an elme tree in the place where the waste was assigned and did make a ditch in that place to water cattell which went vpon that ground which was necessary because the water was very lowe and almost dryed vp in that place by that meane he deduced water out of the earth and this was adiudged a good answere r 33. E. 3. Double plea. 9 Codicg That which you haue said is to reason consonant to our law correspondent for as to your first case of the clearing or amending of the conduit-pipes c. Though it be in another mans ground this in our law is not accompted iniurious Å¿ l. 1. c. de quae duc l. 11. l. de cernimus eo ti li. 2. But wee haue a rule in our 4 That the ciuil law agreeth with the common law in suffering and to amend conduit-pipes in another mans ground lawe that if a man ought to conuey water per subterraneos meatus through certain chinkes or crauies of the earth in an other mans ground he must not doe this by a leuill of stones but with pipes of leade because the other mans grounde is by stones more annoyed and empaired t ff de contrah emp. l. si aquae duct But for the improouing of ground from worse to better is clearely permitted by our law As to turne waste grounde into arable or fennish ground into firme ground this we accompt rather a benefite to the owner of the soyle then an iniurie u c. de fund patr l. si li. 11. So it is if a wood become arable x c. quod per noual de verb. signif but to destroy any thing in an other mans ground or to digge a pitte and so to alter the forme and nature of the soyle and by that meane to make it worse is accounted of vs very iniurious but to repaire an olde building or to make some commodious addition is not wrongfull but beneficiall because Non videtur nouum opus facere sed vetus reficere a ff de noua l. 1. §. nouum et §. si quis aedificium Canonol Our lawe doth not withstand any of these assertions Nomomath Well now I pray you proceed 3. Diuision to speake of the penaltie which hee is to suffer by your lawes that committeth waste Codicgn By our Law he that in such case 1. The punishment of wast by the Ciuill Law will denie the wrong done shall be punished with double damages But if he iustifie and it be found against him with single b ff de insti l. 1. §. 1. But he that doth breake the sluces of Nilus so that verie great iniurie is done and to verie manie he is burnt in the same place where the fault was committed in a fire of the height of twelue cubites and his goodes and landes are confiscated because it is crimen quasi laesae Maiestatis c C. de agge Ni non rump l. vâ— â—â— Canonol Our Law in this doth not gainsay you Anglonomoph By an action of Wast at our 2. The punishment of wast by the common Law Law the plaintife if it be found for him shall recouer treble dammages d Fitzh nat bre 58. H. and execution may be had by Elegit of the landes which the defendant had at the time of the inquest taken e 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Execut 66. and he shall recouer likewise the place wasted f Stat Glouc. cap. 6. Nomomath I will put you to no more paines in this matter but will discend to other things which haue not yet been discussed The sixt Dialogue Of Parceners NOmomath Let me know Codign whether in your Law there be any definition set downe established 1. Diuision touching Parceners as they are tearmed at the common Law and concerning the making of Particion betwixt them agreeable to the common Law Codicgn I would first that Anglonomoph should shew who be Parceners at the common Law and in what sort partition is made otherwise I should but roue at an vncertaine marke Nomomath I pray you do so Anglonomoph for that course is not to be disliked Anglonomoph Mast. Littleton a learned man 1. Two sortes of Parceners Parceners by the common Law and Parceners by custome in our Lawes and a great patriarch of our profession maketh two sortes of Parceners Parceners by the common Law and Parceners by custome Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple or fee taile haue no issue but daughters and die and the tenements discende to the daughters and they enter into the said landes or tenements now they are Parceners and how manie daughters so euer they be they are but one heire to their auncestour And they are called Parceners 2. Who be Parceners by the common Law because by the writ which is called de Particione facienda the Law will compell them to make particion of the land Also if a man seised of tenements in fee simple or in fee taile do die without issue of his bodie ingendred and the tenements discende to his sisters they are Parceners by our Law So if his landes discende to his Auntes a Littlet lib. 3. c. 1. fol. 54. And none bee called Parceners in our Law but women or the heires of women which come to landes and tenements by discent For if two sisters purchase landes or tenements thereof they be called Iointenants and not Parceners b Littlet ibidem fol. 56. But bretherne may be Parceners by the custome as by the custome of Gauelkind in Kent bb Littlet ibid. 59. Codicgn We haue an action in our Law 3. Who be Parceners by the Custome verie like to your aboue mencioned writ of Particione facienda and it is called actio familiae herciscundae and it lieth for them which haue a common inheritance to bee deuided betwixt them As when two sisters brothers or kinsfolkes are instituted heires and by that meane are reputed as seuerall heires to the auncestor or him that instituteth them c ff famil hercis l. 1. et 2. C. de verb. sign l. sin For if the Testatour pointing with his finger at three seuerall persons doe saie vnto them quilibet vestrum haeres mihi esto his 4. That by the Ciuill Law where three heires are instituted they are not reputed as one heire meaning by our Law is taken to be this that euery one of them should be heire in parte non in solidum for maeteria subiecta the thing it selfe doth require it because it is vnpossible by our Law that euery one of them should haue the inheritance in solidum d L. hoc artic ff in fi ff de haere insti But if he doe not speake distributiue but collectiue as if he said Quisquis mihi haeres erit det Titio centum solidos now whether there be one heire or
is not enlarged because the condition was against law the estate should haue beene enlarged by the performance of the condition but notwithstanding such condition yet the lease is good because that did not beginne by the condition But if an obligation be endorsed with a condition directly contrarie to law both the obligation the condition be void a 8. E. 4. 13. 2. E. 4. 3. And if a man be bound that he shall keepe the obligee without damages and doe not shew wherein such condition is voide because hee may suffer damages for committing treason murder or other felonie which thinges are against law and it is also against law to saue him without damages for such thinges so that the cōdition is void but the obligation is not void because such things are not expressely rehearsed within the condition so that the condition is not directly contrarie to law b 9. H. 4. Conditions 6. And conditions which are repugnant in themselues are voide in law as if a feoffement or gift in tayle be made that the feoffee or donee may not take the profits or vpon condition that they shall make no waste or vpon condition that the wife of the feoffee c. shal not be endowed or if a lease for life be made vpon condition that the lessee shall doe no fealtie these estates be good and the conditions voide or if an annuitie be granted prouiso that it shal not charge the person of the grauntor the graunt is good the condition is voide c 21. H. 30. 20. E. 4. 8. But if a man seised of land in fee lease the said land for yeares by indenture rendring rent prouiso that the lessor shall not distrein for the rent this is a good prouiso because the lessor may haue an action of dette d 5. H. 7. 7. but land or rent may be giuen to a man in taile so that he may alien to the profits of his issue and this is a good condition for it is agreeable to law and the donor may as wel giue conditionally as simpliciter in the taile e 46. E. 3. 4. G. garrantie 18. And 7. H. 6. it was held by all the Iustices in the eschequer chamber beside Iune that if a man make a feoffement with warrantie prouiso that the feoffee shall not vouch him and his heires and that if he doe the warrantie shall be voide this is a good prouiso But if the prouiso had beene that he should neyther vouche nor rebutte the prouiso had beene void for that had cut off all the force of the warrantie f 7. H. 6. 