¶ The first dialogue in english/ with new additions.  
  

  

✚ Here after followeth the first dialogue in english/ betwixt a Doctor of Divinity/ and a Student in the laws of England of the grounds of the said Laws/ & of conscience/ newly corrected: & eft sons imprinted with new additions  

☞ The Introduction.  
A doctor of divinity that was of great acquaintance/ & familiarity with a Student in the laws of England said thus unto him/ I have had great desire of long time to know where upon the law of England is grounded/ but because much part of the law of England is written in the french tongue. Therefore I can not through mine own study attain to the knowledge thereof: for in that tongue I am nothing expert. And because I have always found the a faithful friend to me in all my business. Therefore I am bold to come to the before any other to know thy mind what be the very grounds of the law of England as thou thinkest.  ¶ Student) 
that would ask a great leisure/ & it is also above my cunning to do it. Nevertheless that thou shalt not think that I would wilfully refuse to fulfil thy desire: I shall with good will do that in me is to satisfy thy mind/ but I pray the that thou wilt first show me somewhat of other laws that pertain most to this matter: & that Doctoures treat of how laws have begun. And then I will gladly show the as me tynketh what be the grounds of the law of England.  ¶ doctor) 
I will with good will do as thou saist: wherefore thou shalt understand that Doctors treat of four laws/ the which as me seemeth pertain most to this matter. The first is the law eternal. The second is the law of nature of reasonable creature/ the which as I have hard say is called by them that be learned in the law of England the law of reason. The third is the law of god. The fourth is the law of man. And therefore I will first treat of the law eternal.   

☞ Of the law eternal. The first chapiter.  doctor) 
like as there is in every artificer a reason of such things as are to be made by his craft/ so like ●●se it behoveth that in every governor there be a reason & afore sight in the governor of such things as shallbe ordered & done by him: to them that he hath the governance of. And for as much as almighty god is the creator & maker of all creatures/ to the which he is compared as a workman to his works. And is also the governor of all deeds and movings that be found in any creature. Therefore as the reason of the wisdom of god in asmuch as creatures be create by him hath the reason & foresight of all crafts & work that have been or shallbe/ so the reason of the wisdom of god moving all things by him made to a good end/ obtaineth the name & reason of a law/ & that is called the law eternal. And this law eternal is called the first law/ & it is well called the first/ for it was before all other laws. And all other laws be derived of it/ whereupon saint Augustin saith in his first book of free arbitrement that in temporal laws nothing is rightwise ne lawful/ but that the people have derived to them out of the law eternal. wherefore every man hath right & title to have that he hath rightwysely of the rightwise judgement of the first reason/ which is the law eternal.  ¶ Student) 
but how may this law eternal be known/ for as the Apostle written in the .v. chapiter. of his first Epistle to the Corynthies. Quesunt dernemo scit nisi spiritus dei. That is to say: no man knoweth what is in god/ but the spirit of god/ wherefore it seemeth that he openeth his mouth in to heaven that attempteth to know it.  ¶ doctor) 
this law eternal no man may know as it is in itself/ but only blessed souls that see god face to face/ but almighty god of his goodness showeth of it as much to his creatures as is necessary for them/ for else god should bind his creatures to a thing inpossible. which may in no wise be thought in him. Therefore it is to understand that three manner of ways almighty god maketh this law eternal known to his creatures reasonable. first by the light of natural reason. second by heavenly revelation. Thirdly by the order of a prince or of any other secondary governor that hath power to bind his subjects to a law. And when the law eternal or the will of god is known to his creatures reasonable by the light of natural understanding/ or by the light of natural reason/ then it is called the law of reason And when it is showed by heavenly revelation in such manner as hereafter shall appear/ then it is called the law of god. And when it is showed unto him by the order of a prince/ or of any other secundarye governor that hath power to set a law upon his subjects/ then it is called the law of man: though originally it be made of god/ for laws made by man/ that hath received thereto power of god be made by god. Therefore the said three laws: that is to say/ the law of reason/ the law of god/ & the law of man the which have several names after the manner as they be showed to man/ be called in god one law eternal. And this is the law of whom it is written. Proverbiorum octavo/ where it is said. ♣ Perme reges regnant et legum conditores justa descernunt: that is to say by me kings reign/ & makers of laws discern the troth. And this sufficeth for this time of the law eternal.   

☞ Of the law of reason/ the which by Doctoures/ is called the law of nature of reasonable creature ⸫ The ii Chapitre.  doctor) 
first it is to be understand/ that the law of nature may be considered in two manners/ that is to say generally & specially/ when it is considered generally/ then it is referred to all creatures/ aswell reasonable as unreasonable/ for all unreasonable creatures live under a certain rule to them given by nature/ necessary for them to the conservation of their being/ but of this law it is not our intent to treat at this tyme. The law of nature specially considered: which is also called the law of reason pertaineth only to creatures reasonable that is man/ which is create to the image of god. And this law ought to be kept aswell among jews & gentles/ as among christian men. And this law is always good & rightwise stirring & inclining a man to good/ & abhorring evil: & as to the ordering of the deeds of man it is preferred before the law of god. And it is written in the heart of every man teaching him what is to be done & what is to be fled. And because it is written in the heart/ therefore it may not be put away/ ne it is never changeable by no diversity of place ne tyme. And therefore against this law prescription/ statute/ nor custom may not prevail/ and if any be brought in against it they be no prescriptions statutes nor customs/ but things void & against justice. And all other laws aswell the laws of god as to the acts of men as other be grounded thereupon.  ¶ Student) 
sith the law of reason is written in the heart of every man/ as thou haste said before teaching him what is to be done & what is to be fled/ & the which thou saist may never be put out of the heart/ what needed it than to have any other law brought in to order the acts & deeds of the people.  ¶ doctor) 
though the law of reason may not be changed nor holly put away: nevertheless before the law written it was greatly let and blinded by evil customs & by many sins of the people beside the original sin/ in so much that it might hardly be discerned what was rightwise & what was unrightwise/ & what good & what evil/ wherefore it was necessary for the good order of the people to have many things added to the law of reason aswell by the Church: as by secular princes according to the manners of the country & of the people/ where such additions should be excersised. And this law of reason differeth fro the law of god in two manners/ for the law of god is given by revelation of god/ & this law is given by a natural light of understanding. And also the law of god ordereth a man of itself by a nigh way to the felicity that ever shall endure. And the law of reason ordered a man to the felicity of this life.  ¶ Student) 
but what be though things that the law of reason teacheth to be done/ & what to be fled/ I pray the show me.  ¶ doctor) 
the law of reason teacheth that good is to be loved & evil is to be fled. Also that thou shalt do to another that thou wouldest another should do to the. Also that we may do nothing against troth. Also that a man must live peacefully with other. That justice is to be done to every man: & that wrong is not to be done to any man. And also that a trespasser is worthy to be punished & such other/ of the which follow divers other secondary commandments the which be as necessary conclusions derived of the first/ as of that commandment that good is to be beloved it followeth that a man shall love his benefactor: for a benefactor in that he is a benefactor includeth in him a reason of goodness for else he ought not to be called a benefactor/ that is to say a good doer: but an evil doer. And so in that he is a benefactor/ he is to be beloved in all times/ & in all places. And this law also suffereth many things to be done/ as that it is lawful to put away force with force. And that it is lawful for every man to defend himself & his goods against an unlawful power. And this law runneth with every man's law/ & also with the law of god as to the deeds of man/ & must be always kept & observed/ and shall alway declare what ought to folo upon the general rules of the law of man/ & shall restrain them if they be in any thing contrary unto it. And here it is to be understand/ that after some men/ that law whereby all things were in common was never of the law of reason/ but only in the time of extreme necessity. For they say that the law of reason may not be changed/ but they say it is evident that the law whereby all things should be in common is changed/ wherefore they conclude that it was never the law of reason.   

☞ Of the law of god. The iii Chapitre.  doctor) 
the law of god is a certain law given by revelation to reasonable creature showing him the will of god/ willing that creature reasonable to be bound to do a thing or not to do it for obtaining of the felicity eternal. And it is said (for the optayning of the felicity eternal) to exclude the laws showed by revelation of god for the political rule of the people the which be called judicials: for a law is not properly called the law of god because it was showed by revelation of god/ but also because it directeth a man by the nearest way to the felicity ternall as been the laws of the old Testament that be called Morals/ & the law of the evangelists: the which were showed in moche more excellent manner: than the law of the old Testament was: for that was showed by the mediation of an Angel. But the law of the evangelists was showed by the mediation of our lord jesus Christ god an man/ & the law of god is alway rightwise & just/ for it is made & given after the will of god. And therefore all acts & deeds of man be called rightwise & just when they be done according to the law of god & be conformable to it. Also sometime a law made by man: is called the law of god. As when a law taketh his principal ground upon the law of god/ & is made for the declaration or conservation of the faith/ & to put away heresies/ as divers laws Cannons & also divers laws made by the common people sometime do. The which therefore are rather to be called the law of god/ them the law of man/ yet nevertheless all the laws Camnon be not the laws of god. For many of them be made only for the political rule & conversation of the people whereupon Iohn Gerson in the treatise of the spiritual life of the soul the second Lesson/ & the third cororally saith thus. all the Camnons' of Popes nor their decres be not the law of god. For many of them be made only for the political conversation of the people. And if any man will say be not all the goods of the Church spiritual For they belong to the spirituality & lead to the spiritueltie/ we answer that in the hole political conversation of the people/ there be some specially deputed & dedicated to the service of god/ the which most specially as by an excellency are called spiritual men as religious men are. And other though they walk in the way of god/ yet nevertheless because their office is most specially to be occupied about such things as pertain to the common wealth/ & to the good order of the people/ they be therefore called secular men or lay men/ nevertheless the goods of the first may no more be called spirituell/ than the goods of the other for they be things mere temporal & keeping the body as they do in the other And by like reason laws made for the political order of the Church be called many time spiritual/ or the laws of god Nevertheless it is but unproperly: & other be called Civil or the law of man. And in this point many be oft-times deceived/ & also deceive other/ the which judge though things to be spiritual/ the which all men know be things material & carnal. These be the words of Iohn Gerson in the place alleged before. Furthermore beside the law of reason & the law of man it was necessary to have the law of god for four reasons. The first because man is ordained to the end of eternal felicity the which exceedeth the proportion & faculty of man's power. Therefore it was necessary that beside the law of reason & the law of man: he should be directed to his end by a law made of god. second for asmuch as for the uncerteinte of man's judgement specially of things particular & seldom falling It happeneth oft times to follow divers judgements of divers men/ & also diversities of laws/ & therefore to the intent that a man without any doubt may know what he should do/ and what he should not do. It was necessary that he should be directed in all his deeds by a law heavenly given by god/ the which is so apparent that no man may serve fro it as is the law of god. thirdly man may only make a law of such things as he may judge upon/ & the judgement of man may not be of inward things/ but only of outward things/ & nevertheless it belongeth to perfection that a man be well ordered in both/ that is to say/ aswell inward as outward. Therefore it was necessary to have the law of god/ the which should order a man aswell of inward things as of outward things. The fourth is because as saint Augustyn saith in the first book of free arbitrement/ the law of man may not punish all offences: for if all offences should be punished/ the common wealth should be hurt as it is of contracts for it can not be avoided/ but that as long as contracts be suffered many offences shall follow thereby/ & yet they be suffered for the common wealth. And therefore that no evil should be unpunished/ it was necessary to have the law of god that should leave no evil unpunished.   

☞ Of the law of man ∴ The four Chapitre.  doctor) 
The law of man the which sometime is called the law positive is derived by reason as a thing which is necessarily & probably following of the law of reason/ & of the law of god. And that is called probable that appeareth to many & specially to wise men to be true. And therefore in every law positive well made is somewhat of the law of reason/ & of the law of god: & to discern the law of god & the law of reason fro the law positive is very hard/ & though it be hard yet it is much necessary in every moral doctrine/ & in all laws made for the common wealth. And that the law of man be just & rightwise/ two things be necessary/ that is to say/ wisdom & authority. wisdom that he may judge after reason/ what is to be done for the commonalty/ and what is expedient for a peaceable conversation/ & necessary sustentation of them. Authority that he have authority to make laws. For the law is named of Ligare: that is to say/ to bind. But the sentence of a wise man doth not bind the commonalty/ if he have no rule over them. Also to every good law be required these properties: that is to say that it be honest/ rightwise/ possible in itself/ & after the custom of the country/ convenient for the place & time/ necessary/ profitable/ & also manifest that it be not capacious by any dark sentence ne mixed with any private wealth/ but all made for the common wealth. And after saint Bryget in the fourth book in the. C. xxix. chapiter/ every good law is ordained to the health of the soul & to the fulfilling of the laws of god: & to induce the people to fly evil desires & to do good warkis. Also as the cardinal of Camer written what so ever is rightwise in the law of man is rightwise in the law of god/ for every man's law must be consonant to the law of god. And therefore the laws of princes/ the commandments of prelate's/ the statutes of commynalties/ ne yet the ordinance of the Church is not rightwise nor obligatory/ but it be consonant to the law of god. And of such a law of man that is consonant to the law of god/ it appeareth who hath right to lands & goods/ & who not: for what so ever a man hath by such laws of man he hath rightwyslye. And what so ever is had against such laws is unrightwyslie had For laws of man not contrary to the law of god/ nor to the law of reason must be observed in the law of the soul/ and he that despiseth them despiseth god & resisteth god. And furthermore as Gracian saith because evil men fear to offend for fere of pain. Therefore it was necessary that divers pains should be ordained for divers offences/ as Physicians ordain divers remedies for several diseases. And such pains be ordained by the makers of laws after the necessity of the time/ and after the disposition of the people. And though that law that ordaineth such pains hath thereby a confermitie to the law of god: for that the law of god commandeth that the people shall take away evil from among themself/ yet they belong not so much to the law of god/ but that other pains standing the first principles might be ordained and appointed/ and therefore that is the law that is called most properly the law positive and the law of man. And the Philosopher said in the third book of his ethics/ that the intent of a maker of a law is to make the people good and to bring them to virtue. And though I have somewhat in a generality showed the whereupon the law of England is grounded. For of necessity it must be grounded of the said laws/ that is to say of the law eternal/ of the law of reason/ & of the law of god. Nevertheless I pray the show me more specially whereupon it is grounded as thou thinkest/ as thou before haste promised to do.  ¶ Student) 
I will with good will do therein that lieth in me/ for thou hast showed me a right plain & a straight way thereto. Therefore thou shalt understand that the law of England is grounded upon six principal grounds. first it is grounded on the law of reason. second on the law of god. Thirdly on divers general customs of the realm. Fourthly of divers principles that be called maxymes. fifthly on divers particular customs Sixtly on divers statutes made in parliaments by the king & by the common council of the realm/ of which grounds I shall speak by order as they be rehearsed before/ & first of the law of reason.   

☞ Of the first ground of the law of England. The .v. Chapitre.  STudent) 
The first ground of the law of England is the law of reason/ whereof thou haste treated before in the second chapiter/ the which is kept in this realm as it is in all other realms & as of necessity it must needs be as thou hast said before.  ¶ Doctor) 
But I would know what is called the law of nature after the laws of England.  ¶ Student) 
It is not used among them that be learned in the laws of England to reason what thing is commanded or prohibet by the law of nature & what not: but all the reasoning in that behalf is under this manner: as when any thing is grounded upon the law of nature: they say that reason will that such a thing be done/ & if it be ꝓhibite by the law of nature. They say it is against reason or that reason will not suffer that it be done.  ¶ doctor) 
Then I pray the show me what they that be learned in the laws of the realm hold to be commanded or prohibit by the law of nature under such terms & after such manner as is used amongst them that be learned in the said laws.  ¶ Student) 
There be put by them that be learned in the laws of England two degrees of the law of reason/ that is to say/ the law of reason primary/ & the law of reason secondary by the law of reason primary be ꝓhibite in the laws of England murder that is the death of him that is Innocent/ perjury/ disobeyed/ breaking of the peace & many other like. And by the same law also it is lawful for a man to defend him self against an unjust power so he keep dew circumstance. And also if any promise be made by man as to the body it is by the law of reason void in the laws of England. The other is called the law of secondary reason/ the which is divided in to two branches/ that is to say: in to the law of a secondary reason general/ and in to a law of secondary reason particular.  
The law of a secondary reason general is grounded & derived of that general law or general custom of property whereby goods movable & unmovable be brought in to a certain property/ so that every man may know his own thing. And by this branch be prohibited in the lawis of England disseasons/ trespass in lands & goods rescues theft unlawful with holding of another man's goods and such other. And by the same law it is a ground in the laws of England that satisfaction must be made for a trespass/ & that restitution must be made of such goods as one man hath that belong to another man/ that debts must by paid: covenants fulfulled & such other. And because disseasons/ trespass in lands and goods: theft & such other had not been known/ if the law of property had not been ordained. Therefore all things that be dirivied by reason out of the said law of property/ be called the law of reason secondary general/ for that law of property is generally kept in all our countries. The law of reason secondary particular is that law that is derived upon divers customs general & particular & of divers maxims & statutes ordained in this realm. And it is called the law of reason secondary particular because that reason in that case is derived of such a law that is only holden for law in this realm/ & in none other realm.  

♣ Addition.  ❧ doctor) 
I pray the show me some special case of such law of reason secondary particular for an example.  ¶ Student) 
There is a law in England/ which is a law of custom that if a man take a distress lawfully that he shall put it in a pound overt there to remain till he be satisfied of that he distrained for. And then thereupon may be asked this question that if the beasts die in pound for lack of meat at whose peril die they/ whether die they at the peril of him that distreyned or of him that oweth the beasts.  ¶ doctor 
If the law be as thou saist & than a man for a just cause taketh a distress & putteth it in pound overt & no law compelleth him that distreyneth to give them meat/ then it seemeth of reason that if the distress die in pound for lack of meat/ that it died at the peril of him that oweth the beasts & not of him that distrained/ for in him that distreyned there can be assigned no default/ but in the other may be assigned a default/ because the rent was unpaid.  ¶ Student) 
Thou haste given a true judgement & who hath taught the to do so/ but reason dirivied of the said general custom. And the law is so full of such secondary reasons dirivied out of the general customs & maxims of the realm that some men have affirmed that all the law of the realm is the law of reason: but that can not be proved as me seemeth as I have partly showed before & more fully will show after. And it is not much used in the laws of England to reason what law is grounded upon the law of the first reason primary/ or of the law of reason secondary/ for they be most commonly openly known of themself/ but for the knowledge of the law of reason secondary is greater difficulty/ & therefore therein dependeth much the manner & form of arguments in the laws of England. And it is to be noted that all the derivienge of reason in the laws of England proceedeth of the first principles of the law or of some thing that is derived of them. And therefore no man may right wisely judge ne groundly reason in the laws of England if he be ygnoraut in the first principles. Also all birds/ fowls/ wild beasts as beasts of forests & warren & such other be excepted by the laws of England out of the said general law & custom of ꝓpretie. For by the laws of the realm no property may be of them in any person whiles they be tame Nevertheless the eggs of Hawks/ herons/ or such other as build in the ground of any person/ be adjudged by the said laws to be long to him that oweth the ground.    

☞ Of the ii ground of the law of England. The vi Chapitre.  STudent) 
The second ground of the law of England is the law of god & therefore for punishment of them that offended against the law of god/ it is inquired in many courts in this realm/ if any hold any opinions secretly or in any other manner against the true catholical faith. And also if any general custom were directly against the law of god/ or if any statute were made directly against it/ as if it were ordained that no alms should be given for no necessity that custom & statute were void. Nevertheless the statute made in the xxiii year of king Edward the iii whereby it is ordained that no man under pain of Imprysonement shall give any alms to any valiant beggars that may well labour that they may so be compelled to labour for their living is a good statute/ for it observeth the intent of the law of god. And also by authority of this law there is a ground in the laws of England/ that he that is accursed shall maintain no action in the kings court/ except it be in very few cases so that the same excommunication be certified before the kings justices in such manner as the law of the realm hath appointed. And by the authority also of this ground/ the law of England amitteth the spiritual jurisdiction of dimes and offerings. And of all other things that of right belong unto it. And receiveth also all laws of the Church duly made and that exceed not the power of them that made them. In so much that in many cases it behoveth the kings justices to judge after the lawis of the Church.  ¶ doctor) 
How may that be that the kings justices should judge in the kings courts after the law of the Church/ for it seemeth that the Church should rather give judgement in such things as it may make lawis of them the kings justicꝭ.  ¶ Student) 
That may be done in many cases/ whereof I shall for an example put this case. If a writ of right of ward be brought of the body. etc. And the tenant confessing the tenor and the nonage of the Infant/ saith that the Infant was married in his ancestors days. &c. whereupon xii men besworne which give this verdict/ that the Infante was married in the life of his ancestor. And that the woman in the life of his ancestor sued a divorce whereupon sentence was given that they should be divorced. And that the heir appealed which hangeth yet undiscussed praying the aid of the justice to know whether the Infante in this case shallbe said married or not. In this case if the law of the Church be that the said sentence of divorce standeth in his strength & virtue until it be annulled upon the said appeal. Than the Infante at the death of his ancestor was unmarried because the first marriage was annulled by that divorce. And if the law of the Church be that the sentence of that divorce standeth not in effect till it be affirmed upon the said appeal/ then is the Infante yet married/ so that the value of his marriage can not belong unto the lord. And therefore in this case judgement condicionell shallbe given. &c. And in likewise the kings justice in many other cases shall judge after the law of the Church like as the spirituell judges must in many cases form their judgement after the kings laws.  ¶ doctor) 
How may that be that the spiritual judges should judge after the king laws. I pray the show me some certain case thereof.  ¶ Student) 
Though it be somewhat a digression fro our first purpose/ yet I will not with say thy desire/ but will with good will put the a case or two thereof/ that thou mayst the better perceive what I mean. If A. & B. have goods jointly/ & A. by his last will byqueteth his portion therein to C. and maketh the said B. his executor & died/ & C. asketh the execution of this will in the spiritual court. In this case the judges there be bound to judge that will to be void: because it is void by the lawis of the realm And in likewise if a man be outlawed/ & aft by his will bequeteth certain goods to Iohn at style/ & make his executors & die the king seizeth the goods & after giveth them again to the executors/ & after Iohn at style sueth a citation out of the spiritual court against the executors to have execution of the will/ in this case the judges of the spiritual court must judge the will to be void as the law of the realm is that it is. And yet there is no such law of forfeiture of goods by out lagarie in the spiritual law.   

☞ Of the third ground of the law of England. The vii Chapitre.  STudent) 
The third ground of the law of England standeth upon diverse general customs of old time used through all the realm: which have been accepted and approved by our sovereign lord the king and his progenitors and all their subjects. And by cause the said customs be neither against the law of god/ nor the law of reason/ & have been alway taken to be good and necessary for the common wealth of all the real me. Therefore they have obtained the strength of a law/ in so much that he that doth against them doth against justice. And these be the customs that properly be called the common law. And it shall always be determined by the justices whether there be any such general custom or not/ and not by. xii. men. And of these general customs and of certain principles that be called maxims which also take effect by the old custom of the real me/ as shall appear in the chapiter next following dependeth most part of the law of this realm. And therefore our sovereign lord the king at his coronation among other things taketh a solemn o'th'/ that he shall cause all the customs of his realm faithfully to be observed.  ¶ doctor) 
I pray the show me some of these general customs.  ¶ Student) 
I will with good will/ and first I shall show the how the custom of the realm is the very ground of divers courts in the realm/ that is to say of the Chancery of the kyngea bench/ of the common place: & the Escheker/ the which be courts of record because none may sit as judge in those courts by by the kings letters patents. And these courtis have divers authorities whereof it is not to treat at this tyme. Other courtis there be also only grounded by the custom of the realm: that be of moche less authority than the courtis before rehearsed/ as in every shire within the realm there is a court that is called the county/ & another that is called the Shyryftes torn/ & in every manner is a court that is called a court Baron. And to every fair & market is incident a court that is called a court of Pypowdres. And though in some statutes is made mention sometime of the said courts/ yet nevertheless of the first Institution of the said courts: and that such courts should be/ there is no statute nor law written in the laws of England. And so all the ground & beginning of the said courts depend upon the custom of the realm the which custom is of so high authority that the said courts ne their authorities may not be altered/ ne their names changed without parliament.  
❧ Also by the old custom of the realm no man shallbe taken imprisoned deceased nor otherwise destroyed/ but he be put to answer by the law of the land: & this custom is confirmed by the statute of Magnacarta the xxvi chapiter.  
❧ Also by the old custom of the realm all men great & small shall do & receive justice in the kings courts/ & this custom is confirmed by the statute of Marle the i Chapitre.  
❧ Also by the old custom of the realm the eldest son is only heir to his ancestor/ & if there be no sons but daughters then all the daughters shallbe heir: & so it is of sisters & other kynneswomen. And if there be neither son/ daughter/ brother/ nor sister/ then shall the inheritance descend to the next kinsman or kinswoman of the hole blood to him that had the enhitaunce of how many degrees so ever they be from him. And if there be no heir general nor special/ then the land shall Eschete to the lord of whom the land is holden.  
❧ Also by the old custom of the realm lands shall never ascend/ nor descend from the son to the father or mother/ nor to any other ancestor in the right line/ but it shall rather Eschete to the lord of the fee.  
❧ Also if any alien have a son that is an alien & after is made Denizyn/ & hath another son/ & after purchaseth lands and died/ the younger son shall inherit as heir & not the eldest.  
❧ Also if there be three brethren & the mydlest brother purchase lands & died without heir of his body/ the eldest brother shall inherit as heir to him: & not the younger brother.  
❧ Also if land in fee simple descend to a man by the ꝑre of his father & he died without heir of his body/ then that inheritance shall descend to the next heir of the part of his father. And if there be no such heir of the part of his father/ then if the father purchased the lands it shall go to the next heir of the father's mother/ & not to the next heirs of the sonesmother but it shall rather Eschete to the lord of the fee: but if a man purchase lands to him & to his heirs & die without heir of his body as is said before/ than that land shall descend to the next heir of the part of his father if there be any/ & if not then to the next heir of the part of his mother.  
❧ Also if the son purchaseth lands in fee & die without heir of his body/ the land shall descend to his uncle & shall not ascend to his father/ but if the father have a son though it be many years after the death of the elder brother/ yet that soon shall put out his uncle & shall enjoy the land as heir to his elder brother for ever.  
❧ Also by the custom of the realm the child that is borne before spouselles is bastard & shall not inherit.  
❧ Also the custom of the realm is that no manner of goods nor cattles real nor parsonell shall never go the the heir/ but to the executors/ or to the ordinary or administrators.  
❧ Also the husband shall have all the Chatelles' parsonelles that his wife had at the time of the spouselles or after: and also Chatelles' real if he over live his wife but if he sell or give away the Chatelles' reals & die by that sale or gift the interest of the wife is determined/ & else they shall remain to the wife if she over live her husband.  
❧ Also the husband shall have all the inheritance of his wife whereof he was seized in deed in the right of his wife during the spouselles in fee or in fee tail general for term of life/ if he have any child by her to hold as tenant by the courtesy of England/ & the wife shall have the third part of the inheritance of her husband whereof he was seized in deed or in law after the spouselles. etc. but in that case the wife at the death of her husband must be of the age of ix year or about/ or else she shall have no dowry.  ¶ doctor) 
what if the husband at his death be within the age of ix year.  ¶ Student) 
I suppose she shall yet have her dower.  
❧ Also the old law & custom of the realm is that after the death of every tenant that holdeth his lands by knights service the lord shall have the ward & marriage of the heir till the heir come to the age of xxi year. And if the heir in that case be of full age at the death of his ancestor/ then he shall pay to his lord his relief/ which at the common law was not certain/ but by the statute of Magna carta/ it is put in certain: that is to say for every hole knights fee to pay. C. s. And for a hole barony to pay a. C. mark for relief. And for a hole earldom to pay a. C. li. & after the rate. And if the heir of such a tenant be a woman/ & she at the death of her ancestor be within the age of xiiii years/ then by the common law she should have been inward only till xiiii year/ but by the statute of Westm the first in such case she shallbe inward till xvi year. And if at the death of the ancestor she be of the age of xiiii year or above/ she shallbe out of ward/ though the lands be holden of the king. And then she shall pay relief as an heir male shall.  
❧ Also of lands holden in socage if the ancestor die/ his heir being within the age of xiiii years/ the next friend of the heyt to whom the inheritance may not descend shall have the ward of his body & lands till he shall come to the age of xiiii year/ & then he may enter. And when the heir cometh to the age of xxi year/ them the garden shall yield him account for the ꝓfettes thereof by him received.  
❧ Also such an heir in socage for his relief shall double his rent to the lord the year following the death of his ancestor/ as if his ancestor held by xii d. rent the heir in the year following shall pay that xii d. for his rent/ & other xii d for his relief. And that relief he must pay though he be within age at the death of his ancestor.  
❧ Also there is an old law & custom in this realm that a freehold by way of feoffment gift or lease passeth not without livery of season be made upon the land according though a deed of feoffment be thereof made & delivered: but by way of lavender partition & eschaunge a freehold may pass without livery.  
❧ Also if a man make a will of land whereof his is seized in his demesne as of fee/ that will is void/ but if it had stand in feffes hands it had been good. And also in London such a will is good by the custom of the city if it be enrolled.  
❧ Also a lease for term of years is but a chatel in the law/ & therefore it may pass without any livery of season/ but otherwise it is of a state for term of life for that is a freehold in the law/ & therefore livery must be made thereof or else the freehold passeth nat.  
❧ Also by the old custom of the realm a man may distrain for a rend service of common right. And also for a rent reserved upon a gift in tail/ a lease term of life/ of years & at will/ & in such case the lord may distrain the tenants of beasts as soon as they come upon the ground/ but the beastis of strangers that come in but by manner of an escape/ he may not distrain till they have been levamt & couchant upon the ground: but for debt upon an obligation nor upon a contract/ nor for account ne yet for arerages of account/ nor for no manner of trespass/ reparations/ nor such other no man may distrain.  
❧ Also by the old law & custom of the realm all issues that shallbe joined betwixt party & party in any court of record within the realm except a few whereof it needeth not to treat at this time/ must be tried by xii fire & lawful men of the visne that be not of affinity to none of the parties. And in other courts that be not of record/ as in the county/ court baron/ hundred & such other like/ they shallbe tried by the other of the ꝓtyes & not other wise whiles the parties assent that it shallbe tried by the homage. And it is to be noted that lords/ Baron's/ & all pyers of the realm be excepted out of such trials if they will/ but if they will wilfully be sworn therein/ some say it is no error And they may if they will have a writ out of the Chancery directed to the sheriff commanding him that he shall not impanel them upon no inquest.  
And of this that is saydbefore it appeareth that the customs aforesaid nor other like unto than/ whereof be very many in the laws of England can not be proved to have the strength of a law only by reason for how may it be proved by reason that the eldest son shall only inherit his father & the younger to have no part/ or that the husband shall have the hole land for term of his life as tenant by the courtesy in such manner as before appeareth. And that the wife shall have only the third part in the name of her dower/ & that the husband shall have all the goods of his wife as his own. And that if he die living the wife/ that his executors shall have the goods/ & not the wife. All these & such other can not be proved only by reason that it should be so & no otherwise all though they be reasonable/ & that with the custom therein used sufficeth in the law And a statute made against such general customis ought to be observed because they be not merely the law of reason.  
❧ Also the law of ꝓpretie is not the law of reason/ but a law of custom how be it that it is kept/ & is also right necessary to be kept in all realms & among all people And so it may be numbered among the general customs of the realm. And it is to understand that there is no statute that treateth of the beginning of the said customs: ne why they should beholden for law. And therefore after them that be learned in the laws of the realm: the old custom of the realm is the only & sufficient authority to them in that behalf. And I pray the show me what doctors hold therein/ that is to say whether a custom only be sufficient authority of any law.  ¶ doctor) 
doctors hold that a law grounded upon a custom is the most surest law/ but this must always understand therewith that such a custom is neither contrary to the law of reason/ nor to the law of god. And now I pray the show me somewhat of the maxymes of the law of England whereof thou haste made mention before in the four chapiter.  ¶ Student) 
I will with good will.   

☞ Of the four ground of the law of England. The viii Chapitre.  STudent) 
The four ground of the law of England standeth in divers principles that be called in the law maxims/ the which have been always taken for law in this realm/ so that it is not lawful for none that is learned to deny them/ for every one of those maxims is sufficient authority to himself. And which is a maxim/ & which not shall always be determined by the judges/ & not by xii men And it needeth not to assign any reason/ why they were first received for maxims for it sufficeth that they be not against the law of reason nor the law of god/ and that they have always be taken for law. And such maxims be not only holden for law/ but also other cases like unto than & all things that necessarily followeth upon the same/ are to be reduced to like law And therefore most commonly there be assigned some reasons or consideration why such maxims be reasonable to the intent that other cases like may the more conveniently be applied to them. And they be of the same strength & effect in the law as statutes be. And though the general custom of the realm be the strength & warrant of the said maxims: as they be of the general customs of the realm/ yet because the said general customs be in manner known through the realm as well to them that be unlearned as learned/ & may lightly be had & known and that with little study. And the said maxims be only known in the kings courts or among them that take great study in the law of the realm/ & among few other persons. Therefore they be set in this writing for several grounds & he that listeth may so account them/ or if he will he may take them for one ground after his pleasure/ of which maxims I shall hereafter show the part.  
❧ first there is a maxim that escuage uncertain maketh knights service.  
❧ Also there is another maxim that escuage certain maketh socage.  
❧ Also that he that holdeth by castelgarde/ holdeth by knights service/ but he holdeth not by escuage. And that he that holdeth by twenty s. to the guard of a castle holdeth by socage.  
❧ Also there is a maxim that a descent taketh away an entry.  
❧ Also that no prescription in lands maketh a right.  
❧ Also that a prescription of rent & of profits aprendre out of land maketh a right.  
❧ Also that the limitation of a ꝑscription generally taken is from the time that no man's mind renuyth to the contrary.  
❧ Also that assigns may be made upon lands given in fee for term of life/ or for tme of years though no mention be made of assigns/ & the same law is of a rent that is granted/ but otherwise it is of a warantie & of a covenant.  
❧ Also that a condition to avoid a freehold can not be pleaded without deed/ but to avoid a gift of a chatel it may be pleaded without deed.  
❧ Also that a release or a confirmation made by him that at the time of the release or confirmation made had no right is void in the law/ though a right come to him after/ except it be with warrauntye/ & then it shall bar him of all right that he shall have after the warranty made.  
❧ Also that a right or title of action that only dependeth in action can not be given nor granted to none other but only to the tenant of the ground/ or to him that hath the reversion or remayndre of the same land.  
❧ Also that in an action of debt upon a contract the def. may wage his law/ but otherwise it is upon a lease of lands for term of years or at will.  
❧ Also that if an exigent in case of felony be awarded against a man: he hath thereby forthwith forfeited his goods to the king.  
❧ Also if the son be attainted in the life of the father/ and after he purchaseth his charter of pardon of the king/ & after the father died. In this case the land shall Eschete to the lord of the fee in so much that that though he have a yongerbrother yet the land shall not descend to him/ for by the atteyndre of the elder brother the blood is corrupt & the father in the law died without heir.  
❧ Also if an Abbot or a Prior alien the lands of his house & died/ in that case though his successor have right to the land/ yet he may not enter: but he must take his action that is appointed him by the law.  
❧ Also there is a maxim in the law that if a villain purchase lands & the lord enter/ he shall enjoy the land as his own/ but if the villain alien before the lord enter/ that alienation is good. And the same law is of goods.  
❧ Also if a man steel goods to the value of xii d. or above it is felony/ and he shall die for it. And if it be under the value of xii d. then it is but petit larcinie & he shall not die for it/ but shallbe otherwise punished after the discretion of the judges except it be taken fro the person/ for if a man take any thing how little so ever it be/ from a man's person felonously/ it is called robbery & he shall die for it.  
❧ Also he that is areyned upon an Indictment of felony shallbe admitted in favour of life to challenge xxxv jurors perentorily but if he challenge any above that number/ the la taketh him as one that hath refused the law because he hath refused three hole enquests/ & therefore he shall die: but with cause he may challenge as many as he hath cause of challenge to. And further it is to be understand that such peremptory challenge shall not be admitted in appeal because it is at the suit of the party.  
❧ Also the land of every man is in the law enclosed from other though it lie in the open field. And therefore if a man do a trespass therein the writ shallbe quare clausum fregit.  
❧ Also that rents/ commons of pasture of turbary revertions remayndres/ nor such other things which lie not in manuel occupation may not be given nor granted to none other without writing.  
❧ Also that he that recovereth debt or damages in the kings court by such an action within a Capias lay in to the process may within a year after the recovery have a Capias ad satisfaciendun to take the body of the defendant & to commit him to prison till he have paid the debt & damagis but if there lay no Capias in the first action them the plaintiff shall have no Capias ad satisfaciendun/ but must take a Fierifacias or an Elegit within the year: or a Scire fac aft the year or within the year if he will.  
❧ Also if a release or confirmation be made to him: that at the time of the release made had no thing in the land. &c. the release or confirmation is void except certain cases as to vouchye & certain other which need not here to be remembered.  
❧ Also there is a maxim in the law of England that the king may disease no man/ ne that no man may disease the king ne pull any reversion or remayndre out of him.  
❧ Also the kings excellency is so high in the law that no freehold may be given to the king ne be derived from him/ but by matter of record.  
❧ Also there was sometime a maxim & a law in England that no man should have a writ of right: but by special suit to the king. And for a fine to be made in the Chancery for it/ but these maxims be changed by the statute of Magna carta the xvi Chapi. where it is said thus Nulli negabimus nulli vendemus rectum vel justiciam. And by the words nulli negabimus/ a man shall have a writ of right of course in the Chancery without suing to the king for it. And by the words nulli vendemus. He shall have it without fine and so many times the old maxims of the law be changed by statutes.  
❧ Also though it be reasonable that for the many sold diversities of actions that be in the laws of England/ that there should be diversities of process as in the real actions after one manner/ & in personal actions after another manner: yet it can not be proved merely by reason that the same process ought to be had & none other/ for by statute it might be altered.  
And so the ground of the said process is to be referred only to the maxims & customs of the realms. And I have showed the these maxims before rehearsed/ not to the intent to show the specially what is the cause of the law in them/ for that would ask a great respite/ but I have showed them only to the intent that thou mayst perceive that the said maxims & other like may conveniently be set for one of the grounds of the laws of England/ moreover there be divers cases/ whereof I am in doubt whether they be only maxims of the law or that they be grounded upon the law of reason/ wherein I pray the let me here thine opinion.  ¶ doctor) 
I pray the show those cases that thou meanest: & I shall make the answer therein as I shall see cause.   

☞ Hereafter followeth divers cases wherein the Student doubteth whether they be only maxims of the law or that they be grounded upon the law of reason. The ix Chapitre.  Student) 
The law of England is that if a man command another to do a trespass & he doth it/ that the commaundour is a trespasser. And I am in doubt whether that be only by a maxim of the law/ or that it be by the law of reason.  
❧ Also I am in doubt upon what law it is grounded that the Accessary shall not be put to answer before the principal. &. c.  
❧ Also the law is that if an Abbot buy a thing that cometh to the use of the house & died that his successors shallbe charge/ & I am somewhat in doubt upon what ground that law dependeth.  
❧ Also that he that hath possession of land though it be by disseason hath right against all men/ but against him that hath right.  
❧ Also that if an action real be sued against any man that hath nothing in the thing demanded he writ shall abate as at the common law.  
❧ Also that the alienation of the tenant hanging the writ nor his entry in to religion/ or if he be made a knight/ or if she be a woman & take an husband hanging the writ/ that the writ shall not abate.  
❧ Also if land & rent that is going out of the same land come in to one man's hand of like estate & like surety of title/ the rend is extinct.  
❧ Also if land descend to him that hath right to the same land before/ he shallbe remitted to his better title if he will.  
❧ Also if two titles be concurrent together/ the eldest title shallbe preferred.  
❧ Also that every man is bound to make recompense for such hurt as his beasts shall do in the corn or grass of his neighbour though he know not that they were there.  
❧ Also if the drmaundaunt or plaintiff hanging his writ will enter in to the thing demanded this writ shall abate. And it is many times very hard and of great difficulty to know what cases of the law of England be grounded upon the law of reason/ & what upon custom of the realm/ & though it be hard to discuss it: yet is very necessary to be known for the knowele of the perfit reason of the law/ & if any man think that these cases before rehearsed be grounded upon the law of reason/ then he may refer them to the first ground of the law of England which is the law of reason/ whereof is made mention in the .v. Chepi. And if any man think that they be grounded upon the law of custom/ then he may refer them to the maxims of the law/ which be assigned for the third ground of the law of England/ whereof mention is made in the viii Chapitre. as before appeareth.  ¶ doctor) 
But I pray the show me by what authority is it proved in the laws of England that the cases that thou haste put before in the viii Chapitre/ and such other which thou callest maxims ought not to be denied/ but aught to be taken as maxims/ for sith they can not be proved by reason as thou agreest thyself they can not/ they may as lightly be denied as affirmed unless there be some sufficient authority to approve them.  ¶ Student) 
Many of the customs & maxims of the laws of England be known by the use and the custom of the realm so apparently that it needeth not to have any law written thereof/ for what needeth it to have any law written that the eldest son shall inherit his father/ or that all the daughters shall inherit together as one heir/ if there be no son/ or that the husband shall have the goods & chatels of his wife that she hath at the time of the spouselles or after/ or that a bastard shall not inherit as heir/ or that executors shall have the disposition of all the goods of their testator: & if there be no executors that the ordinary shall have it/ & that the heir shall not meddled with the goods of his ancestor: but any particular custom help him. The other maxims & customs of the law that be not so openly known among the people may be known partly by the law of reason: & partly by the books of the laws of England called years of terms/ & partly by divers records remaining in the kings courts & in his treasury. And specially by a book that is called the register/ & also by divers statutes wherein many of the said customs/ & maxims be oft recited/ as to a diligent searcher will evidently appear.   

☞ Of the .v. ground of the law of England. The ten Chapitre.  STudent) 
The .v. ground of the law of England standeth in divers particular customs used in divers countries towns/ cities/ & lordships in this realm/ the which particular custom because they be not against the law of reason/ nor the law of god/ though they be against the said general customs or maxims of the law: yet nevertheless they stand in effect and be taken for law/ but if it rise in question in the kings courts whether there be any such particular custom or not it shallbe tried by xii men/ & not by the judges/ except the same particular custom be of record in the same court. Of which particular customs/ I have hereafter noted some for an example.  
❧ first there is a custom in Kent that is called Bavelkind/ that all the brethren shall inherit together as sisters at the common law.  
❧ Also there is another particular custom/ that is called burghenglisshe where the younger son shall inherit before the eldest & that custom is in Notynghame.  
❧ Also there is a custom in the city of London that free men there/ may by their testament inrouled bequeatheth their lands that they be seized of to whom they will/ except to mortmayn. And if they be cytiziens & free men/ then they may also bequeatheth lands to mortmayne.  
❧ Also in gavelkind though the father be hanged the son shall enheryt/ for their custom is the father to the bough/ the son to the plough.  
❧ Also in some countries the wife shall have the half of the husbands lands in the name of her dowry as long as she liveth sole.  
❧ Also in some country the husband shall have the half of the inheritance of his wife/ though he have no issue by her.  
❧ Also in some country an Infante when he is of the age of xu year may make a feoffment/ and the feoffment good. And in some country when he can meet an elle or cloth ∴   

☞ Of the vi ground of the law of England. The xi Chapitre.  STudent) 
The vi ground of the law of England standeth in divers statutes made by our sovereign lord the king & his progenitors/ & by the lords spiritual & temporal/ & the commons in divers parliaments in such cases where the law of reason/ the la of god/ customs/ maximꝭ/ ne other grounds of the law seemed not to be sufficient to punish evil men/ & to reward good men. And I remember not that I have seen any other grounds of the law of England/ but only these that I have before remembered. Furthermore it appeareth of that I have said before that oft times two or three grounds of the law of England must be joined together/ or that the plaintiff can open & declare his right/ as it may appear by this example. If a man enter in to another man's land by force: & after maketh a feoffment for maintenance to defraunde the plaintiff from his action. In this case it appeareth that the said unlawful entry is ꝓhibite by the law of reason/ but the plaintiff shall recover triple damages/ that is by reason of the statute made in the viii year of king Henry the vi the: ix. Cham And that the damages shallbe seized. by xii men that is by the custom of the realm. And so in this case iii grounds of the law of England maintain the playntyfes' action. And so it is in divers other cases that need not to be remembered now. & thus I make an end for this time/ to speak any further of the grounds of the law of England.  ¶ doctor) 
I thank the for the great pain that thou haste taken therein/ nevertheless for as much as it appeareth that thou haste said before that the learned men of the law of England pretend/ to verify that the law of England will nothing do/ ne attempt against the law of reason/ nor the law of god/ I pray the answer me to some questions grounded upon the law of England how as the thinketh the law may stand with reason or conscience in them.  ¶ Student) 
Put the case & I shall make answer therein as well as I can.   

☞ The first question of the doctor of the law of England and conscience. The xii Chapitre.  doctor) 
I have hard say/ that if a man that is bound in an obligation pay the money: but he taketh no acquittance or if he take one & it happeneth him to lose it/ that in that case he shall be compelled by the laws of England to pay the money again/ & how may it be said then/ that that law standeth with reason or conscience/ for as it is grounded upon the law of reason that debts aught of right to be paid/ so it is grounded upon the law of reason (as me seemeth) that when they be paid that he that paid them should be discharged.  ¶ Student) 
first thou must understand that it is not the law of England/ that if a man that is bound in an obligation pay the money without acquittance/ or if he take acquittance & lose it: that therefore the law determineth that he ought of right to pay the money eftsoons/ for that law were both against reason & conscience/ but trougth it is that there is a general maxim in the law of England/ that in an action of debt sued upon an obligation/ the defendant shall not plead that he oweth not the money/ ne can in no wise discharge hinslefe in that action/ but he have acquittance or some other writing sufficient in the law or some other thing like/ witnessing that he hath paid the money/ & that is ordained by the law to avoid a great inconvenience that else might happen to come to many people that is to say that every man by a nude parol and by a bare averment should avoid an obligation/ wherefore to avoid that inconvenience the law hath ordained that as the defendant is charged by a sufficient writing/ that so he must be discharged by sufficient writing/ or by some other thing of as high authority as the obligation is. And though it may follow thereupon that in some particular case a man by occasion of that general maxim may be compelled to pay the money again that he paid before/ yet nevertheless no default can be therefore assigned in the law. For like as makers of laws take heed to such things as may oft fall/ and do most hurt among the people rather than to particular cases. So in likewise the general grounds of the law of England/ heed more what is good for many/ than what is good for one singular person only. And because it should be a hurt to many/ if an obligation should be so lightly avoided by word.  
Therefore the law specially preventeth that hurt under such manner as before appeareth. And yet intendeth not/ nor commandeth not that the money of right ought to be paid again/ but setteth a general rule/ which is good and necessary to all the people/ & that every man may well keep/ without it be through his own default/ & if such default happen in any person/ whereby he is without remedy at the common law: yet he may be helped by a Subpena/ & so he may in many other cases where conscience serveth for him/ that were to long to rehearse now.  ¶ Doctor) 
But I pray the show me under what manner a man may beholpen by conscience. And whether he shallbe holpen in the same court or in an other.  ¶ Student) 
Because it can not be well declared where a man shallbe helped by conscience & where not/ but it be first known what conscience is therefore because it pertaineth to the most properly/ to treat of the nature and quality of conscience/ therefore I pray the that thou wilt make me some brief declaration of the nature & quality of conscience and then I shall answer to thy question as well as I can.  ¶ Doctor) 
I will with good will do as thou saist/ & to the intent that thou mayst the better understand that I shall say of conscience/ I shall first show the what sinderesis is/ & than what reason is/ & than what conscience is. And how these three differ among themself I shall somewhat touch.   

☞ What sinderesis is. The xiii Chapitre ⸫  doctor) 
Sinderesis is a natural power of the soul set in the highest part thereof/ moving & sterring it to good/ & abhorring evil. And therefore Sinderesis never sinneth nor erreth. And this Sinderesis our lord put in man to the intent that the order of things should be observed. For after saint Deonise the wisdom of god joineth the beginning of the second things to the last of the first things/ for Angel is of a nature to understand without searching of reason: & to that nature man is joined by Sinderesis/ the which Sinderesis may not holly be extincted neither in man ne yet in dampened souls. But nevertheless as to the use & exercise thereof/ it may be let for a time either through the darkness of ignorance/ or for undiscrete delectation or for the hardness of obstinacy. first by the darkness of ignorance Sinderesis may be let that it shall not murmur against evil/ because he believeth evil to be good/ as it is in heretics/ the which when they die for the wickedness of their error believe that they die for the very truth of the faith. And by undiscrete delectation/ Sinderesis is sometime so over laid that remorse or grudge of conscience for the time can have no place. For the hardness of obstinacy sinderesis is also let that it may not stir to goodness as it is in dampened souls that be so obstinate in evil/ that they may never be inclined to good. And though sinderesis may be said to that point extinct in dampened souls: yet it may not be said that it is fully extinct to all intentes. For they always murmur against the evil of the pain that they suffer for sin. And so it may not be said that it is universally/ & to all intentes / & to all times extinct/ and this sinderisis is the begynnning of all things that may be learned by speculation or study/ and ministereth the general grounds & principles thereof. And also of all things that are to be done by man/ a example of such things as many be learned by speculation appeareth thus: sinderesis saith that every hole thing is more than any one part of the same thing/ & that is a sure ground that never faileth. And an example of things that are to be done/ or not to be done: is where sinderesis saith: no evil is to be done: but that goodness is to be done & followed/ & evil to be fled and such other. And therefore sinderesis is called by some men the law of reason/ for it ministereth the principles of the law of reason/ the which be in every man by nature in that he is a reasonable creature.   

☞ Of reason. The xiiii Chapitre.  doctor) 
when the first man Adam was create/ he received of god a double eye/ that is to say. An outward eye/ whereby he might see visible thiges/ & know his bodily enemies & eschew them. And an inward eye/ that is the eye of the reason/ whereby he might see his spiritual enemies that fighteth against his soul & beware of them. And among all gifts that god gave to man/ this gift of reasan is the most noblest/ for thereby man precelleth all beasts/ & is made like to the dignity of Angels/ discerning troth from falsshede/ & evil from good. Wherefore he goeth far from that effect that he was made to when he taketh not heed to the troth: or when he preferreth evil before good. And therefore after Doctourꝭ reason is that power of the soul/ that discerueth between good & evil/ & between good & better comparing the one to the other: the which also showeth virtues/ loveth god/ & fleeth vices. And reason is called rightwise & good for it is conformable to the will of god & that is the first thing & the first rule that all things must be ruled by/ and reason that is not rightwise nor straight: but that is said culpable is either because she is deceived with an error that might be overcome/ or else through her pride or slouthfulnꝭ she enquereth not for knowledge of the troth that ought to be inquired Also reason is divided in two parties that is to say in to the higher part/ & in to the lower part. The higher part hedeth heavenly things & eternal/ and reasoneth by heavenly laws/ or by heavenly reasons what is to be done/ and what is not to be done/ and what things god commandeth/ and what he prohibiteth.  
And this higher part of reason hath no regard to transitory things/ or temporal things: but that sometime as it were by manner of council she bringeth forth heavenly reasons/ to order well temporal things. The lower part of reason worketh most to govern well temporal things. And she grounded her reason's moche upon laws of man/ & upon reason of man/ whereby she concludeth that that is to be done/ that is honest & expedient to the common wealth/ or not to be done for it is not expedient to the common wealth. And so that reason whereby I know god & such things as pertain to god/ belongeth to the highest part of reason. And that reason whereby I know creatures belongeth to the lower part of reason. And though these two parts/ that is to say/ the higher part & the lower part be won in deed & essence/ yet they differ by reason of their working & of their office as it is of one self eye: that sometime looketh upward/ and sometime downward.   

