in this consorteth with the ciuill law for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plaintife g 7. H. 4. â—0 Plowd com 277. for though hee doe pay debtes vpon contractes the writte depending against him vppon a bonde whereas hee had no notice of the suite he shall not bee in such case charged h 2. H. 4. 21. And 3. H. 6. in an action of debt vpon an obligation of twentie pound brought against executors they pleaded riens enter maines that they had nothing in their hands and it was founde by verdict that they had tenne pound in their handes wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade and the dammages of the goodes of the executors for their false plea i 3. H. 6. 4. But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vpon such a plea but onely the goodes of the dead k Dauis C. com 440. But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a deuastauerunt wherefore the Court did graunt a writte to haue execution of the goods of the dead and if there were no such goods then of the goods of the executors l 11. H. 4. 70. And 4. E. 3. in an action of dette brought against the executors it was found that they had fully administred and the opinion was that the Iurors should set downe in certaine how much they had administred because they shall not bee charged but onely according to that which is found by inquest m 40. E. 3. Statha tit executors But it was said 34. H. 6. that when the executors doe plead fully administred but onely for so much their plea is found the plaintife shall haue iudgement to recouer all his dette but he shall not haue execution but onely of the goods in their hands n 34. H. 6. stath tit Execut. But it is good to bee considered what may properly bee saide assets in the handes of the 9 What may properly be said to be assets in the hands of the executors executors if the executors doe merchaundize with the goodes of the testator the increasall of them shall bee assets in their hands and shall charge them and they cannot plead that they haue fully administred when they haue such assets o 11. H. 6. 35. per Bal. And if executors doe sell the goodes of the testator and doe buy them againe they remayne in their handes as assets because they were the same goods which were the testators p 18. H. 6. 4. But then it seemeth that the money which they had for the sale of the goodes was wasted by them and not conuerted to the vse of the testator for otherwise there is no reason but that they should haue a propertie in them to their owne vse for if the executors pay the debtes of the testator of their owne goodes they may retaine the goodes of the testator to the value in their handes to their owne vse q 6. H. 8. 2. Dy. But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one and 30. li. to another dieth and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remaineth in their hands shall bee assets r 27. H. 8. 6. per Fitzh And so a gage being ransomed shall bee assets in their handes but according to M. Frowikes opinion it shall not bee assets if it were ransomed with their owne money Å¿ 20. H. 7. 2. But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge being gaged to their testator shall bee assets in their handes So it hath beene adiudged that if a man make a feoffement vpon condition that the feoffee shall sell the lande and distribute the money to the vse of the testator whereupon he selleth the land and the feoffor maketh him his executor the money taken for the land sold shall be adiudged assets in his hands t 2. H. 4. 21. Executors 51. 3. H. 6. 3. So if the executors pleade fully administred and it is found for them and after certaine goodes of the testator come to their handes wherefore he which brought the first action of dette bringeth the same against them againe this action is well maintenable u 7. E. 4. 8. per Littlet Danby Nomomath You haue satisfied mee for this point Anglonomoph Now I pray you Codicgnost strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes I haue reade that in ancient time it was a law amongst the Romans that if a man greatly indebted were not able to discharge the dette his bodie was mangled and cut in 1 The rigorous law of the Romanes in their execution for dette peeces and the greatest portion of it giuen to his greatest creditor a lesser to him to whom he did owe lesse and so pro rata x Paul Manut lib. de legi Roma which lawe beside the monstrousnesse of it in such a common weale was verie inhumane for the creditors might if they would in their furie by this law cast the members and partes of the bodies of their debtors to dogges and other brutish beastes so that that the Romanes had not so much care of their Senators gentlemen and citizens as the friendes of Diogenes had of him For when the Cynicke laye vpon his death-bed his friends which were then about him asked him in curteous manner where he wold be buried he thinking perhaps that a man was nothing but a mind answeared them that he would bee buried in the dunghill and they replyed that that would be verie inconuenient for the dogges would then rake him vp and deuoure him Then said he lay some staues by mee to beate away the dogges but they told him that hee could haue no sence in his bodie after his death then quoth he what neede I feare the dogges This was but the glaunce of Diogenes who made more accompt of his scoffe then his state But others more ciuill doe thinke it a great losse shame and indignitie that a mans bodie should not be buried wherefore Lucan sharpely inueyeth 2 The execution of the Romanes greatly to bee reproued because it did depriue men of buriall against Caesar Tu cui dant paenas inhumato funere gentes a Luca. lib. 7. And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debarred from sepulture Romulus though hee had caused to be slaine his brother Rhemus and after his death did continue his fury