44. And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit prouiso quòd scriptum non extendat ad onerandum vn des grauntors this prouiso was taken to be void because it restreyneth all the effect of the graunt in regarde of him and if land bee giuen in taile the remainder in fee vpon condition that if the donee or his heires do alien in fee that the donor or his heires may enter the opinion of the court was that this was a good condition for a man may make a condition in the negatiue of any thing which is prohibited by the law as if he make a feoffement prouiso that the feoffee shall not not committe felonie or that hee shall alien within age or in mortmayne and a man may enfeoffe A. and his wife vpon condition that they shall enfeoffe none other for that were a discontinuance otherwise it is that they shall not leuie a fine for that is contrarie to their estate g 10. H. 7. 8. So if a man make two executors prouiso that the one of them shall not administer this is a void prouiso because it restrayneth all the authoritie giuen in the premises as to him and the intent which agreeth not with lawe is to no purpose h 19. H. 8. 4. Dy. p Brud Englef And it hath beene agreede that if a man doe limitte an vse in taile with a prouiso that if cesty que vse doe such an acte his estate shall cease during his naturall life that this prouiso is repugnant and against lawe for the estate can not be determined in part And Iustice Walmsley sayd that when an estate is giuen to one it may bee defeated wholly by condition or limitation but it cannot bee determined in parte to one and giuen in parte to another for that is repugnant to the rules of law as if a man make a lease for life vpon condition that if the lessee pay not twentie pound that a nother shal haue part of the land this future limitation 6 What conditions impossible in fact are at the common law is voide i 41. Eliza. Corbets case 86. b. Com̄ And as to conditions impossible in facte such conditions if they go to the defeasans of an estate the estate notwithstanding remaineth good but estates cannot bee enlarged by such a condition impossible and if an obligation bee endorsed with a condition impossible the obligation is good and the condition is voide Therefore if a man seised of land doe enfeoffe a straunger vpon condition that if the feoffor go on foote from London to Stamford in a day that then it shall bee lawfull for him and his heires to reenter the condition is voide quia impossibile the estate good e 14. H. 8. 32. but if A. bee bound to B. that C. shall appeare in the common place Octab. Trin. in an action of debt brought by the said B. against C. retournable at the same day and C. appeareth the same day and his appearance is not recorded now the obligation is forfeited But if in this case C. had dyed before the day of the returne the obligation had beene saued because the condition became impossible by the acte of God f 9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19. Nomomath Now I pray you shew vnto me 6. Diuision whether conditions are to bee expounded strictly and according to the rigorous sence of the wordes are according to equitie and the exigence of the case so that the circumstances of a mans speech or actions shal haue the regiment of conditions Codicgn Conditions are in our lawe taken 1. Conditions in the ciuill law are taken according to equitie according to equitie For if I graunt to one an annuitie of ten pound yearely quamdiu res meas gesserit the law maketh this sence of these wordes that he shall haue ten pound yearely si res meas gesserit together with a limitation g l. pater §. fi ff de condi demon So if I buy of one the fishes which are taken by him though he haue not alreadie taken any fishes yet the wordes doe imply a condition that that the buyer shall haue them if any bee taken So if I say Acceptis centum solidis a Titio instituo eum haeredem it is
not meant that in regard of fiue pounde receiued of Titius I doe make him my heire or executor but the words are conditionally meant if the testator doe receiue 5. li. of Titius c h l. a testatore ff de condi demon So if I deuise to one xx li. pro docendo talem discipulum this pro doth signifie a condition because by common vsage prius docendus est discipulus quà m soluendū salarium magistro i l. nec semel ff qu. di le ce So if I doe contract with a woman in this sort I promise vnto you A. that you shal be my wife donec terra ponatur super oculos meos these words are not generally to bee vnderstood for so the partie may lay earth vpon his eyes and slip the collar and breake promise but they must be vnderstood according to common intendement that she shall be his wife vntill his carkasse bee couered with earth that is vntill he be buried so it is if he should haue said Donec oculi os mihi claudantur k c. ex literis 1. de spon Angl. Our law many times taketh the words 2 The commō law taketh conditions many times strictly of a condition strictly to preserue an estate A lease was made to one vpon conditiō that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the cōditiō is not brokē for a condition which goeth to defeat an estate must be taken strictly l 31. H. 8. 45. Dy. And 28. H. 8. the case was thus A lease for yeares was made by indenture the lessee did couenant and grant that if he his executors or assignes did alien that it shold be lawful to the lessor to reenter after he made his wife his executrix and dyed the woman tooke an other husband which aliened The first question was whether the wordes of the couenant abouesaid did make a cōdition And if it were a condition the 2. question was whether there were any breach of condition in the case Some held that there was no breach of condition because the husband was possessed of the tearme by acte of law is not an assignee no more then a tenant by the curtesie is or the land of a villaine But Browne and Shelley held that the husband was an assignee in law and that the land was subiect to the cōdition into whose hands soeuer it did come m 28. H. 8. 6. Dy. But lately in Ridgeleys case the condition was extēded by equity for the safegard of the party The case was thus A man was bound to another in a c. l. that he shold discharge the obligee saue him harmeles of all suits incumbrances against I. S. and after the said I. S. sued the obligee proceeded vnto iudgement wherefore the obligee brought an action of det vpon the obligation and the defendant pleaded non damnificatus est And Beamond Sergeant did maintayne the plea in his argument because that hee was not damnified in the eye of law vntill the goodes or the lande or the person of the plaintife were actually charged For before that time he was onely chargeable but not charged Sergeant Harris argued to the cōtrarie for he said that he was chargeable to the execution of the partie so not saued harmelesse two sorts of damages were held by Iustice Walmesley the one executorie the other executed executorie which a man may in future time sustayne Executed as if the land or the person shoulde bee in present execution And if the disseisee make a release to the disseisor and a straunger cancelleth the deede of release the disseisor may haue an action of trespasse against him and yet the disseisor doth continue possession and is not as yet actually damnified And Iustices saide that the land of the party was in some sort charged for none in such case would buy the land of the partie but onely vnder the value because of the iudgement executorie n 33. Eliz. Ridgeleys c. But wee haue a rule in our law that when a condition is to bee performed to a straunger it is to bee performed most strictly and if the condition bee performed at an other place this is not sufficient o 36. H. 6. 8. And 21. H. 6. it is said that if a man be bound that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s. rent for tearme of life and he hath three feoffees two of the feoffees cannot graunt this rent p 21. H. 6. 19. But 7. E. 4. it was affirmed in the kings bench that if a man were bound to make one a sure sufficient and lawfull estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not or lawfull or not he is excused of his bond and a like matter was in the common place the same terme and they were of the same opinion q 7. E. 4. 