The lavvyers light: or, A due direction for the study of the law for methode. Choyce of bookes moderne. Selection of authours of more antiquitie. Application of either. Accommodation of diuers other vsefull requisits. All tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome. With necessary cautions against certaine abuses or ouersights, aswell in the practitioner as student. Written by the reuerend and learned professor thereof, I.D. To which is annexed for the affinitie of the subiect, another treatise, called The vse of the law. Doddridge, John, Sir, 1555-1628. This text is an enriched version of the TCP digital transcription A20578 of text S109766 in the English Short Title Catalog (STC 6983). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 348 KB of XML-encoded text transcribed from 118 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 A20578 STC 6983 ESTC S109766 99845411 99845411 10308 2240892436

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Early English books online. (EEBO-TCP ; phase 1, no. A20578) Transcribed from: (Early English Books Online ; image set 10308) Images scanned from microfilm: (Early English books, 1475-1640 ; 1349:23) The lavvyers light: or, A due direction for the study of the law for methode. Choyce of bookes moderne. Selection of authours of more antiquitie. Application of either. Accommodation of diuers other vsefull requisits. All tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome. With necessary cautions against certaine abuses or ouersights, aswell in the practitioner as student. Written by the reuerend and learned professor thereof, I.D. To which is annexed for the affinitie of the subiect, another treatise, called The vse of the law. Doddridge, John, Sir, 1555-1628. Bacon, Francis, 1561-1626, attributed name. [16], 119, [1]; [8], 93, [3] p. [By Bernard Alsop and Thomas Fawcet] for Beniamin Fisher, and are to be sold at his shop in Aldersgate street, at the signe of the Talbot, Imprinted at London : 1629. I.D. = Sir John Doddridge. Printers' names from STC. "The vse of the lavv" has separate dated title page, pagination and register. It is anonymous, and has been attributed with doubtful validity to Francis Bacon. The first leaf and the last leaf are blank. Reproduction of the original in the Henry E. Huntington Library and Art Gallery. eng Law -- Great Britain -- Early works to 1800. eebo The lavvyers light: or, A due direction for the study of the law; for methode. Choyce of bookes moderne. Selection of authours of more antiquitie. App Doddridge, John, Sir 1629 228 62251 35 0 0 0 0 0 5.62 B The rate of 5.62 defects per 10,000 words puts this text in the B category of texts with fewer than 10 defects per 10,000 words. 2002-03 Assigned for keying and markup 2002-03 Keyed and coded from ProQuest page images 2002-04 Sampled and proofread 2002-04 Text and markup reviewed and edited 2002-05 Batch review (QC) and XML conversion

THE LAWYERS LIGHT : OR , A due direction for the study of the Law ; for

Methode .

Choyce of Bookes moderne .

Selection of Authours of more antiquitie .

Application of either .

Accommodation of diuers other vsefull requisits .

All tending to the speedy and more easie attayning of the knowledge of the Common Law of this Kingdome .

With necessary cautions against certaine abuses or ouersights , aswell in the Practitioner as Student .

Written by the Reuerend and learned professor thereof , I. D.

To which is annexed for the affinitie of the Subiect , another Treatise , called

The Vse of the Law .

Imprinted at London for Beniamin Fisher , and are to be sold at his shop in Aldersgate street , at the signe of the Talbot . 1629.

TO THE READER .

Courteous Reader ,

I Present vnto you here two children , the one whereof hath an Authour vnknowne ; The other a Father deceased ; Both Infants ; both Orphans ; and both so like , as if they were Gemini horoscope uno . The Law enioynes you to keepe them ; and their descent deserues it : If you keepe , and cherish them in their infancie , the Law by whose letters of commendations they are committed to your tuition , will keepe and preserue you and yours , your persons , goods , and good names from violence , depredation , and detraction , vnto posterity . Case them in what fashion you please : And put them into what livories you like best ; They are both so seasoned , that no weather can alter their constitutions : And both so solid that no teste can disrepute their perfections ; Indeede they were intended for generall good . For he that will calculate their Natiuitie , shall by a true Iudiciall finde in either a plentifull promise of publique profit and fundamentall fabrique both of the study and vse of the Lawes of this Realme . It is a duty we owe to the knowne Authour though deceased , and a charity to the Authour whose modesty conceales his name , to communicate to the generall what was so collated in their particular , and so legaterily provided for their common behoofe ; which not as proximiores sanguinis , or proper executors of the will of the deceased , but as creditors to whom the administration of their good intentions for the publicke is committed ; we do now publish and commend to all Students in the Lawes , and others which shall desire to enable their iudgments in this kinde .

In praise of the worke . AS after paine in digging of the Mould , Long time is spent in seuering the Oare From the mixt earth ; at length refined Gold Is by the Artist wrought , by which his store Is much encreased and the common good . So by this Booke if rightly vnderstood And prised at full worth , the Reader may Obserue the Authors labour , who hath drawne From the deepe Masse of Law , an easie way To make the Student perfect ; and doth pawne His credit on 't , Perusers may be bold To shew it for he knowes the Touch will hold .

W. T.

Another . WHen Criticks shall but view the Title , they Will carpe at this great Enterprise , and say , It was too boldly done , thus to comprize In a small Volume , Law , and a true size To set vpon it ; but the learned will Excuse his little Booke , and praise his skill , His ayme being onely to instruct the youth , Not to controll the Iudge , or wrong the truth : For he well knowes , Cases with time may change , And that prooue common which before was strange .

I. S.

THE TABLE . NOtes collected out of diuers Authors . Fol. 5 Grounds borrowed out of Logicke . 7 Grounds borrowed out of naturall Philosophy . 9 Grounds borrowed out of Morall Philosophy . ibid Grounds borrowed out of the Ciuill Law . 10 Grounds borrowed out of the Cannon Law . 12 Grounds deriued from the vse , custome and conuersation of men . 13 Proverbiall Grounds . 14 Maximes applia●le onely to one title . 15 The diuers kinds of Grounds which doe concerne one title . 16 Formall causes and Grounds of the Law . 42 Notes collected touching the verity of Principles . 43 Notes collected touching the difference betweene primary and secondary principles . 45 The first sort of secondary rules grounded vpon entendement . 48 Notes touching the definition , diuision , and necessary consequents of secondary principles . 49 The second sort of secondary rules grounded vpon entendement . 59 The second principall kinde of contingent propositions . 57 The triple vse of equity in the Lawes . 62 Notes collected out of Authours touching exceptions of rules , and from whence they spring . 63 Exceptions ministred by equity . 77 The vse of generall rules , and the obseruations of their specials . 89 Notes collected out of Authours touching the obseruation of generall propositions . ibid Notes of Authours touching the obseruation of collection of grounds , and rules by inference . 104

ARISTOTLE in the first book of his Topickes expressing the meanes , wherby in euery facultie or science Intellectuall , resting vpon discourse of reason , Men might abound in matter apt for Argumentation , and might bee furnished with copy of Reason fit for the proofe or disproofe of things called into debate , in such the sciences by them professed , expresseth a fowrefold obseruation ,

1. Quarum vna ( as he sayth ) est in propositionibus Arist. Top. lib. 1. cap. 12. 13. 14. eligendis .

2. Altera in distinguendo quot modis quicquid dicatur .

3. Tertia in differentijs inueniendis .

4. Quarta in similitudinis cognitione & scientia .

All which are notable instruments of knowledge , greatly profitable , yea necessary for the obtayning of all such sciences as doe depend vpon reason : and so consequently much auayleable to be obserued in the study of the Lawes of this Land , which are grounded vpon the depth of Reason , and inuested often times by the name of Reason , in our Reported Cases , and ruled Authorities of the same : 11. Hen. 7. 24. b. 13. Hen. 7. 23. b. Com. Colth . 270. b. Com. Brown . 140. b. 27. Hen. 8. 10. a. Montague .

Of which fowre Principles , purposing ( for direction of study ) to say somewhat , in order , as they are afore proposed .

It is to be considered that the first of them being Propositionum electio , containeth the Election , choice obseruation , and collection of all receiued Principles , Propositions , Sentences , Assertions , Axiomes and Reasons , importing eyther certainety of truth , or likelyhood of probability .

Wherein first Aristotle giueth precepts to collect them , and then after giueth counsayle , so to digest them , as that they may at all times bee ready for our vse .

Wherefore heereof intending an ample discourse , it shall be requisite to follow the ordinary and best Method , by Definition , Diuision , and the due speculation of their Causes , whereby may be manifested what they are , of how many kinds they are , the diuers manners of collection of them ; and lastly , the end , scope , and vse , whereunto they tend , and the profit ensuing by obseruation of the same .

That first therefore the names , by which in our Law they haue vsually beene called , might bee made manifest before their nature be discouered ( Primò enim de nomine conveniat ) it may with little labour easily appeare , that sundry are the titles or names giuen in the volumes of Reports and other writings of the Law , vnto such propositions as doe remaine as reasons of resolued cases .

Sometimes they haue beene called Grounds , See Grounds . in the 30. Hen. 8. 44. b. Dyer numero 30. it is said , Est une auter Grounde in tenure in Chief . S. Il. do et este immediate del Roy ; et il convient comencer , et prend son original creation per le Roy mesme , et per nul de ses subiects . So likewise speakes Rede . 5. Hen. 7. 23. b. Est bone Ground in Trespas , Discontinuance Uide 12. H. 7. 13. a. Davers Com. 121. b. Stamford . vers un est Discontinuance vers touts , with infinite such other .

Sometime they haue beene called Maximes ; for Maximes . so saith Fortescue in 34 , Hen. 6. 33. a. Est un Maxime en nostre Ley , Que in chacun action personal , le Non-sute del an sera le Nonsutte de ambidoux , fore prise in tiels cases que sont except per statut . Likewise saith Knightley 19. Hen. 8. 38. a. Dyer numero 51. Est un Maxime , Que un action sera touts foits conceiue ou le plus meliour trial , et notice del fait poit este conus ; et specialment lou de tort est personal , with diuers such like .

Sometimes they are called Principles , for so in the Principles . 8. Hen. 74. a. it is said , that it is un Common Principle , que Terre ( S. Estate de frank tenant ) ne pas sans Livery de seisni . Likewise saith Sanders in the Com. Colthurets Case 28. b. Il ad este temis come Principle , 〈◊〉 Que quand un fait Livery de seisni que son Livery Vide Com. 345. a. sera pris plus fortment vers luy .

Somtimes they haue beene called Eruditions . In Eruditions . Vide 14. Hen. 8. 28. a. Pollard 24. Hen 8. 40 Dyer . nu 66. such sort saith Keble , in 11. Hen. 7. 15. a. Ceo ad este un erudition , Que le partie navera Capias ad satisfaciendum , mes ou Capias gift in l'original . And some in 29. Hen. 8. 40. a. Dyer numero 66. saith , Iustices 3 Ed. 4. 7 a. Lit. Vide 33. Hen. 6. 54. a. 44. Ed. 3. 34. b. Il est une Common Erudition , Que in cel Countie lou le tort commence , l'action sera porte .

Moreouer , sometimes for their firmenesse they Lawes positiue . haue beene called Lawes Positiue , for so speaketh Belknap . 2. Rich. 2. Fitzh . Accompt 45. Il est ley positive , Que home navera damages in breve d'accompt .

Sometimes they are inuested by the title of Law it Lawes . selfe ; for in such manner it is said Tempore Ed. 1. Fitzh . Grant . 41. Lex est , cuicunque aliquis quid concedit , concedere videtur , & id sine quo res esse non potuit . And so Bracton saith , 9. Hen. 6. 59. b. lay prise pur ley , Que si home plede un plee et preigne un protestation ; Vide 9. Hen. 4. 59. b. Paston . et puis son plee est troue encounter lay , il naver unque advantage de son protestation . Of which manner speeche there are manifold examples .

So that be they named Grounds , Maximes , Principles , Eruditions , Lawes Positiue , Lawes , Rules or Propositions , or by whatsoeuer other name they bee called , let vs now seeke the nature of them by their Definitions .

Paulus the ancient Romane Lawyer thus defines a Principle or Rule of law : Regula Iuris , rem quae est , Li. 1. F. de Reg. Iuris . breviter enarrat . &c.

If we doe respect the originall thereof together 〈◊〉 . Colth . 17. b. with the effect it yeeldeth ; Morgan in the Commentaries of Plowden , thus defineth it : A maxime is the foundation of Law , and the conclusion of Reason : for Reason is the efficient cause thereof , and Law is the effect that floweth therefrom .

Such of the Civilians as in the description of a Rule of Law , Doe onely respect the manner of the Collecting of them , from particular cases or circumstances doe thus affirme : Regula Iuris est multorum Prateus de Reg: Iuris lib. 6. specialium per generalem conclusionem brevis comprehensio . Or as Ioachimus Hopperus in his first Ioach. Hopp . de Iuris arte 371. a. booke de Iuris arte , though disagreeing in words , yet one in the sense with the former ; Regulae Iuris sunt quaedam coniectiones tantum , & breviaria ex pluribus speciebus in unum per commune aliquod collecta . Another of them in this manner , Regula est sententia Sim. Shardius Lexic . Iuris Regul. generalis , quae ex plurium legum mente à Iuris consultis notata atque animadversa , paucis verbis summam earum consentionem & tanquam harmoniam complectitur .

Matheus Gribaldus in his first booke de ratione Matheus Gribaldus l. 1. c. 7. de ratione studij Iuris . studij cap. 7 saith , Regulae Iuris nihil aliud sunt quàm breves & compendiosae sententiae ex pervagatis definitionibus perstrictae , quò & minori labore discantur , & faciliùs diutiúsque memoria teneantur .

Notes collected out of Authors .

Regula Iuris est plurium conpendiosa narratio , & Paulus lib. F. de regula Iuris . quasi causae coniectio .

Nec absimile est quod Grammatici dicunt , eam esse multorum similium collectionem .

In summa autem est , ac si quis , praedictis cum verbis Ant Masae de exercitio Iurispr . lib. 1. Archid. dist. 3. c. Reg. coniunctis , ita diceret , quod Regula sit compendiosa definitio ; seu cum Quintiliano universale , vel perpetule praeceptum diversarum rerum , quasi sub unâ eadémque causâ cadentium , universitatem complectens .

Est Regulanihil aliud quàm plurium rerum & specierum Ioach. Hopperus de Iurit arte l. 2. so. 469. a. in unam quasi summam coniectio .

But binding our selues to no prescript rules of Art , for the better vnderstanding of the same , we may describe a Rule or Ground of Law thus : A Ground , Definition , Rule , or Principle , of the Law of England is a conclusion either of the Law of Nature , or deriued from some generall Custome vsed within the Realme , conteyning in a short Summe , the reason and direction of many particular and speciall occurrences .

As touching the diuision thereof , wee shall better Diuision . obserue how many Principles and Grounds there be , by the due consideration of their causes from whence they spring .

Non solùm ea quae insita sunt causae dicuntur , sed De causis . Arist 11. Met. c. 4. T. 23. etiam ea quae extrinsecus sumuntur : ut id quod motum affert & efficiens est .

Causarum quatuor sunt genera . Arist. l. 2. Dem. c. 11. To. 11.

1 Vnum est forma atque essentia rei .

2 Alterum est in quo inest necessitudo non absoluta , sed ex adiunctione ; si alia quaedam sint , haec esse necesse est .

3 Tertium genus est id in quo inest rei efficiendae vis primaria .

4 Quartum est finis cuius causâ aliquid fit .

Nam ad interrogationem factam per verba , propter Ant. Masae de exercitio Iurisperitorum l. 1. p 38. b. quid fit aliquid , nihil aliud unquam respondetur , quam aliqua exdictis quatuor causis : Inter quas tamen , finis est potisstma , & quasi aliarum causa : Materia enim non esset causa , nisi haberet formam ; & forma itidem nisi ab agente introduceretur ; Agens quoque nen ageret nisi moveretur à fine ; finis autem ipse immobilis permanet : Est ergo primum movens , & prima causa , &c.

All causes of euery thing are either Internall or Externall . Internall are the causes Materiall Formall . The externall causes are the Efficient Finall .

As touching the Materiall cause , matter , or subiect Materiall cause wherein these grounds are conversant , the same are all those things , whereof debate may rise betweene parties iudicially : which are as well diuine as humane . Insomuch as Iuris prudentia , or the knowledge of the Law , is Divinarum humanarúmque Blacton lib. 1. cap. 4. § 4. rerum scientia . And hence proceedeth it , that all Grounds or Rules of the Law of England in respect of their matter which they doe concerne , are either such as are not restrained to any one proper or peculiar title of the Law , but as occasion serueth , are appliable vnto euery part , title , or tractate of the Law , as by the view and due consideration of examples following may be made manifest ; All which , being either conclusions of Naturall reason , or drawne and deriued from the same , do not onely serue as directions and Principles of the Law , but are likewise as Positions and Axiomes to be obserued throughout all mans life and conuersation ; hauing their originall from those Arts that are necessary and behoofull for maintenance of humane societie .

And first of all concerning the Art of Logicke ; Grounds borrowed out of Logicke . from thence the learned of our Lawes haue receiued many Principles , as well out of that part which concerneth the Inuention of Arguments , as of that which teacheth the disposing , framing and the Iudgement of the same .

From the first part these may serue for example .

Idem non potest esse Agens & Patiens . 14. H. 831. a. b. 28. b. 8. 10. b. n. 37. Dyer . Com. 213. b. Com. 323. b.

Omne maius continet in se minus .

Magis dignum trahit ad se minus dignum .

In praesentia maioris cessat minus .

Frustra fit per plura quod fieri potest per pauciora . 9. Hen. 7. 24. a.

Turpis est pars quae cum toto non convenit . With Com. 161. a. many such like , &c.

From the Iudiciall parts of Logicke , these and diuers others .

Qui negat confusè , negat confusè & distributivè . 2. Rich. 3. 7. a.

But how that saying may be vnderstood , and in what sense it may be intended true , and in what not , peruse the case of 4. Hen. 7. 8. a. touching the travers of a suggestion of breach of the peace : ( where although the said Rule be not mentioned , yet the meaning thereof , by the case there debated is partly made manifest ) Moreouer Brian borroweth the Sophisters verse , and maketh it a Ground to try whether an issue tendered be an expresse Negatiue or no , in 11. Hen. 7. 23. a.

Prae contradic . post contrar . Prae postque Subalter .

This likewise is deriued thence , Negativum nihil implicat .

Out of naturall Philosophie these with diuers other are deducted , that follow .

VIS vnita sortior . Grounds borrowed out of naturall Philosophie .

Est naturae vis maxima .

Vltra posse non est esse . Com. 307. a. Com. 307. a. Com. 72. b. Com. 268 a. Com. 294. a 8. Ed. 4. 10. a.

Sublata Causa tollitur effectus .

Vltra scire non est esse with many other of like quallitie .

Out of Morall Pihlosophie .

FRom whence , as from a Fountaine , all Lawes Grounds borrowed out of Motrall Phylosophie . doe flow , we doe obserue these few following for an example ; As

Qui sentit Commodum , sentire debet & onus . Com. 244 a. 14 Hen. 8. 6. a. Com. 501. a. 13. Hen. 8. 16. a. 14. Hen. 8. 16. a. 14. Hen 8. 8. a. Com 160. b. Com. 370. b.

Volenti non fit Iniuria .

Sic vtere tuo vt alienum non laedas .

Fraus & dolus nemini patrocinantur .

Agentes & Consentientes pari poena plectuntur .

Summum Ius Summa Iniuria .

Vix vlla Lex fieri potest quae omnibus commoda sit : sed si maiori parti prospiciat , vtilis est .

A vero non declinabit Iustus . Com. 48. b.

Quod tibi fieri non vis , alterine feceris , with many more such like .

Out of the Ciuill Lawes there are also very many Axiomes and Rules .

WHich are likewise borrowed and Grounds borrowed out of the Ciuill Law . vsually frequented in our Law . For sith all Lawes are deriued from the Law of Nature , and do concurre and agree in the principles of Nature and Reason : And sith the Ciuill Lawes , being the Lawes of the Empire , doe bewray the great wisdome whereby the Romane estate , in the time it most flourished , was gouerned : Sith likewise the Law of this Land hath alwaies followed best and most approued Reason ( which is also a type of humane wisdome ) it doth ensue of necessitie , that great Conformitie must be betweene them . Which Conformitie may be made apparent partly by these ( amonge some thousand Axiomes and Conclusions of Reason ) following .

Qui tacet consentire videtur .

Vigilantibus & non dormientibus Iura subueniunt . Com. 357. b. 5. Hen 3. 222.

Quod initio non valet , tractu temporis non Convalescit .

Quando duo Iura in vno Concurrunt , aequum est Com. 168. a. ac si esset in duabus .

In aequali iure , mclior est Conditio possidentis . Com. 296 b.

Optima Legum Interpres est Consuetudo . Com. 336. b.

Frustra Legis auxilium petet , qui in Legem peccat .

Ignorantia facti excusat. 14 Hen. 8. 27. b.

Modus Legem dat donationi . Com. 251. a.

Non est regula quin fallat . Com. 182. b. 1. Hen 3. 33. 〈◊〉 .

Modus & Connentio vincunt Legem .

With others in manner infinite , written and published in the Latine tongue .

In the French also many other grounds there are in our Law , to befound agreeable in sense and meaning to such as are frequent and vsuall in the Ciuill Lawes , and there published in the Latin-tongue , wherof also these following may serue for example .

Nul prendra benefit de sontort demesne . L. verum . §. tempus : fitz . pro soc . L. sedes de rescript . L. bona fides ff. de Reg. Iuris .

Nemo ex dolo suo proprio releuetur aut auxilium capiet .

Homo ne sera double charge pro vne mesme duetie .

Bona fides non patitur idem ab eodem bis exigi .

Auxy moult aucthorities & voies que home ad a faire vn fait auxy mult auctorities & voies ad cesty a qui le fait est fait a ceo dessoluer . 1. Hen. 7. 16. a.

Nihil est magis Rationi consentaneum quam eodem L. nihil ff: de Regul Iuris . 13. Hen. 8. 16. 〈◊〉 . in fine . modo vnum quodque dissoluere quo constatum est .

Le Common welth sera prefer deuant priuate wealth .

Vttlitas Publica priuatorum Commodis ante-ferenda . L : 1. § . fin . & cap. col .

Le ley in cheseun act ad respect al comencement : Com. 260. a. Halls case .

Origo rerum attendenda .

Imagination de mente de faire tort , sans de Act Com. 259. b. Halls Case sait , nest punishable in nostre Leg.

Affectus non punitur nisi sequatur effectus . Prateus Com. 160. b. Throgm . Case . Lib. 3. c. 4.

Intent direct done plus tost quam parolls .

Proferent is intentio & voluntas magis quam verborum locutio examinetur . Prateus lib. 3. cap. 3.

Quant diuers choses sont fait a vn mesme instant , Com. 504. b. & lune ne poet prender effect sans l'auter ; le common ley adiudger ceo depreceder & ensuer , que aptment : do et preceder & ensuer in feasant l'intent des parties deprender effect .

Vbi in Instrumento reperitur plures actus successive fuisse celebratos , semper fingitur ille actus praecessisse qui reddit actum validum . Nicholai Euerard Topica Iuris loco 1.

Non attento ordine verborum , talis ordo presumitur qualis debet esse .

With many others to like purpose , if place did permit or cause did require to obserue the same : Yea many times when as no ground or Rule is expressed in our Law , but that we may onely Collect Cases Concurrent vpon some Conformitie of Reason : We shall finde in the Ciuill Lawes a Proposition or Rule which shall most aptly and most fitly expresse the same Reason in such shortnesse of speech , as nothing shall seeme more sufficient in that respect . And vnto the which Propositions such as are or may be framed by vs in the French , cannot in excellencie be worthily Compared .

As touching the Canon Law . Forasmuch as the Groundes borrowed out of the Canon Law . studies both of the same and of the Ciuill Law , are in sort conioyned by the professors of both what may be sayd of the one , in this respect , may likewise be verified of the other : Which aswell by view of the title De Regulis Iuris in Sexto Decretalium , as also in diuers other titles of the same Law , especially in such as are most vsuall for matters of debate in this Realme , as are those of excommunication , Marriage , Diuorce , Legacies , Tythes , and such like will at large appeare .

Finally many Grounds and Rules of the Lawes Grounds deriued from vse , Custome , and Conuersation of men . of this Realme are deriued from Common vse , Custome , and Conuersation amonge men , Collected out of the generall Disposition , nature and condition of humane kinde : which Grounds are of two natures . The one obserued out of Humane actions , the other out of vsuall and ordinary speech .

( Principia externa propriè vocamus ea quae in Communi hominum vita versantur & ab experientibus & prudentibus animaduertuntur . Ioh. Hopper : de Iuris arte .

Haec non tam ex ipsa hominis natura quam foris adueniunt , debent que non ex mente hominis aut animo , sed ex Communibus vitae moribus longo vsu & tractatione colligi . Ibidem Haec sunt igitur illa quae dico externa Principia , quae ex communibus vitae vsibus & mortbus diligenter in historia obseruatis decerpuntur , quae que non tam òrdine describi , & Literts mandaeri , quam long a tractatione colligi , & per manus tradi possunt . Ibidem .

Of the first sort are these and such like following .

Home est tenus destre procheni a soy mesme . Com. 5 : 5. a. Paramour . Manxel . 6. a. b.

Le inclination de touts homes est de faire ou parler choses pour lour gaine & inent pour lour perde : Et deceux que voilent gabber , de gabber pur aduantage . Est le propeitie de nature de preseruer luy mesme . Com. 261. a. Hallsc●s . 8. Hen. 6. 19. b. Per. Martin .

Quant home est partie , ilne poet esse Iudge indifferent a luy mesme .

With many other of like qualitie , which the intendement of the Law deriueth and collecteth out of the vsuall Condition nature , and qualitie of things vpon the probabilitie and likely-hood of occurrences often or for the most part hapning and falling out .

Axiomes or Propositions of the second sort , are Prouerbiall Groundes . Prouerbium vulgò interpretatur probatum verbum , cum dicatur quasi Commune omxium verbum . Prouerbia verò citata , instar iurium baberi tradium est . L. solent . F. de officio Procurat . Sim. Sbardius Lexicon Iuris . Com. 280. a. drawne from the phrase of speech , and deduced from the ordinarie manner of Conference by talke among men most vsuall in all places , As are the Common and ordinarie Prouerbs and Prouerbiall assertions , and such like ; the which , as well by reason of their ordinarie and often vse in talke ; as also for their probabilitie and likelihood of trueth , haue beene sometime vsed as Axiomes , Principles , and Grounds of the Law ; and are to be found confirmed with many Cases , hauing beene vsed as reasons in the same : Whereof these few ensuing may serue for example .

Da tua dum tua sunt ; post mortem , tunc tua non sunt .

Qui ambulat in tenebris , nescit quò vadit . Com. 173. a.

Necessitas non habet Legem . Com. 18. b.

As good neuer the whit as neuer the better . 29. Eliz 356. a.

Let him that is cold blow the coale . 14. Hen. 8. 23. a.

One to beate the bush and another to take the birds .

With many other such like speeches , which although they are of small moment , being euery where ordinary ; yet neuerthelesse for the perspicuitie and plainenesle , they haue heretofore , at some times , in Law arguments beene vsed , and fitly applyed in debate of cases ( although not ad probandum , yet ad illustrandum ) and so likewise may at any time hereafter , vpon like occasion offered , without blame bee frequented .

Although these generall Positions , Maximes and Rules proposed , and such like , cannot bee properly reduced ( as is aforesaid ) vnder any one peculiar title of the Law extant in any abridgement , table , or directorie ; yet neuerthelesse may they be brought vnder generall titles or common places , to bee framed of purpose , As hereafter in place more convenient shall be declared .

And thus much therefore of generall Grounds or Maximes .

Now followeth to speake of such as are to bee reduced Maximes appliable onely to one title . vnder one particular title , tractate or matter of the Law , seruing to no other vse , but onely doe concerne the said speciall matter , and cannot bee transferred thence , neither may properly serue any other then their natiue place , vnto the which they are wholly and alonely to bee referred : As for example .

Vnder Grantes these .

Quandoaliquis quid concedit , & id etiam concedere T. E. 1. Fitzb. Grantes . 36. Ass. p. 3. videtur , sine quo res concessa esse non potest .

Grant sera prise plus fort vers le Grauntour &c.

Vnder Contracts these and such like .

Ex nudo pactonon oritur acti . Com. 5. a. Com. 302. a. Com. 305. a. Com. 321. a.

Contract ne poit estre , si ne soit que chescum partie 17. Ed. 4. 1. a. soit agree .

Vnder Prerogatiue these and such others .

Nuslum tempus occurrit Regi . Com. 243. a. 261. a. 321. a.

Le Roy ad auxy un Prerogatiue en le forme de brefs Vide 18. Ed. 3. 2. a. port per luy , different de Ceaux que common person ad , &c.

Vnder Deeds these .

Fiunt al aliquando Donationes in scriptis , sicut in Bracton lib. 2. c. 16 fol 33. b. 14. Hen 8. 22. b. Brudnel . Vide Litt. 18 : 21. Hen. 7. 37. b. chartis , ad perpetuam memoriam , propter brevem hominum vitam & ut faciliùs probari posit Donatio .

Choses incident que per leur mesme ne potent estre grant sans fatt , uncors ils passeroni oue le principal a qui sont incident sans fait . With diuers other in euery title of the Law of like effect .

These speciall Grounds are of diuers sorts : for The diuers kinds of Grounds which doe concern one title . some concerne the very nature and essence of the title : some the consequents and incidents annexed thereunto . Those which doe concerne the nature of the thing , doe flow from some of the causes thereof , as the Materiall , the Formall , the Efficient , or the Finall . Some from the generall notion ; others from the speciall difference ; and some doe proceede from the effect . Those which doe proceed of the consequents , concerne either the Incidents inherent and inseparable , or the adiuncts and such like .

Which Grounds so drawne , if they bee orderly disposed with all their subdiuisions , and particular Rules , and the same furnished with apt cases , will make a perfect and exact treatise of such matter as concerneth that title , resembling those treatises compiled , by Littleton , Parkins , Stanford of the Plees of the Crowne , and others of like forme .

But in this place not intending to combine any Arbitrement . such Grounds as doe concerne one title or matter , or thereof to endeauour to draw a type of any perfect treatise , it shall be sufficient at this present , for example only , to expresse that which is here meant , by the disposing of some few Grounds of the title of Arbitrement , according to the obseruation aboue mentioned , that thereby might be conceiued , how such like Grounds concerning one title or matter do flow from the causes and consequents of that title , whereunto they are applied ; and that a coherency of them might be both found and orderly framed for the more certaine obteyning of knowledge in obseruing this , or the like course to this hereafter following .

First although we finde not an Arbitrement to be defined in any report of our Lawes ; yet neuerthelesse Rastall in the small treatise of the Termes of the Law , thereof yeeldeth this description .

Arbitrement est un award , determination , ou Arbitrement Quid. iudgement , quel plusiors font al request de deux parties almenis , pur , & sur ascum dett , trespas , on outer controversie ewe perenter les dits parties . But more artificially it may be described out of the Ciuill Law thus :

Arbitrium est Arbitri sententia sive Iudicium inter controvertentes ; privato consensu , non autem publica interveniente authoritate , datum .

Out of the bookes of Reports of the Lawes of this Land this full description may be drawne .

An Award is a iudgement 8. Edw. 4. 1. 8. Edw. 4. 10. a. 21. Edw. 4. 39. a. giuen by such person or persons as are elected by the parties vnto the controuersie , 9. Edw. 4. 43. b. Fairfax . 16. Edw. 4. 9. a. for the ending and pacifying the said controuersie . 8. Edw. 4. 10. a. 19. Hen. 6. 37. b. Askewe . according to the comprimise and submission . 19. Edw. 4. 1. a. and agreeable to reason and good conscience . 19. Hen. 6. 37. a.

Touching the Etymologie or notation of the The Etymologie . names thereof , it seemeth to bee called an Arbitrement , because the Iudges elected therein , may determine the controuersie , not according to the Law , but Ex boni viri Arbitrio . Or else perhaps because the parties to the controuersie haue submitted themselues to the Iudgement of the Arbitrators , not by compulsary meanes , and coertion of the Law , but Ex libero Arbitrio suo , of his owne accord . It is called an Award of the French word Agarder , which signifies to decide or iudge . It is in the Saxon or old English sometime called a Loueday , for the quiet and tranquillitie that should ensue thereof , and for the ending of the cause which is wrought thereby .

The Materiall cause whereabout it is conuersant , The Materiall cause . is the controuersie , which

1 First may be either action , suite , quarrell , or demand ; and the

2 Second that , concerning dutie or demand , either personall , reall or mixt , or euery of them .

The Formall cause is , the forme and manner of the The formall cause . Award , or the yeelding vp of their iudgement , according to reason , intent and good meaning .

The Immediate efficient cause , is the Arbitrator The efficient cause . or Arbitrators .

The Mediate efficient cause , is the comprimise or submission , and the parties at variance , being also parties to the submission . Wherefore for the more breuitie we will discourse of euery of these last recited , when we shall discouer the power of the Arbitrator .

The finall cause , is both to appease The finall cause .

1 First the debate and variance so risen betweene the parties , and compremitted ; and also to reduce

2 Secondly that which was before vncertaine , vnto a certaintie .

So that by these you see , that those fiue things which are found to bee incident to euery Award , viz.

1 First matter de controuersie .

2 Submission .

3 Parties al submission .

4 Arbitrators and

5 Render sur del Iudgment , spoken of in 4. Eliz. Dyer 217. a. are here reduced into a methodicall consideration of the causes of euery Award , seeing indeed , they and no other are the very causes of the same .

The Genus or generall notion of the former description , Genus . is , that it is a Iudgement .

The speciall difference whereby it is distinguished Differentia . from other Iudgements , and expressed in the said description , is , that it is giuen by Iudges elected by the parties , and not by coertion of the Law .

The effect is , when it concerneth any payment of The effect . money , to alter , change and make the controuersie transire in rem iudicatam , and thereupon to giue action for the summe awarded .

If it doe determine any collaterall or other matter 2 then payment of money to bee made or done , then is it not compulsary to constraine the parties to performe it ; but euery of them is restored to his former action . Except the comprimise or submission be by deed ; and so therein it resteth wholy vpon that security by bond , couenant , stature , or recognizance , by the which the parties comprimitted themselues .

The Adiunct , is the performance thereof and the The Adiunct . manner how , which whether the Award be performed or not , it maketh nothing to the nature and substance of the Award it selfe . But neuerthelesse such performance of the Award is a requisite consequent annexed to the consideration of the nature of an Award .

These the generall causes of an Award thus considered ; next followeth the consideration of the Groundes that flow from euery of them .

From the Materiall Cause which is the Controuersie , Materiall cause these Groundes or Rules are deduced .

In Reall matters quo Concerne franke tenement , Reall Matters Arbitrement ne lia , le title , ne done ceo . 14. Hen. 4. 19 a.

In matters of Realtie which Concerne freehold , an Arbitrement doth neither giue title nor bind the right .

In Reall Actions , vn Arbitrement nest plee . Reall Actions Mixt Actions .

In Mixt Actions , Arbitrement nest plee ; Si non que le Comprimise soit per fait . 19. Hen. 6. 37. 6. Newton .

In Personall Actions sur Personall torts , Arbitrement Personall Actions . est Plee , coment que le submission ne soit per fait . 14. Hen. 4. 24. b. Rauish gard . Reall Chattells

In Controuersie concernant le propertie de Reall Chattells , vn Arbitrement transfer propertie de ceo accordant al agard 21. Hen. 7. 29. b. Personall Chattells .

