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
I substitute the one of them to the other that is if the one die the other shall haue all and the mother nothing at all t Gazalup verb. substitutio brem loqua Anglonomoph I haue noted in your wordes Codign two thinges which haue no small coherence and agreement with matters of our Law First in that by will according to your Law an entrie may be limitted to a straunger 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate and shal entirely claime the possession Which two assertions I shall seuerally prooue by cases of Law beginning with the first A man seised in fee of landes deuisable 3. By Will according to the common Law an entrie may be limitted to a stranger did deuise them to one for terme of his life and that he should be a Chapplein and that he should chaunt for his soule all his life time and that after his decease the tenements should remaine to the Cominaltie of a certaine village to finde a chappleine perpetuall for the same tenements and he died and the deuisee entred and held the landes sixe yeares and was no chappleine and the heire of the deuisour outed him and he brought an Assise And it seemed to the Court that the limitation that he should be a chappleine was no condition and that the heire could not enter for then the remainder should be defeated which may not be because by the intent a perpetuall chappleine ought to found u 29. Ass pla 17. Whereby it appeareth that they in the remainder were to take aduantage in this case of the breach of the thing that was to be done and not the heire So in Fitz Iames his case the clause of entrie was limitted to him in the remainder for breach of the condition by the particular tenant for it was helde that the limitation might determine the estate and that being determined he in the remainder might enter uu 13. et 14. Elizab. Com̄ 403. Newyses case Also 34. E. 3. the case was that a man had issue a sonne and a daughter and deuised land deuisable to one for life vpon condition that if the sonne should disturbe the tenant for life that the land should remaine to the daughter and the heires of her bodie the father dieth the sonne disturbeth the tenant for life who dieth the daughter brought a Formedon and it was allowed a 34. E. 3. Formedon pla vlt. But yet the aduantage of 4. The aduantage of entrie limitted to a stranger is in the late reports doubted of entrie by vertue of the limitation is not in other late reportes so cleare but hath been greatlie doubted of Stubes being Cestuy que vse deuised to his wife certaine land during her life ita quòd non faceret vastum the remainder to his yonger sonne in taile and died after the Statute of 27. of ioyning the possession to the vse is made the woman dieth the question was who should enter for the condition broken the heire the feoffees or he in the remainder b 3. Mar. 117. Dy. And an other case was equally doubtfull Wilford was bound in an Obligation without daie of payment limitted and deuised his land to his executors vppon condition that if they did not paie the said summe according to the obligation that the deuise should be voide and that then A. should haue the land to him and to his heires vppon condition that hee paied the money Wilford died A. died the executors are requested to pay the money and they would not pay it the question of the booke left vndecided is whether the heire of A. may enter into the land and paie the money c 3. Mar. 128. Dy. In like maner land in Gauelkind was deuised to the eldest sonne vpon condition that he should paie 100. li. to the wife of the deuisour he fayled of the payment it was questioned by Manwood whether the yonger sonne might enter into the moitie as by an implied limitation d 15. Eliz. 317. Dy. But touching such entries by force of some speciall limitation or condition Mast. Frowike giueth a good rule 21. H. 7. that an estate of inheritance can not cease by vertue of a condition broken onelie but there ought to be also an entrie But otherwise it is of a particular estate and the reason is because such an estate may be determined by word as by surrender and by the same reason it may cease by the wordes of the condition e 21. H. 7. 12. per Frowike Now that the 5. That the entrie for the condition broken defeateth the whole estate whole estate of the feoffee or donee is defeated by the breach of the condition and the entrie of the partie may be prooued by diuerse authorities in our Law and that there can be no fraction of the condition 14. Elizab. all the Iustices agreed And so was iudgement giuen in Winters case that by the graunt of the reuersion of part of the landes with which a condition runneth the condition is wholie confounded because it is a thing penall and entire and may not be apportioned nor diuided f 14. Elizab. 308. Dy. And 33. of Henrie the eight according to Mast. Brookes report it was helde for Law that if a man giue land in taile or lease it for life rendring rent with a condition for default of payment to reenter now if he lease part of the land to the donour or lessour or if the donour or lessour enter into part of the land he cannot enter for rent behind after but the condition is wholie suspended because a condition cannot be apportioned or diuided Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reportes A man leased land for yeares vppon condition that the lessee should not alien the land to anie person without the assent of the lessour nor any part of the land the lessour giueth licence to alien part and the lessee alieneth the residue without licence it was adiudged that the lessour may enter notwithstanding the dispensation of the condition ex parte g 16. Elizab. 