☞ Of conscience. The xu Chapitre.  doctor) 
This word conscience/ which in latin is called Consciencia is componed of this preposition: cum/ that is to say in english: with/ and with this noun scientia/ that is to say in english knowledge/ & so conscience is as much to say as knowledge of one thing with another thing/ & conscience so taken in nothing else/ but an applienge of any science or knowledge to some particular act of man. And so conscience may sometime err & sometime not err. And of conscience thus taken doctors make many descriptions: whereof one doctor saith/ that conscience is the law of our understanding. Another that conscience is an habit of the mind discerning betwixt good & evil. Another that conscience is the judgement of reason/ judging on the particular acts of man/ all which sayings agree in one effect/ that is to say that conscience is an actuell applying of any cunning or knowledge to such things as be done: whereupon it followeth that upon the most perfect knowledge of any law or cunning. And of the most perfect and most true applying of the same/ to any particular act of man/ followeth the most ꝓfite/ the most pure/ & the most best conscience. And if there be defaute in knowing of the truth of such a law/ or in the applying of the same to any particular act/ than thereupon followeth an error or default in conscience/ as it may appear by this example. Sinderesis ministeryth a universal principle that never erreth/ that is to say/ that an unlawful thing is not to be done. And than it might be taken by some man that every oath is unlawful/ because our lord saith Matth. v. Ye shall in no wise swear. And yet he that by reason of the said words will hold that it is no lawful in no case to swear/ erreth in conscience/ for he hath not the ꝓfite knowledge and understanding of the troth of the said gospel/ nor he reduceth not that saying of scripture/ to other scriptures/ in which it is granted that in some case an oath may be lawful: and the cause why conscience may so err in the said case and in other like/ is because conscience is form of a certain particular ꝓposition or question grounded upon untuersal rules ordained for such things as are to be done. And because a particular proposition is not known of himself/ but must appear & beserched by a diligent search of reason/ therefore in that search & in the conscience that should be form thereupon may happen to be error/ & thereupon it is said that there is error in conscience/ which error cometh either because he doth not assent to that he ought to assent unto/ or else because his reason whereby he doth refer one thing to another is deceived. For further declaration whereof it is to understand that error in conscience cometh vii manner of ways. first is through ignorance: and that is when a man knoweth not what he ought to do/ & what he ought not to do: and than he ought to ask conceyll of them that he thinketh most expert in that science whereupon his doubt riseth. And if he can have no conceyll/ than he must wholly commit him to god: & he of his goodness will so order him/ that he will save him from offence. The second is through negligence/ as when a man is negligent to search his own conscience/ or to inquire the truth of other. The third is through pride/ as when he will not mekyn himself ne believe them that be better and wiser than he is.  
The fourth is through singularity as when a man followeth his own wit/ and will not confirm himself to other/ nor follow the good common ways of good men. The fifth is through an in ordinat affection to himself/ whereby he maketh consciensce to follow his desire/ & so he causeth her to go out of her right course. The sixth is through pusillaminite whereby some person dreadeth oft times such things as of reason he ought not to dread. The seventh is through perplexity/ & that is when a man believeth himself to be so set betwixt two sins that he thinketh it unpossible/ but that he shall fall in to the one but a man can never be so proplexed in deed but through an Erour in conscience: & if he will put away that error he shallbe delivered. Therefore I pray the that thou wilt always have a good conscience & if thou have so/ thou shalt always be merry/ & if thine own heart reprove the not thou shalt always have inward peace. The gladness of rightewyse men is of god & in god/ & their joy is always in troth and goodness. There be many diversities of conscience/ but there is none better than that/ whereby a man truly knoweth himself. Many men know many great & high cunning things: & yet know not themself & truly he that knoweth not himself knoweth no thing well. Also he hath a good & a clean conscience/ that hath purity & cleanness in his heart/ troth in his word/ and rightwysenes in his deed. And as a light is set in a lantern that all that is in the house may been seen thereby: so almighty god hath set conscience in the mids of every reasonable soul as a light whereby he may discern & know what he ought to do/ & what he ought not to do. Therefore for as much as it behoveth the to be occupied in such things as pertain to the law. It is necessary that thou ever hold a pure & a clean conscience/ specially in such things as concern restitution: for the sin is not forgiven/ but the thing that is wrongfully taken be restored. And I conceyll the also that thou love that is good/ and fly that is evil/ and that thou do to another as thou wouldest should be done to thee: & that thou do no thing to other that thou wouldest not should be done to the. That thou do no thing against troth/ that thou live peasablye with thy neighbour/ & that thou do justice to every man as much as in the is. And also that in every general rule of the law/ thou do observe & keep equity: and if thou do thus I trust the light of thy lantern/ that is thy conscience shall never be extyneted.  ¶ Stud. 
But I pray the show me what is that equity that thou haste spoken of before/ & that thou wouldest that I should keep.  ¶ Doctor) 
I will with good will show the somewhat thereof.   

☞ What is equity. The xvi Cham  doctor. 
equity is a ryghtwystnes that considereth all the particular circumstances of the deed/ the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man/ and in every general rule thereof/ & that knew he well that said thus. Laws covet to be ruled by equity. And the wise man saith. Be not over moche rightwise: for the extreme rightwiseness is extreme wrong/ as who saith: if thou take all that the words of the law giveth thee/ thou shalt sometime do against the law. And for the plainer declaration what equity is thou shalt understand that sith the deeds and acts of men/ for which laws been ordained happen in divers manners infinitely. It is not possible to make any general rule of the law/ but that it shall fail in some case. And therefore makers of laws take heed to such things as may often come & not to every particular case/ for they could not though they would. And therefore to follow the words of the law/ were in some case both against justice & the common wealth: wherefore in some cases it is necessary to leave the words of the law/ & to follow that reason and justice requireth/ & to that intent equity is ordained: that is to say to temper & mitigate the rigour of the law. And it is called also by some men Epicata/ the which is no other thing but an exception of the law of god/ or of the law of reason from the general rules of the law of man: when they by reason of their generalytie would in any particular case judge against the law of god/ or the law of reason/ the which exception is secretly understand in every general rule of every positive law. And so it appeareth that equity taketh not away the very right/ but only that/ that seemeth to be right by the general words of the law: nor it is not ordained against the cruelness of the law/ for the law in such case generally taken is good in himself/ but equity followeth the law in all particular cases where right & justice requireth/ not withstanding that a general rule of the law be to the contrary: wherefore it appeareth that if any law were made by man without any such exception expressed or implied it were manifestly unreasonable and were not to be suffered/ for such cases might come that he that would observe that law should break both the law of god & the law of reason. As if a man make a vow that he will never eat white meat/ & after it happeneth him to come there where he can get none other meat. In this case it behooveth him to break his avow/ for that particular case is excepted secretly from his general avow by this equity or epykay/ as it is said before. Also if a law were made in a city that no man under the pain of death should open the gates of the city before the son rising: yet if the citizens before that hour fleeing from their enemies come to the gates of the city/ & one for saving of the citizens openeth the gates before the hour appointed by the law/ yet he offendeth not the law/ for that case is excepted from the said general law by equity/ as is said before: and so it appeareth that equity rather followeth the intent of the law/ then the words of the law. And I suppose that there be in likewise some like equyties grounded upon the general rules of the law of the realm.  ¶ Stud) 
ye yearly whereof one is this. There is a general ꝓhybition in the laws of England: that it shall not be lawful to no man to enter in to the freehold of another with out authority of the owner or of the law: but yet it is excepted from the said ꝓhybition by the law of reason: that if a man drive beasts by the high way & the beasts haphen to escape in to the corn of his neighbour. And he to bring out his beasts that they should do no hurt goeth in to the ground & fetteth out the beasts: there he shall justify that enter in to the ground by the law. Also not withstanding the statute of Edward the third made the. 23. year of his reign/ whereby it is ordained that no man upon pain of imprisonment should give any alms to any valiant beggar/ that is well able to labour: yet if a man meet with such a valiant beggar in so cold a wether & so light apparel/ that if he have no clothes he shall in at be able to come to any town to have succour/ but is likely rather to die by the way: & he therefore giveth him apparel to save his life he shall be excused of the said statute by such an exception of the law of reason as I have spoken of.  ¶ Doc. 
I know well that as thou sayest he shallbe excepted of the said statute by conscience/ and over that/ that he shall have great reward of god/ for his good deed/ but I would wit whether the party shallbe also discharged in the common law by such an exception of the law of reason or not/ for though ignorance invincible of a statute excuse the party against god/ yet as I have heard it excusyth not in the laws of the realm/ ne yet in the chancery as some say all though the case be so that the party to whom the forfeiture is given may not with conscience leave it.  ¶ Stud) 
verily by thy question thou haste put me in a great doubt/ wherefore I pray the give me a respite therein to make the an answer/ but as I suppose for the time how be it I will not fully affirm it to be as I say/ but it should seem that he should well plead it for his discharge at the common law/ because it shallbe taken that it was the intent of the makers of the statute to except such cases. And the judges may many times judge after the mind of the makers as far as the letter may suffer & so it seemeth they may in this case. And divers other exceptions there be also from other general grounds of the law of the realm by such equyties/ as thou hast remembered before that were to long to rehearse now.  ¶ Doctor. 
But yet I pray the show me shortly somewhat more of thy mind under what manner a man may be helped in this realm by such equity.  ¶ Student) 
I will with good will show the somewhat therein.   

¶ In what manner a man shallbe helped by equyties in the laws of England. The xvii Chapitre.  STudent) 
first it is to be understand there be in many cases divers exceptions from the general grounds of the law of the realm by other reasonable grounds of the same law/ whereby a man shallbe helped in the common law/ as it is of this general ground that it is not lawful for no man to enter upon a descent/ yet for the reasonableness of the law excepteth from that ground an infant that hath right & hath suffered such a descent/ & him also that maketh continuell claim and suffereth them to enter/ natwitstanding the dyscent. And of that exception they shall have advantage in the common law: & so it is likewise of divers statutes as of the statute whereby it is ꝓhybit/ that certain particular tenants shall do no waste: yet if a lease for term of years be made to an infant that is within years of discretion/ as of the age of .v. or vi years and a stranger do waste/ in this case this infant shall not be punished for the waist/ for he is excepted & excused by the law of reason. And a woman covert to whom such a lease is made after the coverture shallbe also discharged of waste after her husbands death by a reasonable maxim and custom of the realm. And also for reparations to be made upon the same ground: it is lawful for such particular tenants to cute down trees upon the same ground to make reparations. But the cause there as I suppose is for that the mind of the makers of the said statute shallbe taken to be that/ that case should be excepted. And in all these cases the parties shallbe helped in the same court & by the common law. And thus it appeareth that sometime a man may be excepted fro the rigour of a maxine of the law by another maxim of the law. And sometime fro the rigour of a statute by the law of reason: and some time by the intent of the makers of the statute: but yet it is to be understand that most commonly where any thing is excepted fro the general customs or maxims of the laws of the realm. By the law of reason the party must have his remedy by a writ that is called Sub pena. if a Subpena lie in the case: but where a Subpena lieth/ and where not: it is not our intent to treat of at this tyme. And in some case there is no remedy for such an equity by way of compulsion/ but all the remedy therein must be committed to the conscience of the party.  ¶ Doctor) 
but in case where a Sub pena lieth to whom shall it be directed: whether to the judge or to the party.  ¶ Stud) 
It shall never be directed to the judge/ but to the ꝑtie pleintyfe or to his attorney & thereupon an injunction commanding them by the same under a certain pain therein to be contained that he ꝓcede no ferther at the common law/ till it be determined in the kings chancery: whether the plaintiff hath title in conscience to recover or not. And when the pleyntife by reason of such an injunction seasseth to ask any further process: the judges will in likewise seasse to make any further process in that behalf.  ¶ Doctor) 
Is there any mention made in the laws of England of any such equyties.  ¶ Stud) 
Of this term equity to that intent that is spoken of here there is no mention made in the laws of England/ but of an equity dyrivyed upon certain statutes mention is made many times & often in the law of England. But that equity is all of another effect than this is/ but of the effect of this equity that we now speak of mention is made many times/ for it is oft times argued in the law of England where a Sub pena lieth & where not: and daily bills be made by men learned in the law of the realm to have Sub penas. And it is not prohybite by the law/ but that they may well do it so that they make them not: but in case where they ought to be made & not for vexation of the party/ but according to the troth of the matter. And the law will in many cases that there shallbe such remedy in the chancery upon divers things grounded upon such equyties/ and than the lord chancellor must order his conscience after the rules & grounds of the law of the realm/ in so much that it had not been much inconvenient to have assigned such remedy in the chancery upon such equyties for the vii ground of the law of England/ but for as much as no record remaineth in the kings courts of no such bill ne of the writ of Sub pena or Injunction that is sued thereupon: therefore it is not set as for a special ground of the law/ but as a thing that is suffered by the law.  ¶ Doc. 
Then sith the parties ought of right in many cases to be helped in the chancery upon such equyties. It seemeth that if it were ordained by stutute/ that there should be no remedy upon such equyties in the chancery nor in none other place/ but that every matter should be ordered only by the rules & grounds of the common law: that that statute were against right and conscience.  ¶ Student) 
I think the same/ but I suppose there is no such statute.  ¶ Doc. 
There is a statute of that effect as I have herd say/ wherein I would gladly hear thy opinion.  ¶ Student. 
Show me that statute & I shall with good will say as me thinketh therein.   

¶ Whether the statute hereafter rehearsed by the doctor be against conscience or not. The xviii Chapitre.  doctor. 
There is a statute made in the four year of king Henry the fourth the xxii chapiter/ whereby it is enacted that judgements given in the kings courts/ shall not be examined in the chancery/ parliament/ nor else where/ by which statute it appeareth that if any judgement be given in the kings courts against an equity or against any matter of conscience/ that there can be had no remedy by that equity/ for the judgement can not be reform without examination/ and the examination is be the said statute prohibit: wherefore it seemeth that the said statute is against conscience/ what is thine opinion therein.  ¶ Stud) 
If judgements given in the kings courts should be examined in the chancery before the kings conceyl or in any other place/ the plaintiffs or demandauntes should seldom come to the effect of their suit/ ne the law should never have end. And therefore to eschew that inconuenice that statute was made. And though peradventure by reason of that statute/ some singular person may happen to have loss. Nevertheless the said statute is very necessary to eschew many great vexations and injust expenses that would else come to many plaintiffs that have right wisely recovered in the kings courts. And it is much more provided for in the law of England that hurt nor damages should not come to many than only to one. And also the said statute doth not ꝓhybite equity/ but it ꝓhybiteth only the examination of the judgement for the eschewing of the inconvenience before rehearsed. And so it seemeth that the said statute standeth with good conscience.  
And in many other cases where a man doth wrong/ yet he shall not be compelled by way of compulsion to reform it/ for many times it must be left to the conscience of the party/ whether he will redress it or not. And in such case he is in conscience as well bound to redress it if he will save his soul/ as he were if he were compellable thereto by the law as it may appear in divers cases that may be put upon the same ground.  ¶ doctor) 
I pray the put some of those cases for an example.  ¶ Stud) 
If the defendant wage his law in an action of debt brought upon a true debt the pleintyfe hath no means to come to his debt by way of compulsion/ neither by Subpena nor other wise/ & yet the defendant is bound in conscience to pay him. Also if the grand jury in attaint affirm a false verdict given by the petty jury there is no further remedy but the conscience of the party. Also where there can be had no sufficient proof/ there can be no remedy in the chancery/ no more than there may be in the spiritual court. And because thou haste given an occasion to speak of conscience/ I would gladly hear thy opinion where conscience shallbe ruled after the law/ and where the law shallbe ruled after conscience.  ¶ Doc. 
And of that matter I would likewise gladly here thy opinion/ specially in cases grounded upon the laws of Enlgande/ for I have not heard but little thereof in time past/ but before thou put any cases thereof: I would that thou wouldest show me how those two questions after thy opinion are to be understand.   

¶ Of what law this question is to be understand: that is to say/ where conscience shallbe ruled after the law. The xix Chapitre.  STudent. 
The law whereof mention is made in this question: that is to say where conscience shallbe ruled by the law/ is not as me seemeth to be understand only of the law of reason/ & of the law of god/ but also of the law of man that is not contrary to the law of reason nor the law of god: but that it is supperadded unto them for the better ordering of the common wealth/ for such a law of man is always to be set as a rule in conscience: so that it is not lawful for no man to go fro it on the one side ne on the other/ for such a law of man hath not only the strength of man's law/ but also of the law of reason/ or of the law of god/ whereof it is dyrivied/ for laws made by man which have received of god power to make laws be made by god. And therefore conscience must be ordered by that law/ as it must be upon the law of god/ & upon the law of reason. And furthermore that law whereof mention is made in the latter end of the chapiter next before: that is to say in that question wherein it is asked where the law is to be left & forsaken for conscience/ is not to be understand of the law of reason nor of the law of god: for though two laws may not be left/ nor it is not to be understand of the law of man that is made in particular cases/ & that is consonant to the law of reason/ & to the law of god/ & that yet that law should be left for conscience: for of such a law made by man conscience must be ruled/ as is said before. Nor it is not to be undepstande of a law made by man commanding or prohybiting any thing to be done that is against the law of reason or the law of god. For if any law made by man/ bind any person to any thing that is against the said laws/ it is no law/ but a corruption & a manifest error. Therefore after them that be learned in the laws of England/ the said question: that is to say where the law is to be left for conscience and where not/ is to be understand in divers manners & after divers rules/ as here after shall somewhat be touched.  
¶ first many unlearned persons believe that it is lawful for them to do with good conscience/ all things which if they do them/ they shall not be punished therefore by the law/ though the law doth not warrant them to do that they do/ but only when it is done doth not for some reasonable consideration punish him that doth it/ but leaveth it only to his conscience. And therefore many persons do oft times that they should not do/ & keep as their own that/ that in conscience tey aught to restore/ whereof there is in the laws of England this case. ¶ If two men have a wood jointly/ & the one of them selleth the wood & keepeth all the money holly to himself. In this case his fellow shall have no remedy against him by the law/ for as they when they took the wood jointly put each other in trust/ & were contented to occupy together: so the law suffereth them to order the profits thereof according to the trust that each of them put other in. And yet if one took all the profits/ he is bound in conscience to restore the half to his fellow: for as the law giveth him right only to the half land/ so it giveth him right only in conscience to the half ꝓfittes. And yet nevertheless it can not be said in that case/ that the law is against conscience/ for the law neither wyllyth ne commandeth that one should take all the ꝓfittes/ but leaveth it to their conscience: so that no default can be found in the law/ but in him that taketh all the profits to himself may be assigned defaute/ which is bound in conscience to reform if he will save his soul/ though he can not be compelled thereto by the law. And therefore in this case & other like/ that opinion which some have/ that they may do with conscience all that they shall not be punished: for by the law if they do it/ is to be left for conscience/ but the law is not to be left for conscience.  

☞ Addition.  
❧ Also many men think that if a man have land that another hath title to/ if he that hath the right shall not by the action that is given him by the law to recover his right by: recover damagis/ that then he that hath the land is also discharged of damages in conscience: and that is a great error in conscience/ for though he can not be compelled to yield the damagis by no man's law/ yet he is compelled thereto by the law of reason & by the law of god/ whereby we be bound to do as we would be done to/ and that we shall not covet our neighbours good. And therefore if tenant in tail be deceased & the disseasour dieth seized/ and then the heir in the tail bringeth a Formedon & recoveryth the land/ & no damages: for the law giveth him no damage in that case: yet the tenant by conscience is bounden to yield damages to the heir in tail fro the death of his ancestre. Also it is taken by some men/ that the law must be left for conscience where the law doth not suffer a man to deny that he hath before affirmed in court of record/ or for that he hath wilfully excluded himself thereof for some other cause/ as if the daughter that is only heir to her father will sue livery with her sister that is bastard/ in that case she shall not be after received to say that her sister is bastard: in so much that if her sister take half the land with her/ there is no remedy against her by the law. And no more there is of diversity other estopelles/ which were to long to rehearse now And yet the party that may take advantage of such an estopel by the law/ is bound in conscience to forsake that advantage specially if he were so estopped by ignorance/ and not by his own knowledge & assent for though the law in such cases giveth no remedy to him that is estopped: yet the law judgeth not that the other hath right unto the thing that is in variance betwixt them. ¶ Also it is understand that the law is to be left for conscience/ where a thing is tried & found by verdict against the troth/ for in the common law the judgement must be given according as it is pleaded & tried like as it is in other laws/ that the judgement must be given according to that/ that is pleaded & proved.  
¶ Also it is understand that the law is to be left for conscience/ where the cause of the law doth cease: for when the cause of the law doth cease/ the law also doth cease in conscience/ as appeareth by this case here after following.   

☞ Addition.  
❧ A man maketh a lease for term of life/ & after a stranger doth waste/ wherefore the less bringeth an action of Trans & hath judgement to recover damagis having regard to the triple damagis that he shall yield to him in the reversion. And aft he in the reversion before action of waste sued dieth: so that the action of waste is thereby extincted/ then the tenant for term of life (though he may sue execution of the said judgement by the law) yet he may not do it by conscience: for in conscience he may take no more than he is hurted by the said trespass/ because he is not charged over with the triple damages to his lessor.  
¶ Also it is understand where a law is grounded upon a presumption/ for if the presumption be untrue/ then the law is not to be holden in conscience. And now I have showed the somewhat how that question: that is to say where the law shallbe ruled after conscience I pray the show me whether there be not like diversities in other laws betwixt law & conscience.  ¶ Doctor) 
Yes verily very many whereof thou haste recited one before/ where a thing that is untrue is pleaded & proved/ in which case judgement must be given according as well in the law civil as in the law Canon. And another case is that if the heir make not his inventory/ he shallbe bound after the law civil to all the debts though the goods amount not to so moche. And the law Canon is not against that law/ and yet in conscience the heir which in the laws of England is called an executor is not in that case charged to the debts/ but according to the value of the goods. And now I pray the show me some cases where conscience shallbe ruled after the law.  ¶ Stud. 
I will with good will show the somewhat as me thinketh therein.    

❧ Here followeth divers cases where conscience is to be ordered after the law. The twenty Chapitre.  STudent) 
The eldest son shall have & enjoy his father lands at the common law in conscience/ as he shall in the law. And in Burghenglysshe the younger son shall enjoy the inheritance/ & that in conscience. And in Gavelkind all the sons shall inherit the land together as daughters at the common law and that in conscience. And there can be none other cause assigned why conscience in the first case is with the eldest brother/ & in the second with the younger brother/ and in the third case with all the brethren. But because the law of England by reason of divers customs doth sometime give the land holly to the eldest son/ sometime to the youngest/ and sometime to all.  
¶ Also if a man of his mere motion make a feoffment of two acres of land dying in two several shires/ & maketh livery of season in the one acre in the name of both In this case the feoff hath right but only to that acre whereof livery of season was made/ because he hath no title by the law: but if both acres had been in one shire he had had good right to both. And in these cases the diversity of the law maketh the diversity of conscience.  
¶ Also if a man of his mere motion make a feoffment of a manner & saith not to have & to hold. &c. with the appurtynances/ in that case the feoff hath right to the demesne lands & to the rents/ if there be atturnament & to the common pertaining to the manner/ but he hath neither right to the advowsons appendent if any be/ nor to the vylleins regardant: but if this term with thapurtynaunces had been in the deed/ the feffe had had right in conscience aswell to the advowsons & vylleins/ as to the residue of the manner: but if the king of his mere motion give a manner with the appurtynaunces/ yet the donee hath neither right in law nor conscience to the advowsons nor vylleins. And the diversity of the law in these cases maketh the diversity of conscience.  
¶ Also if a man make a lease for term of years yielding to him & to his heirs a certain rent upon condition that if the rent be behind by xl days. &c. that then it shallbe lawful to the lessour & his heirs to rentre. And after the rent is behind the lessour asketh the rent according to the law & it is not paid/ the lessour dieth his heir entereth. In this case his entry is lawful both in law and conscience: but if the lessor had died before he had demanded the rent/ and his heir demand the rent/ & because it is not paid he rentreth/ in that case his rentre is not lawful neither in law nor in conscience.  
¶ Also if the tenant in dower sow her land and die before her corn be ripe/ that corn in conscience belongeth to her executors/ & not to him in the reversion/ but otherwise it is in conscience of grass & fruits. And the diversity of the law maketh there also the diversity in conscience.  
¶ Also if a man seized of lands in his demesne as of fee/ byquethyth the same by his last will to another and to his heirs and dieth. In this case the heir not with standing the will hath right to the land in conscience. And the reason is because the law judgeth that will to be void: and as it is void in the law/ so it is void in conscience. ¶ Also if a man grant a rent for term of life and make a lease of land to the same grant for term of life/ and the tenant alyeneth both in fee. In this case he in the reversion hath good title to the land/ both in law & conscience & not to the rent. And the reason is because the land by that alienation is forfeit by the law to him in the reversion & not the rent.  

☞ Addition.  
❧ Also if lands be given to two men & to a woman in fee/ & after one of the men entermarieth with the woman & alieneth the land & dieth. In this case the woman hath right but only to the third part/ but if the man & the woman had been married together before the first feoffment/ then the woman notwithstanding the alienation of her husband should have had right in law & conscience to the one half of the land. And so in these two cases conscience doth follow the law of the realm. ¶ Also if a man have two sons/ one before spousellies & another after spousals/ & after the father dieth seized of certain lands. In that case the younger son shall enjoy the lands in this realm as heir to his father both in law & conscience. And the cause is/ because the son borne after spousellies/ is by the law of this realm the very heir/ and the elder son is a bastard. And of these cases and many other like in the laws of England may be form the syllogism of conscience/ or the true judgement of conscience in this manner. Sinderesis ministereth the mayor thus. rightwiseness is to be done to every man: upon which mayor the law of England ministereth the minor thus. The inheritance belongeth to the son born aft spousals/ & not to the son borne before spouselles/ then conscience maketh the conclusion & saith therefore the inheritance is in conscience to be given to the son borne after spousellies. And so in other cases infinite may be form by the law the syllogism or the right judgement of conscience: wherefore they that be learned in the law of the realm say that in every case where any law is ordained for the disposition of lands & goods/ which is not against the law of god/ nor yet against the law of reason/ that that law bindeth all them that be under the law in the court of conscience/ that is to say inwardly in his soul. And therefore it is somewhat to marvel that spiritual men have not endeavoured themselves in time past to have more knowledge of the kings laws than they have done/ or that they yet do: for by the ignorance thereof they be oft times ignorant of that/ that should order them according to right & justice/ as well concerning themselves as other that come to them for conceyll. And now for as much as I have answered to thy questions as well as I can: I pray the that thou wilt show me thy opinion in divers cases form upon the law of Eglande wherein I am in doubt/ what is to be holden therein in conscience.  ¶ doctor) 
Show me thy questions & I will say as me thinketh therein.    

¶ The first question of the student. The xxi Chapitre.  STudent) 
If an infant that is of the age of twenty year and hath reason and wisdom to govern himself selleth his land & with the money thereof buyeth other land of greater value than the first was & taketh the ꝓfittes thereof/ whether may that infant ask his first land again in conscience/ as he may by the law.  ¶ Doctor. 
What thinkest thou in that question.  ¶ Stud) 
Me seemeth that for as much as the law of England in this article is grounded upon a presumption/ that is to say that infants commonly afore they be of the age of xxi years be not able to govern themself/ that yet for as much as that presumption faileth in this infaunte that he may not in this case with conscience ask the land again that he hath sold to his great advantage as before appeareth.  ¶ Doc. 
Is not this sale of the infant and the feoffment made thereupon if any were voidable in the law.  ¶ Stud. 
Yes verylye.  ¶ Doc. 
And if the feoff have no right by the bargain/ nor by the feoffment made thereupon: whereby should he then have right thereto as thou thinkest.  ¶ Stud. 
By conscience as me thinketh for the reason that I have made before.  ¶ Doctor) 
And upon what law should that conscience be grounded that thou speakest of/ for it can not be grounded by the law of the realm as thou haste said thyself. And me thinketh that it can not be grounded upon the law of god/ nor upon the law of reason: for feffementes nor contracts be not grounded upon neither of the laws/ but upon the law of man.  ¶ Stud) 
After the law of propriety was ordained/ the people might not conveniently live together without contracts/ & therefore it seemeth that contractis be grounded upon the law of reason/ or at the lest upon the law that is called Ius gentium.  ¶ Doct. 
Though contracts be grounded upon that law that is called Ius gentium/ because they be so necessary & so general among all people/ yet that proveth not that contracts be grounded upon the law of reason: for though that law called Ius gentium be moche necessary for the people yet it may be changed. And therefore if it were ordained by statute that there should be no sale of land/ ne no contract of goods. And if any were that it should be void/ so that every man should continue still seized of his lands & possessed of his goods/ the statute were good. And then if a man against that statute sold his land for a sum of money/ yet the seller might lawfully retain his land according to the statute. And then he were bound to no more/ but to repay the money that he received with reasonable expenses in that behalf/ and so in likewise me thinketh that in this case the infant may with good conscience re-enter in to his first land/ because the contract after the maxims of the law of the realm is void/ for as I have heard the maxims of the law be of as great strength in the law as statutes. And so me thinketh that in this case the infant is bound to no more/ but only to repay the money to him that he sold his land unto/ with such reasonable costs & charges as he hath sustained by reason of the same. But if a man sell his land by a sufficient & lawful contract though there lacketh livery of season or such other solempnities of the law: yet the seller is bound in conscience to perform the contract/ but in this case the contract is insufficient/ & so me thinketh great diversity betwixt the cases.  ¶ Stud. 
For this time I hold me contented with thy opoinion.   

¶ The second question of the student. The xxii Chapitre.  STudent. 
If a man that hath lands for term of life be empaneled upon an inquest/ & thereupon loseth issues & dieth/ where may the issues be levied upon him in the reversion in conscience as they may be by the law.  ¶ Doct. 
If they may be levied by the law/ what is the cause why thou dost doubt whether they may be levied by conscience.  Student) 
For there is a maxim in the laws of England/ that where two titles run together/ the eldest title shallbe preferred. And in this case the title of him in the reversion is before the title of the forfeiter of the issues. And therefore I doubt somewhat whether they may be lawfully levied.  ¶ Doct. 
By that reason it symeth thou art in doubt what the law is in this case/ but that must necessarily be known/ for else it where in vain to argue what conscience will therein.  ¶ Stud. 
it is certain that the law is such/ & so it is like wise if the husband forfeit issues & die/ though issues shallbe levied on the lands of the wife.  ¶ Doct. 
And if the law be such it symeth that conscience is so in likewise/ forsyth it is the law that for execution of justice every man shallbe empaneled when need requireth it seemeth reasonable/ that if he will not appear that he should have some punishment for his not appearance: for else the law should be clearly frustrate in that point. And that pain as I have herd is that he shall lose issues to the king for his not appearance/ wherefore it seemeth not inconvenient nor against conscience though the law be that though issues shallbe levied of him in the reversion/ for that condition was secretly understand in the law to pass with the lease when the lease was made. And therefore it is for the lessour to beware and to prevent that danger at the making of the lease/ or else it shallbe aiuged his own default. And than this particular maxyme whereby such issues shall be levied upon him in the reversion is a particular exception in the law of England from that general maxyme that thou haste remembered before: that is to say that where two titles run together/ that the eldest title shallbe preferred/ & so in this case that general maxim in this point shall hold no place/ neither in law nor in conscience/ for by this particular maxim the strength of that general maxim is restrained to every intent/ that is to say/ as well in law as in conscience.   

¶ The third question of the student. The xxiii Chapitre.  Student. 
If a tenant for term of life/ or for term of years do waste whereby they be bound by the law to yield to him in the reversion triple damagis. And shall also forfeit the place wasted/ whether is he also bound in conscience to pay though damages/ & to restore the place wasted immediately after the waste done/ as he is the single damages/ or that he is not bound thereto till the triple damages & the place wasted be recovered in the kings court.  ¶ Doctor. 
Before judgement given of the triple damagis and of the place wasted he is not bound in conscience to pay them. For it is uncertain what he should pay/ but it sufficeth that he be ready till judgement be given to yield damages according to the value of the waste/ but after the judgement given/ he is bounden in conscience to yield the triple damages/ & also the place wasted. And the same law is in all statutis penal/ that is to say/ that no man is bound in conscience to pay the penalty till it be recovered by the law.  ¶ Stud. 
Whether may he that hath offended against such a statute penal defend the action & hinder the judgement to the intent he would not pay the penalty/ but only the single damagis.  ¶ Doctor. 
If the action be taken ryghtwysely according to the statute and upon a just cause/ the defendant may in no wise defend the action/ unless he have a true dylatorie matter to plead: which should be hurtful to him if he pleaded it not/ though he be not bound to pay the penalty till it be recovered.   

¶ The fourth question of the student. The xxiiii chapiter.  STudent. 
If a man infeffe another in certain land upon condition that if he infeffe any other: that it shallbe lawful for the feoffor and his heirs to re-enter &c. whether is this condition good in conscience though it be void in the law  ¶ Doctor. 
What is the cause why this condition is void in the law.  ¶ Stud. 
The cause is this/ by the law it is incident to every state of fee simple/ that he that hath that estate may lawfully by the law & by the gift of the feoffor make a feoffment thereof. And than when the feoffor restraineth him after that he shall make no feoffment to no man against his own former grant/ & also against the purity of the state of a fee simple/ the law judgeth the condition to be void/ but if the condition had been that he should not have infeoffed such a man/ or such a man that condition had been good/ for yet he might infeffe other.  ¶ Doctor. 
though the said condition be against the effect of the stand of a fee simple & also against the law. Nevertheless it is not against the intent that the parties agreed upon and that at the time of the livery. And for as much as the intent of the party was that if the feoff infeffed any man of the land/ that the the feoffor should enter/ & to that intent the feoff took the estate & after break the intent it seemeth that the land in conscience should return to the feoffor.  ¶ Stud. 
the intent of the parties in the laws of England is void in many cases/ that is to say if it be not ordered according to the law. As if a man of his mere motion without any recompense intending to give lands to another & to his heirs make a deed unto him/ whereby he giveth him the lands to have & to hold to him for ever intending that by that word (for ever) the feoff should have the land to him & to his heirs/ in this case his intent is void/ and the other shall have the land only for term of life. Also if a man give lands to another & to his heirs for term of twenty years intending that if the lessee die within the term/ that than his heirs should enjoy the land during the term. In this case his intent is void/ for by the law of the realm all chatellies real and personal shall go to the executors/ and not to the heir. Also if a man give lands to a man & to his wife/ and to the third person intending that every of them should take the third part of the land as three common persons should his intent is void/ for the husband and the wife as one person in the law shall take only the one half & the third person the other half/ but these cases be always to be understand where the said estates be made without any recompense And for as much as in this principal case/ the intent of the feoffor is grounded against the law: & that there is no recompense appointed for the feoffment: me thinketh that the feoffor hath neither right to the land by law nor conscience/ for if he should have it by conscience/ that conscience should be grounded upon the law of reason & that it can not/ for conditions be not grounded upon the law of reason/ but upon the maxymes & custom of the realm. And therefore it might be ordained by statute/ that all conditions made upon land should be void. And when a condition is void by the maxims of the law/ it is as fully void to every intent as if it were made void by statute/ & so me thinketh that in this case the feoffor hath no right to the land in law nor in conscience.  ¶ doctor. 
I am content thy opinion stand till we shall have hereafter a better leisure to speak ferther in this matter.   

☞ The .v. question of the Student. The xxv Chapitre.  STudent. 
If a fine with proclamation be levied according to the statute & no claim made within .v. years. &c. whether is the right of a stranger extincted thereby in conscience/ as it is in the law.  ¶ doctor. 
Upon what consideration was that statute made.  ¶ Student 
that the right of lands and tenements might be the more certainly known and not to be so uncertain as they were before that statute.  ¶ doctor. 
And when any law of man is made for a common wealth/ or for a good peace and quietness of the people/ or for any inconvenience or hurt to be saved from them/ that law is good though percase it extinct the right of a stranger and must be kept in the court of conscience for as it is said before in the four chapiter. By laws rightewysely made by man: it appeareth who hath right to the lands and goods: for what so ever a man hath by such a law he hath it rightewisely.  
And what so ever he holdeth against such a law he holdeth unrightwisely. And furthermore as it is said there all laws made by man/ which be not contrary to the law of god must be observed and kept/ and that in conscience.  
And he that despiseth them despiseth god: and that resisteth them resisteth god/ also it is to be understand that possessions/ and the right thereof be subject to the laws/ so that they therefore with a cause reasonable may be translated and altered from one man to another by the act of the law. And of this consideration that law is grounded that by a contract made in feyres and markets the propriety is altered except the propriety be to the king/ so that the bier pay tolle/ or do such other things as is a customed there to be done upon such contracts/ and that the bier knoweth not the former propriety. And in the law Civil there is a like law that if a man have another man's good with a title iii year thinking that he hath right to it he hath the very right unto the thing: and that was made for a law to the intent that the propriety and right of things should not be uncertain/ & that variance & strife should not be among the people. And for as much as the said statute was ordained to give a certeinte of title in the lands & tenements comprised in the fine/ It seemeth that that fine extincted the title of all other/ as well in conscience as it doth in the law. And sith I have answered to thy question I pray the let me know thy mind in one question concerning tailed lands & than I will trouble the no ferther at this tyme.   

☞ A question made by the Doctor/ how certain recoveries that be used in the kings courts to defeat tailed land may stand with conscience. The xxvi Chapitre.  Doctor. 
I have herd say that when a man that is seized of lands in the tail selleth the land. That it is commonly used that he that buyeth the land shall for his surety/ & for the avoiding of the tail in that behalf/ cause some of his friends to recover the said lands against the said tenant in tail: which recovery as I have been credibly informed shall be had in this manner/ the demaundauntes shall suppose in their writ & declaration that the tenant hath no entry/ but by such a stranger as the bier shall list to name & appoint/ where in deed the demaundauntes never had possession thereof/ nor yet the said stranger. And thereupon the said tenant in tail shall appear in the court & by coven & by alien of the parties/ shall vouch to warrant one that he knoweth well hath nothing to yield in value. And that vouch shall appear & the demaundauntes shall declare against him/ & thereupon he shall take a day to enperle in the same term: & at that day by assent & coven of the parties/ he shall make default upon which default because it is a default in despite of the court/ the demaundauntꝭ shall have judgement to recover against the tenant in tail/ & he over in value against the vouch & this judgement & recovery in value/ is taken for a bar of the tail for ever/ how may it therefore be taken that that law standeth with conscience that as it seemeth alloweth & favoureth such feigned recoveries.  ¶ Student. 
If the tenant in tail sell the land for a certain sum of money as is agreed betwixt them at such a price as is commonly used of other lands/ & for the surety of the sale suffereth such a recovery as is aforesaid/ what is the cause that moveth the to doubt whether the said contract or the recovery made thereupon: for the surety of the bier that hath truly paid his money for the same should stand with conscience.  ¶ Doctor. 
Two things cause me to doubt therein/ one is for that that aft our lord had given the land of behest to Abrahan & to his seed/ that is to say to his children in possession alway to continue/ he said to Moses as it appeareth Leviticem. xxv. the land shall not be sold for ever/ for it is mine. And than our lord assigned a certain manner how the land might be redeemed in the year of jubilee if it were sold before: & for as much as our lord would that the land so given to Abraham & his children should not be sold for ever/ it seemeth that he doth against the ensample of god that alieneth or selleth the land that is given to him & to his children as lands entailed be given. Another cause is this: it appeareth by the commandment of god that thou shalt not covet the house of thy neighbour. &c. And if the concupiscence be ꝓhibited more stronger the unlawful taking & withholding thereof is prohibit/ & for as much as tailed land when the ancestor is deed is a thing that of right is belonging to his heir/ for that he is heir according to the gift/ how may that land with right or conscience be holden from him  ¶ Student. 
notwithstanding that prohibition of almighty god: whereby the land that was given to Abraham & to his seed might not be aliened for ever/ yet lands within walled towns might lawfully be aliened for ever/ except the lands of the levites as it appeareth in the said chapiter of Leuitici xxv And so it appeareth that the said prohibition was not general for every place: & that among the jews.  
And it appeareth also that it was given only for Abraham & his children/ & so it was not general to all people. And it appeareth also that it extended not but only to the land of promission/ as it appeareth by the words of the said chapiter/ where it is said thus all the region of your possession shallbe sold under the condition of redeeming/ whereby appeareth that lands in other countries be not bound to that condition/ and as they be not bound to that condition: by the same reason/ it followeth that they be not bound to the same succession. Therefore the said law that will that the land given to Abraham & to his seed shall not be sold for ever/ bindeth no land out of the land of promission/ & some men will say that sithen the passion of our lord was promulgate & known it bindeth not there. And to the second reason which is grounded upon the commandment of god: It must needs be granted that it is not lawfully to any man unlawfully to cover the house of his neighbour/ & that than more stronger he may not unlawfully take it from him: but than it remaineth for the yet to prove/ how in this case this tailed land that is sold by his ancestor/ & whereof a recovery is had of record in the kings court may be said the land of the heirs.  ¶ Doctor. 
that may be proved by the law of the real me/ that is to say by the statute of westminster the second the first chapiter/ where it is said thus. The will of the giver expressly contained in the deed of his gift shallbe from henceforth observed/ so that they to whom the tenements be so given shall not have power to alien/ but that the lands after their death shall remain to their issue or return to the donor if the issue fail/ by the which statute it appeareth evidently that though they to whom the tenements were so given aliened them away/ that yet nevertheless they in law & conscience by reason of the said statute ought to remain to the heirs according to the gift/ for it is holden commonly by all Doctoures that the commandments & rules of the law of man or of a positive law that is lawfully made/ bind all that be subjects to that law according to the mind of the maker & that in the court of conscience.  ¶ Student. 
Dost thou think that if a man offend against a statute penal that he offendeth in conscience admit that he do it not of a wilful disobedience for that he will not obey the law/ for if he do it of disobedience I think he offendeth  ¶ Doctor. 
If it be but only a statute that is called Populare it bindeth not in conscience to the payment of the penalitie/ till it be recovered by the law. And than it doth bind in conscience/ but if a statute be made principally to remedy the hurt of the party/ & for that hurt it giveth a penalty to the party in that case the offender of the statute is bound immediately to restore the damages to the value of the hurt as it is upon the statute of waste/ but the penalty above the hurt he is not bound to pay till judgement be given as it is said before/ but statutes by the which it is assigned who shall have right or proꝑtye to these lands & tenements/ or to these goods or catailes if it be not against the law of god/ nor against the law of reason bind all them that be subgecte to the law: in law & conscience/ & such a statute is the statute of westminster the ii whereof we have treated before/ wherefore it must▪ be observed in conscience.  ¶ Stud. 
But some hold that the said statute of Westmynster▪ the ii was made of a singularity & presumption of many that were at the said parliament for exalting and magnifienge of their own blood: & therefore they say that that statute made by such a presumption bindeth not in conscience.  ¶ Doctor. 
It is very perilous to judge for certain that the said statute was made of such a presumption as thou speakest of/ for there be many considerations to prove that the said statute was not made of such a presumption but rather of a very good mind of all the parliament/ or at the lest of the more part thereof/ & for the common wealth of all the realm/ & first in the king the which in the said parliament was the heed and most chief & principal part of the parliament as he is in every parliament/ can not be noted no such intent/ For it is not necessary nor it was not than in use that lands of the crown should be entailed: & in spiritual men ne yet in certain burgesies & cytizens of the said parliament which at that time had no land/ there can be noted no such singularity/ nor yet in the noble men & gentlemen nor such other as were of the said parliament & had lands & tenements It is not good to judge in certain that they did it of such a presumption/ but it is good and expedient in this case as it is in other cases that be in doubt to hold the surer way/ and that is that it was made of charity/ to the intent that he nor the heirs of him to whom the land was given should not fall in to extreme poverty/ and thereby haply to run in to offence against god/ and though it were true as they say that it was not made of charity but of presumption and singularity as they speak of. Nevertheless for as much as the statute is not against the law of god nor against the law of reason it must be observed by all them that be subjects unto that law/ For as Iohn Gerson saith in the treatise that he entitleth in latin De vita spirituali anime: the fourth lesson & the third corollary: saith that god will that makers of laws judge only of outward things & reserve secret things to him. And so it appeareth that man may not judge of the inward intent of the deed/ but of such things as be apparent/ & certain it is that it is not apparent that there was any such corrupt intent in the makers of the said statute/ how may it therefore be said that that law is good or right wise/ that not only suffereth such things against the statute/ but also against the commandment of god.  ¶ Student. 
To that some answer & say: that when the land is sold & a recovery is had thereupon in the kings court of record that it sufficeth to bar the tail in conscience/ for they say that as the tail was first ordained by the law.  
So they say that by the law it is annulled again.  ¶ doctor. 
Be thou thyself judge if in that case there be like authority in the making of the tail as there is in the adnulling thereof/ for it was ordained by authority of parliament/ the which is always taken for the most high court in this realm before any other/ and it is annulled by a false supposell: for that that they that be named demaundauntes should have right to the land where in truth they never had right thereto: whereupon followeth a false supposell in the writ/ & a false supposell in the declaration & a voucher to warrant by covin of such a person as hath nothing to yield in value & thereupon by covin & collusion of the perties followeth the default of the vouchees: by the which default the judgement shall be given. And so all that judgement is derivyed & grounded of the untrue supposell & ovyn of the parties/ whereby the law of realm that hath ordained such a writ of entry to help them that have right to lands or tenements is defrauded: the court is deceived the heir is disherited: & as it is to doubt the bier & the seller & their heirs & assigns having knowledge of the tail be bound to restitution/ and verily I have heard many times/ that aft the law of the realm such recoveries should be no bar to the heir in the tail if the law of the realm might be therein indifferently hard.  ¶ Student. 
I can not see but that after the law of the realm it is a bar of the tail/ for when the tenant in tail hath vouched to warrauntie/ and the vouchee hath appeared & entered in to the warranty/ & after hath made default in despite of the court: whereupon judgement is given for the demandant against the tenant/ & for the tenant that he shall recover in value against the vouchee/ the heir in the tail should after bring his form done and recover the lands entailed/ and after vouchee purchaseth lands/ than should the heir also have execution against him to the value of the lands entailed as heir to his ancestor that was tenant in the first action: and so he should have his own lands/ and also the lands recovered in value: and therefore because of that presumption that the vouchees may purchase lands after the judgement/ some be of opinion that it is in the law a good bar of the tail.  ¶ Doctor. 
I suppose that in that case thou haste put that the vouch may bar the heir in tail of his recovery in value because he hath recovered the first lands. Nevertheless I will take a respite to be advised of that recovery in value. And if thou can yet show me any other consideration why the said recoveries should stand with conscience/ I pray the let me here thy conceit therein/ for the multitude of the said recoveries is so great that it were great pity that all they should be bound to restitution that have lands by such recoveries sith there is none that as far as I can here disposeth them to restore.  ¶ Student. 
Some men make an other reason to prove that the said recoveries should be sufficient by the law to a void the state of west. than & if they be sufficient thereto/ they be sufficient in conscience.  ¶ Doctor. 
What is their reason therein.  ¶ Student. 
In the vii year of king Henry the viii the four chapiter among other things it is enacted/ that all recovers their heirs & assigns may avow and justify for rents service and customs by them recovered: as they against whom they recovered might have done.  
And than they say that when the parliament gave to such recoverers authority to avow & justify for such rents customs & services as they recovered/ that the intent of the parliament was that such recovers should have right to that: for the which they should avow or justify: for else they say that it should be in vain to give them such power/ & that the parliament should else be taken in manner as fortifiers of wrong full rules: & so they say that such recoverers by reason of the said statute have right the law.  ¶ Doctor. 
That statute as it seemeth was made only to give to the recoverers a form to avow & justify/ which they had not before though they had recovered upon a good title. And the cause why they had no form to avow or justify before the said statute was for as much as the recoverers did not by the pretence of their action affirm the possession of him or them against whom they recovered/ nor claimed not by them/ but rather disafermed and destroyed their estate. And therefore they can not allege any sustenance of their title by them/ as they may that have rents or services/ or such other of the grant of other by deed or by fine. And therefore as it seemeth the most principal intent of that statute was: that such recoverers should avow & justify for rents services & customs as they should or might do that had them by fine or deed not having any respect as it seemeth whether they recovered against tenant in fee simple or in fee tail/ nor whether the recoveries were had upon a rightful title. And therefore as me seemeth the said statute neither affirmeth nor disaffermeth the title of the recoveries whereby they do avow for if a man had right before the recovery that right should remain unto him notwithstanding the said statute: & so me seemeth that the title of them that have the lands entailed by such recoveries is nothing fortified nor affirmed by the said statute but that they are in the same case as they were before: what thinkest thou therein.  ¶ Student 
/ this matter is great/ for as thou saist there be so many that have tailed lands by such recoveries/ that it were great pity & heaviness to condemn so many persons & to judge that they all were bound to restitution: For I think there be but few in this real me that have lands of any notable value but that they or their ancestors/ or some other by whom they claim have had part thereof by such recoveries/ In so much that lords spiritual & temporal knights/ squires rich men/ & poor/ monasteries / colleges/ and hospitals have such lands/ for such recoveries have been used of long time/ who may think therefore without great heaviness that so many men should be bound to restitution/ and that yet as thou saist/ no man disposeth him to make restitution. And so I am in manner perplexed and wots not what to say in this case/ but that yet I trust that ignorance may excuse many persons in this behalf.  ¶ doctor. 
Ignorance of the deed may excuse/ but ignorance of the law excuseth not but it be invincible/ that is to say that they have done that in them is to know the truth as to council with learned men: and to ask them what the law is in that behalf and if they answer them that they may do this or that lawfully/ than they be thereby excused in conscience/ but yet in man's laws they be not thereby discharged/ but they that have taken upon them to have knowledge of the law be not excused by ignorance of the law/ ne no more are they that have a wilful ignorance & that would rather be ignorant than to know the troth. And therefore they will not dispose them to ask any council in it/ & if it be of a thing that is against the law of god/ or the law of reason/ no man shallbe excused by ignorance/ and to there be but few that be excused by ignorance.  ¶ Student. 
what then shall we condemn so many & so no table men.  ¶ doctor. 
We shall not condemn them/ but we shall show them their peril.  ¶ Student. 
yet I trust that their danger is not so great that they should be bound to restitution. For johan Gerson saith in the said book called Devintate ecclesiastica consideracione secunda/ quod communie error facitius. That is to say a common error maketh a right/ of which words as it seemeth some trust may be had/ that though it were fully admitted that the said recoveries were first had upon an unlawful ground and against the good order of conscience that yet nevertheless for as much as they have been used of long time/ so that they have been taken of divers men that have been right well learned in manner as for a law/ that the buyers partly be excused so that they be not bound to restitution. And moreover it is certain that that statute of westm the. 2 nor none other statute made by man can not be of greater virtue or strength/ than was the bond of matrimony that was ordained by god. And though that bond of matrimoni was indissoluble/ yet nevertheless Moses suffered a bill of refusal to the jews/ which in latin is called Libellun repudu/ and so they might thereby forsake their wife's. As it appeareth Deutro. xxiii. & therefore like as a dispensation was sufred against that bond/ so it seemeth it may be against this statute.  ¶ Doctor. 
as to that reason that thou haste last made of a bill of refusal/ let all purchasours of land here what our lord saith in the Gospel to the jews of that bill of refusal Mathei. nineteen. where he saith thus/ To the hardness of your hearts/ Moses' suffered you to leave your wives/ for at the beginning it was not so/ of which words Doctors hold commonly that though such a bill of refusal was lawful so that they that refused their wives thereby/ should be without pain in the law/ that yet it was never lawful so that it should be with out sin. And so likewise it may be said in this case/ that such recoveries be suffered for the hardness of the hearts of englishmen/ which desire land & possessions with so great greediness that they can not be withdrawn from it neither by the law of god/ nor by the law of the realm And therefore that rich men should not take the possessions of poor men from them by power without colour of title/ that is to say either by open disseson/ or by the only sale of the tenant in tail & so to hold them against the express words of the statute/ such recoveries have been suffered. And though for their great multitude they may haply be without pain as to the law of the realm: yet it is to fear that they be not without offence as against god/ & as to thy other reason that a common error should make a right those words as me seemeth be to be thus understand/ that a custom used against the law of man shallbe taken in some countries for law if the people be suffered so to continue. And yet some men call such a custom an error because that the continuance of that custom against the law: was partly an error in the people/ for that that they would not obey to the law that was made by their superiors to the contrary of that custom: but it is to be understand that the said recoveries though they have been long used may not be taken to have the strength of a custom/ for many as well learned as unlearned have alway spoken against them and yet do. And furthermore as I have herd say a custom or a pnscription in this realm against the statutes of the realm prevail not in the law.  ¶ Student. 
though a custom in this realm prevaileth not against a statute as to the law/ yet it seemeth that it may prevail against the statute in conscience/ for though ignorance of a statute excuseth not in the law/ nevertheless it may excuse in conscience/ & so it seemeth that it may do of a custom.  ¶ doctor. 
But it such recoveries can not be brought in to a lawful custom in the law/ it seemeth they may not be brought in to a custom in conscience/ for conscience must always be grounded upon some law: & in this case it can not be grounded upon the law of reason/ nor upon the law of god: and therefore if the law of man serve not/ there is no ground whereupon conscience in this case may be grounded/ & at the beginning of such recoveries they were taken to be good/ because the law should warrant them to be good and not by reason of any custom and so if the reason of the law will not serve in though recoveries/ the custom can not help for an evil custom is to be put away. And therefore me seemeth that though recoveries be not without offence against god/ though haply for their great multitude/ and that there should not be as it were a subversion of the inheritance of many in this realm: as well of spiritual as temporal/ they be without pain in the law of the realm: except such recoveries as by the common course of the law be voidable in the law by reason of some use/ or of some other special matter/ but what pain that is I will not temerously judge/ but commit it to the goodness of our lord whose judgements be very deep and profound/ nor I will not fully affirm that they that have lands by such recoveries ought to be compelled to restitution/ but this seemeth to me to be good council that every man hereafter hold that is certain & leave that is uncertain & that is that he keep himself from such recoveries and than he shallbe free from all sertrulousnes of conscience/ in that behalf  ¶ Student. 
It seemeth that in this question thou ponderest greatly the said statute of Westm. the ii & that though it be but only a law made by man/ that yet for as much as it is not against the law of reason/ nor the law of god/ thou thinkest that it must be holden in conscience/ and over that as it seemeth thou art somewhat in double whether those recoveries be any bar to the heir in the tail by the law of the realm unless that he have in value in deed upon the voucher/ & that thou wilt thereupon take a respite or thou show thy full mind therein/ & in likewise thou thinkest as I take it that those recoveries can not be brought in to a custom but that the longer that they be suffered to continue if they be not good by the law the greater is the offence against god. And therefore thou ponderest little that custom/ but yet thou agreest that it is good to spare the multitude of them that be paste: lest a subversion of the inheritance of many of this realm might follow & great strife & variance also: if they should be annulled for the time past: except there be any other especial cause to avoid them by the law as thou haste touched in thy last reason/ but thou thinkest that it were good that from henceforth such recoveries should be clearly prohibit & not be suffered to be had in use as they have been before: & thou counceyllest all men therefore to refrain themself from such recoveries hereafter.  ¶ Doctor. 
Thou takest well that I have said & according as I have mente it  ¶ Student. 
Now I pray the sith I have hard thy question of these recoveries according to thy desire that thou wouldest answer me to some particular questions concerning tailed lands: whereof thou hast at this time given us occasion to speak.  ¶ doctor. 
show me those questions: & I will show the my mind therein with good will ∴   

☞ The first question of the Student concerning tailed lands. The xxvii Chapitre.  Student. 
If a dissesour make a gift in the tail to johan at style & johan at style for the redeeming of the title of the dissesye agreeth with him that he shall have a certain rent out of the same land to him & to his heirs/ & for the surety of that rent it is devised that the dissesye shall release his right in the land. &c. & that such a recovery as we have spoken of before shallbe had against the said johan at style to the use of the payment of the said rent and of the former tail whether standeth that recovery well with conscience or not as thou thinkest.  ¶ Doctor 
I suppose it doth for it is made for the strength and surety of the tail which the dissesye might have clearly defeated & avoided if he would/ & therefore as I think if the said johan at style had granted to the dissesye only by his deed a certain rent for the releasing of his title that grant should have bound the heirs in the tail for ever. And than if the dissesye for his more surety will have such a recovery a before appeareth it seemeth that that recovery standeth with good conscience.  ¶ Student. 
It seemeth that thy opinion is right good in this matter. And so it appeareth that with a reasonable cause some particular recoveries may stand both with law and conscience to bar a tail.   