In Chattells Personall , Arbitrement transfer propertie .

In Personall dutie grounde sur specialtie , Arbitrement Personall dutie . nest availeable . 3. Hen. 4 , 1. b. 8 Hen , 5. 3. b. Matters de Record .

In Controuersie ground Sr matter de Record , Arbitrement ne sera regard . 6. Hen. 4. 6. a. 8. Hen. 5. 3. b. 4. Hen. 6. 17. b. Dutie in certaine .

Arbitrement do et este de Dutie inent certaine . 6. Hen. 4. 6. a. 2. Hen. 5. Fitzh. 23. 4. Hen. 6. 17. b. 10. Hen. 7. 4. a. Dett .

Controuersy de dett solement . ne poet este misi on Arbitrement . 45. Ed. 3. 16. a. 2. Hen. 5. Fitzh . Arbitrement . 23. 8. Hen. 5. 3. b. 4. Hen. 6. 17. b. 10. Hen. 7. 4. a.

In Contract de det oue auter chose mise en Conprimise Debt . Arbitrement sera bone . 2. Hen. 6. Fitzh . Arbitrement 23. 4. Hen. 6. 17. b. 10. Hen. 7. 4. a.

Dett sur Contract sans specialtie , per le resolution Dett . de ascuns liuers poet ester mise en Arbitrement . 45. Ed. 3. 16. a. 6. Hen. 4. 6. a 4. Hen. 6. 18. a.

These with diuers other grounds , doe proceede , as we haue said , from the Materiall Cause or Controuersie .

There resteth now to speake of such as doe proceede Formall Cause . from the Formall Cause .

Euery Award , as touching the forme thereof , ought to haue these foure qualities .

1. First that it be not of a thing impossible to be performed by the parties .

2. Secondly , that it doc not ordaine matter vnlawfull to be done .

3. Thirdly , that the same Award agree with Reason and with good meaning .

4. Fourthly , that it be sensible , full , and perfect in vnderstanding .

As touching the first .

1. Arbitrement ne doiet este de chose ou matter Impossible . impossible . 8. Edw: 4. 1. b. Moyle . 8. Edw. 4. 10. a. Yeluerton . 19. Edw. 4. 1. a. Neele . 9. Hen. 7. 16. b. Keble .

2. Arbitrement ne doiet este de chose encounter ley . Encounter Ley. 19. Edw. 4. 1 a. Neele . 21. Edw. 4. b. Bridg. 9. Hen. 7. 16. a. b. Keble .

3. Arbitrement ne doiet este reasonable . 46. Edw. 3. 16. a. 43. Edw. 3. 17. b. 2. Hen. 5. 2. a. 17. Edw. 4. 5. b. 9. Hen. 7. 10. b. Keble . 4. 6. Edw. 3. 17. b. 21. Edw. 4. 40. a. 10. Hen. 4. Fitzh . Arbitrement .

This Ground last remembred , being generali , containeth therein many speciall Rules vnder it ; whereof some doe follow .

Arbitrement doiet este tiel que les parties poient performer Satisfaction . sans le assistance de ascunes auters quenx ils ne poient compela ceo faire & performer . 8. Edw. 4. 2. a. Illingworth . 17. Edw. 4. 15. b. 18. Edw. 4. 23. a. Catesby . 19. Edw. 4. 1. b. Brian .

Mes si les parties ont mean per le ley a Compeller Assistance des auters . tiels estrangers a ceo performer , le Agard est assets bone . 17. Edw. 4. 5. b.

Arbitrement g'le partie faire vn Iudiciall Act est Iudiciall Act. bone , coment que il ne poiet ceo performe sans assistance del Court . 19. Hen. 6. 38. a. Past. Nonsute . 19. Edw. 4. 1. b. Brian . fine . 12. Edw. 4. 8. a. Retraxit . 21. Edw. 4. 38 a. Retraxit . 5. Hen. 7. 22. a. b. Discon &c.

Chascune Arbitrement que ne import satisfaction del Satisfaction . tort que est mise in comprimise , nest bone . 43. Edw. 3. 28. b. sinchd . 46. Edw. 3. 17. b. 2. Hen. 5. 2. a. 45. Edw. 3. 16. a. 19. Hen. 6. 38. a. Past : 22. Hen. 6. 39. a. Port. 30. Hen. 6. Fitzherbert Arbitrement . 27. 9. Edw. 4. 44. a. Choke . 9. Hen. 7. 16. b. 12. Hen. 7. 15. a.

This Ground is also Generall : Wherefore it shall be expedient to diuide it by the particular Circumstances of cases vnto more especiall propositions , together with their seuerall Exceptions to be set downe in manner following .

Arbiterment in tiel maner , que pur ceo que vn des Redeliuerie desbiens . parties ad les Chatells delauter , que il eux redeliuera , ceo nest satisfaction . 45. Edw. 3. 16. a. Kirton . 2. Hen. 5. 2. a. 12. Hen. 7. 15. a.

Mes si sur le deliuery des biens , cesty a que serront Redeliuerie des biens . deliuer poet auer ascun benefit , per tiel deliuery in satisfaction del tort , donque est le Arbitrement bone . 2. Hen. 5. 2 a. 14. Hen. 4. 14. b. 12. Hen. 7. 15. a.

Arbitrement que vn partie auera vn parte del Parte del Chose . chose comprimise , & Sr que le controuersie fat , & l'auter partie l'auter parte est voide . 45. Edw. 3. 16. a. 10. Hen. 4. fitzh . Arbiterment. 19.

Arbitrement que le partie paiera part de sadett , Part del Chose est voide . 45. Edw 3. 16. a.

Arbitrement sur matter de dett , sils agard que le parties endebted payera plus que il doit in recompence Plus que il doit . del dit dett ceo est void . 9. Hen. 7. 16. b. Keble .

Arbitrement que cesty que est Suppose dauer fait Gager de Ley. trespas , faira de ceo son Ley , et sur ceo sera discharge , nest satisfaction al auter , et pur ceo nest bone . 46. Ed. 3. 17. b.

Arbitrement que in Satisfaction del tort que les parties entermariont , ceo nest bone agard ; car nest satisfaction Entermariage . 9. Edw. 4. 44. a. Chock .

Arbitrement que vn des parties que est in arrerages Accomptera in accompt accomptera al auter , ceo nest satisfaction . 30 Hen. 6 Fitzh . Arbitrement . 27.

Arbitrement que les parties fera act a tiel iour , & deuant que le agard est perfect , le iour est passe til Iour passe . agard nest bone . 8. Edw. 4. 11. a. 8. Edw. 4. 22. a.

Arbitrement que refer le feasance del chose ou auter matter a tiel chose que nest in Rerum natura ; tiel Non in Rerum Natura . Arbitrement est voide . 21. Edw. 4. 40. a. 9. Edw. 4. 44. a. 39. Hen. 6. 10. a.

Haueing thus shewed the Circumstances of certaine Arbitrements , which haue beene taken to be against reason , sounding to no satisfaction , and therefore voyde : Now resteth to be shewed certaine Circumstances , in Arbitrements agreeable vnto Reason , Reasonable . and imparting satisfaction , and therfore deemed good .

Arbitrement do et este equall in respect d' Ambideux Equall . parties , & lune come l'auter sera lie a ceo . 7. Hen. 6. 41. a. Strange . 19. Hen. 6. 38. a. Newton . 20. Hen. 6. 19. a. Newton . 39. Hen. 6. 12. a. Moyle .

Lou diuers dune parties , & dauter eux submit al Enter ascunes Parties . agard , & le Arbitrement est , que lune de lune partie paiera a vn auter de lauter partie tant , Sans rien parler des auters ; ceo est bone agard , pur ceo que poet este que le auters naueront cause dauer ascun chose . 22. Edw. 4. 25. b.

Arbitrement pur ceo que les torts fait per les parties Quitt . chescun a lauter sont equal seront quit Chescun vers Lauter ; ceo est bone agard . 19. Hen. 7. 37. b. Newton . 20. Hen. 6. 19. a. Newton . 21. Hen. 6. Fitz. Arbit. 9.

Arbitrement que vne des parties sera quit vers lauter , Quitt . et que cesty auter paiera ou faira taut pur ceo que son trespas fut le greinder , est bone agard . 10. Hen. 6. 4. a. 20. Hen. 6. 19. a. Newton .

Arbitrement que lune done al auter quart de rine , Petit. Recompence . ou tiel petit recompence pur satisfaction del tort , est bone agard . 43. Edw. 3. 33. a. 45. Edw. 3. 16. b. Belknap . 9. Edw. 4. 44. a. Nedham .

Si le Arbitrement soit ; que vn des parties paiera Grenider value que le tort . grenider sum in value que le tort est que il ad fait , vncore le agard est bone , & ceo gist in discretion des Arbitrators . 8. Edw. 4. 21. Chock .

Arbitrement , que chescun release a lauter , est . Release . bone . 9. Edw. 4. 44. b. Danby .

Arbitrement que lune release tout son droit in tiel Release . terre est bone satisfaction . Si cesty a que le release sera fait soit in possession del terre &c. Et ceo appiert per le agard . 9. Edw. 4. 44. b. 21. Edw. 4 40. b.

Arbitrement que lune partie done al auter tel chose , coment que le partie nad tel chose vn core est le agard Doue● ceo que il nad . bone , et il doit prouide ceo . 19. Edw. 4. 1. a. Neele . 9. Hen. 7. 16. a.

Arbitrement bone in parte , et voide in parte . 19. Bone parte Edw. 4. 1. a.

Arbitratours poient ordaine act deste fait in lour Security del Agard . agard pur le meliour securitie del performance de ceo , come obligation . 8. Hen. 6. 18. b. Newton . 19. Hen. 4. 1. a. Chock .

Chescune Arbitrement do et este plaine , et certaine Certaine . in sence . 8. Edw. 4. 11. a. Pigot .

Arbitrement est chose entier . 18. Edw. 4. 23. a. Brian . Entier .

Thus much touching the Matter and forme of Arbitrements and the Axiomes , Grounds and Rules deduced from the same : Wherein we haue not expressed euery Rule that might be found in the books or collected thence , tending hereunto Neither are these Axiomes or Propositions here put downe , furnished with all those cases , that mighe be thereunto applied . For , not intending to expresse the type of any treatise of this title ; but onely a Methodicall Abstract or Directorie , that which is heere exemplified in part may be sufficient to expresse our meaning before declared . But to proceed .

The Efficient Causes , and the Rules drawne from Efficient Cause . the same do : come next to consideration .

The first whereof is the Arbitratour . Of whom the Author of the Institutions of the Canon Law Iohannes Paulus Lancelottus . Arbitrator Quid. giueth this description . Arbitri dicuntur proprie , qui ( nullam potestatem habentes ex lege ) consensu Litiganttum in Iudices eliguntur : in quos compromittitur , vt eorum sententiae stetur .

Out of the bookes of the Common Law , a description of an Arbitratour may be thus Collected .

Vne Arbitratour est Iudge priuate , esle● per les parties . 9. Edw. 4. 43. b. Fairefax . 16. Edw. 4. 9. a. Feneux . 19. Hen. 6. 37. b. Askew pur appeaser les debates enter cux . 8. Edw. 4. 10. a Billinge . Et de arbitrate et adiudge selonque lour bone intent . 19. Hen. 0. 37. a. Paston .

Sithence in the Award it selfe , the Law requireth such qualities , there hath not bin made many nor scarce any question , who may be an Arbitratour and who not : Neither ( considering what hath beene said touching the forme of an Award ) should it be greatly necessarie . Therefore we will proceede respecting in the Arbitratour these three things .

1. First his Ordinance , from whom it is .

2. His Authoritie , what it is .

3. His Dutie wherein it Consisteth .

Touching his Ordinance , he is ordained by these Ordinance . two things .

1. First by the Election of the parties . 20. Hen. 6 , 41 , a.

2. By his own vndertaking of the Charge . 8. Edw. 4 , 10 , a.

Billinge .

Touching his Authoritie , what it is . Authoritie

1. First it is deriued from the Submission ; and extendeth no further .

2. Thereby he is a Iudge betweene the parties .

3. And therefore he cannot transfer his authoritie ouer to any other .

Touching his Duty , it consisteth in these three . Duety .

1. First to heare the griefe of the partie .

2. To iudge according to equitie .

3. To notifie their Award .

First therefore concerning the election of the Arbitratours by the parties to the Controuersie Election of the Arbitratour . ( which ought likewise to be parties to the Submission ) there is first of all to be considered , what persons may by the Law submitte themselues to an Queux persons poient eux submitter al agarde . Award made by others , and what persons cannot .

And therefore ,

Si vne des parties submitt luy a vne Arbitrement Deputy . dune parte , et Depute del auter parte in nosme del dit auter party : Arbitrement Sur ceo fait per enter eux , semble bon . 4. Eliz. 217. a. 60.

Le Baron poet luy mesme submit al agard pur luy Baron & feme . et sa feme pur chattells des queux il adle disposicon in droit , et per reason de sa fem , et ceo Liera la feme . 21. Hen. 7. 29. b.

Si enfant submit luy al vne agard , il sera lye de ceo Enfant . performer cy bien come home de plein age . 13. Hen. 4 , 12 , a. 10. Hen. 6. 14. a.

Si diuers dune parte ont fait tort a vn auter , & cesti Ascuns des parties . a qui le tort est fait , et vn de les auters submit eux al agard , de cest agard fait les auters nient parties al submission aueron aduantage in extinguishment del tort . 7. Hen. 4. 31. b. 20. Hen. 6. 12. a. 20. Hen. 6. 41. a.

Si divers del une parte submitt eux mesmes al agard Ioynt et seuerall . de certaine persons , & divers del auter parte : Les Arbitratours ont power de faire agarde pur matters enter eux ioyntment , & issint pur matter enter eux seueralment . 2. Rich. 3. 18. b. vide 21. Hen. 7. 29. b. Com. Dalton . 289. b.

Si divers del une parte & de auter submit eux al agard Ascunes des parties . del une , que fait agard perenter ascunes dune party , & ascunes del auter party et nemy perenter eux touts , & ne parle rien en son agard des auters , uncore tel agard est bone . 22. Edw. 4. 25. b.

Thus much touching the parties that doe submit themselues vnto an Award , and which make an election of the Arbitratours . Now followeth Vndertaking the Award . that somewhat be also said as touching the vndertaking of the charge of the said award .

Si le Arbitratour protest , que il ne voile meddle Del parcell . ave tout ceo que est commit a luy ou conteyne en le submission ou sil fait agard tantum del percel , le agard est bone 19. Hen. 6. 6. b. 39. Hen. 6. 11. b. Prisot , cont . 4. Eliz. 217 , 60. 7. 1. Eliz. 243. b. 52.

Mes si le submission soit per fait condicionalment Parcell . que le dit gard soit deliver deuant tiel iour : une Arbitrement de percel nest bone 4 Eliz. 217. 60. 7. 8. Eliz. 243. b. 52.

Mes uncore , si le submission soit que ils estoieront al Parcell . agard des Arbitratours de tout le chose comprimit ou fait pur ascun percel de ceo : donque le Arbitrement est bone pur parcel . 39. Hen. 6. 11. b.

And thus much hath beene said of the taking vpon them of the charge of the Arbitrement .

Now resteth it likewise to speake of the Authority of the Arbitrators themselues : which is , as before is declared , grounded vpon the submission .

The submission or comprimise therefore out of the Ciuill Law , is thus defined .

Compromissum est simultanea illa partium promissio , Compromise on submission . qua sua sponte , ad alicuius boni viri Arbitrium suam remittunt controversiam .

Submissions are in two manners , either by writing or by word .

These that are by writing , are either by obligation , or by couenant .

Which obligation is eyther of Record , as a Recognizance , or by deed betweene the parties .

And this Submission by writing , or by word is eyther absolute , or conditionall , so that the Award be deliuered by a certaine day , or such like .

Wherefore inasmuch as the authority of the Arbitratour is deduced from the submission , it followeth that ,

Le Arbitrement que est fait de chose inent containe Nient containe in submission . in le submission , est voide , 7 , Hen. 6 , 40 , b. 19 , Hen. 6 , 38 , b. Forsc. 9 , Ed. 4 , 44 , a. Chock . 19 , Ed. 4 , 1 , a. Neele . 7 , 8 , Eliz. 242 , b , 52.

Mes si le submission est de chose personales Arbitrators Nient containe in le submission . poient agard , que vn des parties fera act que est de chose real in satisfaction del personal tort . 9 , Ed. 4 , 44 , a , Brian .

Si le submission soit de chose real , les arbitratours Real . poient agard satisfaction deste fait de chose personal , 9 , Ed. 4 , 44 , a , Brial .

Si les arbitratours agard , que vn des parties fera Estrangler . act al estranger , come feofment , ou tiels sembles , tel Arbitrement est void , 22 , Hen. 6 , 46 , b. 17 , Ed. 4 , 23 , a , Catesby . 19 , Ed 4 , 1 , b , Brian . 5 , Hen. 7 , 22 , b.

Si le submission soit dune chose , le Arbitrement Incident . poit esse fait de chose incident a ceo . 8 , Hen. 6 , 18 , b. 19 , Ed. 4 , 1 , a , Chock . ver. 9 , Hen. 7 , 15 , b , 16 , a.

Vpon this authority giuen to the Arbitrators by the submission , to deale in manner as aforesaid , in things touching the same submission .

It ensueth also secundarily , that

Le Arbitrator est un Iudge perenter les parties , 19 , Iudge . Hen. 6 , 37 , b , Ascough . 9 , Ed. 4 , 43 , b , Fairf. 16 , Ed. 4 , 9 , a , leney . Com. Fogosta . 6. a.

Wherefore likewise it ensueth that the Arbitrator being a Iudge cannot transferre that his Iudiciall authority to any other .

And therefore ,

Si le Arbitrement soit , que les parties estoiera al Arbitrement Estranger . dun estranger ; ceo nest bone agard , 47 , Ed. 3 , 21 , a , Cont. 8 , Ed , 4 , 10 , 11 , a.

Mes si l'estranger ad sait un Arbitrement deuent Estranger . perenter les dits parties , le Agard pur estoier a tiel Arbitrement del estranger est bone , 39 , Hen. 6 , 10 , a , 11 , a.

Mes si le Arbitrement soit que les parties performera Estranger . le Agard dune auter deuant sait perenter mesmes les parties , lou in verity nest ascun tel agard : uncore cest Arbitrement est bone prima facie tanque soit nostre que nest tiel agard , 39 , Hen. 6 , 12 , a , Prisot .

Mes uncore si le Arbitrement soit , que une act limit Aduice . per le Agard sera fait per le aduise & counseil d'une auter person , tiel Agard est bone , 8 , Ed. 4 , 11 , a. 14 , Ed. 4 , 1 , a , Chock .

Mes si le Agard soit , que le act sera fait per le Advise Adul● . del Arbitratour mesme apres le Agard rendu sur tel Agard nest bone , 19 , Ed. 4 , 1 , a , Chock .

Si les parties eux submit al Agard de certaine persons , Vmpier . & sil ne poient agree , donque al ordinance dun auter come umpier si les Arbitratours font agard de parcel , umpier ne fera agard del auter parcel remnans , 39 , Hen. 6 , 10 , a , b.

Mes si le submission soit tiel que le umpier fera Agard Vmpier . del tout ou parte , donque il poit faire Agard de cest parte , ouesque que les Arbitratours nauont meddle , 39. Hen. 6. 11. b. Prisot .

Now as touching the duty of the Abitratours . First

Les duties des parties est a vener devant les Arbitratours Duty . & mre lour grieues .

1 Et le Arbitratour doit eux oir .

2 Et solonque ceo adiudge , ou auterment il nest bone Iudge , 8 , Ed. 4 , 10 , a , Billinge .

Those which affect the Method of Ramus ( that is to begin with the efficient cause , as here , with Arbitratour ) rather then that which is vsually prosecuted by the Interpretors of Aristotle ( namely to begin first with the matter and forme , which wee hitherunto haue endeauoured to follow ) may heere adde to , the second part of the duty of an Arbitratour ( that is , to that which hath beene here said of this Iudiciall Authority and Iudgement ) as much as hath beene before , first of all , shewed by vs , touching the Materiall and Formall causes and the Groundes and Rules incident thereupon .

But neuerthelesse , to proceed with our intended enterprise , touching the third part of the duty of an Arbitrator , viz. the publishing or notifying of his Award , It is to be considered that the publishing or notifying of an Award is either prouided for and ordained by the submission it selfe ; or else it is left and permitted to the discretion of the Arbitratour .

If it be prouided for , by the submission ; for the most part it is in this manner , that either the same Award made be notified to the parties , or some of them ; and that , either by a certaine day or time , or else without limitation of any time .

As concerning therefore the deliuery of the Award , their is to be noted ; that where such prouision is made of notification by the submission , that then ;

Arbitrement nest Arbitrement deuant que il soit Pronounce . pronounce . 8. Edw. 4. 21. b. Chock .

Lou per le submission est ordaine ou prouide condicionalment , Deliuery de Agard que le agard soit deliuer , ceo nest ascun Arbitrement in ley deuant que il soit deliuer in fait . 8 Edw. 4. 11. Yeluerton . 8. Edw. 4. 21. a. Chock . vide . 1. Hen. 7. 5. a. 37. Hen. 8. Browne , Condicions 46.

Mes si le submission soit que le agard sera deliuere Deliuery . al parties &c. deuant vn iour hoc petentibus , mes nul certaine iour limit quand doibt este deliuer les parties doient prender notice del agarda lour perill . 8. Edw. 4. 1. 8. 21. &c.

Si diuers d'un party & diuers de auter party submit Deliuery . eux al Arbitrement de vn auter , prouise , que il soit deliuer al parties , ou a vn de eux : ne besoign al Arbitratour a deliuer ceo a ambideux del vn party ou a vn de chacuns partie : mes suffist si soit deliuer al aseun des dits parties 4. 5. Eliz. 218. b. 5.

Si le submission soit que le Arbitrement sera deliuer Deliuery . Deuant tiel iour , il poet cy bien este deliuer per parol come per fait : si non que le submission soit que il sera per fait . 4. 5. Eliz. 218 b. 5.

Si le submission soit que le Arbitremnt sera deliuer County et lieu del deliuery . ceo poet este fait in vn County , & deliuer in auter County . 5. Hen. 7. 7. a.

Si le submission soit per fait , & le temps pas in que Temps . le Arbitrement do et este fait , les parties ne poient proroge le temps ouster pur faire le agard sans nouel submission a tel extent . 49 Edw. 3. 9. a.

Mes si le submission soit sans fait , les parties poient Temps . proroge le temps que fnt done pur faire le agard . 49 Ed. 3. 9. Fitzh . agard . 22.

Si les Arbitratours font lour agard per enter les Temps . parties vn iour , ils ne poient faire auter agard per enter les parties vn auter iour , coment que le temps don per le submission ne soit expire . 22. Hen. 6. 52. a. vide . 33. Hen. 6. 28. b.

Arbitrement ne Poet este fait parte a vn temps , et Temps . parte al auter , coment que soit deins le temps del submission . 39. Hen. 6. 12. a. Danby . 8. Edw. 4. 10. b. Fairfax 19. Edw. 4. 1. a. Chocke vide . 3. Hen. 4. 1. b.

Mes les Arbitratours poient Common enter eux Temps . mesmes , & agree sur vn chose vn iour , & de aute chose auter iour , & in le fine faire vne entire agard de tout : Et ceo est bone . 47. Edw. 3. 21. a. 39. Hen. 6. 12. a. Danby .

Si Arbitratours agard vn chose de vne parte , & Temps . deuant que ils poient agree de lour agard del remnant , le temps done par le submission expire ; tout lour agard est voide . 39. Hen. 6. 12. a Prisot .

But if there be by the submission no order taken for the Deliuery or Publication of the Award ;

Then

In honesty & Conscience le Arbitratour est tenus Notice . de faire notice al parties de ceo . vide . 8. Edw. 4. 10. a. Billinge . vide . 8. Edw. 4. 2. a. b. Markham .

Mes in rigore Iuris l'arbitrement mesme est intend Notice . chose Notorious . 8. Edw. 4. 1. b. Chock . 8. Edw. 4. 21. b. Chock .

Et per ceo .

Parties al Arbitrement sont tenus de prender notice del agard a lour peril . 8. Edw. 4. 1. 8. 21. 18. Notice . Edw. 4. 18. a. 1. Hen. 7. 5. a.

Coment que les Parties ne sont dauer Notice done a Notice . eux de L'arbitrement , vncore si les Arbitratonrs agard que un des parties fera act que depend sur auter primes deste faite del auter partie , de ceo il auer notice 8. Edw. 4. 21. b. 20. Edw. 4. 8. b. Sulliard .

Hitherto hath beene said of such matters where the Arbitratours haue executed their Authoritie without controull of the parties : But if , before any Award made , their Authoritie shall be Lawfully Countermanded . Then doth there remaine in this place to be considered .

1. Whether such Countermaunds be permitted by the Law .

2. And in what Cases not .

3. And also in what manner the same is to be done .

Wherefore

Si le submission soit sans fait , chescun des partes Countre 〈◊〉 poit countermand & discharge les Arbitratours . 49. Edw. 3. vide Fitzherbert Arbitrement 21. 21. Hen. 6. 30. a. 28. Hen. 6. 6. b. 5. Edw. 4. 3. b. 8. Edw. 4. 10. b.

Mes donque les parties doient doner Notice al Countermaund . Arbitratours del dit discharge . 8. Edw. 4. 10. b. Markham 8. Edw. 4. 12. a. Lakyn .

Mes si diuers d'vn part & diuerse d'auter partie Countermaund . eux submit al Arbitrement sans fait , vn del vne parte ne poet discharge le Arbitratour sans les auters son Compagnons de mesme le partie . 28 Hen. 6. b.

Mes si le submission soit per fait vn des parties ne Countermaund . poit Countremaund les Arbitratours . 49 Edw. 3. Fitzh . Arbitrement 22. nient in le liuer a large . 5. Edw. 4. 3. b. 8. Edw. 4. 11. b. Pigott .

The last cause of the fower before remembred Regule a causa finali . being the Finall Cause ( that is ) the end and scope wherefore men do submitte themselues vnto the Arbitrement and Award of any person , consisteth vpon two things .

1. Chacun Arbitrement est a faire final determination & de appeaser le strifes , debates & variances Final determination . enter les parties . 19. Hen. 6. 37. b. Newton . 8. Edw. 4. 10. a. Lakyn . 8. Edw. 4. 12. b. Yeluerton .

2. Chacune Arbitrement est a reducer chose incertaine A reducer incertainetie al certainetie . a vne aertainetie & nemy a reducer vn certainty in auter certainetie 6. Hen. 4. 6 a. Hankford . 4. Hen. 6. 17. b. Weston . 10. Hen. 7. 4. a.

Thus much hath beene said as touching the Causes .

Now as concerning the Genus or Generall Notion in the former definition of an Arbitrement , It is to be considered , That

Chescun Arbitrement est vn Iudgement . 8. Edw. Iudgement . 4. 1. b. Fairefax . 8. Edw. 4. 10. a. Ieney . 21. Edw. 4 39. a. Vauasour .

Because the speciall difference vsed in the said former definition of an Award , was this , That it was giuen by Iudges elected by the parties and not by Compulsary Iurisdiction of the Court , thereof enseweth , that

Il est diuersitie lou home est Iudge per authorite Intent del Arbitrator . del ley , & per Election del partie mesme : Car Iudge de Record ne doner Iudgement vers les parties , sinonque ils sont appells deuant eux per proces del ley : Mes autrement est dun Arbitratour que est Iudge per enter les parties . 8. Ed. 4. 2. a. Illing sworth .

Of this also ensueth , that whereas euery Iudgement of Record shall be executed literally , according to the warrant issuing out of the Record , vpon and for the executing of the said Iudgement ; Yet neuerthelesse .

Chescune Arbitrement doit este expound et intend Intent . accordant al intent des Arbitratours , & ne my Literalment . 17. Edw. 4. 3. Brian . 21. Edw. 4. 39. a. b. vide 19 Hen 6. 36. b. Markham .

Mes si l'intent des Arbitratours ne estoit oue la ley : Intent . donque les parties ceo performera accordant eux parolls in tiel sence que agree ove le ley . 21. Edw. 4. 39. b. Fairefax .

The Causes of an Arbitrement being thus deciphered , there followeth next the Consideration of the effects thereof .

The Effects of an Arbitrement are these which do ensue .

Per Arbitrement le Controuersie transit in rem Transition in rem Iudicatam . Iudicatam . 49. Edw. 3. 3. a. Hanmer . 20. Hen. 6. 41. a. Paston . 9. Edw. 4. 51. a. Danby . 6. Hen. 7. 11. b. Hussey . Com fogassa . 6. a.

Et pur ceo

Lou le party port action pur le tort a luy fait , est I●rnient venu par pay se mony . bone Plea que il eux submit al Arbitrement de tiels ; qui agard que il paieratant &c mes le iour de payment , de ceo nest vn core venu . 6. Hen. 7. 11. b. Hussey . 9. Edw. 4. 51 , a. Chock . 20. Hen. 6. 12. b. Newt. 20 Hen. 6. 40. a. b. Paston 28. Hen. 6. 12. 5. Edw. 4. 7. a.

Mes si le iour de payment soit pass , il doit monstre Iour de payment que il tender les deniers al iour , & que il est vncore prist . 8. Hen. 6. 25. b. Martin . 16. Edw. 4. 8. b. Pigot . Vncore prist .

Car ,

Arbitrement per que les Arbitratours agard , que Dene action . vn des parties paiera money , done action . 15. Edw. 4. 7. a. Chock . 16. Edw. 4. 9. a. Pygot . 17. Edw. 4. 2. b. Townssend . 17. Edw. 4. 8. a. Pigot . Fitzh . Natura breuium H. 121. que . 6. Hen. 7. 11. b. Hussey . 9. Edw. 4. 51. Danby .

Et si les parties ne performe L'arbitrement , le parte Restore al primer action . est restore a son primer action . 49. Edw. 3. 3. a.

Mes vncore est a son Election de auer Briefe de debt Restore al primer action . sur le agard , ou le primer Action . 49. Edw. 3. 3. a. 33. Hen. 6. 2. b.

Mes si le payment soit fait , le primer tort est tout Determine . ousterment determin per le agard 4. Hen. 6. 1. a. 8. Hen. 6. 25. b. 21. Hen. 7. 28. b :

Ex que ensuit auxy

Si les Arbitratours a gardant , que vn des parties Double Action . paieratant des deniers , Et chacun de eux est , oblige al auter pur estoier al agard le party auera action sur le agard , & auxy le fait si agard ne soit performe . 21. Edw. 4. 41. b. 33. Hen. 6. 2 b.

Si le submission soit per paroll & Arbitrement soit que vn des parties fairont vn collateral act , auter que Collaterall matter . payment des deniers , ceo ne done action , & si ne soit execute in fait et satisfie , le Arbitrement nad ascun effect ; Et tel Arbitrement ne determyn le primer tort , 19. Hen. 6. 38. a. Newton : 20. Hen. 6. 19. a. Markham . 5. Edw. 4. 7. a. Chock . Comfogossa . 11. b.

Vncore si le submission soit per obligation , si vn Collaterall matter . Collaterall act soit agard deste fait ; si ceo ne soit performe , le obligacion sera forfeit . 9. Edw. 4. 44. a.

Thus much touching the effects of an Award .

A Consequent thereof is , the Performance ; wherin we are to Consider , That .

Les Parties doient faire tout ceo que in eux est ceo Performance . performe . 21. Edw. 4. 39. b. Fairfax .

Si per le Arbitrement soit agard que vn act sera Assistance . fait le quel home poit performer , in deux manners lun voy per luy mesme , et per l'auter voy il doit auer l'aide d'un auter person : le party doit ceo performer per tel meanes que il solement poit faire sans aid de l'auter . 21. Edw. 4. 40. b : Hussey .

Arbitrement ne doit este performe in part , et in part Parte . ne my . 6. Hen. 7. 10. b.

Mes Coment que Arbitrement ne poet este fait per Parte . les Arbitraetours , part a vne temps , et part a auter temps : vncore ceo poit este performe part a vn temps et parte al auter . 8. Edw. 4. 10. b. Fairfax .

Les parties aueront Reasonable temps a eux allowe Temps . pur le performer , D'un agard , si nul temps soit limitt . 20. Edw. 4. 8. b. 21. Edw. 4. 41. a. b. &c.

Si le act que les Arbitratours agard que l'un party Primer Act. performera , ne poit este performe , denant auter Act primes fait per lauter partie , si cest partie ne fait le primer act , l'auter est excuse . 5. Edw. 4. 7. a.

Arbitrement que l'un partie patera mony , & l'auter Tout 〈◊〉 〈◊〉 fera Relcas ; ceo sera fait a vn mesme temps , si ne soit obligation a performer le Agard . 21. Hen. 7. 28. b. Knightly , & Reade .

Mes si soit Obligation a performer le agard , donque Chacun perform son parte chacun doit performe son parte de soubs le peril de L'obligation . 21. Hen. 7. 28. b. Reede .

Si Obligation soit fait pur estoier al Arbitrement Voide Award Quaere . coment que le Arbitrement soit void in Ley , vncore ceo doit este performe , auterment le Obligation sera forfeit 22. Hen. 8. 46. b. Port. per Cur.

Mes si action soit port sur tel void Agard , le Action Void agard . ne sera maintaine . 22. Hen. 6. 46. b. Port.

Si le matter Contenus in le agard , & le matter Ane●ment . contenus in le submissior . de que les Arbitratours doient agarder , differt in parolls , ou in circumstance , les parties al Arbitrement ne seront receiue in sute sur ceo de auerrer que tout est vne . 7. 8. Eliz. 242. b. 52.

Thus much hath beene spoken concerning Arbitrements , their Causes , Effects , and Consequents .

There resteth to accomplish our intended Methode , that we adde somewhat touching that wherewith an Arbitrement is compared , matched and resembled in the Booke Cases .

Wherefore know you that ,

Chacun Accord resemble vn Arbitrement . Paria . Differentia .

Vncore Chacun Accord doit este satisfie oue Recompence ; et Accord ne done Action ; leu del auter parte Arbitrement pur que les parties sont adiudge de paier deniers , done action ; & ne besoique dests pledc , execute come deuant ad apparus . 6. Hen. 7. 11. b. 5. Edw. 4. 7. a. 17. Edw. 4. 2. b. 17. Edw. 4. 8. a. Com. 6. a. Fogassa .

And thus farre forth for example sake , haue we set out these Grounds and Rules of Arbitrements .

Whereunto if there were added , in their due places , the residue of the Rules and Grounds which may be collected out of the bookes of the Law concerning the same , and furnishing both these and them with as many Cases as might be applyed thereunto ; the same Cases being put at large vnder euery of their Rules , to demonstrate that in particuler , which the Rule includeth in generall , the enterprise would proue ( as I thinke ) some shew of a Treatise , concerning this Title .

Which being no hard thing to accomplish , thereby would appeare that it were neither vnpossible neither vnprofitable , nor altogether vnpleasant , to reduce euery title of the Law particularly to a Methode ; and so consequently , the whole body thereof into a perfect shape , which now seemeth wholly without Conformitie , and altogether dismembred .

Wherefore now , as touching the Materiall Cause of Rules and Grounds , thus much said , may suffice .

Formall Causes and Grounds of the Law .