by the said R. B. lawfully ingendred then liuing and the plaintife said that hee ought not to bee barred from his action for he said that after the making of the said writing before the said feast namely the 12. of Iune anno c. the said plaintife at M. in the countie of Lancaster tooke to wife the said I. and they had issue betwixt them H. Bolde and after before the said feast the said I. and the said B. dyed the said H. being the sonne of them both at the time of the death of the said I. being then full liuing and after and before the said feast namely the twelfth of Iune the saide H. B. at B. aforesaid dyed and the defendant hereupon did demurre in law And the question was whether this word tunc in the condition should be referred to the time of the death of the wife and it seemed to Mountague and Baldwin that it should not but that it ought to bee referred to a time certaine for euerie tunc relateth to his quando but they thought that it should bee referred to the feast which is certaine and not to the death of the woman which is vncertaine but Shelley and Knightley thought otherwise For in diuers cases relation shall not bee made ad proximum antecedens as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta this shall not bee referred to the estate taile which doth next preceed because it wanteth the word heires to make an estate tayle and therefore it shall be referred to the first estate Which later opinion if it bee lawe then by our law si may signifie and may make other wordes to signifie an vncertaine cause of the accomplishment of a condition h 28. H. 8. 14. Dy. Boldes C. And whereas hee hath said that sometimes it signifieth a certaine cause as if the iudge doe giue iudgement for me So likewise it signifieth a certain cause in our law 7. Si signifieth a certaine cause at the common law for 8. E. 4. the case was this An action of debt was brought vpon an obligation by the Dutchesse of Suffolke the defendant said that it was endorsed with this conditiō that if the defendant should stand to the arbiterment of the said Dutchesse touching all maner of suits c. betwixt him one B. that then the obligation should be void c. And this was admitted to be good and thereupon it may be concluded that si sometimes in our lawe importeth a cause certaine as the Dutchesse in this case was a certaine cause of the arbiterment i 8. E. 4. 1. 9 Dutchesse de Suffolke C. So 23. Eliz. the case was that two were bound to stand to the arbiterment of two if they did make their awarde within two daies after the date or making of the said obligation and the obligation bore date die Sabbati ante prandium and the award was made the same day post prādium and this was held to be good because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past And as in 8. Si by the common law may signifie an vncertaine euent the ciuill law so likewise by our law si whether it be expressed or implyed may signifie an vncertaine euent for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning this remainder is good though it be vpon a si implyed if I. S. dye not before the next day and if one come to Paules the next day in the morning and if hee which commeth thither be a person able to take by the graunt k Assis pl. 47. Perk. 13. sect 56. And whereas he saith that by their law it signifieth 9. Si. signifieth a condition by the common law a condition or a conditionall disposition so it doth likewise in our law as it is well recited in my Lord Dyers reports out of Bracton Scito quòd vt modus est si conditio quia causa And as l 4. Mari. 139. Dy. to his conceited case of the puerperie I take his reason to bee verie good that benig na interpretatio facienda est in fauorem libertatis Codicgnost What say you now sir Nomomathes I say that as for such a paradoxical fantasie Non persuadebis etiamsi persuaseris 2 Diuision But I pray you resolue me this If I sel to another certain land for an hundred pound vnlesse another the next moneth following doe giue more for it by fiue pound at the least whether doth this word vnlesse make a condition or it is an idle clause and vneffectuall Codicgn I take it clearely to make a good condition for though the sale be pure and vnconditionall 1 The word nisi or vnlesse doth sometime signifie a condition at the ciuill law yet it is resoluble and defeasible vpon a condition contingent m l. 2. §. si in diem ff pro emp. for the words following may qualifie and gouerne a direct graunt or deuise as if the testator say I deuise vnto A. a C. li. for the making of my tombe n l. quib diebus §. fi ff de condi de mon. or if he said I deuise vnto him a hundred li. pro eura liberorum meorum sustinenda or if he said I deuise vnto him so much to endow certaine poore maydens or to ransome certaine prisoners out of captiuitie here there is no condition implyed but onely a limitation or modification to what intent or purpose the deuise is o l. mille C. de epi. et cle So if the testator say I deuise to Titius C. li. 2 Law is a modification or limitation of a graunt is made which I will shall be paied vnto him out of my money which I haue in such a place as namely in such a closet or such a chest if in the closet or chest there bee no money then there is nothing due but if there be a lesse summe yet all the mony is due by reason of the intent p l. quidam testamento ff de leg 1. l. Lucius ff de ali ciba And if the testator deuise to euerie one of his free men a seuerall certaine yearely maintenance out of his landes in Dale if his landes in Dale be not sufficient for these seuerall maintenances yet they ought to be supplyed of his other landes q l. Paulo Callimacho §. fi de leg because the adiection and mentioning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment and not for the taxation or restraint of the legacie for legatum non restringitur But if a man deuise ten pound to his daughter vntil she mary by this is intended a yearely paiment of x. li. r