334. Dy. Howsoeuer 5. Edw. 6. be to the same purpose that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour the remainder in fee to a straunger the one of them onelie maketh estate accordingly And by the opinion of manie this is good for a moitie by the dispensation of the partie who might take aduantage of the condition by his acceptance of estate h 5. Ed. 6. 69. Dy. For 23. Elizab. the case was such A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille he tooke twentie one fishes and gaue tenne to the obligee and an action of Dette was brought vpon the obligation and the plaintife recouered
because he did not giue vnto him the moitie of the other fishe This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates whether shall the other estates depending bee totallie defeated by the breach of the condition And surelie our Law is that the breach of the condition shall defeat no estate but onelie that whereunto it is annexed For the case was 3. Mar. that a man deuised land to his wife vppon condition that shee should bring vp his eldest sonne the remainder to the second sonne The elder sonne entreth for the condition broken hee shall onelie defeate the estate of the wife And if the tenant for life and hee in the remainder ioine in a feoffement vppon condition that if such an acte be not done that the tenant for life shall reenter this doth not defeate the entire estate of the feoffee i 3. Mar. 125. Dy. And if a gift of land be made in taile the remainder to the right heires of the donee vppon condition that if hee alien in fee then the donour may enter if the donour enter for the condition broken the estate taile is onelie defeated k 11. H. 7. 6. 13. H. 7. 23. 10. H. 7. 11. So if a man lease land for life by deede indented the remainder ouer in fee rendring a rent with clause of reentrie for non payment by the tenant for life and to reteigne the land during his life If hee enter for the condition broken he shall haue the land onlie during the life of the tenant for life l 29. Ass pla 17. Nomomath I giue yee great thankes for the vnwearied continuance of your paines and though I bee in questioning at a non-plus yet I see your inuention and memorie are not grauelled nor dryed vp parched as it were with summers drought I praie you therefore let vs still conuerse together vnder one roofe within my walles there is no Sinon no Dauus no Momus but chast learning cabboned with frugall contentment that if God doe still vouchsafe the Moone-diall of this darksome life with the reflexe of his intellectuall illumined influence this triple-wheeled clocke may still be kept in motion by the diuine agilitie of his Lawfauouring spirit A TABLE OF THE Sections or Diuisions of the principall pointes matters and questions which are handled in euerie Dialogue The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations The 1. Diuision 1. THe originall of tithes is inquired of 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes The 2. Diuision 1 The originall of tithes is demonstrated to be by the law of God 2. God his deputies for the receipt of tithes are set downe 3. The heathens which knew not God had great regard of of paying tithes 4. Lucullus is specially commended for the paying of tithes 5. Camillus is likewise commended for his diligence in procuring tenth to be payed 6. The Romanes carefull in paying first fruits 3. Diuision 1 Whether Parsons ought to haue no more liuing then tithes 2. It is denyed by the Canonist that they ought to haue no more liuing 4. Diuision 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes 2. The ciuill lawe agreeth thereunto 3. By the common lawe a man may prescribe in paying a temporall recompence in lieu of tithe 5. Diuision 1 Two sortes of tithes are set downe by the Canonist some feudall some ecclesiasticall 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe 3. The king of Fraunce his edict touching tithes is sette downe 4 That by the Canon law where the question of tithes is facti and not iuris the examination thereof may belong to a laye iudge 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie yet it be longeth to an ecclesiasticall iudge by the Canon law 6. Diuision 1 The nature of feudall tithes is opened by the Canonist 2 Charles Martle is accused of Church-pillage 3. The Canonist telleth a strange tale of Charles Martle 4. It is thought of Nomomathes to bee but a fable 5. One of the ancient statutes of England is compared with the aforesaid edict of the king of Fraunce 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spirituall iudge 7. Where one parson may sue a spoliation against the other in the spirituall court 8. The executors may bee sued in the spirituall court 9. Of what trees tithes may bee demaunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell 7. Diuision 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes 8. Diuision 8 The degrees which the Canon law obserueth in punishing offences in the clergie 2. Two sorts of excommunication sette downe by the Canonist 3 The compulsorie statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudall tithes 9. Diuision 1 The Ordinarie ex officio may cite men to pay tythes 10. Diuision 1 Two sortes of heretickes formatus and suspectus 2. In what cause the wife and children of heretickes shall enioy their landes 3. Heretickes by the ciuill law not punishable by fire 4. The Canonist poasteth the punishment of heretickes to the common law 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law 11. Diuision 1 What thinges may bee tearmed Church-land by the ciuill law 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe 3. The right of gleabe lande is triable by the common law 4. Lands deuised not subiect to the iurisdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court 12. Diuision 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia 2. The diuers significations of the word ecclesia at the common lawe 3. The interest of the Parson patron and Ordinarie in the Church is shewed 4. What thinges doe make a patron by the Canon law 5. Ius patronatus is one of the proper obiects of the common law 6. That an aduowson lieth in tenure 13. Diuision 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiastical Court 2. Periurie in an ecclesiasticall court punishable in an eclesiasticall court 3. Lindwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall law is not admitted 4 The barrister disproueth the generall citations of Bishoppes ad Sacramenta praestanda by the common lawe 5. Nomomath encountreth him in this point 6. The ciuill law agreeth with the Canon in matter
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
sort day but absolutely fully it is not because it is destitute bereft of the clere light of the sunne knowledge which relyeth vpon the sound foundation of things knowne is answerable to the day which is full of cleare and perfite light Now as opinion is more like to ignorance then to knowledge so euen-tide is more like to night whereupon ensueth that twilight must needs bee more like vnto night but now suppose that a paiment of money is assumed to be made within the compasse of such a day whether is it to be intended of the Romaine day or some other ciuill day or the natural day which is wholly in vse amongst the Venetians for in Venice the clocke is told foure and twenty times for the day and it is meete that this question should be decyded by the custome of each countrie Now come we to speake of howers which to the Romaines were not in vse during the space of three hundred yeares therefore in their lawes of the twelue tables times are otherwise set downe namely Sunne-rise Noone and Sunsett the first second third and fourth watch plenum forum ful market boum solutio the time of the loosing of the oxen from the plough accensa lumina candle light and such like names But to know the proper vse of these howers that are fitte to bee obserued which Paulus the Ciuilian noteth Cuiusque diei maior pars est horarum septem primarum diei non supremarum he meaneth not that there should be fourteene howers of the day because it is manifest that there are but twelue but his meaning is that the greatest parte of the day is spent in the first seuen howers if you accompt from the first hower to the seuenth inclusiuè as namelye from sixe a clocke in the morning to twelue a clocke for then there will remayne to the other parte of the day but fiue howers And the former parte of the day is not onely the better for the number of howers but because men in these howers are more apt for the dispatch of their busines Wherefore Nonius h Noni lib 9. de compendiosa doctrin vpon these wordes of Virgill Nunc adeo melior quoniam pars acta diei est commenteth thus Our youth is the best part of our age and so Maro wisely calleth the first part of the day the better part as being the youth of the day for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone yet these howers will not be so conuenient for perfitting of busines as the seauen abouesaid and therfore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue to which an other hath gon for a groat from six to twelue is not altogether vniust because in the afternoone men be more vnapt and more vnable to trauaile The last and least part of time if it be any part of time is a moment which may better be imagined then described for it is as swift as a man can imagin and what is more swift then imagination It hath receyued a definition somewhat obscure of Plato Momentum est quod nullo prorsus in tempore est i Pla. in Parmen It is taken by some to be punctum temporis for as a mathematicall point is that cuius nulla est pars so a moment is a point of time cuius nulla est pars yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis from a moment when he saith Quod momentum aut immo quod temporis punctum aut beneficio sterile aut vacuum laude k Plini in Panegyr the existence of a moment cannot possibly be discerned and therfore is not so much as the twinckling of an eye The vse of a moment is more fit for the operation of Law then for the act of a man for the Law doth operate without compasse of time in an instant but man neuer for euery act of man must haue space longer or shorter according to the qualitie of the work But the nature of such instants or moments which the Law doth imagin is such so sodaine vt omnem respuant moram as in the Ciuill Law is well noted l l. 23. §. vlt. D. de adult And the reason is because in the operation of Law that which it