☞ The second question of the Student concerning tailed lands ⸫ The xxviii Chapitre.  STudent. 
I a tenant in tail suffer a recovery against him of the lands entailed to the intent that the recoverers shall stand seized thereof to the use of a certain woman whom he intendeth to take to his wife/ for term of her life/ and after to the use of the first tail: and after he marrieth the same woman/ whether standeth that recovery with conscience though other recoveries upon bargains and sales did nat.  ¶ doctor. 
It seemeth yes/ for though the statute be/ that they to whom the tenements be so given should not have power to alien/ but that the lands after their death should remain to their issues or revert to the donors if the issues failed: yet if he to whom the lands were so given take a wife & dieth seized without heir of his body/ and the donor enter the woman shall recover against him the third part to hold in the name of her dower for term of her life though the tail be determined/ & the same law is of tenant by the courtesy: that is to say of him that happeneth to mary one that is an enheritrix of the land entailed: & they have issue the wife dieth & the issue dieth/ he shall hold the lands for term of his life as tenant by the courtesy/ natwithstanding the words of the statute which say that after the death of the tenant in tail without issue the lands shall revert to the donor/ & I think the cause is because the intent of that statute shall not be taken that it intended to put away such titles as the law should give by reason of the tail/ & so it seemeth that a like intent of the statute shall be taken for jointures/ for else the statute might be sometime a letting of matrimony/ & it is not like that the statute intended so/ & therefore it seemeth that by the only deed of the tenant in tail a jointure may be made by the intent of the statute/ though the words of the statute serve not expressly for it/ for many times the intent of the letter shallbe taken & not the bare letter/ as it appeareth in the same statute where it is said that he to whom the lands be given shall have no power to alien/ yet the same statute is construed that neither he nor his heirs of his body shall have no power to alien/ & so me thinketh that such an intent shallbe taken here for saving of jointures.  ¶ Student. 
troth it is that sometime the intent of a statute shallbe taken ferther than the express letter stretcheth/ but yet there may no intent be taken against the express words of the statute/ for that should be rather an interpretation of the statute than an exposition & it can not be reasonably taken/ but that the intent of the makers of the statute was that the land should remain continually in the heirs of the tail as long as the tail endureth/ & there can no jointure be made neither by deed nor be recovery/ but that the tail must thereby be discontinued/ & therefore this case of jointoure is not like to the said cases of tenant in dower or tenant by the courtesy/ for the title of dowry & of tenaunty by the courtesy groweth most specially by the continuance of the possession in the heirs of the tail but it is not so of jointures/ & therefore by the only deed of the tenant in tail/ there may no joyntour be lawfully made against the express words of the statute. And if there be any made by way of recovery/ than it seemeth that it must be put under the same rule as other recoveries must be of lands entailed.   

☞ The third question of the Student/ concerning tailed lands ⸫ The xxix Chapitre.  STudent. 
If Iohn at noke being seized of lands in fee of his mere motion make a feoffment of a certain lands to the intent that the feoffs shall thereof make a gift to the said johan at noke to have to him and to his heirs of his body and they make the gift according. And after the said johan at noke falleth in to debt/ wherefore he is taken & put in prison/ and thereupon for payment of his debts he selleth the same land/ and for surety of the bier he suffereth a recovery to be had against him in such manner as before appeareth/ whether standeth that recovery with conscience or nat.  ¶ Doctor 
I would here make a little digression to ask the another question or that I made answer to thine: that is to say to feel thy mind how that law by the which the body of the debtor shallbe taken & cast in to prison there to remain till he have paid the debt may stand with conscience specially if the have nothing to pay it with/ for as it seemeth if he will relinquisshe his goods/ which in some laws is called in latin Cedere bonis that he shall not be inprysoned/ and that is to understand most specially if he be fallen in to poverty and not through his own default.  ¶ Student. 
There is no law in this realm that the defendant may in any case Cedere bonꝭ/ and as me seemeth if there were such a law it should not be indifferent/ for as to the knowledge of him that the money is owing to the debtor might Cedere bonis/ that is to say relinquisshe his goods/ and yet retain to himself secretly great riches. And therefore that law in such case seemeth more indifferent and righteous that committeth such a debtor to the conscience of the plaintive to whom the money is owing than that committeth him to the conscience of him that is the debtor/ for in the debtor some default may be assigned/ but in him to whom the money is owing may be assinged no default.  ¶ Doctor. 
But if he to whom the debt is owing/ knoweth that the debtor hath nothing to pay the det with/ & that he is fallen in to that poverty by some casualty. And not through his own default/ doth the law of England hold that he may with good conscience keep the debtor still in prison till he be paid.  ¶ Student. 
nay verily: but it thinketh more reasonable to appoint the liberty & the judgement of conscience in that case to the debt than to the debtor/ for the cause before rehearsed. And than the debt/ if he know the truth is as thou haste said bound in conscience to let him go at liberty though he be not compellable thereto by the law. And therefore admitting it for this time/ that the law of England in this point is good & just. I pray the that thou wilt make answer to my question.  ¶ Doctor. 
I will with good will/ & therefore as me seemeth for as much as it appeareth that the said gift was made of the mere liberty & free will of the said johan at noke/ & without any recompense that therefore it can not be otherwise taken/ but that the intent of the said johan at noke as well at the time of the said feoffment/ as at the time that he received again the said gift in the tail/ was that if he happened afterwards to fall in to poverty/ that he might alien the said land to relieve him with/ for how may it be though that a man will so much pondre the wealth of his heir/ that he will forget himself/ & so it seemeth that not only the said recovery standeth with conscience: but also that if he had made only a feoffment of the land that that feoffment should be in conscience a good bar of the tail/ but if the said feoffment and gift had been made in consideration of any recompense of money or for any matrimony or such other/ than the feoffment of the said johan at noke should not bind his heir/ and if he than suffered any recovery thereof: than that recovery should be of like effect as other recoveries whereof we have treated before/ & the which I said it was good to favour rather for their multitude than for the conscience: & the same law is that if the son and the heir of the said johan at noke in case that the said gift was made without recompense alien the land for poverty after the death of his father that recovery bindeth not but as other recoveries do/ for it can not be thought that the intent of the father was that any of his heirs in tail should for any necessity dissherite all other heirs in tail that should come after him but for him self me thinketh it is reasonable to judge in such manner as I have said before.  ¶ Student. 
And though the intent of the said johan at noke when he made the said feoffment/ and when he took again the said gift in tail: were that if he fell in need that he might alien: yet I suppose that he may not alien though percase for the more surety he declared his intent to be such upon the liveries of season: for that intent was contrary to the gift that he freely took upon him: and when any intent or condition is declared or reserved against the state that any man maketh or accepteth: than such an intent or condition is void by the law as by a case that hereafter followeth will appear/ that is to say if a man make a feoffment in fee upon condition that the feoff shall not alien it to any man that condition is void for it is incident to every state of the fee simple that he that is so seized may alien. And like as in a fee simple there is incident a power to alien/ so in a state tail there is a secret intent understand in the gift/ that no alienation shallbe made.  
And therefore though the intent of the said johan at noke were that if he fell in to poverty that he might sell: & though he at the taking of the gift openly declared his intent to be so/ yet that intent should be void by the law as me seemeth and if it be void by the law it is also void in conscience/ and so the said recovery must be taken in this case to be of the same effect as recoveries of other lands entailed be/ and in none other manner.   

☞ The four question of the Student/ concerning recoveries of inheritance entailed. The xxx Chapitre.  STudent. 
If an annuite be granted to a man to have & to perceive to the grant and to the heirs of his body of the coffers of the grantor. And after the grant suffereth a recover against him in a writ of entry by the name of a rent in dale of like sum as the annuite is of with vouchers & judgement after the common course/ & both parties intend that that annuite shallbe recovered: whether shall that recover bind the heir in the tail of his annuite.  ¶ Doctor. 
what if it were a rent going out of land of what effect should the recover be than.  ¶ Student. 
It should be than of like effect as if it were of land.  ¶ doctor. 
And so it seemeth to be of this annuite/ for as me thinketh a rent & an annuite be of one effect/ for the one of them shallbe paid in ready money as the other shall.  ¶ Student. 
That is troth and yet there be many great diversities betwixt them in the law.  ¶ doctor. 
I pray the show me some of the diversities.  ¶ Student. 
part I shall show thee/ but I wots not whether I can show the all but first thou shalt understand that one diversity is this. Every rent be it rent service/ rent charge/ or rend seek/ is going out of land/ but an annuite goth not out of any land/ but chargeth only the person: that is to say the granntor or his heirs that have assez by discente/ or the house if it be granted by a house of a religion to perceive of their coffers. Also of an annuyte there lieth no action but only a writ of annuite against the grantor his heirs or successors/ & that writ of annuite lieth never against the pernoure: but only against the grantor or his heirs/ but of a rent the same actions may lie as do of land as the case requireth: & it lieth sometime of rent against the tenant of the ground/ and sometime against the pernour of the rent/ that is to say against him that taketh the rent wrongfully/ & sometime against neither: as of a rent service assize may lie for the lord against the mesme and a dissesoure/ or sometime against the mesne only if he did also the disseason. Also an annuite is never taken for an asses because it is no freehold in the law/ ne it shall not be put in execution upon a statute merchant/ statute staple ne elegit as rent may. And because the said writ of entry lay not in this case of this annuite. And that it can not be intended in the law to be the same annuite/ though it be of like sum with the annuite: ne though the parties assented and mente to have the same annuite recovered by the said writ of entry/ therefore the said recovery is void in law and conscience/ but if such a recovery be had of rent with a voucher over than it shallbe taken to be of like effect as recoveries of lands be in such manner as we have treated of before.   

☞ The .v. question of the Student/ concerning tailed lands. The xxxi Chapitre.  STudent. 
If lands be given to a man and to his wife in the name of his jointoure by the father of the husband to have and to hold to them and to the heirs of their two bodies begotten/ and after they have issue & the husband dieth and the wife alieneth the land/ & against the statute of xi H. seven. suffereth a recovery thereof to be had against her to the use of the bier/ and after her son & heir apparent/ that is heir to the tail releaseth to the recoverers by fine & dieth having a brother on live/ and after the mother dieth who hath right to that land the bier or the brother of him that released.  ¶ doctor. 
what is thine opinion therein/ I pray the show me.  ¶ Student. 
We seemeth that the bier hath right/ for by the said statute made in the xi year of king Henry the vii among other things it is enacted that if any man/ which hath lands of the gift of her husband/ or of the gift of any of the ancestors of the husband/ suffer any recovery thereof against her by covin/ that than such recovery shall be void/ and that it shallbe lawful to him that should have the land after the death of the woman to enter and it to hold as in his first right/ provided alway that that statute shall not extend where he that should have the land after the death of the woman is agreeable to any such alienation or recovery: so that/ that agreement be of record. And for as much as the heir in this case agreed to the said recovery by fine/ which is one of the highest records in the law/ it seemeth that the bier hath right against that heir that agreed and against all that shallbe heirs of the tail/ and that not only by the said recovery/ but also by the said statute whereby the said recovery with assent of the heir is affirmed.  ¶ Doctor. 
Though the bier in this case have right during the life of the heir that released/ yet nevertheless after his death his heir as it seemeth may lawfully enter/ for the agreement whereof the statute speaketh must as I suppose either be had before the recovery/ or else at the time of the recovery: for if a title by reason of the said statute be ones devolute to the heir in the tail/ than that right as it seemeth can not be extinct nor put away by the only fine of the heir/ no more than if he had died and the next heir to him had released to the bier by fine/ in which case the release could not extinct the right of the rail/ nor the right of entry that is given by the statute/ & so as me seemeth his next heir may therefore enter.  ¶ Student. 
As I perceive all thy doubt is in this case because the assent of the heir was after the recovery/ for if it had been at the time of the recovery as if the heir had been vouched to warranty in the same recovery and he had interred: and thereupon the judgement had be given thou agreest well/ that that recovery should have avoided the tail for ever.  ¶ doctor. 
That is true for it is in the express words of the statute/ but when the assent is after the recovery/ than me thinketh it is not so/ ne that the right of the first tail/ which was revyed by the said statute shall not be extinct by his fine/ no more than it shall in other tails.  ¶ Student. 
I will be advised upon thy opinion in this matter/ but yet one thing would I move ferther upon this statute and that is this. Some say that by this statute all other recoveries that have been had/ over and beside these recoveries of 〈◊〉 be affirmed/ for they say that sith the parliament at the making of this statute/ knew well that many other recoveries were than used and had to defeat tails and that it was like that they would so continue/ which nevertheless the parliament did not prohibit for the time to come as it died the said recoveries of jointures: that it is therefore to suppose that they thought that they should stand with law and conscience: but because jointoures were made rather for the saving of the inheritance of the husband/ than to destroy the inheritance/ they say that the parliament thought and adjudged the alienations and recoveries of such jointours to be against the law and conscience and not the alienation of other lands entailed/ for if they had they say/ that the parliament would have avoided recoveries of tailed lands generally aswell as it did of recoveries of jointures.  ¶ doctor. 
As to that opinion I will answer the thus for this time/ that though that the makers of the said statute only put away recoveries of jointures/ and not other recoveries that yet it can not be taken therefore that their intent was that the other recoveries should stand good and perfit/ for they speak than only of jointours because there was no complaint made in the parliament at that time/ but against recoveries had of jointures/ and therefore it seemeth that they intended nothing concerning other recoveries: but that they should be of the same effect as they were before and no otherwise. And that will appear more plainly thus/ though the makers of the said statute intended to put away and adnul such recoveries as should be made of jointours after a certain day limited in the statute/ that yet they intended not to avoid ne affirm such recoveries of jointours as were passed before that time: & if they intended not to avoid ne affirm the recoveries had of jointures before that time: than how can it be taken that they intended to put away or affirm other recoveries that were passed before that time and not of jointures/ that would not affirm ne put away recoveries passed of jointures before that time And so as it seemeth they intended to spare the multitude of them that were passed of both and not to comfort any to take them after that tyme.  ¶ Student. 
I am content thy opinion stand for this time/ and I will ask the another question.   

☞ The vi question of the Student/ concerning tailed lands. The xxxii Chapitre.  STudent. 
If tenant in tail be deceased/ and die and an ancestor collateral to the heir in tail release with a warranty and die/ and the warranty descendeth upon the heir in the tail/ whether is he thereby barred in conscience/ as he is in the law.  ¶ Doctor. 
Because our principal intent at this time is to speak of recoveries and not of warranties: and also because it hath been of long time taken for a principal maxim of the law that it should be a bar to the heir as well that claimeth by a fee simple as by a state tayly/ and for that also that it was not put away by the said statute of westminster the i which ordained the tail I will not at this time make the an answer than/ but will take a respite to be advised.  ¶ Student. 
Than I pray the yet or we depart show me what was the most principal cause that moved the so move this question of recoveries had of tailed lands.  ¶ Doctor. 
This moved me thereto/ I have perceived many times that there be many divers opinions of those recoveries: whether they stand with conscience or not/ & that it is to doubt that many persons rem into offence of conscience thereby. And therefore I thought to feel thy mind in them whether I could perceive that it were clear/ that they served to break the tail in law & conscience/ or that it were clearly against conscience so to break the the tail/ or that it were a matter in doubt and if it appeared a matter in doubt/ or that it appeared that the matter were used clearly against conscience/ than I thought to do somewhat to make the matter appear as it is to the intent: that they that have the rule and the charge over the people as well the spiritual men as temporal men/ should the rather endeavour them to see it reform for the common wealth of the people/ as well in body as in soul. For when any thing is used to the displeasure of god/ it hurreth not only the body but also the soul. And temporal rulers have not only cure of the bodies/ but also of the souls/ and shall answer for them if they perish in their default: and because it seemeth by the more apparent reason that the tails be not broken ne fully avoided by the said recoveries/ & that yet nevertheless the great multitude of them that be passed is right moche to be pondered Therefore it were very good to prohibit them for time to come/ to put away such ambiguities and dowtes as rise now by occasion of the said recoveries/ and so they be but as snares to deceive the people/ and so will they be as long as they be suffered to continue. And me thinketh verily that it were therefore right expedient that tailed lands should from henceforth either be made so strong in the law that the tail should not be broken by recovery fine with proclamation collateral warranty nor otherwise/ or else that all tails should be made fee simple/ so that every man that list to sell his land might sell it by his bare feoffment and without any scriple or grudge of conscience: & than there should not be so great expenses in the law nor so great variance among the people: ne yet so great offence of conscience as there is now in many persons.  ¶ Student. 
Verily me thinketh that thy opinion is right good and charitable in this behalf. And that the rulers be bound in conscience to look well upon it to see it reform and brought in to good order And verily by that thou haste said therein thou haste brought me in to remembrance that there be diverse like snares concerning spiritual matters suffered among the people/ whereby I doubt that many spiritual rulers be in great offence against god. As it is of that point that the spiritual men have spoken so moche of that priests should not be put to answer before lay men specially of felonies and murders/ and of the statute of xlv. E. iii. the iii chapiter/ where it is said that a prohibition shall lie/ where a man is sued in the spiritual court for tithe of wood/ that is above the age of twenty year/ by the name of silva cedua as it hath done before/ and they have in open Sermons and in diverse other open communicacions and counsels causes it to be openly notefied and known that they should be all accursed that put priests to answer/ or that maintain the said statute/ or any other like to it. And after when they have right well perceived that not withstanding all that they have done therein/ it hath been used in the same points through all the realm in like manner as it was before. Than they have sit still and let the matter pass/ and so when they have brought many persons in great danger/ but most specially them that have given credence to their saying/ and yet by reason of the old custom have done as they did before/ than there they have let them/ but verily it is to fear that there is to themselves right great offence thereby/ that is for to say to s● so many in so great danger as they say they be. And to do no more to bring them out of it than they have done for if it be true as they say/ they ought to stick to it with effect in all charity till it were reform. And if it be not as they say than they have caused many to offend that have given credence to them/ and yet contrary to their own conscience do as they did before/ and that percase should not have offended if such sayings had not been. And so it seemeth that they have in these matters done either to much or to libel And I beseech all mighty god that some good man may so call upon all these matters that we have now commoned of/ so that they that be in authority may somewhat ponder them/ & to order them in such manner that offence of conscience grow not so lightly thereby hereafter as it hath done in time paste. And verily he that on the cross knew the price of man's soul will hereafter ask a right straight account of rulers for every soul that is under them and that shall perish through their default.  

¶ Addition.  
THus I have showed unto the in this little Dialogue how the law of England is grounded upon the law of reason the law of god/ the general customs of the realm/ and upon certain principles that be called maxims upon the particular customs used in diverse Cities & country's/ and upon statutes which have been made in diverse parliaments by our sovereign lord the king and his progenitors/ and by the lords spiritual & temporal/ & all the commons of the realm.  
And I have also showed the in the ix chapiter of this book/ under what manner the said general customs & maxims of the law may be proved & affirmed if they were denied/ & divers other things be contained in this present Dialogue/ which will appear in the table/ that is in the latter end of the book/ as to the readers will appear. And in the end of the said Dialogue I have at thy desire showed the my conceit concerning recoveries of tailed lands/ and thou haste upon the said recoveries showed me thine opinion. And I beseech our lord set them shortly in a good clear way/ for surely it will be right expedient for the well ordering of conscience in many persons that they be so. And thus god of peace and love be always with us. Amen.    
¶ Here endeth the first Dialogue in english/ with new Additions betwixt a doctor of divinity/ and a Student in the laws of England. And here after followeth the Table ⸫   

¶ Tabula. Here aft followeth the table with certain Additions newly added thereto. And over all the chapters and questions which be newly added: Ye shall find entite led this word (Addition) both in the Table and also in the book  

THe introduction. Fo. 2.  
¶ Of the law eternal. The first. chapiter. Fo. 3.  
¶ Of the law of reason/ the which by Doctors is called the law of nature of reasonable creature. The. second. chapiter. Folio. 5.  
¶ Of the law of god. The three chapiter. Folio. 7.  
¶ Of the law of man. The four chapiter Folio. 9  
¶ Of the first ground of the law of England. The .v. chapiter. Fo. 11.  
¶ Addition. Fo. 12  
¶ Of the second ground of the law of England. The vi chapiter. Folio. 14.  
¶ Of the third ground of the law of England. The vii chapiter. Folio. 16.  
¶ Of the four ground of the law of England. The viii chapiter. Fo. 21.  
¶ Of diverse cases/ wherein the Student doubteth whether they be only maxims of the law/ or that they be grounded upon the law of reason. The ix chapiter. Folio. 25.  
¶ Of the .v. ground of the law of England. The ten chapiter. Fo. 27.  
¶ Of the vi ground. of the law of England. The xi chapiter. Folio. 28.  
¶ The first question of the doctor/ of the law of England and conscience. The xii chapiter. Fo. 29.  
¶ what Sinderisis is. The xiii chapiter Folio. 31.  
¶ Of reason. The xiiii cha. Fo. 32.  
¶ Of conscience. The xu cha. Fo. 33.  
¶ what is Equtie. The xvi chapiter. Folio. 36.  
¶ In what manner a man shallbe holpen by equity's in the laws of England. The xvii chapiter. Fo. 38.  
¶ whether the statute hereafter rehearsed by the doctor be against conscience or not. The xviii chapiter. Fo. 41.  
¶ Of what law this question is to be understand/ that is to say where conscience shallbe ruled after the law. The xix chapiter. Fo. 42.  
¶ Addition. Fo. 44.  
¶ Addition. Fo. 45.  
¶ Of diverse cases/ where conscience is to be ordered after the law. The twenty chapiter. Fo. 46.  
¶ Addition. Fo. 47.  
¶ The first question of the Student. The xxi chapiter. Fo. 49.  
¶ The second question of the Student. The xxii chapiter. Fo. 50.  
¶ The third question of the Student. The xxiii chapiter. Fo. 51.  
¶ The fourth question of the Student. The xxiii chapiter. Fo. 52  
¶ The .v. question of the Student. The xxv chapiter. Fo. 54.  
¶ A question made by the doctor/ how certain recoveries that be used in the kings courts to defeat railed land may stand with conscience. The xxvi cha. fo. 55  
¶ The first question of the student/ concerning tailed lands. The xxvii chapi. Fo. 65.  
¶ The ii question of the student/ concerning tailed lands. The xxviii chapi. Fo. 66.  
¶ The third question of the Student/ concerning tailed lands. The xxix chapiter. Fo. 68  
¶ The four question of the Student/ concerning recoveries of inheritance entailed The xxx chapiter. Fo. 70.  
¶ The .v. question of the Student/ concerning tailed lands. The xxxi chapiter. Folio. 72.  
¶ The vi question of the Student/ concerning tailed lands. The xxxii chapi. Fo. 74.  
Addition. Fo. 77.   
¶ Finis Tabule.   

¶ Thus endeth the first Dialogue in english/ with the Additions between a doctor of divinity and a Student in the laws of England which treateth of divers things that be shortly touched in the first less of this present book before the introduction.   

¶ Imprinted. at London in the Fleetstreet/ by me Robert Redman dwelling in saint Dunston's parish/ next the church. In the year of our lord god. M. CCCCC. XXXii. The first day of the month of july. ∴   


Robert Redman.    

¶ The second dialogue in english/ between a doctor of divinity and a student in the laws of England/ newly corrected and imprinted with new additions.   

HEre after followeth the second dialogue in english between a doctor of divinity & a student in the law of England. In the beginning of which dialogue the doctor answereth to certain questions/ which the student made to the doctor before the making of this dialogue concerning the laws of England & conscience/ as appeareth in a dialogue made between them in latin the 24. chap. And he answereth also to divers other questions that the student maketh to him in this dialogue of the law of England and conscience. And in divers other chapters of this present dialogue is touched shortly/ how the laws of England are to be observed & kept in this realm/ as to temporal things as well in law as in conscience before any other laws. And in some of the chapters thereof is also touched that spiritual judges in divers cases be bound to give their judgements according to the kings law. And in the later end of the book the doctor moveth divers cases concerning the laws of England/ wherein he doubteth how they may stand with conscience/ whereunto the student maketh answer in such manner as to the reder will appear.  

¶ The introductyon.  STudent. 
In the later end of our first dialogue in latin/ I put divers cases grounded upon the laws of England/ wherein I doubted and yet do what is to be holden therein in conscience. But for as much as the time was than far passed/ I showed the that I would not desire the to make answer to them forthwith at that time/ but at some better leisure: whereunto thou saidest thou wouldest not only show thine opinion in though cases/ but also in such other cases as I would put. wherefore I pray the now (for as much as me thinketh thou haste good leisure) that thou wilt show me thine opinion therein.  ¶ Doctor. 
I will with good will accomplish thy desire: but I would that when I am in doubt what the law of this realm is in such cases as thou shalt put/ that thou wilt show me what the law is therein: for though I have by occasion of our first dialogue in latin/ learned many things of the laws of this realm/ which I knew not before: yet nevertheless there be many more things that I am yet ignorant in/ & that peradventure in these self cases that thou haste put/ and intendest here after to put: and as I said in the first dialogue in latin/ the twenty chapter/ to search conscience upon any case of the law/ it is in vain/ but where the law in the same case is perfitly known.  ¶ Student. 
I will with good will do as thou sayest/ & I intend to put divers of the same questions that be in the last chapter of the said dialogue in latin: and sometime I intend to alter some of them and to add some new questions to them/ such as I shall be most in doubt of.  ¶ Doctor. 
I pray the do as thou sayest/ & I shall with good will either make answer to them forthwith as well as I can/ or shall take longer respite to be advised/ or else peradventure agree to thine opinion therein/ as I shall see cause. But first I would gladly know the cause why thou hast begun this dialogue in the english tongue/ & not in the latin tongue/ as the first cases that thou desyredest to know mine opinion be in/ or in french as the substance of the law is.  ¶ Student. 
The cause is this. It is right necessary to all men in this realm/ both spiritual & temporal for the good ordering of their conscience to know many things of the law of England that they be ignorant in. And though it had been more pleasant to them that be learned in the latin tongue to have had it in latin rather than in english: yet nevertheless for as much as many can read english that understand no latin/ & some that can not read english: by heringe it red may learn divers things by it that they should not have learned if it were in latin. Therefore for the perfect of the multitude it is put into the english tongue rather than into the latin or french tongue. For if it had been in french: few should have understand it/ but they that be learned in the law/ and they have lest need of it/ for as moche as they know the law in the same cases without it/ & can better declare what conscience will thereupon/ than they that know not the law nothing at all. To them therefore that be not learned in the law of the realm this treatise is specially made/ for thou knowest well by such studies thou haste taken to some knowledge of the law of the realm that is to them most expedient.  ¶ doctor. 
It is true that thou sayest & therefore I pray the now proceed to thy questions.   

¶ The first question of the Student The first chapiter.  STtudent. 
If tenant in tail after possibility of issue extinct do wast/ whether doth he thereby offend in conscience though he be not punishable of waste by the law.  ¶ doctor. 
Is the law clear that he is not punishable for the waste?  ¶ Student. 
ye verily.  ¶ Doct. 
And what is the law of tenants for tme of life or for tme of years if they do waste.  ¶ Student. 
They be punishable of waist by the statute & shall yield triple damagis/ but at the common law before that statute they were not punishable.  ¶ Doctor. 
But whether thinkest thou that before that statute they might have done waste with conscience because they were not punishable by the law?  Student. 
I think not/ for as I take it: the doing of the waist of such particular tenants for term of life/ for term of years/ or of tenants in dower/ or by the courtesy: is prohibit by the law of reason/ for it seemeth of reason that when such leases be made/ or that such titles in dower or by the courtesy be given by the law that there is only given unto them the annual ꝓfites of the land and not the houses & trees & the gravel to dig & carry away/ whereby the hole perfect of them in the reversion should be taken away for ever. And therefore at the common law for waste done by tenant in dower or tenant by the courtesy there was punishment ordained by the law by a ꝓhibition of waste whereby they should have yielded damages to the value of the waste. But against tenant for term of life or for tme of years lay no such ꝓhibition/ for there was no maxim in the law therein against them as there was against the other. And I think the cause was for as much as it was judged a folly in the lessour that made such a lease for term of life/ or for term of years: that at the time of the lessee he did not prohibit them that they should not do waste/ and sith he did not provide no remedy for himself: the law would none provide. But yet I think not that the intent of the law was that they might lawfully & with good conscience do waste/ but against tenants in dower & by the courtesy the law provided remedy for they had their title by the law.  Do. 
And verily me thinketh that this tenant in tail as to doing of waste/ should be like to a tenant for term of life/ for he shall have the land no longer than for term of his life: no more than a tenant for term of life shall/ and the waste of this tenant is as great hurt to him in the reversion or remainder/ as is the waste of a tenant for term of life: and if he alien/ the donoure shall enter for the forfeiture as he shall upon the alienation of a tenant for term of life/ and if he make default in a Praecipe ꝙ reddat: the donor shallbe received as he shallbe upon the default of a tenant for term of life/ and therefore me thinketh he shall also be punishable of waist/ as tenant for term of life shall.  ¶ Student. 
If he alien: the donor shall enter/ as thou sayest because that alienation is to his disheritance/ and therefore it is a forfeiture of his estate: and that is by an ancient maxim of the law that giveth that forfeiture in that self case/ and if he make default in a Prec. ꝙ red: he in the reversion/ as thou sayest shallbe received/ but that is by the statute of West ii for at the common law there was no such receipt/ and as for the statute that giveth the action of waste against a tenant for term of life and for term of years it is a statute penal & shall not be taken by equity/ & so there is no remedy given against him/ neither by common law nor by statute/ as there is against tenant for term of life/ & therefore he is unpunysshable of waste by the law.  ¶ Doctor. 
And though he be unpunysshable of waste by the law: yet nevertheless me thinketh he may not by conscience do that/ that shallbe hurtful to the inheritance after his time/ sith he hath the land but for term of his life no more than a tenant for term of life may/ for than he should do as he would not be done to/ for thou agreest thyself that though a tenant for term of life was not punishable of waist before the statute that yet the law judged not that he might rightfully & with good conscience do waste. And therefore at this day if a feoffment be made to the use of a man for term of life/ though there lie no action against him for waste/ yet he offendeth conscience if he do waste as the tenant for term of life did afore the statute when no remedy lay against him by the law.  ¶ Stud. 
That is true/ but there is great diversity between this tenant & a tenant for term of life: for this tenant hath good authority by the donor to do waste/ & so hath not the tenant for term of life/ as it is said before. For the estate of a tenant in tail after possibility of issue extinct is in this manner. When lands be given to a man & to his wife and to the heirs of their two bodies begotten/ and after the one of them dieth without heirs of their bodies begotten/ than he or she that overliveth/ is called tenant in tail after possibility of issue extinct/ because there can never by no possibility be any heir that may inherit by force of that gift. And thus it appeareth that the donees at the time of the gift: received of the donor estate of inheritance/ which by possibility might have continued for ever/ whereby they had power to cut down trees & to do all thing that is waste/ as tenant in fee simple might and that authority was as strong in the law as if the lessour that maketh a lease for term of life say by express words in the lease that the less shall not be punishable of waste. And therefore if the donor in this case had granted to the donees that they should not be punisshable of waist that grant had been void because it was included in the gift before as it should be upon a gift in fe simple: & so for as much as by the first gift and by the liver of season made upon the same: the donees had authority by the donor to do waste. Therefore though the one of the donees be now deed without issue/ so that it is certain that after the death of the other: the land shall revert to the donor/ yet the authority that they had by the donor to do waste: continueth as long as the gift and the livery of season made upon the same continueth: and I take this to be the reason why he shall not have in aid as tenant for term of life shall/ that is to say/ for that he can not ask help of that maxim/ whereby it is ordained that a tenant for term of life shall have in aid/ for he can not say but that he took a greater estate by the livery of season that was made to him: which yet continueth than for term of life/ & so I think him not bound to make any restitution to him in the reversion in this case for the waste.  ¶ Do. 
Is thy mind only to prove that this tenant is not bound to make restitution to him in the reversion for the waste: or that thou thinkest that he may with clear conscience do all manner of waist.  ¶ Stud. 
I intend to prove no more but that he is not bound to restitution to him in the reversion.  ¶ Do. 
Than I will right well agree to thine opinion for the reason that thou haste made/ but if thy mind had been to have proved that he might with clear conscience have done all manner of waste: I would have thought the contrary thereto/ and that the tenant in fee simple may not do all manner of waste & destruction with conscience/ as to pull down houses & make pastures of cities & towns/ or to do such other acts which be against the common wealth. And therefore some will say that tenant in fee simple may not with conscience destroy his woods & coal pits whereby a hole country for their money have had fuel. And yet though he do so he is not bound by conscience to make restitution to no person in certain. But now I pray the or thou ꝓcede to the second case: that thou wilt somewhat show me what thou meanest when thou sayest: at the common law it was thus or thus: I understand not fully what thou meanest by that tme at the common law.  ¶ Stud. 
I shall with good will show the what I mean thereby.   

¶ What is meant by this term when it is said/ thus it was at the common law. The second chapiter.  STudent. 
The common law is taken three manner of ways. first it is taken as the law of this realm of England disceyvered from all other laws/ & under this manner taken. It is oftentimes argued in the laws of England what matters ought of right to be determined by the common law/ & what by the admiralles court or by the spiritual court. And also if an obligation bear date out of the realm/ as in Spain/ France/ or such other It is said in the law & truth it is that they be not pledable at the common law.  
secondly the common law is taken as the kings courts of his bench or of the common place/ & it is so taken when a plea is removed out of ancient demean for that the land is frank fee and pledable at the common law/ that is to say in the kings court & not in ancien demean. And under this manner taken/ it is oftentimes pleaded also in base courts as in court Barons/ the Contie & the court of Pypouders and such other that this matter or that. &c. ought not to be determined in that court but at the common law/ that is to say in the kings courts. &c. thirdly by the common law is understand such things as were law before any statute made in that point that is in question: so that/ that point was holden for law by the general or particular customs & maxims of the realm or by the law of reason & the law of god: no other law added to them by statute nor otherwise/ as in the case before rehearsed in the first chapiter: where it is said that at the common law tenant by the courtesy & tenant in dower were punishable of waste/ that is to say/ that before any statute of waste made they were punishable of waste by the ground & maxims of the law used before the statute made in that point/ but tenant for term if life ne for term of years were not punishable by the said grounds & maxims till by the statute remedy was given against them: & therefore it is said that at the common law they were not punishable of waste.  ¶ Doc. 
I pray the now proceed unto the second question.   

¶ The second question of the student. The third chapiter.  STudent. 
If a man be outlawed & never had knowledge of the suit/ whether may the king take all his goods & retain them in conscience as he may by the law.  ¶ Docour. 
What is the reason why they be forfeited by the law in that case.  ¶ Stud. 
The very reason is for that it is an old custom & an old maxim in the law: that he that is outlawed shall forfeit his goods to the king/ and the cause why that maxim began was this. When a man had done a trespass to another or an other offence wherefore process of outlagary lay/ & he that the offence was done to had taken an action against him according to the law/ if he had absented himself and had had no lands: there had been no remedy against him: for after the law of England no man shallbe condemned without answer/ or that he appear and will not answer/ except it be by reason of any statute. Therefore for the punishment of such offenders as would not appear to make answer & to be justified in the kings court/ it hath been used without time of mind/ that an attachement in that case should be directed against him returnable into the kings bench or the common place/ and if it were returned there upon that he had nought whereby he might be attached that than should go forth a Capias to take his person/ and after an alias Capias/ & than a Pluries: and if it were returned upon every of the said Capias that he could not be found and he appeared not: than should an Exigent be directed against him which should have so long day of return/ that five counties might be holden before the return thereof and in every of the said five conties the defendant to be solemnly called: and if he appeared not/ than for his contumacy and disobedience of the law: the coroners to give judgement that he shallbe outlawed/ whereby he shall forfeit his goods to the king & lose divers other advantages in the law y needeth not here to be remembered now. And so because he was in this case called according to the law & appeared not: it seemeth that the king hath good title to the goods both in law & conscience.  ¶ doctor. 
If he had knowledge of the suit in very deed it seemeth the king hath good title in conscience as thou sayest. But if he had no knowledge thereof: it seemeth not so/ for the default that is adjudged in him (as it appeareth by thine own reason) is his contumacy and disobedience of the law/ and if he were ignorant of the suit/ than can there been assigned in him no disobedience/ for a disobedience implieth a knowledge of that he should have obeyed unto.  ¶ Student. 
It seemeth in this case that he should be compelled to take knowledge of the suit at his peril/ for sith he hath attempted to offend the law: it seemeth reason that he shallbe compelled to take heed what the law will do against him for it/ and not only that: but that he should rather offer amends for his trespass than for to tarry till he were sued for it. And so it seemeth the ignorance of the suit is of his own default/ specially sith in the law is set such order that every man may know if he will what suit is taken against him/ and may see the records thereof when he will/ & so it seemeth that neither the party nor the law be not bounden to give him no knowledge therein. And over this I would somewhat move ferther in this matter thus That though the action were untrue/ & the defendant not gylthy/ that yet the goods be forfeited to the king for his not appearance in law & also in conscience/ & that for this cause/ the king as sovereign & head of the law is bound of justice to grant such writs and such ꝓcesses as be oppoynted in the law to every person that will complain: be his surmise true or false/ & there upon the king (of justice) oweth as well to make process to bring the defendant to answer when he is not guilty as when he is guilty/ & than when there is no maxim in the law that if a man be outlawed in such manner as before apꝑeth that he shall forfeit all his goods to the king/ & maketh no exception whether the action be true or untrue/ it seemeth that the said maxim more regardeth the general ministration of justice: than the particular right of the party: & that therefore the property by the outlawry & by the said maxim ordained for ministration of justice is altered and is given to the king as before appeareth/ & that both in law and conscience as well as if the action were true. And than the party that is so outlawed is driven to sue for his remedy against him that hath so caused him to be outlawed upon an untrue action  ¶ Doct. 
If he have not sufficient to make recompense or die before recover can be had/ what remedy is then.  ¶ Student. 
I think no remedy/ and for a further declaration in this case and in such other like cases where the property of goods may be altered without assent of the owner: it is to consider that the property of goods be not given to the owners directly by the law of reason nor by the law of god but by the law of man/ & is suffered by the law of reason & by the law of god so to be. For at the beginning all goods were in common/ but after they were brought by the law of man into a certain property so that every man might know his own: & than when such property is given by the law of man the same law may assign such conditions upon the property as it listeth/ so they be not against the law of god ne the law of reason/ and may lawfully take away that it giveth/ & appoint how long the ꝓperty shall continue. And one condition that goeth with every ꝓperty in this realm: is if he that hath the ꝓperty be outlawed according to such process as is ordained by the law/ that he shall forfeit the property unto the king/ and diverse other cases there be also: where by property in goods shallbe altered in the law and the right in lands also without assent of the owner/ whereof I shall shortly touch some without laying any authority therein/ for the more shortness. first by a sale in open marked the property is altered. Also goods stolen and seized for the king or waived be forfeit whiles appeal or inditement be sued. Also strays if they be proclaimed and be not after claimed by the owner within the year be forfeit/ & also a deodand is forfeit to whom so ever the property was before/ except it belonged to the king and shallbe disposed for the soul of him that was slain therewith: and a fine with a nonclayme at the common law was a bar if claim were not made within a year as it is now by statute if the clay We be not made within .v. years. And all these forfeitures were ordained by the law upon certain considerations which I omit at this time/ but certain it is that none of them was made upon a better consideration than this forfeiture of outlagary was. For if no especial punishment should have been ordained for offenders that would absent themself & not appear when they were sued in the kings courts many suits in the kings courts should have been of small effect. And sith this maxim was ordained for the execution of justice and as much done therein by the common law as policy of man could reasonably devise to make the party have knowledge of the suit and now is added thereto by the statute made the sixth year of king Hnry the viii that a writ of proclamation shallbe sued if the party be dwelling in another shire/ it seemeth that such title as is given to the king thereby is good in conscience/ especially seeing that the king is bounden to make process upon the surmise of the plaintiff & may not examine but by the plea of the party whether the surmise be true or not. But if the party be returned .v. times called where in deed hf was never called as in the second case oe the last chapiter of the said dialogue in latin is contained/ than it seemeth the party shall have good remedy by petition to the king/ specially if he that made the return be not sufficient to make recompense or die before recover can be had.  ¶ Doct. 
Now sith I have heard thine opinion in this case whereby it appeareth that many things must be seen or a full and a plain declaration can be made in this behalf/ & seeing also that the plain answer to this case shall give a great light to diverse other cases that may come by such forfeiture. I pray the give me a further respite or that I show the my full opinion therein/ and here after I shall right gladly do it.  
And therefore I pray the proceed now to some other case.   

❧ The third question of the student. The fourth chapiter.  STudent. 
If a stranger do waste in lands that another holdeth for term of life without assent of the tenant for term of life: wether may he in the reversion recover triple damages and the place wasted against the tenant for term of life according to the statute in conscience as he may by the law: if the stranger be not sufficient to make recompense for the waist done.  ¶ doctor. 
Is the law clear in this case that he in the reversion shall recover against the tenant for term of life though that he assented not to the doing of the waist.  ¶ Student. 
ye verily/ and yet if the tenant for term of life had been bound in an obligation in a certain sum of money that he should do no waste: he should not forfeit his bond by the waist of a stranger/ and the diversity is this. It hath been used as an ancient maxim in the law that tenant by the courtesy and tenant in dower should take the land with this charge/ that is to say/ that they should do no waste themself ne suffer none to be done/ and when an action of waist was given after against a tenant for term of life: than was he taken to be in the same case as to that point of waste as tenant by the courtesy and tenant in dower was/ that is to say/ that he should do no waste nor suffer none to be done/ for there is another maxim in the law of England that all cases like unto other cases shallbe judged aft the same law as the other cases be & sith no reason of diversity can be assigned why thete nant for term of life after an action of waist was given against him should have any more favour in the law than the tenant by the courtesy or tenant in dower should/ therefore be is put und the same maxim as they be/ that is to say/ that he shall do no waist ne suffer none to be done/ and so it seemeth that the law in this case doth not consider the ability of the person that doth the waste whether he be able to make recompense for the waist or not. But the assent of the said tenants whereby they have wilfully taken upon them the charge to see that no waist shallbe done.  ¶ Doctor. 
I have herd that if houses of these tenants be destroyed with sudden tempest or with strange enemies that they shall not be charged with waist.  ¶ Student. 
Truth it is.  ¶ Doct. 
And I think the reason is because they can have no recover over.  ¶ Student. 
I take not that for the reason: but that it is an old reasonable maxim in the law that they should be discharged in those cases/ how be it some will say that in those cases the law of reason doth discharge them & therefore they say that if a statute were made that they should be charged in those cases of waist that the statute were against reason and not to be observed/ but yet nevertheless I take it not so/ for they might refuse to take such estate if they would/ and if they will take the state after the law made: it seemeth reasonable that they take it with the charge and with the condition that is appointed thereto by the law though hurt might follow to them afterward thereby/ for it is oftentimes seen in the law that the law doth suffer him to have hurt without help of the law that will wilfully run into it of his own act not compelled thereto and aiugeth it is folly so to run into it/ for which folly he shall also be many times without remedy in conscience. As if a man take lands for term of life and bindeth himself by obligation that he shall leave the land in as good case as he found it/ if the houses be after blown down with tempest or destroyed with strange enemies as in the case that thou hast put before he shallbe bound to repair them or else he shall forfeit his obligation in law & conscience because it is his own act to bind him to it/ & yet the law would not have bound him thereto as thou hast said before. So me thinketh that the cause why the said tenants be discharged in the law in an action of waist when the houses be destroyed by sudden tempest or by strange enemies: is by a special reasonable maxim in the law/ whereby they be excepted fro the other general bond before rehearsed/ that is to say they shall at their peril see that no waste shallbe done and not by the law of reason/ and sith there is no maxim in this case to help this tenant ne that he can not be holpen by the law of reason/ it seemeth that he shallbe charged in this case by his own act both in law & conscience whether the stranger be able to recompense him or nat.  ¶ Doctor. 
I doubt in this case whether the maxim that thou speakest of be reasonable or not/ that is to say/ that tenants by the courtesy & tenants in dower were bounden by the common law law that they should do no waste themself/ and over that at their peril to see that no waste should be done by none other. For that law seemeth not reasonable that bindeth a man to an impossibility. And it is impossible to prevent that no waist shallbe done by strangers/ for it may be suddenly done in the night that the tenauntis can have no notice of/ or by great power that they be not able to resist/ and therefore me thinketh they ought not to be charged in those cases for the waste/ without they may have good remedy over. and than percase the said maxim were sufferable/ & else my thinketh it is maxim against reason.  ¶ Student. 
As I have said before no man shallbe compelled to take that bond upon him but he that will take the land and if he will take the land: it is reason he take the charge as the law hath appointed with it/ and than if any hurt grow to him thereby: it is through his own act and his own assent/ for he might have refused the lease if he would.  ¶ doctor. 
Though a man may refuse to take estate for term of life or for term of years/ and a woman may refuse to take her dower: yet tenant by the courtesy can not refuse to take his estate for immedeatly after the death of his wife: the possession abideth still in him by the act of the law without entry/ and than I put the case that after the death of his wife he would waive the possession & after waist were done by a stranger: whether thinkest thou that he should answer to the waist  ¶ Stu. 
I think he should by the law.  ¶ Doct. 
And how standeth that with reason/ seeing there is no default in him.  ¶ Stu. 
It was his default/ & at his own peril that he would mary an enheritrice whereupon such danger might follow.  ¶ Doc. 
I put case that he were within age at the marriage or that the land descended to his wife aft he married her.  Stu. 
there thou movest a 〈◊〉 doubt than the first question is/ & though it were as thou sayest/ yet thou cannest not say but that there is as great default in him as is in him in the reversion/ & that there is as great reason why he should be charged with the waste as that he in the reversion should be disherited and have no manner remedy ne yet no profit of the land as the other hath/ and though he said maxim may be thought very strait to the said tenants: yet is it for to be favoured as much as may be reasonably/ because it helpeth much the common wealth/ for it hurteth the common wealth greatly when woods and houses been destroyed/ & if they should answer for no waste/ but for waste done by themself there might be waste done by strangers by their commandment or assent in such colourable manner that they in the reversion should never have ꝓfe of their assent.  ¶ doctor. 
I am content thine opinion stand for this time/ and I pray the now proceed to another question.   

❧ The fourth question of the student. The .v. Chapitre.  STudente. 
If he that is the very heir be certified by the ordinary bastard: and after bring an action as heir against an other person/ whether may any man knowing the truth be of counsel with the tenant and plead the said certificate against the demandant by conscience or nat.  ¶ doctor. 
Is the law in this case that all other against whom the demandant hath title shall take advantage of this certificate as well as he at whose suit he is certified bastard.  ¶ Student. 
ye verily/ & that for two causes/ where of the one is this. There is an old maxim in the law that a mischyfe shallbe rather suffered than an inconvenience/ & than in this case if another writ should afterward be sent to another bishop in an other action to certify weather he were bastard or not/ peradventure that bishop would certify that he were mulier/ that is to say lawfully begotten and than he should recover as heir/ and so he should in one self court be taken as mulier & bastard/ for avoiding of which contrariosyte: the law will suffer no more writeth to go forth in that case/ and suffereth also all men to take advantage of that certificate rather than to suffer such a contradition in the court which in the law called an inconvenience/ & the other cause is because this certificate of the bishop is the highest trial that is in the law in this behalf. But this is not understand but where bastardy is laid in one that is ꝑty to the writ/ for if bastardy be laid in one that is estrange to the writ as in a vouch prayen aid or such other/ than that bastardy shallbe tried by xii men by which trial he in whom the bastardy is laid shall not be concluded because he is not prive to the trial & may have no attaint/ but he that is ꝑty to the issue may have attaint/ & therefore he shallbe concluded & none other but he & for as much as the said maxim was or deigned to eschew an inconueniency (as before apꝑeth) it seemeth that every man learned: may with conscience plead the said certificate for avoiding thereof/ & give counsel therein to the ꝑty according unto the law for else the said inconueniency must needily follow. But yet nevertheless I do not mean thereby that the party may after when he hath barred the demaundant by the said certificate retain the land in conscience by reason of the said certificate/ for though there be no law to compel him to restore it/ yet I think well that in conscience he is bound to restore it/ if he know that the demaundaunt is the very true heir: whereof I have put diverse cases like in the xvii chapi. of our first dialogue in latin: but my intent is that a man learned in the law in this case & other like may with conscience give his counsel according to the law in avoiding of such things as the law think it should for a reasonable cause be eschewed.  ¶ Doc. 
Though he that doth not know whether he be bastard or not may give his counsel & also plead the said certificate: yet I think that he that doth know himself to be the very true heir may not plead it/ & that is for two causes. Whereof the one is this. Every man is bound by the law of reason to do as he would be done to/ but I think that if he that pleadeth that certificate were in like case: he would think that no man knowing the said certificate to be untrue might with conscience plead it against him/ wherefore no more may he plead it against none other. The other cause is this/ although the certificate be pleaded: yet is the tenant bound in conscience to make restitution thereof as thou hast said thyself/ & than in case that he would not make restitution/ than he that pleadeth the plea: should run thereby in like offence/ for he hath helped to set the other man in such a liberty that he may choose whether he will restore the land or not/ and so he should put himself to the jeopardy of another man's conscience. And it is written Ecclesiasti iii Qui amat periculum: peribit in illo. That is/ he that wilfully will put him self in jeopardy to offend: shall perish therein/ and therefore it is the surest way to eschew perils/ fro him that knoweth that he is heir: not to plead it/ and as for the inconvenience that thou sayest must needily follow but the certificate be pleaded: as to that it may be answered that it may be pleaded by some other that knoweth not that he is very heir/ and if the case be so far put that there is none other learned there but he: than me thinketh that he shall rather suffer the said inconvenience than to hurt his own conscience/ for alway charity beginneth at himself & so every man ought to suffer all other offences rather than he himself should offend. And now that in this case I pray the proceed to thou knowest mine opinion another question.   