13. Nomomath I wold gladly be satisfied in this when a man maketh one his heire or executor 7 Diuision and if hee refuse to performe any thing that is comprised in his will then he willeth that I. S. shall bee his heire or executor and shall performe his will and shal seise his goods and enter into his lands post haereditatē aditam though the heyre or executor haue intermedled with the will and haue performed some thinges according to the intent of it Now if the Testatour die and the heire or executor haue perfourmed some thinges of the will but refuseth to perfourme other some and hath seised the goodes and entered into the landes of the partie deceased Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes or shall he still reteine part of the landes and goodes because he hath perfourmed part of the will Codicgn I. S. or the substitute of the Testatour 1. There may be a substitution of one heire after an other or of one executor after an other at the Ciuill Law is now by the will and breach of the the condition become directly the heire or executor to the Testatour And all the authoritie or interest of the fomer heire or executor is vtterlie determined frustrated and defeated r Insti de vulga substi §. quo casu 2 The heire at the ciuill Law must succedere in vniuersum ius defuncti for the authoritie or interest of the heire or executor by our Law may not be apporcioned but he must succedere in vniuersum ius defuncti ſ ff de verb. signif l. nihil aliud est haereditas et l. bonor eo tit And there is an other substitution in our Law which we call a reciprocall substitution and it is thus The Testatour saith I doe make S. and T. my sonnes within age my heires and
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
because he did not giue vnto him the moitie of the other fishe This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates whether shall the other estates depending bee totallie defeated by the breach of the condition And surelie our Law is that the breach of the condition shall defeat no estate but onelie that whereunto it is annexed For the case was 3. Mar. that a man deuised land to his wife vppon condition that shee should bring vp his eldest sonne the remainder to the second sonne The elder sonne entreth for the condition broken hee shall onelie defeate the estate of the wife And if the tenant for life and hee in the remainder ioine in a feoffement vppon condition that if such an acte be not done that the tenant for life shall reenter this doth not defeate the entire estate of the feoffee i 3. Mar. 125. Dy. And if a gift of land be made in taile the remainder to the right heires of the donee vppon condition that if hee alien in fee then the donour may enter if the donour enter for the condition broken the estate taile is onelie defeated k 11. H. 7. 6. 13. H. 7. 23. 10. H. 7. 11. So if a man lease land for life by deede indented the remainder ouer in fee rendring a rent with clause of reentrie for non payment by the tenant for life and to reteigne the land during his life If hee enter for the condition broken he shall haue the land onlie during the life of the tenant for life l 29. Ass pla 17. Nomomath I giue yee great thankes for the vnwearied continuance of your paines and though I bee in questioning at a non-plus yet I see your inuention and memorie are not grauelled nor dryed vp parched as it were with summers drought I praie you therefore let vs still conuerse together vnder one roofe within my walles there is no Sinon no Dauus no Momus but chast learning cabboned with frugall contentment that if God doe still vouchsafe the Moone-diall of this darksome life with the reflexe of his intellectuall illumined influence this triple-wheeled clocke may still be kept in motion by the diuine agilitie of his Lawfauouring spirit A TABLE OF THE Sections or Diuisions of the principall pointes matters and questions which are handled in euerie Dialogue The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations The 1. Diuision 1. THe originall of tithes is inquired of 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes The 2. Diuision 1 The originall of tithes is demonstrated to be by the law of God 2. God his deputies for the receipt of tithes are set downe 3. The heathens which knew not God had great regard of of paying tithes 4. Lucullus is specially commended for the paying of tithes 5. Camillus is likewise commended for his diligence in procuring tenth to be payed 6. The Romanes carefull in paying first fruits 3. Diuision 1 Whether Parsons ought to haue no more liuing then tithes 2. It is denyed by the Canonist that they ought to haue no more liuing 4. Diuision 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes 2. The ciuill lawe agreeth thereunto 3. By the common lawe a man may prescribe in paying a temporall recompence in lieu of tithe 5. Diuision 1 Two sortes of tithes are set downe by the Canonist some feudall some ecclesiasticall 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe 3. The king of Fraunce his edict touching tithes is sette downe 4 That by the Canon law where the question of tithes is facti and not iuris the examination thereof may belong to a laye iudge 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie yet it be longeth to an ecclesiasticall iudge by the Canon law 6. Diuision 1 The nature of feudall tithes is opened by the Canonist 2 Charles Martle is accused of Church-pillage 3. The Canonist telleth a strange tale of Charles Martle 4. It is thought of Nomomathes to bee but a fable 5. One of the ancient statutes of England is compared with the aforesaid edict of the king of Fraunce 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spirituall iudge 7. Where one parson may sue a spoliation against the other in the spirituall court 8. The executors may bee sued in the spirituall court 9. Of what trees tithes may bee demaunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell 7. Diuision 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes 8. Diuision 8 The degrees which the Canon law obserueth in punishing offences in the clergie 2. Two sorts of excommunication sette downe by the Canonist 3 The compulsorie statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudall tithes 9. Diuision 1 The Ordinarie ex officio may cite men to pay tythes 10. Diuision 1 Two sortes of heretickes formatus and suspectus 2. In what cause the wife and children of heretickes shall enioy their landes 3. Heretickes by the ciuill law not punishable by fire 4. The Canonist poasteth the punishment of heretickes to the common law 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law 11. Diuision 1 What thinges may bee tearmed Church-land by the ciuill law 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe 3. The right of gleabe lande is triable by the common law 4. Lands deuised not subiect to the iurisdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court 12. Diuision 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia 2. The diuers significations of the word ecclesia at the common lawe 3. The interest of the Parson patron and Ordinarie in the Church is shewed 4. What thinges doe make a patron by the Canon law 5. Ius patronatus is one of the proper obiects of the common law 6. That an aduowson lieth in tenure 13. Diuision 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiastical Court 2. Periurie in an ecclesiasticall court punishable in an eclesiasticall court 3. Lindwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall law is not admitted 4 The barrister disproueth the generall citations of Bishoppes ad Sacramenta praestanda by the common lawe 5. Nomomath encountreth him in this point 6. The ciuill law agreeth with the Canon in matter
