius: sometime hanged, as Lentulus and others of Catiline's seditious society, or by some special kind of infamous death executed, as Suetonius reporteth, 
d Sueton: in Neron: c. 49.  and they which conspired against Augustus, when he was newly come to the Empire, bore the smart of their treacherous designments, and were severely punished for the imagination of that heinous mischief. 
e Dio Nicae: in August:  This justice of the heathens is justified by divine authority. Non mittam manum meam in unctum domini. 
f 1. Reg. c. 24  Quare non timuisti mittere manum tuam ut occideres unctum domini: 
g 2. Reg. c. 1.  for surely the majesty of a Prince offended and hurt, doth require a deep revenge: and if Nemesis, that is Revenge itself, do take sharp punishment of those which offer any violence to the person of an Ambassador, 
h Appian●in select:  representing a Prince or monarch; with what extremity of pain are they to be tortured, which imagine or go about to compass the death and downfall of their liege and dread sovereign: Wherefore worthily doth the excellent Lawyer out of the Code apply these titles of Majesty unto kings & monarchs: Celeste oraculum, divinitas, Eternitas, Eternales vultus. 
hh Alber●c: Gentilis lib. 2. lection: & epistolar: c. 14.  Majesty therefore, which by some is said to be the daughter of honour & reverence, ought always, and in all things to be respected with honour & reverence.  Nomom. 
Show me I pray you what may properly 
2. Division.  and justly be termed treason by your laws. 
1. The diverse kinds of treason by the civil law.   Codicgn. 
It is treason when any thing is seditiously attempted against the Prince or common weal: Likewise to help the enemies of the king, or common weal with munition, money or counsel, likewise to take any castles, fortresses or holds against the king or common weal: also to suffer him to go out of prison who is accused of this fault, and he that coineth or causeth false money, 
i l. 1. 2. 3. & 4. ff. ad l. Iul: mayest: & l. quisquis C. eo: & C. de fals. monet: l. pen:  which may be committed diverse ways. I. When he coineth money, which hath no authority to 
2 The diverse kinds of treason by coining of money in the civil law.  coin, 
k l. qui falsam. l. qui nomine & l. lege Cornelia testam: ff. ad leg: Cor: de fals.  because to coin or form money ad regalia pertinet, 
l C. unico, quae sunt regalia in usib: f●ud: l. 2. §. de inde cum aeratium ff. de origaur:  2. When money is coined in an unlawful & disproportionable matter, as when the divers impressions of particular coins of silver and gold are stamped upon copper, brass or tin, or pewter, 
m l. 1. in prin: C. de fals. monet: & l. quicumque nummos ff. ad l. Corn: de fals.  3. When one that hath authority or licence to coin money with a peculiar impression or character, doth use a strange and unlawful stamp of his own devising, 
n d. l. lege Cornelia testam: in princ:  4. When the lawful & ordinary weight of the coin is falsified, & altered by one that hath no authority to alter. 
o c. quanto de iur● iur: extra. & l. 1. de veteris numism: potest. C. li. 11.  5. To utter or cause to be uttered false money knowing 
3 The punishments of traitors by the civil law.  it to be false, 
p l. lege Cornel: cavetur. ff. de fals.  In all which cases, except the last, the offenders do suffer punishment of death, some of them being burnt by fire, 
r gloss. in l. 2. C. de falls: Moneta: sup verb: flammarun in 3. solut. ad argum: l: 1.  other some being thrown to devouring beasts, 
s l: quicunque cum sequent: ff: ad leg: Cor: defal:  & their goods be confiscated, 
t l: si quis in prine: C. de fall: mon:  but he which uttereth false coin is punished with serving all his life time to them which dig in mines for metal, 
u ff. de varijs & extra or: crim:  and the punishment of them that clip money is by our law capital. 
a d. l. quicunque ff. ad leg: Cor: de fals.  But he that coineth money with the impression of a strange prince is not punished with a natural, but with a civil death: for he is punished with perpetual exile, & his goods are confiscated, for every Prince of every nation and kingdom hath his several stamp and coin, and so they had in ancient times: the Aetolians did give for 
4 The several coins of foreign princes in ancient time.  their coin the image of Hercules breaking with his club the horns of Achelous: the Thebans did give the twibil of Hercules: the Trachinians Hercules sitting: the Macedonians Hercu: his club 
b l: 3. ff: eod;  and the horns of a goat: the Thasians, Bacchus crowned, and Hercules their Deliverer: the Dymeans a goat, which did tread upon a frog: the Corinthians Pegasus, with Neptune having a three-forked mase in his hand, sitting upon him: the Naxians did give Bacchus with a long beard, & a Satire with a pot in his hand: the Metapontinians Ceres' with a sheaf of corn: the Baeotians did give a Fly with a Heart, and Bacchus his mazarde with a cluster of grapes: the Dardanians did give two cocks fight, the Athenians an Owl: the Argives a Wolf. Alexander the great gave for his coin the image of Bucephalus his horse with victory having wings: Pyrrhus, Pallas having a spear in her hand sitting on a throne: August. Caesar the star of Capricorn, under which he was borne. 
c Pollux. Sophocles interpres. Hadrian: junius. de re nummar. in Nomen: clat:   Anglonomoph. 
I will particularly examine all the precedent matters of your last discourse, which have any resemblance or be of any use in our Law, sithence order enforceth me to speak of disorder, and of the disloyal, and seditious, and traitorous attempts against the person of the prince, and the good estate of the common weal, which may fully appear by a statute made 25. E: 3. de proditionibus ca 2. and likewise by the common Law, for as Thorpe sayeth 22. E. 3. 
d 22. E. 3. p. 49  it is treason 
5 The diverse kinds of treason by the common Law.  to succour the king's enemies, & to levy war against the King in his Realm, or to be adherent to the King's enemies in his Realm, by giving them aid and comfort in his Realm or otherwhere is made treason by the abovesaid statute, as may appear by the case of Sir Nicholas Throgmorton, who was arraigned for being of Counsel with Wyatt in levying his seditious war. 
dd 1. Mari. Dy. 98. Crom. just. P. 40.  And D. Story being beyond the sea, and practising with a foreign Prince, to invade the Realm and to work the death of our dread sovereign Lady the Queen, was justly attainted of high treason, 
e 13. Eliz. 298. Dyer.  and Sherleys a French man, taking with Stafford the Castle of Scarborough rebelliously in Yorkshire, was arraigned in the kings Bench upon an indictment of treason, which was contra ligeantiam suam debitam. 
f 4. Mari. 144. Dyer.   Nomom. 
It seems to me that these words should only extend to liege's, and subjects.  Anglonomoph. 
Nay they do extend to any one 
6 How far forth this word (leageance) doth extend by the, common law.  who is in the Realm in the time of peace, and he that hath the benefit of the Queen's peace (foreigner or other) ought not to violate or disturb it any way, but if it had been in time of war betwixt the two kingdoms, than he could not have been arraigned, but should have been ransomed: but he that in a foreign commonweal, 
ff 4. Mati. 144: Dyer.  
7 How the Q. enemies are to be punished by the common law agreeing with the law of God.  where he is permitted to sojourn, will raise tumults, and kindle rebellion, deserveth to be punished as a rebel, and therefore it is truly, and judicially said of Albericus Gentilis: Criminosos, violentos, ne quidem veri dei tuetur altar, quos neque intuetur deus, nisi iratus, 
g Alberic: Gentil. lib 2. de Arm. Rom. c. 2.  And again: Innocentia praestat securitatem. 
h Alb: Gentil: lib. 1. de Arm: Rom: c. 2.  And therefore the Romans did well in arraigning Bomilcar of treason, who being a stranger conspired against their state: 
i Sallust: in jugurth.  But it is true which before I said, that if war be betwixt two Kings, as namely the King of Fez, and the King of Polonia, if the king of Polonia do in his own kingdom take prisoner one of the subjects of the King of Fez working mischief against him, this is lawful: but to arraign him or put him to death is unlawful: for a prisoner so taken is to be put to his ransom, but not to open shame as a traitor: and therefore the Prophet said unto the King of Israel: An quos captivos abduceres, gladio tuo & arcu tuo eos percuteres? Eliseus by a wonderful miracle did make the Syrians enemies to the King of Israel his captives, whom the King would have slain, but the Prophet did forbid him by this argument, that they which are taken in war ought not to be slain, much less these whom God had given up into his hands. 
k 4. Reg. c. 6. joseph. 9 Ambrosi: 1. de office: 29.   Cononol. 
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: 
kk c. 3. 23. q. 1.  and this Law hath been practised of the Grecians, 
l Plutar. in apoph.  Romans', 
m Alex. 4. gen. 7.  Thessalians, Illerians, Triballians, and Bulgarians, 
n Nic Grego. lib 4. 6.  and to this purpose it hath been said, vendere cum possis captiwm, occidere noli. 
o Horat. ep. ad Quin.   Nomomat. 
I have interrrupted you Anglonomo. But I pray you continue that course which you propsed to yourself in comparing the assertions of the Civil Law touching matters of treason, with your rules of common Law.  Anglonomoph. 
Whereas he hath said that to suffer one to go out of prison for treason which is impeached for that crime, is treason: that is also agreeable to our Law established by Statute: whereof I will recite the words: de prisonarijs prisonam frangentibus dominus rex vult & precipit, quòd nullus de cetero qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantùm, nisi causa pro qua captus, & imprisonatus fuerit tale judicium requirat, si de illa secundum legem & consuetudinem terrae fuisset convictus: 
p 1. E. 1. c. 2. Rast. Felony 2.   Nomomath. 
Do ye then account every suffesering of a prisoner to escape, to be a breach of prison?  Anglonomoph. 
Yea, for if a man arrest one for 
9 How breaking of prison is taken in the common law.  felony, and after let him go at large, whether he will: if he be arrested for Felony it is Felony, if for Treason it is Treason, if for a Trespass it is a Trepasse & sic de singulis. 
q Stamf. lib. 1. c. 26.   Nomomat. 
Well, I pray you proceed in your purpose.  Anglonomoph. 
As to that which is uttered of 
10 How treason is committed by coining of money according to the censure of the common law.  Codicgnostes touching the unlawful coyninge of money, it is for the most part consonant to the Common Law of this Realm, as now it is, and as it was in ancient times by the testimonies of Bracton, 
r Bract: li. 2. ti● de crim: laes, may:  Britton, 
s Britt. fol. 16.  and glanvil, 
t Glan: lib. 14.  and the aforesaid Statute of 25. Edward the 3. maketh it treason for a common person to coin the king's money without his warrant and authentic, which the statut calleth Counterfeiting: & whereas the statute saith (the king's money) it must be intended the coin of this Realm or the dominions of it: 
u Sramf. 1. lib. 1. ca 1.  and this word (counterfeit) doth import, that if a man do counterfeit the King's money, though he do not utter it, this is treason: 
w 6. H. 7. 13. 1. R. 3. 1.  and the forging and counterfeiting of coin of another Realm is made treason awel as the counterfeiting of the coin of this Realm. 
a 4. H. 7. c. 18. 1. & 2. Phi: & Ma: ca 11.  But than it must be currant by proclamation in this Realm, 
b 1. M●r: c. 6. Cromp: I: P: 40.  and as to the clipping of money hear the statute of 5. of our Sovereign Lady the Queen. Be it enacted, etc. that after the first day of May next coming, clipping, washing, rounding or filing, for wicked lucre or gain sake of any the proper money, or coin of this Realm or the dominions thereof, or of any other Realm allowed or suffered to be currant within this realm, or the dominions thereof &c. shallbe taken and adjudged to be treason by virtue of this act etc. 
c 5. Eliz. c. 11.   Nomomat. 
I pray you now declare the forfeitures and punishments of these several treasons.  Anglonomo. 
The judgement of him that is convicted 
11 The several punishments of treasons by the common law.  of high treason is to be carried back to the place whence he came, and from thence to be drawn upon a hurdle unto the place of execution there to be hanged by the neck, and to be cut down quick, and his entrails and privy members to be sundered from his body, and to be burnt within his view, and his head to be cut off, and his body to be divided into 4. parts, and to be disposed at the Queens will. 
d Stamf. lib. 3. ca 19  This is the judgement and sentence of condemnation of a man, but of a woman it is otherwise, namely that she shall be drawn on a hurdle and burnt, 
e Stamf. ibid., & 23. lib. Ass. pl. 2. Come 31 6  and the offender shall forfeit his goods and lands to the King of whosoever the lands are holden, 
f 25. E. 3. c. 2. Stamf. ibid.▪ 1. H. 6. 5. Stamf. li. 2. c. 37. etc. 40. & lib. 3. ca 20. 4. H. 7. 11. per Towns.  but he which hath estate in lands for term of life or for years shall forfeit his estate only, 
g Stamf. lib. 3. c. 26.  and by the statute of 26. H. 8. ca 13. and 5. and 6. Ed. 6. ca 11. tenant in tail shall forfeit his land if he offend in high treason, but no man shall forfeit lands which he hath in the right of an other, as in the right of his wife, or in the right of a Church, 
h 5. & 6. E. 6. ca 11. Stamf. lib. 3. c. 26.  and with the land which a man forfaiteth, he shall forfeit his evidences which concern the land, 
i 49. H. 6. 15.  and if a man levy war against the King, and is slain in it, yet his land shall be forfeited, 
k 7. H. 4. 27. P Mark. 34. E. 3. c. 12. 39 H 6. c. 1. Stamf. lib. 3. 29.  and in such case the wife of such offender shall lose her dower, and his blood or lineage shall be corrupt, 
l Stamf. lib. 3. c. 19  But such as clip, wash, round, or file money are only to forfeit their lands during their life: 
m 5. Eliz. c. 11.  but such offence causeth not corruption of blood, nor the loss of Dower.  Nomomat. 
Now time and order doth require that ye should speak of Homicide.   