❧ The .v. question of the student. The vi Chapitre.  STudent. 
Whether may a man with conscience be of counsel with the plaintiff in an action of the common law knowing that the defendant hath sufficient matter in conscience whereby he may be discharged by a Sub pena in the chancery which he can not plead at the common law or nat.  ¶ doctor. 
I pray the put a case thereof in certain for else the question is very general.  ¶ Student. 
I will put the same case that thou puttest in our first dialogue in latin the ten Chapitre. that is to say/ if a man bound in an obligation/ pay the money & taketh none acquittance so that by the common law he shallbe compelled to pay the money agyne for such consideration as appeareth in the xu chapiter of the said dialogue where it is showed evidently how the law in that case is made upon a good reasonable ground much necessary for all the people/ how be it that a man may sometime through his own default take hurt thereby/ wherein I pray the show me thine opinion  ¶ doctor. 
this case seemeth to be like to the case that thou haste put next before this/ & that he that knoweth the payment to be made doth not as he would be done to if he give counsel that an action should be taken to have it paid again.  ¶ Sudent. 
If he be sworn to give counsel according to the law as sergeants at the law be: it seemeth he is bound to give counsel according to the law/ for else he should not perform his oath.  ¶ Doctor. 
In those words (according to the law) is understand the law of god and the law of reason: as well as the law & customs of the realm/ for as thou hast said thyself in our first dialogue in latin that the law of god and the law of reason be two especial grounds of the laws of England. Wherefore as me thinketh he may give no counsel (saving his oath) neither against the law of god nor the law of reason/ and certain it is that this article that is to say/ that a man shall do as he would done to: is grounded upon both the said laws. And first that it is grounded upon the law of reason: it is evident of itself. And in the vi Chap. of saint Luke it is said. Et prout vultis ut faciant vobis homines: et vos facite illis similiter. That is to say/ all that ye will that other men should do to you: do you to them/ & so it is grounded upon the law of god/ wherefore: if he should give counsel again the defendant in that case: he should do against both the said laws.  ¶ Stu. 
If the defendant had none other remedy but at the common law: I would agree well it were as thou sayest/ but in this case he may have good remedy by a Sub pena/ & this is the way that shall induce him directly to his Sub pena/ that is to say/ when it appeareth that the plaintiff shall recover by the law.  ¶ Doc. 
Though the defendant may be discharged by Sub pena/ yet the bringing in of his ꝓfes there will be to the charge of the defendant/ & also the ꝓfes may die or they come in. Also there is a ground in the law of reason/ qd nihil possimus contra veritatem/ that is/ we may do nothing against the troth/ & sith he knoweth it is truth that the money is paid he may do nothing against the troth & if he should be of consayle with the plaintiff he must suppose & aver that it is the very due det of the plaintive/ & that the defendant withholdeth it fro him unlawfully/ which he knoweth him self to be untrue/ wherefore he may not with conscience in this case be of counsel with the plaintive/ knowing that the plaintiff is paid all ready/ wherefore if thou be contented with this answer I pray the proceed to some other question.  ¶ Stud. 
I will with good will.   

❧ The vii question of the student. The vii Chapitre.  STudent. 
A man maketh a feoffment to the use of him and of his heirs/ & after the feoffor putteth in his beasts to manure the ground and the feoff taketh them as damages pheasant and putteth them in pound/ and the feoffor bringeth an action of trespass against him for entering into his ground. &c. whether may any man knowing the said use be of counsel with the feoff to avoid that action.  ¶ doctor. 
May he by the common law avoid that action saying that the feoffor ought in conscience to have the ꝓfytes.  ¶ Student. 
ye verily/ for as to the common law the hole interest is in the feoff and if the feoff will break his conscience & take the profits: the feoffor hath no remedy by the common law: but is driven in that case to sue for his remedy by Sub pena for the profits/ and to cause him to refeoffe him again/ and that was sometime the most common case where the Sub pena was sued/ that is to say/ before the statute of richard the third but sith that statut the feoffor may lawfully make a feoffment. But nevertheless for the profits received: the feoffor hath yet no remedy but by Sub pena as he had before the said statute. And so the supposell of this action of trespass is untrue in every point as to the common law.  ¶ doctor. 
Though. the action be untrue as to the law: yet he that sueth it ought (in conscience) to have that he demandeth by the action/ that is to say/ damages for the profits/ and as it seemeth no man may with conscience give counsel against that he knoweth conscience would have done.  ¶ Stu. 
Thouhe conscience would he should have the profits/ yet conscience will that for the attaining thereof the feoffor should make an untrue surmise. Therefore against that untrue surmise every man may with conscience give his counsel/ for in that doing he resisteth not the plaintiff to have the profits/ but he withstandeth him that he should not maintain an untrue action for the profits. And it sufficeth not in the law ne yet in conscience as me seemeth that a man have right to that he sueth for/ but that also he sue be a just means/ and that he have both good right and also a good and a true conveyance to come to his right for if a man have right to lands as heir to his father and he will bring an action as heir to his mother that never had right/ every man may give counsel against that action though he know he have right by an other means/ & so as me thinketh he may do in dilatories/ whereby the party may take hurt if it were not pleaded/ though he know the plaintyfe have right as if the party or the town be misnamed/ or if the degrees in writs of entry be mistaken/ but if the party should take no hurt by admitting of a dilatory there he that knoweth that the plaintiff hath right may not plead that dilatory with conscience as in a Form done to plead in abatement of the writ because he hath not made himself heir to him that was last seized/ or in a writ of right for that the demandant hath omitted one that tended right ne such other/ ne he may not assent to the casting of an essoin nor protection for him if he know that the demandaunt hath right/ ne he may not vouch for him except it be that he knoweth that the tenant hath a true cause of voucher and of lain/ and that he doth it to bring him thereto/ & in likewise he may not pray in age for him: whiles he know the pray have good cause of voucher and lain over/ or that he know that the pray hath somewhat to plead that the tenant may not plead as vyllen age in the demaundaunte or such other.  ¶ Doctor. 
Though the plaintiff hath brought an action that is untrue and not mayntenable in the law/ yet the defendant doth wrong to the plaintiff in the withholding of the profits as well before the action brought as hanging the action/ and that wrong as it seemeth the counsaylour doth maintain/ and also showeth himself to favour the party in that wrong when he giveth council against the action.  ¶ Sudent. 
If the plaintiff do take that for a favour and a maynteynaunce of his wrong: he iugethe further than the cause is given/ so that the counsaylour do no more but give counsel against the action/ for though he give him counsel to withstand the action for the untruth of it/ & that he should not confess it & to make thereby a fine to the king without cause/ yet it may stand with: that he may give counsel to the party to yield the profits/ and therefore I think he may in this case of counsel with him at the common law and be against him in the chancery and in either court give his counsel without any contrariosite or hurt of conscience/ and upon this ground it is that a man may with good conscience be of counsel with him that hath land by descent or by a discontinuaunce withouten title/ if he that hath the right bring not his action according to the law for the recovering of his right in that behalf.   

❧ The seventh question of the studente. The viii Chapitre.  STudent. 
If a man take a distress for debt upon an obligation or upon a contract or such other thing that he hath right title to have: but that he ought not by the law to distrain for it/ and nevertheless he keepeth the same distress in pound till he be paid of his duty/ what restitution is he bound to make in this case/ whether shall he repay the money because he is come to it by an unlawful means or only to restore the party for the wrongful taking of the distress or for neither I pray you show me.  ¶ doctor. 
what is the law in this case.  ¶ Student 
That he that is distrained may bring a special action of trespass against him that distreyned/ for that he took his beestis wrong fully and kept them till he made a fine/ & therefore he shall recover that fine in damages as he shall do for the residue of trespass for that taking of the money by such compulsion is taken in the law but as a fine wrongfully taken/ though it be his duty to have it.  ¶ Doctor. 
yet though he may so recover: me thinketh that as to the repayment of the money he is not bound thereto in conscience so that he take no more than of right he ought to have/ for though he come to it by an unjust mean/ yet when the money is paid him it is his of right and he is not bound to repay it whiles it be recovered as thou said/ and than when he hath repaid it he is as me thinketh restored to his first action/ but to the redelyvere of the beasts with such damages such hurt as he hath by the distress. I suppose he is bound to make recompense of them in conscience without compulsion or suit in the law/ for though he might lawfully have sued for his duty in such manner as the law hath ordered/ yet I agree well that he may not take upon him to be his own judge and to come to his duty against the order of the law/ and therefore if any hurt come to the party by that disorder he is bound to restore it. But I would think it were the more doubt if a man took such a distress for a trespass done to him and keepeth the distress till amends be made for the trespass/ for in that case the damages been not in certain but be arbitrable either by assent of the parties or by xii men/ and it seemeth that there is no assent of the party in this case specially no fire assent/ for that he doth: is by compulsion and to have his distress again/ and so his assent is not much to be pondered in that case/ for all is the assessing of him that took the distress/ and so he hath made him self his own judge/ and that is prohibited in all laws/ but in that case where the distress is taken for debt: he is not his own judge/ for the debt was judged incertain before by the first contract/ & therefore some think great diversity between the cases.  ¶ Student. 
By that reason it seemeth that if he that distrayneth in the first case for the debt take any thing for his damagis that he is bound in conscience to restore it again/ for damagis be arbitrable and not certain no more than trespass is/ & me seemeth that both in the case of trespass and debt he is bound in conscience to restore that he taketh/ for though he ought in right to have like sum as he receiveth/ yet he ought not to have that money that he receiveth/ for he came to that money by an unjust means/ wherefore it seemeth he ought to restore it again.  ¶ Doctor. 
And if he should be compelled to restore it again: should he not yet (for that he received it once) be barred of his first action not withstanding the repayment.  ¶ Stud. 
I will not at this time clearly assoil the that question/ but this I will say that if any hurt come to him thereby: it is through his own default for that he would do against the law/ but nevertheless a little I will say to thy question/ that as me seemeth when he hath repaid the money that he is restored to his first action. As if a man condemned in an action of trespass pay the money/ & after the defendant reverse the judgement by a writ of error and have his money repaid/ than the plaintiff is restored to his first action. And therefore if he that in this case took the money: restored that he took by the wrong full distress: or that he ordered the matter so liberally that the other murmur not necomplayne not at it/ me seemeth he did very well to be sure in conscience: and therefore I would advise every man to be well aware how he distrayneth in such case against the law.  ¶ doctor. 
Thy counsel is good/ and I note moche in this case that the party may have an action of trespass against him that distrained so that he is taken in the law but as a wrong doer/ and therefore to pay the money again is the sure way as thou hast said before.  
And I pray the now show me for what thing a man may lawfully distrain as thou thinkest.   

❧ For what thing a man may lawfully distrain. The ix Chapitre.  STudent. 
A man may lawfully distrayn for a rend service and for all manner of services/ as homage/ fealty/ escuage/ suit of court/ relyefs and such other. Also for a rent reserved upon a gift in tail/ a lease for term of life/ for years/ or at will/ if he reserve the reversion: the feoffor shall distrain of common right though there be no distress spoken of. But in case a man make a feoffment & that in fee by indenture reserving a rent he shall not distrain for that rent whiles a distress be expressly reserved/ and if the feoffment be made with outen deed reserving a rent that reservation is void in the law/ and he shall have the rent only in conscience and shall not distrain for it/ & like law is where a gift in tail or a lease for term of life is made the remainder over in fee reserving a rent that reservation is void in the law. Also if a man seized of lands for term of life granteth away his hole estate reserving a rent/ that reservation is void in the law without it be by endenture/ & if it be by endenture: yet he shall not distrain for the rent but a distress be reserved. Also for a merciament in a leete the lord shall distrain. But for a merciament in a court Baron he shall not distrain. Also if a man make a lease at Mighelmasse for a year/ reserving a rent payable at the feast of the Annunciation of our Lady and saint Michael the Archaungell/ in that case he shall distrain for the rent due at our Lady aye/ but not for the rent due at Mighelmasse / because the term is expired. But if a man make a lease at the feast of Christemasse for to endure to the feast of Christemasse next following/ that is to say for a year a reserving a rent at the aforesaid feast of the Annunciation of our Lady & saint Michael the Archaungell: there he shall distrain for both the rents as long as the term continueth/ that is to say till the aforesaid feast of Christemasse. ¶ Also if a man have land for term of life of johan at Noke/ and maketh a lease for term of years reserving a rent/ that rent is behind/ and johan at Noke dieth/ there he shall not distrain because his reversion is determined. ¶ Also if he to whose use feffes been seized maketh a lease for term of years/ or for term of life/ or a gift in tail reserving a rent/ there the reservation is good and the lessour shall distrain.  
¶ Also if a towneshype be amercied & the neighbours by assent assesseth a certain sum upon every inhabitant/ and agre that if it be not paid by such a day: that certain persons thereto assigned shall distrain. In this case the distress is lawful. If lord and tenant be/ and the tenant doth hold of the lord by fealty & rend/ & the lord doth grant away the fealty reserving the rent/ and the tenant attorneth in this case/ he that was lord may not distrain for the rent/ for it is become a rent seek. But if a man make a gift in tail to another reserving fealty and certain rend/ and after that he granteth away the fealty reserving the rent and the reversion to himself/ in this case he shall distrain for the rent/ for the grant of the fealty is void/ for the fealty can not be severed fro the reversion. Also for heryof service the lord shall distrain and for heriot custom he shall seize and not distrain.  
Also if a rent be assigned to make a partition or assignment of dower equal he or she to whom that rent is assigned may distrain and in all these cases above said where a man may distrain he may not distrain in the night/ but for damages pheasant/ that is to say/ where beasts do hurt in his ground he may distrain in the night. Also for wastes/ for reperations/ for accounts/ for debts upon contracts or such other no man may lawfully distrain.   

❧ The viii question of the student. The ten Chapitre.  STudent. 
If a man do a trespass and after make his executors and die before any amends made whether be his executors bound in conscience to make amends for the trespass if they have sufficient goods thereto though there be no remedy against them be the law to compel them to it.  ¶ Doctor. 
It is no doubt but they are bound thereto in conscience before any other deed in charity that they may do for him of their own devotion.  ¶ Stu. 
Than would I weet if the testator made legacies by his will/ whether the executores be bound to do first/ that is to say/ to make amends for the trespass or to pay the legacies/ in case they have no goods to do both.  ¶ doctor. 
To pay legacies. For if they should first make recompense for the trespass/ and than have not sufficient to pay the legacies: they should be taken in the law as wasters of their testators goods for they were not compellable by no law to make amends for the trespass because every trespass dieth with the person/ but the legacies they should be compelled by the law spiritual to fulfil/ and so they should be compelled to pay the legacies of their own goods/ and they shall not be compelled thereto by no law ne conscience/ but if the case were that he leave sufficient goods to do both: than me thinketh they be bound to do both/ & that they be bound to make amends for the trespass before they may do any other charitable deed for the testator of their own mind as I have said before/ except the funeral expenses that be necessary which must be allowed before all other things.  ¶ Student. 
And what the proving of the testament.  ¶ Doctor. 
The ordinary may nothing take by conscience therefore/ if there be not sufficient goods beside for the funerals to pay the debts and to make restitution. And in like wise the executors been bound to pay debts upon a simple contract before any other deed of charity that they may do for their testator of their own devotion though they shall not be compelled thereto by the law.  ¶ Student. 
And whether thinkest thou that they be bound to do first/ that is to say/ to make amendis for the trespass or to pay the debts upon a simple contract.  ¶ doctor. 
To pay the debts for that is certain and the trespass is arbitrable.  ¶ Student. 
Than for the plainer declaration of this matter and other like I pray the show me thy mind by what law it is that a man may make executors and that the executors if they take upon them be bound to perform the will and to dispose the goods that remain for the testator.  ¶ Doctor. 
I think that it is by the law of reason.  ¶ Student. 
And me thinketh it should be rather by the custom of the realm.  ¶ Doctor. 
In all countries & in all lands they make executors  ¶ Student. 
That seemeth to be rather by a general custom after that the law and custom of property was brought in than by the law of reason/ for as long as all things were in common: there were no executors ne wills ne they needed not than/ and when property was after brought in: me thinketh that yet making of executors & disposing of goods by will after a man's death followed not necessarily there upon/ for it might have been made for a law that a man should have had the property of his goods only during his life/ & that than his debts paid/ all his goods to have been left to his wife & clyldrens or next of his kin without any legacies making there of & so might it now be ordained by statute/ & the statut good & not against reason/ wherefore it appeareth that executors have no authority by the law of reason but by the law of man. And by the old law and custom of this realm a man may make executors and dispose his goods by his will/ & than his executors shall have the execution thereof & his heirs shall have nothing/ but if any particular custom help/ & the executors shall also have the hole possession ad disposition of all his goods and cattles/ as well real as personal/ though no word be expressly spoken in the will that they shall have them/ and they shall have also actions to recover all debts due to the testator though all debts and legacies of the testator by paid before/ and shall have the disposition of them to the use of the testator and not to their own use/ & so me thinketh that the authority to make executors and that they shall dispose the goods for the testator: is by the custom of the realm. But than I think as thou sayest that by the law of god they shallbe bound to do that first/ that is to the most profit of the soul of their testator where the disposition thereof is left to their discretion/ and that I agree well is to pay debts upon contracts and to make amends for wrongs done to the testator though they be not compelled thereto by the law and custom of the realm if there be none other debt nor legacy that they be bound to pay by the law/ but if two several debts be payable by the law: than which debt they shall do first in conscience: I am somewhat in doubt.  ¶ doctor. 
Let us first know what the common law is therein.  ¶ Student. 
The common law is that if the testator own ten li. to two men severally by obligation or by such other manner that an action lieth against his executors thereof by the law/ and he leaveth goods to pay the one and not both/ that in that case he that can first obtain his judgement against the executors shall have execution of the hole/ and the other shall have nothing/ but to which of them he shall in conscience own his favour: the common law treateth not.  ¶ Doctor. 
There in must be considered the cause why the debts began/ and than he must after conscience bear his lawful favour to him that hath the clearest cause of debt/ and if both have like cause: than in conscience he must bear his favour where is most need and greatest charity.  ¶ Student. 
May the executors in that case delay that action that is first taken if it stand not with so good conscience to be paid as another debt whereof no action is brought and procure that an action may be brought thereof and than to confess that action/ that he may so have execution/ and than the executors to be discharged against the other.  ¶ Doctor. 
Why may he not in that case pay the other without action and so be discharged in the law against the first.  ¶ Sudent. 
No verily for after an action is taken the executoure may not minister the goods so/ but that he leave so much as shall pay the debt whereof the action is taken/ & if he do he shall pay it of his own goods/ except another recover and have judgement against him hanging that action and that without covyn.  ¶ Doctor. 
Than to answer to thy question I think that by delays that be lawful as by essoin/ emperlaunce/ or by a Dilatory plea in abatement of the writ that is true/ he may delay it/ but he may plead no untrue plea to prefer the other to his duty. But I pray the what is the law of legacies restitutions and debts upon contracts that perease ought rather after charity to be paid than a debt upon an obligation what may the favour of the executors do in those cases.  ¶ Student. 
Nothing for if they either perform legacies/ make restitutions/ or pay debts upon contracts & keep not sufficient to pay debts which they are compellable by the law to pay/ that shallbe taken as a devastaverunt bona testatoris/ that is to say/ that they have wasted the goods of their testator and therefore they shallbe compelled to pay the debts of their own goods/ and so it is if they pay a debt upon an obligation whereof the day is yet to come though it be the clearer debt & that it be the more charity to have it paid.  ¶ Doc. 
yet in that case if he to whom the debt is all ready owing forbear till after the day of the other obligation is passed/ than he may pay him without danger.  ¶ Student. 
That is true if there be no action taken upon it & though there be/ yet if that action may be delayed by lawful means as thou hast spoken of before: till after the day and than an action is taken upon it than may the executors confess that action and than after judgement he may pay the debt without danger of the law.  ¶ Doctor. 
Is not that confessing of the action so done of purpose a covin in the law.  ¶ Student. 
No verily/ for covin is where the action is untrue/ and not where the executors bear a lawful favour.  ¶ Doctor. 
The ordinary upon the account in all the cases before rehearsed will regard moche what is best for the testator.  ¶ Student. 
But he may not drive them to account against the order of the common law.   

❧ The ix question of the student. The xi Chapitre.  STudent. 
A man is indebted to another upon a simple contract in twenty li. and he maketh his will and byquetheth xx. li. to Henry heart and dieth and leaveth goods to his executors only to bury him with/ ano to perform the said legacy/ & after the said executors deliver the goods of their testator in performance of the said byquest/ whether is he to whom the bequest is made: bound in conscience to pay the said debt upon the simple contract to the said Henry heart or not.  ¶ Doct. 
Is he not bound thereto by the law.  ¶ Student. 
No verily.  ¶ Doctor 
And what thinkest thou he is in conscience  ¶ Student. 
I think that he is not bound thereto in conscience/ for he is neither ordinary administrator/ nor executor. And I have not herd that any man is bound to pay debts of any man that is decessed/ but he be one of those three/ for the goods that the testator left to the executors were never charged with the debt/ but the person of the testator while he lived was only charged with the debt and not his goods/ & his executors that represent his estate after his death having goods thereto of the testatoures be charged also with the debts and not the goods. And therefore if an executor give away or sell all the goods of the testator or otherwise waste them: he that hath the goods is not charged with the debts in law nor conscience/ but the executors shallbe charged of their own goods/ and in like wise if johan at Noke own to A. B. xx. li. and A. B. oweth to C.D. xx. li. and after A.B. dieth intestate having none other goods but the said twenty li. which the said johan at Noke oweth him/ yet the said C. D. shall have no remedy against the said johan at Noke/ for he standeth not charged to him in law nor conscience. But the ordinary in that case must commit administration of the goods of the said A. B. And the said administrator must levy the money of the said johan at Noke and pay it to the said C.D. And the said johan at N. shall not pay it himself because he is not chargeth therewith to him/ and no more me thinketh in this case that he to whom the bequest is made is neither chargeth to him that the money was owing to in law nor conscience.  ¶ Doctor. 
Than show me thy mind by what law it is grounded as thou thinkest that executores be bound to pay debts before legacies/ whether is it by the law of god/ or by the law of reason/ or by the law of man as thou thinkest.  ¶ Studente. 
I think that it is both by the law of reason and by the law of god/ for reason will that they shall do first that is best for the testator/ and that is to pay debts that his testator is bound to pay before legacies that he is not bound to.  
And also by the law of god they are bound to pay the debts first/ for sith they are bounden by the law of god to love their neighbour/ they are bound to do for him that shall be best for him when they have taken the charge thereto/ as executors do when they agree to take the charge of the will of their testator upon them/ and it is better for the testator that his debts be paid: wherefore his soul shall suffer pain: than that his legacies be performed/ wherefore he shall suffer no pain for the not ꝑfourming of them. And that is to be understand where the legacy is made of his own free will and not where it is made as a satisfaction of any duty. And after the saying of saint Gregory/ the very true proof of love is the deed. But this man is not in that case/ for he never took the charge upon him to pay the debts of the testator. And therefore he is not bound to them in law nor conscience as me seemeth. But rather the executors should have been ware or they had paid the legacies seeing there were debts to pay.  ¶ Doct. 
The executors might none otherwise have done in this case but to pay the legacies for them they should have been compelled by the law to have paid/ and so they could not have been to have paid the debt upon a contract. And therefore they did well in performing of the legacy/ but he to whom the legacy was made ought not to have taken them/ but aught in conscience to have suffered them to have gone to the payment of the debt/ & sith he did not so but took them where he had no right to them/ it seemeth that when he took them/ he took them with the charge in conscience to pay the debt/ for sith the executors were compellable by the law to perform the bequest and not to pay the debt/ therefore when they performed that byqueste/ they were discharged thereby against him that the debt was owing to in the law and conscience and than the charge rested upon him that took the goods where he ought not in conscience to have taken them/ but if it had been a debt upon an obligation or such other debt/ whereupon remedy might have been had against the executors by the law/ there I suppose that though the executors had performed the legacy that yet he to whom the legacy was made and performed had not been charged in conscience to the payment of the debt/ for the executors stood still charged there to of their own goods/ and he to whom that byqueste was made was only bound in consciende to repay that he received to the executors because he had no right to have received it/ for against the executors he had no right thereto.  ¶ Student. 
Than it seemeth in this case that in like wise he to whom the bequest was made should repay that he received to the executors/ and than they to pay it rather than he.  ¶ Doctor. 
The executors have no ferther meddling with it as this case is/ for when they performed the bequest they were discharged against both the other in law and conscience/ and also he to whom the byqueste was made stood not in this case charged to the executors/ for as against them he had good title by the law/ and so this charge standeth only against him that the debt is owing to/ and the same law that is in this case upon a debt upon a contract is if the testator had done a trespass whereupon he ought to have made restitution/ that is to say/ that he to whom the bequest is made is bound to make the amends for the trespass/ for it should be no discharge to him to pay it again to the executors without they paid it over/ and it were uncertain to him whether they would pay it or not. And therefore to be out of peril: it is necessary that he pay it himself/ and than is he surely discharged against all men.   

❧ The ten question of the student. The xii Chapitre.  ¶ STudent. 
A man seized of certain land in his demean as of fee/ hath issue two sons and dieth seized/ after whose death a stranger abateth/ & taketh the profits/ and after the eldest son dieth without issue and his brother bringeth an assize of Mortdauncestre as soon and heir to his father not making mention of his brother and recovereth the land with damages fro the death of his father as he may well by the law/ whether in this case is the younger brother bound in conscience to pay to the executors of the eldest brother the value of the profytꝭ of the said land that belonged to the eldest brother in his life or not.  ¶ Doctor. 
What is thine opinion therein.  ¶ Student. 
That like as the said profits belonged of right to the eldest brother in his life/ and that he had full authority to have released as well the right of the said land as of the said ꝓfytꝭ/ which release should have been a clear bar to the younger brother for ever. That the right of the said damages which be in the law but a chattel/ bylonge to his executors and not to the heir/ for no manner of chatells neither real nor personal shall not after the law of the realm descend unto the heir.  ¶ doctor. 
Thou saidest to the case next before/ that it is not of the law of reason that a man shall may make executors/ and dispose his goods by his will/ and that the executors shall have the goods to dispose but by the law of man/ and if it be left to the termination of the law of man. Than in such cases as the law giveth such chatelles unto the executors/ they shall have good right unto them/ and in such cases as the law taketh such chatelles from them: they been rightfully taken from them. And therefore it is thought by many that if a man sue a writ of right of ward of award that he hath by his own fee and dieth hanging the writ/ and his heir sue a resomons according to the statute of Westmester second/ and recovereth: that in that case the heir shall enjoy the wardeshype against the executors/ and yet it is but a chatel/ and they take the reason to be because of the said statute/ and so might it be ordained by statute that all wards should go to the heirs and not to the executors. Right so in this case sith the law is such that the younger brother shall in this case have an assize of Mort dauncestre as heir to his father: not making any mention of his elder brother & recover damages as well in the time of his brother as in his own time: it appeareth that the law giveth the right of these damages to the heir/ and therefore no recompense ought to be made to the executors as me seemeth/ and it is not like to a writ of Ayel: where as I have learned in Latyn (sith our first dialogue) the demaundaunt shall recover damages only fro the death of his father if he over live the Ayel/ and the cause is for the demaunt though his Ayel over lived his father must of necessity make his conveyance by his father & must make him self son & heir to his father & cousin & heir to his Ayel/ & therefore in that case if the father over lived the Ayel: the abatour were bound in conscience to restore to the executors of the father the profits run in his time/ for no law taketh them fro him/ but otherwise is in this case as me seemeth.  ¶ Student. 
If the younger brother in this case had entered into the land without taking any assize of Mort dauncestoure as he might if he would/ to whom were the abatour than bounden to make restitution for those profits as thou thinkest.  ¶ Doctor. 
To the executors of the eldest brother/ for in that case there is no law that taketh them from them/ and therefore the general ground which is that all chatels shall go to the executors: holdeth in that case/ but in this case that ground is broken and holdeth not for the reason that I have made before/ for commonly there is no general ground in the law so sure: but that it faileth in some particular case.   

❧ The xi question of the student. The xiii Chapitre.  STudent. 
A man seized of land in fee taketh a wife/ and after alieneth the land and dieth/ after whose death his wife asketh her dower and the alien refuseth to assign it unto her/ but after she asketh her dower again and he assigneth it unto her/ whether is the alme in this case bound in conscience to give the woman damages for the profits of the land after her third part fro the death of her husband/ or fro the first request of her dower or neither the one nor the other.  ¶ Doct. 
what is the law in this case.  ¶ Student 
By the law the woman shall recover no damagis/ for at the common law the demaundaunt in a writ of dower should never have recovered damages. But by the statute of Marton it is ordained that where the husband dieth seized that the woman shall recover damages which is understand the profits of the land sith the death of her husband/ & such damagis as she hath by the forbearing of it/ but in this case the husband died not seized/ where fore she shall recover no damages by the law  ¶ Doctor. 
yet the law is that immediately after the death of her husband the wife ought of right to have her dower if she ask it though her husband died not seized.  ¶ Student. 
That is true.  ¶ doctor. 
And sith she ought to have her dower fro the death of her husband it seemeth that she ought in conscience to have also the profits fro the death of her husband though she have no remedy to come to them by the law/ for me thinketh that that this case is like too a case that thou puttest in our first dialogue in latin the xvii. chapter. That if a tenant for term of life be diseased & die/ & the disseasoure dieth/ and his heir entereth and taketh the profits/ & after he in the reversion recovereth the landꝭ against the heir as he ought too do by the law/ that in that case he shall recover no damages by the law. And yet thou didst agree that in that case the heir is bound in conscience to pay the damages to the demandant & so me thinketh in this case that the feoff ought in conscience to pay the damages fro the death of her husband seeing that immediately after his death she ought too have her dower.  ¶ Student. 
Though she ought too be endowed immediately after the death of her husband/ yet she can lay no default in the feoff till she demand her dower upon the ground/ and that the tenant be not there too assign it/ or if he be there that he will not assign it/ for he that hath the possession of land whereunto any woman hath title of dower hath good authority as against her to take the ꝓfytes till she require her dower for every woman that demandeth dower affirmeth the possession of the tenant as against her and therefore all though she recover it by action she leaveth the reversion alway in him against whom she recovereth though he be a dysseasour & bringeth not the reversion by her recovery to him that hath right as other tenants for term of life do. And for this reason it is that the tenant in a writ of dower where the husband died seized if he appear the first day may say to excuse himself of damages that he is and all times hath been ready to yield dower if it had been demanded/ & so he shall not be received to do in a wryt ofcosynage neither in the case that thou remember'st above/ for in both cases the renauntes be supposed by the writ to be wrong doers/ but it is not so in this case/ and so me thinketh it clear that the feoff in this case shall neither be bound by law nor conscience to yield damages for the time that passed before the request/ but for the time after the request is greater doubt/ how be it some thinketh him not there bound to yield damages because his title is good as is said before and that it is her default that she brought not her action.  ¶ Doctor. 
As unto the time before the request I hold me content with thine opinion so that he assign the dower when he is required/ but when he refuseth to assign it: than I think him bound in conscience to yield damages for both times though he shall none recover by the law. And first as for the time after the refusal: it appeareth evidently that when he denied to assign her dower: he did against conscience/ for he did not that of right to have done by the law/ ne as he would should have been done to him/ and so after the request he holdeth her dower fro her wrongfully & aught in conscience to yield damages therefore. And as to the default that thou assignest in her that she took not her action/ that forceth little for actions need not/ but where the party will not do that he ought to do of right. And for that he ought of right to have done and did it not/ he can take none advantage/ and than as to the damages before the request me thinketh him also bounden to pay them/ for when he was required to assign dower and refused. It appeareth that he never intended to yield dower fro the beginning/ & so he is a wrong doer in his own conscience/ and more over if the husband die seized the law is such that if the tenant refuse to assign dower when he is required wherefore the woman bringeth a writ of dower against him/ that in that case the woman shall recover damages as well for the time before the request as after/ and yet he ought not in that case after thine opinion to have yielded any manner of damages if he had been ready to assign dower when it was demanded/ and so me thinketh here.  ¶ Studente. 
The cause in that case that thou haste put is for that the statute is general that the demaundaunt shall recover damages where the husband died seized/ and that statute hath been alway construed that where the tenant may not say that he is and hath been always ready to yield dower. &c. that the demandant shall recover damages fro the death of her husband. But in this case there is no law of the realm that helpeth for the damaundaunt neither common law nor statut/ & furthermore though it might be proved by his refusal that he never intended fro the death of the husband to assign her dower yet that proveth not/ but that he had good right to take the ꝓfites of her third part for the time as well as he had of his own two parts: till request be made as is afore said/ and so me thinketh that not withstanding the denier he is not bound to yield damagis in this case but fro the time of the request/ and not for the time before.  ¶ doctor. 
For this time I am content with thy reason.   

❧ The xii question of the student. The xiiii Chapitre.  STudent. 
A man seized of certain landis knowing that an other hath good right and title to them levieth a fine with proclamation to the intent he would extinct the right of the other man/ & the other man maketh no claim within the .v. years/ whether may he that levied the fine hold the land in conscience as he may do by the law.  ¶ doctor. 
By this question it seemeth that thou dost agree that if he that levyeth the fine had no knowledge of the other man's right: that his right should then be extincted by the fine in conscience.  ¶ Student. 
ye verily/ for thou didst show a reasoneble cause why it should be so in our first dialogue in latin the xxiiii Chapitre as there appeareth. But if he that levyeth a fine and that would extinct the right of an other/ knowing that the other hath more right than he (than I doubt therein) for I take thine opinion in our first dialogue to be understand in conscience where he that would extinct former rights by such a fine with proclamation knoweth not of any former title but for his more surety if any such former right be: he taketh the remedy that is ordained by the law.  ¶ doctor. 
Whether dost thou mean in this case that thou puttest now that he that hath right: knoweth of the fine and wilfully letteth the .v. year pass without claim or that he knoweth not any thing of the fine.  ¶ Student. 
I pray the let me know thine opinion in both cases and whether thou think that he that hath right be barred in either of the cases by conscience as he is by the law or not.  ¶ Doctor. 
I will with good will here after show me thy mind therein/ but at this time I pray the give a little sparing and proceed now for this time to some other question.   

❧ The xiii question of the student. The xu Chapitre.  STudent. 
A man seized of certain lands in fee hath a daughter which is his heir apparaunte/ the daughter taketh a husband and they have issue: the father dieth seized/ & the husband as soon as he heareth of his death goeth toward the land to take possession/ and before he can come there: his wife dieth/ whether ought he to have the land in conscience for term of his life as tenant by the courtesy because he hath done that in him was to have had possession in his wives life so that he might have been tenant by the courtesy according to the law/ or that he shall neither have it by law nor conscience.  ¶ Doctor. 
Is it clearly held in the law that he shall not be tenant by the courtesy in this case because he had not possession in deed.  ¶ Student. 
ye verily/ and yet upon a possessition in law a woman shall have her dower/ but no man shallbe tenant by the courtesy of land without his wife have possession in deed.  ¶ doctor. 
A man shallbe tenant by the courtesy of a rent though his wife die before the day of payment/ & in like wise of an advowson though she die before the avoidance.  ¶ Studente. 
That is truth/ for the old custom and maxim of the law is that he shall be so/ but of land there is no maxim that serveth him but his wife have possession in deed  ¶ Doctor. 
And what is the reason that there is such a maxim in the law of the rent and of the advowson rather than of land/ when the husband doth as much as in him is to have possession and can not  ¶ Student. 
Some assign the reason to be because it is impossible to have possession in deed of the rent or of advowson before the day of payment of the rent/ or before the avoidance of the advowson.  ¶ Doct. 
And so is impossible that he shall have possession in deed of land if his wife die so soon that he may not by possibility come to the land after her fathers death/ and in her life as this case is.  ¶ Student. 
The law is such as I have showed the before and I take the very cause to be for that there is a maxim serveth for the rent and the advowson/ and not for the lands as I have said before/ and as it is said in the viii. chapiter of our first dialogue/ it is not alway necessary to assign a reason or consideration why the maxims of the law of England were first ordained and admitted for maxims/ but it suffisethe that they have been alway taken for law and that they be neither contrary to the law of reason nor to the law of god as this maxim is not/ and therefore if the husband in this case be not helped by conscience he can not be helped by the law.  ¶ Doctor. 
And if the law help him not: conscience can not help him in this case/ for conscience must alway be grounded upon some law/ and it can not in this case be grounded upon the law of reason nor upon the law of god/ for it is not directly by those laws that a man shallbe tenant by the courtesy/ but by the custom of the realm. And therefore if that custom help him not: he can nothing have in this case by conscience/ for conscience never resisteth the law of man nor addeth nothing to it/ but where the law of man is in itself directly against the law of reason or else the law of god/ and than properly it can not be called a law but a corruption/ or where the general grounds of the law of man worketh in any particular case against the said laws as it may do/ and yet the law good as it appeareth in diverse places in our first dialogue in latin/ or else where there is no law of man provided for him that hath right to a thing by the law of reason or by the law of god. And than sometime there is remedy given to execute that in conscience/ as by a Sub pena but not in all cases/ for sometime it shallbe referred to the conscience of the party/ and upon this ground (that is to say) that when there is no title given by the common law: that there is no title by conscience. There be diverse other cases whereof I shall put some for an example. As if a reversion be granted unto one/ but there is none attournment/ or if a new rent be granted by word with out deed: there is no remedy by conscience whiles the said grants were made upon considerations of money or such other.  
And in like wise where he that is seized of lands in fee simple maketh a will thereof/ the will is void in conscience because the ground serveth not for him whereby the conscience should take effect/ that is to say/ the law/ and if the tenant make a feoffment of the land that he holdeth by priority and taketh estate again and dieth (his heir within age) the lord of whom the land was first holden by priority shall have no remedy for the body by conscience/ for the law that first was with him/ is now against him/ and therefore conscience is altered in like wise as the law altereth/ and diverse and many cases like be in the law that were to long to rehearse now. And thus me thinketh that if the law be as thou sayest: the husband in this case hath neither right by the law nor conscience.   

❧ The xiiii question of the student. The xvi Chapitre.  STudent. 
A rent is granted to a man in fee to perceive of two acres of land/ and after the grantor enfeoffeth the grantee of one of the said acres/ whether is the hole rent extinct thereby in conscience as it is in the law.  ¶ Doctor. 
Thy case is somewhat uncertain/ for it appeareth not whether the grantor enfeoffed him on trust: or that he gave the acre to him of his mere motion to the use of the said feoff/ or else that the feoffment was made upon a bargain/ and if it were but only a feoffment of trust/ than I think the hole rent abideth in conscience though it be extincted in the law/ and first that it continueth in that case in conscience/ for that part that the grantee hath to the use of the grantor/ it is evident/ for he may not take the profits of the land/ and it is against conscience that he should lose both/ and in like wise it abideth in conscience for the acre that remaineth in the hands of the grantor though it be extinc in the law/ for there was a default in the granntor that he would make the feoffment to the grantee as well as there was in the grantee to take it. And it is no conscience that of his own default he should take so great avail to be discharged of the hole rend saying that the feoffment was made to his own use. And if the feoffment were made upon a bargain and a contract between them/ than it is to see whether they remembered the rent in in their bargain/ or that they remembered it not/ & if they remembered it in their bargain and contract/ than conscience must follow the bargain/ as thus if they agreed that the grantee should have the rent after the portion in the other acre than by conscience he ought to have it though it be extincted in the law. And if they agreed that the hole rent should be extinc and made their price according than it is extinc in law and conscience/ and if they clearly forget it and made no mention of it/ or for lack of cunning took the law to be that it should continue in the other acre after the portion and made their price according/ pondering only the value of the acre that was sold: than me thinketh/ it doth continue in conscience after the portion/ and if the feoffment were made to the use of the grantee/ than it seemeth the hole rent is extinc in law and conscience.  ¶ Student. 
Than take that to be the case/ that is to say/ that the feoffment was made to the use of the grantee.  ¶ doctor. 
What is than thine opinion therein.  ¶ Student. 
That the rent should abide in conscience after the portion for the acre that remaineth in the hands of the granntor notwithstanding it be extinc in the law.  ¶ doctor. 
Than show me thine opinion in this that I shall ask the. Of what law is it that grants of rent and of such other profits out of lands may be made and that they shall be good and effectual to the grauntees/ whether is it by the law of reason or by the law of god or by the custom and law of the realm.  ¶ Studente. 
I think it is by the law of reason/ for by the same reason that a man may give away all his lands: he may as it seemeth give away the profits thereof or grant a rent out of the land if he will.  ¶ Doctor. 
But than by what law is it that a man may give away his lands/ I trow by none other law but by the custom of the realm/ for by statute all alienations and gifts of lands may be prohibit/ and than that reason proveth not that grants of the ꝓfytes of land or of a rent should be good by cause he may alien the land/ if alienations of land be by custom and not by the law of reason as I suppose it is/ whereof I touched somewhat in our first dialogue in latin the xix Chapitre. And also if grants should have their effect by the law of reason: than reason would that they should be good by the only word of the granntor as well as by his deed/ & that is not so/ for without deed the grant of rent is void in the law and so my thinketh that grants have their effect only by the law of the realm.  ¶ Student 
(Admit it to be so) what meanest thou thereby  ¶ Doctor. 
I shall show the here after as I shall show the the cause why I think the rent is extinc in conscience as well as in law. And first as I take it the reason why it is extinc in the law is because the rent by the first grant was going out of both acres/ and was not going part out of the one acre and part out of the other/ but the hole rend was going out of both/ and than when the grantee of his one folly will take estate in the one acre whereby that acre is discharged/ than the other acre also must be discharged whiles it should be apporcioned and the law will not that any apporcionement should be in that case/ but rather in as much as the party hath by his own act discharged the one acre: the law dischargeth also the other/ rather than to suffer the other acre to be charged contrary to the form of the grant/ for this rent beginneth all by the act of the party and as I have herd is called a rent against common right/ wherefore it is not favoured in the law as a rend service is/ and than me thinketh that for as much as it is not grounded by the law of reason that grants of rent should be made out of land/ but by the custom and law of the realm as I have said before/ that so in like wise it remaineth to the law and custom of the realm to determine how long such rents shall continue. And when the law judgeth such rents to be void: I suppose that so doth conscience also/ except the judgement of the law be against the law of reason or the law of god/ as it is not in this case for in this case he that taketh the feoffment hath profit by the feoffment/ and knoweth that he hath such a rent out of the land/ and that his purchase should extinct it/ whereby it appeareth that he asienteth unto the law whereto he was not compelled/ and that is his own act and his own default so to do/ which shall extinct his hole rend as well in consciente as in the law. But if he have no perfect of the land or be ignorant that he hath such a rent out of the land which is called ignorance of the deed/ or if he be ignorant that the law would extinct his hole rend thereby/ which is called ignorance of the law/ than me thinketh it remaineth in conscience after the portion.  ¶ Student. 
Ignorance of the law or of the deed helpeth not but in few cases in the law of England.  ¶ doctor. 
And therefore it must be reformed by conscience/ that is to say by the law of reason/ for when the general maxims of the law be in any particular cases against the law of reason as this maxim seemeth to be because it excepteth not them that be ignorant though it be an ignorance in vincible than do they not agree with the law of reason.  ¶ Student. 
We thinketh that ignorance in this case helpeth little/ for when a man byethe any land or taketh it of the gift of any other he taketh it at his peril/ so that if the title be not good: ignorance can not help/ for the bier must beware what he buyeth/ and so in this case if the taking of the one acre should extinct the hole rend in conscience if he were not ignorant/ some thinketh it should in like wise extinct it also though he be ignorant of the law or of the deed/ for every man must be compelled to take notice of his own title: and out of what land his rent is going/ & some thinketh ignorance is but little to be considered in this case.  ¶ Doctor. 
If a man buy land or take it of the gift of an other: it is reason that he take it with the peril though he be ignorant that another hath right/ for it were not standing with reason that his ignorance should extinct the right of another/ but in this case there is no doubt of the right of the land/ but all the doubt is how the rent shallbe ordered in conscience if he that hath the rent take part of the land/ and therein is great diversity between him that is ignorant in the law/ and him that knoweth the law/ and knoweth well also that he hath a rent out of that land and other. For I put case that he asked counsel of the grantor himself therein and he saying as he thought told him that the taking of the one acre should not extinct the rent but for the portion: and so he thinking the law to be: took the other acre of his gift. Is it not reasonable in that case that that ignorance should save the rent in conscience.  ¶ Student. 
yes/ for there the grantor himself is party to his ignorance and is in manner the cause thereof.  ¶ Doctor. 
And me thinketh all is one if any other had showed him so/ or if he had asked no counsel at all/ for me thinketh it sufficeth in this case that he be ignorant of the law/ for why/ it is more hard in this case to prove that the rent should be extinc in conscience though he know it shallbe extincted in the law: than to prove that it continueth in conscience after the portion if he be ignorant/ & thou thyself were of the same opinion/ as it appeareth in the beginning of this present chapiter/ but if that opinion were true: it would be hard to ꝓue but that the said general maxim were holly against reason/ & than it were void/ but I have sufficiently answered thereto as me seemeth/ and that it is extinc in the law and also in conscience/ except ignorance help it to be apporcioned. And more over for as much as apporcionement is suffered in the law where part of the land descendeth to the grantee because no default can be assigned in him/ so me thinketh no default can be assigned in him in conscience when he is ignorant of the law or of the deed though such ignorance do not excuse in the law of the realm.  ¶ Student. 
I am content with thine opinion in this behalf at this tyme.   

❧ The xu question of the student. The xvii Chapitre.  STudent. 
A man granteth a rend charge out of two acres of land/ and after the grantor enfeoffeth Henry heart in one of the said two acres to the use of the said Henry heart and of his heirs/ & after the said Henry heart intending to extinct all the rent causeth the said acre to be recovered against him to his own use in a wryt of entre in the post in the name of the grantee and of other after the common course/ the grauntee not knowing of it/ and by force of the said recover the other demaundauntes enter and die/ living the grantee/ so that the grantee is seized of all by the surveyor to the use of the said Henry heart/ whether is the said rend extinc in conscience in part nor in all or in no part.  ¶ Doctor. 
I am in doubt of the law in this case.  ¶ Student. 
In what point.  ¶ doctor 
whether the hole rend be going out of the acre that remaineth in the hands of the grantor because the grantee cometh to the land by way of recover/ or that it shallbe extinc in the law/ but after the portion by cause the grantee hath not the acre to his own use/ or that the hole rent shallbe extinct in the law.  ¶ Student. 
The rent can not be hole going out of the acre that the granntor hath/ for this recover is upon a feigned title/ & the grantor because he is strange to it: shallbe well received to falsify it.  
But if the recovery had been upon a true title: than it had been as thou sayest/ for if the grantee recover the one acre against the grantor upon a true title/ the grantor shall pay the hole rend out of that land that remaineth in his hand/ and as to the use it maketh no matter to the granntor as to the law in whom the use be/ for the possession without the use extynguyssheth the hole rend as against him in the law as well as if the possession & use were both joined together in the grantee.  ¶ Doct. 
Than me thinketh that the said Henry heart is bounden in conscience to pay the grantee the rent after the portion of that acre that was recovered/ for it can not stand with conscience that he should lose his rent and have no profits of the land.  ¶ Student. 
Than of whom shall he have the other portion of his rent.  ¶ doctor. 
Is the law clear that the acre that the grantor hath shallbe in this case discharged in the law.  ¶ Student. 
I take the law so.  ¶ Doctor. 
And what in conscience.  ¶ Student. 
As against the granntor me thinketh/ also it is extinc in conscience for the reason that thou hast made in the xvi Chapitre/ for it is all one in conscience in this case as against the grantor whether the recover were to the use of the grantee or not/ especially saying that the granntor is not privy to the recovery/ for the unite of possession is the cause of extinguisshement of the rent against the grauntoure both in law and conscience where so ever the use be/ but if the grantor had been privy to the cause of the extynguisshement as he was in the case that I put in the last chapiter where the granntor enfeoffed the grantee of one of the acres to the use of the grantee there it is not extinc in conscience in that acre that remaineth in the hands of the granntor though it be extincted in the law/ because he was privy to the extynguisshement himself/ but he is not so in this case/ and therefore it is extinc against him in law and conscience. And therefore me thinketh that the grantee shall in conscience have the hole rent of the said Henry heart that caused the said recover to be had in his name/ for in him was all the default/ but it is to be understand that in all the cases where it is said before in this chapiter or in the chapiter next before: that the rent is extinct in the law & not in conscience that in such case all the remedies that the party might first have had for the rent at the common law by distress assize or otherwise are determined/ and the party that ought to have the rent in conscience shallbe driven to sue for his remedy by Sub pena.  ¶ Doctor. 
I am content with thy conceit in this matter for this tyme.   

❧ The xvi question of the student. The xviii Chapitre.  STudent. 
A villain is granted to a man for term of life/ the villain purchaseth lands to him and to his heirs/ the tenant for term of life enter thee/ in this case by the law he shall enjoy the lands to him and to his heirs/ whether shall he do so in like wise in conscienec.  ¶ Doctor. 
Me thinketh it first good to see whether it may stand with conscience that one man may claim an other to be his villain/ and that he may take fro him his lands and goods and put his body in prison if he will/ it seemeth he loveth not his neighbour as himself that doth so to him.  ¶ Sudent. 
That law hath been so long used in this realm and in other also/ and hath been admitted so long in the laws of this realm and of diverse other laws also and hath been affirmed by bishops/ abbots/ prior's/ and many other men both spiritual and temporal which have take advantage by the said law & have seized the lands and goods of their vylleyns thereby and call it their right inheritance so to do: that I think it not good/ now to make a doubt ne to put it in argument whether it stand with conscience or not/ and therefore I pray the admitting the law in that behalf to stand in conscience show me thine opinion in the question that I have made.  ¶ Doctor. 
Is the law clear that he that hath the villain but only for the term of life shall have the lands that the villain purchaseth in fee to him and to his heirs.  ¶ Student. 
I verily I take it so.  ¶ Doctor. 
I would have take the law otherwise/ for if a seygnoury be granted to a man for term of life and the tenant attourne/ and after the land escheat and the tenant for term of life entereth he shall have there none other estate in the land than he had in the signory/ and me thinketh that it should be like law in this case/ and that the lord ought to have in the land but such estate as he hath in the villain.  ¶ Stud. 
The cases be not like/ for in that case of the escheat the tenant for term of life of the signory hath the lands in the am of the seignourie/ that is to say/ in the place of the seignourie/ & the seignourie is clearly extinct/ but in this case he hath not the land in the am of the villain/ for he shall have the villeyne still as he had before/ but he hath the lands as a perfect come by means of the villain which he shall have in like case as the villain had them/ that is to say/ of all goods and cattles he shall have the hole property and of a lease for term of years he shall have the hole term/ and for term of life he shall have the same estate/ the lord shall have the land during the life of the villain & of land in fee simple & of an estate tail that the villain hath/ the lord shall have the hole fee simple/ all though he had the villain but only for term of years so that he enter or seize according to the law before the villain alien: or else he shall have nothing.  ¶ doctor. 
Verily and if the law be so/ I think conscience followeth the law therein/ for admitting that a man may with conscience have an other man to be his hylleyne/ the judgement of the law in this case as to termine what estate the lord hath in the land by his entry is neither against the law of reason nor against the law of god/ and therefore conscience must follow the law of the realm/ but I pray the let me make a little dygression to here thine opinion in another case somewhat pertaining to the question/ and it is this if an executor have a villain that is his testator had for term of years & he purchaseth lands in fee and the executor entereth in to the land/ what estate hath he by his entry.  ¶ Student. 
A fee simple/ but that shallbe to the behove of the testator and shallbe an assess in his hands.  ¶ doctor. 
Well than I am contented with thine conceit at this time in this case and I pray the proceed to another question.  ¶ Ttudente. 
For as much as it appeareth in this case and in some other before that the knowledge of the law of England is right necessary for the good ordering of conscience. I would here thine opinion if a man mistake the law what danger it is in conscience for the mistaking of it.  ¶ Doctor. 
I pray the put some case in certain thereof that thou doutest in/ and I will with good will show the my mind therein for else it will be somewhat long or it can be plainly declared/ and I would not be tedious in this writing.   