sort day but absolutely fully it is not because it is destitute bereft of the clere light of the sunne knowledge which relyeth vpon the sound foundation of things knowne is answerable to the day which is full of cleare and perfite light Now as opinion is more like to ignorance then to knowledge so euen-tide is more like to night whereupon ensueth that twilight must needs bee more like vnto night but now suppose that a paiment of money is assumed to be made within the compasse of such a day whether is it to be intended of the Romaine day or some other ciuill day or the natural day which is wholly in vse amongst the Venetians for in Venice the clocke is told foure and twenty times for the day and it is meete that this question should be decyded by the custome of each countrie Now come we to speake of howers which to the Romaines were not in vse during the space of three hundred yeares therefore in their lawes of the twelue tables times are otherwise set downe namely Sunne-rise Noone and Sunsett the first second third and fourth watch plenum forum ful market boum solutio the time of the loosing of the oxen from the plough accensa lumina candle light and such like names But to know the proper vse of these howers that are fitte to bee obserued which Paulus the Ciuilian noteth Cuiusque diei maior pars est horarum septem primarum diei non supremarum he meaneth not that there should be fourteene howers of the day because it is manifest that there are but twelue but his meaning is that the greatest parte of the day is spent in the first seuen howers if you accompt from the first hower to the seuenth inclusiuè as namelye from sixe a clocke in the morning to twelue a clocke for then there will remayne to the other parte of the day but fiue howers And the former parte of the day is not onely the better for the number of howers but because men in these howers are more apt for the dispatch of their busines Wherefore Nonius h Noni lib 9. de compendiosa doctrin vpon these wordes of Virgill Nunc adeo melior quoniam pars acta diei est commenteth thus Our youth is the best part of our age and so Maro wisely calleth the first part of the day the better part as being the youth of the day for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone yet these howers will not be so conuenient for perfitting of busines as the seauen abouesaid and therfore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue to which an other hath gon for a groat from six to twelue is not altogether vniust because in the afternoone men be more vnapt and more vnable to trauaile The last and least part of time if it be any part of time is a moment which may better be imagined then described for it is as swift as a man can imagin and what is more swift then imagination It hath receyued a definition somewhat obscure of Plato Momentum est quod nullo prorsus in tempore est i Pla. in Parmen It is taken by some to be punctum temporis for as a mathematicall point is that cuius nulla est pars so a moment is a point of time cuius nulla est pars yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis from a moment when he saith Quod momentum aut immo quod temporis punctum aut beneficio sterile aut vacuum laude k Plini in Panegyr the existence of a moment cannot possibly be discerned and therfore is not so much as the twinckling of an eye The vse of a moment is more fit for the operation of Law then for the act of a man for the Law doth operate without compasse of time in an instant but man neuer for euery act of man must haue space longer or shorter according to the qualitie of the work But the nature of such instants or moments which the Law doth imagin is such so sodaine vt omnem respuant moram as in the Ciuill Law is well noted l l. 23. §. vlt. D. de adult And the reason is because in the operation of Law that which it doth imagin to be done is dicto citius presently and without delay done m l. in suis D. de lib. et post and therefore it is commonly said it is done ipso iure or it is said ipso iure or ipso facto But this course can not be obserued in the actions of men who can not doe any thing without space of time because their act is alwayes continuate and therefore must needes be done continuo tempore And whereas the act of man is mixt with the act of Law though in regard of the same thing the act of the Law be momentary yet the act of man must needes beare some delay Those thinges by the ciuill Law which are taken from enemies doe incontinent become his who doth seise and take them n l. 5. §. vlt. de acquir re â—o The Law doth giue them vnto him presently but yet there must be a time to take them that the Law may giue them And so if when a Lease is made to A. of land for the terme of the life of B and A. dieth C. entreth into the land and inioyeth it as an occupant the Law because it wil not haue the freehold in suspence doth imagin that it was presently and immediatly in C. after the death of A and that he entred presently but if we respect this entrie as the act of man we must needes imagin that he had some time to enter into the land and by his entrie which is an act consisting of motion to gaine the freehold It remaineth now according to our purpose that after this discourse of the partes of time some thing should be spoken of the differences of time which I will handle verie briefely for the matters precedent haue giuen some light thereunto and they are not of themselues verie obscure And first to speak of the time which we cal a continuall time that in the ciuill Law is sometime taken for as much as during a mans life o l. 1. §. pe de off pre vrb l. 2. C. de his qui latr and therfore he that hath purchased land for his life is tearmed Perpetuarius p Alci lib. 1. parer g. c. 37. and in the common Law these wordes a touts iours make but an estate for life q Littlet lib. 1. cap. 1. fo 1. yet in proper sense it extendeth vnto the last mark of time A long or short time is distinguished either by the measure of the parts of time abouesaid or by the measure of the Law which is the discretion of the Iudge The differeÌ„ce which is made of auncient
lands and tenementes and so it is of an attainder by confession i Parkins Graunts 6. But M. Stamford being better aduised saith that as soone as any of the offences aforesaid are committed hee is restrained to make a gift or any other alienation of his lande and if he doe it shall presently bee made void by his attainder and it is not materiall whether the attainder be by outlawrie or verdict and this is agreeable to the booke of 38. E. 3. fol. 37. k Stamford fol. lib. 3. 31. â— but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent and forfeiture by attainder by verdict shall haue relation to the verdict l Stamford 192. The third Chapter That the worthinesse of blood hath beene principally respected of all nations THe diuision of inheritances in stirpes in capita hath made great diuision in diuerse common weales yet in all of them the worthinesse of bloud hath beene regarded By the Romane law the sonne of the elder sonne who is dead shall equally succeede in the inheritance with the second sonne And whereas in Germanie there was a contention betwixt the vncles and nephewes of the right of inheritances and for the deciding of it the Emperour Otto the first did cause a Parliament or generall assemblie of estates to be held for the disceptation and deciding of this doubt When after much busines and argument no determination could be had the matter was ordeined to be tried by single combate an vsuall thing in these daies for it was about the yeare of the incarnation of our Sauiour nine hundred fortie and two a Witichindus lib. 2. histor 2. Sigebert in chronic Ottonis 1. and a formall triall referred to God when mans wit was at a nonplus But in this case that part ouercame which did accompt the sonnes of elder sonnes as sonnes and therefore it was ratified by Law that they should equally diuide the inheritance with their vncles Amongest other nations diuers contentions haue risen about this matter for when Eunomus the King of the Lacedemonians had two sonnes Polydectes the elder and Lycurgus the yonger and Polydectes deceased leauing no sonne lyuing at the time of his death and therefore Eunomus being dead the septer of that kingdome came to the handes of Lycurgus afterward when Polydectes his widow had brought forth a sonne Lycurgus did willingly and readilie yeeld to him the septer b Plut. in vit Lycurg Iustin lib. hist 3. Which act of Lycurgus agreeth fully with our Law whereby it is ruled that if a man haue a sonne and a daughter and the sonne purchaseth land and dyeth and the daughter entreth and after the father begetteth an other sonne of the same wife this sonne shall haue the land c 19. H. 6. 6. So if a man enfeoffe an other vpon condition and the condition is broken and the feoffor dyeth without issue his wife priuement enseint and the brother of the feoffor entreth for the condition broken and after a sonne is borne he shall auoide the possession of his vncle may lawfully claime the inheritance d 9. H. 7. 25. And it is likewise said that after two or more discents the heire afterward borne claiming by discent may enter into the land but he shall not haue a writ of Accompt for the mesne profites nor any writ of Wast e 9. H. 6. 