THe diuisions of Grounds of the Law , as touching and concerning the forme , are in sorte to be Considered . 1. First , the Coherence of the words and the Matter . 2. Secondly , the manner of the Manifestation thereof .

For the Coherence of the Matter and wordes , there are to be regarded these two qualities .

1. First , Veritie and

2. Secondly Amplitude or Generalitie .

Veritie of Propositions or Grounds consisteth of two sorts : For they import either a necessarie or knowne truth which cannot be impugned : Or Contingent Veritie or Probabilitie , which may sometimes notwithstanding their shew of truth , be impeached of falsehood , and so be subiect vnto many exceptions :

The former of these are called Primarie Conclusions of Reason . And the later Secondarie Principles .

1. Those of the first sort are such generall assertions of the Law , as are imprinted in the minde of euery Man , and discerned by the light of very Nature it selfe : which , as most certaine and vndoubted , neede no Confirmation or fortification , but of themselues are most sufficiently knowne to be true and not impugnable : which the Philosophers doe call , Primò & per se cognita ; Communes animi Conceptiones & Notitiae , familiar to the Conceipt of euery person .

Notes Collected touching the Veritie of Principles .

PRincipiorum . Alia sunt necessaria , Alia in rebus Arist. lib. Dem. cap. 25. T. 43. contingentibus cernuntur . Axioma verum , est , quando pronunciat vt Res est .

Axioma verum est , aut Contingens : Peter Ramus li. 2. dial . cap. 3. Necessitans .

Necessarium Axioma , quando Semper verum est ; Peter Ramus ibidem . nec falsum esse potest . Vnde Aristoteles , Vera quidem sunt & perspicua ea , quae non ab alijs sed à Arist. Top. lib. 1. cap. 1. seipsis fidem habent .

De primis Principijs .

PRincipia nihil aliud sunt quam Propositiones immediatae .

Ego propria cuisque generis Principia appello , Arist. lib. 1. dem . cap. 8. T. 24. quae , quod sint , Demonstratione probari non possunt : ( Nam , quae sit verborum vu et significatio , tum Principiorum , tum eorum quae ex Principijs efficiuntur , intelligendum est ) Quod verò ipsa sint Principia , citra demonstrationem ponitur ; Reliqua autem Demonstratione concluduntur .

Prima et principia pro eodem sumo . Est autem Arist. lib. 1. dem . cap. 2. T. 5. Principium demonstrationis Propositio , quae ob id immediata dicitur , quoniam nulla est alia prior per quam ipsa Confirmari possit .

Primaria principia dicuntur vniuersalia quaedam 10. Coras . de Arte Iuris . lib. Cap. 24. Iuris pronunciata , quae omnibus hominibus ita sunt impressa naturaliter et infixa , vt , velut indubitata et notissima , non alia egeant Demonstratione , aut certè leui aliqua probatione Confirmentur .

Vnde et Communes animi Conceptiones et Notitiae Ibidem . appellantur quod suapte vi & perspicua sit et euidens horum Principiorum veritas et Natura , quasi sine aliqua Dubitatione et Contradictione veluti ab omnibus Concessa , in disputatione sumantur .

Of which sort for Example are some of them before mentioned , and here againe to be remembred in this behalfe , in manner following .

Volenti non fit ininria

Omne maixs continet in se minus .

Qui sentit Commodum sentire debet et onus :

Fraus et dolus nemini patrocinantur .

With infinite other in vniuersall Manner proposed , and with not a few in speciall set forth , As in Grants , as afore hath beene declared .

Quando aliquis quid Concedit , et id etiam concedit sine quo res concessa esse non potest .

In Testaments .

Testamentum est morte confirmatum . Com. Griesbr . 180. b.

In Rents .

Chacun Rent est issuant hors de terre .

With exceeding many other of like nature to be found in euery title or Tractate of the Law . The manifest truth and great Reason of which said Grounds is euident to euery person of any Iudgement , and neede no proofe for demonstration and establishing of them .

2 Secondary Principles , are certaine Axiomes , Rules , and Grounds of the Law , which are not so well knowne by the light of nature , as by other meanes : and which although they neede no great proofe to be confirmed ; because they comprehend great probabilitie ; yet many times are they , at the first shew , not yeelded vnto without due consideration : and are peculiarly knowne , for the most part , to such onely as professe the study and speculation of Lawes .

Probable they are said to bee , because , although Probabilia sunt qua probant , autoribus , aut plurimis aut certe sapientibus atque ijs vel omnibus vel plurimis vel ijs quo rum spectata est & perspecta sapientia . the manifest truth of them be vnknowne , yet neuerthelesse they appeare to many , and especially to wise men , to be true .

And of this sort in the Lawes of the Realme there are so many found , that some men haue affirmed , that all the Law of the Realme is the Law of Reason : because they are deriued out of the generall Customes , and Maximes , or Principles of the Law of Nature Arist. Top. l. 2. c. 1. Doctor and Student l. 1. c. 5. fol. 1 c. a. or Primary conclusions .

And for the knowledge of these Propositions there is a greater difficulty ; and therefore therein dependeth much the manner and forme of Arguments in the Lawes of England .

Notes collected touching the difference betweene Primarie and Secondarie Principles .

PRincipia immediata quae in demonstrationibus Arist. l. 1. c. 2. T. 5. accipiuntur , in duo genera distribui possunt . Vnum corum quae quanquam demonstrari non possunt , non tamen ita aperta , & per se manifesta sunt , ut necesse sit ante cognita esse ei qui artem aliquam discere velit , quae nos Positiones appellamus .

Altero genere continentur ea , quae ita sunt per se perspicuae , ut non possint non esse , omnibus multò ante cognita , & perspecta quam quicquam doceatur ; quae Pronunciata dicuntur .

To like effect speaketh Aristotle in another place , Ea pro initio & proposito sumenda sunt .

1 Quae in omnibus .

2 Vel certe in plurimis rebus inesse videntur .

The former sort Aristotle seemeth to call , as afore shewed , Pronunciata , the other Propositiones .

And although in the Law of the Realme , they are indifferently called , without distinction , Rules , Principles , Groundes , Maximes , Eruditions , and such like : yet the iudgement of Massaeus herein is worthy obseruation .

Accursius videtur non parum aberravisse à vero , Ant. Massaeus l. 1. de exercitio Iuris peritorum . cùm idem significare voluerit Principia , Maximas , & Regulas ; cùm ( Aristotle auctore ) cuiusque scientiae principia sunt quaedam propria , quae quod vera sint non contingit demonstrari , & quae per se , & non per alia fidem'habent , quoniam nihil prius superiúsque in ea scientia est per quod confirmari explicarique possint .

Talium autem Principiorum , nonnulla sunt positiones , alia dignitates , sic dictae , ob id quod iure illis fides habenda sit , cùm ea unusquisque audita statim admittit : quale est istud : Totum unumquodlibet maius est aliqua sua parte . Hae rursus appellantur Maximae , Propositiones , & Communes animi conceptiones ; quod muliorum scilicet intellectu facile percipiantur . Tales autem nonsunt Regulae ; quae licet sint universalia Praecepta , indigent tamen probatione , & probari possunt : Nec tamen auditae admittuntur .

Hee seemeth to attribute the name of Principles , Axiomes , and Maximes to the first sort , and the name of Rules to the second .

Of the secondarie Principles or Rules there are two kindes . Some deduced and drawne from the vsuall and ordinary disposition of things ( as hath been before declared ) and by the obseruation of humane nature dispersed in the mindes of men , collected by long obseruation : Whereof some are altogether vpheld in the Law vpon common presumption , and entendment : Others doe rest vpon discourse of Reason deducted in Argument . But of the former , some are such , as although they are but probable , and import no certaine truth , and therefore may notwithstanding be sometimes vntrue : yet neuerthelesse for the great likelihood of them in humane actions , and the better to frame a conformitie , through the whole body of the Law , the said Lawes permit no allegation to impugne them , or any speech or auerment to impeach their credit .

The first sort of Secondarie Rules grounded vpon entendment .

OThers there are also that depend vpon entendment : But of the former kinde , this is one , grounded vpon naturall affection .

La ley ne voit presume que ascun voit lede son heire , Com. Sharington & Pledal . ou auter que est procheni de son sanck , mes que il voit plus test advance luy .

Which Ground , vpon the presumption of naturall affection , is not such , as that it soundeth alwaies true ; ( for in diuers persons nature worketh diuersly ) Wherefore although this assertion shew how euery man should be affected , notwithstanding it is no proofe that all men are so affected . And yet neuerthelesse this strong entendment of Law , doth not permit any thing to impeach the same ; and will not suffer any person bound by collaterall warranty ( the reason whereof floweth herehence ) to trauerse such affection , although there be neuer so pregnant proofe to encounter the same .

Notes touching the Definition , Diuision , and necessary Consequents of Secondary Principles .

IVris Praecepta secundaria sunt certa quaedom Axiomata Iohannes Corassus de turis arte cap. 26. lib. 1. & Definitiones seu Regulae , quae non tam naturâ quàm civili aliquâ ratione & authoritate , aut communi mortalium usu per hominum animos diffunduntur .

Quae etsi plerumque verae sunt , nec valde egeant demoustratione ; non tamen ita , priusquam pressius considerentur ab illis cognoscuntur qui nostrae scientiae dant operam . Quapropter , levi aliqua & verisimili ratione , ut ijs assentiantur , opus est .

See the manner and meanes how they are inferred by discourse out of the generall Customes or Principles of Reason , and the example thereof vsed by the Author of the Dialogues of the Doctor and Student .

Presumption or Entendment of Law , whereupon certaine of the secondary Rules are grounded ( as before is shewed ) are in two sorts : for species presumptionum sunt duae : una , quae legitimis probationibus regulariter refutari potest , quam communem licebit Ioach. Hopp . de iuris arte lib. 2. sol. 466. appellare : altera quae reprobari non potest , quae & specialis rectè fortasse dicetur . Certè magno Reip. bono constituuntur huiusmodi praesumptiones : nec potest Ibidem . fieri ut sine praesumptionibus ulla certa iura aut ullae certae leges describantur .

Secondarie Principles are grounded either vpon Entendment of Law , of which sort some are such as doe admit of no proofe to encounter them , and rest vpon Entendment , but yetadmit proofe to the contrary . Or discourse ofreason .

So likewise the Law vpon like common presumption conceiued of the acts and behauiour of men , intendeth this Principle .

Nul bome sans cause voile faire act a preiudice ley Com. Mauxel . 6. a. mesme .

And hereupon the Law presumeth that eucry assertion and allegation proceeding from any person which soundeth to his preiudice and hurt , is so vndoubtedly true , as that there shall not be suffered any trauers or deniall of the same . Wherefore if in a Praecipe quod reddat brought of twenty acres of land against one , and he , before the Stature of Coniunction feoffatis , had pleaded Ioyntenancy with another of deede ; or sithence the said Statute , if he had pleaded Ioyntenancy by Fine with another ; although the Piea be vtterly false , yet shall not the demaundant haue any answere or trauers thereunto ; because that when the demaundant by his Writ hath admitted him Tenant of the whole ; and hee saith that hee was Ioyntenant with another ; this other , if he bee false , may stop the Tenant by this Record ; To say the contrary of his affirmation , and thereby may gaine the Moytie of the land , against him that hath so pleaded . And therefore , for that , that men are not wont to tell vntruths in disaduantage of themselues ; and that the saying hereof if it were not true , will greatly be to the preiudice and hurt of him that affirmed it ; thereupon the Law presumeth , that it was true indeed ; and will in no wise admit the trauers against the same , or giue the demaundant abilitie to impugne it ; but hereupon presently , the Writ shall abate , and no maintenance of the Writ for the cause aforesaid , shall be allowed .

In like manner also matters of Record the entendment of Law doth giue an impeachable credit . And hereof also this rule of Law is drawne .

Matters de Record import in eux ( per presumtion delley , pur lour hautnesse ) credit . Com. Ludford 491. b.

And therefore none shall be permitted to say , that the Kings Pattent vnder the great seale was made or deliuered at any other time then that wherein it beareth Date . No more then a man may say , That a Recognizance or Stature Marchant or Staple , was acknowledged , or any Writ was purchased at any other time , then that wherein it beareth Date . For an auerment that it was antedated , or that it was deliuered or acknowledged after the date , is an auerment tending to the discredit of the great seale , or of the Iustice of Officer of Record which recorded the Recognizance , or the Statute Marchant , or such like .

In the dealings and affaires of Men , one Man may affirme a thing which another may deny . But Lamberts Iustice of peace . lib. 1. cap. 13. if a Record once say the word , no man shall be receiued to auerre ; speake against it ; or impugne the same : No though such Record containe manifest and knowne falshood , tending to the mischiefe and ouerthrow of any person .

And therefore whereas certaine persons were 38. Ass. 21. Outlawed in the Kings bench , in the time of Shard Iustice , and their goods forfeite , and their names likewise certified into the Exchequour with an Abstract of their goods , It hapned so that the name of one ( by misprision of the Clarke ) was , among the rest certified likewise into the Exchequour , as out-lawed and that he had goods to the value of sixe pounds , whereas indeede the same man was not outlawed . And thereupon a writ iussued to the Sheriffe of that Countie , where the said goods were supposed to be , to seaze the same to the vse of the King , who returned that a Nobleman had seized the same goods ; And thereupon issued forth another Writt out of the Exchequour , to cause him to answer the same goods so seized by him , who vpon the Returne of the second writ , alleadged , that the partie whose goods he had seized , was not vtlawed : And Greene , one of the Iustices of the Kings bench came into the Exchequer with the person who was supposed outlawed , and there testified that he was not out-lawed ; but shewed , that that which was certified was done altogether by the misprision of the Clerke : Where Skipwith returned him this answer . That although all the Iustices would now record the Contrarie , that they could not be permitted nor any Credit might be giuen thereunto , whenas there was a Record extant , and not Reuersed testifying the same Out-lawry : yea the Law so mightily vpholdeth the intended Credit of a Record , that it preferreth the same before the oathes of men , sounding to the Contrarie , and in respect thereof , will not permit a verdit to be receiued , which might impeach the same .

And therfore whereas one brought a writ of wast 9. Hen. 6. 56. b. and assigned the wast in diuers particuler things , and moreouer in a Message and Tenants in Wood-Church ; where amongst other wasts assigued , the Plaintife shewed , that the Defendant had done and permitted waste in the Hall of the said Messnage , &c. The Defendant pleaded in this Action , that Woodchurch was a Hamlet of A. and no Towne of it selfe . Which Plea includeth a Confession of the wast to haue beene done in such manner as was declared . And vpon this plea , the parties were at issue ; with the which the Iurie were charged : And further it was giuen them in charge , that if they found that Woodchurch was a Towne of it selfe , and no Hamlet of A : as the Plaintife had supposed , that then they should assigne damages seuerally for euery waste Committed . The Iurie at length found , that Woodchurch was a Hamlet of it selfe , and assessed damages for certaine of the particular wastes supposed seuerally , as they ought . And as touching the wast supposed to be done in the said Hall , they said there was no such Messuage . The Iudges reiected their verdit , because it was contrary to that which was implyed by the Plea of the Defendant of Record : and so inforced the Iurie to giue damages for a wast : which ( indeed ) was not done contrarie to the Conscience of the Iuries ; notwithstanding that some of them made protestation , that in so doing they might be periured : Which wholly was done onely to vphold the Credit of the Record ; and that the verdit ( of Record ) might not be contrarie , to that which was implyed by the Plea of the parties .

Moreouer , there is a Rule of Law wholy grounded vpon Entendment which is this .

Liuery del fait sera intend in le lieu cu le date fut .

The deliuery of a Deede shall bee intended to be where it beareth date .

Which Rule the Law vpholdeth for certaine truth , ( although in very deed it may be at sometimes vntrue ) And therefore will not permit any proofe which may impeach the intended truth , of the said proposition . For Confirmation whereof , a notable case Cited in the 31. Hen. 6. and by way of Argument 31. Hen. 6. Com. Fogassa . 7. b. alleadged in Fogassa his Case , may be produced ; which was in this manner . An Action of Debt was brought vpon a Deede ; The Defendant denyed the same ; whereupon the parties were at issue ; And the witnesses produced to proue the Deede were examined where the Deed was deliuered : who answered : At Yorke ; which was in another Countie then where the said Deede bare Date ; And hereupon the Desendant Demurred : And after vpon Consideration , Iudgement was giuen against the Plaintife in ouerthrow of the Action founded vpon that Deed ; which cannot be intended to be deliuered else where then at the place where it beareth Date .

Many Examples may be further produced to like effect , to proue that diuers Rules there are receiued in the Law which vpon presumption and Common Entendment , to eschew some notable mischiefe or inconuenience , are so holden for Truth , that in no wise they shall be incountred ; although indeede , as occasion may fall out , they doe containe manifest and apparent falshood . But these allready in that respect alleadged may abundantly suffice for example .

Of like nature also there are in the Law other The Second sort of Secondarie Rules grounded vpon Entendment . kind of Rules or principles ; which although , they doe concerne contingent matters ; and therefore may sometimes be impeached , and found vntrue ; Yet doe they carry a kinde of Credit also vpon Presumption or Entendment of Law , although not so vehement as the former .

Wherefore although the Law doth receiue them Prima facie , and at the first shew , as likely , and giueth Credit vnto the Assertion contained in them , Yet Neuerthelesse doth it admit proofe to the Contrarie , and so suffereth such Praesumption or Entendment , which vpholdeth such Rules , to be impeached , and controlled by a Contrarie tryall by pregnant proofe , and so doth permit any Auerment to be made against the same . For Example : It is a Rule in Law that a Verdict sera intenda touts 20. Hen. 7. 11 b. Coningsby . foits vray tanque il est reuers pur ceo que il est issint troue perferment de 12. homes .

A verdict shall be intended alwaies true , till it be reuersed , for that it is so found by the oath of twelue men .

And hereupon it is agreed for Law , That if a 5 Hen. 7. 22. b. Iudgement be giuen erroniously , the partie grieued thereby shall not onely , haue his writ of Errour to redresse the same , but also a supersedeas to Countermaund Execution thereupon . But if Iudgement be giuen vpon a verdict although the same verdict be vntrue , and the partie greiued doe bring his writ of Attaint , Yet neuerthelesse he shall not in that case haue a Supersedeas to stay Execution , for the intended truth , which the Law supposeth in the said verdict . And yet the Law permitteth the falsehood in verdicts to be laid open , and punisheth them with great seueritie 33. Hen. 8. 196. Brookes case . 4 Edw. 6. Com. 49.

If a Writt of Conspiracie be brought against one , 20. Hen. 7. 11. b. Coningsby . for that he gaue euidence before the Iustice of Peace at their Sessions , concerning the suspicion of a Felony supposed to be done by the Plaintife , vpon which Euidence , the Plaintife was indicted of the said Felonie ; and after found Not guiltie by a lurie of twelue Men ; It is no plea in this writt of Conspiracie , for the Desendant to say , that the Plaintife was guiltie of the Felonie , For that were to encounter the Verdict ; which shall be entended true .

And although the Law doe giue Credit , to all verdicts ; Yet doth it not foreclose the partie greiued thereby , but permitteth him to impugne it , and to impeach it of falsehoode , if he can , by his writt of Attainct .

Also there is a Rule in the Law , That

Feesimple ou auter estate certaine conuay a vn sera Com. Wrotsley . 193. b. intend de continuer in le person in que il est repose , toats foits durant mesme l'estate .

An estate of inheritance or other estate certaine conucied to a man , shall be intended to continue in the person wherein it was reposed alwaies during the Continuance of the said estate .

Although this for Law be Prima facie intended true ; yet neuerthelesse thereunto this must be added viz.

Sine soit mre Comment auterment ceo est deuest .

If it be not shewed otherwise how it is deuised .

By thus much said , it is sufficiently made manifest , that some propositions , Rules and Grounds of the Law are intended true ; but yet proofe is allowed to encounter the same .

So hither to hath bin spoken of the Veritie of Propositions ; whereof some are indeed and nature manifest true , and grounded on necessarie Reason ; and other some are true also , but vpon matter contingent . Contingent veritie was said to be of too kinds . The one grounded on common Presumption and entendement of the Lawes , which like wise was subdiuided into two branches . Some of them such as doe not admit any Contradiction to impugne them ; For the certaine supposed truth ( though indeed not alwaies found , in them , yet alwaies deemed by them ) alloweth no Controll ; The other sort of Rules resting vpon Entendement , are such as are Prima facie supposed true , but yet no otherwise supposed true then till the contrarie be proued , and they impeached of false-hood : Of both which there hath beene shewed sufficient examples .

Now therefore in order followeth the second The second principall kind of Contingent Propositions . principall part of Contingent Propositions or Grounds framed vpon obseruation of Nature , and disposition of things , collected and drawne by discourse of Reason , because it cannot be equally euident to euery Mans capacitie . And for asmuch as the said Discourse and manner of Reasoning , through the weakenesse of Mans vnderstanding , and difficultie of the matter , may faile and be oftentimes deceiued in some Circumstances which may and daily do occur through the varietie of particular matter , which againe ( in Reason ) may offer a Contrary resolution ; Therefore are those Grounds not vniuersally true , but subiect to many and manifould Exceptions . And yet neuerthelesse true in all such Cases as are not comprehended vnder those Restraints or Exceptions . Of which kinde we mentioned some in the beginning ; As namely .

1. Sublata Causa tollitur Effectus .

2. Qui tacet Consentire videtur .

3. Quod initio non valet , tractu temporis non conualescit .

4. Quando duo Iura in vno Concurrunt , aequum est ac si esset in diuersis .

Euery of which many other of the like nature ; though they be of themselues , vpon the first viewe of great Probabilitie ; yet neuerthelesse , being with more earnest Consideration pondered , are found not so firme as they seeme , but are subiect to some controulment , and to be impeached with sundrie instances and Exceptions . Of such like the number is in manner infinite : at the least many thousands in our Law , which are published in the French .

Nest Loial pur ascun de enter in le terre del auter 12. Hen. 3. 2. b. Eliot . sans son licence .

It is not lawfull to enter in another mans ground without License .

Discent de Estate dinheritance in terr , toll le entry de ceste que droit ad .

The discent of an estate of inheritance in Lands taketh away his entrie which hath right .

But these few shall suffice in this place for an Example .

Wherefore for asmuch as the Minde of Man is beautified with two faculties or powers in qualitie different , though flowing from that which is in Nature indiuisible ; whereof the one we now call for distinction sake ( Capacitie ) and the other ( Discourse ) .

By the former of which we apprehend , as with the in ward eye , the naturall light and resplendency of many Primarie Propositions , and knowne Motions ; whose clearenesse and euidence causeth euery one to yeeld thereto their consent .

And by the later we doe Collect , reason , argue , and infer of those former Motions and Resolutions , certaine Secondarie Propositions discended and deriued from the first , as branches from the Roote , or Riuers from the Fountaine ; which by how much the more they are drawne from their sping , by so much the more ( by reason of the varietie of interposed Circumstances ) they are oftentimes obscured and made lesse cleare and euident .

And sith that euery Science is not of like Certainty , by reason of the variable condition of the subiect Ethice verò supponitur quasi morali scientiae , qui tractat de moribus . whereupon it is imploved ; so that rightly of Morall Philosophy ( consisting wholly of mans changeable and inconstant conuersation , and from whence indeed , the knowledge of all Lawes are in Bract. l. r. c. 1. 4. b. a generality deriued , and thereto to be referred ) said , the Philosopher Aristotle right well in excuse of his Arist. Ethic. l. 1. c. 3. purposed Method in the deliuery of the same , That Doctrina discernens honesta & turpia , tantis dubitationum fluctibus concutitur , ut multis lege tantum & opinione , non naturâ , constitutum esse ius videatur . It followeth me thinketh , of necessity , that it is scarcely possible to make any secondary Rule of Law , but that it shall faile in some particular case : whence springeth this often vsed assertion , Non est Regula quin fallat : And therefore the Ordainers and Interpreters of Law , respect rather those things which may often happen ; and not euery particular circumstance , for the which though they would , they should not bee able by any positiue Law to make prouision .

By reason whereof they doe permit , the Rules , Axiomes , and Propositions of the common Law , vpon discourse and disputation of reason , to bee restrained by exceptions ; which are grounded vpon two causes . The one is Equity : The other is some other Rule or Ground of Law , which seemeth to encounter the Ground or Rule proposed : wherein , for conformities sake , and that no absurdity or contradiction be permitted , certaine exceptions are framed , which doe not onely knit and conioyne one Rule in reason to another , but by meanes of their equitie , temper the rigour of the Law , which vpon some certaine circumstances in euery of the said Rules might happen and fall out : Et omnia benè coaequiparat , as saith Bracton . Bracton . l. c. 5.

And therefore the Author of the Dialogues betweene the Doctor and Student describeth equity Lib. 1. cap. 16. according to this the effect thereof here mentioned : which is that it is no other thing , but an exception of the Law of God or of Reason from the generall Rules of the Law of man , when they by reason of their generality , would in any particular case , iudge against the Law of God , or the Law of Reason : The which exception is secretly vnderstood in euery generall Rule of euery positiue Law . And a little after , in the same place affirmeth , That equity followeth the Law in all particular cases , where right and iustice requireth , notwithstanding that the generall Rule of the Law bee to the contrary .

And the exception so framed vpon any Rule or Ground to the which it is annexed , doth not impeach the credit of the said Ground ; but being included L. quaesit F. de sando instructio . therein , as aforesaid , Format Regulam in omnibus casibus non exceptis .

But lest some men might thinke , that whatsoeeuer is spoken in the said Dialogues touching equity might be onely vnderstood of that equity which either enlargeth or restraineth statute Lawes ( and of which Mr. Plowden in his Appendix vnto the Argument of the case of Eston and Studd , in his second Commentaries so largely out of Aristotle and Bracton discourseth . There followeth in the same place of the said Dialogues , and in the Chapter next ensuing are proposed two Axiomes , Groundes , or Rules , with their exceptions , there put for example , and which doe tend to the purpose and proofe of that whereof we now speake .

And because that those said Rules there mentioned are last of all here for example before proposed , it shall bee requisite first of all to furnish euery of them with examples .

But yet for the better vnderstanding of that which is behoofefull to be knowne concerning equitie in Generall , we are to note that euery Rule with his exceptions or ( to speake otherwise in words ) euery receiued difference in the Law ( being indeede nothing but a Rule or Ground and his exceptions ) doth either flow from equitie , or else result of the combining of two Rules together , as before hath beene declared .

The vse therefore of equitie is triple in our Law : The triple vse of equity in the Lawes . For

1 Either it keepeth the common Law in conformity by meanes here mentioned .

2 Or it expoundeth the Statute Law .

3 Or thirdly giueth remedy in the Court of Conscience in cases of extremitie which otherwise by the Lawes are least vnredressed .

Wherefore as all men endewed with the right vse of reason , and conuersant in the knowledge of any Law , must of necessity confesse , that euery Law doth stand vpon permanent Rules , as of Iron not to be bent or broken vpon this or that occasion , or to be infringed vpon this or that occurrence ( for else there neede no Court of Law , but all should be one with the Court of Conscience , and haue their proceedings framed according to the Arbitrary conceipt of the Iustice ) So likewise neuerthelesse , vpon euery circumstance of time , person , place , and the manner of doing , there falleth out such matter of equitie , that if Law should be pursued according to the setled Rules thereof , Summum Ius ( as Cicero saith ) would prooue Summa iniuria : wherefore Law without equitie were rigour . And yet againe , of the other side , if all Lawes should change and bee controlled as often in euery case as equitie would require , then should there be ( as aforesaid ) no Law certaine . And therefore it standeth with good reason , that the common Law in some cases , should allow and follow equitie , as farre forth as the constancy of the Law would permit , and for the better conformity of one Rule thereof with another : which common Law againe in other cases should refuse equitie for the better auoiding of confusion .

Notes collected out of Authors touching exceptions of Rules , and from whence they spring .

EQuitie therefore in all the vse thereof , and in euery of the threefold before mentioned obseruations hath a double Office , Effect , or Function .

Sometimes it doth amplifie .

Sometimes againe ( when reason will ) it doth diminsh or extenuate .

A description of the former is that which Bracton Lib. 1. c. 4. §. 5. yeeldeth , Aequitas est rerum conuenientia quae in paribus causis paria desiderat iura , & omnia bene coaequiperat , & dicitur aequitas quasi aequalitas . Com. 467

This enlargeth the common Law ; for it teacheth to proceed in the same from one case to another like thereunto ; and so to proceed , that Si aliqua nova & inconsueta emerserunt , & quae priùs usitata non fuerint Bracton lib. 1. cap. 2. 〈◊〉 . 7. in regno ; si tamen similia evenerint , per simile iudicientur ; cum bona sit occasio à similibus procedere ad similia .

And therefore these cases differing neuer so much in circumstance , so that they doe concurre in reason , should be ruled after one and the selfe same mannner . For , Vbi est eadem ratio , idem ius statuendum est . But hereof we shall hereafter haue more ample occasion to speake , when we take in hand the last of Aristotles , before remembred , obseruations ; namely Similitudinum collectionem , or cognitionem .

This equitie moreouer in Satutes enlargeth the letter to cases not comprehended within the words ; if neuerthelesse they doe stand in equall mischiefe .

Lastly in all cases of mischiefe , for redresse whereof Positiue Law or ordinary Rules of Law are defectiue ; equity extendeth forth her hand in the Court of Conscience to helpe therein the said defect of the Lawes .

The second kinde of equity doth againe of the other side restraine the ample or generall rules of the common Lawes by ministring exceptions , in like manner as is before remembred .

And in statute Law it doth also limit the ouerlarge letter , drawing it wholly to , and keeping it within the bounds of the intent & meaning of the makers .

In the Court of Conscience it giueth likewise comfort , considereth all the circumstances of the fact , and is as it were tempered with the sweetnesse of mercy , and mitigateth the rigour of the common Law ; and leauing the inflexible stiffe Iron rule , taketh in hand the Leaden Lesbian rule : which being rightly swaied in cases of extremity , and herein , enioyning the common Law of her strait proceeding , issueth this sentence full of comfort to the afflicted , Nullus recedat à Cancellaria sine remedio . 4. Hen. 7.

Wherefore if the same equity bee vsed in such cases onely as are of extremity ( as indeed it should ) it causeth the Chancellour , into whose hand the managing thereof within this Realme is committed to be in high estimation of honour : so that In eius Cicero in Orat. pro Murena . sorte iuris dicendi gloriam conciliat magnitudo negotij , gratiam aequitatis largitio ; in quâ sorte sapiens Praetor offensionem vitat aequabilitate decernendi ; benevolentiam adiungit lenitate audiendi .

And thus much by the way hath beene spoken of equitie , upon the occasion of speech of exceptions which doe restraine Rules and Axiomes , that the originall fountaine from whence such exceptions doe spring , might the better and more manifestly be conceiued .

And therefore thus much thereof sufficeth , reseruing the rest to his due and natiue place .

Now wee will proceed with the first example published in the said Dialogues of the Doctor and Student , concerning the exceptions attributed and annexed vnto Maximes , Rules and Grounds .

There is saith hee a generall prohibition in the Lawes of England ; That

It is not lawfull for any man to enter into possession The Ground . or freehold of another without authority of the owner , or of the Law .

This Ground may be proued by many particular cases and authorities : for the Law of property would that euery mans owne should be priuate and peculiar vnto himselfe ; and therefore it is said , That

Nest loyal al un de enter en mon terre sauns mov 12. Hen. 8. 2. b. Elliot . licence .

Lou mes beasts sont damage fesant in auter terr , 21. Hen. 7. 27. b. Kingsoul . Rede ie en puis enter pur eux enchaser hors ains convient a moy primerment a tender amends .

If my beasts be damage fesant in anothers ground , I may not enter and driue them out , but I ought first to tender an amends .

Si home ad merisme gisant sur laterr d'un auter , 21. Hen. 7. 13. b. Rede . il ne poit iustifier le entry in le terr a veyer ceosi soit in bon plyte .

If one haue his timber lying on anothers ground , he cannot iustifie his entry to see his timber in good case .

Si maison soit lease a moy et ieo mit mon biens en 13. Hen. 7. 9. b. ceo & puis mon lease expire les dits biens estant in le meason , nest layal pur moy a ore pur enter en le dit meason de eux prender .

If a house bee leased to me wherein I put my goods where they lye till the lease be expired , I cannot now enter into the house to take them .

Si ieo mit mon chiual in voster stable & vous ne voiles ceo deliver a moy , et ico enter et enfrend vostre 14. Hen. 8. 1. b. Brudnel . stable , ieo sera puny pur l'entry , et le enfreinder del stable , mes nemy pur le prisel del chivall .

If I put my horse into your stable , and you will not deliuer him vnto me ; if I enter and breake your stable , I shall be punished for entring and breaking the stable , but not for taking my horse .

Si ieo command un a deliuer a vous certaine beasts 18 Ed. 4. 25. a. quesont en mon Park , nest loyal pur vous de enter en mon Park , et prender les dits beasts , ovesque cestique ieo issent command per reason de cest commandment ; car vous purra assets bien eux receiver coment que vous demurres hors del Park .

If I command one to deliuer you certaine cattell out of my Park , it is not lawfull for you to enter into my Park with him whom I commanded to deliuer them : for you may receiue them though you stay without the Park .

Si ieo baile biens al home , ieo ne puis iustifier l'entry 9. Ed 4. 35. a. 21. Hen. 7. 13. en son meason pur prender les biens , car ceo non fut per nul tort que ils viendra la , mes per l'act de nous ambideux .

If I deliuer my goods vnto a man , I cannot iustifie the entring into his house to take them &c.

Si le vicont ad fierifacias pur leuier deniers recouers 8. Ed. 4. 4. a. vers ascun , uncore si per force de ceo il ne voile enter et detraser le meason de cesti vers que le recouery fat , il sera de ceo puny pur cest entry en trespas .

If the Shriefe hath a fierifacias , to leuie money recouered , if by force thereof he enter , and breake the house of the debtor , he is subiect to an action of trespasse .

Si un Vicar ad offrings in un Chapel de quel Chapel 2. Hen. 4. 24. a. le franktennant est in moy ; il ne poiet ceo iustifiera l'entry et debruser de ma Chapel pur eux prender hors .

If a Priest haue offerings in a Chappell , the freehold of which is in me , hee cannot iustifie the entry and breaking the Chappell to take out his offtings .

Si home eant in sa Garren demesn spring un Feasant , 38. Ed. 3. 10. b. et lessa sa falcon voler a ceo que vola in le Garren d'un auter home , et la prist le Feasant , nest loial pur le owner del falcon , pur enter in le auter Garren , et de la emporter .

If a man spring a Pheasant in his owne Warren , and let his falcon flye at her , and she flyes into anothers Warren and there taketh the Pheasant , hee that oweth the Hawke cannot enter into the others ground to take her .

Hauing proued the former ground with these sufficient former authorities , let vs now descend vnto the examination of such exceptions of the said proposition , as may exemplifie our former speeches ; whereof some certaine being orderly deliuered and confirmed with some authorities of booke cases , I hold it sufficient so to make manifest our meaning at this present ; leauing a more exact consideration thereof to more fit place and opportunity .

We are therefore to conceiue that there is an infallible rule of Law , That

Le Common wealth est deste prefer devant ascun private wealth .

The Common wealth is to bee preferred before any priuate wealth .