❧ The xvii question of the student. The xix Chapitre.  STudent. 
A man hath a villain for term of life the villain purchaseth lands in fee as in the case in the last chapiter and the tenant for term of life entereth and after the villain dieth/ he in the reversion pretending that the tenant for term of life hath nothing in the land but for term of life of the vylleine/ asketh counsel of one that showeth him that he hath good right to the land and that he may lawfully enter/ and through that counsel he in the reversion entereth/ by reason of the which enter great suits and expenses follow in the law to the great hurt of both parties/ what danger is this to him that gave the counsel.  ¶ Doctor. 
Whether meanest thou that he that gave the counsel gave it wittingly against the law/ or that he was ignorant of the law.  ¶ Student. 
That he was ignorant of the law for if he knew the law & gave counsel to the contrary I think him bound to restitution both to him against whom he gave the counsel/ and also to his client if he would not have sued but for his counsel of all that they be damnified by it.  ¶ Doctor. 
Than will I yet ferther ask the this question/ whether he of whom he asked counsel gave himself to learning & to have knowledge of the law after his capacity or that he took upon him to give counsel and took no study competent to have learning/ for if he did so I think he be bounden in conscience to restitution of all the costs and damages that he sustained to whom he gave counsel if he would not have sued but through his counsel. And also to the other party/ but if a man that hath taken sufficient study in the law/ mistake the law in some point that is hard to come to the knowle of: he is not bounden to such restitution/ for he hath done that in him is/ but if such a man knowing the law give counsel against the law: he is bound in conscience to restitution of costs & damages as thou hast said before/ and also to make amends for the untruth.  ¶ Student. 
What if he ask counsel of one that he knoweth is not learned and he giveth him counsel in this case to enter by force whereof he entereth.  ¶ doctor. 
Than be they both bound in conscience to restitution/ that is to say/ the party if he be sufficient and else the counsayloure because he assented and gave counsel to the wrong.  ¶ Student. 
But what is the counsaylloure in that case bounden to/ to him that he gave counsel to.  ¶ doctor. 
To nothing for there was as much default in him that asked the counsel as in him that gave it/ for he asked counsel of him that he knew was ignorant/ and in the other was default for the presumption that he would take upon him to give counsel in that he was ignorant in.  ¶ Stud. 
But what if he that gave the counsel knew not but that he that asked it had trust in him that he could and would give him good counsel and that he asked counsel for to order well his conscience how be it that the truth was that he could not so do.  ¶ Doct. 
Than is he that gave the counsel bound to offer to the other amends/ but yet the other may not take it in conscience.  ¶ Student. 
That were somewhat perilous for haply he would take it though he have no right to it/ except the world be well amended.  ¶ Doc. 
What thinkest thou in that amendment.  ¶ Sudent. 
I trust every man will do now in this world as they would be done to/ speak as they think/ restore where they have done wrong/ refuse money if they have no right to it though it be offered them do that they ought for to do by conscience/ though they can not be compelled to it by no law & that none will give counsel but that they shall think to be according to conscience/ and if they do: to do that they can to reform it/ and not to entremit themself with such matters as they be ignorant in/ but in such cases to send them that ask the counsel to other that they shall think be more cunning than they are.  ¶ Doct. 
It were very well if it were as thou haste said/ but the more petty is: it is not alway so/ & specially there is great default in givers of counsel/ for some for their own lucre and profit give counsel to comfort other to sue that they know have no right/ but I trust there be but few of them/ & some for dread/ some for favour/ some for malice/ and some upon confederacies and to have as much done for them another time to hide the truth. And some take upon them to give counsel in that they be ignorant in/ and yet when they know the truth: will not withdraw that they have misdone/ for they think it should be greatly to their rebuke/ and such persons follow not this counsel that saith (That we have unadvisedly done: let us with good advise revoke again)  ¶ Student. 
And if a man give counsel in this realm after as his learning and conscience giveth him/ and regardeth not the laws of the realm/ giveth he good counsel.  ¶ Doc. 
If the law of the realm be not in that case against the law of god nor against the law of reason he giveth not good counsel/ for every man is bound to follow the law of the country where he is/ so it be not against the said laws/ & so may the case be that he may bind himself to restitution.  ¶ Student. 
At this time I will no ferther trouble the in this question.   

❧ The xviii question of the student. The twenty Chapitre.  ¶ STudent. 
If a man of his mere motion give landis to Henry heart and to his heirs by indenture upon condition that he shall yearly at a certain day pay to johanat Style out of the same land a certain rend/ and if he do not that than it shallbe lawful to the said johan at style to enter. etc. if the rent in this case be not paid to johan at style/ whether may the said johan at style enter in to the lands by conscience though he may not enter by the law.  ¶ Doctor. 
May he not enter in this case by the law sith the words of the indenture be that he shall enter.  ¶ Student 
No verily for there is an ancient maxim in the law that no man shall take advantage of a condition but he that is ꝑtie or privy to the condition/ and this man is not party nor privy/ wherefore he shall have none advantage of it.  ¶ doctor. 
Though he can have none advantage of it as party yet because it appeareth evidently that the intent of the giver was that if he were not paid of the rent that he should have the land. It seemeth that in conscience he ought to have it though he can not have it by the law.  ¶ Student. 
In many cases the intent of the party is void to all intentes if it be not grounded according to the law.  
And therefore if a man make a lease to another for term of life/ and after of his mere motion he confirmeth his estate for term of life/ to remain after his death to another and to his heirs/ in this case that remainder is void in law and conscience/ for by the law there can no remayndre depend upon no estate but that the same estate beginneth at the same time that the remainder doth/ and in this case the estate began before and the confirmation enlarged not his estate nor gave him no new estate/ but if a lease be made to a man for term of another man's life and after the lessour only of his mere motion confirmeth the land to his less for term of his own life the remainder over in fee/ this is a good remainder in law and conscience/ and so me thinketh the intent of the party shall not be regarded in this case.  ¶ doctor. 
And in the first case that thou hast put me thinketh though it pass not by way of remainder that yet it shall pass as by way of grant of the reversion/ for every deed shallbe taken most strong against the grantor and the taking of the deed in this case is an attournament in itself.  ¶ Student. 
That can not be/ for he in the remayndre is not party to the deed and therefore it can not be taken by way of grant of the reversion/ for no grant can be made but to him that is party to the deed except it be by way of remainder/ and therefore if a man make a lease for term of life/ and after the lessour grant to a staunger that the tenant for term of life shall have the land to him and to his heirs/ that grant is void if it be made only of his mere motion without recompense. And in like wise if a man make a lease for term of life & after grant the reversion to one for term of life/ the remainder over in fee/ and the renaunt atturneth to him that hath the state for term of life only/ intending that he only should have advantage of the grant: his intent is void/ and both shall take advantage thereof/ and the atturnament shallbe taken good according to the grant/ and so in this case though the feoffor intended that if the rent were not paid: that the stranger should enter/ yet because the law giveth him no entry in that case that intent is void/ and the same staunger shall neither enter into the land by law nor conscience.  ¶ Doctor. 
What shall then be done with the land as thou thinkest after the condition broken.  ¶ Student. 
I think that the feoffor in this case may lawfully re-enter/ for when the feoffment was made upon condition that the feoff should pay a rent to a stranger: in though words is concluded in the law that if the rent were not paid to the stranger that the feoffor should re-enter for the words upon condition/ imply so moche in the law though it be expressed. And than when the feoffor went further and said that if the rent were not paid that the stranger should enter/ those words were void in the law/ and so the effect of the deed stood upon the first words whereby the feoffor may re-enter in law and conscience: but if the first words had not been conditional I would have holden it the greater doubt.  ¶ Doctor. 
I pray the put the case thereof in certain with such words as be not conditional that I may the better perceive what thou meanest therein.   

❧ The xix question of the studente. The xxi Chapitre.  SSudent. 
A man maketh a feoffment by deed indebted/ and by the same deed it is agreed that the feoff shall pay to A.B. & to his heirs a certain rent yearly at certain days/ & that if he pay not the rent: than it is agreed that A.B. or his heirs shall enter into the land/ and after the feoff payeth not the rent/ than the question is who ought in conscience to have this land and rent.  ¶ doctor. 
Or we argue what conscience will: let us know first what the law will therein.  ¶ Student. 
I think that by the law neither the feoffor ne yet the said A.B. shall never enter into the land in this case for not payment of the rent for there is no re-enter in this case given to the feoffor for not payment of the rent as there is in the case next before/ and the entry that is given to the said A. B. for not payment thereof is void in the law because he is estrange to the deed as it appeareth also in the next chapiter before.  
And therefore me thinketh that the greatest doubt in this case is to see to what use this feoffment shallbe taken.  ¶ Doctor. 
There appeareth in this case as thou haste put it: no consideration ne recompense given to the feoffor whereupon any use may be derived/ & if the case be so in deed & that the feoffor declared never his mind therein/ to what use shall it than be taken.  ¶ Stu. 
I think it shallbe taken to be to the use of the feoff as long as he payeth the rent/ for there is no reason why the feoff should be busied with payment of the rent having nothing for his labour/ ne it may not conveniently be taken that the intent of the feoffor was so/ except he expressed it/ & than it must be taken that he intended to recompense the feoff for the business that he should have in the payment over/ and by the words following his intent appeareth to be so as me thinketh/ for if the rent were not paid he would that A.B. should enter/ and so it seemeth he intended not to have any use himself and thus as me seemeth this case should vary fro the common case of uses/ that is to say/ if a man seized of land make a feoffment thereof: and it appeareth not to what use the feoffment was made ne it is not upon any bargain or other recompense: than it shallbe taken to be to the use of the feoffor/ except the contrary can be proved by some bargain or other like/ or that his intent at the time of the livery of season was expressed that it should be to the use of the feoff or of some other/ & than it shall go according to his intent/ but in this case me thinketh it shallbe taken that his intent was that it should first be to the use of the feoff for the cause before rehearsed except the contrary can be proved/ & so the knowledge of the intent of the feoffor is the greatest certainty for knowledge of the use in this case as me seemeth/ but when the feoffor goeth further and sayeth that if the rent be not paid: than the said A.B. should enter into the land/ than it appeareth that his intent was that the rent should cease/ and that A. B. should enter into the land/ and though he may not by those words enter into the land after the rules of the law/ and to have freehold/ yet those words seem to be sufficient to prove that the intent of the feoffor was that he should have the use of the land/ for sith he had the rent to his own use and not to the use of the feoffor: so it seemeth he shall have the use of the land that is assigned to him for not payment of the rent.  ¶ Doctor. 
But I am somewhat in doubt whether he had the rent to his own use/ for the intent of the feoffor might be that he should pay the rent for him to some other or some other use might be appointed thereof by the feoffor.  ¶ Student. 
If such an intent can be proved: than that intent must be observed/ but we be in the case to weet to what use it shallbe taken if the intent of the feoffor can not be proved/ & than me thinketh it can not be otherwise taken but that it shallbe to the use of him to whom it should be paid/ for though it be called a rent yet it is no rent in the law/ ne in the law he shall never have remedy for it/ though it were assigned to him & to his heirs with out condition/ neither by distress/ by Assize/ by writ of Annuite/ nor otherwise/ but he shallbe driven to sue in the chancery for his remedy/ and than when he sueth in the chancery: he must surmitte that he ought to have it by conscience/ and that he can have no remedy for it in the law.  
And than sith he hath no remedy to come to it but by way of conscience: it seemeth it shallbe taken that when he hath recovered it that he ought to have it in conscience and that to his own use without the contrary cane be proved/ and if the contrary can be proved: and that the intent of the feoffor was that he should dispose it for him as he should appoint than hath he the rent in use to another use/ and so one use should be depending upon another use which is seldom seen and shall not be intended till it be proved/ and so sith no such matter is here expressed: me thinketh the rent shallbe taken to be to the use of him that it is paid to/ & that the land in likewise that it is appointed to him for not payment of the said rend shallbe also to his use/ how thinkest thou/ will conscience therein.  ¶ Doctor. 
I think that as thou takest the law now: that conscience (in this case) & the law be all one/ for the law searcheth the same thing in this case to know the use that conscience doth/ that is to say/ the intent of the feoffor/ and therefore I would move the further in one thing.  ¶ Student. 
What is that.  ¶ doctor. 
That sith the intent of the feoffor/ shallbe so much regarded in this case: why it ought not also to be as much regarded in the case that is in the last chapiter next before this where the words be conditional/ and give the feoffor a title of re-enter/ for me thinketh that though the feoffor may in that case re-enter for the condition broken: that yet after his re-enter he shallbe seized of the land after his entry to the use of him to whom the land was assigned by the said indenture for lack of payment of the rent because the intent of the feoffor shallbe taken to be so in that case as well as in this. And I pray the let me know thy mind what diversity thou puttest between them  ¶ Student. 
Thou dryvest me now to a narrow diversity/ but yet I will answer thy therein as well as I can.  ¶ Doctor. 
But first or thou show me that diversity: I pray the show me how uses began/ & why so moche land hath been put in use in this realm as hath been.  ¶ Stud. 
I will with good will say as me thinketh therein.   

❧ How uses of land first began/ and by what law/ and the cause why so moche land is put in use. The xxii Chapitre.  STudent. 
Uses were reserved by a secondary conclusion of the law of reason in this manner/ when the general custom of property whereby every man knew his own good fro his neighbours was brought in among the people. It followed of reason that such lands and goods as a man had: ought not to be taken fro him but by his assent or by order of a law/ and than sith it is so that every man that hath lands hath thereby two things in him/ that is to say/ the possession of the land which after the law of England is called the franketenement or the free hold/ and the other is authority to take thereby the profits of the land/ wherefore it followeth that he that hath land & intendeth to give only the possession and free hold thereof to another/ and to keep the profits to himself ought in reason and conscience to have the profits/ seeing there is no law made to ꝓhibite/ but that in conscience such reservation may be made. And so when a man maketh a feoffment to another and intendeth that he himself shall take the profits than that feoff is said seized to his use that so enfeffed him/ that is to say/ to the use that he shall have the possession & freehold thereof as in the law to that intent that the feoffor shall take the profits/ and under this manner as I suppose uses of land first began.  ¶ Doctor. 
It seemeth that the reserving of such use is prohibit by the law/ for if a man make a feoffment and reserve the profits or any part of the profits as the gross wood or such other/ that reservation is void in the law/ and me thinketh it is all one to say that the law judgeth such a thing if it be done to be void/ and that the law prohibiteth that that thing shall not be done.  ¶ Student 
Truth it is that such reservation is void in the law as thou sayest and that is by reason of a maxim in the law that willeth that such reservation of part of the same thing shallbe judged void in the law/ but yet the law doth not ꝓhibite that no such reservation shall be made/ but if it be made it judgeth of what effect it shallbe that is to say that it shallbe void/ and so he that maketh such reservation offendeth no law thereby/ ne brekethe no law thereby and therefore the reservation in conscience is good/ but if it were prohibit by statute that no man should make such reservation/ ne that no feoffment of trust should be made/ but that all feoffementes should be to the use of him to whom possession of the land is given/ than the reservation of such use against the statut should be void because it were against the law/ and yet such a statute should not be a statute against reason because such uses were first grounded and reserved by the law of reason/ but it should prevent the law of reason and should put away the consideration where upon the law of reason was grounded before the statute made.  
And than to thy other question/ that is to say/ why so moche land hath been put in use/ it will be somewhat long and peradventure to some tedious to show all the causes particularly/ but the very cause whythe use remained to the feoff notwithstanding his own feoffment or fyne and sometime notwithstanding a recovery against him is all upon one consideration after the cause and intent of the gift/ fine/ or recovery/ as is aforesaid.  ¶ doctor. 
Though reason may serve that upon a feoffment a use may be reserved to the feoffor by the intent of the feoffor against the form of his gift as thou hast said before/ yet I marvel how such an use may be reserved against a fine that is one of the highest records that is in the law/ and is taken in the law of so high effect that it should make an end of all strifes/ or against a recover that is ordained in the law for them that be wronged to recover their right by/ and me thinketh that great enconuenience and hurt may follow when such records may so lightly be avoided by a secret intent or use of the parties and by a nude and bare averment and matter in deed/ and specially sith such a matter in deed may be alleged that is not true whereby may rise great strife between the parties/ and great confusion and uncertainty in the law/ but nevertheless sith our intent is not at this time to treat of that matter I pray the touch shortly some of the causes why there hath been so many persons put in estate of lands to the use of other as there hath been/ for as I here say/ few men be sole seized of their own lands.  ¶ Student. 
There hath been many causes thereof/ of the which some be put away by diverse statutis/ and some remain yet/ wherefore thou shalt understand that some have put their land in feoffent secretly to the intent that they that have right to the land should not know against whom to bring their action/ & that is much what remedied by diverse statutes that give actions against pernours and takers of the profits. And sometime such feoffementes of trust have been made to have maintenance and bearing of their feoffs/ which peradventure were great lords or rulers in the country/ and therefore to put a way such maintenance: triple damagis be given by statute against them that make such feoffementes for maintenance. And sometime they were made to the use of mortmain which might then be made with out forfeiture though it were prohibit that the freehold might not be given in mortmain. But that is put away by the statute of richard the second. And sometime they were made to defraud the lords of wardis/ relyefs/ harryots/ and of the lands of their vylleyns/ but those points be put away by diverse statutes made in the time of king Henry the vii Sometime they were made to avoid executions upon statutes Staple/ Statute Merchant/ & recognisance/ and remedy is provided for that that a man shall have execution of all such lands as any person is seized of to the use of him that is so bound at the time of execution sued in the xix year of H. the vii And yet remain feoffementes/ fines/ and recoveries in use for many other causes/ in manner as many as there did before the said statutes. And one cause is why they be yet thus used is to put away tenauncy by the courtesy and titles of dower. another cause is for that landis in use shall not be put in execution upon a statute staple/ statute merchant/ nor recognisance/ but such as be in the handis of the recognisour time of the execution sued.  
And sometime landis be put in use that they should not be put in execution upon a writ of Extendi facias ad valencian. And sometime such uses be made that he to whose use. &c. may declare his will thereon/ & sometime for surety of diverse covenants in indentures/ of marriage/ & other bargains/ and these two last articles be the chief & principal causes why so moche land is put in use. Also landis in use be no asses neither in a Fourmedone nor in an action of Det against the heir: ne they shall not be put in execution by an Elegit sued upon a recover as some men say and these be the very chief causes as I now remember why so moche land standeth in use as there doth/ and all the said uses be reserved by the intent of the parties understand or agreed between them/ and that many times directly against the words of feoffment/ fine/ or recover/ and that is done by the law of reason as is aforesaid.  ¶ Doctor 
May not an use be assigned to a stranger as well as to be reserved to the feoffor if the feoffor so appointed it upon his feoffment.  ¶ Student. 
yes as well/ & in likewise to the feoff and that upon a free gift without any bargain or recompense if the feoffor so will.  ¶ Doctor. 
What if no feoffment be made but that a man grant to his feoff that fro thence forth he shall stand seized to his own use/ is not the use changed though there be no recompense  ¶ Student. 
I think yes for there was an use in Esse before the gift which he may as lawfully give away as he might the land if he had it in possession.  ¶ Doc. 
And what if a man being seized of land in fee grant to another of his mere motion without bargain or recompense that he fro thence forth shallbe seized to the use of the other/ is not that grant good.  ¶ Student. 
I suppose that it is not good/ for as I take the law: a man can not commence an use but by livery of season or upon a bargain or some other recompense.  ¶ doctor. 
I hold me contented with that thou haste said in this Chaphitre for this time and I pray the show me what diversity thou putteste between those two cases that thou hast before rehearsed in the xx. chapiter and in the xxi Chapitre of this present book.  ¶ Student. 
I will with good will.   

❧ The diversity between two cases here after following/ whereof one is put in the twenty Chapitre and the other in the xxi Chapitre of this present book. The xxiii Chapitre.  ¶ STudent. 
The first case of the said two cases is this. A man maketh a feoffment by deed indented upon a condition that the feoff shall pay a certain rent yearly to a stranger. &c. & if he pay it not: that it shallbe lawful to the stranger to enter into the land. In this case I said before in the twenty Chapitre: that the stranger might not enter because that he was not privy unto the condition. But I said that in that case the feoffor might lawfully re-enter by the first words of the indenture because they imply a condition in the law & that the other words (that is to say) that the stranger should enter be void in law and conscience. And therefore I said further that when the feoffor had re-entered that he was seized of the land to his own use & not to the use of the stranger / though his intent at the making of the feoffment were that the stranger after his entry should have had the land to his own use if he might have entered by the law. And the cause why I think that the feoffor was seized in that case to his own use I shall show the afterward. The second case is this. A man maketh a feoffment in fee/ and it is agreed upon the feoffment that the feoff shall pay a yearly rend to a stranger/ and if he pay it not: that than the stranger shall enter into the land.  
In this case I said as it appeareth in the said xxi Chapitre/ that if the feoff paid not the rent: that the stranger should have the use of the land though he may not by the rules of the land enter into the land/ & the diversity between the cases me thinketh to be this. In the first case it appeareth as I have said before in the said xx. chapiter/ that the feoffor might lawfully re-enter by the law for not payment of the rent/ and than when he entered according: he by that entry avoided the first livery of season/ in so much that after the re-enter he was seized of the land of like estate as he was before the feoffment.  
And so remaineth no thing/ whereupon the stranger might ground his use/ but only the bare grant or intent of the feoffor when he gave the land to the feoff upon condition that he should pay the rent to the stranger/ and if not/ that it should be lawful to the stranger to enter/ for the feoffment is avoided by the re-enter of the feoffor as I have said before/ and as I said in the last chapiter as I suppose a nude or bare grant of him that is seized of land is not sufficient to begin an use upon.  ¶ Doctor. 
A bare grant may change an use as thou thyself agredest in the last chapiter: why than may not an use as well begin upon a bare grant.  ¶ Student. 
When an use is in Esse he that hath the use may of his mere motion give it away if he will without recompense as he might the land if he had it in possession/ but I take it for a ground that he can not so begin an use without a livery of season or upon a recompense or bargain/ & that there is such a ground in the law that it may not so begin it appeareth thus/ it hath been alway holden for law that if a man make a deed of feoffment to another and deliver the deed to him as his deed/ that in that case he to whom the deed is delivered hath no title ne medeling with the land afore livery of season be made to him but only that he may enter and occupy the land at the will of the feoffor/ and there is no book saith that the feoffor in that case is seized there of before lyverey to the use of the feoff.  
And in likewise if a man make a deed of feoffment of two acres of land that lie in two shires intending to give them to the feoff and maketh lyverey of season in the one shire & not in the other/ in this case is it commonly holden in books that the deed is void to that acre where no livery is made except it lie within the view save only that he may enter & occupy at will as is aforesaid/ and there is no book that saith that the feoff should have the use of the other acre/ for if an use passed thereby than were not the deed void to all intentes/ and yet it appeareth by the words of the deed that the feoffor gave the lands to the feoff/ but for lack of livery of season the gift was void and some thinketh it is here without livery of season be made according. But in the second case of the said two cases the feoff may not re-enter for non payment of the rent/ and so the first livery of season continueth and standeth in effect/ and thereupon the first use may well begin & take effect in the stranger: of the land when the rent is not paid unto him according to the first agreement. And so me thinketh that in the first case the use is determined by cause the livery of season where upon it commenced is determined/ and that in the second case the use of the land taketh effect in the stranger for not payment of the rent by the grant made at the first livery which yet continueth in his effect/ and this my thinketh is the diversity between the cases.  ¶ Doc. 
yet notwithstanding the reason that thou haste made me thinketh that if a man seized of lands maketh a gift thereof by a nude promise without any livery of season or recompense to him made: and grant that he shallbe seized to his use: that though that promise be void in the law: that yet nevertheless it must hold and stand good in conscience and by the law of reason/ for one rule of the law of reason is/ that we may do nothing against the truth/ and sith the truth is that the owner of the ground hath granted that he shall be seized to the use of the other: that grant must needs stand in effect or else there is no troth in the grantor.  ¶ Student. 
It is not against the truth of the grantor in this case though by that grant he be not seized to the use of the other/ but it proveth that he hath granted/ that the law will not warrant him to grant/ wherefore his grant is void. But if the grantor had gone further and said that he would also suffer the other to take the ꝓfites of the lands without let or other interruption/ or that he would make him estate in the land when he should be required/ than I think in those cases he were bound in conscience by that rule of the law of reason that thou hast remembered to perform them/ if he intended to be bounden by his promise/ for else he should go against his own truth and against his own promise. But yet it shall make no use in that case/ nor he to whom the promise is made shall have no action in the law upon that promise although it be not performed/ for it is called in the law a nude or a naked promise. And thus me thinketh that in the first case of the said two cases the grant is now avoided in the law by the re-enter of the feoffor/ feoffour/ and that the feoffor is not bounden by his grant neither in law nor conscience but that in the second case he is bound/ so that the use passeth from him as I have said before.  ¶ doctor. 
I hold me content with thy conceit for this time/ but I pray the show me somewhat more at large what is taken for a nude contract or a naked promise in the laws of England/ and where an action may lie there upon and where not.  ¶ Student. 
I will with good will say as me thinketh therein.   

¶ What is a nude contract or naked promise after the laws of England/ and whether any action may lie thereupon. The xxiiii Chapitre.  ¶ STudent. 
first it is to be understand that contracts be grounded upon a custom of the realm and by the law that is called (Ius gentium) and not directly by the law of reason/ for when all things were in common: it needed not to have contracts/ but after ꝓperty was brought in: they were right expedient to all people/ so that a man might have of his neighbour that he had not of his own/ and that could not be lawfully but by his gift/ by way of lending/ concord/ or by some lease/ bargain/ or sale/ and such bargains and sales be called contracts/ and be made by assent of the parties upon agreement between them of goods or lands for money or for for other recompense/ but of money usuell/ for money usuell is no contract. Also a concord is properly upon an agreement between the parties with divers articles therein/ some rising on the one part and some on the other/ as if johan at style letteth a chamber to Henry heart and it is ferther agreed between them that the said Henry heart shall go to board with the said johan at style/ and the said Henry heart to pay for the chamber and bording a certain sum. &c. this is properly called a concord/ but it is also a contract and a good action lieth upon it/ Howe beit it is not much argued in the laws of England what diversity is between a contract/ a concord/ a ꝓmyse/ a gift/ a love/ or a pledge/ a bargain/ a covenant/ or such other/ for the intent/ of the law is to have the effect of the matter argued and not the terms/ and a nude contract is where a man maketh a bargain or a sale of his goods or lands without any recompense appointed for it. As if I say to another I sell the all my land or all my goods and nothing is assigned that the other shall give or pay for it/ that is a nude contract/ and as I take it: it is void in the law and conscience/ and a nude or naked promise is where a man promiseth an other to give him certain money such a day or to build him an house/ or to do him such certain service/ and nothing is assigned for the money/ for the building/ nor for the service/ these be called naked promises/ because there is nothing assigned why they should be made/ and I think no action lieth in those cases though they be not performed. Also if I promise to another to keep him such certain goods safely to such a time/ and after I refuse to take them there lieth no action against me for it/ but if I take them and after they be lost or impaired through my negligent keeping/ there an action lieth.  ¶ Doctor. 
But what opinion hold they that be learned in the law of England in such promises that be called naked or nude promises/ whether do they hold that they that make the promise be bound in conscience to perform their promise though they can not be compelled thereto by the law or not.  ¶ Student. 
The books of the law of England treat little thereof/ for it is lief to the determination of doctoures/ and therefore I pray the show me somewhat now of thy mind therein/ and than I shall show the therein somewhat of the minds of diverse that be learned in the law of the realm.  ¶ doctor. 
To declare that matter plainly after the saying of doctoures: it would ask a long time and therefore I will touch it briefly to give the occasion to desire to here more therein here after. first thou shalt understand that there is a promise that is called an avow/ & that is a promise made to god/ and he that doth make such a vow upon a deliberate mind intending to perform it is bound in conscience to do it/ though it be only made in the heart without pronouncing of words/ and of other promises made to man upon a certain consideration/ if the promise be not against the law.  
As if A. promise to give B. xx. pound/ because he hath made him such a house or hath lente him such a thing or such other like/ I think him bound to keep his promise. But if his promise be so naked that there is no manner of consideration why it should be made/ than I think him not bound to perform it/ for it is to suppose that there was some error in the making of the promise/ but if such a promise be made to an university/ to a city/ to the church/ to the clergy/ or to poor men of such a place/ and to the honour of god or such other cause like/ as for maintenance of learning/ of the common wealth/ of the service of god/ or in relief of poverty or such other/ than I think that he is bounden in conscience to perform it though there be no consideration of worldly profit that the grantor hath had or intendeth to have for it/ and in all such promises it must be understand that he that made the promise intended to be bound by his promise/ for else commonly after all doctoures he is not bound/ whiles he were bound to it before his promise. As if a man promise to give his father a gown that hath need of it to keep him fro cold/ and yet thinketh not to give it him/ nevertheless he is bound to give it for he was bound thereto before.  
Also after some doctors a man may be excused of such a promise in conscience by a casualite that cometh after the promise if it be so that if he had known of that casualite at the making of the promise he would not have made it. And also such promises if they shall bind they must be honest/ lawful/ and possible/ and else they are not to be holden in conscience though there be a cause. etc. And if the promise be good and with a cause though no worldly profit shall grow thereby to him that maketh the promise but only a spiritual profit as in the case before rehearsed of a promise made to an university/ to a city/ to the church/ or such other and with a cause/ as to the honour of god other/ there it is most commonly holden that an action upon those promises lieth in the law canon.  ¶ Stu. 
Whether dost thou mean in such promises made to a university/ to a city/ or to such other as thou haste rehearsed before/ & with a cause/ as to the honour of god or such other. That the party shallbe bound by his promise if he intended not to be bound thereby ye or nay.  ¶ Doctor. 
I think nay no more than upon promises made unto common persons.  ¶ Student. 
And than me thinketh clearly that no action can lie against him upon such promises/ for it is secret in his own conscience whether he intended for to be bound or nay. And of the intent inward in the heart: man's law can not judge/ and that is one of the causes why the law of god is necessary (that is to say) to judge inward things/ and if an action should lie in that case in the law Canon/ than should the law Canon judge upon the inward intent of the heart/ which can not be as me seemeth.  
And therefore after diverse that be learned in the laws of the realm: all promises shall be taken in this manner. That is to say: If he to whom the promise is made: have a charge by reason of the promise which hath also performed: than in that case he shall have an action for that thing that was promised though he that made the promise have no worldly profit by it. As if a man say to another/ he'll such a poor man of his disease/ or make such an high way/ and I shall give the thus moche/ and if he do it I think an action lieth at the common law. And more over though the thing that he shall do be all spiritual: yet if he perform it I think an action lieth at the common law. As if a man say to another/ fast for me all the next Lent and I shall give the twenty pound/ & he perfourmethe it/ I think an action lieth at the common law. And in like wise if a man say to another marry my daughter and I will give the twenty pound. Upon this promise an action lieth if he marry his daughter/ and in this case he can not discharge the promise though he thought not to be bound thereby/ for it is a good contract/ and he may have Quid pro quo/ that is to say/ the preferment of his daughter for his money. But in those promises made to an university or such other as thou hast remembered before/ with such causes as thou hast showed/ that is to say/ to the honour of god/ or to the increase of learning/ or such other like/ where the party to whom the promise was made is bound to no new charge by reason of the promise made to him but as he was bound to before/ there they think that no action lieth against him though he perform not his promise/ for it is no contract/ and so his own conscience must be his judge whether he intended to be bound by his promise or not. And if he intended it not: than he offended for his dissimulation only/ but if he intended to be bound: than if he perform it not: untruth is in him/ and he proveth himself to be a liar which is ꝓhibited as well by the law of god as by the law of reason/ and furthermore many of that be learned in the law of England hold that a man is as much bounden in conscience by a promise made to a common person if he intended to be bound by his promise as he is in the other cases that thou haste remembered of a promise made to the church/ or to the clergy/ or such other/ for they say that as much untruth is in the breaking of the one as of the other/ & they say that the untruth is more to be pondered than the person to whom the promises be made.  ¶ doctor. 
But what hold they if the promise be made for a thing passed/ as I promise the xl pound for that thou hast builded me such a house/ lieth an action there.  ¶ Student. 
They suppose nay/ but he shallbe bound in conscience to perform it after his intent as is before said.  ¶ Doctor. 
And if a man promise to give another xl pound in recompense for such a trespass that he hath done him/ lieth an action there.  ¶ Student. 
I suppose nay/ and the cause is for that such promise be no perfit contracts/ for a contract is properly where a man for his money shall have by assent of the other party certain goods or some other profit at the time of the contract or after/ but if the thing be promised for a cause that is passed by way of a recompense then it is rather an accord then a contract/ but then the law is that upon such accord the thing that is promised in recompense must be paid or delivered in hand/ for upon an accord there lieth no action.  ¶ Doct. 
But in the case of trespass whether hold they that he be bound by his promise though he intended not to be bound thereby.  ¶ Student. 
They think nay no more than in the other cases that be put before.  ¶ Doct. 
In the other cases he was not bound to that he promised but only by his promise/ but in this case of trespass he was bound in conscience before the promise to make recompense for the trespass and therefore it seemeth that he is bound in conscience to keep his promise though he intended not to be bound thereby.  ¶ Stu. 
Though he were bound before the promise to make recompense for his trespass yet he was not bounden to no sum in certain but by his promise/ and because that the sum may be to moche or to little and not equal to the trespass/ and that the party to whom the trespass was done notwithstanding the promise is at liberty to take his action of trespass if he will therefore they hold that he may be his own judge in conscience whether he intended to be bound by his promise or not as he may in other cases/ but if it were of a debt/ than they hold that he is bounden to perform his promise in conscience.  ¶ Docctoure 
What if in the case of trespass he affirm his promise with an oath.  ¶ Student 
Then they hold that he is bound to perform it for saving of his outhe though he intended not to be bound but if he intended to be bound by his promise/ then they say that an oath needeth not but to enforce the promise for they say he breaketh the law of reason which is that we may do nothing against the truth/ as well when he breaketh his promise that he thought in his own heart to be bound by as he doth when he breaketh his oath though the offence be not so great by reason of the perjury more over to that thou saist that upon such promises as thou hast rehearsed before shall lie an action after the law canon verily as to that in this realm there can no action lie thereon in the spiritual court if the promise be of a temporal thing for a ꝓhybition or a praemunire facias should lie in that case.  ¶ Doctor. 
That is marvel sith there can no action lie thereon in the kings court as thou sayest thyself.  ¶ Student. 
That maketh no matter/ for though there lie no action in the kings court against executors upon a simple contract/ yet if they be sued in that case for the debt in the spiritual court a prohybition lieth. And in like wise if a man wage his law untruly in an action of debt upon a contract in the kings court/ yet he shall not be sued for that perjury in the spiritual court/ and yet no remedy lieth for that perjury in the kings court/ for the prohybition lieth not only where a man is sued in the spiritual court of such things as the party may have his remedy in the kings court but also where the spiritual court holdeth plea in such case where they by the kings prerogative and by the ancient custom of the realm ought none to hold.  ¶ Doctor. 
I will take advisement upon that thou haste said in this matter till another time & I pray the now proceed to another question.   

¶ The twenty question of the student. The xxv chapiter.  ¶ Student. 
A man hath two sons/ one borne before espousals and the other after espousals and the father by his will bequetheth to his son and heir all his goods which of these two sons shall have the goods in conscience.  ¶ doctor. 
As I said in our first dialogue in latin the last chapiter/ the doubt of this case dependeth not in the knowing what conscience will in the case/ but rather in knowing which of the sons shall be judged heir (that is to say) whether he shallbe taken for heir that is heir by the spiritual law or he that is heir by the law of the realm/ or else that it shall be judged for him that the father took for heir.  ¶ Student. 
As to that point admit the father's mind not to be known or else that his mind was that he should be taken for heir that should be judged for heir by that law that in this case it ought to be judged by. And than I pray the show me thy mind therein/ for though the question be not directly depending upon that point to see what consicence will in this case/ yet it is right expedient for the well ordering of conscience that it be known after what law it shallbe judged for if it ought to be judged after the temporal law who should be heir: than it were against conscience if the judges in the spiritual law should judge him for heir that is heir by the spiritual law/ & I think they should be bound to restitution thereby/ & therefore I pray the show me thine opinion after what law it shall be judged.  ¶ Doctor. 
Me thinketh that in this case it shallbe judged after the law of the church/ for it apperth that the bequest is of goods/ and therefore if any suit shallbe taken upon the execution of the will for that bequest it must be taken in the spiritual court & when it is depending in the spiritual court me thinketh it must be judged after the spiritual law for of the temporal law they have no knowledge/ nor they are not bound to know it as me thinketh & more stronger not to judge after it. But if the bequest had been of a chattel real as of a lease for term of years or of a ward or such other than the matter should have come in debate in the kings court/ and then I think the judges there should judge after the law of the realm and that is that the younger brother is heir/ and so me thinketh the diversity of the courts shall make the diversity of the judgement.  ¶ Student 
Of that might follow a great inconvenience as me seemeth/ for it might be that in such case both chatels realle & chatels personel were in the will/ & than after thine opinion the one son should have the chatels personel: & the othersone the chatels real & it can not be conveniently taken as me thinketh but that the father's will was that the one son should have all & not to be divided. Therefore me thinketh that he shall be judged for heir that is heir by the common law. And that the judges spiritual in this case be bound to take notice what the common law is for sith the things that be in variance be temporal that is to say/ the goods of the father/ it is reason that the right of them in this realm shall be determined by the law of the realm.  ¶ doctor. 
How may that be for the judges spiritual know not the law of the realm ne they can not know it as to the most part of it for moche part of the law is in such speech that few men have knowledge of it & there is no means ne famylyarytye of study between them that learn the said laws/ for they be learned in several places & after divers ways & after divers manners of teachings & in divers speeches & commonly the one of them have none of the books of the other/ and to bind the spiritual judges to give judgement after that law that they know not/ ne that they can not come to the knowledge of/ it seemeth not reasonable.  ¶ Student. 
They must do therein as the kings judges must do when any matter cometh before them that ought to be judged after the spiritual law/ whereof I put divers cases in our first dialogue in english the vii chapiter/ that is to say/ they must either take/ knowledge of it by their own study/ orels they must inquire of them that be learned in the law of the church what the law is & in likewise must they do. But it is to doubt that some of them would be loath to ask any such question in such case/ or to confess that they are bound to give their judgement after the temporal law & surely they may lightly offend their conscience.  ¶ doctor. 
I suppose that some be of opinion that they are not bound to know the law of the realm and verily to my remembrance I have not herd that judges of the spiritual law are bound to know the law of the realm  ¶ Student. 
And I suppose that they are not only bounden to know the law of the realm or to do that in them is to know it when the knowledge of it openeth the right of the matter that dependeth before them but that they be also bound to know where and in what case they ought to judge after it/ for in such cases they must take the kings law as the law spiritual to that point and are bounden in conscience to follow it as it may appear by divers cases whereof one is this. Two jointtenauntes be of goods & the one of them by his last will bequeteth all his part to a stranger and maketh the other jointtenaunt his executor and dieth/ if he to whom the bequest is made sue the other jointtenaunt/ upon the legacy as executor etc. upon this matter showed/ the judges of the spiritual law are bounden/ to judge the will to be void/ by cause it is void by the law of the realm whereby the jointtenaunt hath right to the hole goods by the title of the survivor & is judged to have the goods as by the first gift which is before the title of the will & must therefore have preferrment as the elder title & if the judges of the spiritual court iuge other wise: they are bound to restitution & by like reason the executors of a man that is outlawed the time of his death may discharge themself in the spiritual court of the performing of legacies/ because they be chargeable to the king and yet there is no such law of outlagary in the spiritual law.  ¶ doctor. 
By occasion of that thou haste said before I would ask of the this question. If a parson of a church alien a portion of dimes according as the spiritual law hath ordained/ is not that alienation sufficient though it have not the solempnities of the temporal law.  ¶ Student. 
I am in doubt therein if the portion be under the fourth part of the value of the church but if it be to the value of the four part of the church or above/ it is not sufficient and therefore was the writ of right of dimes ordained/ & if in a writ of right of dimes it be judged in the kings court for the patron of the successor of him that alieneth because the alienation was not made according to the common law/ than the judges of the spiritual law are bounden to give their judgement according to the judgement given in the kings court. And in like wise if a parson of a church agre to take a pension for the tithe of a mill/ if the pension be to the fourth part of the value of the church or above/ than it must be aliened after the solempnytyes of the kings laws as lands & tenements must/ or else the patron of the successor of him that alyened may bring a wryt of right of dimes & recover in the kings court/ & than the judges of the spiritual court are bounden to give judgement in the spiritual court accordingly as is aforesaid  ¶ Doccour. 
I have herd say that a writ of right of dimes is given by the statute of westminster. the second & that speaketh only of dimes and not of pension.  ¶ Student. 
where a parson of a church is wrongfully deforced of his dimes and is let by an Indicavit to ask his dimes in the spiritual court than his patron may have a writ of right of dysme & by the statute that thou speakest of/ for there lay none at the common law for the person had there good right though he were let by the indicavit to sue for his right But when the person had no remedy at the spiritual law there a writ of right of dimes lay for the patron by the common law as well of pensions as of dimes/ & some say that in such case it lay of less than of the fourth part by the common law but that I pass over. And the reason why it lay at the common law if the dime or pensions were above the fourth part. etc. was this by the spiritual law the alienation of the person with assent of the bishop and of the chapiter shall bar the successor without assent of the patron/ and so the patron might lose his patronage & he not assenting thereto for his encumbent might have no remedy but in the spiritual court and there he was barred wherefore the patron in that case shall have his remedy by the common law where the assent of the ordinary and chapiter without the patron shall not serve as is said before. But where the encumbent had good right by the spiritual law there lay no remedy for the patron by the common law though the encumbent were let by an indicavit/ & for that cause was the said statute made and it lieth as well by the equity for offeringꝭ and pensions as for dimes Than farther I would think that where the spiritual court may hold plea of a temporal thing that they must judge after the temporal law/ & that ignorance shall not excuse them in that case for by taking of their office they have bound themself to have knowledge of as much as belongeth to there office as all judges be spiritual & temporal. But if it were in argument in this case whether the eldest son might be a pressed by cause he is a bastard in the temporal law that should be judged after the spiritual law for the matter is spiritual.  ¶ Doct. 
yet notwithstanding all the reasons that thou haste made I can not see how the judges of the spiritual law shall be compelled to take notice of the temporal law saying that the most part of it is in the french tongue for it were hard that every spiritual judge should be compelled to learn that tongue: But if the law of the realm were set in such order that they that intend to study the law canon might first have a sight of the law of the realm as they have now of the law civil & that some bokis & treatises were made of cases of conscience concerning those two laws as there be now concerning the law civil and the law canon I would assent that it were right expedient & than reason might serve the better that they should be compelled to take notice of the law of the realm as they be now bounden in such countries as the law civil is used to take notice of that law.  ¶ Student 
Me thinketh thine opinion is right good and reasonable but till such an order be taken they are bound as I suppose to inquire of them that be learned in the common law what the law is/ and so to give their judgement according/ if they will keep themself fro offence of conscience/ and for as much as thou haste well satisfied my mind in all these questions before. I pray the now that I may somewhat feel thy mind in divers articles that be written in divers books for the ordering of conscience upon the law canon and civil/ for me thinketh that there be divers conclusions put in divers books/ as in the sums called Summa angelica/ and Summa rosella/ and divers other for the good order of conscience that be against the law of this realm & rather blind conscience than to give any light unto it.  ¶ Docto. 
I pray the show me some of those cases  ¶ Student. 
I will with good will.   

❧ Whether an abbot may with conscience present to an advowson of a church that belongeth to the house without assent of the covent. The xxvi chapiter.  Doctor. 
It appeareth in the chapiter Eanoscitur de hus que fiunt a prelate's/ the which chapiter is recited in the sum called Summa angelica in the title abbess the xxvii article that he may not without any costume or any special privilege do help there iii.  Student. 
Truth it is that there is such a decretal/ but they that be learned in the law of England hold that decretal bindeth not in this realm/ and this is the cause why they do hold that opinion. By the law of the realm the hole disposition of the lands and goods of the abbey is the abbot only for the time that he is abbot & not in the covent/ for they be but as deed persons in the law & therefore the abbot shall sue & be sued only without the covent do homage fealty atturne make leases & present to advowsons only in his own name/ & they say farther that this authority can not be taken fro him but by the law of the realm/ and so they say that the makers of that decretal exceeded their power wherefore they say it is not to be holden in conscience/ no more than if a decree were made that a lease for term of years or at will made by the abbot without the covente should be immediately void/ & so they think that the abbot may in this case present in his own name without offence of conscience by cause the said decretal holdeth not in this realm.  ¶ doctor. 
But many be of opinion that no man hath authority to present in right and conscience to any benefice with cure but the pope or he that hath his authority therein derived fro the Pope for they say that for as much as the Pope is the vicar general under god & hath the charge of the souls of all people that be in the floke of Christ's church it is reason that sith he cannot minister to all ne do that is necessary to all the people for their soul health in his own person that he shall assign deputies for his discharge in that behalf/ & because patrons claim to present to churches in this realm by their own right without title derivied fro the Pope they say that they usurp upon the pope's authority/ & therefore they conclude that though the abbot have title by the law of the realm to present in this case in his own name that yet because that title is against the pope's prerogative that that title ne yet the law of the realm that mayntenyth that title holdeth not in conscience. And they say also that it belongeth to the law canon to determine the right of pnsentment of benefices for it is a thing spiritual and belongeth to the spiritual jurisdiction as the depryvation fro a benefice doth & so they say the said decretal bindeth in conscience though in the law of the realm it bind not.  ¶ Student. 
As to thy first consideration. I would right well agree that if the patrons of churches in this realm claimed to put encumbentes in to such churches as should fall void of their patronage without pnsenting them to the bishop or if they claimed that the bhysshop should admit such encumbent as they should present without any examination to be made of his ability in that behalf/ that that claim were against reason and conscience for the cause that thou hast rehearsed but for as much as the patrons in this realm claim no more but to present their encumbentes to the bishop & then the bishop to examine the ability of the encumbent/ & if he find him by the examination not able to have cure of soul/ he them to refuse him & the patron to present another that shallbe able/ & if he be able than the bishop to admit him institute him & induct him. I think that this claim & their pnsentementes thereupon stand with good reason and conscience/ and as to the second consideration it is holden in the laws of the realm that the right of presentment to a church is a temporal inheritance & shall descend by course of inheritance fro heir to heir as lands & tenements shall & shall be taken as an asses as lands & tenements be & for the trial of the right of patronages be ordained in the law divers actions for them that be wronged in that behalf as writs of right of advowson Assizes of ●aren presentment Quare impedit & divers other/ which alway without/ time of mind have been pleaded in the kings courts as things preteyning to his crown & royal dignity/ and therefore they say that in this case his laws ought to be obeyed in law and conscience.  ¶ doctor. 
If it come in variance whether he that is so pnsented be able or not able be whom shall the ability be tried.  ¶ Student. 
if the ordinary be not party to the action it shall be tried be the ordinary/ and if he be party it shall be tried be the metropolitan.  ¶ doctor. 
Than the law is more reasonable in that point than I thought it had been but in the other point I will take advisement in it till another time/ and I pray the show me thy mind in this point if an abbot name his covent with him in his presentation doth that make the presentation void in the law or is the presentation good that not withstanding.  ¶ Student. 
I think it is not void therefore but the naming of them is void & a thing more than needeth/ for if the abbot be disturbed he must bring his action in his own name without the covent.  ¶ doctor. 
Then I perceive well that it is not prohibit in the law of England but that the abbot may name the covent in his presentation with him/ and also take their assent whom he shall presenet if he will/ and than I hold it the surest way that he so do/ for in so doing he shall not offend neither in law nor conscience.  ¶ Student. 
To take the assent of the covent whom he shall present and to name them also in the presentation/ knowing that he may do otherwise both in law and conscience if he will/ is no offence. But if he take their assent or name them with him in the presentation thinking that he is so bound to do in law and conscience/ setting a conscience where none is/ and regareth not the law of the realm that will dyscharg his conscience in this behalf if he will so that he present an able man as he may do without their assent/ there is an error and offence of conscynce in the abbot. And in like wise if the abbot present in his own name/ and therefore the covent saith that he offendeth conscience in that he observeth not the law of the church for that he taketh not their assent/ than they offend in iuginge him to offend/ that offendeth not And therefore the sure way is in this case to judge both the said laws of such effect as they be/ and not to set an offence of conscience by breaking of the said decree which standeth not in effect in this behalf within this realm.   

¶ If a man find beasts in his ground doing hurt/ whether may he by his own authority take them and keep them till he be satisfied for the hurt. The xxvii Chapitre.  doctor. 
This question is made in the Sum called summa rosella in the title of restitution/ that is to say restitucio xiii the ix article/ and there it is answered that he may not take them for to hold them as aplegd till he be satisfied for the hurt: but that he may take them & keep them till he know who oweth them that he may thereby learn against whom to have his remedy. Is not the law of the realm so in like wise.  ¶ Student. 
No verily/ for by the law of the realm: he that in that case hath the hurt may take the beasts as a distress and put them in a pound overt so it be within the same shire/ & there let them remain till the owner will make him amends for the hurt.  ¶ Doctor. 
what callest thou apound overt.  ¶ Student. 
A pound overt is not only such pounds as be commonly made in towns and lordships for to put in beasts that be dystreyned/ but it is also every place where they may be in lawfully not making the own our an offender for their being there & that it be there also that the owner may lawfully give the beasts meat & drink while they be in pound.  ¶ Doctor. 
And if they die in pound for lake of meet whose ieopereye is it.  ¶ Student 
If it be such a pound overt as I speak of it is at the peril of him that owe the beasts so that he that had the hurt shall be a liberty to take his action for the trespass if he will & if it be not a lawful pound them it is at the peril of him that distrained/ and so it is if he drive them out of the shire And they die there.  ¶ doctor. 
I put case that he that owe the beasts offer sufficient amends & the other will not take it but keepeth the beasts still in pound/ may not the over take them out.  ¶ Student. 
No for he may not be his own judge. And if he do an action lieth against him for breaking of the pound/ but he must sue a replevin to have his beasts delivered him out of pound/ and thereupon it shall be tried by xii men whether the amendis that was offered were sufficient or not/ & if it be found that the offer was not sufficient: than he that hath the hurt shall have such amends as the xii men shall asses.  ¶ doctor 
If it be found by the xii men that the amends were suffycent/ shall he that refused to take it have no punishment for his refusal & for keeping of the beasts in pound after that tyme.  ¶ Student. 
I think no/ but that he shall yield damages in the replevin because the issue is tried against him.  ¶ doctor. 
I put case that the beasts after that refusal die in pound for lack of meat at whose jeopardy is it than.  ¶ Student. 
At the jeopardy of him that owid the beasts as it was before for he is bound at his peril by reason of that wrong that was done at the beginning to see that they have meat as long as they shallbe in pound: whiles the kings writ come to deliver them & he resisteth it/ for after that time it will be at his jeopardy if they die for lack of meat & the damages shallbe recovered in an action brought upon the statute for disobeing the kings writ.   

☞ Whether a gift made by one under the age of xxv year be good. The xxviii Chapitre.  doctor. 
It appeareth in Summa angelica in the title donacio prima the vii article that a man before the age of xxv year may not give without it be with the authority of his tutor. Is it not so likewise at the common law.  ¶ Student. 
The age of Infants to give or sell their lands & goods in the law of England at his xxi year/ or above/ so that after that age the gift is good/ and before that age it is not good/ by whose assent so ever it be/ except it be for his meat & drink or apparel/ or that he do it as executor in performance of the will of his testator or in some other like cases that needeth not to be rehearsed here/ and that age must be observed in this realm in law & conscience & not the said age of xxv year.  ¶ doctor. 
I put case it were ordained by a decree of the church that if any man by his will bequeatheth goods to an other/ & willeth that they shallbe delivered to him at his full age & that in that case xxv year shall be taken for the full age shall not that decree be observed & stand good after the law of England.  ¶ Student. 
I suppose it shall not for though it belong to the church to have the ꝓbate & the execucions of testamentꝭ made of goods & chatels except it be in certain lordshypes & seygnories that have them by prescription/ yet the church may not as it seemeth determine what shallbe the lawful age for any person to have the goods for that belongeth to the king & his laws to determine/ & therefore if it were ordained by a statute of the realm that he should not in such case have the goods till he were of the age of xxv year that statute were good & to be observed as well in the spiritual law as in the law of the realm & if a statute were good in that case/ than a decree made thereof is not to be observed/ for the ordering of the age may not be under two several powers/ & one property of every good law of man is that the maker exceed not his authority/ and I think that the spiritual judges in that case ought to judge the full age after the law of the realm saying that the matter of the age concerneth temporal goods/ & I suppose ferther that as the king by authority of his parliament may ordain that all wills shallbe void & that the goods of every man shallbe disposed in such manner as by statute should be assigned: that more stronger he may appoint at what age such wills as be made shallbe performed.  ¶ doctor. 
thinkest thou than that the king may take away the power of the ordinary that he shall not call executors to account.  ¶ Student. 
I am somewhat in doubt therein/ but it seemeth that if it might be enacted by statute that all wills should be void as is aforesaid: that than it might be enacted that no man should have authority to call none to account upon such wills but such as the statute shall therein appoint/ for he that may do the more may do the less/ not withstanding I will nothing speak determinately in that point at this time/ ne I mean not that it were good for to make a statute that all wills should be void/ for I think them right expedient/ but mine intent is to prove that the common law may ordain the time of the full age/ as well in wills of temporal things as otherwise/ & also that no will shallbe made. And if it may so do: than moche stronger it belongeth to the kings laws to interpretate wills concerning temporal things as well when they come in argument before his judges: as when they come in argument before spiritual judges & that they ought not to be judged by several laws (that is to say) by the spiritual judges in one manner: & by the kings judges in another manner.   

