Linguistic DNA - Concept Modelling Demonstrator

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	debt_n	writ_n	2,286	5	9.4361	5	true

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B13659	The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.; Parallele or conference of the civill law, the canon law, and the common law of this realme of England. Part 2	Fulbeck, William, 1560-1603?	1602 (1602)	STC 11415a; ESTC S102691	206,828	373

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 nequÃ¨ ligat nequÃ¨ 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 Å¿ 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 Â§. 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 solÃ¹m 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

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

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 Â§. 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

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