l. legatum ff de annu lega because the worde vntill doeth signifie in this case a limitation And though there ought to be a multiplcation of paiments yet there is a limitation ad tempus nubēdi that afterward the paiment shall not be due but if a mā deuise to his daughter his lands which he bought of Cornelius vntill she marie this signifieth not a yerely legacie because subiect a materia non patitur vt sit multiplicabile But it onely signifieth an extinction of the legacie whē the mariage is accomplished For if a man deuise his land in Dale to A. vntill he be Shirife of London as soone as he is Shirife of London the legacie is determined and immediatlie reuerteth to the heire ſ L. fi C. de leg For as it is in the power of the Testatour to make the legacie begin at a certaine time so likewise it is in his power to make it end at a certaine time Nomomath You haue put good and perspicuous diuersities betwixt a condition and a limitation I pray you Anglonomoph shew what your Law determineth of this difference Anglonomoph The verie same difference is 3. A difference betwixt a limitation and condition at the common Law in our Law which by cases shall be explaned A man graunteth to an other his manour of B. so that he paie 10. li. yearely to the lessour during the life of the lessour and if the said rent be behind that then it shall be lawfull for the lessour to distraine for it in the lessees manour of S. the lessour hath a franktenement in the rent sub modo depending vpon the will of the lessee and the lessour and there is a limitation implied by Law though not verbally expressed t 3. E. 3. 15. Assise 172. So if a man make a Lease to one for life paying the first six yeares 3. quarters of corne and if he will hold it longer a C. s. the word If in this case maketh but a limitation u 15. E. 3. Execution 63. So if a rent of 5. pound be graunted to I. as long as the grauntour his heires or assignes shall hold the manour of W. this was adiudged to be a freehold in the grauntee but yet with a limitation uu 10. Ass pla 8. Br. Estates 31. as long as the grauntour should hold the manour of W. So if a man graunt a common in his land in Dale when he putteth in his beastes or graunteth an estouer of Wood when he commeth to his manour of D. the grauntee hath a freehold but qualified with certaine limitations a 17. Ass pla 7. So it is if the king graunt an office to I. S. donec bene fideliter se gesserit b 3. Ass pla 9. et 6. So if land be leased to one quamdiu se bene gesserit c 37. H. 6. 29. So if a man deuise his land to his eldest sonne in taile with seuerall remainders in taile and that the partie morgaging incumbring entangling or aliening the land shall be clearelie discharged excluded and dismissed touching the intaile and the conueyance of the intaile shal be of no force vnto him this is not a condition but a limitation for if it were a condition the right heire might enter for the breach and defeat all the meane remainders in taile which is not consonant to the intent of the Deuisour d 13. et 14. Eliz. Com̄ Newyses c. 403. And whereas you haue said that a man by way of limitation may deuise money to be paied out of his chest or coffer and if there be no money in the chest or coffer there is no money due our Law dealeth 4. The common Law is more ample and large then the Ciuil law in matter of limitation more amplie and beneficially in like cases For if a man graunt to me an annuitie of x. li. to receiue out of his coffers if he haue neither coffers nor money in thē yet his person shal be charged with the annuitie e Fitzh Nat. bre 152. A. 9. H. 6. 17. because the graunt it selfe induceth a charge vpon the grauntour Yet an annuitie may be graunted with a limitation as if an annuity be granted to take at euery time as often as the grauntour shall come to his manour of S. or as often as the grauntee shall come to the house of the grauntour f 14. E. 4. 4. So if I graunt an annuitie of x. li. out of my land in Dale and I haue no land in Dale this graunt is not void but my person shall be charged g 9. H. 6. 53. per Newt et Cot. Nomom Pause here Anglonom What is Canonologus drowsie or entred into some dreame Canonolog I was neither drowsie nor dreaming but the eies of my mind were somewhat closed and shut as the hares be when she watcheth for the houndes for if I could haue taken any aduantage of the speeches of my two companions I would not haue been so long silent But in truth our Law in the matters of condition before handled hath no other oracle but the Ciuil Law if hereafter there happen any variance I will not conceal it from you Nomomath Let me then aske you this question 3. Diuision Codicgn A man deuiseth to R. x. li. and if he wast or spend it then he deuiseth vnto him x. li againe Suppose that he do spende twentie pound whether may he afterward demaunde 10. li. because the deuise is indefinite Codicgnost The deuise is not indefinite 1. Rursus or the word againe signifieth once againe by the Ciuill Law for this word againe signifieth as much as once againe according to the rule of our Law Rursus verificari potest in vna vice h l. fidei commiss §. si quis ff de leg 3. Otherwise it might be that the executor should be charged to the full value of all the goodes of the Testatour For if the deuisee were an Acolastus though the executor were by the executorship a Craesus yet all would not serue Anglonomoph Your reason is good but yet I would not be peremptorie in this matter for it is not in our Law so cleere For two Iudges were opposed against other two in the like case There is a Prouiso in a Lease that 2. How farre forth a word of restraint is to be extended at the common Law neither the lessee nor his assignes shall not alien to any without the assent of the lessour but onely to the wife or the children of the lessor and the lessee alieneth to one of the sonnes of the lessour It was left ambiguous whether the restraint were now determined i Mar. 152. Dy. Nomomath Let this be the case I am bound to paie you twentie pound if your ship come 4. Diuision from Russia and after the ensealing and deliuerie of the bond we make this condition that the twentie pound which I did before owe
Layman may prescribe in paying a speciall portion in lieu of the whole tythe as to pay the twelfth part or the twentieth part t Part. parisconsil 25. vidiat 3. nu 21. vil 4 Yet if the Minister or Curate may not be maintained by the residue of the Tythes he may sue for the whole Tythe u Augel clauus in versic 10. And if there be a composition betwixt the Curate and his Parishioner that hee shall pay no tithe this compositioÌ„ is meerly void otherwise it shold be if the composition had bene that he should pay a certaine portion of tythe as the sixtenth or twentith part or that he should pay no tythe for certain things for though the coÌ„position were before the Bishop yet it could be no otherwise a Text in c. venerab de confir vtil yet according to our law the Bishop may by way of composition alter the place or time of paying tythes Codicgn To this which you haue said our 2 The ciuill Law agreeth thereunto law agreeth we haue an expresse rule sacerdoti petenti decimas non potest obijci compensatio b Ludouic de Rom. in singular and the reason is because fisco petenti tributa non potest obijci compensatio c l. 3. 