☞ If a man be convict of heresy before the ordinari/ whether his goods be forfayth. The xxix Chapitre.  doctor. 
It appeareth in Summa angelica in the title Donatio prima the xiii article/ that he that is an heretic may not make executors/ for in the law his goods be forfeit/ what is the law of the realm therein.  ¶ Student. 
If a man be convict of heresy and abjure he hath forfeit no goods/ but if he be convict of heresy & be delivered to lay men's hands than hath he forfeit all his goods that he hath at the time that he is delivered to them/ though he be not put in execution for the heresy/ but his lands he shall not forfeit except he be deed for the heresy/ & than he shall forfeit them to the lords of the fee/ as in case of felony except they be holden of the ordinary/ for than the king shall have the forfeiture/ as it appeareth by a statute made the second year of king Henry the .v. the vii Chapitre.  ¶ Doctor. 
Me thynket that as it belongeth only to the church to determine heresies/ that so it belongeth to the church to determine what punishment he shall have for his heresy/ except death which they may not be judges in/ but if the church decree that he shall therefore forfeit his goods me thinketh that they be forfeit by that decree.  ¶ Student. 
Nay verily for they be temporal & belong to the judgement of the kings court & I think the ordinary might have set no fine upon none impeached of heresy till it was ordained by the statute of Henry the four that he may set a fine in that case if he see cause/ and than the king shall have that fine as in the said statute appeareth.   

☞ Where divers patrons be of an auous● & the church voideth/ the patrons vary in their presentments/ whether the bishop shall have liberty to present which of the encumbentes that he will or not ⸫ The xxx Chapitre.  doctor. 
This question is asked in Summa rosella in the title Patronus the ix. article & there it appeareth by the better opinion that he may present whether clerk he will/ how be it the maker of the said sum/ saith that by the/ rigour of the law the bishop in such case may present a stranger because the patrons agree not/ & in the same chapiter patronus the xu article. It is said that he must be preferred that hath the most merits and hath the most part of the patrons. And if the number be equal/ that than it is to consider the merits of the patrons & if they be of like merit/ than may the bishop command them to agree & to present again. And if they can not yet agree than the liberty to present is given to the bishop to take which he will/ & if he may not yet present without great trouble than shall the bishop order the church in the best manner he can/ & if he can not order it/ than shall he suspend the church & take away the relics/ to the rebuke of the patrons/ & if they will not be so ordered than must he ask help of the temporality/ & in the xu article of the said title Patronus/ It is asked whether it be expedient in such case that the more part of the patrons agree having respect to all the patrons/ or that it suffice to have the more part in comparison of the less part as thus. There be four patrons two present one clerk: the third presenteth another: & the fourth another/ he that is presented by ii hath not the more part in comparison of all patrons for they be equal/ but he hath the more part having respect to the other presentments/ to this question it is answered that other the presentment is made of them that be of colage & there is requisite the more part having respect to all the colage/ or else every man presenteth for himself as commonly do lay men that have the patronage of their patrimony/ & than it sufficeth to have the more part in respect of the other parts/ doth not the law of England agree to these diversities.  ¶ Student. 
No verily  ¶ Doctor. 
What order than shallbe taken in the law of England if the patrons vary in their presentments.  ¶ Student. 
After the laws of England this order shallbe taken/ if they be jointenants or tenants in common of the patronage/ & they vary in presentment the ordinary is not bounden to admit none of their clerks neither the more part nor the less/ & if the vi. months pass or they agree them he may present by the laps. But he may not present within the vi months/ for if he do they may agree & bring a Quare impedit against him/ & remove his clerk/ & so the ordinary shallbe as distourboure. And if the patrons have the patronage by discent as coperceners than is the ordinary bound to admit the clerk of the eldest sister for the eldest shall have the preferment in the law if she will/ & than at the next avoidance the next sister shall present & so by turn one sister after another till all the sisters or their heirs have presented/ and than the eldest sister shall begin again/ & this is called a presenting by turn/ & it holdeth always between coperceners of an advowson/ except they agree to present together/ or that they agree by composition to present in some other manner/ & if they do so that agreement must stand/ but this must be always except that if at the first avoidance that shallbe after the death of the common ancestor the king have the ward of the longest daughter/ that than the king by his prerogative shall have the presentment. And at the next avoidance the eldest sister & so by turn. But it is to understand that if after the death of the common ancestor the church voideth & the eldest sister presented together with another of the sisters/ & the other sisters every one in their own name or together that in that case the ordinary is not bounden to receive none of their clerks but may suffer the church to run in to the lapas as it is said before for he shall not be bound to receive the clerk of the eldest sister but where she presenteth in her own name. And in this case where the patrons vary in presentment the church is not properly said letigiouse so that the ordinary should be bound at his peril to direct a writ to inquire (de jure patronatus) for that writ lieth where two present by several titles/ but these patrons present all in one title/ & therefore the ordinary may suffer it to pass if he will in to the laps/ & this manner of presentments must be observed in this realm in law & conscience.   

☞ How long time the patron shall have to present to a benefice. The xxxi Chapitre.  doctor. 
this question is asked in Summa angelica in the title Ius patrona●us the xvi article/ & there it is answered that if the patron be a lay man that he shall have four months/ & if he be a clerk he shall have vi months.  ¶ Student. 
And by the common law he shall have vi months whether he be a lay man or a clerk/ & I see no reason why a clerk should have more respite than a lay man: but rather the contrary.  ¶ Doctor. 
from what time shall the vi months be accounted.  ¶ Student. 
That is in divers manners after the manner of the voidance/ for if the church void by death/ creation/ or session: the vi months shallbe counted fro the death of the encumbent/ or fro the creation/ or session/ whereof the patron shallbe compelled to take notice at his peril/ & if the voidance be by resignation or deprivation: than the vi months shall begin when the patron hath knowledge given him by the bishop of the resignation or deprivation.  ¶ doctor. 
what if he have knowledge of the resignation or deprivation & not by the bishop but by some other/ shall not the six months begin: than fro the time of that knowledge.  ¶ Student. 
I suppose that it shall not begin till he have knowledge given him by the bishop.  ¶ doctor. 
An union is also a cause of voydaunce how shall the vi months be reckoned there.  ¶ Student. 
There can no Union be made but the patrons must have knowledge/ & it must be appointed who shall present after that union/ that is to say/ one of them or both/ either jointly or by tunre one after another as the agreement is upon the union/ & sith the patron is privy to the avoidance & is not ignorant of it: the vi months shallbe accounted fro the agreement.  ¶ Doctor. 
I see well by the reason that thou haste made in this chapiter that ignorance sometime excuseth in the law of England/ for in some of the said avoydaunces it shall excuse the patrons as it appeareth by thy reasons above/ & in some it shall not/ wherefore I pray the show me somewhat where ignorance excuseth in the law of England & where not after thine opinion.  ¶ Student. 
I will with good will here after do as thou saist if thou put me in remembrance thereof. But I would yet move the somewhat ferther in such questions as I have moved the before/ concerning the diversities between the laws of England & other laws/ for there be many more cases thereof that as me seemeth have right great need for the good order of conscience of many persons to be reform & to be brought in to one opinion both among spiritual & temporal/ as it is in the case where doctors hold opinion that the statutes of lay-men that restrain liberty to give lands to the church should be void/ & they say ferther that if it were prohibit by a statute that no gift should be made to foreigns/ that yet a gift made to the church should be good/ for they say that the inferior may not take away the authority of the superior & this saying is directly against the statutes whereby it is prohibit that lands should not be given in to mortmayne/ & they say also that byquestes & gifts to the church must be determined after the law canon & not after the laws & statutes of lay men/ & so they regard moche to whom the gift is made whether to the church or to make causes/ or to common persons/ & bear more favour in gifts to the church than to other/ & the law of the realm beholdeth the thing that is given & pretendeth that if the thing that is given be of lands or goods that the determination thereof of right belongeth in this realm to the kings laws whether it be to spiritual man or temporal/ to the church or to other/ & so is great division in this behalf when one preferreth his opinion & another his/ & one this jurisdiction/ & another that & that as it is to fere more of singularity than of charity wherefore it seemeth that they that have the greatest charge over the people/ specially to the health of their soul's/ are most bound in conscience before other to look to this matter & to do that in them is in all charity to have it reform/ not beholding the temporal jurisdiction nor spiritual jurisdiction but the common wealth & quietness of the people/ and that undoubtedly would shortly follow if this division were put away/ which I suppose verily will not be but that all men within the realm both spiritual & temporal be ordered & ruled by one law as to temporal things not wihstanding for as much as the purpose of this writing is not to treat of this matter therefore I will no ferther speak thereof at this tyme.  ¶ doctor. 
Than I pray the proceed to another question as thou sayest thy mind is to do.  ¶ Student. 
I will with good will.   

☞ If a man be excommenged/ whether he may in any case be assoiled without making satisfaction. The xxxii Chapitre.  STudent. 
In the sum called Summa rosella in the title absolucio quarta the second article: it is said that he that is excommunicate for a wrong if he be able to make satisfaction ought not to be assoiled but he do satisfy/ & that they offend that do assoil him/ but yet nevertheless he is assoiled/ and if he be not able to make amends that he must yet be assoiled/ taking a sufficient gage to satisfy if he be able here after/ or else that he make an oath to satisfy if he be able.  
And these sayings in many things hold not in the laws of England.  ¶ doctor. 
I pray the show me wherein the law of the realm varieth therefro.  ¶ Student 
If a man be excommunicate in the spiritual court for det/ trespass/ or such other things as belong to the kings crown & to his royal dignity there he ought to be assoiled without making any satisfaction/ for the spiritual court exceeded their power in that they held plea in those cases & the party if he will may thereupon have a Praemunire facias as well against the party that sued him as against the judge & therefore in this case they ought in conscience to make absolution without any satisfaction/ for they not only offended the party in calling him to answer before them of such things as belong to the law of the realm: but also the king/ for he by reason of such suits may lose great advantages by the reason of the writs originals/ judicials/ fines/ amerciaments/ & such other things as might grow to him if such suits had been taken in his courts according to his laws/ & according to his saying: it apperet in divers statutes that if a man lay violent hands upon a clerk & beat him/ that for the beating amends shallbe made in the kings court/ & for the laying of violent hands upon the clerk amends shallbe made in the court cristien. And therefore if the judge in the court cristien would award the party to yield damages for the beating: he did against the statute/ but admit that a man be excommenged for a thing that the spiritual court may award the party to make satisfaction of/ as for the not inclosinge of the church yard/ or for not apparellinge of the church conveniently. Than I think the party must make restitution or lay a sufficient causion if he be able or he be assoiled/ but if the party offer sufficient amends & have his absolution/ & the judge will not make him his letters of absolution if the excommengement be of record in the kings court than the king may writ unto the spiritual judge commanding him that he make the party his letters of absolution upon pain of a contempt/ & if the said excommunication be not of record in the kings court than the party may in such case have his action against the judge spiritual for that he would not make him his letters of absolution but if he be not assoiled or if he be not able to make satisfaction & therefore the judge spiritual will not assoil him/ what the kings laws may do in tha case I am somewhat in doubt/ and will not moche speak of it at this time/ but as I suppose he may as well have his action in that case for the not assoyling him as where he is assoiled & that the judge will not make him his letters of absolution/ & I suppose the same law to be where a man is accursed for a thing that he judge had no power to accurse him in/ as for debt/ trespass/ or such other.  ¶ Doctor. 
There he may have other remedies as a praemunire facias or such other/ & therefore I suppose the other action lieth not for him.  ¶ Student. 
The judge & the party may be dead/ & than no praemunire lieth/ & though they were alive & were condemned in a Praemunire/ yet that should not avoid the e●cōmengement/ & therefore I think the action lieth specially if he be thereby delayed of actions that he might have in the kings court if the said excommengement had not been.   

☞ Whether a Prelate may refuse a legaci. The xxxiii Chapitre.  Student. 
It is moved in the said sum named Rosella in the title alienacio. xx. the xi article whether a prelate may refuse a legaci/ where in divers opinions be recited there/ which as me thinketh have need after the laws of the realm to be more plainly declared.  ¶ doctor. 
I pray the show me what the law of the realm will therein.  ¶ Student. 
I think that every prelate & suffereyn that may only sue & be sued in his own name as Abbates▪ priors: & such other may refuse any legaci that is made to the house: for the legacy is not perfit till he to whom it is made assent to take it: for else if he might not refuse it he might be compelled to have lands whereby he might in some case have great loss but than if he intend to refuse he must as soon as his title by the legacy falleth relinquisshe to take the profits of the thing bequeatheth/ for if he ones take the profits thereof he shall not after refuse the legaci: but yet his successor may if he will refuse the taking of the profits to save the house fro yielding of damages or fro arrearages of rents if any such be: & like law is of a remainder as is in legaci: for though in the case of a remainder & also of a devise as most men say the freehold is cast upon him by the law when the remainder or devise falleth: yet it is in his liberty to refuse the taking of the profits & to refuse the remainder or devise if he will as he might do of a gift of lands or goods for if a gift be made to a man that refuseth to take it/ the gift is void: & if it be made to a man that is absent the gift taketh not effect in him till he assent: no more than if a man disease one to another man's use/ he to whose use the disseason is made hath nothing in that land ne is no disseasoure till he agree. And to such disseasons & gifts an Abbot or Prior may disagree as well as any other man but after some men a bishop of a devise or remayndre that is made to the Bishop & to the dean & chapiter nor a dean and a chapiter of a devise or remayndre made to them ne yet the master of a colage of such a devise or remayndre made to him & to his brethren/ may not disagree without the chapiter or brethren for the bishop of of such lands as he hath with the dean & chapiter: ne the dean nor master: of such land as they have with the chapiter or brethren may not answer without the chapiter & brethren: & therefore some say that if the dean or master will refuse or disclaim in the lands that they have by the devise or remainder that that disclaymour without the chapiter or bretherneiss void. And therefore it is held in the law that if a bishop be vouched to warranty & the tenant bindeth him to the warranty by reason of a lease made to him by the bishop & by the dean & the chapiter yielding a rent/ that in that case the bishop may not disclaim in that reversion without the assent of the dean & chapiter. But yet if a reversion were granted to a dean & a chapiter & the dean refuse/ the grant is void/ & so it appeareth that a dean may refuse to take a gift or grant of lands or goods or of a reversion made to him & to the chapiter & that yet he may not disagree to a remainder or devise/ & the diversity is because the remainder & devise be cast upon him without any assent/ whereunto neither the dean nor the chapiter by themself may in no wise disagree without the assent of the other/ but a gift or grant is not good to them without they both assent & in such gifts as I suppose an infant may disagree as well as one of full age/ but if a woman covert disagree to a gift & the husband agree that gift is good.  ¶ doctor. 
what if the lands in that case of a man & his wife be charged with damages or be charged with more rent than the land is worth/ & the husband die shall the wife be charged to the damages or to the rent.  ¶ Student. 
I think nay if the wife refuse the occupation of the ground after her husband death/ & I think the same law to be if a lease be made to the husband & to the wife yielding a greater rent than the land is worth that the wife after the husbands death may refuse the lease to save her fro the payment of the rent/ & so may the successor of an Abbot.  ¶ Docto. 
And if the husband in that case overlive the wife & than make his executors and die/ whether may his executors in likewise refuse the lease.  ¶ Student. 
If they have goods sufficient of their testator to pay the rent I think they may not refuse it/ but if they have no goods sufficient of their testators to pay the rent to the end of the term/ I think if they relinquisshe the occupation they may by special pleeding discharge themself of the rent and the lease/ and if they do not they may lightly charge themself of their own goods. And if a lease be made for term of life the remainder to an Abbot for term of the life of johan at style/ reserving a greater rent than the land is worth/ and after the tenant for term of life dieth the Abbot may refuse the remainder for the cause before rehearsed/ and in case that the Abbot assent to the remainder whereby he is charged to the rend during the time that is Abbot/ & after he dieth or is deposed living the said johan at style/ in that case his successor may discharge himself by refusing the occupation of the land as is aforesaid. But I think that if such a remayndre were made to a dean/ & to the chapiter/ & the dean agree without the assent of the chapiter that in that case the dean & the chapiter may afterward disagree to the remainder: and that the act of the dean without the assent of the chapiter shall not charge the chapiter in that behalf/ & thus it appeareth though the meaning of the said chapiter & article in the said sum be/ that a prelate may not disagree unto a legacy for hurting of the house/ yet he may after the laws of the realm disagree thereto where it should hurt his house. And if in a Praecipe quod reddat there be but one tenant be he spiritual or temporal/ & he refuse by way of disclaymoure in such case where he may disclaim by the law/ there the land shall vest in the demandant/ & if there be two tenants than it shall vest in his fellow/ if he will take the hole tenauncie upon him or else it shall vest in the demaundaunte. But if an Abbot or a lay man refuse the taking of the profits/ & show a special cause why it should hurt him if he did assent & be thereby discharged as is said before/ In whom the land shall than vest it is more doubt whereof I will no ferther speak at this tyme. And thus it appeareth by diverse of the cases that be put in this chapiter that he that is ignorant in the law of the realm/ shall lack the true judgement of conscience in many cases/ For in many of these cases that that may be done therein by the law must also be observed in conscience. &c.   

☞ Whether a gift made under a condition be void if the sovereign only break the condition ⸫ The xxxiiii Chapitre.  SLudent. 
In Summa rosella in the title alienacio/ the xii article is asked this question whether a gift made under a certain form may be avoided or revoked because the prelate or sovereign only did break the form/ & it is there answered that it may not for that the deed of the prelate only ought not to hurt the church/ & if those words under a manner be understand of a gift upon condition as they seem to be/ than the said solution holdeth not in this realm neither in law nor conscience.  ¶ doctor. 
What is than the law of England if a man enfeoff an Abbot by deed intented upon condition that if the Abbot pay not to the feoffor a certain some of money at such a day/ that than it shallbe lawful to the feoffor to re-enter/ & at that day the Abbot faileth of his payment may the feoffer lawfully re-enter & put out the Abbot.  ¶ Student. 
ye verily for he had no right to the land but by the gift of the feoffor & his gift was condicionell & therefore if the condition be broken it is lawful by the law of England for the feoffor to re-enter & to take his land again & to hold it as in his first estate by which re-enter after the laws of the realm he disproveth the first livery of season & all the mean acts done between the first feoffment & the re-enter/ & it forceth little in the law in whom the default be that the condition was not performed whether in the Abbot or in his covent or in both/ or in any other person what so ever he be: except it be in the feoffor himself. And it is great diversity between a clear gift made to an Abbot without condition/ & where it is made with condicton/ for when it is made without condition the act of the Abbot only shall not by the common law disherit the house but it be in very few cases/ but yet upon divers statutes the sufferance of the Abbot only may disherit the house as by his cesser/ or by levying of a cross upon a house against the statute thereof made/ in which case the house thereby shall lose the land/ & some say that by the common law upon his disclaymour in avourie a writ of right of disclamour lieth/ but if the gift be upon condition it standeth neither with law nor conscience that the Abbot should have any more perfit or sure estate than was given unto him/ & therefore as the said estate was made to the house upon condition so that estate may he avoided for not performing of the condition/ & I think verily that this that I have said is to beholden in this realm both in law & conscience/ & that the decrees of the church to the contrari bind not in this case. But if lands be given to an Abbot & to his covent to the intent to find a lamp/ or to give certain alms to poor men/ though the intent be not in those cases fulfilled/ yet the feoffer nor his heirs may not re-enter for he reserved no re-enter by express words/ ne in the words when he saith the intent to find a lamp or to give alms. &c. Is implied no re-enter/ ne the feoffor nor his heirs shall have no remedy in such cases/ unless it be within the case of the statute of Westmynster the second that giveth the Cessau●t de cantaria.   

☞ Whether a covenant made upon a gift to the church that it shall not be aliened (be good.) The xxxv Chapitre.  STudent. 
In the said sum called Summa rosella in the said title alienacio/ the xiii article is asked this question/ whether a covenant made upon a gift to the church that it shall not be aliened be good. And the same question is moved again in the said sum called rosella/ in the title condicio the first article & in Summa angelica/ in the title Donatio prima/ the li & lii articles/ & the intent of the question there is: whether not withstanding that the condition be good to some alienations whether that yet it be good to restrain alienations for the redemption of them that be in captivity under the infideles or for the greater advantage to the house/ & though the better opinion be there that the condition may not be broken for redemption of them that be in captivity: yet it is in manner a hole opinion that it may be sold for the greater advantage to the house/ for it is said there that it may not be taken but that the intent of the giver was so/ & therefore they call the condition that prohibiteth it to be sold (condicio turpis) that is to say/ a vile condition/ wherefore they regard it not: but verily as I take it if a condition may restrain any manner of alienation than it shall as well restrain alienations for the two causes before rehearsed as for any other causes/ and though me thinketh that that condition is good after the laws of the realm that upon gifts to the church restraineth alienations: yet I shall touch one reason that is made to the contrary/ that is this. There is a clear ground in the law that if a feoffment be made to a common person in fee upon condition that the feoff shall not alien to no man: that that condition is void because it is contrary to the estate of a fee simple to bind him that hath that estate that he should not alien if he list/ & some say that an Abbot that hath land to him & to his successors hath as high & as perfit a fee simple as hath a lay man that hath land to him & to his heirs/ and therefore they say that it is as well against the law of the realm to prohibit that the Abbot shall not alien as it is to prohibit a lay man thereof/ & though it be therein true as they say as to the highness of the estate: yet me thinketh there is great diversity between the cases concerning their alienations/ for when lands be given in fee simple to a common person: the intent of the law is that the feoff shall have power to alien/ & if he do alien it is not against the intent of the law ne yet against the intent of the feoffer/ but when lands be given to an Abbot & to his successors the intent of the law is & also of the giver as it is to presume that it should remain in the house for ever/ & therefore it is called mortmayne/ that is to say a dead hand as who saith that it shall abide there always as a thing ded to the house. And therefore as I suppose the law will suffer that condition to be good that is made to restrain that such mortmain should not be aliened & that yet it may ꝓhibit the same condition to be made upon a feoffment made in fee simple to a man & to his heirs for that is the most high/ the most free & the most purest state that is in the law. But the law suffereth such a condition he made upon a gift in tayse because the statute prohibiteth that no altenation should be made thereof. And than as the law suffereth such a condition upon a gift in mortmain/ that is to say/ that it shall not be aliened/ to be good/ than it judgeth the condition also according to the words/ that is to say/ if the condition be general that they shall alien to no man as this case is that it shallbe taken generally according to the words/ & it shall not be taken that the intent of the giver was otherwise than he expressed in his gift though percase if he were alive himself & the question where asked him whether he would be contented it should be alieved for the said two causes or not/ he would say ye/ but when he is ded no man hath authority to interpretate his gift otherwise than the law suffereth/ ne otherwise than the words of the gift be. And if the condition be special that is to say/ that the land shall not be aliened to such a man or such a man/ than the condition shallbe taken according to the words/ & than they may be aliened as for that condition to any other but to them to whom it is expressly prohibit that the land should not be aliened to. And if the lands in that case be aliened to one that is not except in the condition/ than he may alien the land to him that is first excepted without breaking of the condition/ for conditions be taken straightly in the law & without equity. And thus me thinketh that because the said condition is general & restraineth all alienations/ that it may not be aliened neither by the law of the realm ne yet by conscience/ no more for the said two causes than it may for any other cause/ & this case must of necessity be judged after the rules & grounds of the law of the realm & after no other law as me seemeth.   

☞ If the patron present not within vi months who shall present. The xxxvi Chapitre.  STudent. 
In the said sum called Summa rosella in the title Beneficio in principio it is asked/ if the patron present not within vi months who shall present & within what time the presentment must be made. And it is answered there that if the patron present not within vi. months that the chapiter shall have. vi. months to present/ & if the chapiter present not within vi months that than the bishop shall have other vi months. And if he be negligent/ than the Metropolitan shall have other vi months/ & if he present not than the presentment is devolute to the Patriarch. And if the metropolitan have no superior under the Pope/ than the presentment is devolute to the Pope. And so as it is said there the archebisshope shall supply the negligence of the bishop if he be not exempt/ & if he be exempt the presentment immediately shall fall fro the bishop to the Pope. An as I suppose these diversities hold not in the laws of the realm.  ¶ Doctor. 
Than I pray the show me who shall present by the laws of the realm if the patron do not present within his vi months.  ¶ Student. 
Than for default of the patron the bishop shall present/ whiles the king be patron/ & if the Bishop present not within vi. months/ than the metropolitan shall present whether the bishop be exempt or not. And if the metropolitan present not within the time limited by the law/ than there be divers opinions who shall present/ for some say that the Pope shall present/ as it is said before/ & some say the king shall present.  ¶ doctor. 
what reason make they that say the king should present in that case.  ¶ Student. 
This is their reason they say that the king is patron peramounte of all the benefices within the real me. And they say further that the king & his progenitors kings of England without time of mind have had authority to determine the right of patronages in this realm in their own courts/ & are bounden to see their subjects have right in that behalf within the realm/ & that in that case fro him lieth no appeal. And than they say that if the Pope in this case should present that than the king should not only lose his patronage peramounte/ but also that he should not sometime be able to do right to his subjects.  ¶ doctor. 
In what case were that.  ¶ Student. 
It is in this case/ the law of the realm is/ that if a benefice fall void/ that the patron shall present within vi months: & if he do not that than the ordinary shall present but yet the law is further in that case that if the patron present before the ordinari put in his clerk: that than the patron of right shall enjoy his presentment/ & so it is/ though the time should fall after to the metropolitan or to the Pope/ & if the presentment should fall to the Pope/ than though the advowson abode still void/ so that the patron might of right present/ yet the patron should not know to whom he should present/ whiles he should go to the Pope/ & so he should fail of right within the realm. And if percase he went to the Pope & presented an able clerk unto him/ & yet his clerk were refused & another put in at the collation of the Pope or at the presentment of a stranger yet the patron could have no remedy for that wrong within the realm/ for the encumbente might abide still out of the realm. And therefore the law will suffer no title in this case to fall to the Pope.  
And they say that for alike reason it is that the law of the realm will not allow an excommengement that is certified in to the kings court under the pope's bulls. For if the party offered sufficient amends/ & yet could not obtain his letters of absolution/ the king should not know to whom to writ for the letters of absolution/ and so the party could not have right/ & that the law will in no wise suffer.  ¶ doctor. 
The patron in that case may present to the ordinary as long as the church is void/ & if the ordinary accept him not/ the patron may have his remedy against him within the realm. But if the Pope will put in an encumbent before the patron present/ it is reason that he have the preferment as me seemeth before the king.  ¶ Student. 
When the ordinary hath surcessed his time he hath lost his power as to that presentement/ specially if the collation be devolute to the pope. And also when the presentment is in the Metropolitan he shall put in the clerk himself & not the ordinary/ & so there is no default in the ordinary though he present not the clerk of the patron if his time be passed/ & so there lieth no remedy against him for the patron.  ¶ Doctor. 
Though the encumbent abide still out of the realm yet may a Quare impedit lie against him within the realm/ & if the encumbent make default upon the distress & appear not to show his title: than the patron shall have a writ to the bishop according to the statute/ & so he is not without remedy.  ¶ Student. 
But in this case he can not be summoned/ attached/ nor distrayned/ within the realm.  ¶ doctor. 
He may be summoned by the church as the tenant may in a writ of right of avowson.  ¶ Student. 
There the avowson is in demand/ & here the presentment is only in debate/ & so he can not be summoned by the church here no more than if it were in a writ of annuity/ and there the common return is (quod clericus est & beneficiatus non habens laicum feodum ubi potest summoniri). And though he might be summoned in the church/ yet he might neither be attached nor distrained there/ & so the patron should be without remedy.  ¶ doctor. 
And if he were with out remedy/ he should yet be in as good case as he should be if the king should present/ for if the title should be given to the king the patron had lost his presentment clearly for that time though the church abide still void. For I have herd say that in in such presentments no time after the law of the realm runneth unto the king  ¶ Student. 
That is true/ but there the presentment should be taken fro him by right & by the law & here it should be taken fro him against the law/ & there as the law could not help him & that the law will not suffer.  ¶ doctor. 
yet me thinketh always that the title of the laps in such case is given by the law of the church & not by the temporal law/ & therefore it forceth but little/ what the temporal law will in it as me seemeth.  ¶ Student. 
In such countries where the Pope hath power to determine the right of temporal things I think it is as thou sayest/ but in this realm it is not so. And the right of presentment is a temporal thing & a temporal inheritance/ & therefore I think it belongeth to the kings law to determine/ & also to make laws who shall present after the vi months/ as well as before/ so that the title of examination of ability or none ability be not thereby taken fro the ordinaries/ & in likewise it is of avoidance of benefices/ that is to say/ that it shallbe judged by the kings laws when a benefice shall be said void & when not/ & not by the law of the church as when a person is made a bishop or accepteth another benefice without licence/ or resigneth/ or is deprived in these cases the common law saith that the benefices be void & so they should be though a law were made by the church to the contrary/ & so if the Pope should have any title in this case to present/ it should be by the law of the realm. And I have not seen ne heard that the law of the realm hath given any title to the Pope to determine any temporal thing that may be lawfully determined by the kings court.  ¶ doctor. 
It seemeth by that reason that thou haste made now that thou preferrest the kings authority in presentments before the Pope's/ & that me thinketh should not stand with the law of god: sith the Pope is the vicar general under god.  ¶ Student 
That I have said proveth not that/ for the highest preferment in presentments is to have authority to examine the ability of the person that is presented/ for if the present be able/ it sufficeth to the discharge of the ordinary/ by whom so ever he be presented & that authority is not denied by the law of the realm to belong alway to the spiritual jurisdiction/ but my meaning is that as to the right of presentments & to determine who ought to present & who not & at what time/ & when the church shallbe judged to be void & when not/ belongeth to the king & his laws/ for else it were a thing in vain for him to hold plea of advowsons or to determine the right of patronage in his own courts & not to have authority to determine the right thereof/ & these claims seemeth not to be against the law of god. And so me seemeth in this case the presentment is given the king.  ¶ Doctor. 
And if the king should have right to present than might the church happen to continued void for ever for as we have said before no time runneth to the king in such presentments.  ¶ Student. 
If any such case happen if the king present not than may the ordinary set in a deputy to serve the cure as he may do when negligence is in other patrons that may present & do not/ & also it can not be thought that the king which hath the rule & governance over the people not only of their bodies but also of their souls will hurt his conscience & suffer a benefice continually to stand without a curate no more than he doth in avowsons that be of his own presentment.   

☞ Whether the presentment & collation of all benefices & dignities voiding at Rome belong only to the Pope The xxxvii Chapitre.  STudent. 
In the said sum called Summa rosella in the title Beneficium primum/ in the xiii article. It is said that benefices/ dignities/ & personages/ voiding in the court of Rome may not be given but by the Pope & likewise of the Pope's servants & of other that come & go fro the court if they die in places nigh to the court within two days journey all these belong to the Pope/ but if the Pope present not within a month: than after the month they to whom it belongeth to present may present by themself only or by their vicar general if they be in far parties & these sayings hold not in the laws of the realm.  ¶ doctor. 
what is the cause that they hold not in this realm as well as in all other realms.  ¶ Student 
One cause is this. The king in this realm according to the ancient right of his crown/ of all his advowsons that be of his patronage oweth to present. And in likewise other patrons of benefices of their presentment/ & the plea of the right of presentments of benefices within this realm belong to the king & his crown. And these titles can not be taken fro the king & his subjects but by their assent/ & so the law that is made therein to put away that title bindeth not in this realm/ & over that before the statute of xxv of Edward the iii there was a great inconvenience & mischief by reason of divers provisions & reservations that the Pope made to benefices in this realm contrary to the old right of the king & other patrons in this realm as well to archebisshopryches/ Bisshopryches/ deauries/ & Abbes: as to other dignities & benefices of the church. And many times aliens thereby had benefices within the realm that understood not the english tongue/ so that they could not counsel ne comfort the people when need required/ & by that occasion great riches was conveyed out of the realm/ wherefore to avoid such inconveniences: it was ordained by the said statute that all patrons as well spiritual as temporal should have their presentments freely/ & in case that collation or provision were made by the Pope in disturbance of any spiritual patron: that than for that time the king should have the pnsentement/ & if it were in disturbance of any lay patron: that than if the patrompnsented not within the half year after such voydance: nor the bishop of the place within a month after the half year: that than the king should have also the pnsentement/ & that the king should have the profits of the benefices so occupied by provision except abbes & priors & other houses that have colage & covent/ & there the colage & covent to have the profits/ & because the statute is general & excepteth not such benefices as shall void in the court of Rome or in such other place as before appeareth/ therefore they be taken to be within the provision of the said statute as well as the benefices that void within the realm/ & all provisors & executors of the said collacions & provisions & all their attorneys/ notaries/ & maintainers shallbe out of the protection of the king/ & shall have like punishment as they should have for executing of benefices voiding within the realm.  ¶ Doctor. 
But I can not see how the said statute may stand with conscience that so far restraineth the Pope of his liberty/ which as me seemeth he aught in this case right to have.  ¶ Student. 
Because as I suppose the patrons ought of right to have their pnsentementes under such manner as they claim them in this realm as I have said before/ & as in the xxvi chapi. of this book appeareth more at large & also for as much as it appeareth evidently that great inconvenient followed upon the said provisions/ & that the said statute was made to avoid the same/ which sith that time hath been suffered by the Pope & hath been always used in this realm without resistance that the said statute should therefore stand with good conscience.   

☞ If a house by chance fall upon a horse that is borrowed who shall bear the loss ⸫ The xxxviii Chapitre.  STudent. 
In the said sum called Summa rosella/ in the title casus for tuitus/ in the beginning is put this case if a man lend to another a horse which is called there depositum & a house by chance falleth upon the horse whether in that case he shall answer for the horse. And it is answered there that if the house were like to fall that than it can not be taken as a chance but as the default of him that had the horse delivered to him. But if the house were strong & of likeliholde & by common presumption in no danger of falling but that it fell by sudden tempest or such other casueltie that than it shallbe taken as a chance/ & he that had the keeping of the horse shallbe discharged/ & though his diversity agreeth with the laws of the realm yet for the more plainer declaration thereof and for other like cases & chances that may hap to goods that a man hath in his keeping that be not his own. I shall add a little more thereto that shallbe somewhat necessary as me thinketh to the ordering of conscience. first a man may have of another by way of lone or borrowing/ money/ corn/ wine/ & such other things where the same thing can not be delivered if it be occupied but another thing of like nature & like value must be redelivered for it/ & such things he that they be l●●e to may by force of that lean use as his own. And therefore if they perish it is at his jeopardy & this is most properly called a loon. Also a man may lend to another a horse/ an ox/ a cart/ or such other things that may be delivered again/ & they by force of that leave may be used & occupied reasonably in such manner as they were borrowed for/ or as it was agreed at the time of the loon that they should be occupied/ & if such things be occupied/ otherwise than according to the intent of the lone/ & in that occupation they perish in what wise so ever they perish/ so it be not in default of the owner/ he that borrowed them shallbe charged therewith in law & conscience/ & if he that borrowed them occupy them in such manner as they were lent for/ & in that occupation they perish in default of him that they were lente too: than he shall answer for them. And if they perish not through his default: than he that oweth them shall bear the loss. Also if a man have goods to keep to a certain day for a certain recompense for the keeping he shall stand charged or not charged after as default or no default shallbe in him/ as before appeareth/ & so it is if he have nothing for the keeping/ but if he have for the keeping & make promise at the time of the delivery to redeliver them safe at his peril: than he shallbe charged with all chances that may fall. But if he make that promise & have nothing for keeping I think he is bound to no such casuelties/ but that be wilful and his own default/ for that is a nude or a naked promise whereupon as I suppose no action lieth. Also if a man find goods of another if they be after hurt or lost by wilful negligence he shallbe charged to the owner/ but if they be lost by other casuelte as if they be laid in a house that by chance is burned/ or if he deliver them to another to keep that reneweth away with than: I think he be discharged/ & these diversities hold most commonly upon pledges/ or where a man hurith goods of his neighbour to a certain day for certain money/ & many other diversities be in the law of the realm what shallbe to the jeopardy of the one & what of the other which I will not speak of at this tyme. And by this it may appear that as it is commonly holden in the laws of England if a common carrier go by by ways that be dangerous for robbing/ or drive by night or in other unconvenient time and be rob/ or if he over charge a horse whereby he falleth into the water or otherwise/ so that the stuff is hurt or impaired/ that he shall stand charged for his misdemeanoure/ & if he would percase refuse to carry it/ unless promise were made unto him that he shall not be charged for no misdemeanour that should be in him that promise were void. For it were against reason and against good manners and so it is in all other causes like.  
And all these diversities be grounded by secondary conclusions dirivied upon the law of reason without any statute made in that behalf. And peradventure the laws & the conclusions therein be the more plain & the more open. For if any statute were made thereon: I think verily more doubts & questions would rise upon that statute than doth now when they be only argued and judged after the common law.   

☞ If a pressed have won moche by saying of mass/ whether he may give those goods or make a will of them. The xxxix Chapitre.  Student. 
In the said sum called Summa rosella in the title clericus quartus the third article/ is asked this question if a pressed hath won moche goods by saying of mass whether he may give those goods or make a will of them/ whereto it is answered there that he may give them or make a will of them specially when a man bequeteth money for to have masses said for him/ & that like law is of such things as a clerk winneth by the reason of an office. For it is said there that such things come to him by reason of his own person/ which sainges I think accord with the law of the realm. But for as much as in the said article & in divers other places of the said chapiter/ & in divers other chapters of the said sum is put great diversity between such goods as a clerk hath by reason of his church and such goods as he hath by reason of his person: and that he must dispose such goods as he hath by reason of his church in such manner as is appointed by the law of the church/ so that he may not dispose them so liberally as he may the goods that come by reason of his own person/ therefore I shall a little touch what spiritual men may do with their goods after the law of the realm. first a Bishop of such goods as he hath with the dean & the chapiter he may neither make gift nor bequest/ but of such goods as he hath of his own by reason of his church or of the gift of his ancestors' or of any other/ or of his patrimony he may both make gifts & byquestes lawfully. And an Abbot of the goods of his church may make a gift & the gift is good as to the law. But what it is in conscience that is after the cause & intent & quality of the gift/ for if it be so moche that it notably hurteth the house or the covent/ or if he give away the books or the chalices/ or such other things as belong to the service of god/ he offendeth in conscience/ & yet he is not punisshable in the law/ ne yet by a sub pena after some men ne in none other wise but by the law of the church as a waster of the goods of his monastery.  
But nevertheless I will not fully hold that opinion as to that that belongeth necessarily to the service of god/ whether any remedy lie against him or not/ but remit it to the judgement of other. And a dean & a chapiter & a master & brethren of goods that they have to themself. And also of goods that they have with the chapiter & brethren the same diversity holdeth as appeareth before of a bishop & the dean & chapiter/ except that in the case of a master & brethren the goods shallbe ordered as shallbe assigned by the foundation. And moreover of a parson of a church vicar/ & chaunterie priest/ or such other/ all such goods as they have/ as well such as they have by reason of the parsonage/ vicarage / or chauntery/ as that they have by reason of their own person they may lawfully give & bequeatheth where they will after the common law. And if they dispose part among their parishians & part to the byldinge of churches/ or give part to the ordinary/ or to poor men/ or in such other manner as is appointed by the law of the church they offend not therein/ whiles they think themself bounden thereto by duty & by authority of the law of the church/ not regarding the kings laws/ for if they do so it seemeth they resist the ordinance of god/ which hath given power to princes to make laws. But there as the Pope hath sovereignty in temporal things as he hath in spiritual things/ there some say that the goods of priests must in conscience be disposed as is contained in the said sum/ but that holdeth not in this realm/ for the goods of spiritual men be temporal in what manner so ever the come to them/ & must be ordered after the temporal law as the goods of the temporal men must be. How be it if there were a statute made in this case of like effect in many points/ as the law of the church is. I think it were a right good & a profitable statute.   

☞ Who shall succeed a clerk that dieth intestate. ❧ The xl Chapitre.  STudent. 
In the said sum called rosella in the chapiter Clericus quartus the vii article/ is asked this question/ who shall succeed to a clerk that dieth intestate. And it is answered that in goods gotten by reason of the church the church shall succeed. But in other goods his kinsmen shall succeed after the order of the law/ & if there be not kinsmen than the church shall succeed. And it is there said further that goods gotten by a canon secular by reason of his church or prebend shall not go to his successor in the prebend/ but to the chapiter. But where one that is beneficed is not of the congregation/ but he hath a benefice clearly separate/ as if he be a parson of a parish church or is a precedent or an archdeacon not beneficed by the chapiter/ than the goods gotten by reason of his benefice/ shall go to his successor & not to the chapiter/ & none of these sayings hold place in the laws of England.  ¶ Doctor. 
what is than the law if a panrsone of a church or a vicar in the country die intestate/ or if a canon secular be also a parson & have gods by reason thereof & also by a prebend that he hath in a cathedral church & he die intestate/ who shall have his goods.  ¶ Student. 
At the common law the ordinary in all these cases may administer the goods & after he must commit administration to the next faith full friends of him that is dead intestate that will desire it as he is bound to do where lay men that have goods die intestate.  
And if no man desire to have administration than the ordinary may administer & seethe debts paid & he must beware that he pay the debts after such order as is appointed in the common law/ for if he pay debts upon simple contracts before an obligation he shallbe compelled to pay the debt upon the obligation of his own goods if there be not goods sufficient of him that died intestate/ & though it be suffered in such case that the ordinary may pay pound & pound like that is to apportion the goods among the debtors after his discretion/ yet by the rigour of the common law he might be charged to him that can first have his judgement against him. And furthermore by that is said afore in the last chapter appeareth if a bishop that hath goods of his patrimony/ or a master of a colage/ or a dean of goods that they have of their own only to themself die intestate/ that the ordinary shall commit administration thereof as before appeareth & if they make executors than the executors shall have the ministration thereof. But the heirs nor the kynnesmen by that reason only that they be heirs or of kin to him that is decessed shall have no meddling with his goods except it be by custom of some countries where the heirs shall have heir lomes. Or where the children/ the debts & legaces paid/ shall have a reasonable part of the goods after the custom of the country.   

¶ Addition. ❧ If a man be owtlawed of felony or be attainted for murder or felony: or that is an ascismus may be slain by every straungeour ⸫ The xli Chapitre.  Doctor. 
It appeareth in the said sum called Summa angelica in the xxi chapiter. in the title of Ascismus the .2. Paragraf that he is an ascismus that will slay men for money at the instance of every man that will move him to it/ & such man may lawfully be slain not only by the judge but by every private person. But it is said there in the .4. Paragrafe. that he must first be judged by the law as an ascismus or he may be slain or his goods seized. And it is said ferther there in the .2. Paragraf that also in conscience such an ascismus may be slain if it be done through a zeal of justice and else not. Is not the law of the realm likewise of men outlawed/ abjured/ or judged for felony.  ¶ Student. 
In the law of the realm there is no such law that a man shallbe adjudged as an ascismus/ ne if a man be in full purpose for a certain sum of money that he hath received to slay a man: yet it is no felony ne murder in the law till he hath done the act for the intent in felony nor murder is not punisshable by the common law of the realm though it be deadly sin afore god/ but in treason or in some other particular cases by statute the intent may be punished. And though a man in such case kill a man for money: yet he shall not be attainted that he is an ascismus. For as it is said before: there is no such term of ascismus in the law of the realm: but he shall in such case be arraigned upon the murder. And if he confess it or plead that he is not guilty & is found guilty by xii men: he shall have judgement of life & of member/ & shall forfeit his lands & goods. And like law is if in appeal brought of the murder: he stand dumb & will not answer to the murder: he shallbe attainted of the murder & shall forfeit life lands/ & goods/ but if he arrayned of the murder upon an Indictment at the kings suit: & there upon standeth dumb & will not answer: there he shall not be attainted of the murder/ but he shall have pain fort & dure (that is to say) he shallbe pressed to doth & he shall there forfeit his goods & not his lands. But in none of these cases (that is to say) though a man be outlawed for murder or felony/ or be abjured/ or that he be otherwise attainted: yet it is not lawful for no man to murder him or slay him ne to put him in execution but by authority of the kings laws. In so much that if a man be adjudged to have pain fort and dure/ & the officer by hedeth him/ or on the contrary wise putteth him to pain fort & dure where he should byhede him: he offendeth the law.  
❧ And if an officer which hath authority to put a man to death (may not put him to death but according to the judgement) than me thynket it should follow that more stronger a stranger may not put such a man to death of his own authority without commandment of the law.  
❧ But if the judgement be that he shallbe hanged in chains/ & the officer hangeth him in other things & not in chains I suppose he is not guilty of his death/ but some say he shall there make a fine to the king because he hath not followed the words of the judgement.  
❧ Also if a man that is no officer would a rest a man that is outlawed/ abjured/ or attainted of murder or felony as is aforesaid/ & he disobeyeth the arrest/ & by reason of that disobedience he is slain: I suppose the other shall not be impeached for his death/ for it is lawful unto every man to take such persons & to bring them forth that they may be ordered according to the law. But if a capias be directed unto the sheriff to take a man in an action of debt or trespass: there no man may take that man but he have authority from the sheriff. And if any man attempt of his own authority to take him & he resisteth/ & in that resisting is slain: he that would have taken him is guilty of his death.   

¶ Addition. ❧ Whether a man shallbe bound by that act or offence of his servant or officer ⸫ The xlii Chapitre.  STudent. 
In the said sum called Summa angelica in the title dominus .4. Paragrafe: Is asked this question/ whether a man shallbe charged for his household And it is said there that he shall when the household offendeth in an office or ministery that the master is the chief officer of: & he hath the work & the profit of the household. For it shallbe his default that he would choose such servant/ for he ought to appoint honest persons/ but it is said there that that is to be understand civilly & not criminally/ whereby as is said there he that is a governor is bound for the offence of his officers/ & that the same is to be held of a Captain/ that he shallbe bound for the offence of his squires. And an host for his guest & such other. Nevertheless it is said there that certain doctors there rehearsed/ & thereto that if the office be an open or a public office/ as an office of power or other like: It sufficeth to bring forth him that offended. But it is otherwise. If it be not a public office: but an host or a taverner or otherlike. But if the household offended not in the office: the lord is not bound as to the law: but in conscience he is bound if he were in default by not correcting them/ for he is bound to correct them both by word and example/ and if he find any incorrigible he is bound to put him away except that he hath presumpcious that if he do so: he will be the worse/ and than he may do that he thinketh best/ and he is escused and else not. For to such persons it is said (Error qui non resistitur: approbatur) that is to say (An error that is resisted: is approved. And though divers of the sayings before rehearsed agree with the law of the realm/ yet all do not so/ & also though that do: are to be observed by authority of the law of the realm & not by the authority alleged in the said paragraph. And therefore I intend to treat somewhat where the master shallbe charged by his servant or deputy/ or by them that be under him in any office/ & where not/ & than I intend to touch some other things where the master after the laws of the realm shall be charged by the act of his servant in other cases not concerning offices & where not.  
❧ first if a man be committed to ward upon arrearages of account: & the keeper of the prison suffereth him to go at large: than an action of det shall lie against him. And if he be not sufficient: than it lieth against him that committed the prison unto him & that is by reason of the statute of West in the ii the xi Chapitre.  
❧ Also if bailiffs of franchises that have return of writs make a false return the party shall have averment against it as well of to little issues as of other things as well as he shall have against the sheriff/ but all the punishment shallbe only upon the bailie & not upon the lord of the fraunchese/ & that doth appear by the statute made in the first year of king Edward the iii the .v. chapiter. But if an under sheriff make a return where upon the sheriff shallbe amercied there the high sheriff shallbe amercied for the return is made expressly in his name. But if it be a false return where upon an action of deceit lieth: in that case it may be brought against the under sheriff/ & see thereof the statute that is called Statutum de male returnantibus brevia.  
❧ Also if the kings butteler make deputies he shall answer for his deputies as for himself. As appeareth in the statute made in the xxv year of king Edward the third. De prodicionibus the xxi Chapitre.  
❧ Also in the statute that is called statutum scaccaru it is enacted among other things that no officer of the exchequer shall put any clerk under him but such as he will answer for. And for as much as the statute is general: it seemeth that he shall answer as well for an untruth in any such clerk as for an over sight.  
❧ Also in the xiiii year of king Edward the third the ix chapiter: it is enacted that all gales shallbe adjoined again to the shires/ & that the sheriff shall have the keeping of them/ & that the sheriff shall make such under gardens for the which they will answer. And nevertheless I suppose that if there be an escape by default of the Jailor: that the king may charge the Jailor if he w l. But it is no doubt but he may charge the sheryte by reason of his statute it he will/ But if it be a wilful escape in the Jailor which is felony in him the sheriff shall not be bound to answer to that felony ne none other but the Jailor himself and they that assented to him.  
❧ Also if a man have a shyrefwyke/ constableship/ or bailie wyke in see/ whereby he hath the keeping of prisoners/ if he let any to replevyn that be not replevisshable & thereof be attaint/ he shall lief the office. &c. And if it be an undersheryfe/ constable/ or bailiff that hath the keeping of the prison that doth it without knowledge of the lord: he shall have enprysonement by. three years/ & after shallbe ransomed at the kings will/ as appeareth in the statute of Westm. the first the xu chapiter. And so it appeareth that in this case he that is the lord of the prison is not bound to answer for the offence of them that have the rule of the prison under him: but that they shall have the punishment themself for their misdemeanoure.  
♣ Also there is a statute made in the xxvii year of king Edward the iii the xix chapiter is called the statute of the Staple whereby it is ordained that no merchant ne none other man shall not lose their goods for the trespass or forfeit of their servants/ unless it be by commandment of his master/ or that the offend in the office that his master hath put him in/ or else that the master shallbe bound to answer for the deed of his servant by the law merchant/ as in some place it is used.  
❧ Also it is enacted in the xiiii year of king Edward the iii the viii chapiter that wapentakes and hundreds that be severed from the counties shallbe adjoined again unto them/ and that if the sheriff hold them in his own hands: that he shall put in them such bailiffs that have lands sufficient/ & for the which he will answer/ and that if he let them to farm: that they be let to the ancient firm/ but after it is prohibited by the statute of the xxiii year of king Henry the vi the ten chapiter. That no sheriff shall let his baylywykes nor wapentakes ●o farm. And so when they be once in the sheriffs own hands & the sheriff putteth in bailiffs: they be but as under bailiffs to the king & the sheriff the high bailiff/ & they in manner the sheriffs servants & put in only by him. And therefore by the said statute of king Edward the four He shall answer for them if they offend in their office/ but if the sheriff let them to farm: than though the sheriff offend the stature in that doing/ yet whether he shallbe charged for their misdemeanour in the office or not: is a great doubt to some men/ for they say that this statute is only to be understand where the baylywykes be in the sheriffs hands: but here they be not so/ ne the bailiffs be not his servants but his fermours And therefore they say that if the sheriff shallbe charged for them: It is by the common law & not by the statute aforesaid.  
❧ Also in the ii year of king Henry the vi the xiiii chapiter it is enacted that officers by patent in every court of the king that by virtue of their office have power to make clerks in the said courts shallbe charged & sworn to make such clerks under them for whom they will answer.  
❧ Also the Hospitelers & Templars be prohibit that they shall hold no plea that bylongeth to the kings courts upon pain to yield damages to the party grieved & to make ransom to the king/ & that the superiors shall answer for their obediences as for their own deed. Westm the ii the xliii. chapiter.  
❧ Also the sergeant of the caterye shall satisfy all the dertes/ damages/ an executions that shallbe recovered against any that is purveyor or achatour under him & that offend against the statute of xxxvi of Edward the third/ or against this statute of xxiii of Henry the vi In case that the purveyor or achatour be not sufficient &c. And the party plaintiff shall have a Scire facias against the said sergeant in this case to have execution as appeareth in the xxiii year of king Henry the vi the first chapiter.  
❧ Also if a man be sent to prison upon a statute merchant by the Mayor/ before whom the recognisance was taken/ and the Jailor will not receive him: he shall answer for the det if he have where with/ & if not: than he shall answer that committed the Jailor to him/ as appeareth in the statute called the statute merchant.  
❧ Also if outrageous tolle be taken in a town merchant/ if it be the kings town let to seem: the king shall take the fraunchese of the market into his hands. And if it be done by the lord of the town: the king shall do in like wise. And if it be done by the bailiff unknowing the lord: he shall yield again as much as he hath taken/ & shall have enprysonment of xl days. And so it appeareth that the lord in this case shall not answer for his bailie. Westm the first the xxx chapiter. And in all the cases before rehearsed where the superior is charged by the default of him that is under him: he in whose default his superior is so charged: is bound in conscience to restore him that is so charged through his default. Except the case before rehearsed of the hospitelers/ for all that the obediencer hath: is the superiors if he will take it. And therefore what recompense shallbe made by the obeciencer in that case: is all at the will of the superior. And now I intend to show the some particular cases where the master after the laws of the realm shall be charged by the act of his servant/ bailiff/ or deputy/ & where not/ & so for to make an end of this chapiter.  
❧ first for trespass of batery or of wrong full entry into lands or tenements: ne yet for felony or murder the master shall not be charged for his servant/ whiles he did it by his commandment.  
❧ Also if a servant borrow money in his masters name: the master shall not be charged with it whiles it come to his use & that by his assent/ and the same law is if the servant make a contracie in his masters name/ the contracie shall not bind his master whiles it were by his masters commandment or that it came to the masters use by his assent. But if a man send his servant to a fair or market to buy for him certain things/ though he command him not to buy them of no man in certain: & the servant do. he according the master shallbe charged/ but if the servant in that case buy them in his own name not speaking of his master: the maester shall not be charged onelee 〈…〉 bought come to his use.  
❧ Also if a man send his servant to the market with a thing which he knoweth to be defective to be sold to a certain man & he selleth it to him: there an action lieth against the master/ but if the master biddeth him not sell it to any person in certain but generally to whom he can. And he selleth it according: there lieth no action of deceit against the master.  
❧ Also if the servant keep the masters fire necligently/ whereby his masters house is brent & his neighbours also/ there an action lieth against the master. But if the servant bear fire negligently in the street & thereby the house of another is burned/ there lieth no action against the master.  
❧ Also if a man desire to log with one that is no common hostiler & one that is servant to him that he lodgeth with: robbeth his chamber/ his master shall not be charged for that robbing/ but if he had been a common hostyler he should have been charged.  
❧ Also if a man be garden of a prison wherein is a man that is condemned in a certain some of money/ & another that is in prison for felony & a servant of the garden that hath the rule of the prison under him wilfully letteth them both escape in this case the garden shall answer for the det & shall pay a fine for the escape of the other as for a negligent escape and the servant only shallbe put to answer to the felony for the wilful escape ¶ Also if a man make another his general receyueure/ & that receyvoure receiveth money of a credytoure of his master & maketh him an acquytaunce and after payeth not his master yet that payment dischargeth the credytoure: but if the credytoure had taken an acquytaunce of him without paying him any money: that acquytaunce only were no bar to the master/ unless he made him recyveour by writing and gave him authority to make acquytaunces/ and than that authority must be showed. And if the creby four in such case by agreement between the receyvoure & him: deliver to the receiver a horse or an other thing in recompense of the dete: that delivery dischargeth not the creditor unless it be delivered over unto the master and he agree to it. For the receyvoure hath no such power to make no such commutation but his master give him special commandment thereto.  
❧ Also if a servant show a creditoure of his master that his master sense him for his money/ & he payeth it unto him/ that payment dischargeth him not if the master did not send him for it in deed/ except that it come after unto the use of the master by his assent.  
❧ Also if a man make a bailiff of a manner & after the lord of whom the manner is holden granted the seygnoury to another & the bailiff after payeth the rent unto the grant: that payment of the rent countrevayleth no attournant though it were by fine/ ne shall not bind his master till he atturne himself/ but if the lord of whom the land is holden die seized of the seynoury & the bailiff payeth the rent to the heir of the lord: that is a good season to the heir though the bailiff had no commandment of his master to pay it For it belongeth to his office to pay rents service but not rentte charge as some men say.  
❧ Also an encrochement by the bailiff shall bind the master in avowry if he had no commaundementte of the master to pay it.  
❧ Also if there be lord Mesne & tenant & the renaunte holdeth of the Mesne as of his manner of D the Mesne maketh a bailiff. And after the tenant maketh a feoffment: the feoff rendeth notice to the bailiff & he accepteth his rent with the arrearages/ this notice shall not bind the lord ne compel him to alter his avowry/ for the office of a bailiff stretcheth not thereto but he must have there in a special commandment of his master. Also if a servant ride on his masters horse to do an errant for his master into a town that hath authority to make attachementes of goods upon plaints of debt &c. & there upon a plaint of debt made against the servant: the masters horse is atached by the officers thinking that the horse were his own/ & because the servant appeareth not: the officers seize the horse as forfeit/ in this case the lord shall have an action of trespass against the officers/ & this attachement for the det of his servant shall not bind him. &c. but that an host or a keeper of a tavern shallbe charged for their guests whiles it be done by their assent or commandment. I do not remember that I have read it in the laws of England.   