with the Ciuill Law in the three sorts of bonds two I haue shewed that our Law agreeth with yours and as to the last it agreeth in the substance of the thing though not in the sound of the name For an action of Dette may by our Law be brought vpon a recouerie or iudgement conteining the dette For if a man recouer dammages in a writ of Wast he may sue a writ of Dette vpon this recouerie if he will l Fitzh Nat. be 122. C. 20. H. 7. 3. And so for dammages recouered in a Redissesin a writ of Aiel Cosinage and a writ of Entre sur disseisin m 43. E. 3. 2. But in that you said that 15. The common Law dissenteth from the Ciuill in not making the redeliuerie of a bond an acquitance the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance this is not so in our Law For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede as for him who maketh a deede to make it a deede as where as it is ensealed he may break the seale and whereas it is deliuered as the bond of the partie he may redeliuer it in steede of an acquitance m 1. H. 7. Dones C. per Fin. Yet it is better aunswered by Mast. Keble that a redeliuerie may be either of a deede executorie or a deede executed The redeliuerie of a deede executorie hath some operation in Law n ibi per Keble as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed if I. S. deliuer the scroule back to the bailor before the deliuerie of it to I. N. and before the condition perfourmed the bailor shall not anie way be charged by vertue of this bond But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed o Perkins tit Faits Now the redeliuerie of it nequè ligat nequè soluit worketh nothing because a deede can haue but one deliuerie and if the first deliuerie be good the second is voide if the first be not good the second may be good p 1. H. 6. 4. And so it is of a release executed for if a man be disseised and after release to the disseisor and after the disseisor redeliuereth the deede of release to the disseisee and saith that he will not haue aduantage of it yet this is to no purpose for by the release executed no right may bee demaunded by him to whom the deede is redeliuered but a right may be defended by him who is in possession to whom the first deliuerie was q 1. H. 7. Dones c. per Vauisor Keble But if the disseisee reenter vpon the disseisor and the disseisor bringeth an Assise and hath not the deed of release readie to intitle himselfe to the land the other may still hold possession of the land but then the redeliuerie of the deede of release doth him no good directlie but onelie per accidens because the want of it doth hurt to the disseisor Nomomath Now I pray you resolue vpon 2. Diuision this whether shall the Executor or Administrator be charged in all respects with the dettes and Legacies of the testator or how farre forth they shall be charged For I accompt a Legacie to be a kind of dette Codicgn The making of an Executor which 1. By the Ciuil Law the Executor succeedeth in vniuersum ius desuncti of vs is tearmed haeredis institutio is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will r C. de haere l. 1. which is not of force till the death of the testator but vntill that time it is kept clausum signatum and as Isiodore saith rather according to the truth of the thing then according to the true deriuation of the word as manie times he doth it is therefore called Testamentum quia non valet nisi post testatoris monumentum vntil the testator be laied in his graue ſ Isiodor li. 5. And such Testaments must be insinuated to 2. Insinuation of a wil necessarie by the ciuill Law the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator which insinuation is appointed by Law Ad euitandum falsitatem et sciendum veritatem Testamenti t L. iubemus C. de test l. si C. de fideicom But de iure Praetorio though a Testament be not made yet some person may be appointed by the Praetor to administer the goodes u Iusti de bo poss §. 1. et ff eo tit And as well the administrator 3. By the Ciuill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they succeede which shall come to their handes And it is a good and safe waie for them so to doe for if they doe so they shall not be charged further with anie debtes then the goodes of the testator or him that died intestate will extend And such an Inuentorie by our Law cannot be disprooued vnlesse the number of the witnesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it which are commonly called Prizors uu cum Io. de si instru And the Inuentorie ought to be begun by the Executor within 30. daies after the death of the testator or at least within 30. daies after that he hath notice that he is made Executor and it ought to be finished or consummated within thirtie daies after or at least within a yeare after if the thinges be farre distant and dispersed in remote places and then he shall be charged no further then the goodes will stretch otherwise he shall be charged in solidum for the whole dette d Gazal in verb. Inuentar Canonolog These thinges which you haue proposed are not reiected of vs but are of validitie in our Law Nomomath I pray you Anglonomoph rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can for these things vttered by him are of great importance and vse at this day wherefore I would haue you studiouslie and with care to discusse these things Anglonomoph In the substance of these matters 4. The power of the Executor dependeth wholie vpon the will of the Testator by the common Law which he hath mencioned I doe not see at the first glimse any discordance in our Law but in the circumstance there will be some dissonancie and variance First to speake of the power of an Executor by our Law it dependeth wholie