The fourteenth Dialogue of Homicide, that is Murder, Manslaughter, & Homicide by chance or misfortune.  NOmomat. 
Because the apt division 
1. Division.  of things giveth great light and ministereth exceeding help to the knowledge and understanding of them, I would therefore know Codicgnostes, how many kinds of Homicide are set down in your Law.  Codicgn. 
Homicide in our Law is either the 
1 The several kinds of Homicide by the civil Law and first murder is described.  wilful kill of a man of set purpose: 
a l. 1. in princ. & in §. diws ff. ad l. Corn. de sicar: & l. 2. C. eod.  or else the kill of a man in the defence of his own person: as if I. N. should assault I. S. with a sword he 
2 Manslaughter se defendendo by the civil law.  may defend himself with a sword, and so avoid the injury, if otherwise he cannot eschew it: but if I. S. may fly from him without danger, than the Law bindeth him to fly: but if a man should so assault me, that he should drive me to a very narrow pinch, so that I cannot find a mean to escape with my life, in this case it is lawful for me manfully to defend myself though it be with killing him, 
b jodoc: Dā●ouderius in rerum criminal. prax. c. 78 & 79  and these sorts of manslaughter may be committed with club, 
c in d. §. Diws l. 1. ff. ad leg. Corn: de sicar:  stone, sword or dart, with arrows, lances, pertisanes, javelins, or with guns, 
d justi: de pub: iudic: §. Iten lex Cornelia.  or a man may be killed by poison, 
dd l. 3. §. 1. ff. Ad: Corn: de sicar:  or by precipitation and being thrown headlong from the top of some house, or some bridge, or some hill, or some tree, 
e d. l. 1. ff. ad leg: Corn: de sicar:  There is an other 
3 The description of selfe-slaughter by the civil law.  kind of Homicide, which is termed homicidium sui ipsius, when a man killeth himself, & such offenders are punished by our Law according to the quality of their mind, whereby they were moved: for if they kill themselves through grief or impatience 
ee G. de Bon● eorum qui mort: sibi consc:  of some infirmity, no punishment followeth their fact, but they are left to the tribunal 
4 A diversity of killing a man's self by the civil Law.  of the almighty judge of the quick and the dead: but if they kill themselves upon any other cause, their goods are confiscated, 
f Authen: bona damnatorum C. de Bon: damnat: Novel: 134. c. fin: ff. de iur: sisc: & C. de priuil. sisc. tit̄ lit:  and their bodies though they be dead, and so impassable, and free from punishment, yet for the terror of them that live, they are thus ordered. The body is drawn out of the house, wherein the man did kill himself, with ropes, not by the door, but through some hoal or pit made under the threshold of the door, 
●● The punishment of selfe-slaughter by the civil law.  because it is unworthy to be brought out the same way, which the man whilst he lived, did use: and he is drawn by a horse to the place of punishment or shame, where he is hanged upon a gibbet, and none may take the body down, but by the authority of the magistrate: 
g Danhouder. in prax. rer: criminal: c. 88  and none may wear any mourning robe for such an offender. 
h l. liberorum §. Pomponius in versic: non solent. ff. de his qui notan: infamia.  The last kind of Homicide is Homicide 
6 Homicide by casualty is described.  per infortunium, or homicidium casuale, as if a Tiler with one of his tiles, which he useth about his work, do hurt or kill one that passeth by, he is not to be punished for this hurt or fault, if he did give warning before in convenient time, 
i Argum. l. cum 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 use bows, or crossbows, which lop trres, or cut them down by the root, if a man be slain thereby, 
k 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 give warning, and so it is of Carmen or Coachmen, and so it is of others, whilst they do such things as are permitted by Law, yet such persons must sustain an arbitrary punishment, because so great a mischief ensueth, 
l Damhorder rer:: criminal: prax: cap. 85.  and so it is of others which throw suddenly, staffs or stones at birds or dogs, and by that means hurt or kill a man, 
m Damhorder ibid.  but yet God would have man to be free from this fault, and therefore such offenders had Asyla, temples of mercy permitted unto them as things necessary for their absolution. 
mm Deutero. 19 ver. 5.   Anglonomo. 
It seemeth that we make more 
7 Anglo. Taketh exception to the division of homicide by the civil law.  kinds of Homicide than you, for with us there is one kind of Homicide of malicious purpose, which we call murder, an other which is committed upon the sudden in a heat and fury of mind, which we term Manslaughter, a third which we call se defendendo, a fourth per infortunium, the fifth Homicide of a man's self, whereby the offendor is called Felo de se.  Nomom. 
Indeed Codicgnostes you have not, as to me seemeth, comprehended in your division all the particular kinds of Homicide: for you seem under your first member, which is the wilful kill of a man of malice forethought, to comprehend manslaughter, which is done in the heat and fury of anger and sudden falling out.  Codicgn. 
In deed so I did mean it, for our most 
8 An other division of homicide by the civil Law.  compendious and complete division of Homicide is thus: either it is done destinatò, or necessariò, or casu destinato, when a man of malice preconceived doth kill himself or an other man, as Nero, judas, and others, which kind of manslaughter is impious, because the power of life & death is Gods and not ours, and therefore is not to be usurped by man, wherefore we have a very good rule. Nemo membrorum suorum dominus est: 
n l. liber homo ff. ad leg. Aquil. & l. lex Cornelia §. Constitutum ff. ad l. Corn. de sicar.  Necessariò a man committeth manslaughter, when he doth it in his own defence, and to beat back force by force, which kind of manslaughter being done by necessity, & not by will, deserveth pardon according to the saying:  
judice me, fraus est concessa repellere fraudem:  
Armaque in armatos sumere iura sinunt.  
And it is a Maxim in our Law: Quod quisque in tutelam corporis sui fecerit, iure fecisse existimatur: 
o l. ut vim. ff. de inst. & iur.  Casu Homicide is committed, when a man killeth one not purposing that, but doing an other thing, as the Hebrews do report of Lamech, that meaning to strike a wild beast he killed Cain with his dart, 
p joh. Wolph. in Comm. ad Deuteronom. lib. 2.  and so you may perceive that we comprehend that which you call murder, and that which you call manslaughter under that kind of Homicide which is committed destinatò.  Nomomath. 
I do rather perceive it, then approve it: wherefore I would have you Anglonomoph. to show the difference betwixt these two kinds in their several natures, and what difference they hold from other kinds of Homicide, that so I may more easily understand wherein your Laws agree or disagree, and likewise the reasons of the said accordance and disagreement.  Anglonomoph. 
The difference of killing men voluntary and involuntarylie is very ancient. 
8 The difference of kill men voluntarily and involuntarily is showed to be ancient.  
r Genes. 9 & 4. Exod: 21. Deutre. 5. Leuit. 24. Num. 35. Deuter. 19  And Demosthenes sayeth, that the Phaenicians did punish such as did voluntarily kill men with death, and with the loss of all that they had: but such as did unwillingly cause the death of a man, they did pardon, and forgive: 
s Demost. in orat. contr. Mid.  But the difference betwixt murder and manslaughter hath not been heretofore much opened, or effectually stood upon, which because it is large, and of great compass in our Law, I will (God permitting me) by some cases make clear and apparent and then descend to the description of the other 
9 The definition of murder by the common law.  kinds of Homicide. Murder is when a man killeth an other feloniously upon malice fore thought, 
t Pl. Come 261.  and it is not material whether he kill him openly or secretly, or whether he that is slain be an Englishman, or of other nation, if he live in this Realm under the Queen's protection, 
u Stamf. 18.  and he can not have 
10 Malice whereof murder cometh, is showed to be twofold and diverse cases are put thereupon.  the benefit of Clergy and Sanctuary, 
x 22. H. 8. c. 1.  and there be two sorts of malice which are motives to this horrible act, namely a malice implied and a malice expressed: malice implied is when one killeth an other suddenly, without any defence on the part of the other: malice expressed, when it is known that there is malice betwixt the parties: 
a Crompt. just. P. 19  I will illustrate both these several kinds with several cases, beginning first with malice implied. A Jailer had malice to a Recusant who was in his ward, because he suspected that he was too familiar with his wife, and after the prisoner purchased to go out of prison, as he went before for his disport, and the Gaoler suddenly struck the prisoner upon the head, so that he fell to the ground, whereupon he died, and this was adjudged murder at the Assizes at Chester: 
b Cromp. Iu. P. 20.  And if a thief rob an other man, and kill him, this is murder, though he did never see the man slain before, & though he had never inveterate malice against him: yet he had malice before the murder to this intent, that he would rather kill him then be disappointed of his purpose. 
c Com. 474.  Two fought together of malice forethought, having purpose to kill, and a stranger 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 act came originally of that: 
d 22. E. 3. Co●on̄ 262. & Dyer 120.  And if the justices of Peace with the Sheriff come to suppress riotours, and one which attendeth upon them is slain by one of the rioters, this is murder in him, & in all the other rioters which are present, 
e Cromp. Iu. P. 21.  And if a man without quarrel offered do kill one of the standers by this is murder, 
f Crompt. Iu. P. 22.  proceeding from implied malice, 
g Lam. Eirenarch. 255.  Thus far of malice implied: malice expressed may more easily appear unto you, as if a man bring an appeal of felony against B. and the said B. meeteth the plaintiff and they quarrel together upon the using of the said appeal, and fight, and B. killeth the plaintiff, this seemeth to be murder. 
h Cromp. Iu. P. 21.  and if a man be attainted of murder he shall suffer pain of death, and 
11 The punishment of murder by the common law.  shall sorfaite lands and goods and chattels: but manslaughter as it is in fact less heinous, so it is 
12 The description of manslaughter by the common law.  in punishment less grievous: for it is then committed when two or more fight together upon the sudden without malice precedent, and the one of them killeth the other, in such case 
13 The punishment of manslaughter by the common law.  the offender shall have his Clergy, 
i Cromp. I. P. 23. Com. 261.  but shall forfeit his goods, and if two do fight together without malice precedent, and after diverse blows given, the one of them flieth a great space from the other, and the other goeth into a house very near for a weapon, and pursueth incontinent, and killeth him that flieth, this is but manslaughter, because it was done in a continuing fury, 
k Crompt. just. P. 23.  and two did fight together upon the sudden without malice preconceived, and one cometh to part them, and the one of them, which fighteth killeth him, this is manslaughter in him, because the fight was an unlawful act: 
l 22. Ass. Coron. 180.  but if they had fought together Ex malitia precogitata, and the one of them had slain him, this had been felony in them both. 
m (22. E. 3. Coro. 266. Stanf. 16  Manslaughter se defendendo is, where 
14 Manslaughter se defendendo by the common law.  two fight together upon the sudden, and before a mortal wound on either party, the one flieth unto the wall, or to some other place, beyond which he cannot pass, for the safeguard of his life, and the other pursueth him, and he which flieth killeth him that pursueth, this is manslaughter in his own defence, 
n 3. E. 3. Coro. 284. & 286.  and it is not material in this case which of them begun the affray, or which of them gave the first stroke 
o Stamf. 15. , and the offendor in this case shall forfeit his goods 
p 4. H. 7. 2. 43. Assis. pl. 3. 21. E. 3. 17. , homicide by misadventure is no other 
16. Homicide by misadventure.  than hath been described by Codign. for he hath recited out of the Civil law almost all the cases which we read in our lawbookes: and his distinction likewise is of force and effect with us: for if a man do an unlawful act, and any misadventure 
17. The punishment of it.  do happen upon it, by which a man is slain, this is felony though it be not murder: and for every homicide by mischance a man shall forfeit his goods 
q 22. Assis. cor. 180. Stamf. li. 1. c. 8. , likewise he that is a homicide 
18. Homicide of a man's self and the punishment of it.  of himself, is such as hath been before discovered by Codicgnostes, and he by our Law shall forfeit his goods 
r Fitz. Coron. 301. 362. 426. .  Nomomath. 
I pray you let me know this Codicgnostes, 
2. Division.  whether he that counseleth, commandeth, abetteth or assisteth a murderer, aught by yvor law to be taken and censured as a murderer?  Codicgn. 
Yes verily, for homicide is either 
1. Homicide is showed to be twofold in the Civil law, consili●, and operis.  consilij or operis, and therefore if a man counsel one to do a murder, who if the counsel had not been would have done it, he that executeth the counsel, and he that giveth the counsel, are both in the eye of Law murderers 
s c. sicut dignum 1. §. qui verò de homicide. Extra & cap. fin. eo. tit. lib. 6. & l. qui servo. ff. de furt. etc. Nullus ex consilio de regal. iur. in sexto. . But when it is done by commandment by persons executing the commandment, which otherwise would not have done it, than the commander only is accounted guilty of homicide 
t l. 3. §. item versi. item qui author. ff. ad leg. Corn. de sica● cap. fi. de homici. lib. 6. l. In hoc judicio. ff. de seru. corrupt. , and if one lend one a sword to kill an other man or himself, he is guilty of homicide 
u l. nihil interest. ff. ad leg. Corn. de sicar: l. 15. qui opem. ff. de furt: & in §. interdum quoque justi. de oblige. quae ex quas. delic. nascuntur. , & if a man be cooperant in the act, he is a principal offendor 
x Gloss: c. sicut l. dignum §. illi vero verb: mors de Homic: extra. .  Anglonomoph. 
By our Law the counsellor, commandor, 
2. By the Common law the counsellor and assistor in murder are accounted principal offenders.  or assistor are without any such difference or limitation as you have made, guilty of homicide, & principal offenders: for all that be present, aiding, abetting or comforting him that doth murder, are principal offenders though they give no stroke, for the stroke of him that smiteth & woundeth is the wounding, and striking of all the others in law 
a 4. H. 7. 18. Comm. 100 3. E. 3. Coro. 309 13. H. 7. 10. : & therefore they which come in the assembly or company of others into any place where any evil is done, be it homicide, robbery, or any other misdemeanour, shall be held principal offenders though they stand apart, & do nothing 
b 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 confederate, they shall be punished by fine, and no otherwise 
c 8. E. 2. Cor. 395. & 293. , but if they levy hue & cry & stretch out their hands to take the offenders they shall not be fined 
d Stamf. 40. , and he which is within age shall not be fined in such case 
e 14. H. 7. 31. .  Nomom. 
I pray ye show me whether they that 
3. Division.  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.  Codicgn. 
They may as well think that there be 
1. Homicide by witchcraft is described.  no devils, surely Europe is too full of such wicked wretches, which either by magical arts calling up damned spirits, or corrupting the elements, which God hath made for the use of this life, do work the destruction of many innocent persons, or else by acquainting themselves with familiar devils do effect the like mischief, & their judgement in 
2. The punishment of witches, and magicians by the Civil law.  our law, because they are such strangers to nature, is, quòd feralis bestia eos absumat 
f l. multi. C. de malefic. & mathem. , & such as by Images of wax enchanted do cause the death of any man, if they be convicted & do confess the fault they are punished as is before said, but if they will not confess their flesh is torn from the bone with nails & with hooks 
g l. si excepta § si quis C. de malefic. , & not only witches, but 
3. They that have asked counsel of witches have been in ancient time punished.  even such as have asked counsel of witches for the remedy of diseases, have been in former times punished. For Ammianus reporteth that in the time of the sons of Constantine, & the other Emperors, which next succeeded than, if any man did wear about his neck any thing as a remedy of the fever quartain, or any other infirmity, he was punished capitally as accessary to witchcraft 
h Ammian. Marcellin. lib. 19 : & he telleth in an other place that a certain simple old woman, because she was wont to cure fevers by a kind of enchantment was put to death as guilty of witchcraft: and a young man in the bath putting his hands sometime to a marble stone, and sometime to his breast, and rehearsing withal, certain letters of the Alphabet, imagining this to be a good remedy against the pain of the stomach, was put to death by the sword 
i Ammian. lib. 29. .  Nomom. 
The Romans it seemeth were in this, strangely opinionated: for the Grecians & others did approve such medicines. Pericles did hold that diseases might be cured by hanging certain written books about the neck of the diseased 
k Plutar. in Pe●ic. . And Bion the Atheist was of the same opinion 
l Diogen. Laert. in vit. B●on. , the Indians (as Strabo testifieth) do account this the only Physic 
m Strabo lib. 15. , and Vallesius reporteth that charms have been called remedies of Cato, Varro, Theophrastus, Serenus, Trallianus and of many Physicians of Italy, Greece, and Arabia 
n Valles. lib. de sa. philos. . And Ulpian showeth that many have affirmed unto him, that such charms & enchantments have done them good 
o l. 1. §. Medicos, ff. de extr. cogn. , and we know that there was a kind of exorcism 
4. An objection is made of exorcism used in the church.  and we know that there was a kind of exorcism or conjuration used in the Church, whereby the devils were restrained from doing hurt unto men 
p l. 6. C. de Ep: & cler. Alciat. lib. 2. parerg. c. 23. , and josephus saith, that this was salomon's invention 
q joseph. lib. 8. antiquit. , wherefore me thinks they that use such things, or work any good effect by such things, should in no sort be punished. For (as Apuleius saith) Nihil quod salutis causa fit, criminosum est 
r Apulei. apolog. 1. .  Canonolog. 
It may be that Codicgnostes had rather believe the censures of Roman magistrates in matters of justice, than the opinions of Roman and Grecian Philosophers in table talk and common speech. I know by good authority these things are condemned, and therefore it is said of such men and their medicines in the Canon. Quae alij scelera, isti remedia nominant 
s c. Illud quod 26. q. 2. : And Tacitus clearly affirmeth that such things medicorum disciplina condemnat 
t Tacit. lib. 1. histor. : And Plutarch calleth such practices Insanias 
u Plutarch. in pericls. : and if Lucian be of any authority with you, he saith, Per verbula & incantationes sanitatem operari non credo 
x Lucian. in Philopseud. . Pliny likewise speaketh to the same purpose in these words: Maximae quaestionis & semper incertae est, valeantur aliquid verba & incantamenta carminum in medendo: sed viritim sapientissimi cuiusque respuit fides 
a Plini. lib. 28. c. 2. : As for these exorcisms heretofore used in the Church, Bodinus teacheth that the Prophets never used in their times any such matter 
b Bodin. lib. 3. daemon. , and he 