¶ Addition. ☞ Whether a villain or abonde man may give away his goods. The xliii Chapitre.  doctor. 
It appeareth in the said sun called Summa angelica in the citle donatio prima the .9. paragraph that a bond man nor a religious man/ nor a monk/ ne such other that hath nothing in proper may not give but it be by the licence of their superior/ but that saying is not as it is said there to be understand of religious persons that have lawful ministration of goods/ for if they give with a cause reasonable: it is good/ but without cause they may not.  
❧ Also if they by the licence if their prelate with the council of the more part of the covent abide at school or go on pilgrimage: they may give as other honest scholars & pilgrims be reasonably wont to do/ and they may also give alms where there is great need if they have no time to ask licence.  
❧ Also if they see one in extreme necessity they may give alms though their superiors prohibit them/ for than all things be in common by the law of god. And therefore they be bounden for to do it/ as appeareth in the aforesaid sum called Summa angelica in the title Elemosina the .6. Pagrafe. Doth not the law of England agree with these diversities.  ¶ Student. 
For as much as the question is only made whether a villain or a bond man may give away his goods or not. And it seemeth that after the foresaid Sum in the title which thou haste before rehearsed/ that he ne none other that hath no property may not give/ whereby it appeareth that the said Sum taketh it that a bondman should have no property in his goods/ & that therefore his gift should be void: I shall somewhat touch what property & what authority a villain hath in his goods after the law of the realm/ & what authority the lord hath over them. And I will leave the diversities that thou hast remembered before of religious persons to them that list to treat ferther therein hereafter.  
❧ first if a villain have goods either by his own proper buying & selling/ or otherwise by the gift of other men/ he hath as perfit a property & also as 〈◊〉 interest in them/ & may as lawfully give them away as any free man hath may. But if the lords seize them before his gift: than they be the lords/ & the interest of the villain therein is determined.  
❧ Also if the lord seize part of the goods of his villain in the name of all the goods that the villain hath or shall hereafter have that seizure is good for all the goods that he had at that time/ though they were not there present at the time of the sesure. But if goods come to the villain after the seizure: he may lawfully give them away not withstanding the said seizure.  
❧ Also if the lord claim all the goods of the villain and seasith no part of them: that seizure is void/ and the gift of the villain is good not withstanding that seizure.  
❧ Also if a man be bound to villain in an obligation in a certain sum of money/ & the lord seizeth the obligation: than the obligation is his/ but yet he can take no action there upon but in the name of the villain/ and therefore if the villain release the debt: the lord is barred by that release.  
❧ Also if a woman be a nyef/ & she marrieth a free man/ the goods immediately by the marriage be the husbands/ and the lord shall come to la●e to make any seizure/ & if the husband in that case maketh his wife his executrix & dieth/ and the wife taketh the same goods again as executrix to her husband/ yet it shall not be lawful for the lord to take them from her though she be a nyefe as she was before the marriage.  
❧ Also if goods be given to a man to the use of a villain/ & the lord seizeth those goods/ that seizure after some men is good by the statute made in the xix year of king Henry the vii whereby it is enacted that the lord shall enter in to lands whereof other persons be seized to the use of his villain & they say that the same statute shallbe understand by equity of goods in use/ as well as of lands in use.  
☞ Also if a villain be made a pressed/ yet nevertheless the lord may seize his goods & lands as he might before. And until the seses he may alien them & give them away as he might before he was pressed. And in this case the lord may order him so that he shall do him such service as belongeth to a pressed to do before any other: but he may not put him to no labour nor other business but that is honest and lawful for a pressed to do.  
❧ Also if a villain enter in to religion 〈◊〉 his year of proof he may dispose his goods as he might have done before he took the habitte upon him. And in likewise the lord may seize his goods as he might have done before: but if he aftre make executors & be professed. And the executors take the goods to the performance of the will: than the lord may not seize the goods though the executors have them to the performance of the will of him that is his villain: nor in that case the lord may not seize his body ne put him to no manner of labour but must suffer him to abide in his religion under the obedience of his superior as other religious people do that be no bondmen. And the lord hath no remedy in that case for loss of his bond man but only to take an action of trespass against him that received him into religion without his licence/ & thereupon to recover damages as shallbe assessed by xii men. Many other cases there be concerning the gift of the goods of a vilayn whereof I will speak no more at this time for this that I have said sufficeth to show that the knowledge of the kings law is right expedient to the good order of conscience concerning such goods.   

❧ If a clerk be promoted to the title of his patrimony & after selleth his patrimony & after falleth to poverty whether shall he have his title therein or not. The xliiii Chapitre.  STudent. 
In the said sum called Rosella in the title Clericus quartus/ the xxiiii. article it is asked if a clerk be promoted to the title of his patrimony whether he may alien it at his pleasure and whether in that alienation the solemnity needeth to be kept that is to be kept in alienation of things of the church/ & it is answered there that it may not be aliened no more than the goods of a spiritual benefice if it be accepted for a title & expressly assigned unto him/ so that it should go as in to a rhing of the church/ except he have after an other benefice whereof he may live. But if it be secretly assigned to his title: some agree it may be aliened/ & in this case by the laws of the realm it may be lawfully aliened whether it be secretly or openly assigned to his title/ for the ordinary ne yet the party himself after the old customs of the realm have no authority to bind any inheritance by authority of the spiritual law/ & therefore the land after it is assigned & accepted to be his title standeth: in the same self case to be bought/ sold/ charged/ or put in execution as it did before. And therefore it is somewhat to be marveled that ordinaries will admit such land for a title to the intent that be that is promoted should not fall to extreme poverty or go openly a begging/ without knowing how the common law will serve therein/ for of mere right all inheritance within this realm ought to be ordered by the kings laws/ & inheritance can not be bounden in this realm but by fine or some other matter of record/ or by feoffment/ or such other or at lest by a bargain that changeth an use. And over that to assign a stare for term of life to him that hath a fee simple before: is void in the laws of England without it be by such a matter that it work by way of conclusion or estapell/ & in this case is no such matter of conclusion/ & therefore all that is done in such case in assigning of the said title is void. Also there is no interest that a man hath in any manner lands or tenements for term of life/ for term of yeris/ or otherwise/ but that he by the law of the realm may put away his right therein if he will. And than when this man alieneth his land generally: it were against the law of the realm that any interest of such a title should remain in him against his own sale/ & there is no diversity whether the assignment of the title were open or secret/ & so that title is void to all intentes. And in in likewise if a house of religion or any other spiritual man that hath granted a title after the custom used in such titles sell all the lands & goods that they have that sale in the laws of England is good as against that title/ & the bier shall never be put to answer to that title. Also some say that upon the common titles that be made daily in such case that if he fall to poverty that hath the title he is without remedy/ for they be so made that at the common law there is no remedy for them/ & if he take a suit in the spiritual court may men say that a prohibition or a praemunire lieth And therefore it were good for ordinaries in such case to counsel with them that be learned in the law of the realm to have such a form devised for making of such titles/ that if need be would serve them that they be made unto/ or else let them be promoted without any title/ & to trust in god that if they serve him as they ought to do he will provide for them to have sufficient for them to live upon. And beside these cases that I have remembered before/ there be many other cases put in the said sums for the well ordering of conscience/ that is as me thinketh are not to be observed in this realm neither in law nor in conscience.  ¶ Doctor. 
Dost thou than think that there was default in them that drew the said sums & put there in such cases & such solutions that as thou thinkest hurt conscience/ rather than to give any light to it/ specially as in this realm.  ¶ Sudent. 
I think no default in them/ but I think that they were right well & charitably occupied to take so great pain & labour as they did therein for the wealth of the people & clering of their consciences/ for they have thereby given a right great light in conscience to all countries where the law Civil & the law Canon be used to temporal things. But as for the laws of this realm they knew them not ne they were not bound to know them/ & if they had known them it would little have helped for the countries that they most specially made their treatices for/ & in this country also they be right necessary & much profitable to all men for such doubts as rise in conscience in divers other manners not concerning the law of the realm. And I marvel greatly that none of them that in this realm are most bounden to do that in them is to keep the people in a right judgement & in a clearness of conscience: have done no more in time past to have the law of the realm known than they have done/ for though ignorance may sometime excuse/ yet the knowledge of the troth & the true judgement is moche better/ & sometime though ignorance excuseth in part it excuseth not in all/ & therefore me thinketh they did very well if they would yet be callers on to have that point reform as shortly as they could. And now because thou haste well satisfied my mind in many of these questions that I have made: I purpose for this time to make an end.  ¶ Doctor. 
I pray the yet show me or that thou make an end more of the cases that after thine opinion be set in divers books for clering of conscience that as thou thinkest for lack of knowing of the laws of the realm do rather blind conscience than give a light unto it/ for if it be so than surely as thou haste said it would be reform/ for I think verily the laws of the realm in many cases must in this realm be observed as well in conscience as in the judicial courts of the realm  ¶ Student. 
I will with good will show to the shortly some other questions that be made in the said sum to give the & other occasion to see therein the opinions of the said sums/ & to see ferther thereupon how the opinions & the laws of the realm do agree together. And yet beside these questions that I intend to show unto the there be many other questions in the said sums that had as great need to be more plainly declared according to the laws of the real me as those that I shall show the hereafter or as I have spoken of before/ but to the cases that I shall speak of hereafter I will show the nothing of my conceit in them/ but will leave it to other that will of charity take some further pain hereafter in that behalf.   

❧ divers questions taken out by the student of the sums called Summa rosella/ & Summa angelica/ which he thinketh necessari to be looked upon and to be seen how they stand & agree with the law of the realm. The xlv Chapitre.  
THe first question is this/ whether a custom may break a law positive Summa rosella/ titulo consuetudo. Paragrafe. 13.  
❧ The second is if a man attainted or banished be restored by the prince/ whether shall that restitution stretch to the goods Summa rosella in the title Dampnatus in principio.  
❧ Item if a man be outlawed of felony/ abjured/ or attainted/ of murder or felony or he that is an ascimus may be slain by estrangers & see like matter thereto/ Summa angelica/ in the title Ascismus. Para. 2.  
❧ This question is somewhat answered to in a new addition as appeareth before in the xli Chapitre.  
❧ Item whether the master shallbe bound by the act or offence of his servant or officer Summa angelica in the title dominus. Para. 4.  
❧ This question is answered to in a new Addition/ as appeareth before in the xlii Chapitre.  
❧ Item whether a villain may give away his goods/ Summa angelica/ in the title donacio prima. Para. 9  
❧ This question is answered to in a new Addition as appeareth before in the xliii Chapitre.  
❧ Iten whether an Abbot may give. &c. Summa angelica/ in the title Donatio .1. Para. 10. &. 39  
❧ Item whether a woman covert may give away any good/ & it is answered/ Summa angelica/ in the title donatio .1. paragraph .11. that she may not without she have goods beside her dowry but only in alms.  
❧ Item if a man do treason whether his gift of goods after before atteyndre be good/ Summa angelica/ In the title donacio .1. Para. 12. & it seemeth there nay/ & look Summa angelica/ in the title alienacio. paragraph .24.  
❧ Item if a man wittingly make a contract between two kinnesfolke or other that may not lawfully marry together whether he hath forfeth his goods/ Summa angelica/ in the title donacio .1. Paragrafe. 14.  
❧ Item whether the father may give to the son/ Summa angelica/ in the title donacio .1. Para. 19 & Summa rosella/ in the title donacio .2. Para. 42.  
❧ Item whether a man may give above. u.c.s. absque insinuacione/ Summa angelica/ in the title donatio. prima Paragrafe. 20.  
❧ Item whether a gift shallbe avoided by an ingratitude/ Summa rosella in the title denatio .1. paragraph .17. & .29. & there it is said that the gift is void by the law of nature/ and look Summa angelica/ in the title donatio prima. Para. 42. & .45.  
❧ Iten whether any gift between the husband & the wife may be good/ & it is said ye when the husband giveth it causa remaneracionis/ Summa rosella/ in the title donatio .1. paragraph .32.  
❧ Item if a man make a will & enter into religion whether he may after revoke the will & it is said that freres minours may not/ & other may/ Summa rosella/ in the title donacio prima. paragraph .35. in fine ⸫  
❧ Item if a man give another a town with all the rights that he hath in the same whether the patronage. &c. & the tithes pass/ Summa rosella/ in the title donatio prima. paragraph .56.  
❧ Item wheter all that is bought with the money of the church be the churches Summa rosella/ in the title ecclesia. 1. Paragrafe. 7.  
❧ Iten if a gift made to a monasteri may be avoided by that the giver hath children after the gift. Summa angelica in the title donatio .1. Para. 43.  
❧ Iten if a man buy a thing under the half price/ whether he be bound by the law to restore. &c. Summa rosella/ in the title emptio & venditio. Para. 6.  
❧ Iten whether a common thief vel cōmunꝭ depopulator agrorum may abjure/ Summa rosella/ in the title emunitas .2. in principio. Et habetur ibi in fine qd licet leges excipiant plures personas tum per ius canonicum legibus derogatum est.  
❧ Iten whether a man shall take the church for great enormous offences that is not murder nor felony. Summa rosella/ in the title Emunitas .2. paragraph .3. & .11.  
❧ Item if a man take one in the high way & draw him out & there beateth him/ whether he shall have punishment that is ordained for them that strike one in the high way/ Summa rosella in the title emuntas .2. paragraph .6.  
Iten whether he that taketh the church may after for that offence be judged to death/ Summa rosella/ in the title Emunitas .2. paragraph .8.  
❧ Iten whether the bishops palace be sentuary. Summa rosella/ in the title emunitas .2. Para. 24.  
❧ Iten whether the dignity of a bishop or priesthood discharged bondage/ Summa rosella/ in the title episcopus/ in principio.  
❧ Iten whether a clerk is bound to pay any impositions or tallages for his patrimoney or otherwise. Summa rosella/ in the title excommunicatio. 1. division octava. Para. 4. & .5. & .6. & division nona Paragrafe .1.  
❧ Item if it were ordained by statute that if a man sell. &c. he shall give to the king 11. d. whether a clerk be bound to give it if he sell of his prebend/ Summa rosella/ in the title excommunicatio. 1. division no na. paragraph .3  
❧ Item if it be ordained by statute that there shall not be laid upon a dead person but such a certain cloth/ or thus many tapers or candles/ whether the statute be good & it is left for a question. Summa rosella/ in the title excommunicatio. 1. division .18. Para. 8. in fine.  
❧ Item if a man make a lease of a mill for term of years and it is agreed that the loss shall grind the lessor tolle fire during the term/ after the lessor is made an Earl or a Duke & hath greater household than before/ whether the less be bound thereto. &c. Summa rosella/ in the title familia. paragraph .5.  
❧ Item if a master will not pay his servants wages that hath served him faith fully whether that the servant may take secretly as much goods of the masters &c. & if he do whether he be bound to restitution/ Summa rosella/ in the title familia Paragrafe .6.  
❧ Iten things immovable of the church may not be given/ Summa rosella/ in the title of odun. Para. 1. & se there in principio what feodum is.  
❧ Iten whether the sons bastards & the sons lawfully begotten shall inherit together/ Summa rosella/ in the title filius. paragraph .1.  
❧ Iten whether father & mother may succeed to their bastards/ Summa rosella/ in the title filius. paragraph .4.  
❧ Item whether the father may leave any of his goods to his bastard/ Summa rosella/ in the title filius. Paragra. 5. & Summa rosella/ in the title societas. Pagrafe .23.  
❧ Item whether the offence of the father shall hurt the son in temporal things/ Summa rosella/ in the title filius. paragraph .10.  
❧ Iten if a man give all his lands & goods to his children/ whether a bastard shall have any part/ Summa rosella/ in the title filius. paragraph .22.  
❧ Item to whom treasure sound belongeth/ Summa rosella/ in the title furtum. Para. 11.  
❧ Iten if a dear or other wild beast that is so sore hurt that he may be taken cometh in to another man's ground whether it be his that oweth the ground or his that struck him/ Summa rosella/ in the title furtum. Para. 13.  
❧ Iten whether thiefte be in a little thing as well as in a great thing/ Summa rosella/ in the title furtum. Para. 18.  
❧ Iten what pain a thief shall have/ Summa rosella/ in the title furtum. Para. 22.  
❧ Iten the goods of dead men go to the heirs & that of dampened men. s. de terris Summa rosella/ in the title hereditas. paragraph .1.  
❧ Iten whether a man shallbe said guilty of murder by commandment counsel or assent/ Summa rosella in the title homicidium .2. per totum/ & like matter is homicidium .4. in principio and divers other cases.  
❧ Iten a man maketh a privy contract with a woman & after hath a child by her/ & after married another woman & hath a child she not knowing of the first contract which of the children shallbe his heir/ Summa rosella/ in the title Illegitimus. paragraph .3.  
❧ Iten whether the Pope may legitimate one to temporal things & to succeed/ Summa rosella/ in the title Illegittimus Paragrafe .25.  
❧ Iten if goods be found that were left of the owner as forsaken who hath right to them/ Summa rosella/ in the title inventa. paragraph .2. And look Summa rosella/ in the title furtum. paragraph .17. And thus I make an end of these questions/ & because thou desyredest me in the xxxi chapiter to show the somewhat where ignorance excuseth in the law of the realm and where not/ I will answer somewhat to thy question & so commit the to god.   

☞ Where ignorance of the law excuseth in the laws England & where not. The xlvi Chapitre.  STudent. 
Ignorance of the law though it be invincible doth not excuse as to the law but in few cases/ for every man is bound at his peril to take knowledge what the law of the realm is as well the law made by statute as the common law/ but ignorance of the deed which may be called the ignorance of the troth of the deed may excuse in many cases.  ¶ doctor. 
I put case that a statute penal be made & it is enacted that the statute shallbe proclaimed before such a day in every shire/ & it is not proclaimed before the day/ & after the day a man offendeth against the statute shall he run in the penalty.  ¶ Student. 
I think ye/ if there be no further words in the statute to help him/ that is to say/ that if the proclamation be not made that no man shall be bound by the statute/ and the cause is this/ there is no statute made in this realm but by the assent of the lords spiritual & temporal & of all the commons/ that is to say/ by the knights of the shire citizens/ & burgesses that be chosen by assent of the commons/ which in the parliament represent the estate of the hole commons. And every statute there made is of as strong effect in the law as if all the commons were there present personally at the making thereof/ & like as there needed no proclamation if all were there present in their own person/ so the law presumeth/ there needeth no proclamation when it is made by their authority/ & than when it is enacted that it shallbe proclaimed. &c. that is but of the favour of the makers of the statute & not of necessity/ and it can not therefore be taken that their intent was that it should be void if it were not proclaimed. Nevertheless some be of opinion that if a man before the day appointed for the proclamation offend the statute that he should not in that case be punished/ for they say that the intent of the makers of the statute shallbe taken to be that none should be punished before that day/ which is a doubt to some other/ but admit it be as they say that he shallbe excused/ yet he is not excused by the ignorance of the law/ but by cause the intent of the makers excused him.  ¶ doctor. 
It is enacted in the seven. year of king richard the second the vi. chapiter that every sheriff shall proclaim the statute of Wynchestre three times every year in every market town to the intent that offenders shall not be excused by ignorance/ & it seemeth by those words that if no proclamation be made that the offender may be excused by ignorance  ¶ Student. 
Some take the intent of that statute to be that the people by that proclamation should have knowledge of the statute of Winchestre to the intent that the forfeiture therein may be taken as well in conscience as in law/ & some take the statute to be of such effect as thou speakest of/ that is to say/ that no forfeiture should grow upon the statute of Wynchestre against them that were ignorant but proclamation were made according to the said statute of Richard. And if it be so taken than the statute of Wynchestre is of small effect against most part of the people: for certain it is that the said proclamation is not made/ but admit it be as they say/ than they that be ignorant be excused by the said particular estature specially made in that case & not by the general rules of the law/ & sometime in divers statutes penalles they that be ignorant be excused by the self statute as it is upon the statute of richard the ii the xiii year/ the second statute & the last chapiter where it is enacted that if any person take a benefice by provision that he shallbe banished the realm & forfeit all his goods/ & that if he be in the realm he avoid within vi weeks after he hath accepted it & that none shall receive him that is so banished after the said vi weeks upon like forfeiture/ if he have knowledge/ & so he that hath no knowledge is excused by the express words of the statute. And in likewise he that offendeth against Magna carta is not excommenged but he have knowledge that it is prohibit that he doth. For they be only excommenged by the sentence called (Sententia lata super cartas) that doth it wilfully or that doth it by ignorance/ & correct not the self within xu days after they have warning. And sometime the that be ignorant of a statute be excused fro the penalty of statute because it shallbe taken that the intent of the makers of the statute was that none shallbe bound but they that have knowledge/ but that any man should be discharged in the law by ignorance of the law only for that he is ignorant. I know few causes except it might be applied to infants that be in their infancy & within years of discretion/ for if ignorance of the law should excuse in the law many offenders would pretend ignorance.  ¶ Doctor. 
Shall an infant that hath discretion & knoweth good fro evil be punished by a penal statute that he is ignorant in.  ¶ Student. 
If the statute be that for the offence he should have corporal pain I think he shallbe excused & have no corporal pain/ but I suppose that that is not for the ignorance/ for though he knew the statute & wittigly offended/ yet I thick he shall have no corporal pain as where he pleeded I ointenauncie by deed that is found against him/ or if he pied a record in assize & faileth of it at his day/ but that is because the law presumeth that it was not the intent of the makers of the statute that he should have that punishment/ but if he be of years of discretion to know good fro evil whether he shall then forfeit the penalty of a penal statute it is more doubt/ for it is commonly holden that if an infaunt had not been excepted in the statute of foriugement that the foriugement should have bound him/ & so shall his cesser & his levienge of a cross against the stat/ or if he be a garden of a prison & suffer a prisoner escape he shall pay the derte because the statutes be general & if he should by the statutes be bound within age like reason will that he may by a statute penal liese his goods.  ¶ Doctor. 
If an infant do a murder or a felony at such years as he hath discretion to know the law/ shall he not have the punishment of the law as one of full age.  ¶ Student. 
I think yes/ but that is by an old maxim of the law for eschewing of murders & felonies/ & so it is of a trespass/ but these cases run not upon the ground of ignorance/ but with what acre infant's shallbe punisshable or not punisshable/ for the tenderness of their age though they be not ignorance.  ¶ doctor. 
Be not yet knights & noble men that are bound most properly to set their study to acts of chivalry for defence of the realm. And husband men that must use tillage & husbandry for the susteynaunce of the commonalty/ & that may not by reason of their labour put themself to know the law: discharged by ignorance of the law.  ¶ Student. 
No verily/ for sith all were makers of the statute: the law presumeth that all have knowledge of that that they make/ as it is said before/ & as they be bound at their peril to take knowledge of the statute that they make: so be all that come after them. And as for knights & other nobles of the realm me seemeth that they should be bound to take knowledge of the law as well as any other within the realm except them that give themself to the study & exercise of the law & except spiritual judges that in many cases be bound to take knowledge of the law of the realm as is said before in the xxv chapiter. For though they be bound to acts of chyvalry for defence of the realm/ yet they be bound also to the acts of justice/ & that as it seemeth more than other be by reason of their great possessions & authority. And for the well ordering of they tenants/ servants & neighbours that many times have need of their help/ & also because they be oft called to be of kings counsel & to the general counsels of the realm/ where their counsel is right expedient & necessary for the common wealth/ & therefore if the noble men of this realm would see their children brought up in such manner that they should have learning & knowledge more than they have commonly used to have in time past/ specially of the grounds & principles of the law of the realm wherein they be inherit/ though they had not the high cunning of the hole body of the law/ but after such manner as master Fortescue in in his book that he intitelleth the book (de laudibus legum Anglie) avertisith the prince to have knowledge of the laws of his realm/ I suppose it would be a great help hereafter to the ministration of justice in this relame. A great surely for themself & a right great gladness to all the people for certain it is the more part of the people would more gladly here that their rulers & governors intended to order them with wisdom & justice than with power & great retynues. But ignorance of the deed many times excuseth in the laws of England. And I shall shortly touch some cases thereof to show where it shall excuse and wbere it shall not excuse/ & than the reder may add to it after his pleasure and as he shall think to be convenient.   

☞ Certain cases & grounds where ignorance of the deed excuseth in the laws of England & where not. The xlvii Chapitre.  STudent. 
If a man buy a horse in open market of him that in right hath no property in him not knowing but that he hath right/ he hath good title and right to the horse/ and that ignorance shall excuse him. But if he had bought him out of open market/ or if he had known that the seller had no right/ the buying in open market had not excused him Also if a man retain another man's servant not knowing that he is retained with him/ that ignorance excuseth him both for the offence that was at the common law against the maxim that prohibited such retaining of another man's servant. And also against the statute of xxiii of Edward the iii whereby it is ꝓhibite upon pain of inprysonement that none shall retain no servant that departeth within his term without licence or reasonable cause/ for it hath been alway taken that the intent of the makers of the said statute was that they that were ignorant of the first reteynoure should not run in any penalty of the statute. And the same law is of him that retaineth one that is ward to another/ not knowing that he is his ward. And if homage be due & the tenant after that the homage is due maketh a feoffment/ & after the lord not knowing of the feoffment distreyneth for the homage in that case that ignorance shall excuse him of damages in a Replevin/ though he can not avow for the homage but if he had known of the feoffment he should have yielded damages for the wrongful taking. Also if a man be bound in an obligation that he shall repair the houses of him that he is bound to by such a certain time as ofre as need shall require/ & after the houses have need to be repaired but he that is bound knoweth it not/ that ignorance shall not excuse him for he hath bound himself to it/ & so he must take knowledge at his peril/ but if the condition had been that should repair such houses as he to whom he was bound should assign/ & after he assigneth certain houses to be repaired/ but he that is bound hath no knowledge of that assignment/ that ignorance shall excuse him in the law/ for he hath not bound himself to no reparations in certain/ but to such as the party will assign/ and if he none assign he is bound to none/ & therefore sith he that should make the assignment is privy to the deed he is bound to give notice of his own assignment/ but if the assignment had been appointed to a stranger than the oblegour must have taken knowledge of the assignment at his peril. Also if a man buy lands whereunto another hath title which the bier knoweth not/ that ignorance excuseth him not in the law no more than it doth of goods. Also if a servant come with his masters horse to a town that by custom may attach goods for det/ & upon a plaint against the servant: an officer of the town by information of the party attacheth the masters horse thinking that it were the servants horse/ that ignorance excuseth him not/ for when a man will do an act as to enter in to land/ seize goods/ take a distress or such other/ he must by the law at his peril see that that he doth be lawfully done as in the case before rehearsed. And in likewise if a sheriff by a replevin deliver other beasts than were distreyned/ though the party that distreyned showed him they were the same beasts/ yet an action of trespass lieth against him/ & ignorance shall not excuse him for he shallbe compelled by the law as all officers commonly be to execute the kings writ at his peril according to the tenor of it & to see that the act that he doth be lawfully done. But otherwise it is after some men if upon a somons in a Praecipe quod reddat the sheriff by information of the demandant somoneth the tenant in another man's land thinking it for the tenants land there they say he shallbe excused/ for in that case he doth not sea see the land ne take possession in the land/ but only doth summon the tenant upon the land/ & the writ commandeth him not that he shall summon the tenant upon his own land but generally that he shall summon him & nameth not in what land & than by an old maxim in the law it is taken that he shall summon him upon the land in demand/ & therefore though he mistake the land & ignorant of it/ yet if the demandant inform him that that is the land that he demandeth that sufficeth to the sheriff as to his entry for the so moaning as they say: though it be not the tenants land. And here I make an end of these questions for this tyme.  ¶ Doctor. 
I pray the yet or we depart take a little more pain at my desire.  ¶ Student. 
what is that.  ¶ Doctor. 
That thou wouldest show me thy mind in divers cases of the law of the realm/ which as me seemeth stand not so clearly with conscience as they should do. And therefore I would gladly hear thy conceit therein how they may stand with conscience.  ¶ Student. 
Put the cases & I shall with good will say as I think to them.   

¶ Addition. ☞ The first question of the Doctor. How the law of England may be said reasonable that prohibiteth them that be arreyned upon an Indictment of felony or murder to have council. The xlviii Chapitre.  STudent. 
Me thinketh that the law in that point is very good & indifferent taking the law therein as it is  ¶ doctor. 
why what is the law in this point.  ¶ Student. 
The law is as thou sayest that he shall have no council/ but than the law is further/ that in all things that pertain to the order of pleading: the judges shall so instruct him & so order him that he shall run into more jeopardy by his mispleading/ as if he will plead that he never knew the man that was slain/ or that he never had a penny worth of the goods/ that is supposed that he should steel in these cases the judges are bound in conscience to inform him that he must take the general issue & plead that he is not guilty/ for thouh they be set to be 〈◊〉 between the king & the party as to the party as to the principal matter as they be in all other matters: yet they be 〈◊〉 this case to see that the party have no hurt in form of pleading in such induces as he shall show to be the truth of the matter/ & that is a great favour of the law/ for in appel though the justices of favour will most commonly help fourth the party & sometime his counsel also in the form of pleading as they do also many times in common pleas/ yet they might in the cases if they would bid the party & his counsel plead at their peril. But they may not do so with conscience upon eno●●ementes as me seemeth/ for it were a great unreasonableness in the law if it should prohibit him that standeth in jeopardy of his life that he should have no counsel/ & than to drive him to plead after the straight rules & formalities of the law that he knoweth not.  ¶ doctor. 
But what if he be known for a common offender/ or that the judges know by examination or by an evident presumption that he is guilty & he asketh sent wary/ or pleadeth misnomer or hath some record to plead that he can not plead after the form. May not the judges in such cases bid him plead at his peril.  ¶ Student. 
I suppose that they may not/ for though he be a common offender or that he be guilty/ yet he ought to have that the law giveth him/ & that is that he shall have the effect of his pleas & of his matters entered after the forume of the law/ and also sometime a man by examination & by witness may appear guilty that is not guilty. And in likewise there may be a vehement suspicion that he is guilty & that yet he is not guilty/ & therefore for such susspicious or vehement presumpcious me thinketh a man may not with conscience be put fro that he ought to have by the law: ne yet all though the judges knew it of their own knowledge. But if it were in appeal I suppose that the judges might do therein as they should think best to be done in conscience/ for there is no law that bindeth them to instruct him/ but as they do commonly the parties of favour in all other cases but they may if they will bid them plead at their peril by advise of their council/ & if the victual be poor & have no council: the court must assign him council if he ask it as they must do in all other pleas/ & that me thinketh they are bound to do in conscience though the appeal were never so great an offender/ and though the judges knew never so certainly that he were guilty/ for the law bindeth them to do it. And some thinketh that there is great diversity between an indict & an appeal. And the reason why the law prohibiteth not council in appeal as it doth in an indictment I suppose is this. There is no appel brought but that of common presumption the appellaunt hath great malice against the appeal. As when the appeal is brought by the wife of the death of her husband/ or by the son of the death of his father/ or that an appeal of robbery is brought for steling of goods. And therefore if the judges should in those cases show themself to instruct the apples: the appellauntes would grudge & think them partial/ & therefore as well for the indempnitie of the court as of the appeal in case that he be not guilty the law suffereth the appeal to have council/ but when that a man is indicted at the kings suit/ the king intendeth nothing but justice with favour & that is to the rest & quietness of his faithful subjects/ & to pull away misdoers among them charitably/ & therefore he will be contented that his justices shall help forth the offenders according to the truth as fe●te as reason & justice may sufice. And as the king will be contented therein: it is to presume that his counsel will be contented. And so there is no danger thereby neither to the cou●● ne to the party/ & as I suppose for this treason it bega that they should have no council upon indictments & that hath so long continued that it is now grow into a custom & into a maxi of the law that they shall none have.  ¶ doctor. 
But if the judges know of their own knowledge that the induer is guilty/ & than he pleadeth misnomer or a record that he was autre ●oytz arraynded & acquyt of the same murder or felony/ & the judges of their own knowledge know that the plea is untrue: may they not than bid him plead at his peril.  ¶ Student. 
I think yes: but if they know of their own knowledge that he were guilty of the murder or felony: but that the plea was untrue they knew not but by conjecture or information I think they might not then bid him plead at his peril.   

☞ The second question of the doctor whether the warranty of the ionger brother that is taken as heir because it is not known but that the eldest brother is dead/ be in conscience a bar unto the elder brother as it is in the law ⸫ The xlix Chapitre.  doctor. 
A man seized of lands in see hath issue two sons the eldest son goth beyond the see & because a common voice is that he is dead the ionger brother is taken for heir/ the father dieth the ionger brother entereth as heir & alieneth the land with a warranty & dieth without any heir of his body/ & after the elder brother cometh again & claimeth the land as heir to his father/ whether shall he be barred by that warranty in conscience as he is in the law.  ¶ Student. 
It is an maxim in the law that the eldest brother shall in that case be barred. And that maxim is taken to be of as strong effect in the law as if it were ordained by statute to be a bar. And it is as old a law that such a warantye shall bar the heir as it is that the inheritance of the father shall only descend to the eldest son. And sith the law is so why should not than conscience follow the law as well as it doth in that point that the eldest son shall have the land.  ¶ Doctor. 
For there appeareth no reasonable cause whereupon that maxim might have a lawful beginning/ for what reason is it that the warranty of an ancestor that hath no right to the land should bar him that hath right. And if it were ordained by statute that one man should have another man's land & no cause is expressed why he should have it/ in that case though he might hold the land by force of that statute/ yet he could not hold it in conscience without there were a cause why he should have it & these cases be not like as me seemeth to the forfeiture of goods by an outlawrye/ for I will agree for this time that that forfeiture standeth with conscience because it is ordained for ministration of justice/ but I can not perceive any such cause here: & therefore me thinketh that this case is like to the maxim that was at the common law of wreck of the see/ that is to say that if a man's goods had been wrecked upon the see that the goods should have been immediately forfeited to the king. And it is held by all doctor's that that law is against conscience except certain cases that were to long to rehearse now. And it was ordained by the statute at Westmynster the first that if a dog or cat come alive to the sand that the owner if he prove the goods within a year & a day to be his shall have them whereby the said law of wrecks of the see is made more sufferable than it was before/ & some thinketh in this case that this warranty is no bar in conscience though it be a bar in the law.  ¶ Student. 
I pray the keep that case of wreck of the see in thy remembrance & put it hereafter as one of thy questions & thereupon show me thy further mind therein/ & I shall with good will show the mind/ and as to this case that we be in now me thinketh the maxim whereby the warranty shallbe a bar is good & reasonable/ for it seemeth not against reason that a man shallbe bound as to temporal things by the act of his ancestor to whom he is heir/ for like as by the law it is ordained that he shall have advantage by the same ancestor & have all his lands by dissent if he have any right so it seemeth that it is not unreasonable though the law for the privity of blood that is between them suffer him to have a disadvantage by the same ancestor/ but if the maxim were that if any of his ancestors' though he were not heir to him made such a warranty that it should be a bar I think that maxim were against conscience/ for in that case there were no ground nor consideration to prove how the said maxim should have a lawful beginning wherefore it were to be taken as a maxim against the law of reason/ but me thinketh it is otherwise in this case for the reason that I have made before.  ¶ Doctor. 
If the father bind him & his heirs to the payment of a debt & die/ in that case the son shall not be bound to pay the det whiles he have asses by descent fro his father. And so I would agree that if this man had asses by descent fro the ancestor that made the warranty: that he should have be barred/ but else me thinketh it should stand hardly with conscience that it should be a bar.  ¶ Student. 
In that case of the obligation the law is as thou sayest/ & the cause is for that the maxim of the law in that case is none other but that he shallbe charged if he have asses by discente/ but if the maxyme had been general that the heir should be bounden in that case without any asses/ or if it were ordained by statute that it should be so/ I think that both the maxim & the statute should well stand with conscience. And like law is where a man is vouched as heir/ he may enter as he that hath nothing by descent/ but where he claimeth the land in his own right there the warranty of his ancestor shallbe a bar to him though he have no assess fro the same auncestre/ & though it be said in Ezechiel the xviii chapiter. That the son shall not bear the wickedness of the father/ that is understand spiritually: But as to temporal goods the opinion of doctors is/ that the son sometime may bear the offence of his father.  ¶ Doctor. 
Now that I have heard thy mind in this case I will take advisement therein till a better leisure. And will now proceed to another question.  ¶ Student. 
I pray the do as thou saist & I shall with good will make answer thereto as well as I can.   

☞ The third question of the doctor if a man procure a collateral warranty to extinct a right that he knoweth another man hath to land/ whether it be a bar in conscience as it is in the law or not ⸫ The l Chapitre.  doctor. 
A man is deceased of certain land the disseasoure selleth the land. &c. the alien knowing of the disseason obtaineth a release with a warantye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye. The ancestor colaterall dieth after whose death the warranty descendeth upon the disseasye/ whether may the alien in that case hold the land in conscience as he may by the law.  ¶ Student. 
Sith the warranty is descended upon him whereby he is barred in the law/ me thinketh that he shall also be barred in conscience/ and that this case is like to the case in the next chapiter before/ wherein I have said that as me thinketh it is a bar in conscience.  ¶ Doctor. 
Though it might be taken for a bar in conscience in that case/ yet me thinketh in this case it can not/ for in that case the longer brother entered as heir knowing none other but that he was heir of right/ & after when he sold the land the bier knew not but that he that sold it had good right to sell it/ & so he was ignorant of the title of the eldest brother and that ignorance came by the default & absence of himself that was the elder brother. But in this case as well the bier as he that made the colaterall warranty knew the right of the disseasye & did that they could to extinct that right/ & so they did as they would not should have be done to them/ & so it seemeth that he that hath the land may not with conscience keep it.  ¶ Student. 
Though it be as thou saist that all they offended in opteyning of the said colaterall warranty/ yet such offence is not to be considered in the law but it be in very special cases/ for if such allegiance should be accepted in the law/ relesses & other writings should be of small effect/ & upon every light surmise all writings might come in trial whether they were made with conscience or not. Therefore to avoid that inconvenience the law will drive the party to answer only whether it be his deed or not/ & not whether the deed were made with conscience or against conscience/ & though the party may be at a mischief thereby/ yet the law will rather suffer that mischief than the said inconvenience. And like law is if a woman covert for dread of her husband & by compulsion of him levy a fine/ yet the woman after her husbands death shall not be admitted to show that matter in avoiding of the fine for the inconvenience that might follow thereupon. And after the opinion of many men there is no remedy in these cases in the chancery for they say that were the common law in cases concerning inheritance putteth the party fro any averment for eschewing of an inconvenience that might follow of it among the people/ that if the same inconvenience should follow in the chancery if the same matter might be pleaded there that no sub pena should lie in such cases/ & so it is in the cases before rehearsed. For as much vexation/ delay/ costs/ & expenses might grow to the party if he should be put to answer to such avermentes in the chancery as if he were put to answer to them at the common law & therefore they think that no sub pena lieth in the said cases ne in other like unto them. Nevertheless I do not take it that their opinion is that he that bought the land in this case may with good conscience hold the land because he shall not be compelled by no law to restore it/ but that he is in conscience & by the law of reason bound to restore it or otherwise to recompense the party so as he shallbe contented & I suppose verily it is so if he will keep his soul out of peril & danger. And after some men to these cases may be resembled the case of a fine with none claim that is remember before in the xiiii chapiter of this book/ where a man knowing another to have right to certain land causeth a fine to be levied thereof with proclamation and the other suffereth five years to pass without claim in that case he hath no remedy neither by common law nor by sub pena/ & that yet he that levied the fine is bound to restore the land in conscience. And me thinketh I could right well agree that it should be so in this case/ & that specially/ by cause the party himself knoweth perfectly that the said colaterall warranty was obtained by coven and against conscience.   

☞ The fourth question of the doctor is of wreck of the see ⸫ The li Chapitre.  Doctor. 
I pray the let me now here thy mind how the law of England concerning goods that be wrecked upon the see may stand with conscience for I am in great doubt of it.  ¶ Student. 
I pray the let me first hear thine opinion what thou thinkest therein.  ¶ doctor. 
The statute of Westmynstre the first/ that speaketh of wreck is/ that if any man dog or cat come alive to the land out of the ship or barge/ that it shall not be judged for wreck so that if the party to whom the goods belong come within a year & a day & prove them to be his that he shall have them or else that they shall remain to the king. And me thinketh that the said statute standeth not with conscience/ for there is no lawful cause why the party ought to forfeit his goods ne that the king or lords ought to have them for there is no cause of forfeiture in the party but rather a cause of sorrow & heaviness. And so that law seemeth to add sorrow upon sorrow 〈◊〉 therefore doctors hold commonly that he that hath such goods is bound to restitution & that no custom may help for they say it is against the commandment of god. Le xix Where it is commanded that a man shall love his neighbour as himself/ & that they say he doth not that taketh away his neighbours goods/ but they agree that if any man have cost & labour for the saving of such goods wrecked specially such goods as would perish if they lay still in the water/ as sugar/ paper/ salt/ meal/ and such other/ that he ought to be allowed for his costs and labour but he must restore the goods except he could not save them without putting his life in jeopardy for them/ & than if he put his life in such jeopardy & the owner by common presumption had had no way to have saved them than it is most commonly holden that he may keep the goods in conscience/ but of other goods that would not so lightly perish/ but that the owner might of common presumption save them himself or that might be saved without any peril of life/ the takers of them be bound to restitution to the owner whether he come within the year or after the year. And me thinket this case is somewhat like to a case that I shall put/ if there were a law & a custom in this realm or if it were ordained by statute that if any alien came through the realm in pilgrimage & died/ that all his goods should be forfeit/ that law should be against conscience for there is no cause reasonable why the said goods should be forfeit. And no more me thinketh there is of wreck.  ¶ Student. 
There be divers cases where a man shall lose his goods & no default in him/ as where beasts stray away fro a man & they be taken up & proclaimed & the owner hath not herd of them within the year & the day/ though he made sufficient diligence to have herd of them/ yet the goods be forfeit & no default in him/ & so it is where a man killeth another with the sword of I. at style the sword shallbe forfeit as a deodande & yet no default is in the owner/ & so me thinketh it may be in this case/ & that sith the common law before the said statute was that the goods wrecked upon the see shallbe forfeit to the king that they be also forfeit now after the statute except they be saved by following the statute/ for the law must needs reduce the property of all goods to some man & when the goods be wrecked it seemeth the property is in no man but admit that the property remain still in the owner than if the owner percase would never claim than it should not be known who ought to taken them: & so might they be destroyed & no profit come of them/ wherefore me thinketh it reasonable that the law shall appoint who ought to have them/ & that hath the law appointed to the king as sovereign & head over the people.  ¶ doctor. 
In the cases that thou haste put before of the stray & deodand there be considerations why they be forfeit/ but it is not so here/ & me thinketh that in this case it were not unreasonable that the law should suffer any man that would take them to take & keep them to the use of the owner/ saving his reasonable expenses/ & this me thinketh were more reasonable law than to pull the property out of the owner with out cause. But if a man in the see cast his goods out of the ship as forsaken: there doctors hold that every man may take them lawfully that will/ but otherwise it is as they say if he throw them out for fere that they should overcharge the ship.  ¶ Student. 
There is no such law in this realm of goods forsaken/ for though a man waive the possession of his goods & saith he forsaketh than/ yet by the law of the realm the property remaineth still in him/ & he may seize them after when he will/ & if any man in the mean time put the goods in safeguard so the use of the owner: I think he doth lawfully & that he shallbe allowed for his reasonable expenses in that behalf as he shallbe of goods found/ but he shall have no property in them no more than in goods found. And I would agree that if a man prescribe that if he find any goods within his manner that he should have them as his own: that that prescription were void/ for there is no consideration how that pnscription might have a lawful beginning/ but in this case me thinketh there is  ¶ Doctor. 
what is that.  ¶ Student. 
It is this. The king by the old custom of the realm as lord of the narrow see is bound as it is said to scour the see of pirates & petyt robbers of the see. And so it is red of the noble king saint Edgare: that he would twice in the year scour the see of such pyrattes/ but I mean not thereby that the king is bound to conduct his merchants upon the see against all outward enemies: but that he is bound only to put away such pyratꝭ & petit robbers And because that can not be done without great charge it is not unreasonable if he have such goods as be wrecked upon the see toward that charge.  ¶ Doctor. 
Upon that reason I will take a respite till another tyme.   

☞ The .v. question of the doctor whether it stand with conscience to prohibit a jury of meat & drink till they be agreed. The lii Chapitre.  Doctor. 
If one of the xii men of an inquest know the very troth of his own knowledge & instructeth his fellows thereof: & they will in no wise give credence to him/ and thereupon because meat and drink is prohibit them: he is driven to that point that either he must assent to them and give the verdict against his own knowledge & against his own conscience/ or die for lack of meat/ how may that law than stand with conscience that will drive an innocent to that extremity to be either forsworn or to be famisshed & die for lack of meat.  ¶ Student 
I take not the law of the realm to be that jury after they be sworn may not eat nor drink till they be agreed of the verdict: but troth it is there is a maxim & an old custom in the law that they shall not ease nor drink after they be sworn till they have given their verdict without the assent & ●●tece of the justice/ & that is ordained by the law for the eschewing of divers inconveniences that might follow thereupon/ & that specially if they should eat or drink at the costs of the parties/ & therefore if they do the contrary: it may be said in arrest of the judgement/ but with the assent of the justices they may both ere & drink as it any of the jurors fall sick before they be agreed of their verdict to sore that he may not common of the verdict/ than by the assent of the justices he may have meat & drink & also such other things as be necessary for him/ and his fellows also at their own costs or at the indifferent costs of the parties if they so agree by the assent of the justices may both eat & drink & therefore if the case hap that thou now speakest of & that the jury can in no wise agree in their verdict/ & that appeareth to the justices by examination: the justices may in that case suffer them have both meat & drink for a time to see wheter they will agree/ & if they will in no wise agree: I think that than justices may set such order in the matter as shall seem to them by their discretion to stand with reason & conscience by awarding of a new inquest & by setting sins upon them that they shall find in default or otherwise as they shall think best by their discretion like as they may do if one of the jury die before verdict or if any other like casualties fall in that behalf But what the justices ought to do in this case that thou haste put by their discretion: I will not tret of at this tyme.   