subiectes to come to anie place at the Citation of Bishops ad faciend'aliquas recognitiones vel sacramenta praestanda nisi solùm in causis matrimonialibus et testamentarijs And M. Fitzherb thinketh that 4. The Barrister disproueth the general citations of Bishops ad sacramenta prestanda by the common Law these generall Citations which Bishops make to cite men to appeare before them pro salute animae without mentioning any speciall cause is against Law b Fitzh nat bre 41. A. Nomomath Why may they not vse such generall Citations as well as a Iustice of peace 5. Nomomathes encountreth him in this point by your Law may make a precept to bring one before him to aunsweare to such things as shall be obiected against him without shewing any speciall cause c Crompt Iust p. 131. et 132. And if by your Law they can receiue no oath but onelie in matters Matrimoniall and Testamentarie then it must needs be intended that though their processe be generall ad sacramenta praestanda yet it is specially meant of Matrimoniall or Testamentarie causes For I remember a good rule in the Canon Law to this purpose Quando constat de lege sufficit generalis allegatio d 28. q. 1. sicut enim in si But what saie you to this matter of oathes Codicgnostes Codicgn Our Law differeth little or nothing 6. The Ciuill Law agreeth with the Canon in matter of Oathes from the Canon law in the discourse of oathes And as the Canonistes wee make two sortes of Oathes Conuentionale and Iudiciale Conuentionale or Promissorium is when we sweare de futuro that we will giue some thing or do some thing c e Bartol in l. si quis ff de si dâ—nstrum Iudiciale is when the Iudge for the triall of the truth of a controuersie and the infourming of his owne conscience vrgeth the partie to take an oath f ff eo tit l. ius iurand Of both these riseth an action triable wel enough by the Canon Law for in this matter the Canon is the sterne and motiue of our iudgements and therefore we hold the rule of the Canon Law firmely Praestans et recipiens iuramentum contra Canones punitur g Gl. verb. paena capi grauis de censi Nomomath Well I will trouble you no further about questioning of things belonging to seuerall iurisdictions but will now passe to inquire somewhat of such thinges whereof an Action of the case will lie The second Dialogue Of Actions vpon the Case NOnomath I haue some time meruailed Codicgn wherefore an Action vpon the case which you tearme actionem iniuriarum should not haue a speciall name aswell as other actions when as at the Common Law euery action beside this hath his speciall name As an action of Dette of Accompt of Wast of Detinue of Couenant c. And in your Law there is 1. Diuision Actio ex stipulatu actio empti actio depositi actio de pauperie c. I pray you therefore let me know the reason hereof Codicgn What is more ebbing and flowing then mans inuention for some things it hath wordes too many for some it wanteth names Therefore Iuuenal when he sought for an apt name for that age which ensued the fower famous ages being this last age of the world and worse theÌ„ the yron age he nameth it by giuing it no name for his inueÌ„tion could not find out any proper appellation and thus resolueth quorum sceleri non inuenit ipsa Nomen et a nullo posuit natura metallo And because our sage Maisters of the Law could not deuise as manie seuerall names as there be seuerall iniuries for what Dictionarie could conteine so many names and because the name of the signe should be ample and large enough for the thing named or signified 1. The reason is shewed wherefore actio iniuriarum hath so generall a name at the ciuill Law therefore they deuised that actio iniuriarum might serue for all wrongs for which they could not frame particular names Anglonomoph Indeede as D. Stephens his water was fit for manie diseases and yet had neuer any speciall name but was generallie 2. The Barrister compareth an Action vpon the case at the common Law to D. Stephens his water tearmed Doctor Stephens his water so likewise an Action vpon the case stretcheth as a remedy against manie offences Yet it hath no other name then an Action vpon the case And it is therefore so tearmed because euerie mans case must be in that action speciallie and at large set downe for in that action the writ ought to comprehend the speciall matter as well as the declaration a 7. H. 6. 47. Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife which he after purchased for himselfe in deceit of the plaintife and the plaintife did not shew of whom the Manor should be bought in the writ but onelie in the declaration the writ was abated b 16. H. 6. Action sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53. Nomomath I pray you satisfie me in this If 2. Diuision a man be enterteined or lodged in an Inne and some of his goodes be taken from him out of the Inne by a straunger whether may he haue an Action vpon the case against the Inne-keeper Anglonomoph Doubtles he may if it were a common Inne in which hee was lodged c 2. H. 4. 7. 5. Mar. 158. Dyer And if the partie so preiudiced doe bring an 1. An Action vpon the case lieth against the keeper of a coÌ„mon Inne if goodes be imbeasiled Action vpon the case against the hoast it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him or that the plaintife himselfe had the key of the chamber And an Elegit hath been awarded in such case of the land which the defendant had the daie of the iudgement giuen and not the daie of the writ brought And a Capias ad satisfaciendum lieth not because it was a laches and no wrong d 42. E. 3. 11. And therefore the wordes of the writ be pro defectu ipsius B. e Fitzh nat bre 94. B. But the opinion of Hill is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest that he can not attende vpon him and notwithstanding he will needes be harboured there at his perill the Inne-keeper is discharged f 11. H. 4. 45. per Hill And 22. H. 6. the difference 2. If a stranger lodge with me by my consent and do imbeasill goodes the Inne-keeper shall not be charged is taken that if a man doe lodge in chamber with me by my consent meerlie and not by the appointment of the hoast and he robbeth me the hoast shall not be charged Otherwise is it