By reason whereof lest contradiction betweene the said proposed rule and this now in hand should ensue vpon some circumstance which may fall out ; therefore the said last specified ground , concerning the benefit of the Common wealth ; doth minister an exception for the better vnderstanding of the aforesaid rule proposed , namely , That

Home poit iustifie son entre en le franktenement ou The first Exception . sur le possession de un auter si soit pur le benefit del Common wealth .

A man may iustifie his entry into anothers free-hold , if it be for the good and benefit of the Common wealth .

And therefore these cases following depending therupon are produced to proue & manifest the same .

Si ieo vien in vostre terre , et occide un Fox , un Gray , ou un Otter , pur cest entry ieo ne sera my puny , 12. Hen. 8. 10. a. Brooke . pur ceo que sont beasts encounter le Common profit .

If I come into your ground to kill a Fox , Gray , or Otter , for this entry I shall not be punished ; for they are beasts against the Common profit .

Pur le Common wealth meason sera plucked down si le prochein Meason soit ardent . 13. Hen. 8. 16. b. Shellye .

For the good of the Common-wealth an house shall be pulled downe if the next be fired .

Et Suburbes del Citie seront plucked downe in temps de Guerr , pur ceo que ceo est pur le common 8. Edw. 4. 35. b. Littleton . wealth : Et chose que est pur le common wealth chascune poit faire sans aver action .

And the suburbes of a Citie shall be razed in the time of war : And that which is for the good and profit of the Common weath any man may do without danger of anothers action .

Home iustifiera son entry in auter terr in tempore 21. Hen. 7. b , Ringsmil . de Guerr pur faire Bullwarke in defence del Realme , Et ceux choses sont iustifiible & loial pur maintenance del common-wealth .

A man may iustifie his going into another mans ground in time of war to make a Bulwarke in defence of the Realme &c.

Pur felony , ou pur suspicion de felony home poit de 13. Edw. 4. 9. a. bruser meason pur prender le felon , car il est pur le Common wealth pur prender eux .

For felony or suspition thereof a man may breake a house to take the Felon ; For it is the good of the Common-wealth , to haue him taken : With such like .

Moreouer because there is another Rule of Law , That

Nul prendra benefit de son tort demesme .

No man shall take benefit of his owne wrong .

And sometimes it falleth out that men , through malice to haue others in danger , would not sticke to lay a traine to intrap them to the intent , that they might , by some colour , for their further vexation , prosecute suite against them ; To vphold the Conformity of Law vpon those two grounds , that one of them do not encounter the other , there is a second Exception to the former Rule namely , That

Si home soit le Cause pur que vn torcious Entry est The second Exception . fait sur son Possession , il nauera de ceo Remedy : mes le party que ad issent enter ; sur le matter disclose poit ayd luy mesme & iustify tiel Entry .

If a Man be the cause that a wrongfull Act or Entrie be made vpon his possession , he shall haue no remedie for it , but the partie who hath entred may disclose the matter to iustifie his entrie .

Home ad vn Molyn , & l'cau courge per le terr d'une 9 Edw. 4. 35. a. b. auter al dit Molyn , le Tenant del terre mise stakes deins le dit eaw sur que il edify vn meason , pur reason de quel l'eaw ne poit vener cy bien al dit Molin come devant : Le Tenant del Molin enter en la dit terre , & enraca les stakes , per que la dit Meison eschew : Et in Trespas pur Entry en la dit terr & enracer la meason tout cest matter pur auoider le dit Nusance fut plede per le defendaunt & tenus bon Iustification .

A Man hath a Mill , and the water running to it cometh through anothers ground , and he fastneth stakes vpon the ground in the water , and buildeth an house ; by reason whereof the water cometh not to the Mill aswell as in time past , the Miller entreth vnto the others ground and breaketh downe the stakes , and thereby the house falleth ; If the other bring an Action of trespasse against him , for this , he may shew that he did it , to auoyde wrong done to himselfe , and iustifie the deede .

Home auer pris les beasts de I. S. & eux impound 20. Hen. 6. 28. a. in sa terre , & vint vn pur Repleuy mesme les beasts , Et pur ceo que cest que ad eux destraine ne voilet suffer les beasts dests Repleuy , il oue ares & sagitts , sagitta al cesti que vint pur eux repliuy eaut in le porte de mesme le close lou ils fuere impound , pur que il pur doubt enfrenit le close in auter lieu , et enchase hors les auers que fueront impound , Et pur cost entry et infrenider del Close , le Pleintise port trespas , Et sur tout cest matter disclose ceo semble bone Iustification .

A Man hauing taken I. S. his goods , and impounded them in his owne ground , a Repleuin was brought for those Cattle , and he that destraind them would not suffer any Repleauin to be made , but standing in the gate of the Close where the Cattle were impounded , shot at him that came to make the Repleuin , whereupon he broke the Close in another place , and drew forth the said beasts : For which breaking the Plaintifes Close , he brought an Action of trespasse ; but vpon this matter disclosed it was taken for a good iustification .

In Trauers , le defendant dit , que par ceo que le Plaintife 21. Hen. 6. 39. b. violet aver le defendant in son dainger , il Commaund vn son sruant de chaser les beasts de defendaunt inles blees del Plaintife mesme , et le defendant cy hast wenit que il auoit notecede ceo , il enter en le dit terre le Plaintife , et eux enchase hors : Et ceo fuit tenus bon Pleanient amountant al generall issue . 9. Edw. 4. 35. a. Littleton .

In an Action of trespasse , the Defendant said , that because the Plaintife would haue the defendant within his Danger , he Commaunded one of his seruants to driue the Defendants beasts into the Plaintifes Corne , And the Defendant assone as he had notice thereof , entred into the Plaintifes Close and draue them out ; This was taken for a good Plea , and not amounting to the generall issue .

In travers pur entry in le close &c. Del Plaintife 37. Hen. 6. 37. a. b. le defendant iustifiera , pur ceo que le Defendant fuit Chiuauchant en le roial chimin que gisott pres le meason del Plaintife , quand il vint la encounter la dite mese , la vient le Plaintife oue Arke et sagitts et fist vn assault sur le defendant , pur que il avoide son Chiual , et sua in la dit mese , et ouster in le dit close ; Et puis reuint in le dit chimin . Et ceo fuit tenus bon Iustification , si il voile adde a ceo que le Chymin est in mesme le ville que le meason est , ou in quel vile ceo est , et que le fuis del mease ful ouert al temps : per que le defendant issint dist accordant .

In an Action of Trauerse for entering into the Plaintifes close , the Defendant iustified , for that he ryding in the kings high way , which lay neere to the Plaintifes house , the Plaintife set vpon the Defendant , when he came neere against the Plalntifes house , and assaulted him with bow and Arrowes , Whereupon he forsooke his horse and fled into the house , and so through it into his Close , and after returned into the high way ; And this was taken for a good Iustification , if he had shewed further that the highway was in the same towne where the house was , and shewed in what towne the house was , and that the doore of the house was open &c.

Moreouer where there is a ground or rule of Law , as hath beene often before remembred , That

Quando aliquis quid concedit , et id concedere videtur sine quo res concessa esse non potest .

Hereof ensueth a third Exception to be annexed vnto the said former Ground in this manner .

Si home ad interest ou authority deriue de ascun The Third Exception . person , owner , et possessor del soile : le quel cesty a que le interest ou authority est done , ne poit accomply sans Entry in la terr ou mease de cesti que issent done la interest ou authority , la son entry est imply in la dit interest ou authority : Et pur tel cause son entry la serra iustifiable .

Le Abbe de Hyde fait lease d'un ferm rendant Rent Com. Kidw. & Braud . 71. d. a son Monastery vient al mains le Roy Hen. 8 , per le statute de Dissolutions , que puis ceo grant ouster al estranger : le lessee del dit ferme poit bien venir al dit Monastery la a tender la dit Rent , Et cesti que ad le possession de ceo nauera enint trauers pur tel entry .

Si A : Soit tenus a B : in vn obligation de 20. l. Com. Kidw. & Praud . 71. b. pur paier a luy 10 l. a tel iour la intant que nul lien est expres pur le payment . A : est tenus a querer B. inquocum que liew que il soit : Et si B : est in son meason demesue , et vient a luy la , et tender le argent , il ne sera trespasser pur le vener la Mes sil vst este in la meason de ascun auter home la il seroit trespassor al dit home : Mes in lauter Cas intant que il fut assentant que il paira a luy les dits deniers , et in ceo fut il containe que il fut assentant que il vener a luy pur ceo purpose : il ensuit ex consequenti que il ne puniera luy pur ceo chose a que luy mesme fut priuy et agreement .

Si ieo enfeoffe G. et face litre d'attorney a. C. a deliuer seisnia G : pur le venider sur la terre et pur 18. Edw. 4. 25. b. l'entry fait per G. de prender la livery , G. ne sera punish in trespas Car il est impossible que il receivera livery si non que il entra in leterre , et il est imply in le fesance del feosment que il viendra sur la terr de prender Livery .

Si home moy grant pur foder in son terre , et de faire un trenche de tiel sont ou spring iusques a mon 9 Ed. 4 25. a. 13 Hen 8. 15. b. Englefeild . place , si puis le Pipe est estopp ou enfreint issent que l'eaw issu hors , ieo ne poi foder in son terre pur mender le Pipe , Car ceo ne fut grant a moy &c. Mes cest opinion fut deny per tont le Court Car fut dit , que il poit enter et foder pur ceo mender , pur ceo que est incident a tel gront a ceo discourer et d'amender .

Intrauers pur entry en un meason le defend aut 9. Hen. 6. 23. b. dit que long temps devant le trespas que A. fut seisi del dit meason in fee , & que ceo est in tel ville & deuisable per testament , per que le dit A : deuise le dit maison a vn fem in taile , & que sil deuy sans issue que son Executor ceo vendroit , & fait le defendant son Executor & deuy la fem entermary oue le Plaintise et puis deuy sans issue pur que le defendant enter sur le poss : le Plaintise a voir , si fut bien repaire al intent de seavoir a quel value le reuercion fut a vender , & ceo fut tenus bone Iustification .

In Trauers pur Entry in meason et prisel del biens 2. Hen. 6. 15. b. 16. a. le defendant dit que le Baron del Plantise fut possesses des dits biens et suit seisy del dit meason infee , et sait le defendant , et auter ses Executours et devy possesses des dits biens , et le defendant vint al dit meason apres la mort le Testatour pur administer et trovant shays del dit meason ouert il enter et prist les biens , et ceo fut tenus bon Plee per tout le Court.

By reason also that there is a Rule of Law . That

Le possession del terre de chescun home est subiect al Iurisdiction del ley .

Thereof also this Exception following holdeth likewise place in restraint of the said former generall Rule or Ground , that is to say ,

Lou le ley done al ascun authority de enter in auter The fourth exception . ter ou sur le possession del auter , il iustifiera son entry .

Si ieo suis scisi de terre in fee sur bon et indefesible title , et vn estrange demand cest terre per precipe vers Com. Mauxel 13. a. un auter estranger , et sur ceo le vicount per force del precipe vient sur la terre ove sommoners , et summon luy vers que le precipe est pert , et puis le demandant recouer vers luy per default ou per issue try sur certaine point , et perforce de Haberi factas seisniam le vic vient arere & mist cesty que ad recouer in seisni ; reo ne puniera le vicont pur le primer vener , ne pur le second vener in le terre , pur ceo que le vicont ne sait riens mes execute le mandement le Roy come il ad in charge , et mon Possession est chargeable a cost Iurisdiction del Roy & ses ministers .

Si home fait lease pur vie , & un vilain purchase Littleton Villenage . le revercion , semble a Litt. que le signor del villein poit maintenant vener al terre et clayme mesme le revercion , Com. Mauxel 13. a. et per tel clayme le reuercion est maintenant in luy , et per tel vener a le terr et act fait il nest trespassor .

Si vilen purchase advowson pleni dincombent , le Com. Mauxel 13. a. signior del vilein poit vener al dit Elglise , et claime le dit advowson , et pur ccole incumbent ne punishera luy per tiel vener al dit Elglise .

Intrauers le defendant plede que il fut seisy del 11. Hen. 4. 75. b. meason et terre et ceo lease al plaintife pur terme de ans , et que fut certifie que wast fut fait et il enser in le close & meason pur veiwer siwast fut fait , et le huis del maison fuit ouert , & demand Iudgement et ceo sut tenus bonbarr ; a que le Plaintife replica que il la demurr encounter le volunt le Plaintife uniour et un nuict , &c.

Hitherunto haue we expressed certaine exceptions of the fore specified Grounds which are deriued from the reason of some other Grounds and Rules of the Law , and which reason would should be added , as restraints vnto the said former Rule of Law first remembred for conformities sake , and that the Law no way be impeached of contrarieties . Now resteth also that we deliuer some few other exceptions vnto the said generall Rule drawne likewise from the fountaine of equitie ; which are such as doe ensue .

Sith it were voide of all reason and conscience Exceptions ministred by equitie . that a man should punish a wrong done vnto him , by the which he either sustaineth little or no detriment or damage , or at leastwise more benefit then he sustaines preiudice : Therefore this exception vnto the said generall Rule , is among other likewise allowed for law . That .

Loa le party sur que possession home fait tortions The fist exception . entry est plus benefit per tiel entry que preiudice la home bien iustifiera la dit tortions entry .

Which the cases following doe likewise at large sufficiently confirme .

Si ieo sue in peril deste murder in mon close , ou in 12. Hen. 8. 2. b. Pollard . mon meason , il est loial a chescun de enfrender mon meison ou close pur moy avder , pur ceo que est pur mon benefit .

Si ieo voy vostre beastes demesne in vostre corne , 13. Hen. 8. 15. b. Norwich . et ieo eux enchase hors , teo ne sera my puny pur ceo que fut pur vostre aduantage , et vous aves inter est in les beastes Mes si ieo chase les beastes d'un estranger hors de vostre corne , ieo seray puny pur ceo ; car vous puisses aver remedy pur ceo ; seil : per distresse .

Si ieo voy le Chimney de mon vic in urant , pur saver 21. Hen. 7. 27. b. Palmes . les choses pue sont deins son meason , ieo iustifiera l'entry in le meason , & deprender les hiens que ieo troue de deins pur eux saver .

In trauers de Parco fracto , le defendant iustify le 20. Hen 6. 37. a. trauers pur ceoque fut controvercy perenter luy , & le seigneur de Huntingdon Plaintife pur le overtune d'un gorce , et pur ceo que le dit signeur fut in le dit Parke hunting , il enter pur les portes eant overt a monstrer a luy ses euidences concernant le dit gorce et ceo fut tenus per tout le Court bone Iustification .

Againe , the like equity doth minister one other exception of the like quality ; for it were vnconscionable and vnreasonable that a man should bee punished for a wrongfull entry , whereas he is compelled so to doe , and cannot without his great preiudice eschew the same : And therefore it is holden for Law , That

Si home enter sur le possession de un auter , lou il ne The sixt exception . poit auterment faire sans son grand preiudice , ceo ne sera deeme tiel entry de que il sera puny .

Si home ad Querck cressant in midds de trois 13. Hen. 8. 16. b. Browne . maisons , et il descoupa ceo , et le Querckeschet in terr d'un auter , si il iustify in travers il covient de alleager que il ne auterment puit faire .

Home de coupa thornes que cress inson terr et ils 6. Ed. 4. 7. b. eschaont in terr dun auter , & il enter & eux prender hors , sil ne poit in auter maner faire , ceo luy excusera .

Si home chase avers per le chymin , et les beasts happont Doctor and Student . ver. 10. Ed. 4. 7. b. 22 Ed. 4. 8. b. 6. Ed. 4. 7. b. de escaper in les blees de son vicin , & cesty que eux enchase enter freshment in le terr de eux enchaser hors , pur ceo que ils ne ferront ascun damage , il iustifiera tiel son entry intrauers .

And thus much hath beene said touching the first Ground proposed in the said Dialogues of the said Doctor and Student , which hath beene proued in particular with cases , and thereunto haue beene annexed certaine exceptions which haue likewise beene fortified with booke cases and authorities whereby the former assertions haue not onely beene exemplified , but also thereby it doth plainly appeare , That almost euery disposition in the Lawes , de qualitate or de iure is in conference of Maximes , and resteth betweene the Rule and the exception , which is either ministred by reason of equity , or vpon some other Rule or Axiome . So that euery difference shewed betweene cases , is nothing else but the Rule and his exceptions ; the effect whereof briefely is set forth by Morgan , who saith : That

Maximes ne doient este impugne , mes touts temps Com. Colib . 27. a. admit mes les maimes per reason poient este confer et compare l'un oue leauter , coment que ils ne variont : Ou per reason poit este discusse quel chose est plus precheni al Maxime ou meane perenter les Maximes & quel nemy : mes le Maximes neunque poient este impeach ne impugne , mes touts ditsdoient este obserue et tenus come firme Principles de eux mesmes .

For the better vnderstanding whereof , wee may note that all matters of debate which may be referred to the controuersies or questions de qualitate or de iure , as hath beene said , haue either commonly a Maxime of the one part , and a Maxime of the other ; or severall resons of each part deriued from sundry Maximes ; or else that there is a Maxime of the one part , and there is equity and reason which doth minister an exception to that Maxime or generall Rule : So that all disceptation herein is , as hath beene said , in conference or comparing of Maximes and Principles together discoursing , which thing is directly vnder the reason of the said Maxime ; and what matter or circumstance may make a difference , and will be by exception exempted ftom the same ; as more at large hereafter in the declaration of the vse of these Maximes may be made manifest and apparent .

Now resteth moreouer to prosecute the second Axiome or Principle proposed in the said Dialogues , namely , that which followeth there in the seauenteenth chapter of his first booke , that is to say :

It is not lawfull for any man to enter vpon a discent . The second Ground .

Which ground being expounded by Littleton in his chapter of discents to extend only to discents of an estate of inheritance and freehold , and not of a reuersion or remainder , all which followeth after in the said chapter , are nothing but cases of exceptions vnto the said grounds , as it is euident vnto euery one that considereth the same , and therefore shall it heere be needlesse long to insist thereupon . Neuerthelesse it shall be expedient to shew some exceptions thereunto , especially some certaine , of such of them as being exceptions vnto the said Rule , are againe restrained with other exceptions . Because there is a Rule of Law , that

Laches ou folly ne sera impute a un enfant de luy First exception Littleton Garranty 279. preiudice .

Therefore lest contrarietie might happen in consequence of reason betweene the said Rule of discents , and this Rule last remembred : there is ministred by the meanes of this later Rule , an exception vnto the said former ground namely , that

If an infant haue right of entry , he may enter vpon Littleton discents cas. 402. 20. Hen. 6. 28. b. a discent .

This exception , although it doth import great probabilitie of truth , yet is the same like vnto the Ground in this respect , namely , that it is also subiect to be restrained with another exception , viz.

If an infant , or such priviledged or excepted person haue a right of entry , and a discent of those lands is had to one that hath a more ancient right ; the party hauing such ancient right , shall be remitted : and both the right and entry of the infant taken away .

And this exception ensueth of another generall Rule of Law , which is , That

An ancient right shall alwaies be preferred before an other meane right or title .

The said exception vpon exception grounded vpon the last remembred Rule , may be plainely proued by this case .

If Tenant in Tayle doe discontinue and after doe 11. Ed. 4. 1. b. disseize his discontinuee , and during that disseisein the discontinuee dieth , his heire within age ; and after the Tennant in tayle doth die seised ; and this land descendeth vnto the issue in tayle , the heire of the discontinuee being still within age ; This is a remitter , and the entry of the heire of the discontinuee is tolled , notwithstanding that the Ground and Principle is , that the laches of the enfant shall not preiudice the enfant . And the cause is the ancient right the issue had .

Moreouer the former Generall Rule touching discents The second exception . that toll entries , hath among other , also this , exception .

A discent had during the Couerture , shall not Litt. fol. 59. cas. 403. toll the entry of the woman or her heires after the Couerture dissolued . 9. Hen 7. 24. a. 2. Ed 4. 24. a. 7. Ed. 4. 7b . 20 Hen , 628 , b.

But because there is a Generall Rule of Law , That None shall be fauoured in any Act wherein folly may be imputed to him .

From whence is deriued also this more speciall Rule or Ground .

Couerture shall not ayde a woman where the taking Com. z●ueb . 366. a. of a Husband which respecteth not her benefit 42. Ed. 3. 12. b. 9. Hen. 7. 24. a. may be imputed to her folly .

Hereof ensueth this exception vpon exception to the said former remembred Rule , That

where folly may be imputed to the woman for 41. Ed. 3. 12. b. 9. Hen 7. 24 a. Litt fol. 95. cas. 404. taking of such a Husband as will be heedlesse of her benefit , there a discent , during the couerture , shall bind the woman and her heires . 3. 4. Phil. Mar. 144. n. 57.

Much more might be said of like effect , but this for example sake shall suffice .

Now resteth briefely to say something touching the first proposed Latine Rules : Of which the forme was this ,

Sublata causa tollitur effectus . Com. 72. b. Com. 268 a. Com. 294. a.

This Rule is not absolutely true ; for the Philosopher from whence it is borrowed , doth vnderstand it , De causis internis , non de externis .

The Ciuill Lawyers doe restraineit in this manner Prataus . Haec autem Gnosis sine Regula , de causa finali , non de causa impulsiva intelligitur .

The common Law of the Realme , thus ;

Sublatâ unâ causâ , si alia remanet , non tollitur effectus .

The second Rule ; which was this , Qui tacet consentire videtur , is verified with this exception .

Si ad eius commodum & utilitatem spectat , praesens Prataeus l. 7. c. 3. fol. 911. & tacens pro consentiente habetur .

The third Rule was this ,

Quod initeo non valet , id tractu temporis non convalescit .

Which Ground may bee confirmed with many cases , yet is the same Ground restrained with this exception , because That

Habet locum in his tantum quae statim debent valere , Decius . & nullam suspentionem habent .

If a man make a lease for life of land vnto I. S. and 37. Hen. 8. Brooke . after doth make a lease for yeares vnto I. N. of the Leasses 48. Com. Smith & Stapleton 433. a. Com. Greisbrooke 422. a. same land to begin presently , This lease being made by word , is void ; for the freehold in the first lease is more worthy , and by law intended to be of longer continuance then the terme in the second lease : yet if the first lease die , or surrender afore the second be expired , the residue of the terme is good .

If the father deuise his land vnto his daughter and 5. Ed. 4. 6. Per Billing quod fuit concessum & Abridge per Fitzb. tit. Assiss . 27. heire apparant , and after leauing his wife enceinct , or w th child with a sonne , vpon the death of the father this deuise vnto the daughter is voyd , for that she is his heire ; but after , when the sonne is borne , it is good .

The fourth Rule of the said Latine rules before set downe , was this ,

Quando duo iura in uno concurrunt , aequum est ac si esset in duobus .

This Rule hath exception grounded vpon another Rule , that is , That Vigilantibus & non dormientibus iura subi eniunt . Com. 57 b. Or to the same effect ; V●icuiou : sua mora nocet .

And therefore

In causes de negligence on laches divers droits concurrant in un person ne seront deeme si come ils sussent in divers persons .

Where , if Tenant pur auter vie be , the remainder Com. St. well 372. b. for life ouer to another , the remainder in see to the right heires of the Tenant pur auter vie , If the said Tenant pur auter vie be disseised , and the disseisor leuie a fyne with proclamations , and the fiue yeares doe passe , and after Cesti que vie dyeth ; and after also dyeth he in remainder for life ; hee which was Tenant pur auter vie shall not haue other fiue yeares after the death of the Tenant for life in remainder to pursue his right for the see simple .

Vpon like reason , if a Bishop be seised of an Aduowson in the right of his Bishopricke , and the Church become voyd , and six monthes do passe ; the Bishop shall not haue other sixe monethes as Ordinary , the same Church being in his Diocesse , as he should haue if the same Church were of the Patronage of another person , although hee bee in one respect Patron , and in another Ordinarie .

Hitherto haue we entertained discourse as touching the verity of Axiomes , Rules , and Grounds ; which , as hath beene shewed , is either necessary or contingent .

Contingent verity was diuided into two branches ; the one resting vpon the entendment of Law ; the other being deriued from the disposition and nature of humane things , by debate and discourse of reason .

Of the first sort there are two kindes ; for some propositions there are , although of themselues but onely probable , yet neuerthelesse are supposed of such certainty , that no averment shall bee receiued to enounter the same . Othersome , although they be by the Law intended true , Prima facie , yet neuerthelesse the same Law alloweth an averment , and admitteth proofe to impeach the same .

Those moreouer which rest vpon discourse of reason , are subiect to diuers exceptions , the materiall cause whereof is , the infinite variety of circumstances that in all humane actions doe happen .

The forme and nature of the exception is perceiued and knowne by this effect following ; in that it restraineth the ground vnto which it is connexed .

The efficient causes are two , viz. Equity or some other Ground of the Law importing contrarietie . And the end thereof is conformity and coherency of Law agreeable vnto Iustices whose minister the Law is .

Moreouer as occasion hath bin offered in the declaration of the causes from whom Exceptions of Rules doe spring , there hath beene shewed the vse of equity in the common Law , Statute Law , and Chancery , by the two effects thereof , application and restraint ; the one enlarging , the other abridging .

Wherefore now resteth to speake of the second principall part , concerning the forme of Axiomes , namely , generallity : The consideration whereof , bringeth to memory , that God in his most excellen worke , of the frame of transitory things , though he hath furnished the world with vnspeakable variety , thereby making manifest vnto all humane creatures , to their great astonishment , his incomprehensible wisdom , his omnipotent power , & his vnsearchable prouidence , yet , being the God of order , not of confusion , hath admitted no infinitenesse in nature ( howsoeuer otherwise it seeme to our weake capacities ) but hath continued the innumerable variety of particular things vnder certaine specialls ; those specialls vnder generalls ; and those generalls againe under causes more generall , lincking and conioyning one thing to another , as by a chaine , euen untill we ascend unto himselfe , the first chiefe and principall cause of all good things . And this is that which Plato out of Homer , was wont to call Iupiters golden Chaine .

The eye whereby we doe see and viewe , and the in ward hand whereby we doe reach and apprehend these things , is mans vnderstanding , which is wholly imployed about vniuersality as about his proper obiect , by meanes whereof , in all things rationall , being discouered by the vse of reason , mans vnderstanding for the attaining of knowledge proceedeth from the effect to the cause , and againe from the cause to the effect ; that is from the particular to the speciall , and from the speciall to the generall ; and so to the more generall , euen to a principall and primary position or notion , which needeth no further proofe , but is of it selfe knowne and apparant . And so againe from such chiefe and primary Principles and propositions to more speciall and peculiar Assertions , descending euen to euery particular matter .

But that , of this which hath beene said , some example might be shewed , especially in this matter , which we now haue in hand , namely , concerning the Grounds and Rules of the Law of England ; let one of the proposed Grounds first before mentioned stand here for an example , viz.

Nihil est magis rationi consentaneum , quam codem modo quodque dissolvere quo constatum est .

This principle being a Rule of reason containing great probability , and being of the number of those that before we said to haue beene deriued from the obseruation of the nature of things , which though it be subiect to manifold exceptions , yet neuerthelesse as a generall Rule , the same is verified in many speciall Axiomes ; and they againe diuersly subdiuided into many more peculiar propositions ; as the example of these following may make manifest .

1 Cesty que est charge pur Record doit luy discharger per Record .

2 Cesty que est charge per fait doit luy mesme discharge per fait , ou per auter matter cy haut .

3 Cesty que est charge fo rs que pur parol , poet este discharge pur parol .

Of which generall Propositions there can be made no better Reason then by the commemoration of the said first aforeshewed generall Rule .

Moreouer , the first of the last aboue remembred comprehendeth vnder the generality thereof certaine other more speciall Rules :

As

In det sur arrerages de accompt que est matter de Record , le party doit discharger luy pur matter cy haut , & nemy per specialty , on fait ou auter matier que nest cy haut . 6. Hen. 4. 6. a. 3. Hen. 4. 5. a. 11. Hen. 4. 79. b. 13. Hen. 4. 1. a. 8. Hen. 5. 3. b. 3. Hen. 6. 55. a. 4. Hen. 6. 17. b. 20. Hen. 6. 55. b.

In det sur recouery , home ne sera discharge mes per matter cy hout : ou a tiel effect . 6. Hen. 4. 6 a.

Vnder the second Rule or Ground before proposed touching a discharge where the party is charged by matter of specialty ; those speciall Rules following are likewise comprehended .

In nul casehome ne poit avoide single obligation , sans auter specialty de auxy haut nature . 1 Hen. 7. 14. b 5. Hen. 7. 33. b. 11. Hen. 7. 4. b.

Home que ad enfreint covenant ne pledera matter in discharge de ceo sans sait . 3. Hen. 4. 1. b. 1. Hen 7. 14. b. 21. Hen. 6. 31. a.

Home ne dischargera luy mesme d'un annuitie que charge son person sant specialty . 5. Hen. 7. 33. b. 33. Hen. 8. 51. a. Dyer .

The first rule of these last remembred Grounds , namely , touching obligations , is againe diuided into diuers particulars ; as for example .

Arbitrement ne dischargera home de un duty due per unobligation . 8. Hen. 7. 3. b. 6. Hen. 4. 6. a.

Si le obligee deliuer l'obligation al obliger come acquittance , & puis ceo prift de luy , & comence sute sur ceo ; cest deliuery ne sera discharge del obligation . 1. Hen. 7. 17. a. 33. Hen. 8. 51. a. Dyar 22. Hen. 6. 52. b.

The other following concerning Indentures of Couenants , may likewise be diuided into other more particular assertions : but to avoyde rediousnesse , these already shewed abundantly manifest our meaning , and therefore may suffice :

The vse of this kind of obseruation of the generallity The vse of generall Rules and the observations of their specialls . of Rules and Propositions is manifold .

First , things proposed in the generallity are best knowne and most familiar to our conceipt , sith they be the proper obiect of our vnderstanding , as before is declared .

Secondly , they doe better adhere and sticke in memory , sith Intellectiue memory is ( as the vnderstanding is ) imployed about vniuersall and generall things .

Thirdly , vniuersall Propositions are the precepts of Art , and therefore they are called perpetuall and and eternall : for no Art , Science , Method , or certaine knowledge can or may consist of particularities : for the orderly proceeding of euery Art , Methodically handled , is from the due regard had of the generall , to descend vnto the specialls contained vnderneath the same : wherefore it ensueth hereof , that generall Propositions are the most speedy instruments of knowledge : for experience , which wholly is gotten by the obseruation of particular things ( being depriued of speculation ) is slow , blinde , doubtfull , and deceiueable , and truly called the mistresse offooles .

Notes collected out of Authors touching the obseruation of generall Propositions .

IF perchance vpon occasion of some former speeches here published touching the vniuersallity of Grounds , there be demanded this question .

Why the Lawes of England at the first and Question . from time to time , had not beene published after this Method of generall and speciall Rules with their exceptions .

I answere thereunto , that many ancient writers Answere 1. attempted that kinde of writing , and accomplished the same according to their seuerall and sundry gifts more or lesse perfect each then other : As by the treatises of Glanvile , Braction , Britton , and others appeareth .

Secondly I say that forasmuch as daily new questions 2 came in debate whereof before had beene no resolution , and wherein many times the least variety of circumstances doth alter the Law ; therefore our Ancestors thought it more convenient , to be rather gouerned by an vnwritten Law , not left in any other monument , then in the minde of man ; and thence to be deduced by disceptation & discourse of reason : and that when occasion should bee offered , and not before .

Thirdly , it is more conuenient and profitable to 3 the state of the common wealth to frame Law vpon deliberation and debate of reason , by men skilfull and learned in that facultie , when present occasion is offered to vse the same , by a case then falling out and requiring Iudiciall determination : for then is it likely , with much more care , industrie and diligence to be looked vnto ; and much more time of deliberation is there taken for the mature decision thereof , then otherwise upon the establishing of any positiue Law , might be imparted concerning the same .

Last of all , sith all good Lawes require perspicuity 4 and plainesse ; and that in generallity , for the most part , lurketh obscurity ; therefore there is nothing of more force and effect touching the making and framing of a good Law , then the present occasion offered , sith thereby it brought to light , that which otherwise would not asmuch ( many times ) as be thought vpon , and giueth occasion to dispute that which none would haue thought euer should haue come in question . And therefore not without due consideration among the Romans , Disputationes fori , and with vs Demurrers haue euer beene allowed as originalls of Law .

As touching the manifestation of Rules , all are affirmatiue or negatiue : wherein though the affirmatiue be , for many causes , the more worthy ; yet such negation as implyeth affirmation ( and therefore called pregnant ) is not without some vse in the setting downe and deliuering of exceptions and generall Rules . And thus much touching the forme of Rules , Grounds , and Axiomes .

The efficient cause of Rules , Grounds , and Axiomes is the light of naturall reason tryed and sifted vpon disputation and argument . And hence is it , that the Law ( as hath beene before declared ) is called reason ; not for that euery man can comprehend the same ; but it is artificiall reason ; the reason of such , as by their wisdome , learning , and long experience are skillfull in the affaires of men , and know what is fit and conuenient to be held and obserued for the appeasing of controuersies and debates among men , still hauing an eye and due regard of iustice , and a consideration of the common wealth wherein they liue ; for well saith Aristotle , Hoc qu dem perspicuum est , leges pro ratione Reipub. esse Arist. l. 3. Pol. c. 7 scrilendas . And of this reason that wee speake of , Tully hath a noteable saying . Ratio est societatis humanae Cic. 1. Offic. vinculum , ut ratio , quae dicendo , communicando , disceptando , indicando , conciliat inter se homines , coniungit , & retinet naturali societate . Wherefore sith the Grounds of Law are the foundation of Law , or at leastwise the Law it selfe deliuered in manner of compendious and short sentences and propositions ; that which is the efficient cause of Law , must likewise be the efficient cause of those Rules and Axiomes .

Inasmuch then as Primaria efficiens causa iuris , Iohane● Corasius de a●e 〈◊〉 lib. 1. cap 20. est natura & ratio civilis , ex quibus potissimum leges emanant , & veluti scaturiunt . The same nature and reason are likewise the principall and originall efficient cause of the Rules , Axiomes , Grounds , and Propositions of the Law ; I meane Civilis ratio , that is reason respecting iustice and the common wealth .

This reason hath in the written workes of the Lawes of this Land , either beene plainely published and expressed in the bookes of Law , vpon deceptation of cases in debate , and left vnto posterity as the Lights , Rules , and Directions , whereby the said cases so called into question , were at the last decided and determined .

Or else it is not at all expressely published in words , but left neuerthelesse implyed and inclined in the cases so decided , and therein doth as it were lye hidden ; and yet neuerthelesse to be easily , with industrie collected and inferred vpon those Cases decided , and doth necessarily follow vpon the resolution of the same , and being thence drawne , may abundantly serue to infinite vses , in the determinating of other doubts ? which daily doe and may come in debate . Wherefore sith in the Law ( as in other Sciences ) all arguments and disputation doe either consist of expresse proofe and allegation of Authoritie ( which are called Inartificiall Arguments ) or else of application and inference ; as well the Rules to bee collected vpon Inference and application of other Cases , are to bee regarded and to bee produced , as those which are direct authorities . And forasmuch as in very few cases of doubt newly rising in debate , and called into question and controuersie , expresse proofe and pregnant authoritie can be found ; the Lawyer is most beholding to Inference and Application , where with hee is instructed and taught , that Cases different in circumstance , may be neuerthelesse compared each to other in equalitie of Reason ; so that of like Reason , like law might be framed . And by how much Application and inference doth more depend vpon wit and Art , then the producing of expresse Authoritie ; by so much the more it excelleth the same , sith the Allegation of expresse Authoritie , resteth wholly vpon Industrie and Memorie in publishing and noting that which hee findeth already framed to his hand

Expresse Rules , Axiomes , Grounds and Positions of the former sort are published in the booke of Law , either in the Lattin tongue , as are the former generall Rules first mentioned , and also infinite other of that kinde ; or else in the French ; in which tongue the Reports of forepassed Cases are published vnto the vse of posteritie , and wherewith the said bookes of yeares and tearmes ( almost in euery case therein found ) are fully furnished . So that all , though it shall be need esse to make manifest that by Example , which of it selfe is euident ; yet still to pursue the former Methode and order hitherunto obserued , we shall easily perceiue the same in this short case hereafter expressed .