doth imagin to be done is dicto citius presently and without delay done m l. in suis D. de lib. et post and therefore it is commonly said it is done ipso iure or it is said ipso iure or ipso facto But this course can not be obserued in the actions of men who can not doe any thing without space of time because their act is alwayes continuate and therefore must needes be done continuo tempore And whereas the act of man is mixt with the act of Law though in regard of the same thing the act of the Law be momentary yet the act of man must needes beare some delay Those thinges by the ciuill Law which are taken from enemies doe incontinent become his who doth seise and take them n l. 5. §. vlt. de acquir re â—o The Law doth giue them vnto him presently but yet there must be a time to take them that the Law may giue them And so if when a Lease is made to A. of land for the terme of the life of B and A. dieth C. entreth into the land and inioyeth it as an occupant the Law because it wil not haue the freehold in suspence doth imagin that it was presently and immediatly in C. after the death of A and that he entred presently but if we respect this entrie as the act of man we must needes imagin that he had some time to enter into the land and by his entrie which is an act consisting of motion to gaine the freehold It remaineth now according to our purpose that after this discourse of the partes of time some thing should be spoken of the differences of time which I will handle verie briefely for the matters precedent haue giuen some light thereunto and they are not of themselues verie obscure And first to speak of the time which we cal a continuall time that in the ciuill Law is sometime taken for as much as during a mans life o l. 1. §. pe de off pre vrb l. 2. C. de his qui latr and therfore he that hath purchased land for his life is tearmed Perpetuarius p Alci lib. 1. parer g. c. 37. and in the common Law these wordes a touts iours make but an estate for life q Littlet lib. 1. cap. 1. fo 1. yet in proper sense it extendeth vnto the last mark of time A long or short time is distinguished either by the measure of the parts of time abouesaid or by the measure of the Law which is the discretion of the Iudge The differeÌ„ce which is made of auncient
shall hold iurisdiction by the common law plaintife it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard the spirituall Court onely should hold iurisdiction a 13. R. 2. iurisdict 19. And an assise likewise was brought of a house against a Parson who pleaded in bar that he was Parson of P. and that the house demanded was parcel of his said church from time out of mind and that there was sepulture of deade persons there wherefore Perseis opinion was that the court temporall ought not to holde plea in this case b 44. Ass pl. 8. but if 3 The right of gleabe land is triable by the common law the Parson of A. and the Parson of B. do contend in suite for a parcell of lande the one claiming it to bee his gleabe the other his it hath beene held in this case that the spirituall court shall not hold iurisdiction c 19. H. 6. 20. And Bracton likewise affirmeth that a thing giuen in frankalmoigne remaineth laye fee d Bract. li. 5. c. 16. and by 4 Lands deuised not subiect to the iurisdiction of the ecclesiasticall court our lawe a prohibition lyeth for chaunteries chappels prebendes and vicarages e Fitzh N. B. 40. G. 35. b. and if a man deuise lands or tenements deuisable the partie to whome the deuise is made shall not sue in court spirituall and if he doe the other shall haue a prohibition and therefore as Bracton saith the deuisee may enter without the 5 Suites for chattels reall must be in the spiritual court licence of the executor f Bracton vbi supr Perk. tit deuis but if a deuise bee made of goods and chattels reall as of a lease for tearme of yeares or of a warde there the suite must be in the spirituall court g Fitzh N. B. 43. G. and if a termor of certaine land doe deuise his croppe and dye the spirituall court shall hold plea for this croppe h 8. H. 3. prohibit 19. and if a man deuise corne or other goods to a man and a straunger will not suffer the executor to performe the testament in this point they may sue the stranger hereupon in the spirituall court but if a man take goods deuised out of the possession of the executors the law is otherwise for then they shal haue an action of trespasse at the common lawe i 4. H. 3. prohibit 28. but if a man sue another in the spirituall court for a rent reserued vpon a lease of tithes or offerings a prohibition wil lie in such case because it is a laye rent k 44. E. 3. 32 Nomomath Let me now know Canonol whē 12. Diuision a man graunteth to one ius patronatus of the church of Dale if this title bee controuersed in question whether shall the ecclesiasticall court or temporall hold iurisdiction Canonolog Surely I thinke it is determinable 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia in the ecclesiastical court because the right of patronage may passe by the word ecclesia as if a man said vnto me dono tibi ecclesiam S. Petri in Dale the aduowson of the church doeth passe l c. quod autem de iur patronat Anglonomop The word ecclesia is otherwise taken in our law for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebrated m 34. E. 1. quar impedit 187. And M. Fitzherbert saith that by this word ecclesia is meant onely a parsonage n Fitzh N. B. 32. G. and therefore if a presentment bemade to a chappell as to a church by the name of this word ecclesia this doth change and metamorphize the nature of it and maketh 2 The diuers significations of the word ecclesia at the common law it presently a Church o 17. E. 3. 