5. Answer is made to the aforesaid objection according to the opinion of Bodmus.  saith further, that the primitive Church never used them, and he disalloweth the testimony of josephus and disproveth it in this point: but sithence the matter is so doubtful, I do not think that the lawmaker ought to punish the using and applying of charms or such things, which are for that purpose hanged about the neck of the sick body, if they be innocently done and without mixture of magic or evil art, with death: but it principally appertaineth to divines and preachers to extirpate such superstitions out of the hearts of men, and to teach them that it is irreligious and against the glory of God, to go for remedy to such dumb things and not to God himself, and that false is that saying of Apuleius, Nihil quod salutis causa fit criminosum est: for there is nothing subject to the use of man so good, but it may be abused: yet surely the Laws ought not to extend their leveritie against this last recited fault, if no greater fault be joined with it.  Nomomath. 
I am reasonably taught for this matter: but I pray you show me whether witches have any such power as hath been before spoken of.  Codicgn. 
Doubtless they have and that may be 
6. The great and strange power of witchcraft.  proved by innumerable authorities. Virgil saith that they have this power: Sistere aquam flwijs, & vertere sydera retrò 
c Virgil. 4. Aenedi. . And again, Carmina vel coelo possunt deducere lunam 
d Virgil. in Pharm. : and Claudian affirmeth the like, Thessalidas patrijs lunare venenis incestare iubar. But most fully, most deeply, & most 
7. Lucan is commended for his ample disclosing of the detestable secrets of sorcery.  exquisitely doth Lucan in his sixth book describe, and discourse of these things.  Nomomath. 
These are the frivolous imaginations of poets, which may lie for the whetstone.  Codign. 
But in many things, and doubtless in this, they do neither lie nor dally: for whereas Virgil saith, Atque satas aliò vidi traducere messes, this is no flying fancy, but the sage and grave determination of the makers of the Laws of 
8. The laws of the twelve tables do condemn witchcraft.  the twelve Tables where it is said in the old Latin, 
✿ Qui alienas fruges excantauerit quiue alienam segetem pellexerit.  Quei alienas fruces excantassit queiue alienam secetem pelexerit: and therefore vain is the surmise of Seneca when he saith of such matters, 
9 Seneca his opinion of charms and enchantments is disliked.  Rudis adhûc antiquitas & attrahi imbres cantibus, & repelli credebat: quorum nihil fieri posse tam palam est, ut huius rei causa nullius Philosophi sohola intranda sit 
e Senec. lib. 4: naturali question. c. 7. . Whom S. Augustine doth judicially 
10. S. Augustine confuteth the opinion of Seneca.  confute in his eight book De Civitate Dei, where he absolutely affirmeth, Haec maleficia generi humano pernicio sa esse non dubium est 
f D. Augustin. lib. de Civit. dei 8. c. 19 . And 
11. It is likewise disproved by Pausania.  Pausania a credible writer witnesseth, that he hath seen men, Qui sacris & incantamentis grandinem averterent 
g Pausan. li. 2. .  Nomom. 
If such hurt be done, it is done by the devil, & the wicked spirits his ministers, which suggest such things to silly old women, and are ready to perform them at their command: but what fault can be justly imputed to these women. 
12. Witches are proved to be apostates & in what manner they become apostates.   Canonol. 
Surely their offence is very great, for they are most abominable apostates, & workers of extreme mischief, they have denied Christ and vowed themselves to the devil, which manner of vow is done either secretly or expressly: secretly, when one witch or conjuror voweth with an other conjuror or witch, that in consideration that A. hath promised to B. that he shall do great and marvelous things, as namely that he shall know future things, & do other things, which others shall not be able to do, B. therefore repromiseth to A. that therefore he will renounce the catholic faith, that he will obstinately despise the holy Sacraments, that he will with all his strength & power worship & cleave to his master, and will give to him all kind of adoration under the form of idols: & this is called a secret protestation because it is not done to the Devil himself but to his servant 
h c. qui sme saluatore. 26. q. 2. Sum: confession: eo. tit. q. 3. & 6. & q. 10. in sin. , the other protestation is called the express protestation and it is double, either private, or solemn & public, the solemn or public is that, which is done to the devil sitting in the throne of his pride, to receive the general assemblies of all witches, conjurers and enchanters, as is very lively and wittily described by Torquato Tasso in his jerusalem etc. 
i Tasso Gierusa. liberat. Canto. 4. .  
side Pluton nel mezo, econ la destra  
Sostien lo scettro rwido, e pesante;  
Nè tanto scoglio in mar, nè rupe all pestra,  
Nè pur Calpe s'inalza, ò'l magno Atlante,  
Ch'anzi lui non paresse un picciol colle,  
Si la gran front, ele gran corna estolle.  
Horrida maestà nel fiero aspetto  
Terrore accresce, epiù superbo il rend,  
Rosseggian gli occhi, e di veneno infetto,  
Come infausta Cometa il guardo splende.  
Gl'inuolue il mento, e su l'irsuto petto  
Hispida, efolta la gran barba scende.  
E in guisa di uoragine profonda  
SH' apre la bona d'atro sangue immonda etc.  Nomomath. 
At what place and in what time is this wickedness done?  Canonolog. 
It is done in woody places, or in caves under the earth, which are far remote & distant from the places of men's conversation, such dark and shadowed groves, and corners as are very fully portraited by Lucan 
k Lucan. lib. 3. .  
Lucus erat longo nunquam violatus ab aevo  
Obscurum cingens connexis aeraramis,  
Omnisque humanis lustrata cruoribus arbos:  
Illis & volucres metuunt insistere ramis  
Et lustris recubare ferae, etc.  
In such desolate places, or in ruinated Castles this mischief is celebrated, & commonly it is done in the darkness of a most tempestuous night 
l c. Episcopi 26. q. 5. , for the Devil falling from Paradise fell into extreme darkness, and by defect of grace delighteth in darkness 
m Thom. Aquinas in tractat. 44. question. 16. artic. 1. est in tit. de daemon. , so that all the works that proceed from him are black, horrible, and full of darkness, clean contrary to the works of our Saviour Christ, which he did in the open light, for the glorifying of his father and the edifying of his Church.  Nonomath. 
Yet my assertion remaineth firm, that all the evils whereof you have before spoken, are done by the devil, and not by the witch.  Canonol. 
They are done by the witch cooperating 
13. It is proved that the bodies of witches do work with their minds in lewd enterprises.  with the devil, who will not do any such hurt without their command, for surely the bewitching of men's bodies must needs be accounted their own work. The bodies of aged persons or impure, which when they wax cankered in malice, they use their very breath and their fight being apt for contagion, and by the devil whetted for such purpose, to the vexation and destruction of others: for if they which are troubled with the disease of the eyes called Ophthalmia, do infect others that look earnestly upon them: is it any marvel that these wicked creatures having both bodies and minds in a higher degree corrupted, should work both these and greater mischiefs? but their malice doth especially exercise itself upon the weak and tender bodies of children and young women, which are most subject to the impression of the air that is infected by them as Heliodorus plainly showeth 
n Heliod. Aethiopic. lib. 3. , and that it hath been so thought in ancient time, may appear by Theocritus speaking of the remedy which was wont to be used against such witchcraft 
o Theocrit. eidyl. 6. & 7. , & again they deserve severely to be punished, not only for vowing themselves to the devil, but also for mingling themselves in the company of wicked spirits, which must needs infect their bodies and souls, and so make them apt instruments for the hurting of others.  Nomomath. 
I do not think, that, that is possible 
14. Alciate his opinion touching the meeting of witches amongst themselves, and the meeting of the the devil is urged.  to be done, which is commonly reported of witches, dwelling in several places, meeting one an other, and meeting likewise the Devil, and that opinion holdeth Alciat 
d Alciat. lib. 8. parerg: c. 22. , and some other in these days: wherefore I see no reason that they should be punished for it.  Canonolog. 
That is both true and possible, as 
15. Alciate his said opinion is confronted by the authority of Bodinus.  against Alciat, and other writers strangely conceited in this point Bodinus hath largely & learnedly disputed: Alciat denieth it to be possible, that naturally bodies, which are said to meet in places far distant, should at the naming of jesus vanish into the air, and be carried swiftly and invisibly thither, but this is possible enough: For if the Spirits cannot in a moment withdraw the sight of things, surely they can do very little: for this is many ways done, and juggelers and professors of feats can perform it, and as to the swift transporting of them to remote places, Bodinus reasoneth well; that if the Spirit of the eight Sphere of the heavens, do move a thing of so great compass and quantity in so short a space, that in one hour it passeth above a hundred times an hundred miles, why may not a wicked Spirit carry the small bodies of such Witches in the minute of an hour, the space of a hundred or two hundred miles: yet I do not think it possible which some affirm, that the bodies of such witches may pierce through a chink or riff of a wall (for the nature of the body cannot be altered) but this seemeth rather to be an illusion of the devil offered to witches: but what of this? suppose that a witch do confess unto a Magistrate, that she went in by a risse of the wall to kill a child, which she did kill, because it is not possible that the witch should pass through such a narrow crevice, shall the Magistrate therefore absolve the witch as guiltless of the child's death? Nay rather let him divide the matter, and sever that which is impossible, from that which may be, namely the passing through the riff of the wall, from the kill of the child: for it may be, that in truth the Devil brought her in at the door to kill the child, though he made it seem to her that she came in at a chink of the wall: but surely if there were no other fault in witches, than the renouncing of God and the abjuring of the Sacraments; yet this being in itself consummate apostasy, doth deserve extreme punishment, and whosoever thinketh that witches, because for the most part they be sottish, old, & doting are very easily deceived, and therefore aught to be spared, he is in a great error, for malice driveth them to desire that, which by the devils means they compass; when they have obtained it, their froward nature doth joy in it, and the devil for the most part leaveth them, before they leave him.  Nomomath. 
Indeed so it seemeth: for when they fall into the hands of justice, and be cast into close prison, the Devil commonly practiseth no more feats for than, but suffereth them to sustain the punishment of law without any intermeddling for them: but I have much wondered what should be the cause of this.  Canonolog. 
That is done for two causes. First, 
16. A double reason is alleged wherefore the devil worketh not for witches after that they be imprisoned.  because the devil seeketh nothing more desirously than the gain of their souls: for when he thinketh that the soul is wholly brought under his power, he expecteth for nothing so greedily, as the departure of the soul from the body, that he may torment the soul, which before the death of the party he doth retinere sub pacto, and he not only laboureth, but hasteneth his death as much as he can, least repentance (God is the God of mercy) do deliver the miserable caitiff out of the snare of damnation: 
q c. Nec mirum 26. q. 5. D. Augustin. lib. 3. de Trinit. 10. de civitat. 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 devil would deliver them out of prison, is because the justice of almighty God will not suffer the devil to exercise his natural power for them: for if he should permit him, God might perhaps seem to weak and shallow consciences, to have cast of the care of human affairs, and of doing justice: wherefore for his truth and glory he will not suffer it 
r D. August. d. lib. 10. de civit. dei, & Thom. Aquin. in d. tractat. 44. d. q. 5. .  Nomomath. 
You have spoken sufficiently of witches, and their lewd practices, of their punishment, and danger of their souls. Now I would have you to speak of conjuration, & necromancy, whether the practices of it are able to work such effects, as is commonly reported, and how by your law they be punishable.  Canonolog. 
This wickedness hath been in ancient 
17. That Necromancy & Magic was used in ancient time.  times practised. Suetonius in the life of Nero saith, Facto per magos sacro evocare manes tentavit 
s Sueton. in Neron: c. 34. . And Tacitus maketh mention of a certain young man misled to this naughtiness: Iwenem improvidum & facilem inanibus, ad Chaldaeorum promissa, magorum sacra, somniorum etiam interpretes impulit, tentatus ut infernas umbras carminibus eliceret 
t Tacit. lib. 2. Annal. .  Nomomath. 
I pray you tell me when there be such apparitions in the persons of the dead, whether are they devils or dead men's bodies that are so raised up.  Canonolog. 
It is an easy matter to resolve this question, but a hard matter to discourse of it: but shortly to answer it: I think they be Devils which resemble men that are dead.  Nomomath. 
Yet in the book of Ecclesiasticus 
18 A discourse of the apparition in the likeness of Samuel.  there is speech made of the body of Samuel raised by the witch of Endor 
u Ecclesiast. c. 46. .  Canonolog. 
But that book is not Canonical Scripture.  Nomomath. 
But a man may reason out of Canonical Scripture that it was no devil, which appeared to Saul in the likeness of Samuel, because the devil would not use such holy speeches as are attributed to Samuel in the first book of Samuel, which is Canonical Scripture 
x 1. Sam. c. 28. .  Canonolog. 
What marvel is that? when the devil can transform himself into an Angel of light? and so he did deliver true testimony of Christ 
a Matth. 8. Mar. 1. Luc. 4. , though to a false and evil purpose, and likewise of Paul 
b Act. 16. , but holy Samuel would not have suffered any such adoration, as is expressed in that Scripture: and therefore Tremellius and junius do rightly comment upon that place, that it is not in the power of the devil, nor of the witch his servant, to draw again into the world just men, but that it was a crafty and false pretence of the devil, to make men think, that the true worshippers of God are in his hands after their death.  Nomomath. 
You have almost made me of your opinion. But tell me Codicgnostes what punishment hath your Law ordained for Necromancers and Conjurers.  Codicgn. 
They are by our law either executed 
19 The punishment of necromancers and conjurers by the Civil law.  upon a gibbet, or thrown out to devouring beasts 
c Paulus lib. 5. tit. 23. .  Anglonomo. 
By a statute made in the fifth year of the fortunate reign of our sovereign Lady 
20▪ The punishment of Necromancers and Witches by statute.  Queen Elizabeth it is enacted that if any man do use any invocation or conjuration of evil spirits for any cause, or have used any witchcraft, inchantement, charming, & sorcery, whereby any person is slain or destroyed, this is felony in them their aiders & counsellors, & they shall lose Clergy, and Sanctuary: and if any do languish in his body by such witchcraft, enchantment or sorcery, the offendor convicted shall suffer a years imprisonment, & shall stand on the pillory in some market town in the said County where the said offence is committed, on the market day once in every quarter of that year, & this offence if it be committed the second time, is made felony 
cc 5. Elizab. c. 16. .  Canonolog. 
It is an excellent law, & worthy of 
21. The punishment of conjurers by the Canon law.  so noble a lawmaker: by our law, which stretcheth not to the taking of man's life, such offenders are shaven & made bald on the head 
d 26. q. 1. ca.▪ de benedicto. , and they wear a mitre on their heads wherein their offence is in great letters painted 
e ca episcopi. ibid. , & they are set upon a ladder whilst the people go to hear divine service 
f In d. c. Episcopi. & ca de benedicto. , and so they are cast out of the parish 
g 26. q. ca Episcopi. , & diocese 
h ca Episcopi, & ca de benedict. : and if they have any office or benefice they are deprived of it 
i Glos●. sin: in ca 1: de sorti. Extra c▪ non oportet. 26. q. 5. , & if they be of the clergy & not beneficed they are disgraded 
k Cap.: Admonendi 26. q. 7. de hear. .  Nomomath. 
You have not yet showed unto me, 
4 Division.  whether if a woman do procure a live-child to be killed in her womb, or causeth it as soon as it hath received life to be cast out of her womb being by that mean an abortive, & so is delivered of it, whether the woman in this case be guilty of Homicide or no by your laws?  Canonolog. 
Surely by our law, if any woman 
1. Homicide committed by the Canon law by procuring the untimely birth of a child if death do ensue.  without malice or evil conveyance do bring forth an abortive child which hath received life and is borne before his due time and it dieth, the woman is accounted homicida occasionaliter 
l ca: quod vero. etc. Moses 23. q: 2. & ca: si expositus. 87. Dist: .  Codicgn. 
Our law punisheth the woman whether 
2. The Civil law punisheth such offence whether the child have received life or no.  the child hath received life or no, if it be done of malice and evil meaning, for though the Physicians do make a distinction, & several degrees of that which is conceived in a woman's womb, as namely: first there must be a thing engendered: the next degree is a thing that is increased in the womb: the third degree is a thing form or delineated like to a man: the fourth, a child or infant: yet our Law punisheth undistinctly, and without difference the immature eiecting of any of these out of the womb: and the reason is for the only hope and possibility of a child that may be borne 
m l. Cicero. de paen. ff. & l. diws. ff. de extraord. crimin. gloss. in cap. si aliquis. de homicide. Extra. l. si mulierem. Ad l. Corn: de sicar: ff. , and therefore with us such things as are done for the hindering of the conception of a child are punished 
n Paulus lib. 5. sent. tit. 23. & l. 38. §. qui abortionis de paen: , & that worthily, because it is done to the injury of nature, & in contempt of the most high God, who hath said Crescite & multiplicamini, and that by no other mean, then by continual generation of mankind: howsoever there be some, of whom Victor maketh mention, which think that the woman committeth no fault in this act 
o 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 gain of money, the Law inflicteth punishment of death, if through hatred or malice, with exile for a certain time 
p d. l. Cicer. & d. l. diws. .  Anglonomoph. 
In bracton's time it seemeth that 
3. That though in bracton's time the Common law did agree with the Civil and Canon laws, in the punishing of aborti●ements yet now there is no such punishment by the Common law.  our Law did in this point somewhat nearly agree with yours: for he hath these words: Si sit aliquis qui mulierem praegnantem percusserit, vel ei venenum dederit per quod fecerit abortiwm, si puerperiuniam formatum, vel animatum fuerit, & maxim, si animatum, facit homicidium 
q Bract. lib. 2. : but now the Law is altered: for by the Law now in force, Homicide cannot be committed, unless the thing slain be in rerum natura: and therefore if a man kill an infant in his mother's womb, this is not felony, neither shall he forfeit any thing, because it cannot be certainly known, whether the infant died by the stroke or no 
r 3. Assis. pl. 2. 22. Assis. pl. 44 1. E. 3. 24. Brit. 45. .   