4. c. de com pen. le aufert §. qui compensati ff de iu. fisc Therefore muchlesse may compensation be obiected in tythes quae deo debentur d Gazalup in ver Decim Anglonomop But by our law if a man graunt 3 By the commoÌ„ law a man may prescribe in paying a temporall recompence in lieu of tithe parcell of his mannor to a parson in fee to be discharged of tithes he maketh an indenture therof the parson by assent of the ordinarie graunteth to him that hee shall be quit of the tythes of his mannor for this parcell of lande now if he be impleaded for the tithes therof he may haue a prohibition and if this deed haue bin made from time out of minde and he hath bin continually quit of the tythes of that mannor he may haue a prohibition in such case if he be impleaded and so likewise it is if such discharge grow by reason of a composition e Fitzher N. B. 41. G. 43. K. 8. E. 4. 13. Nomomath I pray you let me know in what 5 Diuision cases tithes are recouerable at the spirituall law and wheÌ„ at the commoÌ„ that so I may perceiue the diuersitie of the iurisdictioÌ„ of these Courts which in it self seemeth to me to be somewhat perplexed difficult vnles it be opened explaned by cases accommodate to the purpose Canonol There be two sorts of tithes being parcel of the inheritances possessions of laye 1. Two sorts of tithes are set downe by the canonist some feudall some Ecclesiasticall meÌ„ of the first by your fauor I will speak first then discend to the other when the right of tithes is in question because that is a meere ecclesiasticall subiect the church hldeth conusance 2. The Church onelie holdeth conusans of the right of tithes f gl in c. ex tenor de for compe there is an edict made by Phil. the 4. K. of France touching tithes in this manner De 3. The King of Fraunce his edict touching tithes is set downe cognitione decimaruÌ„ non feudalium in petitorio vel postestorio praesertim inter ecclesiasticas partes geÌ„tes nostrae se nullatenus intromittant g Rubriâ— de decim And this 4. When the question is facti and not iuris the examination of tythes may belong to a lay iudge is according to the rule of our law de causa spirituali solus ecclesiasticus cognoscit vbi quaestio sit iuris h c. tuam de ordin cogniti but where the questioÌ„ is facti not iuris the examination of the cause may belong to a laye iudge i Text in CleÌ„ dispendios de iudicum c. teter de iur caluÌ„ c. fin de rer permut but if the controuersie be mixt and the propertie is as wel to be decided as the possession the matter is to bee discussed before an ecclesiastical iudge k Abb. c. literas rubric de iudic num 51. wheÌ„ tithes are leased or dimised vnto a man he may demand the tithes before a lay iudge vnles there be contraria fori praescriptio as there is in the citie and diocesse of Millaine l Gemin in c. vlt. in fide for competen in 6. gloss in c. vest de loc monet c. 8. de decim yet where the coÌ„trouersie is betwixt these that be meere clergy men though it be a possessory suyte yet it is to bee decided by an Ecclesiasticall iudge m Nauar. in repet cum coÌ„tingat Neyther may lay men Clergie men though it be meerely possessorie yet it belongeth to an Ecclesiasticall iudge be compromittes of a decimall cause if the right come in question n Concil Barel tract moder de compromis §. 2. gl 1 num 324. but such tythes as be not spiritual but as I haue termed them before feudall may be ordered and disposed by lay compromittees Nomomath You haue satisfied me Canonologus touching the point of Ecclesiastical iurisdiction where spirituall tythes are to be demaunded Now I pray you shew me the nature 6. Diuision and original of these feudall tythes which as yet are more obscure Canonol Their nature shall appeare by 1. The nature of feudall tythes is opened by the Canonist their originall which was thus Charles Martell after that he had obtained an happy victorie against the Saracens who marching from Spaine did spoile and waste the lands goods and temples of the French did meane to recompence his nobles peeres of his realme with some great reward and that hee might testifie his liberalitie towards his said nobles by the consent of the Bishops of his kingdome he did giue vnto them the tythes of manie goodlie Churches taking a solemne oath that if he liued any while he would make the Church a large amends for this matter which notwithstanding hee did not but not long after as Guagni reporteth for that sacriledge he died and was carried to hell and his bodie being intombed in the temple of Saint Dennis within a few yeeres after there was seene vpon his â— The Canoâ—â—â—t 〈◊〉 a strange tale of Châ—â—lâ—â— Marâ—â—ll graue a great serpent it might be it was the diuell in the likenes of a Serpent but shortlie after there was neither bodie nor bones of Charles found in that place and therefore some thought that hee was carried bodie and soule Gâ—â—â—â—â—gâ—i in vâ—â— Car. Maâ—â—ell to the diuell for that cause the wiseman hath said it is a destruction for a maÌ„ to deuoure that which was sanctified c. nn Prouerb c. 20. v. 2â— Nomomath It is not good to enter into the counsailes
yet the lessee is bounde to repayre and maintayne them because of his couenaunt but according to the opinion of Fitzh and Shelley because the decay of the bankes was the acte of God he ought to haue conuenient time to repaire them q 29. H. 8. 33. Dy. 35. H. 8. 56. Dy. Now I will shew how and in what cases the cutting of wood trees is wast by our law It is cleare by our law that the tenant may cut trees for the amendment of houses 5 The tenant by the commō law may cut trees for the reparation of houses and the reparation of them but if the houses be decaied by the default of the tenant the cutting of trees to amend them is waste r 44. E. 3. 21. 44. 11. H. 4. 32. but the lessee may not in any sort cut apple trees for the amendment of houses ſ Temps E. 1. waste 122. And 7. H. 6. it is said that he shal not meddle with great timberwoode without the assent of his lessor otherwise it is of seasonable wood which is but of the age of ten yeres or therabout t 7. H. 6. 38. But the cutting of dead wood is not waste u Fitzh N. B. 59. M. And the termor hath house-wood hedge-wood and firewoode belonging to his tearme of common right and he may cut wood for that purpose x 21. H. 6. 50. But if hee cutte wood to burne where there is dead wood sufficient this is waste a 20. E. 3. waste 32. And it is not waste to cut seasonable wood which hath vsed to be cut euerie twentie yeares or within 6 The commō law agreeth with the ciuill in the cutting of Silua caedua that time b 7. H. 6. 40. 11 H. 6. 1. And the cutting of thornes is no wast because they are not fit for timber c 46. E. 3. 17. Neither is the cutting of willowes waste vnlesse they lie about the site of the mannor d 40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1. And the termor may cutte vnder-woode growing vnder the great trees and the high wood but if there bee no high wood or great trees there he can not cut at all e 40. E. 3. 25. 10. H. 7. 2. And whereas Codicgnost hath said that the lopping pruning of some 7 The common law agreeth with the ciuill in tollerating the lopping of trees which may be auailable for their growth trees may be more auailable for their growth therefore the cutting of them is not wast because they may grow by the same stocke or by some other imps grafted vpon it In verie truth our lawe runneth with this streame For as I haue shewed before to cutte seasonable wood is no waste but if certaine sprowtes or braunches doe grow vpon the stocke the cutting of these sprowtes or braunches or the destroying of them is wast f 5. E. 4. 102. 9. H. 6. 42. 11. H. 6. 1. 22. H. 6. 