58. 47. E. 3. 5. 21 13. H. 4. Briefe 870. and because by this word church is meant a church parochial therfore if a man haue an oratory or chappel within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chapleine for life to sing there yet hee hath not by this made it a Church but it remaineth still an oratorie and his freehold for here was no effectuall operation of lawe to force such a chaunge p 36. E. 3. 13. But if a writte bee brought of a Church in Dale and in Dale there bee both a Church and a Chappell yet the writte shall stand good for the reason aboue shewed q 20. E. 3. Brief 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33. and sometime it signifieth the Church which consisteth of stones walles and roofe r 8. H. 5. 4. Rolf. and sometimes the demesnes and profits of the benefice ſ 45. E. 3. 4. but verie seldome if at any time it is vsed for ius patronatus But if as you say the patronage shold passe by these words dono ecclesiam in all reasonable vnderstanding the patronage is to be distinguished frō the Church or benefice And therefore Pollard 12. H. 8. t 12. H. 8. 7. Prior. de Hunting c. doth well 3 The interest of the patron parson and ordinarie in the church is shewed distinguish the interest of the parson patron ordinarie as in a seuerall thing the parson saith hee hath a spirituall possession in the church the ordinarie hath charge of the church to see the cure serued the patron ius presentandi to the church which being well weied doth clearely bewray the imbecilitie in consequence of your proposed argument Canonol neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case as I shall hereafter shewe Nomomath What say you of this matter Codign Codign Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious Canonolog It is so in deed but by that lawe ius patronatus is meerely spirituall and not temporall as Anglonomoph would perswade for it is wholly after a spirituall manner carried ordered for though the patronage do arise of three things the foundation the edifying and 4 What things do make a patron by the Canon lawe the endowment u 26. q. 7. filijs ca. quicunque 18. q. 2. Abbat according to the ancient saying patronum faciunt dos aedificatio fundus yet it is no temporall thing because though a man bee condemned and his goods bee confiscated yet hee shall not lose his right of presenting x Gl. est in ver subiect § rursus in fi c. pastor al. in Cle. de re iudi neyther is this repugnant that to a Church parochiall hee may present to a Church
slaunder and diffamation which blemisheth the good name of others it detesteth and vtterly disfauoureth condemneth punisheth as a stepdame vnto rancor violent speeches the abortiue children of malice Wherefore an action vpon the case will lye at our law for calling the plaintife theefe Å¿ 27. H. 8. 22. and for calling the pr a false and periured man t 28. H. 8. Br. Acti sur le case 3. 30. H. 8. Br. Acti sur le case 104. so an action vpon the case lyeth for calling the pr false iustice of peace u 4. E. 6. Br. Acti sur le case 112. But to publish one for his villaine who in truth is his villain is no slander nor actionable x 2. E. 4. 5. nor to publish one to be a bastard who is in deed a bastard if the defendant doe make title to the bastardes lande and did therefore tearme him bastard that the matter might bee produced into question and triall y 25. Eliz. Baâ—isters case Nomomath Enough of this wee will passe now to other matters The third Dialogue Of Dettes NOmomath I pray you let me know 1 Diuision Codicgnostes all the waies meanes wherby one man may become indebted to another so that remedie may be had by processe of law for the debt Codign A dette may grow by writing or especialtie 1 Dette may grow by writing or especialtie as when the dettor confesseth himselfe to bee obliged and bound to his creditor and such bond or obligation may be by deede indented sub eadem forma verborum by mutuall deliuerie it becommeth the deed of them both a l. seruuÌ„ filij § eum qui chirographum ff de leg 1. Such a kind of writing wee call instrumentum 2 An obligation may be by deed indented at the ciuill law priuatum because it is done in the name and by the hand of a priuate man not in the name of any king or prince and this kind of instrument ought to haue the subscription of three witnesses b C. de proba l. but there is a priuate instrument of more solemnity which is called of 3 What instrumentum garraÌ„tigiae is at the ciuill law vs instrumentum garrantigiae an instrument of warrantie vpon which a man shall haue present execution as if it do specifie that one man is indebted to another this being presently exhibited in place of iudgement the iudge ought presently to awarde execution c ff de re iudi and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law d c. ex liter in glo 2. de fid instrument and there bee in our law three sorts of bonds Naturalis Ciuilis Praetoria Naturalis 4 Three sortes of bonds by the ciuill law is when as by mutuall contract one of the parties becommeth mutually bounde to the other Ciuilis is that which is made in forme of law whereof we haue aboue spoken wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money and bindeth himselfe for the payment of the saide summe Praetoria which is deuised and conceiued of the Pretor and Iudge in precise termes specifijng the debt e Insti de obli in prin Likewise debt may accrue 5 Dette may grow by way of contract vnto one by way of contract which is nothing els but the coÌ„sent of 2. persons for a thing to be done or giuen by the one to the other and it is on both sides obligatorious f de pac l. 1. §. 