the case was such A man being found in arrerages vpon his account did promise to the dettee that if he wold forbeare him per paruuÌ„ tempus that hee would pay him the money without further delay and the dettee did forbeare him accordingly and after vpon this assumpsit brought an action vpon the case and it seemed to three of the Iustices of the common pleas that the action would not lie because that paruuÌ„ tempus was no good consideration neither could it be beneficiall to the partie but one of the Iustices saide that if the dettee had brought an action vpon the case without any consideration alleadged and had proued the dette that would haue sufficed for that had beene an assumpsit in law and that there must be a reciprocall consideration in such case may most clearely and euidently be proued by 44. E. 3. A writte of dette was brought and the plaintife declared that the defendant did owe vnto him fiue poundes for a house which hee had sold vnto him the defendant said that there was a couenant betwixt the plaintife the defendant that the pr shold remoue the same house at his owne costs charges within a certaine day to a certaine place and when he had so remoued it that then the defendant would pay him his money and that the house or the frame of the house was not as yet remoued and this was held a good plea b 44. E 3. 28. And where two considerations are to be accomplished the performance of them both is to bee auerred Wherefore the case was that in an action of trespasse the defendant pleaded a concord that he before a certaine day should make certayne windowes and should paye certaine money and he said that he payed the money by vertue of the concord before the day and demaunded iudgement si actio c. But hee spoke nothing of the making of the windowes and the plaintife replyed Nul tiel accorde and it was for the plaintife and it was held by all the court a ieofaile For when they accorded that the defendant should doe two things the concord is not performed vnlesse both be done and so the matter of the plea is not good and therefore the replication cannot make it good c 6. H. 7. 10. And if I buy a horse of you for sixe pound you may deteine the horse till I haue payed you d 10. E. 4 1â— and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently but doth onely promise it the vendor may sell it to another immediately and the other can haue no remedie against him for otherwise he may be compelled to keepe his horse in perpetuum against his will e 17. E. 4. 1. per Choke And to this agreeth the booke of 21. H. 7. where it is said that in the bargaine it is implyed that the bargainee shall pay the money presently otherwise hee shall not haue the thing solde but if it were for a certaine day the money were not to bee payed before the daye because the bargainor hath giuen vnto him expresse libertie to pay at any time within the time prefixed f 21. H. 7. 6. And so is the booke of 28. H. 8. that a contract or bargaine is not good without present payment vnlesse there bee a certayne day limited so that one of the parties may haue an action of dette for the money and the other a writte of Detinue for the wares g 28. H. 8. 30 Dy. and if a man assure and promise to one that he will make for him certaine waines for carriage c. and hee taketh parcell of the money before hand to do it and after he doth it not according to his assumpsit the other may haue an action of trespasse vpon his case h Fitz. N. B. 94. A. so an action vpon the case was brought because the defendant promised to the plaintife that if the plaintife wold discharge I. S. of execution in which hee was at the suite of the plaintife that then he would pay vnto him his dette and in truth the promise was made to the wife of the plaintife to which the husband agreed and thereupon he discharged the partie and it was ruled by the court that the action was maintenable because a feoffement of lands or gift of goods is auaileable to the wife if the husbande doe not disagree so it is of an assumpsit i 27. H. 8. 24. 25. Nomomath Trouble your selfe no further Anglonomoph let me aske this one question of Codicgn whilest it resteth in my mind Suppose that I haue hyred a ship or gallie to transport my family and some of my houshold 4. Diuision goodes by lawfull permission and I agree to pay for the carriage of euerie poll or person of them a certaine summe of money admit that three or foure of them die in the ship whether shall the owner of the shippe haue the entire summe of money or shall it bee apporcioned for them that be dead before they be brought to the land k Ludouâ—c de Rom. in singulari Codicgn To cleare your doubt this diuersitie must bee vnderstood if the owner of the 1 That no fare ought to be payed for them that die in a ship if the master of the ship did assume to bring them safe to shoare shippe did make a couenant with you that he would bring them safe to such a place then surely you ought to pay no fare for them that bee dead l Id. in d. singu ad regu praedict but if the couenant were to take them into the ship and to carrie them to such a place theÌ„ the law wil be otherwise and so if a 2 If a child be borne in sea-faring nothing is to be paied for that child child be borne in the ship whilest it is vpon the sea there is nothing due in respect of that child m ff locat l. si adest §. si quis mulier Canonolog All contractes are bonae fidei and what is a contract but stipulatio verborum so that it is to be taken as the words doe sound no violence being offered to apparant equitie n Pecki ad reg iur Anglonomoph In our law there is a case not much swaruing from this purpose if we stand not too much vpon the common and verball way to go to the end of a question I. B. did 3 The barrister putteth a case of carrying a horse safe and sound ouer Humber declare by bill that A. at a certaine day and yeare vpon Humber did assume to carrie his horse being taken into his barge ouer the water of Humber sound and safe and the said A. did surcharge his barge with other things by which meane his horse perished in the water and this was held a good cause of action o 22. Assis pl. 41. but surely in this case without