14 And plantes which can not be conueniently sold neither beare any fruite yet because of the possibilitie of the fructifying of them if they bee cutte downe this is waste g 20. E. 3. waste 32. Nomomath Well I pray you satisfie mee in this If a man ought to keepe certaine bankes in repaire whereby the land adioyning and which he hath in farme may be better kept yeeld more profite and hee doth not repaire these bankes but suffereth the sea to ouerflow them and so to make the lande a great deale worse whether is this by your law accompted waste Anglonomophilax according as Codicgnostes hath shewed of opening the sluces of Nilus Anglonomoph By our law if such bankes be not repaired whereby the land demised that is adioyning is ouerflowed made vnapt for 1 That both by the ciuill law and common law where land is empeired by the inundation of water this is wast 3 Diuision present profite this in our lawe is accompted waste h 20. H. 6. 1. Nomomath Well now I pray you resolue me in this whether is it lawfull for the termor to digge in the land demtsed for water mines or treasure hid or this shal be accompted wast if hee doe it without the permission of the lessor Anglonomoph He that commeth to land or to any other thing by an other mans graunt or 1 That by the common law he that commeth to land by an other mans graunt ought to vse it according to the graunt demise can not vse the lande or that which is graunted further then the graunt or demise being reasonably construed will permit Therefore if a man be seised of a stagne or pond stored with fish and he sell and the fish in the pond to a straunger the grantee may not digge the land c. to make a trench because he may take the fish with nettes or other engines i Perk. tit Graunts 23. But if a man grant to me licence to make a trench from such a fountaine in his land to my mannor of Dale and that I may put a conduit-pipe in the land to conuay the water to my mannor if after the pipe bee stopped I may dig in the land to amend the pipe k 13. H. 8. 15. because that is as it were implied in the graunt but if a man plough vp meadowes demised vnto him this is waste l 20 H. 6. 1. 16. H. 7. wast 131. Fitzh N. B. 59. N. So if the termor doe alter woode into arable this is wast or arable into meadow this is wast For this is preiudiciall to the inheritance for the euidence concerning the lande serueth to proue an other thing m 29. H. 8. 35. Dy. Maleuerers C. And so it is if land bee ouerflowed for default of repayring bankes n 20. H. 6. 1. but of this I haue lately spoken and therefore will rather apply other cases to the opening and explaning the reason hereof The digging in the lande demised for claye or for 2 The digging for clay or cole in the land demised is wast by the common law stone or for coales shall bee said to bee waste o 2. H. 7. 14. 22. H. 6. 21. 9. H. 6. 42. 17. E. 3. 7. for the reason abouesaid and likewise because the soile by that meane becommeth worse p 22. H. 6. 18. according to M. Fortescues report 20. H. 6. if the particular tenant haue not kept the water from the ground so that it is made waste by the growing of rushes and other weedes this hath bin adiuged to be wast and the wordes of the writ were Quòd permisit aquam terram illam inundare 3 The suffering of the ground to become rushie or weedie by the common law is waste ita quòd deuenit iuncosa q 20. H. 6. 1. per Fortesc But 33. E. 3. the defendant iustified in a writte of waste because hee did cutte downe
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
§ Sed natural instit de iu. na as I haue sufficiently shewed in my Direction to the study of the Law Cap. 7. 8. but onely of such thinges as belong to them by the Ciuill law yet by the opinion of the later Ciuilians this is helde to bee no law but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth k Deci. Cons 209. in casu 2. 69. consultus 390. quoniam 519. visis 557. accurate and this later opinion seemeth to bee more reasonable and more consonant to the truth for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe so that they are not altogether parcell of the law of nations l Bal. â—a in l. omnes C. Si con ius vel vtilitat pub Againe the right of demesne and property is not alike in all nations m Herodot li. 4. Strab. lib. 11. Arist lib. 2. polit Tacit. de mor. Germa Caes lib. 4. 6. de bel Gal. but is moderated and ordered by the lawes of particular coÌ„mon weales But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands goods chattels or dammages Surely this is permitted by no law but by the ciuill n l. 2. C. de prec imp off and common law expressely prohibited for the king cannot grant to any person that he shal not be impleaded or sued in this or that action though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor yet in this case he doth not take away the action of the partie but doth onely restreine him to bring his actioÌ„ in a certain place o 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may p li. vlt. C. de consul without cause seise the lands goods of his subiects for it is plaine that a king hath more power ouer his subiectes then the father hath ouer his children but by the ciuil law the father may take away the goods of his children when hee will q l. placet 79. D. de acquir haere l. acquirit 10. D. de acquir re do therefore the king may take away c. To this reason grounded vpon the ciuill lawe I do thus answere that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection of the lands goods persons of their subiects so that they may not without cause bereaue them of their goods and therefore there is a good rule in the ciuill law that in priuatorum agris nihil ne publico quidem consilio cum ipsorum iniuria capi ius est r l. Venditor 13. D. de com praed And to that purpose Cicero speaketh well Videndum erit ei qui rempub administrabit vt suum quisque teneat neque de bonis priuatorum publice diminutio fiat and for this cause God did appoint a certain portion of land to euery tribe of the Israelites Å¿ Deutero 17 and by reason of a priuate title Naboth would not sell or chaunge his vineyard with Achab t 1. Reg. 21. and in the inauguration of the king of Hungarie this was exacted of him by oath vt iura regni integra conseruaret u C. in tellect 33. ex tr de iureiuran And in the ciuill law it is said Qui pleno iure Dominus est alienandi dissipandi disperdendi ius habet a l. 7. cod de relig l. sed etsi l. 25. §. consuluit D. de haeâ—ed petit And againe suae quisque rei arbiter ac moderator est b l. in remandat 21. C. de mand So that it is euident that without cause the propertie which subiectes haue in goodes and landes may not bee altered by their prince And therefore wittily sayeth D. Gentilis that they which argue to the contrarie do not dispute or drawe their arguments ex castis fontibus Philosophiae aut ex ipsis iurisprudentiae riuis sed escholis sophistarum hallucinati sunt Theologi adulati sunt iurisconsulti qui omnia principibus licere asceuerarunt c Alberic Gentil Dec. 1. disput 2. disput I would not be mistaken in this Chapter sithence I hold an indifferent course betwixt prince and people neither consenting to them which say that princes may seise the lands and goods of their subiects without cause nor to them which thinke that they may not seyse their lands and goods for any cause but my resolution is and the summe of this discourse is if it bee diligently and impartially obserued that princes may lawfully claime and take to their owne vse the lands and goods of their subiects for the causes abouesaid and prescribed by lawe and not otherwise and by this word Princes I meane none but absolute Monarches for the law of nations alloweth this prerogatiue to none other And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law Lex est rerum omnium domina quia scilicet ciuitatis cuiusque ciuium singuloruÌ„ patrimonium constituit definit tuetur Lex sola dominiuÌ„ rerum confert sola dominij acquirendi modos constituit citra quos acquiri nullius rei dominium potest f §. 2. de bon posses apud Vlpi eo tit reg 19. This foundation being laid I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable as when a true man is pursued as a felon and he flieth and waiueth his owne goods these are forfeited as if they had beene goods stolne g 29. E. 3. 29. 37. H. 8. Br. Estray 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason he shall forfeyt all the landes tenements which he had at the time of the felony or treason coÌ„mitted or at any time after as well as if he had beene attainted by verdict h 28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent as to the landes and tenements so that a feoffement of land or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit but he saith that as to an attainder by verdict that it shal haue relation to the time of the felony done according to the supposall of the inditement as to