23. But in cases of purchase the Law taketh a difference and therfore it is said 5. E. 4. by Billing that if a man deuise land to a man and his heire and the deuisee dieth hauing issue a daughter his wife being priuement enseint with a sonne who is afterward borne the daughter shal reteine the land in perpetuum which the Court graunted f 5. E. 4. 6. And 9. H. 6. it is said that if a remainder cannot veste in any at the time when it falleth it shall not veste in him that is borne afterward where an other hath entred before g 9. H. 6. 23. 2. Eliz. 190. pla 18. But to retourne to the examination of this matter by historie Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead a controuersie sprung betwixt Areus the sonne of Acoratus the eldest sonne of Cleomenes who died before his father and Cleonymus the second sonne the vncle of Areus but by Senate-decree the kingdome was adiudged to Areus h Pausan lib. 3. And Polydore Virgill reporteth that king Edward the third being deceased Richard the second the sonne of his eldest sonne obteined the kingdome and was preferred before Iohn Edmund and Thomas the sonnes of king Edward i Polyd. virg in hist reg Angl. Paulus Aemilius an excellent writer of the matters of Fraunce likewise telleth that when Hanno had inuaded the kingdome and expulsed Erkenbalde the sonne of his elder brother this matter was brought into question in the ende Hanno was constrayned to laie aside armes and to stande to the iudgement of the Peeres who adiudged that Erkenbalde should haue the same power and interest in the kingdome which his father might haue had if he had suruiued k Paul Aemil. in tit Carol. Crass Neither will I denie that examples may be produced on the contrarie part as namelie the contention betwixt Artemenes and Xerxes for the kingdome of Persia for it is deliuered by Herodotus l Herodot lib. 7. Iustin m Iustinus lib. 11. Plutarch n Plut. in Artaxerx that a controuersie beeing raysed in the kingdome of Persia betwixt Artabazanes as Herodotus Artemenes as Iustinus calleth him and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia Demaratus was at the same time there who was driuen and expulsed out of the kingdome of Sparta and he signified vnto them that the Law and custome of the Spartanes was that the sonne that was borne after the father had attained to the kingdome was to be preferred before the elder brother who was borne before for which cause the kingdome was adiudged to Xerxes the yonger sonne who was borne of Darius being king whereas the other was begotten of him being a priuate man But this iudgement was after reuersed For when after the death of Darius the same controuersie was handled betwixt Arsica begotten of Darius being a priuate man and Cyrus being borne of him after his aduauncement to the kingdome and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes and his brother the Persians notwithstanding the former iudgement did now adiudge the kingdome to Arsica o Plut. in vit Artaxerx Neither am I moued though in the contention for the Dukedome of Millayne betwixt Lodwike and Galeatius bretheren whereof the one was borne before his father obteined the Dukedome the other after the contrarie were determined for Law p Guicciard lib. 1. histor For by the most examples of euery
common weale and by the continuall practise of nations most ciuill which onely course I obserue in this discourse the right of Primogeniture or elder-brothership is fenced supported and defended against this last decree of the Millanasses and that first of the Persians For Herod the king of the Iewes did preferre in the succession of his kingdome Antipater who was borne before he was king before Alexander and Aristobulus begotten after he was king q Ioseph lib. antiquit 16. And many yeares after in Hungarie Bela their king being dead Geysa being borne when he was a priuate man was inuested with the Crowne r Fl. Blondus Decad. 2. lib. 6. Micha Ritius lib. de regi Hungar. 2. and before that Otto the first could be setled in the Empire of Rome his brother Henry made a quarrell to it because he was borne when his father was Emperor But the matter discending to armes and battaile victorie did adiudge the Empire to Otto ſ Sigebert in Chron. Wherefore two or more contrarie examples are not in this case to be regarded As that of Genzericus the king of the Vandales who made his testament in this forme or rather this Law in forme of his testament Si Rex moritur qui ei genere proximus et natu maximus erit regni haeres esto for Procopius noteth his great age when he made this Law and it may be that others will note him for his dotage if he did amisse for his discretion if he did it to preuent a daunger t Procop. lib. de bel Vandal 3. So when Charles the king of Sicely died he had two sonnes Charles Martell and Robert Martellus died liuing his father but leauing a sonne whereupon the Lawyers had plentiful matter of disputation offered vnto them whether the sonnes sonne should be preferred before the vncle in the possession of his graundfather but by the Popes meanes Robert obteyned the kingdome But the Emperour Fredericke reuersed this sentence and the Pope cancelled his rescriptr. But D. Bartolus giueth this reason of the Popes doinges because the kingdome of Sicilia was one of the fees of the Church of Rome so that it did not belong to Robert by any lawfull succession but by the graunt and inuestiture of the Lord of the fee x Barto in Arth. post fratr C. de legit haered Neither is it materiall that the Nomades Barbarians did preferre the yonger bretherne before the children of the elder bretherne as Strabo reporteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Strabo lib. 16. yet I will graunt that in the succession of regall dignities the worthines of bloud is lesse to bee respected then in the succession of common inheritances because in that case the commoditie of the subiectes and the abilitie of them that are to succeede is politikelie to bee respected And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes the profite peace and safetie of the same is more to be heeded quà m sanguinis series the course of bloud b Luc. de Pen. in 5. nepot C. qui num lib. 10. et in l. 1. C. de lyro lib. 12. Bald. in c. 1. de feud March And Roboam preferred Abias his yonger sonne before his elder bretherne in the succession of his kingdome c 2 paralip 11 And Salomon the yonger brother d 2. Reg. 1. was preferred before his elder bretherne But this must be done warilie and by the warrant of a good conscience otherwise it can neyther please God nor profite man least a king doe by his choise preiudice his subiectes as Micipsa did by the adoption of Iugurtha e Salust in bel Iugurth But the reasons are manie and forceable wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected First Ius quod personae inest per modum substantiae est ab ea inseparabile et in nullo alio subiecto potest verificari f Arg. l. for did C. de excus mun lib. 10. But ius primogeniturae is in the eldest sonne or in his issue per modum substantiae therefore it is inseparable from him and cannot extende to any other Secondly the aucthoritie of Vlpian prooueth it affirming that hee is a patritian who is borne before his father was made a Senator as well as he who is borne after that hee is possessed of the Senatorie calling g l. Senator S. D. de Senat. Thirdly it is apparant by manie places in the feudall Law that sonnes and nephewes may succeede in the fees and inheritances of Dukes Marquesses and Earles and so it is of the inferiour and vulgar sort of men And it is well said of D. Hotoman Ius sanguinis quod in legitimis successionibus spectatur ipso natiuitatis tempore quaesitum est Fourthly it should bee against all Lawes proximitatis graduum that they which are in a more remote degree the worthines of consanguinitie should be preferred before them that are in a neerer degree Fifthly because Primogenitura is an inseparable incident to the eldest sonne and whatsoeuer is claymed by this must bee claymed by the person of the eldest sonne and none can succeede in the place of the first begotten as first begotten because there cannot be two first begotten But no Law more respecteth the worthines of bloud then the common Law which preferreth the brother before the sister in case of discent the elder brother before the yonger whereas the middle brother purchaseth land the sister before the vncle and the vncle before the cosin h Littlet tit Fee simple and all these particular prerogatiues of kinred Mast. Littleton windeth vp as it were in one clew when he saith that when a man purchaseth land in fee simple and dieth without issue euery one that is his next cosin collaterall for default of issue may inherite and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab. in Cleeres case that in a collaterall discent from any which purchaseth landes and tenements and dyeth without issue the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree as the brother of the graundfather of the fathers side and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues And so the brother of the great graundfather of the fathers side namely the brother of the father of the father of the father of the purchasour and his issues bee they male or female shall bee preferred before the mother of the great grandmother namely the brother of the mother of the father of the father of the purchasor and his issues For the female sexe is more base then the male in lawe And it was likewise agreede that if the purchasor dyed without issue and hath not any heire of the