Vn home avoit a lay et ses heires le nomination del Clerke d'un Esglise a vn Abbe , et le Abbe doit presenter ouster le Clerke nominate al ordinary , ore le Roy ayant les possessions del Abbey ad present son Clerke al dit Esglise estant voide sans ascun nomination . Et le opinion del Court fut , que le party que aueroit le nomination , auera Quare impedit vers le Incumbent tantum , sans ascun deste nosme Patron : Car le Roy ne poit este sue come disturber . Tamen fut dit que le Roy ne poit este Instrument al ascun home . Et Shelley dit que il est Instrument a chacun home : Car per luy chacun Subject ad Iustice a luy minister .

The Principles , Maximes , Rules , or Grounds expressed in plaine words in this case , and which are indeed the very reason of the Resolution therein taken , are these .

1 Le Roy ne poit este sue Come disturber .

2 Lou le roy present per tort , Quare Impedit sera port vers L'incumbent sole sans a scun deste nosme Patrone .

3 Le roy ne poit este instrument al ascun home sccome son seruant .

4 Per le Roy chescun subiect ad Iustice a luy minister .

5 Le roy est instrument a chacun home purminister a luy Iustice .

So that the Reasons of euery Resolution in any booke Case being reduced into short Sentences , Propositions or Summarie Conclusions are the Grounds Rules , and Principles that we doe meane and speake of in this place .

Such Summarie Conclusions , Corolaries , Reasons , Grounds , or Propositions therefore as afore declared are deliuered in the bookes of Reports in two manners .

Sometimes without any note or marke that they are Grounds or Rules , but onely as laid downe and dispersed in the Arguments and Resolutions as short Reasons of the opinion or determination there expressed as in the last example appeareth .

Sometimes with a note or marke that they are Grounds , Rules , and Maximes , and are expresly inuested with such names , as in the entrance of this treatise hath appeared . And thus much of the Grounds or Positions expressed in the bookes .

Now as touching the second sort , which are to be collected , and inferred out of the Cases left reported , wee plainely may perceiue the notable vse of such collection , in reading aduisedly the Commentaries of Mr. Plowden , or other the best bookes of Reports ; or diligently obseruing any notable Argument made at this day in any the Queenes Courts in matter of Demurrer , where wee may not thinke that euery case cited or alleadged out of the bookes for proofe of the Controuersie , is therefore alleadged because it hath expresse matter therein published in plaine words , and tending to the resolution of the point in question : but at sometimes , and that most commonly , such proofe is produced vpon inference , and yet neuerthelesse , sufficiently pregnant to approue the matter whereunto it is rightly applyed : which inference and application proceedeth wholly vpon collected Rules and Axiomes included in the resolution of those Cases produced although the same bee not expresly spoken or published therein .

Wherefore notwithstanding , the best meanes of the collection of the said Rules depending onely vpon Meditation , and resting wholly vpon the sagacitie , wit , industrie , and iudgement of the Student , ( because euery mans seuerall conceit is in it selfe sundry ) may best be referred vnto the Student himselfe : yet neuerthelesse , shall it not bee amisse here to manifest such direction therein as may be obserued with some fruit .

1 First , after the Case read , let vs consider with our selues , and meditate in our mindes , to what seuerall purposes the same case may be applyed , and what matter , or seuerall matters the resolution of the said Case can confirme . Which when we haue considered of , it shall bee good for our memory to commit them to writing , in manner , and according to this example following .

Fut moue si Tenant in tayle d'un Manour , a que vilains 33. Hen. 8. 48. b. n. 1. Dyer . sons regardant , en feoft vn des vilains d'un acre per cel del Manor , et devy , coment que le Manor discend al issue in tayle , vncore il ne poit seiser son vilain tanque le aer● soit recover .

Vpon meditation had of this Case , what it will proue , these Propositions or Rules following may easily be collected .

1 Lou home ad forsque vn action al principal chose la il nauer benefit del accessary , tanque il ad per recouery continue le principal .

And because here the whole principall is not discontinued , but onely one Acre , thereof may be collected , That

2 Regardancy ou Apendancy nest solement al tout le Manor , mes chacun acre del demeanes .

Moreouer , because the principall in this Case , viz. the Acre discontinued , cannot be recontinued without suite to be attempted against the Villen ; it followeth in Reason , that he shall not be infranchised thereby : Whence also this Axiome is to be confirmed or proued , That

3 Necessary suite ew vers vn villen per le signor ne enfranchise le villen .

Here of hath appeared that although none of these Propositions bee expressed in the resolution of the said Case , in the booke wherein the same is left reported ; yet neuerthelesse are they necessarily imployed in the resolution of the said Case , as before hath beene declared .

But if the Case so read doth consist of many points or seuerall questions sunderly debated , euery of them may likewise be sunderly and apart considered of , according to the manner before shewed .

A second meanes , by Inference to collect , such Rules and propositions as are before declared , is by way of Argument by Syllogisme : For supposing the said Case to be denyed to be Law which wee haue read . Let vs endeauour to draw the immediate Reasons thereof into a syllogisme for confirmation of the same . So that thereby , forasmuch as all Rules out of the Law are of two sorts , that is , either being the Reasons of the Case , or the Case contracted shortly it selfe , by such manner of Argument , the Maior , and first Proposition of the said syllogisticall Argument , will bee the generall Reason of the said Case : the Minor or second Proposition , will be the particular Reason : and the conclusion will bee the contracted case it selfe : Which also will serue as a secondarie Rule to determine other Cases of equall Reason called into controuersie . For example herein , we will take the opinion of Hulls in 9. Hen. 4. 8. a in the end of a Case there argued , where he holdeth for cleere Law , That

Si vn home fait fine pur vn trespas dont il fut endite 9. Hen 4. 8. a. son boache sera estopp a dire que il nest my culpable , sil soit eint implead apres .

But because the same is denyed in Hen. 6. wee endeauouring to proue the same by syllogisme , shall not onely confirme it , but also exemplifie our former speeches .

Maior ] Nul sera permit a denyer cest iniury pur que il ad fait satisfaction , ou ad suffer punishment .

Minor ] Mes cesty que ad fait fine pur vn offence ad fait ascun satisfaction et in ceo ad este puny .

Conclusio ) Il que ad fait vn fine pur vne trespas ou auter offence sera estopp a ceo denier apres .

Euery of these propositions bee est-soones confirmed not onely with the Case before spoken ( for as they doe proue the Case , being the immediate Reasons thereof ; so are they to be proued againe by the Case as by their effect ) but also with sundry other Authorities found in the bookes of like effect .

A third obseruation of Propositions and Axiomes 3 may be drawne from the consideration of the Titleing words ; or words which doe yeeld matter of effect ; whereof in the Case last remembred are such as doe follow ; namely .

Fyne , Estoppel , Enditement , Nonculpable , Party , &c.

And herein is to bee meditated and considered what Rules may be deriued and collected out of the said Case , and be referred to euery of the said Titles : As namely ,

Vnder Fynes .

1 FIne fait pur vn offence proue , cesty que fait le fine voluntarunt , deste culpable del dit offence .

2 Fine fait per vn offence causera cesty que fait le offence que il ne ceo denier a apres .

Vnder Enditement , these .

SI home soit Convince , d'un offence sur vn Enditement , que est al sute le Roy , il ne deniera le dit offence , sil soit apres de ceo implede al sute del Party .

Vnder Estoppell , these .

HOme sera estopp per matter de Implication que imply le contrary de son disant de Record .

Vnder Non Culpable , these .

NOn Culpable ne sera plede per ascun lou per implication il ad confess le cause del action .

Vnder party , these .

SI offence soit Commit cy bien al Roy que come al Party condemnation al sute d'vn d'eux , aydera l'auter in son sute .

A fourth manner of obseruation is to referre vnto 4 euery Ground or Rule so collected , a Rule , more generall , so proceeding from the speciall Rule vnto the generall Reason , and from that generall Reason vnto a more generall : As out of the said first Case may be drawne this generall rule .

Home ne sera permit a denier ceo que deuant il ad 9. Hen. 4. 8. a. confess per implication de Record .

Vnder which Ground not onely , the first proposed Case of 9. Hen. 4. 8. a. may be comprehended ; and diuers others of like effect and purpose , and which doe concurre vnder the said Generall Rule ; As for example .

He which is arraigned , after hee hath pleaded either Stamf. 155. a. cap. 62. in Barre or in Abatement of the Appeale whereon he was arraigned , may plead ouer Not guilty Stamf. 98. b. 22. Ed. 4. 39. b. to the felony : Except the Barre or Plea doe comprehend such matter as doth acknowledge the felony ; as a Release or pardon . But if he doe pleade any such Plea or Barre ; viz. Release , or Pardon in any Appeale or Enditement , he cannot plead ouer Not guilty to the Felony , because thereby hee confesseth the Felony by implication .

If in a Praecipe , the Tenant say that hee is Leasse 11. Hen. 4. 69. a. Culpepper . for life , and pray in ayde , the demaundant saith hee hath fee , which the Tenant denyeth not , and therefore he is owted of the ayde : If after he will say he is Tenant for tearme of life , and vouch , he shall not be thereunto receiued .

These Cases with many other may bee comprehended vnder the generalitie of the last specified Rule , & are one in Reason , not vnder one immediate Reason , but vnder this Reason , viz. Home ne sera admitt a Contradize ceo que il ad confes de Recorde .

Moreouer there is another Case , one in effect of Reason , with the former proposed Case , which because it is neuerthelesse , in circumstance more generall , therefore it cannot be comprehended vnder the last specified Rule , as namely .

If a man bee indicted of Trauers , and thereupon 7. Hen. 4. 35. b. be found guiltie by verdict at the suite of the king ; If after , the party against whom the Trauers was committed , bring action for the same Trauers ; the other shall not pleade Not guiltie thereunto .

In the former Grounds , and Cases thereupon , the partie was concluded by an implyed confession ; but in this last Case , he is conuinced by an open tryall or verdict . And whosoeuer will comprehend both this and the former cases vnder one Ground or Rule , must make the same more generall then the former , in this manner .

Home ne sera permit a denier tiel offence de que il poit este convince per matter de Record .

And forasmuch as a man may be conuinced of an offence as well by confession , as by verdict ; and that as well , by implicature confession , as by expresse confession : Therefore euery of the said former Cases may be concluded and comprehended vnder the amplenesse of this last remembred Ground .

A speciall Ground may bee reduced vnto a Rule or Proposition generall , by seeking the Genus or generall Notion of euery Titling word found in the said speciall Ground , As for example , the said Proposition before remembred , and which hath beene exemplified with Cases , was this .

Home ne sera permit adenier ceo que devant il ad Confess per implication de Record .

Vpon the word ( denier ) it may be drawne more generall , thus .

Home ne sera permit de Contrary son act demesne que deuant il ad conuz .

A more generall Reason whereof may againe bee yeelded , thus .

Seroit inconuenient que le ley alloweroit a dize , et a dedize vne mesme chose de Record .

Vpon the word ( Confession ) these Reasons also may be assigned more generall then that first ground .

Confession de vn est le plus pregnant proofe que poit este encounter luy .

A reason hereof : For , Le Confession de chacun que concerne luy mesme sera intendvray . For ,

Nul conuoit le offence melious que cesty que ad ceo comit et perpetrat .

Vpon the word ( Implication ) these generall Rules may be proposed .

Confession per Implication est cy sort oncounter le Party come Confession experss . For ,

Pregnant Implication est equiualent al matter express .

Vpon the word ( Record ) somewhat likewise may be said of like effect ; viz. thus ;

Matter de Record que est grounded sur le act del Party mesme luy issint liera que il ne contra dira ceo apres . For ,

Le credit d'vn Iudicial act ne sera impeach per ascun que est privy a ceo . For ,

Matter de Record est plus hault testimony in ley .

Vnder the word ( Fine ) there was mentioned this Ground or Rule .

Fine que est fait pur vn offence proue home culpable del offence .

Here hence these Propositions being more generall , may be deriued .

Nul per Common presumption voit faire voluntarie fine pur le offence de quel il nest Culpable .

A reason whereof may be thus .

Poena culpam implicat . And Le Consequent importa son Principal .

Hereof you see what abundance of Rules and Propositions one Case containeth ; and that we may descend from the particular case , to the speciall Reason , from that to a more generall , vntill we finde out the very primarie ground of naturall Reason , from whence all the other are deriued .

Herein this Caution is to bee considered and had in minde , that in collection of Grounds and Principles out of any proposed Case , the same may bee Natiue , and alwaies appliable and reduceable to the immediate Reason of the said Case , so that in any occasion of Argument , the same Case may be a pregnant and efficient proofe thereunto .

Furthermore collection of Propositions may bee drawne and reduced from all the principall places of Logicall Inuention .

1 As from the Causes vnto the Effect .

2 And contrariwise from the Effects vnto their Causes .

3 So likewise from the Consequent vnto the Antecedent .

4 And from the Antecedent to the Consequent .

5 Moreouer a Paris as from the Equall or Like

6 Amaiors from the more likely vnto that which is lesse probable .

7 And againe , from that which is lesse Likely or Probable to that which is more Probable .

8 Finally , from the Contrary to his Contrarie : sith that Eadem est ratio & proportio Contrariorum :

Notes of Authors touching the obseruation of Collection of Grounds & Rules by Inference .

THe Reasons and Causes wherefore these Propositions , Rules , and Axioms ( as hath beene declared first in manner as aforesaid ) are not onely to be considered , obserued and collected , but alway to be had , and carefully to be kept in memorie , And the end and scope whereto they serue and tend , will manifestly appeare , as well by the Obseruation of the right vse of them , and the manifold vtilitie and great helpe , which riseth by the daily meditation therein , as likewise by the consideration and amendment of some inconsiderate abuses which haue crept into the daily handling of them , both in iudiciall places abroad , and in priuate exercises at home .

The necessary vse of them therefore consisteth in two parts .

1 The one seruing to the obtaining of the knowledge of the Law .

2 The other in vse and practise of the Law learned by these Propositions and Rules , reducing them , as occasion serueth to publique and priuate behoofe .

The first is Speculatiue .

This last Practique .

As touching the first , the profit hence springing may soone be seene and discouered , if we call to our memorie , that no manner facultie whatsoeuer to bee learned by the the light of Reason , can consist or be comprehended by the capacitie of mans vnderstansting , except ( as before also in part hath appeared ) it be furnished with certaine Assertions , Precepts , Rules , and Propositions , and the same adorned with these two qualities , Vniuersalitie and Veritie . And as none may worthily take vpon him the name of a Diuine , which is ignorant of the Principles of his Science ; nor any man may well arrogate the title or name of a Philosopher or Physitian , who knoweth not the seuerall Rules , whereupon , as vpon sundry foundations , the said seuerall faculties are built and erected ; so none may bee deemed a Lawyer , or admitted , or can giue good Aduise therein , which knoweth not the Precepts whereon his Art dependeth ; or hath not read the determination of former doubts left reported in bookes , being the greatest part of the written Law in his Land ; And thence , not collected Conclusions for the decisions of present and future controuersies .

Moreouer seeing the Law of this Land is wholly Rationall ( as hath beene said ) wherein , as in all other Sciences , the minde of man holdeth and keepeth the former published proceeding , by apprehension and discourse , collecting Primarie and Secondary Conclusions and Grounds , it cannot bee otherwise , but that the obseruation of these Primarie and Secondarie Conclusions , must needs bee the best , most approued , profitable and speedie meane , for the attaining of the right , sound , and infallible knowledge of the said Lawes .

And if there be any way extant , or to be found by mans wisedome , to purge the English Lawes , from the great Confusions , tedious and superfluous iterations , with the which the Reports are infested ; or quit it of these manifold contrarieties , wherewith it is so greatly ouercharged , so that the Coherencie , constancie , and conformitie thereof , is almost vtterly lost , and not without some blemish and reproach of our Nation and Common-wealth , in manner cleane abolished ; Surely , as to mee seemeth , there is likelihood by that way and meanes to bring the same to passe , or by none . For , by Rules and Exceptions , all Sciences are and haue beene published , put downe and deliuered : out of Rules and Exceptions , a method is framed , by which meanes men may view a perfect plot of the coherence of things : Euen as in a large spred tree , from the lowest roote to the highest branche ; from the most ample and highest Generall , by many degrees of discent , as in a Petigree or Genealogie , to the lowest speciall and particular ; which are combined together as it were in a consanguinitie of bloud and concordancy of nature .

And yet therewithall perusing the particular differences and degrees of distinction betweene them , in all the course of humane studies , there is none that doth more commend vnto our cogitations the wonderfull force of mans wisedome , then doth this discourse which treateth of the Principles , Grounds , Rules , and Originals of Law and Iustice , being the chayne of humane societie , without the which it cannot consist ; and which , besides the exceeding pleasure that the consideration thereof breedeth in the well affected minde , is able to bring vs speedily to ripenesse and maturitie in that profession . For , Principium est dimidium totius , saith Aristotle .

Short refined reasons of long perplexed Cases , doe , through their soundnesse , satisfie our iudgements , through their breuity and shortnesse , wonderfully delight the minde , through their pithinesse , they may be deemed incomparable treasures , yeelding a great shew of wit , and wonderfully sharpening our vnderstanding , of infinite vse , in all humane affaires , containing much worth in few words , no burthen to memorie , but once obtained , are euer retained .

Sith all Sciences doe tend to Veritie ( as hath beene before often affirmed , which is the obiect of the intellectuall part of our minde ; And sith Verity and Truth cannot be obtained or found without due knowledge of the causes ; Tunc enim ( as saith the Philosopher ) unum quodque scire arbitramur , cum eius causas & Principia cognoscimus . And not vnfitly said the Poet ,

Foelix qui potuit rerum cognoscere causas .

Then must the right and due obseruation of these and such like Principles containing the Causes of things , be a direction to conduct and leade vs to the knowledge of that faculty and science , whereof they are Principles . For from hence all artificiall Demonstrations are , and haue beene drawne and deduced .

To adhere therefore and wholly to respect particular cases , without any observation of the generall Rules and Reasons , and to charge the memory with infinite singularities , is vtterly to confound the same ; a labour of vnspeakable toyle , and wherein we shall neuer free vs from confusion ; but engender in our selues , that wrong opinion which many haue ( amisse ) entertained , that there is nothing certaine in our Lawes .

Finally , if the Law be euery mans inheritance borne vnder the same , as notably ( besides our owne Lawes ) saith the Prince of Oratours , Tully : Maior M. T. Cicero pro Ceci●a . haereditas venit unicuique nostrum à iure et legibus , quàm ab ijs à quibus illa bona relicta sunt . Nam ut perveniat ad nos fundus , testamento alicuius fieri potest : ut retineamus quod nostrum factum est , sine iure civili fieri non potest . And all mens inheritance should be certaine both for the priuate repose of the people , and publique good and quiet of the Common wealth . Wee must needs thinke the Law of this Land full of defect , except we thinke and deeme it to be ( as indeed it is ) certaine .

Who then can , without the consideration of these vniuersall Maximes , Propositions , Rules , and Principles , wherein certainty is alone conteined , attaine vnto the certaine knowledge thereof ? for as it hath beene truly published ; Principiorum est unumquodque sibi ipsi fides ; Insomuch that cum negantibus ea , non est dsputandum . 10. Eliz. 271. a. Dyer , 26.

Hitherto hath beene spoken what profit the carefull consideration and obseruation of Principles , Rules , and Maximes of the Law of this Realme doth giue vs , and what assistance we may finde therein toward the study and speculation of the same . It resteth therefore now , that somewhat be said of the commodity which may come to him , that shall mannage and practise the same Lawes , and to what vse this obseruation therein likewise serueth .

Two kindes of Arguments are noted by Morgan .

Ily sont deux principall choses sur que Arguments Com. Colthurst . poient este fait S. nostre Maximes , & reason , la Mere de touts Leyes &c. I thinke by the later of these , the vse of Argumentation vpon reasons drawne from the Logicall places of invention , are to bee vnderstood ; As namely to argue and reason in cases of debate , from the causes , effects , parts , consequents , mischiefes , and inconueniences and such like ; which aptly may be called naturall reason , because all Art therein obserued , is but the imitation of nature : which kinde or course of Argument , is much vsed in ancient bookes , when as there were fewest bookes of reports extant .

But by the former of these two specified kindes of Arguments , is meant as manifestly appeareth , the helpe , Grounds , and Maximes doe yeeld in that kinde . For the vnderstanding therefore of the right vse thereof , it behooueth to consider , that the same wholly doth consili in the apt and convenient application of the said Rules , vnto such particular cases daily falling in debate , as may be comprehended vnder the generallity of the same Rules , and may in euery respect berightly reduced thereunto ; so that the Rule might serue as a well-grounded reason of the matter called in question .

To this effect the Author of the Dialogues betweene the Doctor and Student , after hee had at large spoken of the credit and supposed certainty of a Principle or Maxime of the Lawes of this Land , addeth further that such Maximes be not onely holden for Law , but also other cases like vnto them , and all things , that necessariy follow vpon the same , are to be reduced to the like Law .

A second vse of the obseruation of Principles in Argumentation may be this .

Wee are taught ( as saith Aristotle ) and as likewise hath afore beene remembred , by the election of Principles to abound in matter fit for Argumentation . Our propositions may be framed as parts of Syllogisme , or as antecedent Propositions of Enthymemes , by which forme of Arguments , this profit and commodity is reaped , that he which rightly useth the same , in proofe or disproofe of any proposed matter shall not need to fall into any unnecessary and extravagant matter , or digresse from the point that hehath in hand . For if the parts of our argument so to be concluded , doe consist of Propositions which are Principles in Law , and be in due and expedient manner framed and combined together , the Conclusion , which is the point in question , will follow , either necessarily or probably , according to the truth of the said Propositions , for as we haue before shewed , that by reducing a case to a Syllogisme , we might finde some of the principall Reasons and Propositions , whereupon the verity of the said case , being the conclusion , dependeth ; as trying out the cause by the effect : So of the contrary part , to frame the effect by the cause ; the same Propositions will , as they confirme one case , so likewise establish all other speciall cases , which shall happen to concurre in equall and like reason , or be reducible to , or vnder , the generallity of the said Proposition .

And although the Lawyer be not tyed to this short course of Argument current in schooles , yet in whatsoeuer large discourse of Argument , if this forme be respected , though amplified and enlarged with Prosyllogismes , after the manner of Rhetoritians or Oratours , it will yeeld the fruit aforce remembred . There are in our books extant of both , as namely , by Conisby , to prooue that a man might grant his lease for yeares without Deed , vseth this plaine and expresse Syllogisme ; whereof euery Proposition being a Ground and Principle in the Law , the conclusion 14. Hen. 7. 3. b. necessarily doth follow .

1 Maior ) Chose que ico poy prender in lease sans fait poiet passer hors de moy sans fait .

2 Minor ) Et un lease de terre pur terme d'anus est bon sans fait .

3 Conclusio ) Ergo per mesme le reason il poit passer hors del Lessee , & ceo sans fait .

Likewise a question grew whether the heire or executor were to haue a furnace fixed vnto the soyle , 20 Hen. 7. 13. b. or such chattells as were annexed to the freehold after the death of the Testator , or no ; where the Reporter putteth downe the opinion of Reede chiefe Iustice , Fisher , and Kingsmill , that the executors should not haue the same vnder the frame of this forme of Syllogisme ; whereof euery Proposition is a Rule of Law .

1 Maior ) Ceux choses que ne poient este forfeit per vtlary in personall action , ne este attache in Assise ne distraine per le signor pur Rent , tiels choses executours naveront .

2 Minor ) Mes un furnace ou table fix sur la terre , ou posses , ou un pale , ou un couering de un lict merisme , ou bord annex al franktenant , ou house & fenesters , & auters tiels semblables queux sont annex al franktenement , & sont fait , pur un profit del inheritance , ne poient este forfeit per utlary , ne attache , ne distraine .

3 Conclusio ) Ex consequenti sequitur que executours naveront tiels choses .

As touching the second sort of Argument by Syllogisme , in the Commentaries of Plowden the same is very frequent and usuall . And herein to take example out of the first case , because it first commeth to memory , All the said Argument of Griffith in the case of Foggosa , may be reduced into this Syllogisme set forth in the entrance thereof .

Maior ) Chascun agreement covient este perfect , plein & compleite .

Minor ) Et le evidence icy ne proue le agreement deste perfect , ne plain , ne compleite , mes plus tost un Communication ou parlance que un agreement .

The conclusion is suppressed for that it apparently followeth of the premises , vntill the end of the argument ; where at last it is expressed in this manner .

Conclusio ) Et issint le agreement est imperfect a doner action pur le subsedy per que le agreement intend per le statute nest accomply .

The Maior Proposition is amplified with this Prosyllogisme .

Car agreement concernant personall choses , est un mutuall assent des parties , & doit este execute oue un recompence , ou auterment doit este cy certaine & sufficient que doit doner action , ou auter remedy pur recompence , & sil issent nest , donquene sera dit agreement mes plus tost un nude communication .

And this Proposition he prooueth by the cases thereafter by him alleaged .

The Minor Proposition of the first Syllogisme is there enlarged where he further addeth .

Et issint in nostre case entant que estatute de an . 1. Regis nunc , cap. 3. &c. vntill the end of the case .

The like may be obserued in euery good and effectuall argument ; but we stand not vpon example .

A third profit may be considered herein : for manytimes it falleth out , that we perceiue a coherence and likenesse betweene diuers and sundry cases , which therefore wee know are applyable to our purpose ; and yet neuerthelesse , except we draw the unity of reason so found and considered in the said cases , vnto a short sentence , Ground , Rule , or Proposition , wherein they may concurre , and do agree ; we shall be driuen with long circumlocution and many words , to make manifest our meaning in the allegation of the same , especially if the cases do not concurre and agree in one mediate reason or likenesse , but are vpon some conformity further off , to be resembled each to other . As for example .

Le Roy ne poit arrest un home de suspition de treason 1. Hen. 7. 4. b. ou felony , luy mesme , come un subiect poit faire , pur ceo que si il fait tort in ceo feasant , le party issint iniury ne poit auer action envers luy .

Si home soit in debt a un sur contract sans specialty ; 49. Ed. 3. 5. a. 50 Assis. p. 1. 9. Eliz. 262. si apres cesty a que le dit est due soit vtlaye in action personall , le Roy naver cest dett pur l'utlary a luy forfeit , pur ceo que donque le defendant perderoit le benefit del ley gager que il poit aver in sute de ceo comence vers luy per le Creditour .

Coment que lestatute de W. 2. cap. 3. done resceit 25. Ed. 3. 48. a. b. Com. Walsingh . a cesty in le revercion generalment uncore si le Tenant pur vie soit , ou le Roy ad le revercion ; & il estant implede fúit default a pres default , le Roy ne sera receiue come common person seroit . Car , sur le resceit , le demandant doit connter vers cesty que est receiue , Mes issent ne poit a scun counter vers le Roy , ne luy suer , mes per petition ; Et pur ceo , si le Roy seroit resceiue le breve , le demandant abateroit maintenant , et pur cest mischiefe , al demandant le Roy ne sera resceiue : mes son droit sera sabe per auter meane .

These three cases greatly doe differ both in the circumstance of matter , & in the immediate reasons , and yet neuerthelesse haue some resemblance , and a kinde of conformitie and likenesse , betweene them each to other .

1 First they all concerne the King .

2 Secondly the King in euery of them is restrained from that power or benefit that his subiect hath . For

1 In the first , he cannot arrest one as his subiect may .

2 In the second he shall lose that debt which his subiect , in whose right hee claimeth it , shoud recouer .

3 In the third he shall not be receiued where the subiect might .

And lastly in euery of these cases , if the King should bee admitted to doe as a common person might , the subiect in suite with him should sustaine great preiudice . For

1 In the first he should not be permitted to punish the iniury done to his person .

2 In the second he should lose the benefit of waging his Law . And

3 In the third and last haue his Action debated without his default .

The likenesse of which cases cannot so well bee conceiued without many words , except wee reduce vnto some generall Axiome the vnity and resemblance of reason found in them . And therefore this Proposition without more might haue sufficed for all .

Where the subiect by reason of some Prerogatiue that is in the King , should otherwise be put to a preiudice ; there the king shall not be allowed that benefit which euery of his subiects by law enjoyeth .

In which generall Axiome or Rule , a generall reason of all the said seuerall Cases doth equally concur .

By this obseruation wee may reape likewise a fourth commoditie , after this manner . All the Reports doe consist of particular Cases Euery particular Case hath his seuerall Circumstance . Circumstances are singular , and hardly retained in memorie . For , true is that sentence , which Bracton hath borrowed Bracton li. 1. cap. 1. 〈◊〉 . 3. out of the Ciuill Law , Omnia habere in memoria , ct in nulio errare , diuinum est potius quam humanum . Wherefore when the Case is out of memorie , and the circumstances thereof quite forgot , the Reason yet remaineth , and is had in memorie . For , Memoria Intellectiua est vniuersalium , vt est ipsemet Intellectus .

It is not the Case ruled this way , nor that way but the reason which maketh Law ; For , Non quid sit intelligere Math. Gribal dus deratione study Juris lib. 1. cap. 4. sufficiat , sed cursit diligentius inquiratur . So that hee which by obseruation of these Grounds and Principles , remembreth but the reason ( as he easily may ) shall so sufficiently resolue all doubts of like degree , as if hee had remembred the expresse Cases from which the same Reason is deduced . Although in argument , I confesse not onely the Generall Reasons , but likewise the speciall Cases are as proofes produced and alleadged .

Lastly , sith the chosen and collected Propositions and Principles in manner as aforesaid , for our better vse behooueth to be committed to writing ; we may easily without great trouble , by disposing of them orderly , frame a Directory , in manner either of a methodicall Treause , or of an Alphabeticall Table , fit and conuement both for the speedie finding of that wee would seeke , and the ready hauing of that we can wish for , surpassing the benefit of any Abridgement hereto fore extant .

And thus much touching the commodities growing by the consideration and collection of Principles , Rules , Axiomes , Grounds , and Maximes : and of the scope and end whereunto they tend in managing of our Lawes , as well for the behoofe of the Student , and for the vse of the Practiser . And now remaineth that a few words be said to forewarne both , of certaine abuses ordinarily bred herein .

1 The first Abuse is , that neither the Ground often times produced doth come neere the Reason of the Case , in question ; nor the Cases alleadged to proue and fortifie that Ground , doe directly confirme the same . A fault very vsuall in publique exercises ; and may be redressed if we doe call to minde that any Case alleadged ought not to be wrested to proue the Rule or Ground alleadged ; but the Rule , Ground , or Principle ought to be the very immediate or secondarie reason of the Cases whence , it is drawne , and which Cases are brought to confirme the same , in such sort that all the Cases alleadged doe concurre in equalitie of reason , likenesse , and proportion ; and in full proofe of the Principle so produced . And that the Ground or Principle bee a reason of the question in variance , to subuert or confirme the same . Wherein also let this be weighed , that a few Principles cannot sufficiently serue to supplie all occasions in that behalfe , but the same must be drawne and deduced of all Causes , Titles , and matters in the Law fit for argument and ves .

2 A second principall ouersight is this . Many to proue their opinion in the controuersie proposed , frame their reason rightly from some notable Ground , and knowne Principle or Rule , which though it bee well applyed , yet not regarding the manifold Exceptions whereunto the same Principle is subiect , they doe set it forth so generall , that it giueth their aduersarie some cause of challenge and cauill thereunto , by obiecting some instance or cases vpon exception of the said Rule : and thereby doth not onely seeme to enfeeble the same , in shewing the fallacies thereof ; but sometime in shew , weakeneth the whole reason and argument grounded thereupon .

3 The third abuse of these Principles or Propositions , is , in the two much frequenting and often needlesse vse of them . For sometimes the obscuritie of the Cause , may require some other manner of argument , drawne from places of inuention , which may content and satisfie the minde of the hearers much better . And sometimes the clearenesse of the matter it selfe , needeth not such preparation of proofe and confirmation of those Principles and Rules . For then is the most and best of them , when that both Propositions and Cases to confirme the same , haue great coherence with the question ; when both the circumstance of the Case in question , and the cause of doubt , doe giue occasion to vse them ; so that which thereby is affirmed , may rightly be reducible to the purpose .

4 Finally , it sometimes falleth out to be a fault ouermuch to abound in well doing . Omne Nimium vertitur in vitium , saith the Prouerbe ; for sundry times it happeneth , that it is very conuenient and direct to the matter to make argument vpon a well applyed Prnciple , Rule or Ground , which by men of great learning and reading is sometimes so sufficiently handled , with such abundance and ample furniture of notable and direct Cases , that their endeauour herein deserueth high commendations : yet more conuenient were it , that their paines were lesse . For to what purpose behooueth it , to heape Case vpon Case , as it were one on the necke of another , Pelion vpon Ossa ? Whereas many probable reasons , though confirmed with few good Cases , breede greater contentation to the hearer , by reason of the seuerall proofe made thereby then many Cases .

FINIS .

THE VSE OF THE LAW .

Provided for Preservation OF

Our Persons . Goods , and Good Names .

According to the Practise OF The Lawes and Customes of this Land .

LONDON .

Printed for BEN : FISHER , and are to bee sold at his Shop without Aldersgate , at the Signe of the Talbot . 1629.