I substitute the one of them to the other that is if the one die the other shall haue all and the mother nothing at all t Gazalup verb. substitutio brem loqua Anglonomoph I haue noted in your wordes Codign two thinges which haue no small coherence and agreement with matters of our Law First in that by will according to your Law an entrie may be limitted to a straunger 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate and shal entirely claime the possession Which two assertions I shall seuerally prooue by cases of Law beginning with the first A man seised in fee of landes deuisable 3. By Will according to the common Law an entrie may be limitted to a stranger did deuise them to one for terme of his life and that he should be a Chapplein and that he should chaunt for his soule all his life time and that after his decease the tenements should remaine to the Cominaltie of a certaine village to finde a chappleine perpetuall for the same tenements and he died and the deuisee entred and held the landes sixe yeares and was no chappleine and the heire of the deuisour outed him and he brought an Assise And it seemed to the Court that the limitation that he should be a chappleine was no condition and that the heire could not enter for then the remainder should be defeated which may not be because by the intent a perpetuall chappleine ought to found u 29. Ass pla 17. Whereby it appeareth that they in the remainder were to take aduantage in this case of the breach of the thing that was to be done and not the heire So in Fitz Iames his case the clause of entrie was limitted to him in the remainder for breach of the condition by the particular tenant for it was helde that the limitation might determine the estate and that being determined he in the remainder might enter uu 13. et 14. Elizab. Com̄ 403. Newyses case Also 34. E. 3. the case was that a man had issue a sonne and a daughter and deuised land deuisable to one for life vpon condition that if the sonne should disturbe the tenant for life that the land should remaine to the daughter and the heires of her bodie the father dieth the sonne disturbeth the tenant for life who dieth the daughter brought a Formedon and it was allowed a 34. E. 3. Formedon pla vlt. But yet the aduantage of 4. The aduantage of entrie limitted to a stranger is in the late reports doubted of entrie by vertue of the limitation is not in other late reportes so cleare but hath been greatlie doubted of Stubes being Cestuy que vse deuised to his wife certaine land during her life ita quòd non faceret vastum the remainder to his yonger sonne in taile and died after the Statute of 27. of ioyning the possession to the vse is made the woman dieth the question was who should enter for the condition broken the heire the feoffees or he in the remainder b 3. Mar. 117. Dy. And an other case was equally doubtfull Wilford was bound in an Obligation without daie of payment limitted and deuised his land to his executors vppon condition that if they did not paie the said summe according to the obligation that the deuise should be voide and that then A. should haue the land to him and to his heires vppon condition that hee paied the money Wilford died A. died the executors are requested to pay the money and they would not pay it the question of the booke left vndecided is whether the heire of A. may enter into the land and paie the money c 3. Mar. 128. Dy. In like maner land in Gauelkind was deuised to the eldest sonne vpon condition that he should paie 100. li. to the wife of the deuisour he fayled of the payment it was questioned by Manwood whether the yonger sonne might enter into the moitie as by an implied limitation d 15. Eliz. 317. Dy. But touching such entries by force of some speciall limitation or condition Mast. Frowike giueth a good rule 21. H. 7. that an estate of inheritance can not cease by vertue of a condition broken onelie but there ought to be also an entrie But otherwise it is of a particular estate and the reason is because such an estate may be determined by word as by surrender and by the same reason it may cease by the wordes of the condition e 21. H. 7. 12. per Frowike Now that the 5. That the entrie for the condition broken defeateth the whole estate whole estate of the feoffee or donee is defeated by the breach of the condition and the entrie of the partie may be prooued by diuerse authorities in our Law and that there can be no fraction of the condition 14. Elizab. all the Iustices agreed And so was iudgement giuen in Winters case that by the graunt of the reuersion of part of the landes with which a condition runneth the condition is wholie confounded because it is a thing penall and entire and may not be apportioned nor diuided f 14. Elizab. 308. Dy. And 33. of Henrie the eight according to Mast. Brookes report it was helde for Law that if a man giue land in taile or lease it for life rendring rent with a condition for default of payment to reenter now if he lease part of the land to the donour or lessour or if the donour or lessour enter into part of the land he cannot enter for rent behind after but the condition is wholie suspended because a condition cannot be apportioned or diuided Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reportes A man leased land for yeares vppon condition that the lessee should not alien the land to anie person without the assent of the lessour nor any part of the land the lessour giueth licence to alien part and the lessee alieneth the residue without licence it was adiudged that the lessour may enter notwithstanding the dispensation of the condition ex parte g 16. Elizab. 334. Dy. Howsoeuer 5. Edw. 6. be to the same purpose that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour the remainder in fee to a straunger the one of them onelie maketh estate accordingly And by the opinion of manie this is good for a moitie by the dispensation of the partie who might take aduantage of the condition by his acceptance of estate h 5. Ed. 6. 69. Dy. For 23. Elizab. the case was such A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille he tooke twentie one fishes and gaue tenne to the obligee and an action of Dette was brought vpon the obligation and the plaintife recouered