The fifteenth Dialogue of Theft, Burglary, and Robbery.  NOmomath. 
Time now requireth that ye should deliver your opinions of these crimes which are against the good estate of man as theft, burglary, and robbery, and because theft is either single as Petty larceny, and the sole act of taking away feloniously a man's goods: or else compounded and mixed with other wrongful acts, as when burglary and robbery are committed, therefore first I would have you to speak of the former, and after of the latter: wherefore show me first Codicgn. what is accounted petty larcenie on pilfering thievery in your law, & how it is to be punished.  Codicgn. 
I think it fittest by your favour, to declare 
1. Division.  first what theft in general is, and then to discourse of the particular kinds of it as you have proposed them.  Nomomat. 
I like your course well, I pray you therefore proceed.  Codicgn. 
Theft is thus defined in our Law: (A 
1 The definition of theft by the Civil law.  fraudulent contrectation of an other man's corporal movable goods, which is done against the will of the owner, with a mind to gain either by the things stolen, or by the possession of them, or by the use of them.) 
a ff. de paen: l. 1. in ●●:  and this word (Fraudulent) 
2 Wherefore the word (faudulent) is used in the definition of theft.  is therefore used in the definition, because if a man take away another man's goods as thinking him to be the owner that biddeth him take them, or mistaking the goods which the owner appointeth him to take, he is not in this case guilty of theft, 
b justi. vi: bon: rapt: §. ita tamen.  because neither the contrectation only, nor the fraud only doth make a thief, 
c Arg: d. l. 1. §: inde sola.  By the 
3 How petty thievery is punished by the civil law.  imperial law, if a man do steal any thing worth v. s. or about, he shallbe hanged, and if it be of a less value, than he shall be whipped, 
d c. 1. §. si quis quinque solidos de Feudis: & glos in §. & iudican: Authent: de defence. civitat. 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 second time, he is punished with the cutting off of one of his ears, or of one of his hands: and if he commit it the third time he is to be hanged, 
e Authen: sed novo iure C. de se●u: fug: & Authen: ut nul: iud: §. quia verò nos oport.  and the first time he is called fur: the second time, consuetus fur: the third time famosus fur: 
f d. Authent: sed novo iure.  and he that stealeth a sheep, a goat or a swine is less punished than he that stealeth an horse or an ox: for he may be whipped if he be of a servile condition: 
g ff. de paen: l. in servorum.  Or if he be a freeman 
4 How the stealing of things of greater value is punished by the civil Law.  he may be banished for a certain time: 
h l. 1. ff. De abigeiss.  but he that stealeth a flock, as ten sheep or four swine: or he that stealeth an horse or an ox shallbe adjudged to perpetual banishment. 
i l. 1. §. quanquam ff. eo.   Anglonomo. 
By our Law it is felony, if a man 
5 What is felony by the common law, & what is petty larceny.  steal above the value of xii. ●. but if it do not exceed the value of xii. ●. it is then petty larceny, for the which the party shall have imprisonment according to the discretion of the justices, 
k Stamf. lib. 1. c. 15. Cor. 178.  but as to the stealing of lesser or greater things which be above the value of xii. d. 
ii 22. ass. p. 39 si soit est felony, ideo cest error.  we have no difference of judgement or punishment in our law.  Nomom. 
Declare I pray you whether these that 
2. Division.  receive and favour thieves, are not guilty of theft by your laws and punishable as thieves.  Codicgn. 
Because these receivors are a lewd sort of men, without whom malefactors cannot long 
1 Receivors and thieves have the like punishment in the civil Law, but yet with many diversities and limitations.  be unknown, therefore our law inflicteth upon them and the others which commit theft the like punishment, 
l l. 1. C. de his qui latron: vel alijs crim: reos occultant:  but if a man do not receive them, but do gainsay or refuse to offer unto the trial and judgement of law such offenders, which do lurk in his grange or in his manor, if he be personally resiant, & do keep house there, he for this fact shall forfeit his grange or Manor if he have an inheritance in it, but if he have only estate for years or at will, he shallbe punished with perpetual exile: 
m l. sin: in sin: eod:  and they shall in both cases forfeit their goods, 
n l. 1. eod:  but that this matter may more clearly appear unto you, it is good to observe that if a man either keepeth the thief in his house, grange, or Manor, not knowing him to be a thief, or knowing him to have committed theft: in the first case he shall not incur the aforesaid forfeiture, unless he refuse to yield up the thief into the hand of justice, when he is pursued: 
o l. 1. eod: in vers●: vel offer. & l. requirendi, C. de se●ui● fugit:  But if the owner of the house or grange etc. do know that a thief lurketh within the precincts of his house or grange etc. then he is either a thief simply, or a thief compositive, as a robber by the hige way, or a burglarer: if he be a thief simply, he that hideth him, must sustain the same punishment that the thief himself, 
p d. l. C. de his qui latron:  which punishment is sometime weighed by the quality of the person, by the greatness of offences, & by the multitude of offences iterated as before hath been showed: but if he whom he hideth, have committed robbery, or burglary, of what estate soever he be, & though it were the first offence, both in the thief and in the favourer: yet either of them shall sustain the like punishment: 
q d. l. 1. C. de his qui latron: & l. 1. §. in pari: ff. de receptat.  but here an other distinction is to be used, for either he savoured the thief, or the theft: if he favour the theft, he shall have equal punishment with the thief, 
r l. secunda. §. non tantum ff. de incend. ruin: naufrag.  but if he favour not the theft, but only the person of the thief, than he is punishable by the same Law, but not by the same pain, for then his punishment is arbitrary, and left wholly to the discretion of the judge, 
s l. 1. in sin: ff. de receptat.  and in the very same state are they, which when they may apprehend such malefactors do either for lucre, or for part of the things stolen let them go. 
t d. l. 1. ff. eo.   Canonol. 
By our Canon law, they that are receivors of heretics are Excommunicated, and are accursed with the highest degree of malediction, and when they are dead, Christian burial is to be denied unto them, 
u ca sicut ait. de heretic. Extra.  But this is to be understood 
2 How the receivers of heretics, and other offenders are punished by the Cannon law.  of such receivors, as favour the person, but not the heresy, for they are punished by the same punishment which our Law doth appoint for the heretics themselves, 
x ca 2. de hear: lib. 6.  but in other crimes, which are not heresies, our law useth this distinction: either the receivors are publicly defamed, or not: if they be publicly defamed, they are punished as the offenders themselves are punishable by our Law, but if not publicly defamed, than they are punished with a milder punishment. 
y Gloss. in ca 1. sup: verb: receptaverit: de homic: lib. 6. ar. eor. quae habentur, in ca cum non ab homi: de iudic: in ca: tuae: de paen● & in ca fin: de furt: Extra.  
3 How receivers of felons are punished by the common law, and who be accounted receivers.   Anglonomop. 
Our law punisheth the receivors of felons, with great and rigorous severity, and without respect of the quality and circumstance of the persons: and if goods be stolen and I. S. knowing they be stolen receiveth them, in this case, though he receive the goods only, and not the fellow himself, yet he is accessary to the felony, 
a 3. E. 6. ca 24 & 27. Eliz. per Wind. justice all Ass. all Staff. Cromp. just. P. 37. Stanf. 43.  but in case of high treason there be no accessaries, but all be principal, 
b 3. H. 7. 9  But otherwise it is in case of petty treason: 
c Stamf. 40.  but in high treason as well the commanders as the assistors, abettors, and receivors knowing thereof are principal, 
d Exposit. termin: leg: sol. 4.  If a man receive one that is attainted of felony by outlawry in the same County etc. he is accessary to the felony, because the outlawry is a matter of record, of which every one ought to take notice, 
e Stamf. 96. Dyer 355.  but the Law would be otherwise if he should receive him in an other County, 
f 12. E. 2. Cor: 377.  and the reason wherefore the receivors and accessaries should be punished, as well as the principal offenders, Lucan wittily showeth in the person of one of his rebellious captains:  
Rheni mihi Caesar ad undas  
Dux erat, hic socius, facinus quos inquinat, aequat.  Nomomat. 
Now I pray you proceed and open 
3. Division.  unto me the offence of robbery, how it is in your Laws, and how it is to be punished.  Codicgn. 
Robbery is committed, when a man 
1 The description of robbery by the civil law. 2 The punishment of robbery by the said law.  by force bereaveth an other of his goods, lying in await in highways and secret paths, in woods, in heaths and in other places removed from the sight and testimony of men: for this, the offenders head shallbe cut off with a sword, and he shall sorfait his goods, and his body shall be laid upon a wheel, unto which are fastened the boughs of these trees, under which the robbery was committed, as the witnesses of the crime, 
g l. 1. C. de his qui latron: occult: & l. 1. ff. de receptato.  & he that doth wittingly & willingly receive such felons, is no less capitally punished than they. 
h d. l. 1. ff. de receipt:   Canonolo. 
This crime is so odious in our Law, 
3. The punishment of robbery by the cannon law.  that it suffereth not temples to be sanctuaries, or places of protection to such offenders. 
i c. inter alia Exit: de immu: Eccles.   Anglonomoph. 
By our law robbery is then committed, 
4. The description of robbery according to the common law.  when a man taketh any thing from the parson of an other man feloniously, though it be but of the value of a penny, yet he shallbe hanged: 
k 22. Ass. pl. 55 31. H. 6. 16.  and if a man do threaten one to deliver his purse incontinent, and if he will not that he will kill him, whereupon he delivereth it presently, this is robbery as well as that, where he taketh it from a man's person by force: 
l Stamf. 27.  and therefore the case was that two did lay hold on a man, and did make him swear upon a book that he would bring unto them xx. li. by force whereof he brought unto them xx. li. and they took it, this is robbery, for it must be intended to be done by force of the threatening and against his will, 
m 44. E. 3. 14. 4. H. 4. 3.  but where a thief taketh xl. s. from an other man by the high way, without assaulting him, and putting him in fear of losing his life, this is not robbery, but he shall be put to his Clergy. 
n 5. Eliz. 224. Dyer.   Nomomat. 
Now I would know somewhat of the offence which is commonly called Burglary, or breaking of houses in the night time, and stealing things out of them, and how it is to be punished. 
4. Division.   Codicgn. 
They which break into any man's house in the night time with purpose to kill, if any 
1. W●at kind of housebreach is capital in the civil law.  man be within the house that will resist their violence, are accounted in our Law famous thieves and are punished capitally. 
o l. Capitalli● §. Famosos ff. de poenis.   Anglonomoph. 
Burglary is where any man in 
2. The definition of burglary by the common law.  time of peace, and in the night time, doth break any dwelling house, church, walls, towers, or gates to commit felony there, and he entereth, though he carry nothing away, yet this is burglary and the offendor shall be hanged. 
p 22. Ass. pl. 95 & 39 Stam. 30 Brit. 17. Dy. 99 18. Eliz. c. 6.   Nomom. 
I give ye great thanks for your pains bestowed in the clering of these doubts, which I moved unto you: I will not trouble you further in these matters; accounting myself for your travail so long continued, to be greatly beholden, and very much bound in all dutiful kindness unto ye.  
FINIS.   