A Table of the Contents of this ensuing Treatise . Folio . WHat the vse of the Law principally consisteth in , Fol. 1. Surety to keepe the Peace , fol. ibid. Action of the case , for Slaunder , Batterie , &c. fol. 2. Appeale of Murther giuen to the next of kinne , fol. ibid. Manslaughter and when a forfeiture of Goods , and when not , fol. 3. Felon . de se , Felony by mischance , Deodand , fol. ib. Cutting out of Tongues , and putting out of Eyes , made felonie . fol. 4. The Office of the Constable , fol. ibid. Two high Constables for euery Hundred , and One pettie Constable for euery Village , fol. 5. The Kings-Bench first instituted , and in what matters they anciently had Iurisdiction in , fol. 6. The Court of Marshalsey erected , and its Iurisdiction within 12. miles of the chiefe Tunnell of the King , which is the full extent of the Verge , fol. 7. Sheriffes tourne instituted vpon the Division of England into Counties , the charge of this Court was committed to the Earle of the same County , fol. 7. Subdivision of the County Court into Hundreds , fol. 8. The charge of the County taken from the Earles , and committed yearely to such persons as it pleased the King . fol. ibid. The Sheriffe is Iudge of all Hundred Courts not giuen away from the Crowne , fol. 9. County Court kept monethly by the Sheriffe , fol. ib. The Office of the Sheriffe , fol. ibid. Hundred Courts to whom first granted , fol. 10 Lord of the Hundred to appoint two High Constables , fol. ibid. Of what matters they enquire of in Leets and Law dayes , fol. 11 Conseruators of the Peace and what their Office was , fol. 12 Conseruators of the Peace by vertue of their Office , fol. 13 Iustices of Peace ordayned in lieu of Conseruators . Power of placing and displacing of Iustices of Peace by vse deligated from the King to the Chancellor , fol. ibid. The power of the Iustice of Peace to fine the Offenders to the Crowne , and not to recompence the partie grieued , fol. ibid. Authority of the Iustices of Peace , through whom run all the County seruices to the Crown , fol. 14 Beating , killing , burning of Houses , fol. ibid. Attachments for surette of the Peace , fol. ibid. Recognizance of the Peace deliuered by the Iustices at their Sessons , fol. 14 Quarter Sessions held by the Iust. of Peace , fol. 15 The authority of Iustices of the Peace out of their Sessions , fol. 16 Iudges of Assize come in place of the auncient Iudges in Eyre , about the time of R. 2. fol. 17 England diuided into six Cicuits , and two learned men in the Lawes , assigned by the Kings commission to ride twice a yeare through those Shires alotted to that circuit , for their try all of priuate titles to Lands and goods , and all Treasons and Felonies , which the County Courts meddle not in , fol. ibid. The Authority of the Iudges in Eyre translated by Parliament to Iustices of Assize , fol. 18 The Authority of the Iustices of Assizes much lesned by the Court of Common Pleas , erected in H. 3. time , fol. ibid. The Iustices of Assize haue at this day fiue Commissions by which they fit , viz. 1. Oyer and Ternier , 2. Goale Deliuery , 3. To take Assizes , 4. To take Nisi Prius , 5. Of the Peace , fol. 19 Booke allowed to Cleargie for the scarcitie of them to be disposed in Religious Houses , fol. 22 The course the Iudges hold in their Circuits in the Execution of their Commission concerning the taking of Nisi Prius . fol. 26 The Iustices of the Peace and the Sheriffe , are to attend the Iudges in their Countie , fol. 27 Of Propertie of Lands to be gained by Entry , f. 28 Land left by the Sea belongeth to the King , fo. 29 Propertie of Lands by Discent , fol. 30 Three rules of Discent , fol. 31 Customes of certaine places , fol. 32 Euery Heyre hauing Land is bound by the binding Acts of his Ancestors , if hee be named , fol. 33 Propertie of Lands by Escheat , fol. 34 In Escheat two things are to be obserued , fol. 35 Concerning the tenure of Lands , fol. ibid. The reseruations in Knights seruice tenure , is foure , fol. 36 Homage , and Fealtie , fol. 38 Knight seruice in Capite , is a tenure de persona Regis , fol. 39 Grand Seriantic , Petty Scriantie , fol. ibid. The institution of Soccage in Capite , and what it is now turned into monyes rents , fol. 40 Antient Demeasne , what ? fol. ibid. Office of Alienation , fol. 41 How Mannors were at first created , fol. 42 Knights seruice Tenure reserued to common persons , fol. ibid. Soccage Tenure reserued by the Lord , fol. 43 Villenage or Tenure by Coppie of Court Roll , fol. 44 Court Baron , with the vse of it , fol. 45 What Attainders shall giue the Escheat to the Lord , fol. ibid. Prayer of Clergie , fol. 47 Hee that standeth mute forfeiteth no Lands , except for Treason , fol. ibid. He that killeth himselfe forfeiteth but his Chattels fol. 47 Flying for Felonie , a forfeiture of goods , fol. ibid. Lands entayled , Escheat to the King for Treason , fol. 48 A person Attainted may purchase , but it shall be to the Kings vse , fol. 50 Propertie of Lands by Conueyance is , first distributed into Estates for Yeares , for Life , Intayle and Fee-simple , fol. 52 Lease for yeares goe to the Executors and not to the Heyres , fol. ibid. Leases , by what meanes they are forfeitable , fol. 53 What Liuerie of Seizen is , and how it is requisite to euery estate for life , fol. 54 Of the new Deuise called a Perpetuitie , which is an Entayle with an addition , fol. 58 The inconueniencies of these Perpetuities , fol. 59 The last & greatest Estate in land is Feesimple , 60 The difference betweene a Remainder and a Reuertion , fol. 61 What a Fine is , fol. 62 What Recoueries are , fol. 63 What a Vse is , fol. 66 A Conueyance to stand ceased to a Vse , fol. 68 Of the continuance of Land by Will , fol. 70 Propertie in Goods , 1. By Guift , 2. By Sale , 3. By Stealing , 4. By Wauing , 5. By Straying , 6. By Shipwrack , 7. By Forfeiture , 8. By Executorship , fol. 78 By Letters of Administration , fol. 88 Where the Intestate had Bona notabilia in diuers Diocesse , then the Archb shop of that Prouince where hee Dyed is to commit Administration , fol. 89 An Executor may refuse the Executorship before the Bishop , if hee haue not entermedled with the Goods , fol. ibid. An Executor ought to pay , 1. Iudgements , 2. Stat. Recogn . 3. Debts by Bonds and Bills sealed , 4. Rent vnpayed , 5. Seruants wages , 6. Head-workmen , 7. Shop-booke , and Contracts by word fol. ibid. Debts due in equall degree of Record , the Executor may pay which of them hee please before suite be commenced , fol. 90 But it is otherwise with Administrators , fol. 91 Propertie by Legacie , fol. 92 Legacies are to bee payed before debts by Shop-bookes , Bils vnsealed , or Contracts by word , fol. ibid. An Executor may pay which Legacie he will first . Or if the Executors doe want they may sell any Legacie to pay Debts , fol. 93 When a Will is made and no Executor named , Administration is to bee committed Cum restamento annexo . fol. ibid.
THE VSE OF THE LAW , And wherein it Principally Consisteth .

THE Vse of the Law , consisteth principally in those Three things :

1 To secure Mens persons from Death and Violence . 2 To dispose the propertie of Goods and Lands . 3 For preservation of their good Names from shame and Infamie .

FOr safetie of persons , the Law provideth , ☞ Suretie to keepe the Peace . that any man standing in feare of another , may take his Oath before a Iustice of Peace , that he standeth in feare of his life , and the Iustice shall compell the other to bee bound with Suerties to keeps the Peace .

If any man Beate , wound or maime ☞ Action of the Case , for Slaunder , Batterie , &c. another , or giue false scandalous words that may touch his Credit , the Law giveth thereupon an action of the Case , for the slaunder of his good name ; and an Action of Batterie , or an appeale of Maime , by which recompence shall bee recovered , to the value of the hurt , dammage or danger .

If any man kill another with malice , ☞ Appeale of Murther giuen to the next of kinne . the Law giveth an appeale to the wife of the dead , if hee had any , or to the next of kinne that is Heire in default of a Wife , by which appeale the Defendant conuicted is to suffer Death , and to loose all his Lands and Goods ; But if the Wife or Heire will not sue or bee compounded withall , yet the King is to punish the offence by Indictment or Presentment of a lawfull inquest and tryall of the Offenders before competent Iudges ; whereupon being found guiltie , hee is to suffer Death , and to loose his lands and goods .

If one kill another vpon a suddaine ☞ Manslaughter , and When a forfeiture of Goods , and When not . quarrell , this is Man slaughter , for which the Offender must dye , except hee can reade ; and if hee can reade , yet must he loose his goods , but no lands .

And if a man kill another in his owne defence , hee shall not loose his Life , not his Lands , but he must loose his Goods ; except the partie slaine did first assault him , to kill , robbe , or trouble him by the High-way side , or in his owne House , and then he shall loose nothing .

And if a man kill him-selfe , all his ☞ Felon : de Se. Goods and Chattels are forfeited , but no Lands .

If a man kill another by misfortune , as ☞ Felony by mischance . shooting an Arrow at a Butt or marke , or casting a Stone ouer an house or the like , this is losse of his goods and Chattels , but not of his lands , nor life .

If a Horse , or Cart , or a Beast , or any ☞ Deodand . other thing doe kill a man , the Horse , Beast or other thing is forfeited to the Crowne , and is called a Deodand , and vsually graunted and allowed by the King to the Bishop Almner , as goods are of those that kill themselues .

The Cutting out of a mans Tongue , or ☞ Cutting out of Tongues and putting out of Eyes , made Felonie . putting out his Eyes maliciously , is Felonie ; for which the offender is to suffer Death , and loose his lands and goods .

But , for that all Punishment is for Examples sake . It is good to see the meanes whereby Offenders are drawne to their punishment ; and first for matter of the Peace .

THe auntient Lawes of England planted heere by the Conquerour , were , that there should bee Officers of two sorts in all the parts of this Realme to preserue the Peace :

1. Constabularij Pacis . 2. Conservatores Pacis .

The Office of the Constable was , to arest ☞ The Office of the Constable . the parties that he had seene breaking the Peace , or in furie ready to breake the peace , or was truely informed by others , or by their owne consession , that they had freshly broken the peace ; which persons hee might imprison in the Stockes , or in his owne house , as his or their quality required , vntill they had become bounden with sureties to keepe the peace ; which obligation from thenceforth , was to bee sealed and deliuered to the Constable to the vse of the King . And that the Constable was to send to the Kings Exchequer or Chancery , from whence Processe should bee awarded to leauy the debt , if the peace were broken .

But the Constable could not arrest any , nor make any put in Bond vpon complaint of threatning onely ; except they had seene them breaking the peace , or had come freshly after the peace was broken . Also , these Constables should keepe watch about the Towne , for the apprehension of Rogues and Vagabonds , and Night-walkers , and Euesdroppers , Scouts and such like , and such as goe Armed . And they ought likewise , to raise hue and cry against Murtherers , Manslayers , Theeues and Rogues .

Of this Office of Constable ☞ 2. High Constables for euery hundred . First , High Constables . there were high Constables , two of euery Hundred ; Pettie 2ly , Pettie Constables . Constables one in euery Village , they 1. Pettie Constable for euery village . were in auncient time all appointed by the Sheriffe of the Shiere yearely in his Court called the Sheriffes Tourne , and there they receiued their oath . But at this day they are appointed eyther in the Law day of that Precinct wherein they serue , by the high Constable ; or in the Sessions of the peace .

The Sheriffes Tourne is a Court very ☞ The Kings Bench first instituted , and in what matters they anci ancuntly had Inrisatction in . ancient , incident to his Office . At the first , it was erected by the Conquerour , and called the Kings-Bench , appointing men studied in the Knòwledge of the Lawes to execute Iustice as substitutes , to him in his name , which men are to bee named , Iusticiarij ad placita coram Rege assignati . One of them being Capitalis Iusticiarius called to his fellowes , the rest in number as pleaseth the King , of late but three , Insticiarij holden by Patent . In this Court euery man aboue twelue yeares of age , was to take his Oath of Allegiance to the King , if hee were bound , then his Lord to answere for him . In this Court the Constables were appointed & sworne ; breakers of the peace punished by fine and imprisonment , the parties beaten or hurt recompenced vpon complaints of damages , All appeales of Murther , Maime , Robberie decided , contempts against the Crowne , publique annoyances against the people , Treasons and Felonies and all other matters of wrong , betwixt partie and partie for Lands and goods .

But the King seeing the Realme grow ☞ Court of Marshalsee erected , and its Jurisaiction within 12. miles of the chiefe Tunnel of the King , which is the full extent of the Virge . daily more and more populous , and that this owne Court could not dispatch all : did first ordaine that his Marshall should keepe a Court , for Controuersies arising within the Virge . Which is within xij . miles of the chiefest Tunnell of the Court , which did but ease the Kings Bench in matters onely concerning debts , Conenants and such like , of those of the Kings houshold onely , neuer dealing in breaches of the Peace , or concerning the Crowne by any other persons , or any pleas of Lands . Insomuch , as the King for further ease hauing diuided this Kingdome into Counties , and committing the Charge of euery Countie to a Lord or Earle ; did direct , that those Earles within their limits should looke to the matter Sheriffes Tourne instituted vpon the diuision of England into Counties , the charge of this Court was committed to the Earle of the same Countie , this was likewise called Curia Visus fra. pleg . of the peace , and take charge of the Constables , and reforme publike annoyances , and sweare the people to the Crowne , and take pledges of the Freemen for their Allegiance , for which purpose the Countie did once euery yeare keepe a Court , called the Sheriffes Tourne . At which all the Countie ( except Women , Clergie , Children vnder 12. and not aged aboue 60. ) did appeare to giue or renew their pledges for Allegiance . And the Court was called , Curio Franciplegij , A view of the pledges of Free-men ; or , Turnus Comitatus .

At which meeting or Court , there fell ☞ Subdiuision of the Countie Court into Hundreds . by occasion of great Assemblies much bloudshed , scarcitie of Victuals , Mutinies and the like mischiefes ; which are incident to the Congregations of people , by which the King was moued to allow a subdiuision of euery Countie into Hundreds , and euery Hundred to haue a Court , whereunto the people of euery Hundred , should bee assembled twice a yeare for surueigh of Pledges , and vse of that Iustice which was formerly executed in that grand Court for the Countie ; and the Court or Earle appointed a Bayliffe vnder him to keep the hundred Court . But in the end , the Kings of this Realme found it necessarie to haue all execution of Iustice immediately for themselues , by such as were more bound then Earles The charge of the Countie taken from the Earles , and committed yearely to such persons as it pleased the King . to that seruice , and readily subiect to correction for their negligence or abuse ; and therefore , tooke to themselues the appointing of a Sheriffe yearely in euery Countie calling , them Vicecomit . and to them directed such writs and precepts for executing Iustice in the Countie , as fell out needfull to haue beene dispatched , committing to the Sheriffe Custodium Comitatus ; by which the Earles were spared of their toyles and labours , and that was layd vpon the Sheriffes . So The Sheriffe is Judge of all Hundred Courts not giuen away from the Crowns . as now , the Sheriffe doth all the Kings businesse in the Countie , and that is now called , the Sheriffes Tourne ; that is to say , hee is Iudge of this grand Court for the Countie , and also of all Hundred Courts not giuen away from the Crowne .

Hee hath another Court , called the ☞ County Court kept monethly by the Sheriffe . Countie Court , belonging to his office , wherein men may sue monethly for any debt or damages vnder 401. and may haue writs for to repleuie their cattell distrained and impounded for others , and there try the cause of their distresse ; and by a writ called Iusticies , a man may sue for any summe , and in this Court the Sheriffe by a writ , called an Exigent , doth proclaime men sued in Courts aboue , to render their bodies , or else they be Out-lawed .

This Sheriffe doth serue the Kings ☞ The Office of the Sheriffe . writs of Processe , bee they Sommons , Attachments to compell men to answere to the Law , and all writs of execution of the Law , according to Iudgements of Superiour Courts , for taking of Mens Goods , Lands , or Bodies as the cause requireth .

The Hundred Courts , were most of ☞ Hundred Courts to whom they were at first granted . them graunted to Religious Men , Noble men , others of great place . And also many men of good quality haue attained by chance , and some by vsage within Mannors of their owne liberty of keeping . Law dayes , and to vse their Iustice appertaining to a Law day .

Whosoeuer is Lord of the Hundred ☞ Lord of the Hundred to appoint two High Constables . Court , is two appoint two high Constables of the Hundred , and also is to appoint in euery Village , a pettie Constable with a Tithingman to attend in his absence , and to bee at his Commandement when he is present in all seruices of his office for his assistance .

There hath beene by vse and Statute Law ( besides surueying of the Pledges of Free-men and giuing the oath of Allegiance , and making Constables , many addictions of powers and authoritie giuen to the Stewards of leets and Lawdayes to be put in vre in their Courts ; as for example , may punish Inne-keepers , Bakers , Butchers , Poulterers , Fishmonger , and Tradesmen of all sorts , selling with vnder weights or measures or excessiue prizes , or things vnwholsome , or ill made in deceipt of the people . They may punish those that doe stop straiten or annoy the high wayes , or doe not according to the prouision enacted repaire or amend them , or diuert water courses , or destroy frey of Fish , or Of what matters they enquire of in leets and Law dayes . vse engines or nets to take Deere , Conies , Phesants or Partridges , or build Pigion houses ; except hee bee Lord of the Mannor , or Parson of the Church . They may also take presentment vpon Oath of the xij sworne Iury before them ; but they cannot try the Malefactors , onely they must by Indenture deliuer ouer those presentments of felonie to the Iudges , when they come their circuits into that Countie . All those Courts before mentioned are in vse , and exercised as Law at this day , concerning the Sheriffes Law dayes and leets , and the offices of High Constables , pettie-Constables , and Tithingmen ; howbeit , with some further addictions by Statute lawes , laying charge vpon them for taxation for poore , for Souldiers and the like , and dealing without corruption and the like .

Conservators of the Peace were in auntient ☞ Conseruators of the Peace called by the Kings writ for terme of their lines , or at the Kings pleasure . times certaine , which were assigned by the King to see the Peace maintained , and they were called to the Office by the the Kings writs , to continue for terme of theyr liues , or at the Kings pleasure .

For this Service , choise was made of ☞ Conseruators of the Peace & what their Office was . the best men of calling in the Countie , and but few in the Shire . They might bind any man to keepe the Peace and to good behauiour , by Recognizance to the King with suerties , and they might by Warrant send for the partie , directing their warrant to the Sheriffe or Constable , as they please , to arest the partie and bring him before them . This they vsed to doe , when complaint was made by any , that hee stood in feare of another , and so tooke his Oath ; or else , where the Conseruator himselfe did without oath or complaint , see the disposition of any man inclined to quarrell and breach of the Peace , or to misbehaue himselfe in some out-ragious manner of force or fraud . There by his owne Discretion hee might send for such a fellow , and make him find Suerties of the peace or of his good behauiour , as hee should see cause ; or else commit him to the Goale if hee refused .

The Iudges of eyther Bench in Westminster , ☞ Conseruators of the Peace by vertue of their Office . Barons of the Exchequer , Master of the Rolles , and Iustices in Eire and Affizes in their circuits , were all without writ Conseruators of the Peace in all Shires of England , and continue to this day .

But now at this day , Conseruators of ☞ Justices of Peace ordained in lieu of Conseruators . Power of placing and displacing Iustic . of Peace by vse deligated from the K. to the Chanchellor . the Peace are out of vse ; And in lieu of them , there are ordained Iustices of Peace , assigned by the Kings Commissions in euery Countie , which are moueable at the Kings pleasure ; but the power , of placing & displacing Iustices of the Peace , is by vse Deligated from the King to the Chancellor .

That there should be Iustices of Peace by Commissions , it was first enacted by a Statute made 1. Ed. 3. and their Authoritie augmented by many statutes made since in euery Kings raigne .

They are appointed to keepe foure Sessions ☞ The power of the Iust. of Peace , to fine the Offenders to the Crowne , & not to recompence the partie grieued . euery yeare ; That is , euery Quarter , one . These Sessions are a sitting of the Iustices to dispach the affaires of their Commissions . They haue power to heare and determine in their Sessions , all Felonies , breaches of the Peace , Contempts Parle Statut. 17. R. 2. Cap. 10. & v Dier 69. b. Ils ount poiar d'inquier de murder car co Felon . and trespasses , so farre as to fine the Offender to the Crowne , but not to award recompence to the partie grieued .

They are to suppresse Ryots , and Tumults , ☞ Authority of the Justices of the Peace , through whom runne all the Countie seruices vnto the Crowne . to restore Possessions forcibly taken away , to examine all Felons apprehended and brought before them ; To see impotent poore people , or maimed Souldiers prouided for , according to the Lawes . And Rogues , Vagabonds , and Beggers punished . They are both to Licence and suppresse Alehouses , Badgers of Corne and Victuals , and to punish Fore-stallers , regrators , and engrossers .

Through these in effect runne all the Countie seruices to the Crowne , as Taxations of Subsidies , Mustring men , Arming them , and leauying Forces , that is done by a speciall Commission or Preceps from the King . Any of these Iustices by Oath taken by a man that hee standeth in feare that another man wil beat him , or kill ☞ Beating , killing , burning of Houses . him , or burne his House , are to send for the partie by warrant of Attachment directed to the Sheriffe or Constable , and Attachments for suretie of the Peace . then to bind the partie with Suerties by Recognizance to the King , to keepe the peace , and also to appeare at the next Sessions of the Peace ; at which next Sessions , when euery Iustice of Peace hath therein deliuered all their Recognizances Recognizance of the Peace deliuered by the Justices at their Sessions . so taken , then the parties are called and the cause of binding to the Peace examined , and both parties beeing heard , the whole Bench is to determine as they see cause , either to continue the partie so bound , or else to discharge him .

The Iustices of Peace in their Sessions are attended by the Constables & Bayliffes , ☞ Quarter Sessions held by the Iustices of the Peace . of all Hundreds and liberties within the Countie , or by the Sheriffe or his Deputy , to bee employed as occasion shall serue in executing the precepts and directions of the Court . They proceed in this sort , The Sheriffe doth Sommon 24. Free-holders discreet men of the said County , whereof some 16. are selected and sworne , and haue their charge to serue as the Grand Iury ; The partie indicted is to trauerse the indictment or else to confesse it , and so submit himselfe to bee fined as the Court shall thinke meet ( regard had to the offence ) except the punishment be certainely appointed ( as often it is ) by speciall Statutes .

The Iustices of Peace are many in euerie Countie , and to them are brought all Traitors Felons and other malefactors of any sort vpon their first apprehension , and that Iustice to whom they are brought , examineth them , & heareth their accusations , but iudgeth not vpon it ; onely if heo find the suspition but light , then hee taketh bond with sureties of the accused , to appeare either at the next Assizes , if it be a matter of Treason or Felonie ; Or else at the quarter Sessions , if it bee concerning Ryot or mis-behauior or some other small offence . And hee also bindeth to appeare then those that giue testimonie and prosecute the accusation , all the accusers and witnesses , and so setteth the partie at large . And at the Assizes or Sessions ( as The authoritie of Iustices of the Peace out of their Sessions . the case falleth out ) hee certifieth the Recognizances taken of the Accused , Accusers , and Witnesses ; who being there are called , and appearing , the cause of the accused is dept into according to Law for his clearing .

But if the partie accused , seeme vpon pregnant matter in the accusation and to the Iustice to bee guilty , and the offence heinous , or the Offender taken with the manner , then the Iustice is to commit the partie by his warrant called a Mittimus to the Goaler of the common Goale of the Countie , there to remaine vntill the Assizes . And then the Iustice is to certifie his Accusation , Examination , and Recognizance taken for the appearances and prosecution of the witnesses , so as the Iudges may when they come readily proceed with him as the Law requireth .

The Iudges of the Assizes as they bee ☞ Iudges of Assize come in place of the ancient Iudges in Eyre about the time of R. 2. now become into the place of the antient Iustices in Eyre . The prime Kings after the Conquest vntill H. 3. time especially ; and after the lesser men euen to R. 2. time , did execute the Iustice of the Realine ; they began in this sort .

The King not able to dispatch busines in 1. Kings Bench. his own person , erected the Court of Kings 2. Marshals Court Bench , that not able to receiue al , nor meet 3. Countie Courts . to draw the people all to one place , there 4. Sheriffes Torns . were ordained Counties , and the Sheriffes 5. Hundred Leets and Lawdayes , All which dealt onely in Crowne matters , but the Iustice in Eyre dealt in priuat titles of lands or goods , and in all Treasons and Felonies , of whom there were 12. in number , the whole Realme , being diuided into six Circuits . Tornes , Hundred Courts , and particular Leets , and The authoritie of Tournes , leets . Hundreds , and Law-dayes , as it was confirmed to some special causes touching the publike good . Law-dayes , as before mentioned , which dealt onely with Crowne matters for the publique ; but not the priuate titles of Lands or Goods , nor the tryall of grand offences of Treasons and Felonies , but all the Counties of the Realme were diuided into Six Circuits . And two learned men well read England diuided into six Circuits , and two learned men in the Lawes , assigned by the Kings Commission to ride twice a yeare through those Shires alotted to that Circuit , for their try all of priuate titles to lands and goods , and all Treasons and Felonies , which the Countie Courts meddle not in . in the Lawes of the Realme , were assigned by the Kings Commission to euery Circuit , and to ride twice a yeare through those shires allotted to that Circuit , making Proclamation before hand , a conuenient time in euery Countie , of the time of their comming , and place of their sitting , to the end the people might attend them in euery Countie of that Circuit .

They were to stay 3. or 4. dayes in euery Countie , and in that time all the causes of that Countie were brought before them by the parties grieued , and all the Prisoners of the said Goale in euery Shire , and whatsoeuer controuersies arising concerning Life , Lands or Goods .

The authoritie of these Iudges in Eyre , ☞ The authority translated by Parliament to Iustices of Assize . is translated by Act of Parliament to Iustices of Assize ; which bee now , the Iudges of Circuits , and they doe vse the same Course that Iustices in Eyre , did to proclaime their comming euery halfe yeare , and the place of their sitting .

The businesse of the Iustices in Eyre , ☞ The authority of the Iustices of Assizes much lessened , by the Court of Common Pleas , erected in H. 3. time . and of the Iustices of Assize at this day is much lessened , for that in H. 3. time there was erected the Court of Common-pleas at Westininster , In which Court haue beene euer since and yet are begun and handled , the great suits of Lands , debts , benefices and contracts , fines for assurance of Lands and recoueries , which were wont to bee either in the Kings Bench , or else before the Iustices in Eyre . But the The Iustices of Assize haue at this day 5. Comissions by which they ist . Statute of Mag. Char. Cap. 5. is negatiue against it . Viz Communia placita non sequantur , Curiam nostram sed sequantur in aliquo loco Certo ; which locus Certus must be 1 Oyer and Termin . 2 Goale Deliuery . 3 To take Assizes . 4 To take Nisi Pr. 5 Of the Peace . the Common pleas , yet the Iudges of Circuits haue 5. Commissions by which they sit .

The first is , a Commission of Oyer and ☞ Oyer and Terminer in which the Judges are of the Quorum , and this is the largest Commission they haue . Termnier directed vnto them , and many others of the best accompt , in their Circuit ; But in this Commission the Iudges of Assize are of the Quorum , so as without them there can be no proceeding .

This Commission giueth them power to deale with Treasons , Murtherers , and all manner of Felonies and Misddemeanours whatsoeuer ; and this is the largest Commission that they haue .

The second is a Commission of Goale ☞ Goale deliuery directed onely to the Iudges themselues , and the Clearke of the Assize . Deliuery ; That is , onely to the Iudges themselues , and the Clearke of the Assize assotiate , And by this Commission they are to deale with euery Prisioner in the Goale , for what offence soeuer hee bee there . And to proceed with him according to the Lawes of the Realme , and the quality of their offence ; And they cannot by this Comission doe any thing concerning any man , but those that are Prisoners in the Goale . The course now in vse of Execution of this Commission of Goale Deliuery , is this . There is no Prisoner but is committed by some Iustice of Peace , who before he committed took his examination , and bound his accusers and witnesses to appeare and prosecute at the Goale deliuery . This Iustice doth certifie these examinations and bonds , and therevpon the Accuser is called solemnely into the Court ; and when he appeareth hec is willed to prepare a Bill of indictment against the Prisoner , and goe with it to the grand-Iury , and giue euidence vpon their oathes he and the witnesses , which he doth ; and then the Grand Iury write thereupon either Billa vera , and then the Prisoner standeth indicted , or else Ignoramus , then he is not touched . The Grand Iury deliuer these The mannerof the proceedings of the Justices of Circuits in their Circuits . Bils to the Iudges in their Court , and so many as they find indorsed Billa vera , they send for those Prisoners , then is euery mans indictment put and read to him , and they aske him whether he be guilty or not ; if he The course now in vse with the Iudges for the execution of the Commission of Goale deliuery . say not guilty , then he is asked how he will be tryed , he answereth , by the Countrey . Then the Sheriffe is commanded to return the names of 12. Freeholders to the Court , which Freeholders be sworne to make true deliuery betweene the King and the Prisoner , and then the indictment is againe read and the witnesses sworne , and speake their knowledge concerning the fact , and the Prisoner is heard at large , what defence he can make , and then the Iury goe together and consult . And after a while they come in with a verdict of guilty or not guiltie , which verdict the Iudges doe record accordingly . If any Prisoner plead not guilty vpon the indictment and yet will not put himselfe to tryall vpon the Iury , ( or stand mure ) he shall be pressed .

The Iudges when many prisoners are in the Goale doe in the end before they goe , peruse euery one . Those that were indicted by Grand Iury , and found not guiltie by the select Iury , they judge to be quitted , & so deliuer them out of the Goale . Those that are found guilty by both Iuries they Iudge to death and command the Sheriffe to see execution done . To those that refuse tryall by the Countrie , or stand mute vpon the indictment , they iudge to be pressed to death , some whose offences are pilfring vnder twelue pence value , they judge to be whipped . Those that confesse their indictments , they iudge to death , whipping or otherwise , as their offence requireth . And those that are not indicted at all , but their bill of inditement returned with Ignoramus by the grand lury and all other in the Goale , against whom no bils at all are , they doe acquit by proclamation out of the Goale ; That one way or other they ridde the Goale of all the prisoners in it , But because some prisoners haue their bookes and burned in the hand and so deliuered , It is necessary to shew the reason thereof . This hauing their bookes is called their Clergie , with in antient time began thus .

For the scarcity of the Clergie in the ☞ Book allowed to Clergic for the scarcitie of them to bee disposed in Religious Houses . Realme of England to be disposed in Religious houses , or for Preists , Deacons and Clerkes of parishes , there was a prreogatiue allowed to the Clergie , that if any man that could reade or were a Clerke , were condemned to death , the Bishop of the Diocesse , might if he would clayme him as a clerke , and he was to see him tryed in the face of the Court.

Whether he could read or not the booke was prepared and brought by the Bishop , and the Iudge was to turne to some place as he should thinke meete , and if the prisoner could reade them then the Bishop was to haue him deliuered ouer vnto him to dispose of in some places of the Clergie , as hee should thinke meete . But if either the Bishop would not demand him : or that the Prisoner could not read , then was hee to bee put to death .

And this Clergie was allowable in the ☞ Concerning the allowing of the Clergie to the Prisoner . Clergie allowed in all offences except Treason and Robbing of Churches , and now taken away by many Statutes . ancient times and Law , for all offences whatsoeuer they were except Treason and robbing of Churches of their goods and ornaments . But by many Statutes made since , the Clergie is taken away for Murther , Burglarie , Robberie , Purse-cutting , and diuers other felonies particularized by the Statutes to the Iudges , and 1. In Treason . lastly ; by a Statute made 18. Elizabeth : 2. In Burgiarie . the Iudges themselues are appointed to 3. Roberie . allow Clergie to such as can read , being 4. Purse cutting . not such offenders from whom Clergie is 5. Horse-stealing . and in diuers other offences particularized in seuerall Statutes . taken away by any Statute . And to see them burned in the hand , and so discharge them without deliuering them to the Bishop , howbeit the Bishop appointeth By the Stat. of 18. Eliz. the Iudges are appointed to allow Clergie , and to see them burned in the hand , & to discharge the Prisoners without deliuering them to the Bishop . the deputie to attend the Iudges with a booke to trie whether they would reade or not .

The 3. Comission , that the Iudges of Circuits haue , is , a Commission directed to themselues onely to take Assizes by which they are called Iustices of Assize , and the Office of those Iustices is to doe tight vppon Writs called Assizes , brought before them by such as are wrongfully thrust out of their Lands . Of which number of writs there was farre greater store brought before them in antient times then now it is , for that mens seizons and possessions are sooner recouered by sealing Leases vpon the ground , and by bringing an Eiectione firme , and trying their tytle so , then by the long suites of Assizes .

The 4. Commission , is commission to take Nisi ☞ 4. Commission is to take Nisi Prius and this is directed to the two Iudges and the Clerks of the Assize . Prius directed to none but to the Iudges themselues and their Clerkes of Assizes , by which they are called Iustices of Nisi Prius . These Nisi Prius happen in this sort , when a suit is begun for any matter in one of the three Courts , the Kings Bench , Common Pleas , or the Exchequer Nisi Prius . here aboue , and the parties in their pleadings doe varie in a point of fact ; As for example , If an action of Debt or Trespasse growne for taking away goods , the Defendant denieth that hee tooke them , or in an action of the Case for slaunderous words , the Defendant denieth that he spake them .

Then the Plaintiffe is to maintaine and proue them , that the obligation is the Defendants deed , that hee either tooke the goods , or spake the words , the Law saith , that Issue is joyned betwixt them , which issue of the Fact is to bee tried by a Iurie of Twelue men of the Countie , where it is supposed by the Plaintiffe the prises to bee done , and for that purpose the Iudges of the Court doe award a writ of Venire fac : in the Kings name to the Sheriffe of that Countie , commanding Uen fac . pr. 24. Free-holders . him to cause foure and twentie discreet Free-holders of his Countie at a certaine day to try this issue joynt , out of which foure and twentie onely Twelue are chosen to serue , and that double number is returned , because some may make default , and some bee challenged vpon kindred , alliance , or partiall dealing .

These foure and twentie , the Sheriffe doth name and certifie to the Court , and withall that hee hath warned them to come at the day according to their writ . But because at his first summons there falleth no punishment vpon the foure and twentie if they come not , they very seldome or neuer appeare vpon the first Writ , and vpon their default there is another Writ * * Distringas . returned to the Sheriffe , commaunding him to The manner of proceeding of Iustices of Circuits in their circuits . distraine them by their Lands to appeare at a certaine day appointed by the writ , which is the next day after the Nisi prius Iusticiarij nostri ad Assizas capiendas Venerint , The course the Iudges bold is their Circuits in the execution of their Commission concerning the taking of Nisi prius . &c. of which words the writ is called a Nisi prius , and the Iudges of the circuit of that Countie in that varatis and meane time before the day of appearance appointed for the Iurie aboue , haue their Commission of Nisi prius , authority to take the appearance of the Iury of the County before them , and there to heare the Witnesses and proofes on both sides concerning this issue of fact , and to take the verdict of the Iury , and against the day they should haue appeared aboue , which to returne the verdict read in the Court aboue , returne is called Postea . Postea .

And vpon this verdict clearing the matter in Fact , one way or other , the Iudges aboue giue judgement for the partie for whom the verdict is found , and for such damages and costs as the Iury doth assesse .

By those tryals called Nisi prius , the Iuries and the parties are eased much of the charge they should bee put to , by comming to London with their Euidences and Witnesses , and the Courts of Westminster are eased of much trouble they should haue , if all the Iuries for tryals should appeare and try their causes in those Courts ; for those Courts haue little leisure . Now though the Iuries come not vp , yet in matters of great weight or where the tytle is intricate or difficult , the Iudges aboue vpon information to them doe retaine those causes to be tryed there , and the Iuries doe at this day in such causes come to the Barre at Westminster .

The fift Commission that the Iudges in ☞ 5. Commission as a Commission of the Peace . their Circuits doe sit by , is the Commission of the Peace in euery Countie of their circuit . And all the Iustices of the Peace hauing no lawfull impediment , are bound to bee present at the Assizes to attend the Iudges as occasion shall fall out , if any make default the Iudges may set a fine The Justices of the Peace and the Sheriffe are to attend the Judges in their Countie . vpon him at their pleasure and discretions . Also the Sheriffe in euery shire through the Circuit , is to attend in person the Iudges all that time they bee within the Countie , and the Iudges may fine him if hee faile for negligence or misbehauiour in his Office before them ; and the Iudges aboue may also fine the Sheriffe for not returning sufficiently Writs before them .

Propertie in Lands is gotten and transferred by one to another , those foure manner of wayes . 1 By Entry . 2 By Discent . 3 By Escheat . 4 Most vsually by Conueyance .