et hi. D. de publica l. â— C. pro fo l. si quis C. de vect et com A princelie thing doubtles it is and for it there hath been great contention betwixt great estates as namelie betwixt the Burgundians and the Almannes betwixt the Hermunduri and the Catti together with that of Perusia vnder Paulus the third and that of Fraunce vnder Frauncis the first and diuers others daungerous quarrels haue been about pretensed titles to Salt d Ammian lib. 28. Tacit. lib. 13. Guicciar lib. 12. 14. 16. 18. 19. Neither is it to be meruailed that Princes make so great accompt of it for Homer accompted it diuine if it be true which Plutarch reporteth of him e Plut. in symp 5. q. 8. But what shall we saie now of the other entralles of the earth as Pitch Chalke lyme quarrie stone brimstone and the like As for gold and siluer I make no question but by the Law of nations they belong to the Prince I would aske this question Sithence God hath treasured in the mines gold siluer other mettals for whom hath he treasured them if all the Mines of gold siluer should be in the lands of one subiect is it lawfull for him to coine money of this siluer gold no verilie as may appeare by that question of our Lord and Sauior when he asked whose stampe or impression the money did beare e Matt. 22. ver 20. what shall he then do with it shall he make plate of it by this mean a subiect shall haue plate the king none which is not conuenieÌ„t Therfore I take the iudgment giuen in the case betwixt the Q. Maiestie the Earle of Northumberland touching the title of these roiall Mines to be sound and grounded vpon inuincible reason howbeit the graunt was omnium et singularum Minerarum for the diuersitie is there by Wray well taken that there be two sorts of Mines mines roiall base mines Now mines roiall may be subdiuided into two other kinds those which contein in them siluer or gold entierlie or which haue brasse or copper in them and haue some vaines of gold intermixed both these belong to the Prince for the gold as magis dignum attrabit ad se minùs dignuÌ„ But such as haue in them meerly brasse iron copper or lead may belong vnto a subiect by special title f 10. Eliz. ComÌ„ 310 Informac pur Mines notwithstanding Dio a wise iudicial writer maketh all Mines of mettall in general publike as belonging to the Prince or common weal g Dio lib. 52. And mines of Pitch Cicero allotteth to the Prince by the like ceÌ„sure h Cicer. in Bâ—ut And doubtles there is great reason for their opinion because it should seeme that these mettalles were created of God not for a priuate but a publike vse at the first for iron and steele do principallie serue for armour and there is a rule in the Ciuill Law De armis publice asseruandis i Nou. 85. Pitch is principallie ordeined for the glewing together of the bordes of shippes and shippes were principallie ordeined for the common weale Copper and Brasse haue in all ages and common weales been compaignions of the aforesaid Mettals and haue been vsed with them and passed with them as the shaddow with the bodie Yet if a Prince haue transmitted his title or right vnto the base Mines to anie of his subiectes I think he cannot by roiall claime wrest them out of his handes And this Suetonius reckoneth as one of the concussions of Tiberius who tooke from cities and priuate men the Mettals in which they were lawfullie interested k Suetoni in Tiber. c. 49. And Laurentius Medices hath been touched likewise for the same fault l Molin ad Dec. cons 292. that the landes and goods of Traitors and Felons doe by the Law of Nations belong to the king or Monarche hath been afore cleerelie prooued in the second Chapiter of this Treatise But what shall we saie of Treasure found in the earth will not the Law of Nations assigne it to the Prince Yes verilie notwithstanding Plato his straunge conceit that they should be immobiles and Dijs inferis sacri for should there be no vse of so pretious thing and one of the most gorgeous creatures of God It is an argument of a froward a brutish humour to make vse of quarrie-stone not pretious stone of coal and not of gold The Romanes were as superstitious as Plato but a great deale wiser for they dedicated a temple to Pecunia that they might be pecuntosi stored with money m D. Augstin lib. 4. de ciuit dei c. 21. Wherefore Iuuenall by his leaue was deceiued when he writ etsi funesta pecunia templo Nondum habitas nullas nummoruÌ„ ereximus aras n Iuuen. Satyr 1. But it is no meruaile if this poet were ignorant that it was idolized for Varro writeth that to many of the learned their gods their sacrifices and ceremonies were hidden and vnknowne but M. Stamfords reason wherefore treasure should belong to the king is vnanswerable and it is this quia dominus rei non apparet ideo cuius sit incertum est o 22. Assis pl. 99. and it is a currant rule in all nations In ambiguis casibus semper praesumitur pro rege Adrianus Caesar made a lawe as Spartianus reporteth that if any man had found treasure in his owne ground himselfe should haue it if in an other mans hee shall giue the half to the owner of the soile if in a publike place he shall diuide it equally with the treasurie This law was abrogated by other lawes following and reuiued by Iustinian but now and long time agoe the ciuill law hath transferred it to the prince in whose realme it is found p l. 3. §. Nerati D. de acqui posses and it is a firme conclusion in the common law Quòd the saurus competit domino regi non domino libertatis nisi sit per verba specialia q Fitzh Coro 281. 436. The eleuenth Chapter That all Nations haue both secretly and by the course of their ouert actions acknowledged and yeelded to the truth of the lawes and commandements of the 2. table of the decalogue HOw far the light of nature stretcheth may appeare by the liues of vertuous heathen men who knowing that the sixe last precepts which almightie God prescribed to his people were to bee obserued and kept yet wanted grace to refer them vnto God who ought to bee the marke of all our actions and in regard of whom only they may be tearmed good M. D. Barlow in his deep learned discourse against the shallow-headed Papist reasoneth soundly and prooueth by the Apostles words quidquid noÌ„ est ex fide est peccatuÌ„ by other vndeniable proofes that such works could not be acceptable to God because howsoeuer they proceeded from God yet they were not referred to