A Table of the Sections, or Divisions of the principal points, matters, and questions, which are handled in every Dialogue.  

The Divisions, and principal contents of the first Dialogue, of Contracts.  
The first Division. 1 THE ground of contracts. 2. The contracts of infants, persons distracted of their wits, and religious persons, whether and how far forth they be good: 3. Monks are absolutely prohibited by the civil law to make any contract: infants are disabled with a certain qualification: 4. That by the common law prior's under the obedience of a sovereign, and which were datife and removerable, could not implead or be impleaded without their sovereign, unless it were by special custom. 5. The same law was of the Knights of S. john of jerusalem. 6. The infant's contract for his meat, apparel, and necessaries is good, if he be of the age of fourteen years. 7. That which the infant doth without actual livery, may be avoided by action with out entry or seizure, but that which he doth by actual livery, cannot be avoided without entry or seizure.  
The 2. Division. 1. Whether the contract of the servant, shall be accounted in law the contract of the master. 2. That according to the common law the master shall be bound by the contract of a known servant, if the thing marchandised be come to his use, and he shall be bound by the contract of his factor, though the goods never come to his possession. 3. The act of a man's attorney or his general receiver, doth not bind the master without special warrant.  
The 3. Division. 1. Whether the wife's contract made in the behalf of the husband, will bind the husband. 2. That by the common law, an action of debt brought upon a contract made by the wife for the behoof of the husband, must be brought only against the husband without naming the wife. 3. That by the civil law the husband is in no sort to be charged by the contract of his wife.  
The 4. Division. 1. How contracts may stand or fall by their material causes, o● the defect of them.  
The 5. Division. 1. Some contracts are ordered by the law of nations. 2. An Ambassador may according to the Civil law be impleaded by the law of nations for a contract made whilst he is Ambassador.  
The 6. Division. 1. Whether contracts made with Pirates, or robbers in the high way be good in law. 2. That Pirates and robbers are not to have advantage of law in matters of contract. 3. That D. Hotoman erreth greatly, in maintaining that pirates and robbers may lawfully contract.  
The 7. Division. 1. That by the Common law a consideration is the proper material cause of a contract, and that it may be expressed or implied. 2. That a contract is not good without money paid in hand, or a certain day limited for the payment.  
The 8. Division. 1. Whether the defect of form do destroy the contract. 2. That solemnity, and concurrence of circumstances is required in contracts by the Civil law. 3. That matrimonial contracts if there be no assumpsit in them, are to be divided by the ecclesiastical law, if there be an assumpsit by the Common law.   