1 Propertie by Entry is , where a man ☞ Ospropertie of Lands to bee gained by Entrie . findeth a piece of Land that no other possesseth or hath tytle vnto , and hee that findeth it doth enter , this Entry gaineth a Propertie ; this Law seemeth to bee deriued from this text , Terradedit filijs hominum , which is to bee vnderstood , to those that will till and manure it , and so make it yeeld fruit ; and that is hee that entreth into it , where no man had it before . But this manner of gaining Lands was in the first dayes and is not now of vse in All Lands in England were the Conquerours and apprepriated to him vpon the Conquest of England , and held of him except , 1. Religious and Church-lands . 2. The lands of the men of Kent . England , for that by the conquest all the Land of this Nation was in the Conquerours hands , and appropriated vnto him ; except , Religious and Church-lands , and the lands in Kent , which by composition were left to the former owners , as the Conquerour found them , so that no man but the Bishopricks , Churches , and the men of Kent , can at this day make any greater title then from the Conquest to his Lands in England , and Lands possessed without any such title are in the Crowne and not in him that first entreth ; as it is by Land left by the Sea , this Land belongeth to the King and Land left by the Sea belongeth to the King . not to him that hath the Lands next adioyning which was the auncient Sea Bankes , This is to bee vnderstood of the inheritance of Lands : viz. That the inheritance cannot bee gained by the first entry . But an estate of Franckiut . for an other mans life by our Lawes , may at this day be gotten by entrie . As a man called A. hauing land conueyed vnto him for the life of B. dyeth without making any estate of it , there whosoeuer first entreth into the Land , after the decease of A. getteth the propertie in the Land for time of continuance of the estate which was granted to A. for the life of B. which B. yet liueth , and therefore the said Law cannot reuert to him . And to the heire of A. it cannot goe , for that it is not any state of inheritance but onely Occupancie . an estate for another mans life ; which is not deseendable to the heire , except he be specially named in the grant : viz. To him and his heires . As for the Exccutors of A. they cannot haue it , for it s not an estate testamentory that should goe to the Executors as goods and Chatrels should , so as in truth , no man can intitle himselfe vnto those Lands ; and therefore , the Law preferreth him that first entreth , and he is called Occupans and shall hold it during the life of B. but must pay the rent , performe the conditions , and doe no wast . And he may by deed assigne it to whom he please in his life time . But if he die , before he assigne it ouer , then it shall goe againe to him whomsoeuer entreth . And so all the life of B. so often as it shall happen .

Propertie of Lands by discent is , where ☞ Propertie of Lands by discent . a man hath Lands of inheritance and dyeth not disposing of them , but leauing it to goe as the Law casteth it vpon the heire . This is called discent of Land , and vpon whom the discent is to light , is the question . For which purpose the Law of inheritance preferreth the first Child before all others , and amongst children the male before the female , and amongst males the first borne . If there bee no Children then the Brother , if no Brothers , then sisters , if neyther Brothers nor Sisters , then Vnckles , and for lacke of Vncles , Ants , if none of them , then Couzens in the necrest degree of consanguinity , with these three rules of diuersities . 1. That the Eldest Of discent 3. rules . male shall safely inherit ; but if it come to females , then they being all in an equall degree of neerenes shall inherit altogether Brother or Sister of the halfe bloud shall not inherit to his Brother or Sister but only as a child to his Parents . and are called Parceners , and all they make but one heire to the Ancestor . 2. That no brother nor sister of the halfe blood shall inherit to his brother or sister , but as a Child to his Parents , as for example . If a man haue two wiues , and by either wife a sonne , the eldest sonne ouerliuing his Father is to be preferred to the inheritance of the Father being Fee-simple ; But if he entreth and dyeth without a child , the Brother shall not be his heire , because he is of the halfe bloud to him , but the Vnckle of the eldest Brother or Sister of the whole bloud , yet if the eldest Brother had dyed in the life of the Father , then the youngest Brother should inherit the Land that the Father had , although it were a child by the second wife , before any daughter by the first . The third rule about discents . That land purchased by the partie himselfe that dyeth , is to be inherited ; first , by the heires of the Fathers side , then if he haue none of that part by the heires of the Mothers side . But Land descended to him from his father or mother , are to go to that side only Discent . from which they came , and not to the other side .

Those Rules of discent mentioned before are to bee vnderstood of Fee simples and not of entailed Lands , and those rules are to bee restrained by some particular customes of some particular places : as namely , the custome of Kent , that euery male of equall degree of Childhood , Brotherhood or kindred , shall inherit equally , Customes of certains places . as daughters shall being Parceners , and in many Burrough Townes of England , the Custome alloweth the youngest sonne to inherit , and so the youngest Daughter . The Custome of Kent is called Ganel kind . The Custome of Boroughes Burgh English .

And there is another note to bee obserued in Fee-simple inheritance , and that is , that euerie heire hauing Land or inheritance , be it by common Law or by Custome is chargeable , so farre forth as the value thereof extendeth with the binding acts of the Ancestors from whom the inheritance descendeth ; and these acts are colaterall encombrances , and the reason of this charge is , Qui sentit commodum sentire debet incommodum siue onus . As for Euery Heire hauing land is bound by the binding Acts of his Aneestors if he be named . example , if a man bind himselfe and his heires in an obligation or doe Couenant by writing for him and his heires , or doe grant an Anuity for him & his heires , which warrantie in all these cases , the Law chargeth the heire after the death of the Auncestor with this Obligation ; Couenant , Annuitie , Warrantie , Yet with these three Cautions . 1. That the partie must by speciall name bind himselfe and his heires , or Couenant , grant , and warrant for himselfe and his heires ; otherwise , the heire is not to bee touched . Secondly , that some action must be brought against the heire , Dier. 114. Plowden . whilst the Land or other inheritance resteth in him vnaliened away ; For if the Ancestor dye , and the heire before an action be brought against him , vpon those Bonds , Couenants , or Warranties , doe alien away the Land , then the heire is cleane discharged of the Burthen , except the Land was by fraud conueyed away of purpose , to preuent the suite intended against him . Thirdly , that no heire is further to bee charged , then the value of the Land descended vnto him , for the same Ancestor that made the instrument of charge , and that Land also not to bee sold outright , but to bee kept in extent and at a yearely value Dier. 149. Plowden . Dauy and Pepps case . vntill the debt or damage be runne out , neuerthelesse , if an heire that is sure vpon such a debt of his Ancestor , doe not deale clearely with the Court , when he is sued ; that is , if hee come not immediately by way of confession and set downe the true quantitie of his inheritance descended , and so submit himselfe ; therefore , as the Law requireth . Then that heire that otherwise demeaneth himselfe , shal be charged of his Heire charged for his false plea. his owne other Lands and goods , and of money for this deed of his Ancestor . As for example . If a man bind himselfe and his heires in an obligation , and dyeth leauing but 10. Acres of Land to his heire , if his heire be sued vpon the bond , & commeth in , and denieth that he hath any by discent , and it is found against him by the verdict that he hath 10. Acres , this heire shall bee now charges by his false plea of his owne lands goods and bodie to pay the 100l. although the 10. Acres be not worth 10l.

Propertie of Lands by Escheat , is where ☞ Propertie of Lands by Escheat . the owder dyeth , seizeth of the lands in possession without child or other heire thereby the Land for lacke of other heire , is said to Escheat to the Lord of whom it is holden . This lacke of heire happeneth principally in two cases . 1. where the Lands owner is a Two causes of Escheat . First . Bastardy . Second Attainter of treason , selome . bastard . 2. Where he is attainted of Felonic or Treason , neither can a Bastard haue any heire except it be his owne child nor a man attainted of Treason , although it be his owne child .

Vpon Attainder of treason the King is ☞ Treason . to haue the land although hee be not the Attainder of treason the King though the lands be not holden of him otherwise in attainder of Felonie , &c. for there the King shall haue but Annum diem & vastum . Lord of whom it is held , because it is a Royall Escheat . But for felonie it is not so , for there the King is not to haue the Escheat , except the Land be holden of him . And yet where the Land is not holden of him the King is to haue the Land for a yeare and a day next ensuing the judgment of the Attainder , with a libertie to commit all manner of wast all that yeare in houses , gardens , ponds , lands and woods .

In these Escheats , two things are especially ☞ In Escheat two things are to bee obserued . to be obserued ; the one is , the tenure of the lands , because it directeth the person to whom the Escheat belongeth : viz. the 1. The tenure . Lord of the Mannor of whom the Land is 2. The manner of the Attainder , all lands are holden of the Crowne immediatly or mediately by Mesne Lords , the Reason . holden . 2. The manner of such attainder which draweth with it the Escheat , concerning the Tenures of Lands , it is to bee vnderstood , that all lands are holden of the Crowne either mediately or immediately , and that the Escheat appertaineth to the Concerning the tenure of Lands . immediate Lord , and not to the mediate . The reason why all land is holden of the Crowne immediatly or by Mesne Lords is this .

The Conqueror got by right of Conquest all the land of the Realme into his owne ☞ The Conqueror by right of Conquest got all the Lands of the realme into his hands , & as he gaue it hee still Cap. first instituted refer●●drents and seruices Knights seruice , in hands in demeasne , taking from euery man all estate , Tenure , propertie and libertie The reseruations in Knights seruice tenure was 4. of the same , ( except Religious and Church lands , and the Land in Kent ) and 1. Marriage of the wards male and female . still as hee gaue any of it out of his owne hand , he reserued some retribution of rents or seruices or both , to him and to 2. Horse for Seru. his heires ; which reseruation , is that , which 3. Homage & ●al . is called the tenure of Land . 4. Primer Seisni .

In which reseruation , he had foure Institutions , ☞ The police of the Conquerour in the reseruation of seruices constituted i●●●ure particulars , was to haue the marriage of his Wards both Male and Female . exceeding politique , and sutable to the state of a Conqueror .

Seeing his people to be part Normans , and part Saxons , the Normans he brought with him , the Saxons hee found heere : hee bent himselfe to inioyne them by marriages in amitie , and for that purpose ordaines , that if those of his noble Knights and Gentlemen , to whom hee gaue great rewards of Lands should dye , leauing their heire within age , a Male within 21. and a femalle within 14. yeares , and vnmarried , then the King should haue the bestowing of such heires Interest of marriage goeth employed in euery tenure by Knights seruice . in marriage in such family , and to such persons as hee should thinke meet , which interest of marriage went still imployed , and doth at this day in euery tenure called Knights seruice .

The second was to the end , that his ☞ Reseruation that his tenant shold keepe a horse of Seruice , and serue vpon him himselfe , when the King went to warres , which is a part of that seruice called Knights seruice . people should still bee conserued in warlike exercises and able for his defence ; when therefore , he gaue any good Portion of Lands , that might make the partie of abilitie or strength , hee with all reserued this seruice . That that partie and his heire hauing such Lands , should keepe a horse of seruice continually , & serue vpon him himselfe when the King went to wars , or else hauing impediment , to excuse his owne person , should find an other to serue in his place ; which seruice of horse and man , is a part of that seruice called Knights seruice at this day .

But if the Tenant himselfe be an Infant , the King is to hold this Land himselfe vntill hee come to full age , finding him meat , drinke , apparell , and other necessaries , and finding a horse and a man , with the ouerplus to serue in the warres , as the Tenant himselfe should doe if he were at full age .

But if this inheritance descend vpon a woman , that cannot serue by her sex , then the King is not to haue the Lands , she being of 14. yeares of age , because shee is then able to haue an husband , that may do the seruice in person .

The third Institution ☞ 3. Institution of the Conquerour was that his tenant ; by Knights seruice vow vnto loyeltie , Which he called Homage , and make vnto him oath of his faith which was called Fea tie . that vpon euery guilt of Ayd money to make the Kings eldest son a Knight , or to marry his eldest Daughter is likewise due to his Maiestie from euery one of his Tenants in Knights seruice , that hold by a whole feo 20 1. and from euery Tenant in Soccage if his land be worth 10. pounds per ann. 20. 5. vide N. 3. fol. 82. Land the King reserued a vow and an Oath to bind the partie to his faith and loyaltie , that vow was called Homage , the oath Fcaltie ; Homage , is to be done kneeling holding his hands 1. Homage . betweene the knees of 2. Fcaltie . the Lord , saying in the French tongue ; I become your man of Life and Lands , and earthly honour . Fealtie , is to take an oath vpon a booke , that hee will be a faithfull Tenant to the King and doe his seruice , and pay his rents according to his tenure .

The 4. Institution , ☞ 4. Institution was for Recognizon of the Kings bountie to bee payd by euery heire vpon the death of his a ancestor , which is one yeares profit of the Lands , called , Primer seissin . was for Recognizon of Escuage was likewise due vnto the King from his Tenant by Knights seruice , when his Maiestre made a voyage royall to warre against another Nation , those of his Tenants that did not attend him there for 40. dayes with Horse and furniture fit for seruice , were to bee assessed in a certaine sum ne by act of Parliament , to bee payed vnto his Maiesty , which assessement is called Escuage . the Kings bounty by euery heire succeding his ancestor in those Kts. seruice lands , the King should haue Primer seissin of the lands , which is one yeares profit of the lands , and vntill this bee paid the King is to haue possession of the land , & then to restore it to the heire which continueth at this day in vle , and is the very cause of suing Liuerie , and that as well where the heire hath bin in ward or otherwise .

These before mentioned by the rights of ☞ Knights Seruice in Capite , is a Tenure de persona Regis . tenure , are called Knights seruice in Capite , which is as much to say , as tenure de per sona Regis & Caput , being called the chiefest part of the person , it is called a Tenure in Capite , or in Chiefe . And it s also to be noted , that as this tenure by Capite in Knights seruice generally was a great safetie to the Crowne , so also the Conquerour instituted Tenants by Grand Serjantie , Were to pay reliefe at the full age of euery heire , which was one years value of the lands so held vltra Repriss . other tenures in Capite necessary to his estate ; as namely , he gaue diuers lands to be holden of him by some speciall Seruice about his person , or by hauing some speciall Office in his house , or in the Field , which haue Knights seruice and more in them , And these hee called . Tenures Grand Serjantie . Pettie Serjantie . by Grand Sarjantie . Also hee provided vpon the first guift of Lands , to haue Reuenues by continuall Seruice of Ploughing his Land , repairing his Houses , Parkes pales , Castles and the like . And sometimes to a yearely prouision of Gloues , Spurres , Hawkes , Horses , and Hounds and the like ; which kind of reseruations are called also tenures in Chiefe or in Capite of the King , but they are not by Knights seruice . But such things as the Tenants may hire another to doe or prouide for his money . And this Tenure is called a tenure by Soccage in Capite , the word Soccagium signifying the Plough , The institution of Soccage in Capite and What it is now turned into monies reuts . howbeit in this later time , the Seruice of Ploughing the land is turned into money rent , and so of Haruest workes , for that the Kings doe not keep their Demeasne in their owne hands as they were wont to Antient Demeasne Texure , What ? doe , yet what Lands were De antiquo Dominico Corona , it well appeareth in the Records of the Exchequer called the book of Dommesday . And the Tenants by auntient Demeasne , haue many Innuities and Priuiledges at this day , that in auntient times were granted vnto those Tenants by the Crowne , the particulars whereof are too long to set downe .

These Tenures in Capite , as well as that by Soccage , as the others by Knights seruice haue this propertie ; that the antient Tenants cannot alien their Lands without licence of the King , if hee doe , the King is to haue a Fine for the contempt , and may seize the land , and retaine it vntill the fine bee paid . And the reason is , because the King would haue a libertie in the choyce of his Tenant , so that no man should presume to enter into those Lands and hold them ( for which the King was to haue those special seruices done him ) without the Kings leaue ; This licence and fine as it is now disgested is easie and of course .

There is an office called the office of Alienation , whereby any man may haue alicence ☞ Office of Alienation . at a reasonable rate , it is at the third part of one yeares value of the Land moderately rated . A Tenant in Capite by A●ence of alienation is the third part of one yeres value of the land moderately rated . Knights seruice or grand Seriantie , was restrained by antient Statute , that he should not giue nor alien away more of his Lands , then that with the rest hee might bee able to doe the seruice due to the King , and this is now out of ☞ Aid , a summe of mony ratably leauied according to the proportion of the Lands . vse .

And to this Tenure by Knights Seruice in chiefe , was incident that the King should haue a certaine summe of money , called Euery Tenant by Knights Seruice in Capite , had to make the Kings eldest Son a Knight , or tomarry his Eldest daughter . Aid ; due to bee ratably leauied among if all those Tenants proportionably to his Lands , to make his eldest Sonne a Knight ; or to marry his eldest Daughter .

And it is to bee noted , that all those Tenants by Soccage in Cap. must sue liuerie and pay Primer Seisin , and not to bee in Ward for bodie or Land . that hold Lands by the Tenure of Soccage in Capite ( although not by Knights seruice ) cannot alien without licence , and they are to sue liuery , and pay Primer Seisin , and not to be in Ward for bodie or Land .

By example and resemblance of the ☞ How Mannors were at first created . Mannors created by great men in imitation of the policie of the King in the institutions of tenures . Kings policie in these Institutions of Tenures ; the Great men and Gentlemen of this Realme did the like so neere as they could ; as for example , when the King had giuen to any of them two thousand Acres of Land , this partie purposing in this place to make his dwelling ( or as the old word is ) his Mansion house ; or his Mannor house , did deuise how he might make his Land a Compleat habitation to supply him with all manner of necessaries , and for that purpose , hee would giue of the outtermost parts of two thousand Acres , 100. or 200. Acres or more or Knights seruice tenure reserued to common persons . lesse , as he should thinke meet : to one of his most trustie Seruants with some reseruation of rent to find a horse for the Warres , and goe with him when he went with the King to the Warres , adding vowe of Homage , and the Oath of Fealtie , Wardship , Marriage , and reliefe . Knights Seruice Tenure created by the Lord is not a Tenure by Knights seruice of the person of the Lord , but of his Mannor . Reliefe is 5l. to bee paid by euery Tenant by Knights seruice to his Lord vpon his entrance respectiuely for euery Knights fee descended . This Reliefe is to pay fiue pound for euery Knights Fee , or after the rate for more or lesse at the entrance of euerie Heire , which Tenant so created and placed , was and is to this day called a Tenant by Knights Seruice , and not by his owne person , but of his Mannors ; of these hee might make as many as hee would . Then this Lord would prouide that the Land which hee was to keepe for his owne vse , should bee ploughed , and his Haruest brought home , his House repayred , his Parke pailed and the like , Soccage Tenure reserued by the Lord . and for that end would giue some lesser parcels to sundry others , of twentie , thirtie , fortie or fiftie Acres ; reseruing the seruice of ploughing a certaine quantitie or so many clayes of his Land , and certaine Haruest workes or dayes in the Haruest to labour or to repaire the House , Parke , Pale , or otherwise , or to giue him for his Prouision , Capons , Hens , Pepper , Commin , Roses , Gillyflowers ; Spurres , Gloues , or the like ; or to pay him a certeine rent , and to bee sworne to be his faithfull Tenant , which Tenure was called a soccage Tenure , and is so to this day , howbeit most of the ploughing and haruest seruices , are turned into mony rents .

The Tennants in Soccage ☞ Reliefe of Tennant in Soccage one yeares rent and no wardship or other profit vpon the dying of the Tenant . at the death of euery Tennant Ayd mony and Esctiage mony is likewise due vnto the Lords of their Tenants , ride N. 3. fol. 82. and 83. were to pay reliefe , which was not as Knights seruice , as fiue pound a Knights fee . But it was , and so is still , one yeares rent of the Land ; and no wardship or other profit to the Lord . The remainder of the two thousand Acres hee kept to himselfe , which hee vsed to manure by his bondmen , and appointed them at the Courts of his Mannor how they should hold it , making an entrie of it into the Roll of the Remembrances of the Acts of the Court , yet still in the Lords power to take it away : and therefore they were called Tennants at will , by Coppie of Court Roll ; being in truth , Uillenage or Tenure by Coppie of Court Roll. bondmen at the beginning , but hauing obtained freedome of their persons , and gained a custome by vse of occupying their Lands , they now are called Coppie-holders , and are so priuiledged , that the Lord cannot put them out , and all through Custome . Some Coppie-holders are for lifes , one , two , or three successiuely ; and some inheritances from heire to heire by custome , and custome ruleth these estates wholly , both for widdowes estates , fines , harriots , forseitures , and allother things .

Mannors being in this sort made at the ☞ Court Baron with the vse of it . first , that the Lord of the Mannor should hold a Court which is no more then to assemble his Tenants together , at a time by him to be appointed ; in which Court , he was to be informed by oath of his Tenants , of of all such duties , Rents , releases , Wardships , Copie-holds or the like , that had hapned vnto him ; which is called a Court Baron , and herein a Tennant may sue for any debt or Trespasse vnder 40l l value , and the Freeholders are to Iudge of the cause vpon proofe prosecuted vpon both sides . And therefore the Free holders of these Mannors , as incident to their Tenures do Suit to the Court of the Lord incident to the Tenure of the Free-holders . hold by suit of Court which is to come to the Court , and there to Iudge betweene partie and partie in those pettie actions . And also to enforme the Lords of the duties of rents and seruices vnpaid to him from his Tennants . By this course it is discerned who be the Lords of lands , such as if the Tennants dye without heire , or bee attainted of felonie or Treason , shall haue the Land by Escheat .

Now concerning what attainders shall giue the Escheat to the Land is to bee ☞ What attainders shall giue the Escheat to the Lord . Attainders , 1. By iudgement . 2. By verdict confession . 3. By outlary giue the Lands to the Lord . noted , that it must eyther bee by Iudgement of Death giuen in some Court of Record against the Felon found guiltie by Verdict , or confession of the Felonie , or it must bee by Out-lawrie of him .

The Out-Inwrie groweth in this sort , ☞ Of an Attainder by Out . lawrie . a man is Indicted for Felonie , being not in hold , so as hee cannot bee brought in person to appeare and to bee tryed , insomuch that Processe of Capias is therefore awarded to the Sheriffe , who not finding him returneth Non est inventus in Balliva mea ; and therefore , another Capias is awarded to the Sheriffe , who likewise not finding him maketh the same returne , then a Writ called an Exigent is directed to the Sheriffe , commaunding him to Proclaime him in his Countie Court fiue seuerall Court dayes to yeeld his body , which if the Sheriffe doe , and the partie yeeld not his body , hee is sayd by the Default to bee Outlawed , the Coroners there adjudging him Out-lawed , and the Sheriffe making the returne of the Proclamations and of the judgement of the Coroners , vpon the backside of the writ . This is an attainder of Felonie , whereupon the Offender doth forfeit his Lands by an Escheat to the Lord of whom they are holden .

But note that a man found guilty of ☞ Prayer of Clergie . Felonie by verdict or confession , and praying his Cleargie , preuenteth the judgement of Death , and is called a Clerke conuict , who looseth not his Lands , but all his Goods , Chattels , Leases and Debts .

So a man that will not answer nor put ☞ He that standeth mute forfeiteth no Lands , except for Treason . himselfe vpon tryall , although hee be by this to haue Iudgement of Pressing to Death , yet hee doth forfeit no Lands , but Goods , Chattels , Leases and Debts , except his offence bee Treason , and then hee forfeiteth his Lands to the Crowne .

So a man that killeth him-selfe shall not ☞ Hee that killeth himselfe forfeiteth but his Chattels . loose his Lands , but his Goods , Chattels , Leases and Debts . So of those that kill others in their owne defence , or by misfortune .

A man that beeing pursued for Felonie , and flyeth for it , looseth his ☞ Flying for Felony , a forfeiture of Goods . Goods for his flying , although hee returne and is tryed , and found not guiltie of the Fact .

So a man Indicted for Felonie , if hee ☞ He that yeeldeth his body vpon the Exigent for Felonie forseiteth his goods . yeeld not his body to the Sheriffe vntill after the Exigent of Proclamation is awarded vnto him , this man doth forfeit all his goods , for his long stay , although hee be found not guiltie of the Felonie , but is not attainted to loose his lands , but onely such as haue Iudgements of Death by tryall vpon verdict of their owne confession , or that they be by Iudgement of the Coroners out-lawed as before .

Besides the Escheats of lands to the ☞ Lands entailed , Escheat to the King for Treason . Lords of whom they be holden for lack of heires , and by attainder for Felony ( which onely doe hold place in Fee-simple lands ) there are also forfeiture of Lands to the Crowne by attainder of Treason ; as namely , if one that hath entailed Lands commit Treason , hee forfeiteth the profits of the lands for his life to the Crowne , but not to the Lord .

And if a man hauing an estate for life of ☞ Tenant for life committeth Treason or Felonie , there shall be no Escheat to the Lord . himselfe or of another , commit Treason or Felonie , the whole estate is forfeited , but no Escheat to the Lord .

But a Coppie-hold , for Fee simple or for life , is forfeited to the Lord and not to the Crowne ; and if it bee entailed , the Lord is to haue it during the life of the offender , and than his heire is to haue it .

The Customes of Kent is , that Gauil-kind land is not forfeitable nor Escheatable for Felonie , for they haue an old saying ; The Father to the Bough , and the Sonne to the plough .

If the Husband was attained , the Wife ☞ The wife looseth no power not-Withstanding the hus band be attainted of Felonie . was to loose her thirds in cases of Felonie and Treason , but yet she is not offender , but at this day it is holden by Statute Law that shee looseth them not , for the Husbands Felony . The relation of these forfeits are these .

1. That men attainted of Felonie or Treason by verdict or ☞ Attainder in Felorie or Treason by verdict , confession , or outlary , forfeiteth all they had from the time of the offence committed . Confession , doe forfeit Of the Relation of Attainders , as to the Forfeiture of Lands and goods , with the diuersity . all the Lands they had at the time of their offence committed , and the King or the Lord whosoeuer of them had the Escheat or forfeiture , shall come in and auoid all Leafes , Acts , Statutes , Conueyances done by the offender , any time since the offence done . And so is the Law cleare also if a man be attainted for Treason by outlawry , but vpon attainder of felonie by outlawry , since it hath beene much doubted by the Law-bookes , whether the Lords title by escheat shall relate backe to the time of the offence done , or onely to the date or lefte of the writ of Exigent for Proclamation , therevpon he is outlawed ; howbeit at this day it is ruled that it shall reach backe to the time of his fact , but for goods , and chattels , and debts , the Kings title shall looke And so it is vpon an attainder of outlawrie , otherwise it is in the attainder by verdict , confession , and outlawrie as to their relation for the forfeiture of goods and Chattels . no further backe then those goods , the partie attainted by verdict or confession , had at the time of the verdict and confession giuen or made . And in outlawries at the time of the Exigent as well in Treasons as Felonies , wherein it is to bee obsaerued that vpon the parties first apprehension , the Kings Officers are to seize all the goods and Chattels and preserue them together , dispending onely so much out The Kings Officers vpon the apprehension of a Felon are to sesze his goods and Chattels . of them as it is fit for the sustentation of the person in prison , without any wasting , or disposing them vntill Conuiction , and then the propertie of them is in the Crowne , and not before .

It is also to bee noted , that persons attainted of Felonie or Treason , haue no capacitie ☞ A person attainted may purchase but it shall be to the Kings vse . in them , to take , obtaine or purchase , saue onely to thevse of the King , vntill the partie be pardoned . Yet the partie giueth not backe their Lands or Goods ☞ There can be no restitution in Bloud . Without Act of Parliament but a pardon enableth a man to purchase and the heire begotten after shall inherit those Lands . without a speciall Pattent of Restitution , which cannot restore the bloud without an Act of Parliament . So if a man haue a Sonne , and then is attainted of Felonie or Treason , and pardoned , and purchaseth Lands , and then hath issue an other sonne and dyeth ; the Sonne hee had before he had his pardon , although hee be his eldest Sonne , and the Pattent haue the words of restitution to his Lands shall not inherit , but his second Sonne shall inherit them . And not the first ; Because , the bloud is corrupted by the Attainder , and cannot be restored by Pattent alone , but by Act of Parliament . And if a Man haue two Sons and the eldest is attainted in the life of his Father , and dyeth without issue , the Father liuing , the second sonne shall inherit the Fathers Lands , but if the eldest Sonne , haue any issue , Though he die in the life of his Father , then neither the second Son , nor the issue of the eldest , shall inherit the Fathers Lands , but the Father shall there be accompted to dye without Heire , and the Land shall Escheat whether the eldest Sonne haue issue or not , afterward or before , though he be pardoned after the death of his Father .

Propertie of Lands by Conueyance is , first distributed into estates , for Yeares , for Life , in Tayle , and Fee-simple .

FOr Estates for Yeares , which are commonly ☞ Propertie of Land by conueyance diuided into 1. Estates in Fees . 2. In Tayle . 3 For Life . 4. For Yeeres . called Leases for Yeares , they are thus made ; where the owner of the Land agreeth with the other by word of mouth , Lease Paroll . that the other shall haue , hold , and enioy the Land , to take the profits thereof for a time certaine of Yeares , Moneths , Weekes and dayes , agreed between them ; and this is called a lease Paroll ; such a lease may be made by writing Pole or Indented of deuise Lease by writing . Pole or indented . grant and to farme let , and so also by fine of Record , but whether any Rent be reserued or no , it is not materiall , vnto these A rent need not to be reserued . leases there may bee annexed such exceptions , conditions and Couenants , as the Lease for yeares they goe to the Executors and not to the Heires : parties can agree of ; They are called chattels Reall , and are not inheritable by the heires , but goe to the Executors and Administrators , and be sole able for debts in the life of the owner , or in the Executors or Administrators by Writs of Execution vpon Statutes , Recognizances , Iudgements of Debts or Damages . They be also forfeitable to the Crowne by Outlawry , Leases are to bee forfeited by attainder . 1. In Treason . 2. Felonie . 3. Premunire . 4. By killing himselfe . 5. For flying . 6. Standing out or mute , or refusing to bee tryed by the Country . 7. By Conuiction . 8. Pettie larcerie . 9. Going beyond the Sea without License . by Attainder for Treason , Felonie , or Premunier , By what means they are forfeitable . Killing himselfe , Flying for Felonie although not guilty of the fact , standing out and refusing to bee tryed by the Country , by Couiction of Felonie , without Iudgement , Pettie larcerie , or going beyond the Sea without licence .

They are forfeitable to the Crowne , in ☞ Extents vpon Stat. Staple , Marchant , Elegit , Wardship of Bodie and Lands are Chattels and forfeitable in the same manner as leases for yeares are . like manner as Leases for Yeares , or interest gotten in other mens Lands by extending for debt vpon Iudgement in any Court of Record , Stat. Marchant , Stat. Staple Recognizances , which beeing vpon Statutes are called Tenants by Stat. Marchant , or Staple . The other Tenants by Elegit , and by Wardship of Bodie and Lands , for all these are called Chattels Reall , and goe to the Executors and Administrators , and not to the heires , and are soleable and forfeitable as Leases for yeares are .

Lease for liues are also ☞ Lease for life is not forfeitable by out lawry except in cases of Eclonie or Premunire and then to the King and not to the Lord by Eseheat and it is not forfeited by any of the meanes before mentioned of of leases for yeares . called Freeholds , they What Liuerie of Seisien is , and how it is requistie to euery Estate for life . may also bee made by Word or writing , there must bee Liuerie and Seisen giuea at the making of the Lease , whom we call , the Lessor ; commeth to the doore , backside , or Garden ; if it be a house , if not , then to some part of the Land , and there he expresseth , that hee doth graunt vnto the taker ; called , the Lessee , for tearme of his life : and in Seisen thereof , hee deliuereth to him a Turfe , twig , or Ring of the doore , and if the Lease Indorsement of Liuerie vpon the Backe of the deed and witnesses of it . bee by writing , then commonly there is a note written on the backside of the Lease , with the names of those witnesses , who were present at the time of the Liuerie of Seisen made ; This estate , is not saleable Lease for life not to bee sould by the Sheriffe for debt but extended yearely . by the Sheriffe for Debt , but the Land is to bee extended for a yearely value , to satisfie the Debt . It is not forfeitable by Outlawrie , except in cases of Felonie , nor by any of the meanes before mentioned , of Leases for yeares ; sauing an in Attainder for Felonie , Treason , Premunire , and then onely to the Crowne , and not to the Lords by Escheat .

And though a Noble man or other , ☞ A man that hath bona Felon , by Charter shall not haue the tearme if leaser for life be attainted . haue libertie by Charter , to haue all Felons Goods ; yet a Tennant holding for tearme of life , being attainted of Felonie , doth forfeit vnto the King and not to this Noble man .

If a man haue an Estate in Lands , for ☞ Occupant . an other mans life , and dyeth ; this Land cannot goe to his Heire , nor to his Executors , but to the partie that first entreth ; and he is called , an Occupant .

A Lease for yeares or for life , may be ☞ Of estate tailes and how such an estate may be limited . made also by fine of Record , or bargaine and sale , or Couenant to stand seized vpon good considerations of Marriage , or Bloud , the reasons whereof , are hereafter expressed .

Entayles of Lands , are created by guift ; with Liuerie and Seizen to a man , and to the heires of his bodie , this word ( Body ) making the entaile , may be demonstrated and restrained to the Males or Females ; heires of their two bodies , or of the body of eyther of them , or of the body of the Grand-father .

Entayles of Lands began by a Statute ☞ By the Stat. of West . 1. made in E. 1. time estates in tayle were so strengthened they were not forfeitable by any attainder . made in Ed. 1. time , by which also they are so much strengthened , as that the Tenant in Tayle cannot put , away the Land from the heire by any Act of conueyance or Attainder , nor Let it , nor incomber it , longer then his owne Life .

But the inconueniencie thereof was ☞ The great inconuenience that ensued thereof . great , for by that meanes , the Land being so sure tyed vpon the heire as that his Father could not put it from him , it made the Sonne to bee disobedient , negligent , and wastfull ; often marrying withoutthe Fathers consent , and to grow insolent in vice ; knowing , that there could bee no cheeke of dis-inheriting him . It also made the owners of the Land lesse fearefull to commit Murthers , Felonies , Treasons , and Manslaughters ; for that they knew , none of these acts could hurt the Heire of of his inheritance . It hindred men that had intayled Lands , that they could not make the best of their Lands by fine and improuement , for that none vpon so vncertaine an estate , as for terme of his owne life would giue him a fine of any valew , nor lay any great stocke vpon the Land , that might yield rent improued .

Lastly , those Entailes did defraud the ☞ The prejudice the Crowne received thereby . Crowne , and many Subjects of their Debts ; for that the Land was not lyable longer then his owne life-time ; which caused , that the King could not safely commit any office of accompt to such , whose Land were entailed , nor other men trust them with loane of money .

These inconveniences , were remedied by Acts of Parliment ; as namely , by Acts of Parliament later then the Acts of Entailes , The Stat. 4. H. 7. and 32. H. 8 to bar estates taile by fine . made , 4. H. 7. 32. H. 8. A Tenant in taile may dis-inherit his Sonne by a fine with Proclamation , and may by that meanes also , make it subiect to his Debts and Sales .