lie against him as receiuor of his money But if his bailie be also bailie of his mannour and this Obligation be deliuered vnto him as bailie of the mannour then an Accompt will lie against him as bailie of the mannour habentem curam of this Obligation b 2. R. 2. Accompt 46. for a bailie of a mannour may well be tearmed a generall bailie And Brian 2 R. 3. putteth an expresse difference betwixt a generall and a speciall bailie A man saith he may be bailie of a mannour or of an house if he be bailie of a manour he hath 3. What things belong to the charge of the bailie of a manour charge of all the oxen horses ploughes belonging to the manour and of all the profites arising and growing out of the manour and he shall be accomptable for them But if he be bailie of an house he shall not be accomptable but onelie for the house c 2. R. 3. 14. per Br. But this is the difference betwixt a bailie and a receiuor according to the bringing of a writ of Accompt A writ of Accompt will not lie against one as bailie for a certaine and a peculier thing But whereas A. giueth twentie pound to B. to merchandize for him and to his vse for the profite hereof because it is a thing vncertaine a writ of Accompt will lie to the ende that by the writ of accompt the incertaintie may be brought to certaintie d 9. H. 5. 3. per Hyl. But in your case proposed the bailie is to bee intended a speciall bailie But this generall and currant rule we haue touching all bailies as well generall as speciall If the bailie be preiudiciall to his his master he is to make recompence to his master As if my bailie sell a quarter of corne 4. That by the common Law if the baile be preiudiciall to his Master he is to make recompence for fortie pence whereas he might haue sold it for vj. s' viij pence he must aunsweare for this e 6. R. 2. Accompt 47. per Belkn So if he buy thinges for xx pound which are not worth x. li. he shall not be allowed this vpon his accompt though he did as much as he could according to his knowledge f 41. E. 3. 3. per Finch But if a baylie doe a thing which toucheth his bayliwicke and which duetie bindeth him to doe as if hee pay rentes or other dueties which are due of the mannour he shall be satisfied for this otherwise it is if hee doe any thing which toucheth not his bailiwike for then hee ought to haue speciall warrantie g 42. E. 3. 6. per Belkn Canonol Our law dissenteth not from these assertions Nomomath Suppose I giue money to Titius 2 Diuision to buy for mee and to my vse the land of Sempronius lying in dale whether is Titius accomptable to me for this Codicgnost There is no question but he is h ff acti mandat direct l. si vero §. fi but if your selfe or some other to your vse doe 1 By the ciuill law the bailie is discharged if the maister intermeddle buy the lande of Sempronius now is Titius discharged vnlesse he more expediently and with lesse cost might haue bought it of Sempronius i ff eod tit l. si procurator §. mandat act Anglonomoph This is not repugnant to our law and in all cases a writte of accompt lyeth where a man is put in trust to procure the profite 2 That by the common law as wel as by the ciuill hee that is put in speciall trust to puocure the profit of an other is accomptable of another and is not his apprentice for if the king graunt to a village certaine tolle of things which shall bee fold in the same village and the townesmen of the village make collectors to receiue the toll if afterward the collectors will not make accompt hereof they may haue a cōmission out of the Chauncerie to enquire who hath receyued this tolle or money and to heare their accomptes and to determine the matter k Fitzher N. B. 119. f. 114. c. And 8. E. 4. it was said by Nedham that the Churchwardens of a certaine parish might haue a writte of accompt against their predecessors but the parishioners could not l 8. E. 4. 6. per Nedh And so the master of an hospitall may haue a writte of accompt against him that was receyuor or bailie in the time of his predecessor m Fitz. N. B. 117. F. And 30. E. 3. a writ of accompt was made by a master of an hospitall against one as the bailie of his Church and this forme of writ was allowed and the action was brought by him as parson he being not named parson in the writ and yet the writte was allowed because hee demanded nothing which might continue to the Church for euer as he must do in a Iuris vtrū n 30. E 3. 1. 13. H. 4. Accompt 124. 29. E. 3. 60. And 4. E. 3. a writ of accompt was brought for a receit of certain money in the time of his predecessor o 4. E. 3. Accompt 97. and 34. E. 3. in a writ of accompt against one as the bailie of his woode the pr declared how the def was the bailie of his wood to cut it and to sell it and the declaration was allowed without saying that hee did any way administer for this must come in by way of answere and so the writte may bee against the bailie of a mannor habentē administrationem bonorum Moubrays opinion was that the bailie of a wood ought to make account for the fruits of the trees herons and hawkes p 34. E. 3. Accompt 131. But a writ of account cannot be brought against one as his bailie vnlesse he be the bailie of his house land or mannor q 9. E. 3. Accompt 95. And if one ought to be bailie by reason of his tenure though he do not occupie the office yet he shall be charged in a writt of accompt r 18. H. 8. 2. And if a receiuor or bailie do make a deputie yet the writ of account ought to be brought against the bailie himselfe or against the receiuor himself not against their deputies for the deputies resceiue the money and administer the goods to the vse of the master ſ Fitzh N. B. 119. B. but a writte of accompt will lie for the receiuor against his deputie as for the vicount against his deputie t 11. R. 2. Accompt 48. And a man may haue a writte of accompt against a woman as receptrix denariorum u 8. E. 2. brief 847. Fitzh N. B. 118. D. And 4. E. 4. there is an excellent difference taken where a woman is bailie or receiuor to a man and after she taketh a husband a writ of account lyeth against them both as econuerso it lyeth for