1. for if two doe consent in this true proposition Titius est homo or in this false assertion Titius est Asinus yet this is no contract because non vtrobique obligat f Gazalup verb. pactum for if the wordes or acte be obligatorie then the contract is obligatorie as contrariwise if the words or acte tend to acquittance then the contract is nothing els but an acquittall as if the creditor doe redeliuer the writing obligatorie vnto his dettor this is an acquittance in lawe for otherwise the redeliuerie should worke nothing g ff de pac l. labeo but if the creditor should redeliuer a pledge vnto the dettor this will not amount to any acquitall or release of the dette because the redeliuerie in that case may haue an other effect namely the vse of the pledge for a certaine time h l. sequent ff eo ti And if the instrument or especialtie of the dette be come to the hands of the dettor the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance i l. si chirograph ff de pig but this must be limited with this restreint if the dettor be a meere stranger in facto vnto the creditor but if he be his seruant or one of his familie conuersing in house with him then the intendment will bee otherwise for then the law will presume that he might easily come by the bond without the priuitie of the creditor k l. vnica §. ille C. de lati li. tol Canonol I haue not at any time obserued any thing in our lawe which maketh head against 6 The canon law agreeth with the ciuill in matters of bonds or dettes these determinations of lawe by you mentioned Anglonomoph Our law with some of these assertions fully agreeth and from some flatly disagreeth as I meane to manifest by examining 7 Dette may grow by contract by the common law in order the particulars of Codicgnostes his speech Dettes with vs may grow many waies and euerie way an action of dette will lye for it may grow by contract as Codicgnost hath auowched For if the husband sell trees growing vpon the land of his wife and the wife dieth before they be cut downe yet the husband may maintaine an action of dette so it is of a vendition by the tenant in taile so where a man hath a horse by wrong and selleth him to another for a certaine summe of money and before the deliuerie of the horse he dyeth or the owner taketh him away yet an action of dette lyeth vpon the vendition l 18. E. 4. 6. So if a man sell ten acres of land to another for ten pound and after he will make no assurance of the land yet he may maintain an action of dette for the money and the other is put to his action vpon the case but if it bee agreed that the assurance shall be made before a certaine day and the ten pound to be payed vpon the perfecting of the assurance then the lawe is otherwise For if hee make not the assurance before the day but after hee shall not haue an action of dette for the ten pound m 22. H. 6. 50. ê‘ Newt But if a tailor doe make a garment for mee if we bee
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
an elme tree in the place where the waste was assigned and did make a ditch in that place to water cattell which went vpon that ground which was necessary because the water was very lowe and almost dryed vp in that place by that meane he deduced water out of the earth and this was adiudged a good answere r 33. E. 3. Double plea. 9 Codicg That which you haue said is to reason consonant to our law correspondent for as to your first case of the clearing or amending of the conduit-pipes c. Though it be in another mans ground this in our law is not accompted iniurious Å¿ l. 1. c. de quae duc l. 11. l. de cernimus eo ti li. 2. But wee haue a rule in our 4 That the ciuil law agreeth with the common law in suffering and to amend conduit-pipes in another mans ground lawe that if a man ought to conuey water per subterraneos meatus through certain chinkes or crauies of the earth in an other mans ground he must not doe this by a leuill of stones but with pipes of leade because the other mans grounde is by stones more annoyed and empaired t ff de contrah emp. l. si aquae duct But for the improouing of ground from worse to better is clearely permitted by our law As to turne waste grounde into arable or fennish ground into firme ground this we accompt rather a benefite to the owner of the soyle then an iniurie u c. de fund patr l. si li. 11. So it is if a wood become arable x c. quod per noual de verb. signif but to destroy any thing in an other mans ground or to digge a pitte and so to alter the forme and nature of the soyle and by that meane to make it worse is accounted of vs very iniurious but to repaire an olde building or to make some commodious addition is not wrongfull but beneficiall because Non videtur nouum opus facere sed vetus reficere a ff de noua l. 1. §. nouum et §. si quis aedificium Canonol Our lawe doth not withstand any of these assertions Nomomath Well now I pray you proceed 3. Diuision to speake of the penaltie which hee is to suffer by your lawes that committeth waste Codicgn By our Law he that in such case 1. The punishment of wast by the Ciuill Law will denie the wrong done shall be punished with double damages But if he iustifie and it be found against him with single b ff de insti l. 1. §. 