By a Satute made , 29. H. 8. A Tenant in 26. H. 8. taile , doth forfeite his lands for Treason ; and by an other Act of Parliament , 32. 32. H. 8. H. 8. He may make leases good against his heire for 21. years , or three liues ; so that it be not of his cheife Houses , Lands , or demeasne , or any lease in Reuersion , nor lesse rent reserued ; then , the Tenants haue payed most part of 21. yeares before , nor haue any manner of Discharge for doing wasts and spoiles , by a Statute made 33 H 8. Tenants of Entayled lands , are lyable 33 H 8. to the Kings debts by Extent , & by a Stat. made 13. & 39. Eliz. they are saleable 13. & 39. Eliz for the arrerages vpon his accompt for his Office ; So that now it resteth , that Entayled Lands haue two priuiledges onely , Ent eyles two priuiledges . 1 Not forfeitable for Felonie . 2. ly Not extendable for the Debts of the partie after his death Proviso , not to put away the Land from his next heyre . If he do to forfeit his owne Estate , and that his next heyre must enter . which bee these . First , not to be forfeited for Felonies . Secondly not to bee extended for Debts after the parties death , except the Entayles bee cut off by Fine and Recouerie .

But it is bee noted , since these notable ☞ Of the new devise called a Perpetuitie , which is an Entayle with an addition . Statutes and remedies prouided by Statutes doe dock Entayles , there is start vp a deuice called Perpetuitie , which is an Entayle with an addition of a Proviso Conditionall tyed to his Estate , not to put away the Land from his next heyre ; and if hee doe , to forfeit his owne estate . Which Perpetuities if they should stand , would bring in all the former inconueniences subiect to Entayles , that were cut off by the former mentioned Statutes and farre greater ; for by the Perpetuitie , if he that is in possession start away neuer so little , as in making a Lease , or selling a little quillet , forgetting after two or three Descents , as often they doe , how they are tyed , the next Heyre must enter ; who These Perpetuities would bring in all the former inconueniencies of Estates tailes peradventure is his Sonne , his Brother , his Vncle or kinsman , and this raiseth vnkind Suites setting all that kindred at jatres , some taking one part some another , and the principall parties wasting theyr time and money in suites of Law . In the end , they are both constrained in The inconueniencies of those Perpetuities . necessitie to joyne both in a Sale of the Land , or a great part of it to pay theyr Debts , occasioned through theyr Suites ; And if the chiefest of the Family for any good purpose of well seating himselfe , by selling that which lyeth farre off to buy that which is neerer , or for the advancement of his Daughters or younger Sonnes , should haue reasonable cause to sell the Perpetuitie if it should hold good , restraineth him . And more then that , where many are owners of inheritance of Land nor Entayled , may during the minoritie of his Eldest sonne appoint the profics , to goe to the aduancement of the younger Sonnes and pay Debts by Entayle and Perpetuities , the owners of these Lands cannot doe it , but they must suffer the whole to discend to his eldest Sonne , and so to come to the Crowne by Wardship all the time of his Infancie .

Wherefore seeing the dangerous times ☞ Quere whether it bee better to restraine men by those Perpetuities from alienations or to hazard the vndoing of houses by vnthrifty Posteritie . and vntowardly Heyres , they might preuent those mischiefes of vndoing theyr Houses by conueying the Land from such heyres , if they were not tyed to the stake by those Perpetuities , & restrayned from Forfeiting to the Crowne , and disposing of it to theyr owne or to theyr Childrens good . Therefore , it is worthy of consideration , whether it bee better for the Subject and Soveraigne to haue the lands secured to mens Names and Bloods by perpetuities , with all inconueniences aboue-mentioned , or to bee in hazard of vndoing his House by vnthriftie posteritie .

The last and greatest Estate of Lands in ☞ The last and greatest Estate in Land is Fee-simple . Fee-simple , and beyond this there is none of the former for Liues , Yeares or Entayles ; but beyond them , is Fee simple . For it is the greatest , last and vttermost degree of Estates in Land ; therefore hee that maketh a Lease for life , or a guift in tayle , may appoint a remainder when hee maketh another for life or in tayle , or to a third in Fee-simple ; but after a Fee-simple hee cannot limit no other Estate . A remainder cannot bee limitted vpon an estate in Fee-simple . And if a man doe not dispose of the Fee-simple by way of remainder , when hee maketh the guift in tayle , or for liues , then the Fee-simple resteth in himselfe as a Reuertion . The difference betweene a The difference betweene a Remainder and a Revertion . Reuertion and a Remainder , is this . The Remainder is alwayes a succeeding an Estate , appointed vpon the guifts of a precedent Estate , at the time when the Precedent is appointed . But the Reuertion A Revertion cannot bee granted by word . is an estate last in the giuer , after a particular estate made by him for Yeares , Life , or Entaile ; where the remainder is made with the particular estates , then it must be done by Deeds in writing , with Liuerie and Seisen , and cannot by words ; And if the giuer will dispose of the Reuertion Atturnement must be had to the grant of the Revertion . after it remaineth in himselfe , hee is to doe it by writing , and not by Poll ; and the Tenant is to haue a notice of it , and to atturne it , which is to giue his assent by word , or paying rent , or the like ; and except the Tenant will thus atturne the partie to whom the Reuertion is granted cannot haue the Revertion , neither The Tenant not compellable to atturn but where the Revertion is granted by fine . can he compell him by any Law to atturne , except the grant of the Reuertion be by fine ; and then , hee may by writ provided for that purpose : and if hee doe not purchase by that writ , yet by the fine , the Revertion shall passe ; and the Tenant shall pay no rent , except he will himselfe , nor bee punished for any wastes in houses , vnlesse it bee graunted by bargaine and Sale by Indenture in Rolles ; These Fee simple estates lye open to all perils , Forfeitures , Extents , Incumbrances and sales .

Lands are conueyed by these ☞ Lands may be conueyed six manner of wayes . 1 By Feofment . 2 By Fine . 3 By Recouerie . 4 By Vse . 5 By Couenant . 6 By Will . 6. meanes ; First , by Feofment , What a Feofment of land is . which is , where by Deed Lands are giuen to one and his heyres , and Liuerie and Seizein made accordingly to the forme and effect of the Deed , if a lesser estate then Fee-simple bee giuen and liuerie of seizein made it is not called a Feofment , except the Fee-simple bee conueyed .

A Fine is a reall agreement , beginning thus , Haec est finalis Corcordia &c. This is ☞ What a Fine is , and how Lands may bee conueyed hereby . done before the Kings Iudges in the Court of Common Pleas , concerning Lands that a man should haue from another to him and his Heyres , or to him for his Life , or to him and the heyres males of his body , or for yeares certaine , whereupon rent may bee reserued but no Condition or Couenants . This Fine is a Record of great credit , and vpon this Fine arc foure Proclamations made openly in the Common Pleas ; That is , in euery Terme one for foure Termes together , and if any man hauing right to the same , make not his claime within fiue yeares after the Proclamations ended , hee looseth his right for Fiue yeares non Clayme barreth not . euer ; except he an Insant , a Woman covett , 1 An Infant . a Mad man , or beyond the Seas , and 2 Feme Covert . then his right is saued ; so that hee claime 3 Mad. man . within fiue yeares after the death of her 4 Beyond Sea . husband full Age , recouerie of his wits , or returne from beyond the Seas . This Fine is called a Feofment of Record , because that Fine is a Feofment of Record . it includeth all that the Feofment doth , & worketh further of his owne nature , and barreth Intailes peremptorily whether the heyre doth clayme within fiue yeares or not , if hee clayme by him that leauied the Fine .

Recoueries are where for assurances of Lands the parties doe agree , that one shall ☞ What Recoueries are . begin an Action reall against the other , as though hee had good right to the Land , and the other shall not enter into Defence against it , but alleadge that he bought the Land of he who had warranted vnto him , and pray that I. H. may be called in to defend the Title , which I. H. is one of the Cryers of the Common Pieas , and is called the Common Voucher . This I. H. shall Common Voucher one of the Criers of the Court. appeare and make as if he would defend it , but shall pray a day to bee assigned him in his matter of Defence ; which being granted him at the Day hee maketh Default , and thereupon the Court is to giue judgement against him which cannot bee for him to loose his Lands , because hee hath it not ; but the partie that hee hath sold it to , hath that who vouched him to warrant it .

Therefore the Demaundant who hath ☞ Iudgement for the Demaundant against the Tenant in taile . no defence made against it , must haue Iudgement to haue the Land against him that hee sued ( who is called the Tenant ) and the Tenant is to haue Iudgement against l. H. to recouer in value so much Iudgement for the Tenant to recouer so much land in value of the Common voncher . Land of his , where in truth hee hath none , nor neuer will . And by this Deuice grounded vpon the strict Principles of Law , the first Tenant looseth the Land , and hath nothing for it ; but it is his owne agreement for assurance to him that bought it .

This Recouerie barreth Entayles , and ☞ A recouery barreth an Escheat taile and all reuersions and remaindments thereupon . all Remainders and reuersions that should take place after the Entayles , sauing where the King is giuer of the Fntayle and keepeth the Reuersion to himselfe ; then neyther the Heyre , nor the Remainder , nor Reuersion , is barred by the recouerie .

The reason why the Heires , Remainders , ☞ The reason why a Common Recovery barreth those in Remainder and Reversions . and Reuersions are thus barred , is because in strict Law the recompence adjudged against the Cryer that was Vouchee , is to goe in succession of Estate as the Land should haue done , and then it was not reason to allow the Heire the libertie to keepe the Land it selfe , and also to haue recompence ; and therefore hee looseth the Land , and is to trust to the Recompence .

This fleight was first invented , when ☞ The manie inconveniencies of estates in tayle brought in these Recoveries , which are made now common conveyances and assurances for Land . Entayles fell out to bee so inconvenient as is before declared , so that men made no Conscience to cut them off , so they could finde Law for it . And now by vse , those Recoveries are become common assurances against Entayles , Remainders , and Reversions , and the greatest security Purchasers haue for their monyes ; for a Fine will barre the Heire in tayle , but not the Remainder , nor Reversion , but a common Recovery will barre them all .

Vpon Feofments and Recoveries , the Vpon Fines , Feofments , and Recoveries , the estate doth settle according to the intent of the parties . estate doth settle as the vse and intent of the parties is declared by word or writing , before the Acts was done ; As for example . If they make a writing , that one of them shall leavie a Fine , make a Feosment , or suffer a common Recoverie to the other ; but the vse and intent is , that one should haue it for his life , and after his decease , a stranger to haue it in Tayle , and then a third in Fee-simple . In this case the Lord setteth an estate according to the vse and intent declared ; And that by reason of the Statute made 27. HENRY 8. Concerning the Land in possession to him that hath interest in the vse or intent of the Fine , Feosment , or Recoverie ; according to the vse and intent of the parties .

Vpon this Statute is likewise grounded ☞ Bargaines Sales and Covenant to stand seized to a vse , are all grounded vpon one Statute . the fourth and fifth of the six Conveyances , viz. Bargaines , Sales , Covenants , to stand seized to vses ; For this Statute , wheresoever it findeth an vse , conjoyneth the possession to it , and turneth it into like quality of Estate , Condition , Rent and the like , as the vse hath .

The vse is but the equity and Honestie ☞ What a vse is . to hold the Land in Canscientia boni viri . As for example . I and you agree that I shall giue you money for your Land , and you shall make no assurance of it . I pay you the money , but you made mee no assurance of it . Yet the equitie and Honestie to haue it is with mee ; and this equity is called the Vse , vpon which I had no remedie but in Chancerie , vntill this Statute made 27. HENRY 8. and now Before 27. H. 8. there was no remedie for a vse , but in Chancerie . this Statute conjoyneth and containeth the Land to him that hath the vse . I for my money paid to you , haue the Land it selfe , without any other Conveyance from you ; and is called a Bargaine and Sale .

But the Parliament that made the Statute did foresee , that it would bee mischievous that mens Lands should sodainly The Stat. of 27. H. 8. doth not passe Land vpon the payment of mony without a deed indented and Enrolled . vpon the paiment of a little money bee taken from them , peradventure in an Alehouse or a Taverne vpon straineable advantages , did therefore grauely provide an other Act in the same Parliament , that the Land vpon payment of this money should not passe away , except there were a Writing Indented , made betweene the said two Parties , and the said Writing also within six Moneths , Inrolled in some of the Courts at The Stat. of 27. of H. 8. extendeth not into Cities and Corporate Townes where they did vse to Enroll Deeds . Westminster , or in the Sessions Rolles in the Shire , where the Land lyeth ; vnlesse it bee in Cities or Corporate Townes , where they did vse to Enroll Deeds , and there the Statute extendeth not .

The fifth Conveyance of a Fine ; is a ☞ A conueyance to stand seized to a vse . Conveyance to stand seized to vses , it is in this sort ; A man that hath a Wife and Children , Brethren and Kinsfolkes , may by writing vnder his Hand , and Seale ; agree , that for him , they or any of their Heires , hee will stand seized of his Lands to their vses , eyther for Life in Tayle or Fee , so as hee shall see cause ; vpon which agreement in Writing , their ariseth an Vpon an agreement in writing to stand seized to the vse of any of his kindred . A vse may be created and the estate of the land therevpon exccuted , by 27. H. 8. Equitie or Honestie , that the Land should goe according to those agreements ; Nature and Reason , allowing these provisions , which Equitie and Honestie is the vse . And the vse beeing created in this sort , the Statute of 27 , HENRY the Eight , before mentioned ; conteyneth the Estate of the Land , as the vse is appointed .

And so this Convenant to stand seized ☞ A Convenant to stand seized to a vse needeth no Enrolment as a Bargaine and Sale to ●se vse doth , so it bee to the vse of Wife , Child , or Cozen , or one hee meaneth to marry . to vses , is at this day since the said Statute , a Conveyance of Land , and with this difference , from a Bargaine and sale ; in that this needeth no Enrollment as a Bargaine and Sale doth , nor needeth it to bee in writing Indented , as Bargaine and Sale must , and if the partie to whose vse hee agreeth to stand seized of the Land , bee not Wife , or Child , Couzen , or one that hee meaneth to marry ; then will no vse rise , and so no Conveyance ; for although , the Law alloweth such weightie Considerations of Mariage and bloud to raise vses , yet doth it not admit so trifling Considerations , as of Acquittance , Schooling , Services , or the like .

But where a man maketh an estate of ☞ Vpon a Fine , Feofment or Recoverie , a man may limit the vse to whom hee listeth , without Consideration of bloud , or money . Otherwise , In a Bargaine and Sale or Covenant . his Land to others , by Fine , Feofment or Recoverie , hee may then appoint the vse to whom hee listeth , without respect of Marriage , Kindred , Money or other things ; for in that case , his owne Will and Consideration , guideth the equity of the Estate . It is not so when hee maketh no estate , But agreeth to stand seized , nor when hee hath taken anything , as in the cases of Bargaine and Sale , and Covenant to stand to vses .

The last of the six Conueyances , is a ☞ Of the continuance of Land by will . Will in writing ; which course of Conveyance , was first ordained by a Statute made 32. HENRY S. Before which Statute , no man might giue Land by will ; except it were in a Borrough-Towne , where there was an especiall custome , that Men might giue their Lands by will ; as in London , and many other places .

The not-giving of Land by Will , ☞ The not disposing of Lands by will , was thought to bee a defect at the Common Law . was thought to bee a defect at Common Law , that men vnawares or sudainely falling sicke , had not power to dispose of their Lands , except they could make a Feosment , or leavie a Fine , or suffer a Recoverie ; which lacke of time would not permit , and for men to doe it by these meanes , when they could not vndoe it againe , was hard ; besides , even to the last houre of death , mens minds might alter vpon further proofes of their Children or Kindred , or encrease of Children or debt , or defect of Servants , or friends to be altered .

For which cause , it was reason that ☞ The Court that was invented before the Stat. of 32. H. 8. which first gaue power to devise Lands by Will , which was a Conveyance of Lands to Feoffors in trust , to such persons as they should declare in their Will . the Law should permit him to Reserue to the last instant , the disposing of his Lands , and to giue him meanes to dispose it , which seeing it did not fidy serue , men vsed this devise .

The conveyed their full estates of their Lands in their good health , to friends in trust ; properly called Feoffees in trust , and then they would by their wils declare how their Friends should dispose of their Lands and if those Friends would not performe it , the Court of Chancery was to compell them , by reason of the trust ; and this trust was called , the vse of the Land ; so as the Feoffees had the Land , and the partie himselfe had the vse , which vse was in equity , to take the profits for himselfe , and that the Feoffees should make such an estate as hee should appoint them ; and if hee appointed none , then that the vse should goe to the heire , as the estate it selfe of the Land should haue done , for the vse was to the Estate , like a shadow following the bodie .

By this course of putting Lands into ☞ The inconveniencies of putting Lands into vse . vse , there were many Inconveniencies ; as this vse which grew first for a reasonable cause , viz. To giue men power and libertie to dispose of their owns , was turned to deceiue many of their just and reasonable rights ; As namely , a man that had cause to sue for his Land , knew not against whom to bring his action , nor who was owner of it . The wife was defrauded of her thirds . The Husband of beeing Tenant by curtesie . The Lord of his Wardship , Reliefe , Heriot , and Escheat . The Creditor of his Extent for Debt . The poore Tenant of his Lease ; for these rights and duties were giuen by the Law from him that was owner of the Land , and none other . Which was now the Feoffee of trust , and so the old owner which wee call the Feoffor should take the profits , and leaue the power to dispose of the Land at his diseretion to the Feoffee , and yet hee was not such a Tenant to bee seized of the Land as his Wife could haue Dower , or the Lands bee extended for his Debts , or that hee could forfeit it for Felonie or Treason , or that his Heire could bee in warres for it , or any duty of Tenure fall to the Lord by his Death , or that hee could make any Leases of it .

Which frauds by degrees of time as ☞ The frauds of conueyances to vse by degrees of time , as they encreased , were remedied by the Statutes . they encreased , were remedied by diuers Statutes ; as namely , by a Statute of 1. HENRY , 6. and 4. HENRY , 8. It was appointed 1. H. 8. Stat binding Cesty and vse . 4. N 8. 1. R. 3. 4. H. 7. 16. H. 8.
that the Action may bee tryed against him which taketh the profits , which was then Cesty and vse by a Stature made , 1. RICHARD , 3. Leases and Estates made by Cesty and Vse are made good , and Estatutes by him acknowledged 4. HENRY , 7. the Heire of Cesty and vse is to bee in Ward , 16. HENRY , 8. The Lord is to haue Reliefe vpon the death of any Cesty and vse .

Which frauds neverthelesse multiplying dayly , in the end 27. HENRY 8. ☞ 27 H 8. taking away all u'es redu●●● the Law to the ancient form of Conveyances of Land , by Feofment , Fine , and Recoverie . the Parliament purposing to take away all those Vses , and reducing the Law to the the ancient forme of Conveying of Lands by publike Liverie of Seizen , Fine , and Recoverie ; did ordaine , that where Lands were put in trust or vse , there the possession and estate , should bee presently carryed out of the Friends in trust , and setled and invested on him that had the Vses , for such tearme and Time as hee had the Vse .

By this Statute of 27. HENRY , 8. the ☞ In what manner the Stat. of 32. H. 8. giueth power to dispose of Lands by will . power of disposing Lands by Will , is clearely taken away amongst those frauds , and so the Statute did Disponore justum cum Imperio ; Whereupon 32. HENRY , 8. an other Statute was made , to giue men power to giue Lands by Will in this sort . First , it must bee by Will in writing . Secondly , hee must bee seized of an Estate in Fee-simple ( For Tenant for an other mans Life ) or Terme in Tayle , cannot giue Land by Will , by that Statute 3. hee must bee solely seized , and not joyntly with an other ; and then beeing thus seized for all the Land hee holdeth in Soccage Tenure , hee may giue it by the Will except he hold any peece of Land in Capite by Knight Service of the King , and laying all his lackes together , he can giue but two parts by If a Man bee seized of Capite Lands and Soccage , he cannot devise but two parts of the whole . Will ; for the third part of the whole , as well in Soccage , as in Capite must descend to the Heire , to answere Wardship , Liverie and Seizen , to the Crowne .

And so if hee hold Lands by Knights ☞ The third part must descend to the Heire to answere Guardship , Livery and Seizen to the Crowne . Service of a Subject , hee can devise of the Lands but two parts , and the third , the Lord by Wardship , and the Heire by descent is to hold .

And if a man that hath three Acres of ☞ A Conueyance by deuise of Capite Lands to the Wife for her Ioynture , or to his Children for ther good , or to pay Debts is void for a third part , by 32. H. 8. Land holden in Capite by Knights Service , doe make a joynture to his Wife of one , and convey an other to any of his Children , or to Friends , to take the profits , and to pay his Debts or Legacies , or Daughters Portions , then the third Acre or any part thereof hee cannot giue by Will , but must suffer it to descend to the Heire , and that must satisfie Wardship .

Yet a Man having three Acres as before , ☞ But a Conveyance by Act executed in the life time of the partie of such Lands to such vses is not void , but 〈◊〉 pa● : but if the heire 〈◊〉 〈◊〉 age , he shal ● one of the Acres to be in Wara . may convey all to his wife or Children by Conveyance in his Life time , as by Feolment , Recoverie , Bargaine and Sale , or Covenant to stand to vies , and to dis-inherit the Heire . But if the Heire bee within age , when his Father dyeth , the King or other Lord shall haue that Heire in Ward , and shall haue one of the three Acres during the Wardship , to sue Liverie and Seizen . But at full age the Heire shall haue no part Aflictis . Aflictis ne . Addere . of it , but it shall goe according to the Conveyance made by the Father .

It hath beene debated how the thirds ☞ Entayled Lands part of the thirds . shall bee set foorth , For it is the vse that all Lands which the Father leaveth to descend to the Heire beeing Fee simple , or The King nor Lord cannot intermeddle if a full third part be left to descend to the Heire . in tayle , must bee part of the thirds ; and if it bee a full third , then the King , nor Heire , nor Lord , can intermeddle with the rest ; If it bee not a full third , yet they must take it so much as it is , and haue a supply out of the rest .

This supply is to bee taken thus , if it ☞ The manner of making supply when the part of the heire is not a full third . bee the Kings Ward , then by a Commission out of the Court of Wards , whereupon a Iury by oath , must set downe so much as shall make vp the thirds , except the Officers of the Court of Wards , can otherwise agree with the parties . If there bee no Wardship due to the King , then the other Lord is to haue a supply by a Commission out of the Chancetie , and a Iury thereupon .

But in all those cases , the Statutes doe ☞ The Stat. giueth power to the Testator to set out the third himselfe , and if it bee not a third part , yet the King or Lord must take that in part , and haue a supply out of the Rent giue power to him that maketh the Will to set foorth and appoint of himselfe , which Lands shall goe for the thirds , and neither King nor Lord can refuse it . And if it bee not enough , yet they must take that in part , and onely haue a supply in manner as before is mentioned out of the rest .

Propertie in Goods . Of the severall wayes whereby a man may get Propertie in Goods or Chattels . 1. By Guift . 2. By Sale . 3. By Stealing . 4. By Waiuing . 5. By Straying . 6. By Shipwracke . 7. By Forferture . 8. By Executorship . 9. By Administration . 10. By Legacie .
1. Propertie by guift

BY guift , Propertie is when the property ☞ A deed of guift of goods to deceiue his Creditors is void against them , but good against the Executors Admin . or Vender of the partie himselfe . of Goods may be passed by word or writing , but if there bee a generall Deed of Guift made of all his Goods , this is suspirious to bee done vpon fraud , to deceiue the Creditors .

And if that a man who is in Debt , make a Deed of guift of all his Goods to protract the taking of them in Execution for his debt , this Deed of Guift is void , as against those to whom hee stood indebted , but as against himselfe his owne Executors or Administrators , or any man to whom afterwards hee shall sell or Convey them , it is good .

2. By Sale .

PRopertie in Goods by Sale . By Sale ☞ What is a Sale bona fide and what not , when there is a priuate reseruation of trust betweene the parties . any man may convey his owne Goods to another , and although hee may feare Execution for Debts , hee may sell them out-right for money at any time before the Execution served , so that there be no reservation of trust betweene them , yet providing the money , hee shall haue the goods againe ; for that trust in such case , doth proue plainely a fraud to prevent the Creditors from taking the goods in Execution .

3. By Theft or taking in Iest.

PRopertie of Goods by Theft or taking ☞ How a Sale in Market shall bee a barre to the owner . in Iest. If any Man steale my Goods or Chattels , or take them from mee in Iest , or borrow them of mee , or as a Traitor or Felon carry them to the Market or Faire , and there sell them , this Sale doth barre mee of the propertie of my Goods , saving that if hee bee a horse hee must bee ridden two houres in the Market or Faire , betweene Ten and fiue a clocke , and Tolled for in the Tolle-Booke , and the seller must bring one to avouch his sale knowne to thee Tolle-booke-keeper , or else the sale bindeth mee not . And for any other goods , where the Sale in a Market or faire shall barre the owner beeing not the seller of his Propertie .

It must bee sale in a Market or Faire ☞ Of Markets and what Markets such a Sale ought to be made in . where vsuall things of that Nature are sold. As for example , if a men steale a Horse , and sell him in Smithfield , the true owner is barred by this Sale ; but if he sell the Horse in Cheapeside , Newgate or or Westminster market , the true owner is not barred by this Sale ; because , these Markets are vsuall for flesh , Fish , &c. and not for Horses .

So whereas by Custome of London , every Shop there is a Market all the dayes of the weeke , sauing Sundayes and Holydayes ; Yet , if a peece of Plate , or Iewell that is lost , or Chaine of Gold or Pearle that is stolne or borrowed , be sold in a Drapers or Scriueners Shop , or any others but a Goldsmith , the Sale barreth not the true owner , Et sic in Simili .

Yet by stealing alone of the Goods , the Thiefe getteth not such propertie , ☞ The owner may Seize his goods after they are stolne . but that the owner may Seize them againe wheresoever hee findeth them ; except they were sold in Faire or Market , after they were stolne ; and that bona fide , without fraud .

But if the Thiefe bee condemned of ☞ If the Thiefe be condemned for Felonie , or outlawed , or forfeit the stolne goods to the Crowne , the owner is without remedie . the Felonie , or outlawed for the same , or outlawed in any personall Action , or haue committed a forfeiture of the Goods to the Crowne , then the true owner is without remedie .

Neverthelesse if fresh after the goods were stolne , the true owner maketh persuit ☞ But if hee make fresh persuit hee may take his goods from the Thiefe . after the Thiefe and Goods , and taketh the Goods with the Thiefe , hee may take them againe ; And if hee make no fresh persuit , yet if hee prosecute the Felon , soe farre as Iustice requireth .

This is to haue Arraigned , Indicted , and found guilty ( though hee bee not ☞ Or if hee prosecuted the law against the Thiefe and convict him of the same Felonie he shall haue his goods againe , by a writ of Restitution . hanged , nor haue Iudgement of Death ) in all these cases hee shall haue his goods againe , by a writ of Restitution , to the partie in whose hands they are .

4. By wayuing of Goods .

BY Wayuing of Goods , a propertie is gotten thus . A Thiefe hauing stolne goods beeing persued flyeth away and leaveth the goods , This leauing is called Wauing , and the propertie is in the King ; except the Lords of the Mannor haue right to it , by Custome or Charter .

But if the Felon bee Indicted or adjudged , or found guiltie , or outlawed at the suit of the Owner of these goods , hee shall haue Restitution of these goods , as before .

5. By Straying .

BY Straying , propertie in liue Chattels , is thus gotten . When they come into other mens grounds , then the partie or Lord into whose grounds or Mannors they come , causeth them to bee seized , and a With put about their neckes , and to bee cryed in three Markets adjoyning , shewing the markes of the Chattell ; which done , if the true owner claymed them not within a Yeare and a day , then the propertie of them is in the Lord of the Mannor whereunto they did stray ; If hee haue all strayes by Custome or Charter , else to the King .

6. Wracke , and when it shall be said to bee .

BY Shipwracke , propertie of Goods is gotten . When a Ship loaden is cast away vpon the Coasts , so that no living Creature that was in it when it began to sinke escapeth to Land with life , then all those Goods are said to bee wracked , and they belong to the Crowne if they can bee found ; except the Lord of the Soyle adjoyning , can intitle himselfe vnto them by Custome , or by the Kings Charter .

7. Forfeitures .

BY Forfeitures , Goods and Chattels are thus gotten ; If the Owner bee outlawed , if hee bee indicted of Felonie , or Treason , or eyther confesse it , or bee found guilty of it , or refuse to bee tryed by Peeres or Iury , or bee attainted by Iury , or flye for Felony although hee bee not guilty , or suffer the Exigent to goe foorth against him ; although he bee not outlawed , or goe over the Seas without license , all the goods hee had at the Iudgement , he forfeiteth to the Crowne ; except some Lord by Charter can claime them . For in those cases prescripts will not serue , except it bee so ancient , that it hath had allowance before the Iustices in Eyre in theyr Circuits , or in the Kings Bench in ancient time .

8. By Executorship .

BY Executorship , goods are gotten . When a man is possessed of Gods maketh his Last Will and Testament in writing or by Word , and maketh one or more Executors thereof ; These Executors , haue by the Will and ceath of the parties , all the propertie of their Goods , Chattels , Leases for Yeares , Wardships and Extents , and all right concerning those things .

Those Executors may meddle with ☞ Executors may before probat dispose of the goods , but not bring an action for any debt . the Goods , and dispose them before they proue the Will , but they cannot bring an action for any Debt or duety , before they haue proved the Will .

The prouing of the Will is thus . ☞ What probat . of the Will is , and in what manner it is made . They are to exhibite the Will into the Byshops Court , and there they are to exhibite the Will into the Byshops Court , and there they are to be sworne and the Byshops Officers are to keepe the Will Originall , and certifie the Copie thereof in Parchment vnder the Byshops Seale of Office , which Parchment so sealed , is called the Will proved .

9. By Letters of Administration .

BY Letters of Administration , propertie in goods is thus gotten . When a man possessed of goods dyeth without any Will , there such things as the Executors should haue had if he had made a Will , were by ancient Law to haue come to the Byshop of the Diocesse , to dispose for the good of his Soule that dyed , he first paying his Funerals and Debts , and giving the rest Ad pios vsus . Pij Vsus .

This is now altered by Statute Lawes , so as the Bishops are to graunt Letters of Administration of the goods at this day to the Wife if shee require it , or Children or next of kin ; If they resnse it as often they doe , because the debts are greater then the estate will beate , then some Creditor or some other will take it as the Byshops Officers shall thinke meet . It groweth often in question what Byshop shall haue the right of proving Wills , and 〈◊〉 graunting Administration of goods .

In which Controuersie the rule is thus . ☞ Where the Iutestate had Bona notabilia in diuers Diocesse , then the Archbishop of that Prouince where bee dyed is to commit the Administration . That if the partie dead had at the time of his Death Bona notabilia in diuers Diocesse of some reasonable value , then the Arch-bishop of the Prouince where hee dyed is to haue : the apptobation of his Will , and to graunt the Administration of his goods as the case falleth out ; otherwise , the Bishop of the Diocesse where hee dyed is to doe it .

If there bee but one Executor made , yet ☞ Executor may refuse before the Bishop , if hee haue not intermedled With the goods . hee may refuse the Executorship comming before the Bishop , so that hee hath not entermedled with any of the goods before , or with receiuing Debts , or paying Legacies .

And if there bee more Executors then one , so many as list may refuse ; and if ☞ Executor ought to pay , 1 Iudgements . 2 Stat. Recogn : 3 Debts by bonds and bills sealed . 4 Rent vnpayed . 5 Seruants wages 6 Head workmen 7 Shop-booke and Contracts by word . any one take it vpon him , the rest that did once refuse may when they will take it vpon them , and no Executor shall bee further charged with Debts or Legacies , then the value of the Goods come to his hands ; So that hee fore-see , that hee pay Debts vpon Record , debts to the King ; Then vpon Iudgements ; Statutes , Recognizances , then Debts by Bond and Bill sealed , Rent vnpayed , Seruants wages , payment to head workmen ; and lastly , Shop-bookes , and contracts by Word . For if an Executor , or Administrator pay debts to others before to the King , or Debts due by Bond before those due by Record , or debts by Shop-bookes and Contracts before those by Bond , arrerages of Rent , and Seruants wages , hee shall pay the same ouer agains to those others in the sayd degrees .

But yet the Law giueth them choyce , ☞ Debts due in equall degree of Record , the Executor may pay which of them hee please before suit commenced . that where diuers haue Debts due in equall degree of Record or specialty , hee may pay which of them hee will , before any suite brought against him ; but if suite bee brought hee must first pay them that get Iudgement against him .

Any one Executor may conuey the Goods , or release Debts without his companion , ☞ Any one Executor may dot as much as all together , but if a debt be released and Assets wanting , he shall only be discharged . and any one by himselfe may doe as much as altogether ; but one mans releasing of Debts or selling of Goods , shall not Charge the other to pay so much of the Goods , if there bee not enough to pay debts ; but , it shall charge the party himselfe that did so release or conuey .

But it is not so with Administrators , for they haue but one authoritie giuen them ☞ Otherwise of Administrators . by the Bishop ouer the goods , which authoritie beeing giuen to many is to bee executed by all of them joyned together .

And if an Executor dye making an Executor , ☞ Executor dyeth making his Executor , the second Executor shall be Executor to the first Testator . the second Executor is Executor to the first Testator .

But if an Administrator dye intestate , then his Administrator shall not bee Executor to the first ; But in that Case the ☞ But otherwise , if the Administrator dye making his Executor , or if Administration be committed of his goods . Inboth cases , the Ordinarie shall commit Administration of the goods of the first Iutestate . Bishop , whom wee call the Ordinarie is to commit the Administration of the first Testators goods to his Wife , or next of kinne , as if hee had dyed intestate ; Alwayes prouided , that , that which the Executor did in his life-time , is to bee allowed for good . And so if an Administrator dye and make his Executor , the Executor of the Administrator shall not bee Executor to the first intestate ; But the Ordinarie must new commit the Administration of the goods of the first Intestate .

Againe , if the Executor or Administrator ☞ Executors or Administrators may reteyne pay Debts , or Funerals , or Legacies of his owne money hee may retaine so much of the goods in kind of the Testator or intestate , and shall haue propertie of it in kind .

10. Propertie by Logacie .

PRopertie by Legacie , is where a man maketh a Will and Executors , and giueth Legacies , hee or they to whom the Legacies are giuen must haue the assent ☞ Executors or Administrators may retaine ; because the Executors are charged to pay some debts before Legacies . of the Executors or one of them to haue his Legacie , and the propertie of that Lease or other goods bequeathed vnto him , is sayd to bee in him ; but hee may not enter nor take his Legacie without the assent of the Executors or one of them ; because , the Executors are charged to pay Debts before Legacies . And if one of them assent to pay Legacies hee shall pay the value thereof of his owne purse .

But this is to bee vnderstood , by debts ☞ Legacies are to bee payed before debts by Shopbookes , Bils vnsealed , or Contracts by Word . of Record to the King , or by Bill and Bond sealed , or arrerages of Rent , or Seruants or Workmens wages ; and not debts of Shop-bookes , or Bills vnsealed , or Contract by word ; for before them Legacies are to bee payed .

And if the Executors doubt that they shall not haue enough to pay euery Legacie , ☞ Executor may pay which Legacie hee will first . they may pay which they list first ; but they may not sell any speciall Legacie which they will to pay Debts , or a Lease If the Executors doe want they may sell any Legacie to pay Debts . of goods to pay a money Legacie . But they may sell any Legacie which they will to pay Debts , if they haue not enough besides .

If a man make a Will and make no Executors , or if the Executors refuse , the ☞ When a will is made and no Executor named , Administration is to bee committed Cum testamento annexo . Ordinarie is to commit Administration Cum Testamento annexo , and take bonds of the Administators to performe the Will , and hee is to doe it in such fort , as the Executor should haue done if hee had beene named .

FINIS .
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