stretcheth verie farre in our law for it may extend to the procheinamy the next friend by whom an infant or one within age shall sue an action or to the warden of the infant by whome the infant shall be defendant in an action c 13. E. 3. Attorney 76. 40. E. 3. 16. And an infant was receiued to sue a writte of error by his warden d 27. Assi pl. 53. Fitz. N. B. 27. H. And an infant shall not remoue hir warden nor disauow his next freind which sueth an action for him e 34. Assis pl. 5. 27. Assis pl. 53. But by a writte out of the Chauncerie the infant may remoue his warden or the Court by their discretion may remoue him f Fitzh N. B. 27. M. 27. Assis pl. 53. But as to the making of an Attourney we haue this rule in our lawe Nemo potest facere Atturnatum nisi habeat proprietatem in re ideo custos non potest facere Atturnatum quia non habet proprietatem g 13. E. 1. Attourney 103. In a writte of Attaint the defendant made an Atturney in the Chauncerie by a common writte de Attornato faciendo the tenor whereof was ad lucrandum perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. petentem I. N. tenentem de placito terrae c. but the warrant of the plaintifs attourney must be thus ad conuincendum 12. Iur. de placito terrae c. per viginti quatuor c. h 2. E. 3. Garrant dattour 21. But the power authoritie of the attourney is by the iudgement determined and carried backe to the master Wherefore it was saide 4. E. 3. that after iudgement the attourney was not receiued to release the dammages nor to acknowledge satisfaction i 4. E. 3. Attourney 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Garrant 22. contrarie to the booke of 33. H. 6. k But there is great difference betwixt a bailie a deputie for though a bailie haue a larger scope of authoritie and power then an atturney or sollicitor yet he hath but an authority but a deputie hath an imperfect interest mixt with an authoritie which by cases accomodated to this purpose shall be euident The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the Lorde for I doe not take the booke of 2. E. 4. to be law that the bailie may lease lands to hold at his owne will yet that booke giueth an action of debt if a rent bee reserued vpon the lease to the Lorde not to the bailie l 2. E. 4. 4. but 8. E. 4. is the better law in my opinion where it is helde that the baily of a mannor cannot make any lease of the mannor nor of any parcell of it without speciall commaundement of the Lord to doe it m 8. E. 4. 13. But if he cut downe trees or kill any beastes going vpon the land of the manour without lawfull cause an action of the case will lie against him n 2. E. 4. 13. And 19. E. 3. it was held that by no vsage in the world a Bailie or Steward of a manour could lease the freehold o 19. E. 3. Feoff 68. But it is held by Catesby 8. E. 4. that the Lord may giue power in expresse wordes to his bailie to lease land and if the bailie hauing receiued such authoritie doe lease an acre of land vnto a stranger and doth not giue to the Lord notice thereof if the Lord enter into this acre the lessee may punish him by an action of Trespas and yet he had no notice thereof but the reason is because he had before giuen such a power to the bailie p 8. E. 4. 1. et 9. Dutch de Suffolkes c. per Catesb And therefore I thinke that the book of 2. R. 3. which is that the bailie hath power to lease land and to improoue it is to be intended by speciall warrant and authoritie of the Lord committed vnto him But it seemeth that of himselfe he may sell trees if there be great abundance and may repaire houses with them but he cannot reedifie houses with them if they be falne q 2. R 3. 14. 12. H. 7. 25 But that a deputie hath an interest conioined with an authoritie in the thing which is deputed vnto him may be thus prooued 11. Elizab. it was cleerely resolued that two daughters being heires to the Constable of England might make their sufficient Deputie to exercise the office for them and after mariage that the husband of the elder onelie might performe the office r 11. Elizab. 285. Dy. And 39. H. 6. it was agreed by all the Iustices that if a man haue an office and maketh a deputie which misuseth the office the grauntee or inheritour of the office shall forfait it for the deputie is sub officiario and the officer remaineth officer vntill the forfaiture Å¿ 39. H. 6. 32. And these wordes that the deputie is sub officiario are so in my conceit to be vnderstood as the lessee at will is vnder the lessor in case of a demise of land But there may be a forfaiture in the one case and not in the other because in the office deputed there is a speciall authoritie mixt with a speciall interest And Quaere whether for the dette of the deputie the office may not be extended whilest it is in the deputies handes Codign Surelie it seemeth that the deputie 4. That by the ciuil Law contrarie to the common Law there is no maner of interest in a deputie hath no interest at all in the office and that may appeare by the obseruation of auncient times For if a man may compare greater things with lesse the Quaestor of a Prouince was a deputie to the President or Gouernour of a prouince in his absence but yet their power was diuerse and the interest was not assigned but resembled as Caesar doth rightlie distinguish them Aliae sunt legati partes aliae imperatoris alter omnia agere ad praescriptum alter libere ad summam rerum consulere debet t Caes lib. 3. de bello ciuil The office of a Deputie or Lieutenant and the office of a Gouernour or Commaundour are diuerse the one of them that is the deputie doth all thinges by the prescript of his commaundour the other freelie prouideth for the maine and principall consequence of thinges And briefely and substancially he thus describeth the duetie of a Deputie Officium legati fiduciariam operam obtinere u Caes lib. 2. de bel ciui And that a deputie is but as a minister to the principall officer may appeare by Ciceroes precept to his brother Sit annulus tuus non vt vas aliquod sed tanquam ipse tu non minister alienae voluntatis sed testis tuae a Cicer. ad Q. fratr Let not
thy ring be as a vessell to be vsed at any mans pleasure but as thy selfe not as a seruant to an other mans will but as a witnesse of thine owne Nomomath What if the Master doe promise â— Diuision vnto his Bailie or Attourney that if he can procure him the possession of the land in question he shall haue the halfe or some part of it for his rewarde Will your Lawes allow of such an assumpsit Codicgn Our Law doth not allow it But 1. That the bailie or attourney may not take halfe the land for purchasing or compassing the other half he may safelie take a speciall collaterall reward for that particular effect b Gazalup in ver procurat Canonolog So in our Law he that giueth part of the profites of a benefice to be admitted to the benefice is so far from being allowed 2. That the like matter is forbidden by the Canon Law that his fault is accompted to be enorme and indispensabile c 13. disti nerui For it is held to be simonie corrupt cheuisance if any valuable consideration be giuen in such regard pacto vel facto And he that buyeth so is called Simoniacus of Simon Magus and he that selleth so is called Gieziticus of Giezi d 1. q. 1. Studet Anglonomoph In our Law it is held that 3. The common Law agreeth with them there is no diuersitie where a man selleth land depending a writ petitorie of the same land or doe giue it depending the writ for in both cases there is Champertie e 8. E. 4. â—9 Nomomath I praie you let me know whether 7. Diuision anie persons be accomptable by the meere and sole operation and enforcement of Law Codicgn Yes there be two sortes of accomptes publike and priuate The publike 1. Two sortes of accomptants by the ciuill Law accomptes are such as are to be made by a publique officer who is charged with some speciall administration appertaining to the common weale ee L. officialis c. de epis et cler For the Presidents of Prouinces amongest the Romanes did customablie vse to make vp their accompts before they departed out of the Prouince to which accompt they were obliged by Law Therefore Cicero saith Illud certe factum est quod Lex iubebat vt apud duas ciuitates Laodicensem et Apamensem quoniam ita necesse erat rationes confectas et consolidatas deponeremus f Cicer. ad Rufum Priuate accomptes are such as belong to priuate men by the administration of their goodes or affaires as the proxies or bailifes of priuate men Canonolog The same difference doe we 2. Likewise by the common Law hold in matters of accompt g d. l. officialis ibid. Anglonomoph And by our Law there be 3. And also by the common Law some which be accomptable by Law some by a particular charge imposed vpon them or vndertaken of them And in the former case a writ of Accompt will lie though there be no priuitie infacto but onlie in Law Wherefore Mast Prisot said 33. H. 6. that the king might bring a writ of Accompt against one as his bailie who did occupie the land de son tort demesne of his owne wrong And the same Law is as he there affirmeth if a man occupie the manour of a common person de son tort demesne And according to Wangf opinion if a man seise an Infant as wardein in Socage and is not the prochein amy yet a writ of Accompt lieth against him but there he claimeth to the vse of the Infant h 33. H. 6. 