1. But he that doth breake the sluces of Nilus so that verie great iniurie is done and to verie manie he is burnt in the same place where the fault was committed in a fire of the height of twelue cubites and his goodes and landes are confiscated because it is crimen quasi laesae Maiestatis c C. de agge Ni non rump l. vâ— â—â— Canonol Our Law in this doth not gainsay you Anglonomoph By an action of Wast at our 2. The punishment of wast by the common Law Law the plaintife if it be found for him shall recouer treble dammages d Fitzh nat bre 58. H. and execution may be had by Elegit of the landes which the defendant had at the time of the inquest taken e 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Execut 66. and he shall recouer likewise the place wasted f Stat Glouc. cap. 6. Nomomath I will put you to no more paines in this matter but will discend to other things which haue not yet been discussed The sixt Dialogue Of Parceners NOmomath Let me know Codign whether in your Law there be any definition set downe established 1. Diuision touching Parceners as they are tearmed at the common Law and concerning the making of Particion betwixt them agreeable to the common Law Codicgn I would first that Anglonomoph should shew who be Parceners at the common Law and in what sort partition is made otherwise I should but roue at an vncertaine marke Nomomath I pray you do so Anglonomoph for that course is not to be disliked Anglonomoph Mast. Littleton a learned man 1. Two sortes of Parceners Parceners by the common Law and Parceners by custome in our Lawes and a great patriarch of our profession maketh two sortes of Parceners Parceners by the common Law and Parceners by custome Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple or fee taile haue no issue but daughters and die and the tenements discende to the daughters and they enter into the said landes or tenements now they are Parceners and how manie daughters so euer they be they are but one heire to their auncestour And they are called Parceners 2. Who be Parceners by the common Law because by the writ which is called de Particione facienda the Law will compell them to make particion of the land Also if a man seised of tenements in fee simple or in fee taile do die without issue of his bodie ingendred and the tenements discende to his sisters they are Parceners by our Law So if his landes discende to his Auntes a Littlet lib. 3. c. 1. fol. 54. And none bee called Parceners in our Law but women or the heires of women which come to landes and tenements by discent For if two sisters purchase landes or tenements thereof they be called Iointenants and not Parceners b Littlet ibidem fol. 56. But bretherne may be Parceners by the custome as by the custome of Gauelkind in Kent bb Littlet ibid. 59. Codicgn We haue an action in our Law 3. Who be Parceners by the Custome verie like to your aboue mencioned writ of Particione facienda and it is called actio familiae herciscundae and it lieth for them which haue a common inheritance to bee deuided betwixt them As when two sisters brothers or kinsfolkes are instituted heires and by that meane are reputed as seuerall heires to the auncestor or him that instituteth them c ff famil hercis l. 1. et 2. C. de verb. sign l. sin For if the Testatour pointing with his finger at three seuerall persons doe saie vnto them quilibet vestrum haeres mihi esto his 4. That by the Ciuill Law where three heires are instituted they are not reputed as one heire meaning by our Law is taken to be this that euery one of them should be heire in parte non in solidum for maeteria subiecta the thing it selfe doth require it because it is vnpossible by our Law that euery one of them should haue the inheritance in solidum d L. hoc artic ff in fi ff de haere insti But if he doe not speake distributiue but collectiue as if he said Quisquis mihi haeres erit det Titio centum solidos now whether there be one heire or
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
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
t Varro lib. 5. de lingua Lat. Cicer. lib. 2. de natur de or moneth twentie seauen dayes and eight howers others twentie nine dayes and twelue howers they doe measure by the motion of the Moone from poynt to poynt in the Circle that is when it is reuolued from one point to the same point These do set downe for the moneth that course of the Moone in which it doth tend reciprocally to the Sunne from which it newly digressed The Athenians did obserue the later order of the moneth froÌ„ whom though the Romanes did in circumstance agree yet in substance they accorded for their twelue monethes did not exceed that number of daies which doth coÌ„sist of the twelue lunarie monethes so that it is apparant that both these nations as all other follow the Moone in this businesse and for the more perfit obseruation of this course Sosigenes the Aegiptian perswaded and moued Caesar somewhat to alter the monethes and by consequence the yeare u Plut. in vit Caesar neither is this abhorrent from commen vse for let the