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
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
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
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
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
goodes Canonolog In this we dissent not from you Nomomath Let me know Anglonomoph what maner of execution ye vse for dette at the common Law Anglonomoph The execution is foure-fold 5. A fourefold execution for dette by the common Law either of goodes onely by Fieri facias or of the moitie of landes by Elegit or vpon all the landes by an Extendi facias vpon the reconusance of a statute or of the bodie by Capias ad satisfaciendum euery of which by your pacience I will explane by cases and examples or by shewing their originall A Fieri facias issued out of the Eschequer for the king against 6. The execution of goodes by Fieri facias is opened a Parson for money due to the king out of an Abbey to which the Church of the Parson was charged in xx markes and for two markes behind a Fieri facias issued to the Shirife in these wordes Fieri fac de bonis et catallis spiritualibus et temporalibus prouenientibus de Rectoria de R. and the Shirife by his bailie tooke two bookes in the Church and sold them for the kings dette l 8. H. 5. 4. And wheras A. did recouer dammages in a speciall assise before speciall Iustices and brought an action of Dette for the dammages it was resolued that the defendant was dettor of recorde and therefore ought to be discharged by matter of recorde and for that cause the Fieri facias is ita quod habeas denarios hic to the intent that the payment of the money to the plaintife may be of recorde and the defendant discharged by recorde m 11. H. 4. 58. Execution by Elegit is warranted by the Statute of Westminster 2. cap. 18. which saith Si quis recuperet debitum aut damna sit in electione querentis an habere velit Fieri facias de terris catallis it should seeme to be meant de bonis catallis vel quòd Vicecomes liberet it seemeth to be better et quòd Vicecomes liberet ei omnia catalla debitoris exceptis bobus et affris carucae suae medietatem it seemeth more agreeable to the purpose vel medietatem terrae suae quousquè debitum fuerit leuatum per rationabile pretium et extentam The execution vpon 8. Execution vpon statute merchant is opened Statute merchant may appeare by this case A man had execution out of statute merchant and the Shirife returned an Extent of the lands of the reconusor in this maner sciz that he had sent to the baylie of the fraunchise c. who had retourne of writs to extende the landes which were within the fraunchise and so he did and that which was within the bayliwicke of the Shirife namelie in guildable himselfe caused to be extended by parcels and at the end he put the summe of the value and after the summe he put the charges as rents and other charges which were due out of the said landes and amongest other charges he retourned that the land was charged to the reconusee with xx li. yearely for euer And the Iustices cast all the charges of the landes and the value and they did perceiue that the charges passed the value by xl s' and after it was shewed that the Shirife had sent to an other Baylife of an other fraunchise in which the partie had lands and of these landes he made the third extent so that by that extent the value passed the charges by tenne shillinges wherefore execution was awarded n 29. E. 3. 1. And 9. E. 3. one sued a writ to take the bodie of him who had made a statute merchant to him and the Shirife retourned that he was dead wherefore he praied a writ to the Shirife to deliuer vnto him all the lands which he had the day of the reconusance or at any time after and he had it o 9. E. 3. 24. Execution by Capias 8. Execution by Capias ad satisfaciendum is shewed and imprisonment is after this manner Dammages were recouered against I. in a writ of Trespas in the kinges bench in the time of king Henry the fourth and after in the time of king Henry the fifth he was condemned in London at the suit of an other and put in Newgate and he at whose suit he was condemned in the kings bench had a Capias ad satisfaciendum to the Shirifes of L. which did send the bodie and did certifie that he was condemned at manie mens suites in London and now he that sued the Capias came into the Court and did acknowledge agreement to be made and the defendant was readie to make a fine to the king and praied to be deliuered But because he was condemned in the time of an other king and the Iustices which be now haue not knowledge of the persons which were parties to the pleas in the time of an other king as the Law doth intende and likewise because if he be acquited heere he must be sent backe into London because hee is condemned there and thirdlie because by couin betwixt him which acknowledgeth agreement and the defendant he may defraud him at whose suit he is condemned of his execution for if he be deliuered the other is without remedie therefore a Scire facias was awarded p 8. H. 5. 7. The like Law is in an execution vpon an Action of Dette and in an acquitall the fine to the king being excepted Nomomath Well I will trouble you no further about questions of Dette Now let vs passe according to the platforme of the conference to examine doubtes touching Accomptes The fourth Dialogue Of Accomptes NOmomath Suppose Codicgnostes 1. Diuision that I deliuer vnto you my horse or hauke to sell him for fyue poundes and to deliuer me either the fiue poundes or redeliuer the thing againe Shall you not be accomptable to me in this regarde Codicgn Yes truelie and that by an action 1. In what case a man is accomptable at the Giuill Law per actionem aestimatoriam which we call Actionem aestimatoriam because it is conceyued vppon the speciall and prescript wordes of the valuation of the thing a ff de aestima ac in rubro et l. 1. et Insti de actio §. actionum Anglonomoph So by our Law we haue a 2. The difference of a speciall bailie and generall bailie at the common Law speciall bailie and a generall bailie A speciall bailie is he which is bailie after a speciall maner and to a speciall purpose For if a man deliuer an Obligation to an other to receiue so much money as he can get of that which is contained in the bond if he receiue no money vpon the bond a writ of Accompt lyeth not but a writ of Detinue for the bond But it seemeth that if hee receiue a lesse summe then a writ of Accompt will lie But if he receiue the verie summe conteined in the bond then a writ of Accompt will