shall hold iurisdiction by the common law plaintife it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard the spirituall Court onely should hold iurisdiction a 13. R. 2. iurisdict 19. And an assise likewise was brought of a house against a Parson who pleaded in bar that he was Parson of P. and that the house demanded was parcel of his said church from time out of mind and that there was sepulture of deade persons there wherefore Perseis opinion was that the court temporall ought not to holde plea in this case b 44. Ass pl. 8. but if 3 The right of gleabe land is triable by the common law the Parson of A. and the Parson of B. do contend in suite for a parcell of lande the one claiming it to bee his gleabe the other his it hath beene held in this case that the spirituall court shall not hold iurisdiction c 19. H. 6. 20. And Bracton likewise affirmeth that a thing giuen in frankalmoigne remaineth laye fee d Bract. li. 5. c. 16. and by 4 Lands deuised not subiect to the iurisdiction of the ecclesiasticall court our lawe a prohibition lyeth for chaunteries chappels prebendes and vicarages e Fitzh N. B. 40. G. 35. b. and if a man deuise lands or tenements deuisable the partie to whome the deuise is made shall not sue in court spirituall and if he doe the other shall haue a prohibition and therefore as Bracton saith the deuisee may enter without the 5 Suites for chattels reall must be in the spiritual court licence of the executor f Bracton vbi supr Perk. tit deuis but if a deuise bee made of goods and chattels reall as of a lease for tearme of yeares or of a warde there the suite must be in the spirituall court g Fitzh N. B. 43. G. and if a termor of certaine land doe deuise his croppe and dye the spirituall court shall hold plea for this croppe h 8. H. 3. prohibit 19. and if a man deuise corne or other goods to a man and a straunger will not suffer the executor to performe the testament in this point they may sue the stranger hereupon in the spirituall court but if a man take goods deuised out of the possession of the executors the law is otherwise for then they shal haue an action of trespasse at the common lawe i 4. H. 3. prohibit 28. but if a man sue another in the spirituall court for a rent reserued vpon a lease of tithes or offerings a prohibition wil lie in such case because it is a laye rent k 44. E. 3. 32 Nomomath Let me now know Canonol whē 12. Diuision a man graunteth to one ius patronatus of the church of Dale if this title bee controuersed in question whether shall the ecclesiasticall court or temporall hold iurisdiction Canonolog Surely I thinke it is determinable 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia in the ecclesiastical court because the right of patronage may passe by the word ecclesia as if a man said vnto me dono tibi ecclesiam S. Petri in Dale the aduowson of the church doeth passe l c. quod autem de iur patronat Anglonomop The word ecclesia is otherwise taken in our law for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebrated m 34. E. 1. quar impedit 187. And M. Fitzherbert saith that by this word ecclesia is meant onely a parsonage n Fitzh N. B. 32. G. and therefore if a presentment bemade to a chappell as to a church by the name of this word ecclesia this doth change and metamorphize the nature of it and maketh 2 The diuers significations of the word ecclesia at the common law it presently a Church o 17. E. 3. 58. 47. E. 3. 5. 21 13. H. 4. Briefe 870. and because by this word church is meant a church parochial therfore if a man haue an oratory or chappel within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chapleine for life to sing there yet hee hath not by this made it a Church but it remaineth still an oratorie and his freehold for here was no effectuall operation of lawe to force such a chaunge p 36. E. 3. 13. But if a writte bee brought of a Church in Dale and in Dale there bee both a Church and a Chappell yet the writte shall stand good for the reason aboue shewed q 20. E. 3. Brief 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33. and sometime it signifieth the Church which consisteth of stones walles and roofe r 8. H. 5. 4. Rolf. and sometimes the demesnes and profits of the benefice ſ 45. E. 3. 4. but verie seldome if at any time it is vsed for ius patronatus But if as you say the patronage shold passe by these words dono ecclesiam in all reasonable vnderstanding the patronage is to be distinguished frō the Church or benefice And therefore Pollard 12. H. 8. t 12. H. 8. 7. Prior. de Hunting c. doth well 3 The interest of the patron parson and ordinarie in the church is shewed distinguish the interest of the parson patron ordinarie as in a seuerall thing the parson saith hee hath a spirituall possession in the church the ordinarie hath charge of the church to see the cure serued the patron ius presentandi to the church which being well weied doth clearely bewray the imbecilitie in consequence of your proposed argument Canonol neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case as I shall hereafter shewe Nomomath What say you of this matter Codign Codign Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious Canonolog It is so in deed but by that lawe ius patronatus is meerely spirituall and not temporall as Anglonomoph would perswade for it is wholly after a spirituall manner carried ordered for though the patronage do arise of three things the foundation the edifying and 4 What things do make a patron by the Canon lawe the endowment u 26. q. 7. filijs ca. quicunque 18. q. 2. Abbat according to the ancient saying patronum faciunt dos aedificatio fundus yet it is no temporall thing because though a man bee condemned and his goods bee confiscated yet hee shall not lose his right of presenting x Gl. est in ver subiect § rursus in fi c. pastor al. in Cle. de re iudi neyther is this repugnant that to a Church parochiall hee may present to a Church
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
any wayne ouer such a bridge being fraught with carriage shall paie iiij d' and the partie causeth all the thinges in the wayne when he commeth to the bridge to be caried ouer the bridge on mens backes here is no defraudation of the Law But if he should giue iiij pence for the cariage ouer the bridge but not currant money now the Law should be defrauded e Io. in §. penult Insti de â—dop And when a man is preiudiced by the fraudulent dealing of an other man he may by our Law haue an action against him which is called actio doli an action of Deceit Canonolog Indeede the difference of Dolus is vsed likewise in our Law And we haue a rule of that which you haue tearmed dolum bonum 3. The same difference the common Law obserueth Frangenti fidem fides frangatur eidem f 23. q. 1. noli existimare C. de pac l. cum proponas in glo Accur And likewise an example of it vsed in our law namelie of Salomon who did vse such cunning betwixt the two harlots in searching out who was the true and naturall mother of the child But the deceit which of you hath ben tearmed dolus malus is in our Law nomen reatus which it doth punish as being done against the Law for qui peccat non peccat de legis authoritate g 23. q. 4. qui peccat Anglonomoph That deceit which of ye both 4. Dolus malus punishable at the common Law by an action vpon the case or a writ of Deceit hath been tearmed dolus malus doth not in our Law escape punishment but for the more strong inhibiting and repressing of it it doth afforde a double remedie against such as endammage others by deceit namelie either a writ of Deceit or an Action vpon the case For if a man plaie with an other at dice and he hath false dice with which he plaieth and winneth the other mans money he that loseth his money in such sort may haue an Action vpon the case for this deceit And in other like cases an Action vpon the case or a writ of Deceit will lie at the pleasure and election of the plaintife And if I present one to a Church whereof I am Patron to the Ordinarie and one T. disturbeth me wherefore an other man purchaseth a Quare impedit in my name retournable in the Common place I not knowing thereof against the said T. and after causeth the writ to be abated or me to be nonsuit in the action I may haue a writ of Deceit against him h 5. 