The divisions and principal contents of the second Dialogue, of gifts, and grants.  
The first Division. 1. WHat things may be given or granted. 1. That all things that lie in commerce, and may be received, may be given. 3. That things ecclesiastical, though they be not consecrate, cannot regularly be granted. 4. That if an Abbott did alien lands given in Frankalmoigne to his house, the donor might have a writ contra formam collationis.  
The 2. Division. 1. The diverse kinds of gifts some being free, and some compensatorie. 2. What is wrought by the Queen's grant ex mero motu. 3. What is wrought by her majesties grant by of informamur, etc. 4. Whether upon a false considelation expressed an use shall be raised in a common persons case. 5. That a consideration may be averred, which is not repugnant to the use expressed. 6. That an use may be altered by a consideration not valuable.  
The 3. Division. 1. In what cases grants shall be taken most beneficially for the grauntee. 2. That a grant noncertaine must be taken most strongly against the grauntor. 3. That a grant may be good in part, and for parcel not. 4. How the Queen's grants and licences shall be construed and interpreted. 5. A grant is not to be favoured contrary to the manifest sense of the words.  
The 4. Division. 1. That by the Common law a grant that is not good at the first, may not be made good by matter ex post facto, nor by the Civil law.  
The 5. Division. 1. Whether a tenant at will may grant over his estate. 2. That the estate of the tenant at will is in manner no estate.   