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
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
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
vnto you vpon the aforesaid condition I shall now owe vnto you absolutelie and without condition whether in this case is the agreement of any force to defeat the condition Codicgn By our Law it is of force to ouerthrow 1. An agreement by word may defeat a condition in writing at the ciuill Law the condition for it is a renewing of the bond as we tearme it and so the later bond shall preiudice and swallow vp the former k ff de nous et C. eo ti Anglonomoph Our Law holdeth the contrarie 2. The common Law is quite contrarie to the aforesaid assertion of the Ciuill Law and the reason is this because it is an inconuenience in reason that an especialtie sealed and solempnlie deliuered should be auoyded by the bare agreement of the parties which is but a meere matter in facto l 1. H. 7. 14. Dones case per Dauers Yet in some cases it is not inconuenient that an obligation should be auoided by a matter in fasto where there is a strong and peremptorie operation in Law As if a man be bound to a feme sole and afterward he marieth her Or if a man be bound to a villaine and after he purchaseth the manour to which the villeine is regardant the mariage the purchase may be pleaded in auoidance of the especialtie So in an auoydance of a statute merchant it is a good plea to saie that part of the land is purchased by the reconusee So in a writ of Annuitie it is a good plea to saie that he hath paied it in a foreine countie So if a man by deede graunt a rent if the grauntee surrender the rent with the especialtie this is a good auoydance of the especialtie m 1. H. 7. Dones case per Keble But where a man was bound to paie xx nobles at a certaine day and if he failed that then he would loose x. li. paiable at the same day an action of Dette was brought for the x. pound and it was allowed n 26. E. 3. 71. for here there were two seuerall bandes one of them consequent vppon the other but not abolishing the other And if a defeasance vpon a statute marchant be that the payment of the money should be made at Bristowe and the conusee receiued it at an other place this is a good discharge of the statute for now the Law hath discharged it o 46. E. 3. 4. But one matter of recorde may be auoided by an other Therefore the case was 20. E. 3. in a writ of Accompt the defendant said that the plaintife by a deede which he shewed forth did graunt that if the defendant did make a reconusance vpon statute marchant such a daie at Canterburie to the plaintife that the writ of accompt should be held as voide This was admitted by the Court to be a good agreement to auoide the writ of annuitie as soone as the statute is deliuered to the plaintife p 20. E. 3. Accompt 79. Nomomath I would know Codicgn what your Law doth determine of impossible conditions whether it doth vtterlie reiect them or what force and effect it assigneth vnto them Codicgn Impossibilitie our Law maketh 1. Three sortes of impossibilities at the Ciuill Law three-fold iuris facti et naturae Iuris as when there is a repugnancie in the condition so that the Law doth wholie frustrate and disanull the condition or els it is directlie contrarie to the Law As if a man should contract with a 2. What impossibilitas iuru is at the Ciuill Law woman si prolem euitauerit or si adulteram se praestiterit the one of these being against the Law of nature the other against the Law of God both of them are by our Law made voide q C. fi de condi appo And indeed there is a repugnancie betwixt the contract and the condition mariage being a thing instituted and ordeined for the procreation of children and the auoyding of fornication Impossibilitas facti is when 3. What impossibilitas facti is at the Ciuill Law there is great difficultie in the thing that is to be done and it is not possible to bee easilie done howbeit it is not absolutelie impossible to be done this impossibilitie of the condition doth frustrate the act precedent As if I say that Stichus my villeine shall be free if he will giue a thousand pound for his freedome this though it be not impossible yet it is verie difficult for a villein to performe because of the difficultie the Law will imagine that I did but trifle by this forme of enfranchisement and so Stichus shall gaine nothing by it r L. cum haere §. 1. ff de sta li. So it is if a man being at Yorke bee bound to paie to an other at London x. pound before sunne-set this though it be not impossible in it selfe because a Pegasus or poast-horse may help the matter yet because it can not with any facilitie be pefourmed within so short time our Law holdeth the condition to be voide ſ Insti de verb. obli §. loca Impossible by nature that is said to be which is 4. Impossibilitas naturae by the Ciuil Law repugnant to naturall reason and contrarie to the course of nature As if I giue a horse to one vppon condition that he shall touch heauen with one of his fingers or that he shall extinguish fire with oyle or that he shall build a village in the cloudes t Ioan. ad reg Nemo li. be reg iur Nomomath These differences haue been well opened by Codicgnostes Now I will request you Anglonomoph to explane and illustrate them by cases Anglonomoph I will particularlie speake of 5. Which be conditions against Law by the censure of the common Law them all And first of Conditions against Law If estates in land be made vppon conditions contrarie to Law the estates be good and the conditions voide But then the estates must not begin neither take effect by force of the condition neither depende vpon such conditions as to the existence of them But if a man seised of land doe enfeoffe a straunger vppon condition that if the feoffour doe kill I. S. one of the Queenes subiectes it shall be lawfull for him to reenter the estate is good and the condition voide u 4. H. 7. 4. 2. H. 4. 9. So it is if one enfeoffe an other vpon condition that if the feoffour doe burne the houses of I. S. it shall bee lawfull for him to reenter uu Perk. Condic 139. for such conditions are impossible to bee good by Law But if a lease for life be made or a lease for yeares of land vpon condition that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heyres foreuer notwithstanding that the lessee do kill I. S. within the day yet his estate
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
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
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
§ 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