5. E. 3. Quare impedit 37. 20. H. 6. 20. Fitzh nat bro. 96. A. And in euery case an action vpon the case is maintenable against him which sueth an originall in the name of the plaintife against his will i 7. H. 6. 45. So if a man forge a statute merchant in my name sue a Capias therupon whereby I am arrested and had in execution I may haue a writ of Deceit against him that forged it k 19. H. 6. 44. 58. 34. H. 6. 19. Fitzh Nat. be 96. B. So if the Warden of an Infant vouch one by couin who is not sufficient or pleadeth some bad plea wheras he might haue pleaded a better plea the Infant shall haue a writ of Deceit against him and shall recouer the full value in dammages l 9. E. 4. 34. And 11. H. 6. a writ of Deceit was brought against an Attourney for acknowledging a satisfaction whereas his master was not in truth satisfied m 11. H. 6. 34. And in a Praecipe quod reddat if the Shirife retorne the tenant of the land to be summoned whereas in truth he was neuer summoned whereupon the tenant loseth by default vpon the Graund cape retourned Now the tenant may haue a writ of Deceit against him that recouered and against the Shirife for his false retourne n Fitzh Nat. bre 97. C. But the writ of Deceit in this case doth not determine the right of the land but doth only defeat the iudgement o 35. H. 6. 44. 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18. And 5. E. 4. is that no dammages in this case shall be recouered against the Shirife but he shall be onelie fined p 5. E. 4. 49. And if a man recouer in a writ of Wast by default whereas the defendant was neuer summoned the defendant in this case may haue a writ of Deceit q 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. Disceit 56. 19. E. 3. Disceit 3. And if a man bargaine with an other and assume vpon consideration to enfeoffe him of certaine land and he enfeoffeth an other he to whom the assumpsit was made may haue a writ of Deceit r 20. H. 6. 36. 16. E. 4. 9. Fitzh Nat. br 98. F. or an Action vpon the case at his pleasure Å¿ 3. H. 7. 14. 2. H 7. 11. And if one sell to an other a Horse which he knoweth to haue a secreat disease in his bodie or selleth certaine quarters of Graine which is full of grauell a writ of Deceit lieth t 20. H. 6. 36. So 13. H. 4. a writ of Deceit was brought for selling a certaine quantitie of wooll and warranting it to be 50. sackes whereas it wanted of that measure the defendant pleaded in barre that it was weyed before the sale and that the seruants of the plaintife being his factors did accepr it and caried it beyond the sea whereupon the plaintife demurred u 13. H. 4. 1. And if a man lose his land by default in a Praecipe quod reddat whereas he was neuer summoned and die his heire may haue an action of Deceit and shall haue restitution of the land uu 8. H. 6. 5. per Rolfe 15. E. 3. Disceit 43. 18. R. 2. Disceit 50. Fitzh Nat. bre 98. Q. And 1. E. 3. in the booke of Assises it is said that if a recouerie in such case be had against the father by default whereas in truth the father was dead at the time of the recouerie the heire may auoide this by writ of Disceit or Error a 1. Ass p. 16. And whereas there be two tenants for life the remainder to the heires of one of them and they both lose by default being not summoned and the tenant for life dieth the suruiuor shall haue a writ of Disceit for the whole Otherwise it had been if the recouerie had been against the tenant for life onelie by default b 8. E. 3. Disceit 7. Nomomath You haue sufficientlie discussed 7. Diuision the point of deceit Now I would craue your opinions of an other matter Suppose that a man by slaunderous and opprobrious speeches is impeached and his good name impaired this being but a verball iniurie whether doe your Lawes inflict punishment vpon such
slaunder and diffamation which blemisheth the good name of others it detesteth and vtterly disfauoureth condemneth punisheth as a stepdame vnto rancor violent speeches the abortiue children of malice Wherefore an action vpon the case will lye at our law for calling the plaintife theefe Å¿ 27. H. 8. 22. and for calling the pr a false and periured man t 28. H. 8. Br. Acti sur le case 3. 30. H. 8. Br. Acti sur le case 104. so an action vpon the case lyeth for calling the pr false iustice of peace u 4. E. 6. Br. Acti sur le case 112. But to publish one for his villaine who in truth is his villain is no slander nor actionable x 2. E. 4. 5. nor to publish one to be a bastard who is in deed a bastard if the defendant doe make title to the bastardes lande and did therefore tearme him bastard that the matter might bee produced into question and triall y 25. Eliz. Baâ—isters case Nomomath Enough of this wee will passe now to other matters The third Dialogue Of Dettes NOmomath I pray you let me know 1 Diuision Codicgnostes all the waies meanes wherby one man may become indebted to another so that remedie may be had by processe of law for the debt Codign A dette may grow by writing or especialtie 1 Dette may grow by writing or especialtie as when the dettor confesseth himselfe to bee obliged and bound to his creditor and such bond or obligation may be by deede indented sub eadem forma verborum by mutuall deliuerie it becommeth the deed of them both a l. seruuÌ„ filij § eum qui chirographum ff de leg 1. Such a kind of writing wee call instrumentum 2 An obligation may be by deed indented at the ciuill law priuatum because it is done in the name and by the hand of a priuate man not in the name of any king or prince and this kind of instrument ought to haue the subscription of three witnesses b C. de proba l. but there is a priuate instrument of more solemnity which is called of 3 What instrumentum garraÌ„tigiae is at the ciuill law vs instrumentum garrantigiae an instrument of warrantie vpon which a man shall haue present execution as if it do specifie that one man is indebted to another this being presently exhibited in place of iudgement the iudge ought presently to awarde execution c ff de re iudi and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law d c. ex liter in glo 2. de fid instrument and there bee in our law three sorts of bonds Naturalis Ciuilis Praetoria Naturalis 4 Three sortes of bonds by the ciuill law is when as by mutuall contract one of the parties becommeth mutually bounde to the other Ciuilis is that which is made in forme of law whereof we haue aboue spoken wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money and bindeth himselfe for the payment of the saide summe Praetoria which is deuised and conceiued of the Pretor and Iudge in precise termes specifijng the debt e Insti de obli in prin Likewise debt may accrue 5 Dette may grow by way of contract vnto one by way of contract which is nothing els but the coÌ„sent of 2. persons for a thing to be done or giuen by the one to the other and it is on both sides obligatorious f de pac l. 1. §. 