☞ The vi question of the Doctor whether the colours that be given at the common law in assizes/ actions of trespass/ & divers other actions stand with conscience because they be most commonly feigned & be not true. The liii Chapitre.  Doctor. 
I pray the let me here thy mind to what intent such colours be given/ & sith they be commonly untrue: how they may stand with conscience  ¶ Student. 
The cause why such colours be given is this/ there is a maxim and a ground in the law of England: that if the defendant or tenant in any action plead a plea that amounteth to the general issue that he shallbe compelled to take the general issue/ & if he will not/ he shallbe condemned for lack of answer/ & the general issue in assize is/ that he that is named the disseasoure hath done no wrong nor no disseason. And in a writ of entre in the nature of assize the general issue is that he deceased him not/ & in an action of trespass that he is not guilty & so every action hath his general issue assigned by the law/ & the tenant must of necessity either take that general issue/ or plead some plea in abatement of the writ/ to the jurisdiction/ to the person or else some bar or some matter by way of conclusion. And therefore if johan at style infeffe Henry heart of land & a stranger bringeth an assize against the said Henry heart for that land whose title he knoweth not. In this case if he should be compelled to plead to the point of the assize/ that is to say/ that he hath done no wrong ne no disseason the matter should be put in the mouths of xii lay men which be not learned in the law/ & therefore better it is that the law be so ordered that it be put in the determination of the judges then of lay men. And if the said Henry heart in the case before rehearsed would plead in bar of the assize that johan at style was seized & infessed him/ byforce whereof he entered & asked judgement if that assize should lie against him that plea were not good for it amounteth but to the general issue & therefore he shallbe compelled to take the general issue or else the assize shallbe awarded against him for lack of answer. And therefore to the intent the matter may be showed & pleaded before the judges rather than before jury/ the tenants use to give the plaintiff a colour/ that is to say a colour of action whereby it shall appear that it were hurtful to the tenant to put that matter that he pleadeth to the judgement of xii men/ & the most eomon colour that is used in such case is this/ when he hath pleaded that such a man enfeffed him as before appeareth it is used that he shall plead ferther & say that the plaintiff claming in by a colour of a deed of feoffment made by the said feffor before the feoffment made to him/ where nought passed by the deed entered/ upon whom he entered & asketh judgement if the assiselye against him. In this case because it appeareth to be a doubt to unlearned men whether the land pass by the deed without livery or not/ therefore the law suffereth the tenant to have that special matter to bring the matter to the determination of the judges. And in such case the judges may not put the tenant fro the plea/ for they know not as judges but that it is true/ & so if any default be it is in the tenant & not in the court. And though the truth be that there were no such deed of feoffment made to the plaintiff as the tenant pleadeth/ yet me thinketh it is no default in the tenant for he doth it to a good intent as before appeareth.  ¶ Doctor. 
If the tenant know that the feoffor made no such deed of feoffment to the plaintiff/ than there is a default in the tenant to plead it/ for he wittingly saith against the truth/ & it is holden by all doctors that every lie is an offence more or less/ for if it be of malice & to the hurt of his neighbour/ than it is called (Mendacium permiciosum) & that is deadly sin. And if it be in sport & to the hurt of no man/ nor of custom used/ ne of pleasure that he hath in dying/ than it is venial sin/ & is called in latin mendacium iocosum. And if it be to the profit of his neighbour & to the hurt of no man than it is also venial sin/ & is called in latin mendacium officiosum. And though it be the leeste of the three yet it is a venial sin & would be eschewed.  ¶ Student. 
Though the midwifes of Egipte lied when they had reserved the male children of the hebrews'/ saying to the king Pharaoh/ that the hebrews had women that were cunning in the same craft which or they came had reserved the children alive where in deed they themselves of pity & of dread of god reserved them. yet saint Jerome expoundeth the text following which saith that our lord therefore gave them houses that it is to be understand that he gave them spiritual houses & that they had therefore eternal reward/ & if they sinned by that lie all though it were but venial/ yet I can not see how they should have therefore eternal reward. And also if a man intending to slay another ask me where that man/ is it not better for me to lie & to say I can not tell where he is though I know it/ than to show where he is whereupon murder should follow.  ¶ Doctor. 
The deed that the midwifes of Egipte did in saving that children was meritorious & deserved reward everlasting (if they believed in god) & did good deeds beside as it is to presume they did/ when they for the love of god refused the death of the Innocentes/ & than though they made a lie after which was but venial sin that could not take fro them their reward/ for a venial sin doth not utterly extinct charity but letteth the fervour thereof: & therefore it may well stand with the words of saint Jerome that they had for their good deed eternal houses/ & yet the lie that they made to be a venial sin/ but nevertheless if such a lie that is of itself but venial be affirmed with an oath/ it is alway mortal if he know it befalse that he sweareth. And as to the other question it is not like to this question that we have in hand as me seemeth/ for sometime a man for eschewing of the greater evil may do a less evil/ & than the less is no offence in him/ & so it is in the case that thou hast put wherein because it is less offence to say he wotteth not where he is though he know where he is than it is to show where he is/ whereupon murder should follow/ it is therefore no sin to say he wotteth not where he is/ for every man is bound to love his neighbour & if he show in this case where he is knowing his death should follow thereupon it seemeth that he loved him not/ ne that he did not to him as he would be done to/ but in the case that we be in here/ there is no such sin eschewed/ for though the party pleaded the general issue the jury might find the troth in every thing/ & therefore in that he saith that the plaintiff clayminge in by the colour of a deed of feoffment where nought passed entered. &c. knowing that there was no such feoffment it was a lie in him & a venial sin as me thinketh. And every man is bound to suffer a deadly sin in his neighbour/ rather than a venial sin in himself.  ¶ Student. 
Though the jury upon the general issue may find the troth as thou saist/ yet it is much more dangerous to the jury to inquire of many pointis than to inquire only of one point. And for as much as our lord hath given a commandment to every man upon his neighbour/ therefore every man is bound to force as much as in him is that by him no occasion of offence come to his neyghbor. And for the same cause/ the law hath ordained divers maximꝭ & principles whereby issues in the kings court may be joined upon one point in certain as nigh as may be/ & not generalty/ lest offence might follow thereupon against god/ & a hurt also unto the jury/ wherefore it seemeth that he loveth not in his neighbour as himself ne that he doth not as he would be done to that offereth such danger to his neighbour where he may well & conveniently keep it fro him if he will follow the order of the law/ & it seemeth that he putteth himself wilfully an jeopardy that doth it/ & it is written Ecclesiastici iii Qui amat periculum in illo peribit/ that is to say/ he that loveth peril shall perish in it/ and he that putteth his neighbour in peril to offend putteth him self in the same/ & so should he do me seemeth that would wilfully take the general issue where he might conveniently have the special matter/ & furthermore it is none offence in princes & rulers to suffer contracts and byeng & selling in markets/ fairs/ though both perjure & disobeyed will follow thereupon/ because such contracts be necessary for the common wealth/ so it seemeth likewise that there is no default in the party that pleadeth such a special matter to avoid fro his neighbour the danger of perjury/ ne yet in the court though they induce him to it/ as they do sometime for the intent before rehearsed/ & in likewise some will say that if the rulers of cities & communaltyes sometime for the punishment of felons/ murderer's/ & such other offenders will to the intent they would have them to confess the troth say to them that be suspected that they be informed in such certain defaults or misdemeanours in the offenders & that they do to the intent to have them to confess the truth that though they were not so informed that yet it no offence to say they were so informed because they do it for the common wealth/ for if offenders were suffered to go unpunished the common wealth would soon decay & utterly perish.  ¶ Doctor. 
I will take advisement upon the reason in this matter till an other season & I will now ask the another question somewhat like unto this. I pray the let me here thy mind therein.  ¶ Student. 
Let me here thy question and I shall with good will say as I think therein.   

¶ Addition. ☞ The vii question of the doctor concerneth the pleading in assize whereby the tenants use sometime to plead in such manner that they shall confess no ouster ⸫ The liiii Chapitre.  doctor. 
It is commonly used as I have herd say that when the tenant in assize pleadeth that a strange our was seized & enfeoffed him & giveth the plaintive a colour in such manner as before appeareth in the liii chapiter/ that the tenant many times when he hath pleaded thus: & the plaintiff claiming in by a colour of a deed of feoffment made by the said straungeour/ where nought passed by the deed entered/ & that than they use to say ferther upon whom. A. B. entered upon whom the tenant entered/ where in deed the said. A. B. never entered/ ne haply there was never no such man. How can this pleading be excused of an untruth/ and what reasonable cause can be why such a pleading should be suffered against the truth.  ¶ Student. 
The cause why that manner of pleading is suffered is this. If the tenant by his pleading confessed an immediate entry upon the plaintive: or an immediate putting out of the plaintiff/ which in french is called an oustre/ than if the title were after found for the plaintiff: the tenant by his confession were attained of the disseason. And because it may be that though the plaintiff have good title to the land: that yet the tenant is no disseasour. Therefore the tenants use many times to plead in such manner as thou hast said before to save themself fro confessing of an oustre/ & so if there be any default it is not in the court ne in the law/ for they know not the troth therein till it be tried & me thinketh also that there is in this case right little default or none in the tenant nor in his counsel/ specially if the council know that the tenant is no dissesour. But as to that point I pray the that like as thou haste taken a respite to be advised or that thou show thy full mind in the question of a colour given in assize whereof mention is made in the said liii chapiter/ that I in likewise may have a like respite in this case till other time to be advised/ & than I shall with good will show the my full mind therein.  ¶ Doctor. 
I am content it be as thou sayest but I pray the that I may yet add another question to the two questions before rehearsed of the colours in assize & feel thy mind therein/ because that soundeth moche to the same effect that the other do (that is to say) to prove that there be divers things suffered in the law to be pleaded that be against the truth/ & I pray the let me hereafter know thy mind in all three questions/ & thou shall than with a good will know mine.  ¶ Student. 
I pray the show me the case that thou speakest of.  ¶ doctor. 
If a man steel an horse secretly in the night: It is used that there upon he shallbe endited at the kings suit/ & it is used that in that indictment it shallbe supposed that he such a day & place with force & arms/ that is to say/ with staves/ sword/ & knives. & c felonouslye steel the horse against the kings peace/ & that form must be kept in every Indytement/ though the felon had neither sword nor other weapon with him: but that he came secretly without weapon How can it therefore be excused but that therein is an untruth.  ¶ Student. 
It is not alleged in the indictment by matter in deed that he had such weapon/ for the form of an indictment is this. Inquiratur pro domino Rege si. A. tali die & Anno apud talem locum vi & armis videlicet gladus &c. talem equam talis hominis felonice cepit. &c. And than the twelve men be only charged with the effect of the bill. That is to say/ whether he be guilty of the felony or not/ & not whether he be guilty under such manner and form as the bill specifieth or not/ and so when they say (billavera) they say true as they take the effect of the bill to be. And therefore if there were false latin in the bill of Indictement: & the jury saith (billa vera) yet their verdict is true/ for their verdict stretcheth not to the troth or false heed of the latin: but to the felony/ ne to the form of the words: but to the effect of the matter/ & that is to inquire whether there were any such felony done by that person or not/ & though the bill vary from the day/ fro the year/ & also from the place where the felony was done in/ so it vary not fro the Shire that the felony was done in. And the jury saith (billa vera) they have given a true verdict/ for they are bound by their oath to give their verdict according to the effect of the bill: & not according to the form of the bill. And so is he that maketh avow bound likewise to that that by the law is the effect of his avow/ & not only to the words of his avow. As if a man avownever to eat white meat/ yet in time of extreme necessity he may eat white meat rather than die & not break his avow though he affirmed it with an oath/ for by the effect of his avow: extreme necessity was excepted: though it were not expressly excepted in the words of the avow/ and so likewise though the words of the bill be to inquire whether such a man such a day & year & in such a place did such a felony/ yet the effect of the bill is to inquire whether he did the felony within the shire or no/ & therefore the justices before whom such inditementes be taken: most commonly inform the jury that they are bound to regard the effect of the bill & not the form. And therefore there is no untruth in this case: neither in him that made the bill: ne yet in the jury as me seemeth.  ¶ Doctor. 
But if the party that ought the horse bring an action of trespass & declareth that the defendant took the horse with force & arms: where he took him without force & arms.  
How may the plaintiff there be excused of an untruth.  ¶ Student. 
And if the plaintive surmit an untruth/ what is that to the court or to the law/ for they must believe the plaintiff till that that he saith be denied by the defendant. And yet as this case is: there is no untruth in the plaintiff to say he took the horse with force & arms though he came never so secretly & without weapon/ for every trespass is in the law done with force & arms/ so that if he be attainted & found guilty of the trespass: he is at tainted of the force & arms. And sith the law adiugeth every trespass to be done with force: therefore the plaintiff saith truly that he took him with force as the law meaneth to be force. For though he took the horse as a felon: yet upon that felonouse taking: the owner may take an action of trespass & if he will for every felony is a trespass and more. And so I have showed the some part of my mind to prove that in those cases there is no untruth neither in the parties/ neither in the jury/ nor in the law. law. Nevertheless at a better leisure I will show the my mind more fully therein with good will as thou haste promised me to do in the cases of the colours of the assize & of the oustre that be before rehearsed.   

☞ The viii question of the Doctor whether the statute of xlv of Edward the third of silva cedua stand with conscience. The lu Chapitre.  Doctor. 
In the xlv year of the reign of king Edward the third/ it was enacted that a prohibition should lie where a man is empleded in the court cristien for dimes of wood of the age of. xx. year or above by the name of silva cedua/ how may that statute stand with conscience that is so directly against the liberty of the church & that is made of such things as the parliament had no authority to make any law of.  ¶ Student. 
It appeareth in the said statute that it is enacted that a prohibition should lie in that case as it had used to do before that time & if the prohibition lay by a prescription before that statute why is not than the statute good as a confirmation of that prescription.  ¶ Doctor. 
If there were such a prescription before that statute that prescription was void/ for it prohibiteth the payment of tithes of trees of the age of twenty year or above/ & paying of tithes is grounded as well upon the law of god as upon the law of reason & against the laws liet no prescription as it is holden most commonly by all men.  ¶ Student. 
That there was such a prescription before the said statute/ & that if a man before the said statute had been sued in the spiritual court for tithes of wood of the age of twenty year or above that a prohibition lay/ appeareth in the said statute/ & it can not be thought that a statute that is made by authority of the hole realm/ as well of the king & of the lords spiritual & temporal as of all the commons/ will recite a thing against the troth. And furthermore I can not see how it can be grounded by the law of god or by the law of reason that he tenth part should be paid for tithe & none other portion but that but I think that it be grounded upon the law of reason that a man should give some reasonable portion of his goods temporal to them that myninstre to him things spiritual/ for every man is bound to honour god of his proper substance/ & the giving of such portion hath not been only used among faithful people/ but also among unfaithful people as it appeareth Genesis xlvii where corn was given to the priests in Egipte the or common barns. And saint Poule in his epistles affirmeth the same in many places/ as in his first epistle to the Corinthies the ix chapiter where he saith he that worketh in the church shall eat of that that belongeth to the church. And in this epistle to the Galathes the vi chapiter he saith/ let him that is instructed in spiritual things depart of his goods to him that instructed him. And saint Luke in the ten chapiter saith that the workman is worthy to have his hire/ all which sayings may right conveniently be taken & applied to his purpose that spiritual men which minister to the people spiritual things/ aught for their ministration to have a competent living of them that they minister to. But that the x. part should be assigned for such a portion & neither more nor less. I can not perceive that that should be grounded by the law of reason nor immediately by the law of god for before the law written there was no certain portion assigned for the spiritual ministers neither the ten part nor the xii part unto the time of jacob/ for it appeareth Gene. xxviii. that jacob avowed to pay Dimes which was among the jews for the ten part/ if our lord prospered him in his journey/ & if the ten part had been his duty before that avow/ it had been in vain to have avowed it/ and so it had 〈◊〉 it had been grounded by the law of reason/ & as to that that is spoken in the Evangelists & in the new law of tithes/ it belongeth rather to the giving of tithes in the time of the old law than of the new law as appeareth Mathe xxiii & Lu. xi. where our lord speaketh to the pharisees saith/ woe be to you pharisees that sith mynies/ rue/ & herbs/ & forget the judgement and the charity of god/ these it behoveth you to do and the other not to omit/ that is to say/ it behoveth you to do justice and charity of god an not to omit paying of tithes though it be of small things as of mints/ rue/ herbs/ & such other. And also that that the phariseis saith Luce xvii I pay my tithes of all that I have/ is to be ferred too the old law not to the time to the time of the new law. Therefore as I take it that the paying of tithes or of a certain portion to spiritual men for their spiritual ministration to the people/ hath been grounded in divers manners. first before the law written a certain portion sufficient for the spiritual ministers was due to them by the law of nature/ which after them that be learned in the law of the realm is called the law of reason/ & that portion is due by all laws & in the law written the jews were bound to give the ten part to their priests as well by the said avow of jacob as by the law of god in the old testament called the judicials. And in the new law the paying of the tenth part is by a law that is made by the church. And the reason wherefore the tenth part was ordained by the church to be paid for the tithe was this.  
There is no cause why the people of the new law ought to pay less to the ministers of the new law/ than the people of the old testament gave to the ministers of the old testament/ For the people of the new law be bound to greater things/ than the people of the old law were as it appeareth. Mathe .v. where it is said/ but your good works habounde above the works of the scribes & the pharisees/ ye may not enter in to the kingdom of heaven.  
And the sacrifice of the old law was not so honourable as the sacrifice of the new law is/ for the sacrifice of the old law was only the figure/ & the sacrifice of the new law is the thing that is figured/ that was the shadow/ this is the troth. And therefore the church upon that reasonable consideration ordained that the ten part should be paid for the sustenance of the ministers in the new law as it was for the sustenance of the ministers in the old law/ & so that law with a cause may be increased or minished to more portion or to less as shallbe necessary for them.  ¶ doctor. 
It appeareth Genesis xiiii that Abraham gave to Melchisedech dimes & that is taken to be the ten part & that was long before the law written/ & therefore it is to suppose that he did that by the law of god.  ¶ Student. 
It appeareth not by any scripture that he died that by the commandment of god/ ne by any revelation. And therefore it is rather to suppose that he did part of duyte & part of his own fire will/ for in that he gave the dimes/ as a reasonable portion for the sustenance of Melchisedech & his ministers/ he did it by commandment of the law of reason as before appeareth/ but that gave the ten part that was of his free will/ & because he thought it sufficient & reasonable but if he had thought the xii part or the xiii part had sufficed might have given it & that with good conscience. And so I suppose that in the new law the giving of the ten part is by a law of the church & not by the law of god/ whiles it be taken that the law of the church is the law of god/ as it is sometime taken to be/ but not appropriatly nor immediatli for that is taken appropriatly to be the law of god/ that is contained in scripture that is to say: in the old testament or in the new  ¶ Doctor. 
It is somewhat dangerous to say that tithes be grounded only upon the law of the church/ for some men as it is said say that man's law bindeth not in conscience/ & so they might happen to take a boldness thereby to deny their tithes.  ¶ Student. 
I trust there be none of that opinion/ & if there be it is great ●ytye. And nevertheless they may be compelled in that case by the law of the church to pay their tithes as well as they should be if paying of tithes were grounded merely upon the law of god.  ¶ Doctor. 
I think well it be as thou saist & therefore I hold me contended therein. But I pray the show me thy mind in this question/ if a hole country prescribe to pay no tithes for corn or hay nor such other/ whether thou think that that prescription is good.  ¶ Student. 
That question dependeth moche upon that that is said before/ for if paying of the ten part be by the law of reason or by the law of god/ than the prescription is void but if it be by the law of man/ than it is a good prescription so that the ministers have a syfficient portion beside.  ¶ doctor. 
Iohan gerson which was a doctor of divinity in a treatise that he named regule morales: saith that dimes be paid to priests by the law of god.  ¶ Student. 
The words that he speaketh there of that matter be these (Solutio decimarum sacerdotibus est de iure divino quarenus i'd sustententur: sed quotam hanc vel illam assignare: aut in alios redditus commutare positivi iurꝭ existit). That is thus moche to say/ the payenge of dimes to priests is of the law of god/ that they may thereby be sustained/ but to assign this portion or that/ or to change it to other rents/ that is by the law positive/ & if it should be taken that by that word: decimarum: which in english is called dimes or tithes/ that he meant the tent part & that that ten part should be paid for tithe by the law of god/ than is the sentence that followeth after against that saying/ for as it appeareth above the text saith afterward thus/ but to assign this portion or that or to/ change it in to other rents belongeth to the law positive/ that is to the law of man/ & if the ten part were assigned by god/ than may not a less part be assigned by the law of man for that should be contrary to the law of god/ & so it should be void. And me thinketh that it is not likely that so famous a clerk would speak any sentence contrary to the law of god or contrary to that he had spoken before/ & to prove that he mente not by that term: decime: that dimes should always be taken for the tenth part/ yet appeareth in the four part of his works in the xxxii title: little ray/ where he saith thus (Non vocatur porcio curatis debita propterea: decime: eo qd semper sit decima pars immo est interdum vicesima aut tricesima). That is to say the portion due to curates/ is not therefore called dimes for that it is always the ten part for sometime it is the twenty or the xxx part/ & so it appareth that by this word decimarum: he mente in the text before rehearsed a certain portion and not precisely the ten part/ & that that portion should be paid to priests by the law of god to sustain them with/ taking as it seemeth the law of reason in that saying for the law of god as it may one way be well & conveniently taken: because the law of reason is given to every reasonable creature by god. And than it followeth pursueantlye that it belongeth to the law of man/ to assign this portion or that as necessity shall require for their sustenance/ & than his saying agreeth well to that that is said before/ that is to say/ that a certain portion is due for priests for their spiritual ministration by the law of reason. And than it would follow thereupon that if it were ordained for a law that all payenge of tithes should fro henceforth cease/ & that every curate should have assigned to him such certain portion of land rend or annuite as should be sufficient for him & for such ministers as should be necessary to be under him according to the number of the people there/ or that every parisshene or householder should give a certain of money to that use: I suppose the law were good/ & that was the meaning of johan gerson as it seemeth in his words before rehearsed/ where he saith/ but to change tithes in to other rents is by the law positive/ that is to say by the law of man. And so me thinketh that if a hole country prescribe to be quite of tithes of corn or gres so that the spiritual ministers have a sufficient portion beside to live upon/ that it is a good prescription/ & that they should not offend/ that in such countries paid no tithes/ for it were hard to say that all the men of italy or of the East parties be dampened because they pay no tithes but a certain portion after the custom therefore certain it is to pay such a certain portion as well they as all other be bound: if the church ask it/ any custom not withstanding/ but if the church ask it not it seemeth that by that not ask the church remitteth it & an example thereof we may take of the apostle Poule that though he might have taken his necessari living of them that he preached to/ yet he took it not/ & nevertheless they that gave it him not did not offend because he did not ask it/ but if one man in a town would prescribe to be discharged of tithes of corn & gres'/ me thinketh the prescription is not good/ whiles he can prove that he recompenseth it in another thing/ for it seemeth not reasonable that he should pay less for his tithes than his neighbours do/ seeing that the spiritual ministers are bound to take as much diligence for him as they be for any other of the parish/ wherefore it might stand with reason that he should be compelled to pay his tithes as his neighbours do/ whiles he can prove that he payeth in recompense thereof more than the ten part in another thing. Nevertheless I leave that matter to the judgement of other/ & than for a further proof that the said prescription of not payenge tithes for trees of twenty year & above/ though it were not good of corn & gres should be good/ some make this reason/ they say that there is no tithe but it is either a predial tithe a personal tithe/ or a mixed tithe/ & they say that if a tithe should be paid of trees when they be so sold: that that tithe were not a predial tithe/ for the predial tithe of trees is of such trees as bring forth fruits & increase ye rely/ as apple trees/ nut trees/ scholar trees/ & such other whereof the predial tithe is the apples/ nutꝭ/ perꝭ & such other frutis as come of them yearly & when the fruits be tithed: if the owner after fell the trees/ there is no tithe due thereby/ for two tithes may not be paid of one thing/ & of these tithes (that is to say) of predial tithes was the commandment given in the old law to the jews/ as appeareth Leuitici. xxvii. where it is said (Omnes decime terre: sive de pomis arborum: sive de frugibus: domini sunt: & illi sanctificantur) that is to say/ all tithes of the earth either of apples/ of trees/ or of grains be our lords/ & to him they be sanctified/ and though the said law speaketh only of apples/ yet it was understand of all manner of fruits. And because it saith that all the tithes of the earth be our lords: therefore calves/ lambs/ & such other must also be tithed/ & they be called by some men predial tithes/ that is say/ tithes that come of the ground/ how be it thy call them only predialles mediate/ & they be the fame tithes that in this writing be called mixed tithes/ & the other tithes (that is to say) tithes of apples and corn & such other: be called predialles immediate/ for they come immediately of the ground/ & so do not mixed tithes as evidently appeareth.  ¶ doctor. 
But what thinkest thou shallbe the predial tithes of ashes/ elms/ salowes/ alders/ & such other trees as bear no fruits/ whereof any profit cometh/ why shall not the ten part of the self thing be the tithe thereof if they be cut down as well as it is of corn & grass.  ¶ Student. 
For I think that there is to that intent great diversity between corn gres/ & trees/ & that for divers considerations whereof one is this. The property of corn & grass is not to grow over one year & if it do: it will perish & come to nought & so the cutting down of it: is the perfection & preservation thereof/ & the special cause that any increase followeth of the same.  
And therefore the ten part of that increase shallbe paid as a predyall tithe/ & there no deduction shallbe made for the charges of it/ & so it is of sheep & beasts that must be taken & killed in time/ for else they may perish & come to nought. But when trees be felled: that felling is not the perfection of the trees/ ne it causeth not them to increase but to decay/ for most commonly the trees would be better if they might grow still. And therefore upon that that is the cause of the decay & destruction of them it seemeth there can no predial tithe rise/ & some men say that this was the cause why our lord in the said chapter of Leuitici xxvii gave no commandment to tithe the trees but the fruits of the trees only.  ¶ Doctor. 
It appeareth in Paralape xxxi that the jews in the time of the king Ezechias offered in the temple all things that the groude brought forth/ & that was trees as well as corn & gres.  ¶ Student. 
It appeareth not that they did that by the commandment of god & therefore it is like that they did it of their own devotion & of a favour that they had above their duty to the repairing of the temple which the king Ezechias had then commanded to be repaired/ & so that 〈◊〉 proveth nothing that tithe should be paid for trees/ & therefore they say ferther that troth it is that if a man to the intent he would pay no tithe: would wilfully suffer his corn & gres to stand still & to perish/ he should offend conscience thereby/ but though he suffer his trees to stand still continually without felling because he thinketh a tithe would be asked if he felled them (so that he do it not of an evil will of the curate) he offendeth not in conscience/ ne he is not bound to restitution therefore as he should be if it were of corn & gres as before appeareth/ & another diversiti is this In this case of rythe word/ the tithe thereof would serve so little so that purpose that tithes be paid for: that it is not likely that they that made the law for payment of tithes intended that any fythe should be paid for trees or wood/ for the spiritual ministers must of necessity spend daily & weakly/ & therefore the tithe of trees or wooed that cometh so seldom would serve so little to the purpose that it should be paid for that it would not help them in their necessity so that if they should be driven to trust thereto though it might help him in whose time it should hap to fall yet it should deceive the that trusted to it in the mean time: & also should leave the parish without any to minister to them.  ¶ Doctor. 
I would well agree that for trees that bear fruit there should no predial tithe be paid when they be sold/ for the predial tithe of them is the fruits that come of them & so there can not be two pndiales of one thing/ as thou hast said. But of other trees that bear no fruit me thinketh that a predial tithe should be paid when they be sold/ & so it appeareth that there ought to be by the constitution provincial made by the reverent father in god Robertte whyncelse late archebisshope of Cauntorbury where it is said & declared that (silva cedua) is or every kind of trees that have being in that that they should be curte or that be able to be cut whereof we will saith he that the possessor of the said woods be compelled by the censures of the church to pay to the parish church/ or mother church the tithe as a real or predial tithe & so by virtue of that constitution provincial a predial tithe must be paid of such trees as have no fruit/ for I would well agree that the said constitution provincial stretched not to trees that bear fruits though the words be general for all trees as before appeareth.  ¶ Student. 
I take not the reason why a predial tithe should not be paid for trees that bear fruit to be because two predial tithes can not be paid for one thing/ for when the tithe is paid of lambs yet shall tithe be paid of wool of the same sheep/ for it is paid for a nother increase/ & so it might be said that the fruit of a tree is one increase & the felling another/ but I take the cause to be for the two causes before rehearsed & also for as much as the felling is not properly an increase of the trees but a destruction of the trees as it is said before. And ferther I would here thy mind upon the said constitution provincial which will that tithe should be paid for trees by the possessors of the wood that if the possessor sell the wood for. C. li. & give the bier a certain time to sell it in/ what tithe shall the possessor pay as long as the wood standeth.  ¶ doctor. 
I think none for the predial tithe cometh not till the wood be felled & a personal tithe he can not pay/ no more than if a man pluck down his how see and selleth it/ or if he sell all his land/ in which cases I agree well he shall pay no tithe neither predial nor personal.  ¶ Student 
And than I put case that the bier selleth the wood again as it is standing upon the ground to another for .cc. li. what tithe shallbe paid than.  ¶ doctor. 
Than the first bier shall pay tithe of the surplusage that he taketh over the. C. li. that he paid as a personal tithe.  ¶ Student. 
And than if the second bier after that cut it down & sell it when it is cut down for less than he paid/ what tithe shall then be paid.  ¶ Doctor. 
Than shall he that felleth them paythe tithe for the trees as a predial tithe.  ¶ Student. 
I can not see how that can be for he neither hath the trees that the predial tithe should be paid for if any ought to be paid/ nor he is not possessor of the ground where the trees grow: & therefore if any predial tithe should be paid it should be paid either by the first possessor by reason of the words of the said constitution provincial which be that the tithe shallbe paid by the possessor of the wood/ or by the last bier because he hath the trees that should be tithed & by the first possessor the tithe can not be paid as a predial for he cut not them down ne they were not cut down upon his bargain/ & by the last bier it can not be paid neither as a predial tithe for the said constitution saith that the possessors of the woods should be compelled to pay it. And therefore I suppose that the troth is that in that case no ●●the shallbe paid/ for as to the last seller he shall pay no personal tithe for he gained nothing as it appeareth before/ & no pndiall tithe shallbe paid/ for it should be against the said prescription/ & also the cutting down is the destruction of trees & not their pnseruation as is said before.  ¶ Doctor. 
Than takest thou the said constitution to be of small effect as it seemeth  ¶ Student. 
I take it to be of this effect that of wood above twenty year it bindeth not because it is contrary to the common law & to the said prescription that standeth good in the common law/ but of wood under twenty year whereof tithe hath been accustomed to be paid: the constitution is not against the said pnscription because pateng of tithe under twenty year is not prohibit but suffered by the said statute how be it some say that by the very rigour of the common law tithes should not be paid for wood under twenty year no more than for above twenty year & that a ꝓhibition in that case lieth by the common law/ neverthiles because it hath been suffered to the contrary & that in many places tithe hath been paid thereof. I pass it over but where tithe hath not be paid of wood under twenty year. I think none aught to be paid at this day in law nor conscience: but admit it that the said constitution taketh effect for payment of tithe wood under twenty year as of a predial tithe/ yet I can not see how the tithe thereof should be paid by the possessor of the wood if he sell them but that it should be paid rather by him that hath the trees/ for the constitution is that the tithe shallbe paid as a real or a predial tithe/ & that is the ten part of the same trees as it is of corn/ & if a man buy corn upon the ground the bier shall pay the tithe & not the seller & so it should seem to be here & what the constitution mente to decree the contrari in tithe wood I can not tell whiles the meaning were to induce the owners to pay tithes of great trees when they fell them to their own use which me thinketh should be very hard to prove to stand with reason though the said statute had never be made as I have said before. And furthermore I would here under correction move one thing & that is this that as it seemeth they that were at the making of the said constitution that knew the said prescription did not follow the direct order of charity therein so perfitly as they might have done/ for when they made the said constitution provincial directly against the said prescription/ they set law against custom/ & power against power & in manner the spirituality against the temporalty/ whereby they might well know that great variance & suit should follow/ & therefore if they had clearly seen that the said prescription had been against conscience they should first have moved the king & his counsel & the nobles of the realm to have assented to the reformation of that pnscription & not to make a law as it were by authority & power against the prescription & than to threat the people & make them believe that they all were accursed that kept the said prescription or that maintain it/ & it seemeth to stand hardly with conscience to report so many to stand accursed for following of the said statute & of the said pnscription as there do & yet to do no more than hath be done to bring them out of it  ¶ Doctor. 
Me thinketh that it is not convenient that lay men should argue the laws & the decrees or constitutions of the church & therefore it were better for them to give credence to spiritual rulers that have cure of their souls than to trust to their own opinions/ & if they would do so than such matters would much the more rather cease than they will do by such reasoningꝭ.  ¶ Student. 
In that that belongeth to the articles of the faith I think the people be bound to believe the church/ for the church gathered to guider in the holy ghost can not err in such things as belong to the catholic faith but where the church maketh any laws whereby the goods or possessions of the people may be bound/ or by this occasion or that may be taken fro them there the people may lawfully reason whether the laws bideth them or not for in such laws the church may err & be deceived & deceive other either for singularite or for covetise for some other cause/ & for that consideration it pertaineth most to them that be learned in the law of the realm to know such laws of the church as treat of the ordering of lands or goods & to see whether they may stand with the laws of the realm or not & therefore it is necessary for them to know the laws of the church that treat of dimes of executors of testaments of legacies bastardy matrimony & divers other wherein they be bound to know when the law of the church must be followed & when the law of the realm/ whereof because it is not our purpose to treat. I leave to speak any more at this time/ and will resort again to speak of tithes/ wherein some men say that of tin/ coal/ & lead no tithe should be paid when they be sold by the own of the ground because it is part of the inheritance & it is more rather a destruction of the inheritance than an increase/ & therefore they say that if a man take a tin work & give the lord the tenth dish according to the custom that the lord shall pay no tithe of that tenth dish neither predial nor personal: but if the other that taketh the work have geyns & advantage by the work it seemeth that it were not against reason that he should pay a personal tithe of his geyns the charges deduct.  ¶ doctor. 
I pray the show me first what thou takest for a personal tithe and upon what ground personal tithes be paid as thou thinkest so that one of us mistake not another therein.  ¶ Student. 
I will with good will & therefore thou shalt understand that as I take it personal tithes be not paid for any increase of the ground/ but for such perfect as cometh by the labour or industry of the person/ as by buying & selling & such other/ & such personal tithes as I take it must be ordered after the custom & the church hath not used to levy those tithes by compulsion but by conscience of the parties/ nevertheless Raymond saith that it is good to pay personal tithes or with the assent of the person to distribute them to poor men/ or else to pay a certain portion for the hole/ but as Innocen saith/ where the custom is that they should be paid the people be bound to pay them as well as predialles/ the expenses deduct/ how be it in the church of England they use to sue for such personal tithes as well as for predialles & that is by reason of a constitution provincial that was made by Robert wynchelsey late archebisshope of Canterbury/ by the which it was ordained that personal tithes should be paid of crafts & merchandise/ & of the lucre of buying & selling/ & in likewise of carpenters/ smiths/ weavers/ masons & all other that work for hire that they shall pay tithes of their hire except they will give any thing certain to the use or to the light of the church if it so please the person/ & in another place the said archbishop saith that of the pawnage of woods & such other things &c. & of fysshynges/ trees/ bees/ downs/ & of divers other things there remembered/ & of crafts/ & of buying & selling & of the profits of divers other things there receyted/ every man should hold satisfis competently to the church/ to the which they be bound to give it of right/ no expenses by the giving of the said tithes deduct or withholden/ but only for the payment of tithes of crafts & of buying & selling/ & by reason of the said constitutions provincials sometime suits be taken in the spiritual court for personal tithes/ & thereof many men do marvel/ because the deductions many times must be referred to the conscience of the parties. And they meruayl also why a law should be made in this realm for painge of personal tithes more than there is in other countries. And here I would move the further in one thing concerning such personal tithes to know thy mind therein/ & that is/ if a man give to another an horse/ & he selleth that horse for a certain sum/ shall he pay any tithe of that sum.  ¶ doctor. 
what thinkest thou therein.  ¶ Student. 
I think that he shall pay no tithe/ for there as I take it the profit cometh not to him by his own industri but by the gift of an other/ & as I take it: personal tithes be not paid for every profit or advantage that cometh newly to a man except it come by his own industri or labour & so it doth not here.  
And also if he should pay tithe of that he sold the horse for: he should pay tithe for the very hole value of the thing. And as I take it: the personal tithes for buying & selling shall never be paid for the value of the thing/ but for the clear gains of the thing/ and therefore I take the cases before rehearsed where a man selleth his land or pulleth down a house and selleth the stuff/ that he should there pay no tithe/ that it is there to be understand that he hath the land or house by gift or by descent/ for if a man buy land/ or buy the timber & stuff of a house and sell it for again I suppose that he should pay a personal tithe for that gain/ and this case is not like to a fee or annuite granted for counsel where the hole fee shallbe tithed/ for the charges deduct or some certain some for it by agreement/ for there the hole fee cometh for his counsel which is by his own industry. But in the other case it is not so/ and the same reason as for the person all tithe might be made of trees when they descend or be given to any man and he selleth them to another that he shall pay no personal tithe.  ¶ doctor. 
Me thinketh that if the horse amend in his keeping & than he sell the horse/ that than the tithe shallbe paid of that that the horse hath increased in value after the gift & so it may be of trees that he shall pay tithe of that that the trees be amended after the gift or descent.  ¶ Student. 
Than the tithe must be the ten part of the increase the expenses deduct/ and than of trees the charges must also be deduct/ for it is than a personal tithe/ and there is no tree that is so much worth as it hath hurt the ground by the growing/ & therefore there can no personal tithe be paid by the owner of the ground when he selleth them though they have increased in this tyme. Nevertheless I will speak no ferther of that matter at this time/ but will show the that if time/ lead/ coal/ or trees be sold that a mixed tithe can not grow thereby/ for a mixed tithe is properly of calves/ lambs/ pigs/ & such other that come part of the ground that they be fed of/ & part of the keeping industri & oversight of the owners as it is said before/ but tin/ lead/ & coal are part of the ground & of the freehold/ & trees grow of themself/ & be also annexed to the freehold & will grow of themself/ & also the mixed tithe must be paid yearly at certain times appointed by the law or by custom of the country/ but it may hap that tin/ lead/ coal/ & trees shall not be felled nor taken in many years/ & so it seemeth it can not be any mixed tithe/ & these be some of the reasons which they that would maintain that statute & prescription to be good: make to prove their intent as they think.  ¶ Doctor. 
What think they if a man sell the loppes of his wood whether any tithe ought there to be paid  ¶ Student. 
They think all one law of the trees & of the lops.  ¶ Doctor. 
And if he use to fell the loppes once in xii or xvi year/ what hold they than.  ¶ Student. 
That all his one.  ¶ doctor. 
And what is their reason why tithe ought not to be paid there as well as for wood under twenty year.  ¶ Student. 
For they say that the lops are to be taken of the same condition as the trees be what time so ever they be felled/ and that no custom will serve in that case against the statute/ no more than it should do of great trees.  ¶ Doctor. 
And what hold they of the bark of the trees.  ¶ Student. 
Therein I have not heard their opinions/ but it seemeth to be one law with the lops.  ¶ Doctor. 
I perceive well by that thou hast said before that thy mind is that if a hole country prescribe to be quite of tithes of trees/ corn/ & gres'/ or of any other tithes: that that pnscription is good so that the spiritual ministers have sufficient beside to live upon/ dost thou not mean so.  ¶ Student. 
yes verily.  ¶ Doctor. 
And than I would know thy mind if any man contrary to that prescription were sued in the spiritual court for corn & gres or any other rythes whether a prohibition should lie in that case as it did after thy mind before the said statute where a man was sued in the spiritual court for tithe wood.  ¶ Student. 
I think nay.  ¶ doctor. 
And why not there as well as is did where a man was sued for the tithe wood.  ¶ Student. 
For as I take it: there is great diversiti between the cases & that for this cause/ there is a maxim in the law of England that if any suit be taken in the spiritual court whereby any goods or lands might be recovered/ which after the grounds of the law of the realm ought not to be sued there: though percase the kings court shall hold no plea thereof: that yet a prohibition should lie/ & after when it had continued long that no tithes were paid of wood because of the said prohibition & that after by process of time some curates began to ask tithes of wood contrary to the law & contrary to the said prescription: so that variance begun to rise between curates & their parishians in that behalf/ than for appeasinge of the said variance the said statute was made/ & that as it seemeth more at the calling on of the spiritualty than of the temporalty/ for the statute doth not expressly grant that the prohibition in that case of tithe wood should lie so largely as some say it lay by the law: how be it/ it doth not restrain the common law therein as it appeareth evidently by the words of the statute/ & so after some men it appeared before the statute & also after the statute as I have touched before/ that the spiritual court ought not in that case to have made any process for ●ythe wood: & therefore if they did a prohibition lay by the common law: & like law is if the spiritual court make process upon such a legaci as by the law of the realm is void. As if a man bequeatheth so one another man's horse/ & the spiritual court thereupon maketh process to execute that legaci: there a prohibition lieth/ for it appeareth evidently in the libel if all the troth appear in the libel that in the law of the realm that legaci is void to all intents. And that he to whom the legacy is made shall neither have the horse nor the value of the horse. And in likewise if a man sell his land for C. li. & he is sued after in the spiritual court for the tithe of the said. C. li. There a prohibition shall lie/ for it appeareth in that case openly in the libel that no tithe ought to be paid/ & that the spiritual law ought not in that case to make any process whereby the goods of him that sold the land might be taken fro him against the law of the realm/ and upon this ground it is that if a man were sued in the spiritual court now sith the statute for a mortuary that a prohibition should lie/ for it appeareth in the libel: that sith the statute there ought no sure to be taken for mortuaries/ and the same law is if any suit were taken in the spiritual court for a new duty that is of late taken in some places upon leases of personages and vycarages which is called a dismission noble/ for it appeareth evidently in the libel if any be made thereupon that no such process ought by the law of the realm to be made in that behalf/ but in the case of tithe corn/ or gross/ or such other things wherein thou hast desired to know my mind/ there appeareth nothing in the libel but that the suit thereof of right pertaineth to the spiritual law & so for any thing that appeareth the party may be helped in the spiritual court by that prescription/ and if the case were so far put that in the spiritual court they would not allow the said prescription/ yet I think no prohibition should lie/ for though the spiritual judges in a spiritual matter deny the parties of justice/ yet the kings laws can not reform that/ but must remit it to their conscience. But if there were some remedy provided in that case/ it were well done/ for some say that in the spiritual court they will admit no plea against tithes. And also if a composition were made by assent of the patron & also of the ordinari between a person and one of his parishians that the person and his successors should have for a certain ground so many quarters of corn for his tithe yearly/ and after contrary to that composition the person in the spiritual court asketh the tithes as they fall/ that in this case no prohibition should lie/ ne yet though the case were further put that the composition were pleaded in the court and were disallowed/ but all resteth in the conscience of the judges spiritual as is said before how be it because some be of opinion that a prohibition should lie in this last case/ therefore I well refer it to the judgement of other/ but in the case of the prescription before rehearsed I take it for the clearer case/ that no prohibition shall lie as I have said before. And I beseech our lord that this matter and such other like thereto may be so charitably looked upon that there be not here after such divisions ne such diversities of opinions therein as hath been in time passed whereby hath followed great costs and charges to many persons in this realm & that hath moved me to speak so far in this chapiter and in divers other chapters of this present book as I have done/ not intending thereby to give occasion to any person to withhold his tithes that of right ought to be paid/ ne to alter the portion therein before accustomed/ but that as me thinketh they ought to be claimed by the same title as they ought to be paid/ & by none other/ & that it may also somewhat appear that the said statute of xlv of Edward the .3. was well and lawfully made and upon a good reasonable consideration/ and that the said prescription is good also/ so that no man was in any danger of excommunication for the making of the said statute/ nor yet is not for the observing thereof/ ne yet of the said prescription as it is noted by some persons that there should be. And thus I commit the unto our lord: who ever have both the and me in his blessed keeping everlastingly. Amen.  
❧ Finis.   
¶ Here endeth the second Dialogue in english/ with new Additions betwixt a doctor/ and a Student in the laws of England. And here after followeth the Table ⸫   

¶ Tabula. Here aft followeth the table with certain Additions newly added thereto. And over all the chapters and questions which be newly added: Ye shall find entitled this word (Addition) both in the Table and also in the book ⸫  

THe introduction. Fo. 2.  
¶ The first question of the Student whether the tenant in tail after possibility of issue extinct may with conscience do waste. The. I. chapiter. Fo. 4.  
¶ What is understand by this term when it is said (thus it was at the common law) The ii chapiter. Fo. 7.  
¶ The second question of the Student whether the goods of men outlawed be forfeit in conscience as they be by the law The iii chapiter. Fo. 8.  
¶ The third question of the Student/ Is or waste done by a stranger in lands that be in the hands of particular tenants. &c. The four chapiter. Fo. 12.  
¶ The four question of the Student/ whether a man may with conscience be of council against him that he knoweth is the heir of right/ but he is certified bastard by the ordinary. The .v. chapi. Fo. 15  
¶ The .v. question of the Student/ whether a man may with conscience be of counsel with a man at the common law knowing that he hath sufficient matter to be discharged in the chancery that he may not plead at the common law. The vi chapiter. Fo. 17.  
¶ The vi question of the Student/ whether a man may with conscience be of counsel against the feoffor of trust in an action of trespass that he bringeth against his feoff of trust for taking the profits. The vii chapiter. Fo. 19  
¶ The vii question of the Student if a man that by way of distress cometh to his det/ but he ought not to have distreyned for it what restitution he is bound to make. The viii chapiter Fo. 21.  
¶ For what thing a man may lawfully distrain. The ix chapi. Fo. 23.  
¶ The viii question of the Student whether executors be bound in conscience to make restitution for a trespass done by the testator/ and whether they be bound to pay debts upon a contract first/ or make the said restitution. The ten chapiter. Fo. 25.  
¶ The ix question of the Student/ whether he that hath goods delivered him by force of a legaci be bound in conscience to pay a debt upon a contract that the testator ought/ if the executors have none other goods in their hands. The xi chapiter. Fo. 28.  
¶ The ten question of the Student if a man have issue two sons & died seized of certain lands in fee the eldest dieth without issue the tongest recovereth by assize of mortdauncestre the land with damages fro the death of the father/ whether he be bound in conscience to pay the damages to the executors of the eldest brother for the time he lived. The xii cha. Fo. 31.  
¶ The xi question of the Student what damages the tenant in dower shall recover in conscience where her husband died not seized/ but she demanded her dower and was denied. The xiii chapiter. Folio. 33.  
¶ The xii question of the Student if a man knowing another to have right to his land causeth a fine with proclamation to be levied according to the statute/ and he that hath right maketh no claim within .v. years whether he be barred in conscience as he is in the law. The xiiii chapiter. Fo. 36.  
¶ The xiii question of the Student/ if a man that hath had a child by his wife do that in him is to have possession of his wife's lands and she dieth or he can have it/ whether in conscience he shallbe tenant by the courtesy. The xu chapiter. Folio. 37.  
¶ The xiiii question of the Student/ if the grantor of a rent enfeoff the grant of the rent of part of the land. &c. whether the hole rent be extinct in conscience as it is in the law. The xvi chapiter Folio. 41.  
¶ The xv. question of the Student/ if he that hath a rent out of ii acres be named in a recovery of the one acre he not knowing thereof. &c. whether his hole rent be extinct in conscience. &c. The xvii chapiter. Fo. 43.  
¶ The xvi question of the Student/ if a man have a villain for term of life & the villain purchaseth lands in fee & he that hath the villain entereth/ whether he may with conscience keep the lands to him & to his heirs as he may by the law the xviii cha. fo. 45.  
¶ The xvii question of the Student if a man in the case next before inform him that is in the reversion of the villain that after the death of the villain he hath right to the land & counseleth him to enter/ whereupon great suit & charges follow/ what danger that is to him that gave the counsel. The xix chapiter. Fo. 47.  
¶ The xviii question of the Student is upon a feoffment made upon condition that the feoff shall pay a rent to a stranger/ how that feoffment shall weigh in law & conscience. The twenty chapiter. Fo. 49.  
¶ The xix question of the Student is upon a feoffment in fee/ & it is agreed that the feoff shall pay a rent to a stranger/ how that feoffment shall way in law & conscience. The xxi chapiter. Fo. 51.  
¶ How uses in land began & by what law & the cause why so moche land is put in use. The xxii chapiter. Fo. 54.  
¶ The diversity between two cases whereof one is put in the twenty chapiter and the other in the xxi chapiter of this present book. The xxiii chapiter. Fo. 57  
¶ What is a nude contract or a naked promise after the laws of England/ & whether any action may lie thereupon. The xxiiii chapiter. Fo. 61.  
¶ The twenty question of the Student if a man that hath two sons one borne before espousals & the other after espousals by his will byqueteth to his son & heir all his goods/ which of the sons shall have the goods in conscience. The xxv cha. Fo. 67  
¶ Whether an Abbot may with conscience present to an advowson of a church that belongeth to the house without assent of the covent. The xxvi chapiter. Fo. 72.  
¶ If a man find beasts in his corn doing hurt/ whether he may by his own authority take them and keep them till he be satisfied for the hurt. The xxvii cha. Fo. 75  
¶ Whether a gift made by one under the age of xxv year. be good. The xxviii chapiter. Fo. 76.  
¶ If a man be convict of heresy before the ordinary/ whether his goods be forfeit. The xxix chapiter. Fo. 78.  
¶ Where divers patrons be of an advowson the church voideth/ the patron's vary in their presentments/ whether the Bishop shall have liberty to present which of the incumbentes that he will. The xxx chapiter. Fo. eodem.  
¶ How long time the patron shall have to present to a benefice. The xxxi chapiter. Fo. 80.  
¶ If a man be excommenged/ whether he may in any case be assoiled without making satisfaction. The xxxii cha. Fo. 83.  
¶ Whether a prelate may refuse a legaci. The xxxiii chapiter. Fo. 84.  
¶ Whether a gift made under a condition be void if the sovereign only break the condition. The xxxiiii cha. Fo. 87.  
¶ Whether a covenant made upon a gift to the church that it shall not be aliened be good. The xxxv chapi. Fo. 89.  
¶ If the patron present not within vi months who shall present. The xxxvi chapiter. Fo. 91.  
¶ Whether the presentment & collation of all benefices and dignities voiding at Rome belong only to the Pope. The xxxvii chapiter. Fo. 95.  
¶ If a house by chance fall upon a horse that is borrowed who shall bear the loss. The xxxviii chapiter. Fo. 97.  
¶ If a priest have won moche money by saying mass/ whether he may give those goods or make a will of them. The xxxix chapiter. Fo. 99  
¶ Who shall succeed to a clerk that dieth intestate. The xl chapiter. Fo. 101.   

☞ Addition.  

¶ If a man be outlawed of felony/ or be attainted for murder or felony/ or that is an Ascismus may be slain by every stranger. The xli chapiter. Fo. 102.    

☞ Addition.  

¶ Whether a man shallbe bound by the act or offence of his servant or officer. The xlii chapiter. Fo. 104.    

♣ Addition.  

¶ Whether a villain or a bondman may give a way his goods. The xliii chapiter. Fo. 106.  
¶ If a clerk be promoted to the title of his patrimony & after selleth his patrimony & falleth to poverty/ whether he shall have his title therein. The xliiii chapiter. Folio. 108.  
¶ divers questions taken out by the Student of the sums called Summa rosella & Summa angelica which me thinketh are necessary to be seen how they stand & agree with the law of the realm. The xlv chapiter. Fo. 111.  
¶ Where ignorance of the law excuseth in the laws of England & where not. The xlvi chapiter. Fo. 115.  
¶ Certain cases & grounds where ignorance of the deed excuseth in the laws of England & where not. The xlvii chapiter. Fo. 119.    

☞ Addition.  

¶ The first question of the Doctor how the law of England may be said reasonable that prohibiteth. &c. The xlviii chapiter. Fo. 120.  
¶ The second question of the doctor whether the warranty of the longer brother that is taken as heir because it is not known but that the eldest brother is dead be in conscience a bar to the eldest brother as it is in the law. The xlix chapiter. Fo. 124.  
¶ The third question of the doctor/ whether if a man procure a collateral warranty to extinct a right that knoweth another man hath to land be a bar in conscience as it is in the law. The l chapiter Fo. 127.  
¶ The fourth question of the doctor/ is of wreak of the see. The li chapiter. Folio. 129.  
¶ The fift question of the Doctor/ whether it stand with conscience to prohibit a jury of meat & drink till they be agreed of their verdict. The lii chapiter. Folio. 131.  
¶ The vi question of the doctor is/ whether the colours that be given at the common law in assizes/ actions of trespass and divers other actions stand with conscience because they be most commonly feigned and not true. The liii chapiter. Folio. 132.    

☞ Addition.  

¶ The vii question of the Doctor/ concerneth the pleading in assize whereby the tenements use sometime to plead in such manner that they shall confess no ouster. The liiii chapiter. Fo. 137.  
¶ The viii question of the Doctor/ how the statute that was made in the xlv year of king Edward the third concerning the tithe of wood may stand with conscience. The lu chapitree Folio. 140.    
¶ Finis Tabule.   

¶ Thus endeth the second Dialogue in english/ with the Additions between a doctor of of divinity and a Student in the laws of England which treateth of divers things that be shortly touched in the first less of this present book before the introduction.   

¶ Imprinted. at Loddom in the Fleetstreet/ by me Robert Redman dwelling in saint Dunston's parish/ next the church. In the year of our lord god. M. CCCCC.XXXii. The first day of the month of july. ⸫