The Divisions and principal contents of the third Dialogue of bargains and sales.  
The first Division. 1. WHat things are forbidden to be sold. 2. That by the Cannon law things consecrate, and religious, may not be sold. 3. That poisons by the Civil law are forbidden to be sold. 3. That there be some poisons, which be medicinable and profitable, and the prohibition extendeth not to these. 5. That some poisons are medicinable alone, some with the mixture of other things. 6. What things are forbidden to be sold by the Common law.  
The 2. Division. 1. Where a thing was not sold at the first: and where it was sold, but the sale was defeasible upon condition. 2. A difference betwixt a perfect sale, and a sale to be perfected upon a condition performed. 3. That a proviso though it be placed amongst covenants, may defeat a bargain and sale. 4. That where a bargain and sale is perfect, but defeasible upon condition, the vendee shall take the profits till the condition be performed.  
The 3. Division. 1. When no day is limited for the payment of a sum of money what time the law will require. 2. In such case the party charged with the payment, shall by the civil law have threescore days. 3. That by the common law when no day is limited, the money is presently due, yet in some cases by some authority the discretion of the judges is to limit a time. 4. The definition of time according to the opinion of Aristotle.  
The 4. Division. 1. That a bargain and sale may be avoided by the defect of some substantial thing belonging to the act. 2. That fraud and deceit in the contract by the civil law doth defeat the contract. 3. A difference where the default of the thing sold is Latens or Patens. 4. That whether the default be Latens or Patens, if the bargainor do warrant the thing sold to be without fault, he is bound by the warranty by the civil law. 5. That bargains and sales, matters in writing and obligatory, may be avoided by alleging that they were made or done per minas, or by duresse. 6. That by the common law a warranty made upon a bargain and sale doth bind, otherwise it is, if the warranty be made after the bargain be concluded. 7. That the warranting of a thing which is evident to the sense, is no cause to bring a writ of deceit by the common law.  
The 5. Division. 1. That by the common law the bargain and sale, or the grant of the profits of land is the grant of the land itself. 2. That by the civil law a man may grant and demise the use of a thing, and yet not grant the thing itself.  
The 6. Division. 1. When a man selleth land wherein treasure is hidden, and the vendor knoweth not of it, whether the vendee shall have the treasure. 2. How this word (treasure) is taken in the civil law. 3. That by the civil law money and other things necessary to the common use of this life are forbidden to be hidden and buried in the ground. 4. Plato his superstitious opinion of things hidden in the earth. 5. How the civil law doth order and dispose of treasure. 6. What the common law doth determine of treasure.   

The divisions and principal contents of the fourth Dialogue, of signories, and services.  
The first Division. 1. THe description of a signory by the civil law. 2. By the Canon law. 3. Likewise by the common law.  
The 2. Division. 1. What homage is, and how it is to be performed by the common law. 2. That homage hath been practised in ancient time.  
The 3. Division. 1. What a Manor is, and whereof it consisteth. 2. The original of a Manor.  
The 4. Division. 1. Statutes made for the preservation of signories and Manors.  
The 5. Division. 1. Fealty is the most general service in the common law. 2. In the civil law. 3. That by the civil law, the common law, and the Canon law, a religious man ought to do fealty.  
The 6. Division. 1. The diverse kinds of services in the civil law, and their definitions. 2. The divers kinds of services in the common law, and their definitions. 3. The original of villeinage, and the nature thereof. 4. The tenure whereby a man holdeth of an honour or manor is described, and by examples illustrated. 5. Certain honours which be not of the ancientness of the Crown. 6. Some honours, which be annexed to the Crown.  
The 7. Division. 1. Whether one within age be compellable by law to do all manner of service either by himself, or some other. 2. A diversity in the Civil law whether the father of such an infant died in a just war, or at home in his bed. 3. That by the Common law the infant shall be in ward if his father died seized of land held by Knight's service, without any such diversity. 4. A diversity in the Common law where the heir of the tenant by knights service is within age, and a Knight at the time of his father's death, and where not.  
The 8. Division. 1. What penalties lie upon the tenant if he do not his service. 2. Many causes of the tenants forfeiture in the Civil law. 3. Some causes of forfeiture by the Common law.  
The 9 Division. 1. Whether when the tenant hath committed felony or treason, and is attainted, he shall suffer any prejudice in his tenauncie. 2. A diversity in the Civil law, where the offence is committed against the person of the lord, and where against the person of a stranger, 3. That by the Common law by the attainder of felony or treason, the blood is corrupted, and in the one case the land shall eschet to the King, in the other to the immediate Lord. 4. The aforesaid determinations and conclusions of Civil and Common law touching the forfeiture of the offendorare examined by the law of God.   

The Divisions and Principal contents of the fifth Dialogue, of jointenancy, and tenauncie in common.  
The first Division. 1. THat jointenaunts, and tenants in common aught to have equal profit. 2. That by the Common law a writ of account will lie if one joint-tenant take all the profits.  
The 2. Division. 1. That jointenancy is dissolved by death, unless there be some clause in the creation of the estate to the contrary.  
The 3. Division. 1. That by the Civil law by the joint gift of all the goods of a man, all corporal things pass. 2. That by the Common law if a man devise the third part of his goods to his wife, it shall so be rated as they were at the time of the death of the testator.▪ That the Queen may grant a thing in action.  
The 4. Division. 1. That jointenancy by the Civil law, may be of all such things as lie in contract. 2. That the limitation of tenauncie in common is by the party, but the construction of it by the law.  
The 5. Division. 1. That an assignee of a moiety in the Civil law is bound by the covenant of his grauntor. 2. That by the Common law in such case the assignee is bound by the covenant.   

The Divisions and principal contents of the sixth Dialogue of exchanges.  
The first Division. 1. THat by the Civil law contracts for a certain price are not exchanges, 2. That by the Common law the word excambium must be used in the exchange. 3. That the estates must be equal. 4. That the things exchanged must be in esse. 5. That an exchange is good, though one part of it do enure by way of extinguishment.  
The 2. Division. 1. That the incumbents may not exchange their benefices by the Cannon law. 2. That the Chapter may warrant permutations seed vacant in such benefices, wherein they have interest or authority. 3. That by the Common law, ecclesiastical persons, their patrons and ordinaries joining together, cannot make any good exchange of ecclesiastical benefices. 4. That the statute of mortmain is most strict, and pregnant in words.   

The Divisions and principal contents of the seventh Dialogue, of Devises and Legacies.  
The first Division. 1. THe antiquity of wills. 2. Plato his exception against Solon's law concerning wills. 3. Solon's law is maintained and defended against Plato.  
The 2. Division. 1. Such as be uncapable of inheritances and goods, may not be devisees, heirs, or executors by the civil law. 2. A difference in the civil law betwixt the making of a devisee, and the making of an executor. 3. That by the Common law all persons to whom a grant may be made, a devise may be made unless it otherwise happen in some few cases. 4. That the devisee, must be a person capaple of the thing devised. 5. That by the common law the devisee ought to be capable at the time of the death of the devisor.  
The 3. Division. 1. That by the civil law all such things may be devised as the testator hath in his own right at the time of the devise. 2. The three degrees of a testament by the common law. 3. A difference in the common law where a man deviseth a thing whereof he is not seized, particularly and by name, and where not. 4. That things, which are not in esse at the time of the devise made, may be devised. 5. That the devise of tenant for life, or tenant in dower of the corn growing at the time of their death is good. 6. That when the party hath a certain, and lawful interest in a thing, ●e may lease it, grant it, or devise it before the existence of it. 7. That a devise may be uncertain, but yet good in law, because it may by special mean be reduced to certainty.  
The 4. Division. 1. That by the Civil law Ius accerscendi taketh effect in legacies. 2. Whether when the sixth part of a thing is devised, the heir or executor is compellable by the civil law to divide it, or to render in value. 3.▪ That by the common law sometime there may be a severance of the thing devised: sometimes of the profits or of the advantage of the thing.  
The 5. Division. 1. That if a man devise a plot of ground, whereupon a house is built, the house also passeth. 2. A house built upon land entailed after the gift shall be recovered in a Formedon.  
The 6. Division. 1. That by the Civil law, when an especialty containing a debt is devised to one, the debt itself passeth. 2. Master Parkins his opinion touching the devising of an Obligation is examined.  
The 7. Division. 1. That by the Civil law the executor is bound to make good the thing, which perisheth through his default. 2. That in some cases the time of performing legacies is left to the discretion of the judges. 3. That by the Common law the executors are bound to perform the devise in convenient time. 4. A diversity betwixt an obligee, and a devisee.  
The 8. Division. 1. That things which are accessory do pass with their principal. 2. That a mine of coal passeth with the land if it be jointly used with it, otherwise it is if it be severally used. 3. That a woman shall be endowed of a mine of coal discovered after the husband's death. 4. That words of the Present tense in a devise may not be extended to the Future tense.  
The 9 Division. 1. That by the Civil law if the devisee of a term die before the devisor, the executor shall have the term. 2. By the Common law a diversity is taken where the devisee dieth in the life of the devisor, and where after his death, but before the legacy executed.  
The 10. Division. 1. That by the Civil law, when a thing is devised to God or to Christ, it shall go to the Church of the parish, where the testator dwelled. 2. That by the Common law and by the statute of 23. H. 8. such devise is void. 3. What is meant by a Church parochial according to Rolfes opinion.  
The 11. Division. 1. That by the Civil law where two testaments contain in them several sums, that which containeth the lesser shall stand, but by the Common law the latter testament.  
The 12. Division. 1. That by the Civil law if an ox be devised to one & he die, the skin is not due to the devisee. 2. That by the Common law it seemeth to be due, otherwise it had been if there had been an exception of the hide.  
The 13. Division. 1. That if the reconusor devise all his goods to the recognizee, yet he shall have execution of the land. 2. If the obligee make the obligor his executor, the debt is extinct.  
The 14. Division. 1. That by the Civil law if a man ordain by his will that his daughters shall marry by the appointment of Titius, that Titius his executor may dispose of this marriage. 2. that by the Common law, where a confidence is reposed in certain persons it is incommunicable to others.  
The 15. Division. 1. That by the Civil law devices are construed for the most part most favourably for the devisee. 2. That the Common law so favoureth devices that it upholdeth equity, & the corespondencie of reason. 3. That the Common law frustrateth these devices which are repugnant to Law.  
The 16. Division. 1. That by the Canon law, if land be devised to a woman whilst she shall live chastened, her marriage is not implicatively and absolutely prohibited. 2. That the Civil law and Common law do favour marriage.  
The 17. Division. 1. That there is a diversity in the Civil law, where a man maketh his wife usufructuarian of his goods, & where he deviseth them to her. 2▪ That by the Common law the administration of the goods and chattels of the testator doth appertain only to the executor.  
The 18. Division. 1. That by the Civil law the husband may demand a legacy due to the wife without naming the wife. 2. That in the Common law there is a diversity, as touching bringing of actions in the wife's name where the matter of the writ is real, & where it is personal. 3. That where the wrong doth immediately concern the person of the wife, the wife of necessity must be named.  
The 19 Division. 1. That by the Civil law when maintenance is devised to one till ripeness of age, is intended of full age. 2. The diversity of ages by the Common law.  
The 20. Division. 1. That by the civil law, when a mansion house that is in one parish is devised, the appurtenances in another parish do pass by the devise. 2. That by the Common law land cannot be appurtenant to land.   

The Divisions and principal contents of the eight Dialogue, of Borrowing, and Lending.  
The first Division. 1. THe difference in the Civil law betwixt mutuum and commodatum.  
The 2. Division. 1. That particular persons, corporations, & churches parochial may be bound by contract of borrowing and lending by the Civil law. 2. That by the Common law Abbots, Priors, and such religious persons might charge their house by their contract, and by recognisans.  
The 3. Division. 1. Two kinds of borrowing & lending by the Civil law, natural & civil. 2. That the Common law acknowledgeth this difference in substance, & effect.  
The 4. Division. 1. An usurous lending or lending of money for interest is by way of objection maintained. 2. Aquinas his authority is urged for proof hereof. 3. The objection is answered by the Canonist. 4. Aquinas his authority disproved. 5. The Civil law in condemneth usury agreeth with the Canon. 6. The Common law in this agreeth with the other laws.  
The 5. Division. 1. A diversity in the Civil law when money is tendered at the day of payment & is after embased, & when it is tendered after. 2. To the aforesaid diversity the Common law seemeth to agree.  
The 6. Division. 1. That by the bond of the surety the principal debtor is not discharged by the Civil law. 2. That by the Common law as well the one, as the other may be sued.   