2. per Prisot et Wangf And the same Law seemeth it to be to Mast. Brooke i Brook Accompt 8. where a man presumptuouslie and of his owne head vndertaketh to be my bailie a writ of Accompt will lie in such case But if he enter to his owne vse there it seemeth saith he that a writ of Accompt will not lie for there Ne vnques son Receiuor pur accompt render is a good plea. And 49. E. 3. a writ of Accompt was brought against the Lord by the tenant as occupier of the land which the tenant now plaintife holdeth of the defendant in Socage and the def said that the auncestor of the plaintife did hold the land of him by knights seruice wherfore he seised the land in warde k 49. E. 3. 10. By which case it appeareth that a writ of Accompt is admitted to lie against the occupier of the land without any priuitie in facto And 4. H. 7. it is held by Brian that if a man receiue my rent of my tenants without my assent yet I shall charge him for the possession and receit of the rent l 4. H. 7. 6. But a writ of Accompt will not lie against a disseisor because that cannot be without priuitie in Law or in facto as by assignement or as Warden or in like sort or by the pretence of the defendant of occupying to the vse of the plaintife m 2. Mar. Br. Accompt 89. Nomomath I will not presse you any further with mouing doubtes of Accompts but will now make transition to other matters that remaine to be discussed The fifth Dialogue Of Wast done in a mans Ground NOmomath The next matter that by order offereth it selfe to your conference is to treat of Wast done in a mans land And for my more perfit apprehension of the thinges concerning that point I will prescribe vnto you certaine particulars wherein you may imploy your trauell for my further instruction First of what things Wast may be committed 2. What thing properly your Lawes censure and determine to be wast 3. What punishment by your lawes is to be inflicted vpon these that commit wast You shall doe me great pleasure in vnfolding the secrecie of your knowledge hereof And first to begin 1. Diuision with the first let me know of what things wast may be committed Codicgnost Wast may be committed in suffering 1. Of what things wast may be committed by the ciuill Law the walles of houses or closes to fall a Gazalup verb. rudera So if there be a wood which is thick with great tymber trees which in Latin is called Saltus or which is but thinly set with slender trees wherin hunters may ride vp and downe which the Latinists do call Nemus spoile or hauock made in such woods may be accompted wast b C. de â—un pa. et Salluen li. 11. But 2. Cutting of wood in silua caedua by the ciuill Law is â—o wast to cut wood in silua caedua which is apt to be cut is no wast and therfore it is said apt to be cut because it groweth easilie again Neither doth wast seeme to be committed in silua pascua if brush-wood small wood or vnderwood be cut for the better pasturage of the beasts that go vpon the soyle Likewise wast may be
more heires then one yet Titius shall haue but fiue pounds because of the collectiue word quisquis e L. ab omnibus in princip ff de leg 1. et l. si quis in fundi vocabul in fi eo ti But if the Testator doe say Quicunque primò ingressus fuerit Castrum habebit centum solidos and two doe enter the Castle together they shall euery of them haue fiue poundes because of the distributiue word quicunque which may be verified either in one or moe doing the same act at one time because primus est qui alium ante se non habet f L. qui filium §. 1. ff de leg 1. And if the Testator saie Quilibet haeredum meorum det Titio decem solidos Titius shall haue as many tenne shillinges as theire be heires g L. si pluribus et ibi no. gl ff de leg 2. which prooueth that by our Law the seuerall heires are not accompted as one heire Canonolog Our Law holdeth not the contrarie Nomomath You haue good reason for it But I pray you resolue me Anglonomoph are these which you call Parceners reputed in your Law as one heire to all intents Anglonomoph Yea to all intentes in regard 5. That by the common Law parceners are reputed as one heire as to the discent of landes of the discent though as to the making of particion it accompteth them as seuerall persons gg Fitzh nat bre 197. A. For a Nuper obisâ— ought to be brought by that Coparcener who is deforced from the 6. Parceners in regard of the particion are accompted as seuerall persons tenements against all the other Coparceners which do deforce her although some of them haue nothing in the tenancie h 32. E. 3. Nuper obijt 7. 9. Ass pla 8. For seuerall tenancie or nontenure is no plea in a Nuper obijt because of the priuitie of bloud i 7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8. Nomomath Whether shall a writ de Particione 2. Diuision facienda be vsed against Iointenants or tenants in common as well as against Parceners or some other remedie shall be vsed against them Anglonomoph Before the Statute of 31. H. 1. The statute of 31. H. 8. giueth a writ de Particione facienda as well to Iointenants and tenants in common as to parceners 8. Iointenants and Tenants in common were not compelable by writ to make particion of landes and tenements which they vndiuidedly held But by that Statute a writ de Particione facienda may be sued against them as against Parceners k 31. H. 8. c. 1. Rastall Particion 3. But by the common Law Iointenants may make particion by mutuall assent without deede l 47. E. 3. 22. 19. Ass pla 1. And by such particion the iointure is seuered m 30. Ass pla 8. 2. The three seueral actions against Parceners Iointenants and tenants in common at the Ciuill Law Codicgn By our Law seuerall remedies are vsed against these which be both of one bloud or one familie which you haue tearmed Parceners as an action de familia herciscunda and an other maner of action against such as come to the land by ioint title though not by one discent which you haue tearmed Iointenants namely an action which is called of vs Actio pro socio and an other against these which come not in by ioint title but yet claime vnder these which came to the land by ioint title as by your Law are Tenants in common against whom or betwixt whom for the effecting of particion an action lieth at our Law which we call Actionem de communi diuidundo Canonolog To this our Law is not contradictorie Nomomath Let me now vnderstand in 3. Diuision what sort particion of landes or tenements and other thinges is made by your Lawes Anglonomoph Of landes and tenements the 1. Diuers kinds of partion at the common Law particion by our Law is to haue a seuerall part or portion as to haue a third part if there be 1. A particion to haue a third part or a fowerth part three Coparceners or a fowerth part if there be fower c. And if there be two Coparceners and one of them releaseth to the other 2. A particion by way of release with warrantie this hath been helde to be a good particion in Law n 44. E. 3. Counterplee de vouch 22. 