case be that A. promiseth to B. that hee will for some consideration pay vnto B. the next moneth 20. li. and the assumpsit is made the eyght day of March whether may A. haue the space of the whole moneth of Aprill to pay the money in or hee must needes paye it before the eight day of Aprill next ensuing accompting the moneth from the eight daye of March Surely by commoÌ„ intendement he hath the whole moneth of Aprill to pay it in for the common people making more accompt of the Calender then of the Calendes doe set downe for a moneth as they find in the calender not as curious wits may measure by the calendes or by like proportion x L. 4. § Sti. si haered de statut Et stat August lib. 1. emend c. 2. The name of day in Latine dies Varro deriueth a deo or dio both which tend to one purpose In this discourse my endeuour is rather to open the natures then the names of things The day is thus defined by Plato in his booke De definitionibus if that booke be his Dies est ab ortibus ad occasus so that how many risings settings there are of the Sunne so many dayes he maketh Aristotle more exquisitly Dies est motus Solis supra nostrum horizontem a Aristotle Topic. 5. Two kinds of daies are most in vse the ciuill day and the naturall day the ciuill day it is therefore tearmed because diuers cities and countries made great diuersities of daies to which they did allot seuerall compasse of time The Romains did deduce the day from midnight to midnight u Plinie lib. 2. c. 77. next following placing the day as it were betwixt two nightes as in the beginning of the world night was before the day and night followed it but the day of the Vmbrians was from midday to midday of the Athenians from Sun sett to Sunne-set of the Babilonians from the ryse of Sunne to Sunne rysing the naturall day is that which consisteth of 24. howers being the space wherein the Sunne is rowled about by the motion of the whole bodie of the heauen from a certaine poynt to the same point The Astronomers make the beginning of this day at noone day or midday as the Vmbrians because to all inhabitants of nations continuing still in their regions the sun commeth alwayes at that time to their Meridian and to that circle which is caried through the toppes and poales of the heauen and euery region hath his meridian of one sort though they haue diuers meridians in number in particular but the rising falling of the sunne is not in any region alway of one sort because the points are chaunged and we see the sun diuersly to rise fall so that the Vmbrians may seeme in this to haue done rightly the Athenians and Babilonians not rightly the Romaines most rightely who haue not as the other nations contrary to the order of nature placed the night in the middest of the day but haue made the night as the two extremes of the day therefore haue placed part of the night in the beginning of the day and part in the end of which consideration our law may seeme to haue takeÌ„ regard in that the forepart of the night it assigneth to the day going before the later part to the day following which may euidently appeare by the inditements of burglary b Crompt I. P. tit indictamenta in sin lib. fol. 224. but the reason of the Romane constitution is learnedly deliuered by Plutarche c Plut. in quaest Roman qu. 83. at midnight saith he when the day of the Romains doth begin the sunne is in that region in the lowest point of the heauen from which it beginneth to tende and to returne to vs and to ascend to our Hemispheare wherefore rightly doth the day beginne then when the sunne that is the cause of the day doth moue toward vs therefore this constitution of the Romanes must needs seeme more probable then that of the Vmbrians because the beginning of a thing is rather to bee referred to that time when the thing groweth to existence then when it declineth and beginneth to leaue his existence so that the opinion seemeth to be good 11. Elizab. in my Lord Dyer his reports that whereas the case was that a lease was made to one of land the eight day of May to haue to hold for twentie one yeares thence next after ensuing the lessee entred the eight day and his entrie seemed lawfull and that he did not enter as a disseisor for by the word thence the first instance of the day in which the demise was made is to be intended and not the next day ensuing the date d 11. Eliz. 2â—6 Dyer so that I cannot see vpon what reason in the accompting of the sixe monethes according to the statute of 27. H. 8. of enrolments the day of the date of the deede of bargaine sale shall not be accompted for any e 5. Eliz. 2â—â— Dyer but the vulgar and common sort of men of all countries doe accompt the day from light to darkenesse which order the Canonistes do obserue f Comment ad l. Titius § Luci. de lib. post the night as Plato defineth it g Plat. in lib. de definit according to common admittance is nothing els but darkenesse Euentide is immediately after Sunset twilight is a doubtful time equally consisting of light and darknesse which is alwaies after euentide For as betwixt knowledge and ignorance there bee two meanes namely doubting and opinion so betwixt day night there is euentide twilight IgnoraÌ„ce is like to night doubting like to twilight opinioÌ„ is like to euentide because as opinion knoweth after a sort but knoweth not truely surely because it is not grounded vpon certain reason so euentide is after a