The Divisions and principal contents of the ninth Dialogue, of the baylement, and delivery of goods, and chattels.  
Hhe first Division. 1. THe definition of depositum by the Civil law. 2. The nature & course of it at the Common law. 3. A diversity where a writ of account of detinue, and of trespass are to be brought concerning things delivered at the Common law.  
The 2. Division. 1. That a thing cannot be said to be a depositum at the Civil law, except it be delivered to the party. 2. That by the Canon law the feoffee of the land is to have the charters when the feoffment is without warranty.  
The 3. Division. 1. That the bailie is not to be charged with the loss of the goods, which happeneth merely by casualty.   

The Divisions and principal contents of the tenth Dialogue, of the form and manner of ordinary proceeding in matters of Law.  
The first Division. 1. THe things which are to be observed of the plaintiff at the beginning of a suit by the Civil law. 2. Citation is proved to be of the substance of the proceeding, contrary to the opinion of some Civilians. 3. The cautels to be observed at the Common law in the commencement of an action. 4. Disablements in the person of the plaintiff at the Common law. 5. The statute of 23. of H. 8. of giving damages to the defendant, is compared with the rule of the Civil law. 6. Suit must not be maintained before an incompetent judge according to the Common law. 7. The several jurisdiction of diverse Courts is described. 8. That the summons of the party defendant is necessarily exacted by the Common law. 9 That by the default of lawful summons the proceeding of the plaintiff is frustrate by the Common law.  
The 2. Division. 1. That by the Civil law if a man be bound to appear within 10. days, the tenth day is taken inclusive. 2. That the first day and fourth day of appearance are all one by the Common law.  
The 3. Division. 1. A diversity of opening and prosecuting of private, and public offences at the Common law. 2. Exception is taken to informations used by common informers. 3. Many objections are made out of the Civil law against common informers. 4. Punishments ordained by diverse Emperors against common informers. 5. Codicgnostes is charged by Anglonomophylax to mistake the point in question. 6. He is likewise charged to mistake the Civil law in this point. 7. The statute of 18. of our sovereign Lady the Queen is compared with the edicts of Emperors. 8. Codicgnostes his surmise that informations were not used in the best times of the Romans, is answered and confuted. 9 It is showed likewise that informations are expedient for the administration of justice.  
The 4. Division. 1. defaults are dispensed withal by the Civil law, when they happen by the act of God.  
The 5. Division. 1. The most common action in the Civil law is actio iniuriarum, which is either Civilis or praetoria. 2. Actions and inditements at the Common law are compared with civil and praetorian actions.  
The 6. Division. 1. The libel of an action of injuries is fully set down according to the form of the Civil law. 2. Exception is taken to the form of the libel for uncertainty. 3. The exception is approved by the Common law. 4. Exception likewise is taken to the libel for mingling things of diverse & several natures in it. 5. This exception likewise is maintained by the Common law. 6. another exception is taken for the superfluous alleging of the day & hour of the trespass done. 7. Exception also is taken for using too many words in describing the wrong. 8. Exception is taken for saying, nemini iniuriam inferendo. 9 Exception is likewise taken for using these words (animo iniurioso) being taken for a surplusage. 10. Codicgnostes answereth the exceptions. 11. Anglonomophylax particularly examineth & discusseth the exceptions. 12. Anglonomophylax excuseth & defendeth the abundance of words in declarations & libels. 13. The form of a declaration upon an action upon the case, resembling actionem iniuriarum. 14. The cutting off of delays by the Civil law. 15. The diminishing of delays by the Common law. 16. The form of a defence or bar in an action of injuries. 17. The form of a defence in an action upon the case. 18. The form of trial by the Civil law. 19 The form of trial by the Common law. 20. The form of judgement in the Civil law. 21. The form of entering judgement at the common law.  
The 7. Division. 1. That by the Civil law an action of injuries will not lie by the executor against the executor. 2. That by the Common law actio personalis moritur cum persona, unless it be in some special cases.   

The Divisions and particular contents of the Eleventh Dialogue of common Wrongs, and Trespasses.  
The first Division. 1. THe diverse kinds of injuries in the Civil law. 2. What an assault is according to the Common law. 3. That the Common law giveth an action upon the case for a slander▪  
The 2. Division. 1. That by the Civil law an action of trespass lieth for the father, husband, master, for a wrong done to the son, wife, servant. 2. That by the Common law the husband may have an action for a wrong done to his wife. 3. In what cases an action will lie for the master for a wrong done to his servant. 4. In what cases by the Common law an action will lie for the father for a wrong done to his son.  
The 3. Division. 1. How the owner shall be punished by the Civil law for a trespass done by his beasts. 2. In what case he shall not be punished though his beasts do hurt to an other man. 3. That by the Common law a man shall be punished for a trespass done by his beasts.   

The Divisions, and principal contents of the twelfth Dialogue of unlawful assemblies, riots etc.  
The first Division. 1. THe description of public force by the Civil law. 2. That in the matter of public force the Common law agreeth with the civil. 3. A difference by the Common law betwixt public force & open force. 4. The punishment of public force by the Civil law. 5. That by the Common law the counsellors & committers of force are alike punished. 6. What an unlawful assembly is by the Common law. 7. What a rout is. 8. What a riot is. 9 The punishment of the aforesaid offences by the Cannon law.  
The 2. Division. 1. The punishment of the justice not punishing such offences by the Civil law. 2. That the justices of peace by the Common law are punished for remissness of punishing others for the aforesaid faults.   

The Divisions and principal contents of the thirteenth Dialogue of Treason and Rebellion.  
The first Division. 1. THe reason is showed by Codignostes, wherefore Treason is aptly termed a fault against the dignity of man. 2. The punishment of treason in ancient times.  
The 2. Division. 1. The divers kinds of treason by the Civil law. 2. The divers kinds of treason by coining of money in the Civil law. 3. The punishments of traitors by the Civil law. 4. The several coins of foreign princes in ancient time. 5. The divers kinds of treason by the Common law. 6. How far forth this word (Ligeance) doth extend by the Common law. 7. How the Queen's enemies are to be punished by the Common law, agreeing with the law of God. 8. How enemies are punished by the Coannon law. 9 How breaking of prison is taken in the Common law. 10. How treason is committed by coining of money according to the censure of the Common law. 11. The several punishments of treasons by the Common law.   

The Divisions and principal contents of the fourteenth Dialogue of Homicide, that is murder, manslaughter etc.  
The first Division. 1. THe several kinds of Homicide by the Civil law, & first murder is described. 2. Manslaughter se defendendo by the Civil law. 3. the description of self slaughter by the Civil law. 4. A diversity of killing a man's self by the Civil law. 5. The punishment of self slaughter by the Civil law, 6. Homicide by casualty is described. 7. Anglonomoph. taketh exception to the division of Homicide by the Civil law. 8. another division of Homicide by the Civil law, the difference of kill men voluntarily & involuntarily, is showed to be ancient. 9 The definition of murder by the Common law. 10. Malice whereof murder cometh is showed to be twofold, & divers cases are put thereupon. 11. The punishment of murder by the Common law. 12. The description of manslaughter by the common law. 13. The punishment of manslaughter by the common law. 14. Manslaughter Se defendendo by the common law. 15. The punishment of manslaughter Se defendendo. 16. Homicide by misadventure. 17. The punishment of it. 18. Homicide of a man's self, & the punishment of it.  
The 2. Division. 1. Homicide is showed to be twofold in the Civil law, Consilij and Operis. 2. By the Common law the counsellor and assistor in murder are accounted principal offenders.  
The 3. Division. 1. Homicide by witchcraft is described. 2. The punishment of witches and magicians by the Civil law. 3. They that have asked counsel of witches have been in ancient time punished. 4. An objection is made of exorcism used in the Church. 5. Answer is made to the objection according to the opinion of Bodinus. 6. The great and strange power of witchcraft. 7. Lucan is commended for his ample disclosing of the detestable secret● of sorcery. 8. The laws of the twelve Tables do condemn witchcraft. 9 Seneca his opinion of charms and enchantments is disliked. 10. S. Augustine confuteth the opinion of Seneca. 11. It is likewise disproved by Pausania. 12. Witches are proved to be apostates, & in what manner they become apostates. 13. It is proved that the bodies of witches do work with their minds in lewd enterprises. 14. Alciat his opinion touching the meeting of witches amongst themselves, & the meeting of the devil is urged. 15. Alciat his said opinion is confuted by the authority of Bodinus. 16. A double reason is alleged, wherefore the devil worketh not for witches after they be imprisoned. 17. That Necromancy, and Magic was used in ancient time, 18. A discourse of the apparition in the likeness of Samuel. 19 The punishment of Necromancers, and conjurers by the Civil law. 20. The punishment of Necromancers and witches by statute. 21. The punishment of conjurers by the Cannon law.  
The 4. Division. 1. Homicide committed by the Canon law by procuring the untimely birth of a child, if death do ensue. 2. The Civil law punisheth such offence whether the child have received life or no. 3. That though in bracton's time the Common law did agree with the Civil and Canon laws in the punishment of abortivements, yet now there is no such punishment by the Common law.   

The Divisions, and principal contents of the fifteenth Dialogue of theft, etc.  
The first Division. 1. THe division of theft by the Civil law. 2. Wherefore the word fraudulent is used in the definition of theft. 3. How petty theefery is punished by the Civil law. 4. How the stealing of things of greater value is punished by the Civil law. 5. What is felony by the Canon law and what petite larceny.  
The 2. Division. 1. Receivors and thieves have the like punishment by the Civil law but yet with many diversities and limitations. 2. How the receivors of heretics and other offenders are punished by the Canon law.  
The 3. Division. 1. The description of robbery by the Civil law. 2. The punishment of robbery by the said law. 3. The punishment of robbery by the Canon law. 4. The description of robbery according to the Common law.  
The 4. Division. 1. What kind of housebreach is capital in the Civil law. 2. The definition of burglary by the Common law.   
FINIS.   

Faults escaped in the Printing.  
Faults. Page. Corrections. delitie 17. b. duty it 18. a. is memory 27. a. ignominy portarit 27. b. portavit beadesteede 41. a. bedstead will deliver them 56. a. will not deliver them hang ibid. b. thing pea 59 b. plea inde 62. b. unde ipse 67. b. ipso offerminge 69. a. offering villain 70. b. very villain this 71. b. thus the tolerable 73. a. tolerable intulatum 76. b. intitulatum ostibus 78. a. ossibus or to be decided 79. b. are to be decided purchased 92. a. purposed valeantur 94. b. valeantne queire 95. b. queive bona 96. b. bocca or impure 97. a. are impure or about 101. b. or above