1. for if two doe consent in this true proposition Titius est homo or in this false assertion Titius est Asinus yet this is no contract because non vtrobique obligat f Gazalup verb. pactum for if the wordes or acte be obligatorie then the contract is obligatorie as contrariwise if the words or acte tend to acquittance then the contract is nothing els but an acquittall as if the creditor doe redeliuer the writing obligatorie vnto his dettor this is an acquittance in lawe for otherwise the redeliuerie should worke nothing g ff de pac l. labeo but if the creditor should redeliuer a pledge vnto the dettor this will not amount to any acquitall or release of the dette because the redeliuerie in that case may haue an other effect namely the vse of the pledge for a certaine time h l. sequent ff eo ti And if the instrument or especialtie of the dette be come to the hands of the dettor the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance i l. si chirograph ff de pig but this must be limited with this restreint if the dettor be a meere stranger in facto vnto the creditor but if he be his seruant or one of his familie conuersing in house with him then the intendment will bee otherwise for then the law will presume that he might easily come by the bond without the priuitie of the creditor k l. vnica §. ille C. de lati li. tol Canonol I haue not at any time obserued any thing in our lawe which maketh head against 6 The canon law agreeth with the ciuill in matters of bonds or dettes these determinations of lawe by you mentioned Anglonomoph Our law with some of these assertions fully agreeth and from some flatly disagreeth as I meane to manifest by examining 7 Dette may grow by contract by the common law in order the particulars of Codicgnostes his speech Dettes with vs may grow many waies and euerie way an action of dette will lye for it may grow by contract as Codicgnost hath auowched For if the husband sell trees growing vpon the land of his wife and the wife dieth before they be cut downe yet the husband may maintaine an action of dette so it is of a vendition by the tenant in taile so where a man hath a horse by wrong and selleth him to another for a certaine summe of money and before the deliuerie of the horse he dyeth or the owner taketh him away yet an action of dette lyeth vpon the vendition l 18. E. 4. 6. So if a man sell ten acres of land to another for ten pound and after he will make no assurance of the land yet he may maintain an action of dette for the money and the other is put to his action vpon the case but if it bee agreed that the assurance shall be made before a certaine day and the ten pound to be payed vpon the perfecting of the assurance then the lawe is otherwise For if hee make not the assurance before the day but after hee shall not haue an action of dette for the ten pound m 22. H. 6. 50. ê‘ Newt But if a tailor doe make a garment for mee if we bee
part of the father that the land shall discend to the next heire of the parte of the mother that is to the race of the heyre of the males of whence the mother is discended rather then to others and in this case of Clere because the bloud which was betwixt the vncle of the part of the mother of the heire and the heire himselfe came immediatly by the womā but the bloud which was betwixt the cosin germane of the fathers side him though it came originally from the woman namely the grandmother yet it is deriued to the heire by the males so that the dignitie of the bloud doth surprise and excell the proximitie of the degree therefore it was adiudged that the cosin should haue the land i 15. Eliz. comm cleres case 442. The fourth Chapter That in making title by prescription and continuance of time immemoriall all nations haue consented OF all worldly thinges time is most puissant for it endeth some things quickly some things once and at last some things it preserueth some things it continueth vnto the end of the world and the force of time is pretily described in these poems Res omnes aeurum chalibem deglutio ferrum stagna lacus fontes ebibo tum fluuios Tabida consumit lignum lapidesque vetustas nullaquè res maius tempore robur habet If by the course of nature time be such an incroacher vpon other things then surely arte law doth imitate nature which giue vnto it such power and authoritie as to chaunge to raise to alter to defeat to strengthen and to establish titles neither doth the law of nations attend the strict circumstances of the ciuil or common law in which these two lawes doe square for by the ciuill lawe there is required iust title which the common law requireth not and bona fides a Gl. si c. illud de prescrip which the common law requireth not and continuall possession which the common lawe onely requireth Prescription was first brought in that there might be a certainty of titles and peaceable possession without contradiction for a long time might turne to a right wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio praescriptio vt sit aliquis litium finis b b. lib. 1. de vsucap whereupon that speech of the Lacedemonians in Isocrates is grounded Wee holde this lande giuen vnto vs by the posteritie of Hercules confirmed by the Delphicke Oracle and the inhabitantes of it being ouercome of vs heere note a triple title in showe and yet all these in effect but a prescription yee knowe well that all possessions eyther priuate or publike to bee confirmed by prescription of long time we haue held Messana more then foure hundred yeares c Isocra in Arch. And so Iepthe did pleade prescription against the Ammonites d Iudic. c. 11. This land said he haue wee possest three hundred yeares The French maintaine their title of Fraunce onely by prescription as Bodinus confesseth dd Bodin lib. de repub for conquered it was by king Edward the third that happie triumphant Monarch assured to King Henry the fifth and his heires e Graft in H. 5 not to Queene Katherine and her heyres f Pet. Mar. comm in lib. iud And some Diuines holde for others doe oppose themselues against this lawe of prescription g Aug. de te ser 105. Epiphan and obserue that the Iewes neuer made question of the title of their Semi because the Cananites did defend themselues by the prescription of 500. yeares wherefore Artabanus the Parthian king did as Tacitus sayeth Per vaniloquentiam vainely demaund of Tiberius the territories possessions of the Macedonians hauing bin h Tacit ann li. 6 a long time possest of Cyrus and Alexander And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares i Ioui 30. 34. But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foundation of their Monarchie vnto the conquest of Alexander Magnus of Constantine and his sonne and of Alexander Seuerus k Herodia li. 6. zon Ammi lib. 17. as if the auncient inhabitants of Pannonia should now claime Hungarie which the Hunnes did conquer name and to this day keepe and vaine was the quarrell which Masinissa made to the Carthaginians lande l Liui. lib. 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioyed which was no more then coulde bee compassed by the hyde of an Oxe being curt into thonges for they had possest these landes almost seauen hundred yeares likewise weake was the title which Antiochus the great pretended against the Aetolians and the Ionians because these people were once subiect vnto his auncestors hee is well confuted of the Romanes by the lawe of prescription that though his great grandfather did atchiue these cities by warre yet his grandfather and father neuer enioyed them but the cities enioyed their libertie There be some interpreters of the lawe which thinke the king of Fraunce by prescription to be exempted from the Emperours subiection m Fulg. Sacc lib. 1. C. tit 1. against whom rather adulatoriously then aptly Alciat replyeth that no prescription of time wil hold place against the Empire n Alciat lib. 5. de iust for that is not true in a prescription of time which is immemoriall that is when no man as it may be commonly beleeued hath eyther seene or heard the contrary and this by the ciuill law is the space of one hundred yeares o Alexan. 5. Cons 16. Alciat 3. cons 24. But here before I wil grant that such prescription will hold against a king or an Emperor this is onely in such case where neyther possession hath beene had nor clayme made against the said king or Emperor for if claime only haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce and beare in their scutchions the ensignes and armes of that kingdome and so keep the ciuil possession of that kingdome though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile but in a case of a common person prescription will hardly run against the prince Therefore it hath beene held in our bookes that if the kinges tenant in Capite bee seised of an aduowson and the church happeneth voide and hee dyeth and the sixe monethes doe passe nay suppose sixe score yeares doe passe p 14. H. 7. fol. 22. then an office is found the king shal haue the presentment notwithstanding the laps before the office But if the question be asked whether the ordinary may present by laps against the king and if he may not how the cure shall bee serued in the meane time