34. E. 1. Partition 17. And particion of landes is sometime made by the graunt of 3. Particion by the graunt of a thing de nouo a thing de nouo as if an hundred shillinges of rent be graunted by one of the Coparceners to two of her sisters for equalitie of particion o 2 H. 6. 14. So when land entailed is deuided betwixt Parceners and a rent is reserued vpon 4. Particion by way of reseruation the particion for equalitie the rent reserued shall be in taile and of the same condition whereof the land was at the time of the particion made p 2. H. 7 5. 15 H. 7. 14. But a particion of a Mill is by taking the third part or the fowerth part of 5. Particion by taking the 3. part or the 4. part of the profites the profites as the case requireth q 11. E. 3. Briefe 478. And 45. Ed. 3. it was ruled that Milles Douecots and the like could not be actuallie locallie and as I may saie artuatim as it were by iointes diuided But if a woman ought to bee endowed of the third part of such thinges the third part of the profites ought to bee assigned vnto her r 45. E. 3. Dower 50. Yet 47. Edw. 3. the case was that two Iointenants were of a Mill and they agreed to repaire the Mill the one of them of the one side and the other on the other side in perpetuum and after the Mill was leased to farme and they tooke the rent seuerallie according to the moities and the Inquest said that their meaning was that the particion should bee good against them and their heires Å¿ 47. E. 3. lib. Ass pla 22. But Quaere whether the Shirife by writ de Particione facienda may make any such particion Likewise particion may be of a reuersion that one of the parceners shall haue the reuersion of three acres and the other the reuersion of other three acres and it may be without deede t Fitzh nat bre 62. D. 28. H. 6. 2. And so particion may bee made of a waie u 21. E. 3. 2. And also of a seigniourie uu 27. E. 3. 29. But of an aduowson the particion is to present by tourne x 38. H. 6. 9. 42. Eliz. 87. Corbets case per Iust Walmesley Co. Canonolog Our Law agreeth fully with 6 A difference in the Ciuill law where a thing that hath partes cohâ—rentes is diuided and where it
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 vsuall in law which now we handle must likewise be cassierd Yet in speaking of time we may not forget to handle the circumstances of time as they be accommodated to the Law and to the actions of men As namely of a long time a short time a late time an auncient time a certaine time an vncertaine time a continuall time a conuenient time time past time present and time future But first to speake of the yeare Annus according to the Etymologie learnedly searched out by Varro is nothing els but a circuit for as the little circles are called annuli ringes so the great circles or compasses of time are called Anni yeares f Var. lib. 5. de lingu lat The yeare is a time wherein the Sunne perfitteth his course and that is accomplished in the space of three hundred three scoore and fiue dayes and sixe howres almost And this hath our Law well obserued as may appeare by these verses Ter centum ter viginti cum quinque diebus Sex horas neque plus integer annus habet g 18. Elizab. 345. Dyer by which accompt if you subtract the howers and halfe dayes the quarter of the yeare will fall out as it is in our Law set downe to be nintie and one dayes and the halfe yeare a hundred eightie and two dayes h Ibidem which was almost fully signified by Ianus his image in Rome in whose right hand was the number of three hundred and in his left hand fiftie and fiue i Macrob. lib. 1. Stur ca. 9. Others haue made the same difference betwixt the yeare and moneth which the Merchants of some Countries make betwixt the ounce and the pound deliuering their conceit in this verse Vnciaque in libra pars est quae mensis in anno And though it be a common receiued opinion that the Romanes at the first and a long time after the foundation of their Citie did accompt but tenne monethes for the yeare so that Ouid quarrelleth with Romulus his Astronomy in this maner k Ouid. lib. 1. fastor Scilicet arma magis quà m sydera Romule noras Yet if the course circumduction of their yeare be well obserued it will appeare to haue conteined the full space of twelue monethes as may appeare by Plinie l Plin. lib. 2. ca. 9. Macrobius m Macrob. 1. Satur. ca. 12. et lib. 1. in som Scip. c. 6. and Plutarch n Plut. in Num. And this was likewise the yeare of other Nations The Romanes did begin their vulgar yeare at the beginning of Winter as appeareth by Ouid Bruma noui prima est veterisquè nouissima solis Which course seemeth to bee agreeable to the course of nature because then the sunne beginneth to returne vnto vs and therefore wee may rightly deriue the beginning of his circuite from thence The yeare is diuided into the Spring Summer Haruest Winter The Romaines did accompt the spring that space of time which was betwixt the Calends of March the Calends of May o Liuy lib. 34. but the most common currant entrance of the spring in the reputation of all the nations of the world was when the plants or herbage of the earth began to waxe greene and therefore it is rightly tearmed ver a virendo as sommer is called aestas ab aestu and then is said to begin when heate beginneth p Tacit. de mor. Germ. The name of Autumne nor the thing it selfe as Tacitus reporteh was not knowne to the Germaines in his time and diuers countries haue made diuers limitations of the spring and therefore if it bee agreed betwixt Titius and Seius that the beasts of Titius shal pasture in the groūds of Seius all the spring time the time shall be limited according to the dimension of the spring-tide in that countrey where the bargaine was made and so it may be said of the other times and seasons of the yeare and if the occupation of a mans ground be granted to Titius Seius Caius and Sempronius so that Titius shall haue the occupation of the land in the spring time Seius in sommer Caius in winter Sempronius in haruest if the interest of any of the same come in question the Iudge had need be well aduised of the certaintie and the peculiar difference of these times according to the customarie obseruation of the countrey in which the grant was made that he may suū cuique tribuere and giue no erroneous iudgement Some make a bipartite diuision of the yeare into winter and sommer without mentioning the spring and haruest defining the sommer to begin at the Equinoctiall of the spring and to end at the Equinoctiall of haruest q Vlp. in l. 1. § aestat de ag co et aest so that sommer and winter are diuided by sixe monethes then I put case that land is demised to one to haue and to hold during the space of the whole sommer whether may the lessee put in his beastes in the spring time and it seemeth that the spring is to be excluded notwithstanding the diuision aforesaid for the sommer being named aestus ab aestu the spring can haue no part in the sommer for the spring is meane betwixt heat and colde and therefore the said diuision seemeth to bee vnproper for proprie non dicitur quod non dicitur secundùm quod sonat r Baldus in l. vlt. c. de haer instit and in Swetia other nations lying vnder the Northerne Poale this diuision can take no place but if a man deuise the