the glorie of God for though God moued them to doe well and some of them confessed Est deus in nobis agitāte calescimus illo yet before the end he left them because vainglory was their end and so they did their suite at a wrong court But now let vs particularly examine the obseruation as wel of the gentiles and Christians of these commaundements and ordinaunces The obedience that children ought to giue to their parents hath bene straitly commaunded by God and seuerely enioyned by Emperours a Exod. 20. v. 12. Deut. 5. v. 16. Acto 4. 19. Pompon l. 2. ff de iust et iur pius Imperat l. 1. C. de alen lib. and Homer diuinely according vnto the wordes of this precept doeth threaten that the life of disobedient children shall not be long b Homer in Iliad Plato hath an excellent speech to this purpose He which mainteineth his parents whē they are old in his house let him thinke that his house shal be neuer be possessed of the like ornament c Plat. lib. 11. de legi therefore it hath beene ordeined of God that children which were disobedient to their parents should be punished of the magistrate d Deuter. 21. v 18. his iudgement is thus set downe If any man haue begotten a stubborne and froward child which will not obey his father mother being corrected continueth still in disobedience let thē bring him to the elders of the citie and to the iudgement gate and the father shall say to the people this our sonne is stubborne and despiseth our admonitions and giueth himselfe to riot and incontinencie then the people shall stone him and he shall dye that the euill may bee taken from the middest of you Yea euen they which had only curst their parents were adiudged to death In former time hee that had slain his father or mother grandfather or grādmother was first bet with rods vntil the blud trickled downe then being thrust into a sacke together with a dogge a cocke and a snake hee was throwne into the bottome of the sea and by Pompeis law it was prouided that if the sea bee not neare he should be throwne out to deuouring beasts At Rome this fact was not heard of till L. Ostius did slay his father which happened after Hannibals warre e Plut. in Rom. l. 1. Et l. paena ff ad l. Pomp. de parricid Cicer in oration pro Rosc Amerin et in orator And Plato his law is that if a man in his furie or madnes do kill his father or mother and they before their death do pardon him the fault yet he is to be adiudged guilty of slaughter of impietie of sacriledge f Pl. lib. 11. de legi But what shall wee say of Orestes who did slay his mother because she did slay his father though there bee diuers opinions which do acquite Orestes as namely the opinions of Cicero g Cicer. in Milon Paterculus h Paterc lib. 1. and Quintilian i Quintil. lib. 5. c. 11. yet against them are Socrates k Plat. in 2. Alcibiad Diodorus l Diodor. l. 5. Aristotle m Aristot l. 2. Rhetoric c. 5. but why shold we depend vpon the iudgement of man in this case when it is manifest that the iudgement of God was in the highest degree if we respect the paines of this life onely executed vpon Orestes for he was plagued with madnesse a terrible signe of the reuenging wrath of God And murder hath beene so much detested that a beast which had slaine a man was commanded to bee stoned and that his flesh should not bee eaten n Exod. 21. v. 28. and by the ciuill law if a man be bitten of an other mans dog the owner of the dog is chargeable vnto him that is hurt because hee did not tie vp his dogge or musle him o l. 1. §. sed etsi canis ff si quadrup pauper fecer therefore Solon deuised a pretie punishment of such wronges namely that the dogge who had by byting hurt any man should haue a clogge of foure foote tyed to his necke and so should be yeelded vp into the hands of him whom he had hurt which Plutarch calleth bellum commentum ad securitatem p Plut. in Solon They which had killed a man in Greece did vsually flie to forreigne princes and there if hee who was slaine was a stranger they vsed to sitte at the threshold of the dore with his head couered with the sword wherewith he was slaine if hee were one of the same countrie the sword was brokē in two and the point of the sword was helde vnder one arme the hilt vnder the other q Sophocl a lamentable sight no doubt but done to this purpose that they which had slaine the men might by these forraine princes haue expiatiō of their fault which expiation was fully as bad or rather worse thē the murther for the princes who were to expiate thē did by inchantments inuocate and make suite to the wicked spirites that they may absolue them from the fault which is done by sprinkling them seauen times with water the predecessor of the Popes holiwater and to this feate seauen garments were therewith sprinckled then they kill a swine a fitte sacrifice for the deuill then they call vpon Iupiter Hospitall praying him that he wold not vexe with furie the party that had offended thus the absolution is worse then the offence and like to that of the merry Monke Absoluo te ab omnibus benefact is tuis peiorem te relinquo quà m accepi r Erasm in colloqu Then there are boughes spread along the houses that the deuill might tread soft Some of them washed themselues in the sea till they had almost drowned themselues murder is the forerunner of death and that foolish solemnitie Catullus glaunceth at Nec genitor Nimpharum abluat Oceanus Likewise Ouid Ah nimium faciles qui tristia crimina caedis Fulminea tolli posse putatis aqua after this manner Adrastus fled from Thebes to Tydeus Peleus fled to Patroclus when hee being but a boy had slaine Clesonynus a boy likewise Paris though he had stolne away Helena the wife of Menelaus yet when hee had slaine Antheus Antenors sonne whom he loued he fled to Menelaus a great iudgement of God his very enemie for expiation like to that iudgement of the almighty executed vpon Cosby an Irish-man who when he had slaine the towardly Captaine the Lord Burgh sought by-pathes and had thought to haue fled from the slaine body as farre as the Sunne is from the Moon but the Lord put a ring into his snowt and brought him backe againe almost as neere to the murthered Lord as the grasse is to the earth a fit admonition for these times wherein homo sacra res per iocum occiditur ſ Senec. lib. de ir In Egipt and Babilon he which had