dwelling of his house euerie sommer to Sempronius there it may seeme that the spring shal not bee omitted because our dwelling is diuided into the sommer winter dwelling but if a man deuise his ground with all his sommer instrumēts of husbandrie it seemeth that the spring is in this case to be excluded because there be other instruments of husbandrie vsed in the sommer time thē such as be vsed in the spring winter or haruest But the imperiall lawes doe extend sommer from the Calendes of April to the Calendes of October the residue of the yeare they allot to winter and this diuision I will not denie to be grounded vpon good reason if we respect the yeare in generall not in particular for in the spring time the Sunne mounting to the toppe of one of the lines of the Equinoctial circle he commeth by degrees nearer vnto vs and so maketh summer but in haruest he transcēdeth the other line of the Aequator and so being farre remoued from vs causeth winter and therefore not amisse by the cause of heat and cold are the times of heate and cold distinguished The moneth had his name of the Moone which in the Greeke tongue is called Mene and the reason of the name is because the moneth is measured by the circumuolution of the Moone as Plato ſ Plat. in Cratil Varro Cicero and others haue expounded it Some doe assigne to the
the King onely did medle with the Mines of gold and siluer that were in it l Fitz. Na. br Corrod 232. And by the graunt omnium singularum Minerarum these Mines shall not passe m Com. Inf. pur Mines ib. And though the king graunt to one the retourne of all maner of writtes yet he shall not haue the retourne of the summons of the Eschequer because that toucheth the Crowne and is not betwixt partie and partie n 22. E. 3. lib. Assis pla 49. Neither by the Law of England can any man prescribe in such thinges For it is said 1. H. 7. that no fraunchise may prescribe to hold plea of Treason and whether the king may graunt any such libertie or no the Iustices were in great doubt o 1. H. 7. 23. But 46. E. 3. it was held by Kniuet Iustice that a man might claime a fraunchise of Infangtheefe and Outfangtheefe and waife and straye by prescription but he cannot haue the chattels of Fugitiues or Felons vnlesse it be by especiall graunt because that it belongeth vnto the King as to his Crowne and therefore can not passe from him but by speciall graunt p 46. E. 3. 16. and 21. H. 6. this diuersitie is taken such thinges as accrue to the king by matter of recorde as the fines issues and amerciamentes of courtes doe not lie in prescription but in such things as belong to the crowne the title of thē doth not grow by matter of record as waife stray wrecke of the sea treasure founde and the like a man may praescribe in q 21. H. 6. praescript 44. but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes by which princes must bee directed not by their owne voluntary conceits or vnsatiable desires least it happen that magna imperia be magna latrocinia for good gouernours will not imitate the lewd monarches of nations as Caligula Nero Caracalla Carinus Romaine Emperours nor Seleucus nor Alexander the great or rather the proud which did claime a generall and absolute power indefinite illimitate ouer all mē ouer all things without difference or exception which did thinke that they might giue lawes to others and not to bee bound by any which pretended that there was but one law for all common weales and that was to obey euerie thing which the king commaunded and that that was iust in regard of the subiectes which was profitable to their ruler like to that prince of pirats and robbers in Heliodorus r Heliod lib. 1. Aethiop histor Si imperij lege vtendum fuisset prorsus mihi velle suffecisset Like to that saying of Iulius Caesar the vsurper Sylla literas nescijt qui dictaturam deposuit mecum homines consideratius loqui debent ac pro legibus habere quae dico ſ Sueton in Caesar like to that of Iulianus though spiced with some sprinkle of mildnesse Polliceor absque omni praerogatiua principum qui quod dixerint vel sensuerint pro potestate authoritatis iustum esse existimant t Ammian Marcell lib. 23. or like to that sinister clause of the Popes insolent vanitie de plenitudine potestatis the last of which wordes Baldus playing withall putteth in steade of it tempestatis u Alciat reg 3. praes 8. et ad L. 2. C. de in ius voc yet I will easilie graunt that if any prince doe by sword and conquest subdue any countrie as the whole countrey is gained and possessed by this exploit so all the landes and goods of euery inhabitant in that countrey are his vntill hee did giue them or restore them vnto the former owners As by the lawe of this realme of England if a man be attainted of felonie and the Queene pardoneth him all fellonies and executions and doth likewise pardon and release all forfeitures of lands and tenements and of goods and chattels this pardon and this release cannot serue but onely for the life of the partie if the office be found for then the land is the Queenes by matter of recorde and therefore there must bee expresse wordes of restitution and as to the goodes the Queene is entituled to them without office x 29. H. 8. Br. chart de pard 52. so if it be found by office that I. N. the Queenes tenant was seised of certayne landes and dyed seysed and that W. his heyre intruded and after by acte of parliament the Queene pardoneth all intrusions in this case the entrie and offence are pardoned and released but not the issues and profits for the Queene was before entitled by matter of recorde a 33. H. 8. Br. charters de par 71. intrusi 21. Issues ret 22. for when any thing commeth to princely possession which did before belong to any inferior person it cannot bee restored to him without actuall donation And Xenophon sayeth that it hath beene a perpetuall lawe amongest all men that all thinges taken by warre whether they bee money goods or men doe belong to them which tooke them b Xenoph. lib. 7. Cyropae and Thucydides affirmeth the same to bee a common lawe to all nations c Thucyd. l. 3 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods and did remitte the residue to the conquered persons d Appian lib. de bel ciuil 2. And it hath alwaies beene accompted the propertie of barbarous nations to haue no lawe written nor ratified by common consent neither touching these rights nor prerogatiues nor other matters but onely the voluntarie conceite of the monarch as Liuie hath iudiciously obserued e Liui. lib. 37. But Aristotle maketh one exception from the rule and that is of the Spartan Kings whome hee affirmeth to haue directed their actions by prescript of lawe and Diodorus f Ar. 3. polit Siculus saith that the Aegyptian kings did first beginne to rule by a setled and determinate lawe and that all other nations were gouerned by the chaungeable wil of their soueraigne g Diodor. Sicul lib. 2. and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian Te legibus subiecisti legibus Caesar quas nemo principi scripsit And presently after he saith Quod ego nunc primum audio nunc primum dico non est princeps supra leges sed leges supra principem h Plin. in Panegyr But to open and declare further the soueraigne and ample authoritie of monarches ouer the lands and goodes of their subiects though it haue beene in auncient times held and affirmed by the ciuill law that such thinges as are parcell of the law of nations could not be taken away by the prince from his subiectes and therefore they might not be depriued of their demesnes or inheritance of lands or of the property of their goods and chattels which they enioy by the law of nations i