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
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
betwixt the laps and the kinges presentment q Ibid. fol. 21. It is answered by some that the ordinarie may present one who shall be remouable at the kings will and some thinke that he shal sequester the profites of the benefice to serue the cure but in some case the King may not surcease his time as if the tenant for terme of life do forfeit his estate to the king if he be not seised during his life hee may not afterward seise it qq 8. H. 5. Trauers 47. but in this case the reason is because hee can haue no other estate then he which forfeiteth and he which commeth in of the estate of an other can haue no greater right then he had for if a man haue land in the right of his wife or in the right of a Church hee can not haue it otherwise then the Church or the wife hath it r 18. E. 3. 20. so if there be Lord and tenant and the tenant alieneth in mortmaine and the Lorde entreth yet hee shall haue onely such right in the land as he hath in the seigniorie notwithstanding that the statute do say Quod proximus dominus intrabit retinebit in feodo ſ 39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded vpon naturall reason and naturalia sunt immutabilia and the princely prescription must bee maintained bona fide Wherefore the Duke of Sauoy which had the Cittie of Nice in pledge of the French King did vniustly withhold that Cittie frō the king being the lawful owner then because hee had inueterate possession in the same for by the ciuil law a man may not prescribe in a pledge t l. 9. C. de pl. act Deci. 3. consi 108. and Iouius is likewise angrie against the king of Fraunce himselfe for keeping Perpinianum in the like sort Parum sincera fide saith he veteris pacti conditionem multis cauillationibus inuoluebat u Iou. lib. 1. for it is true that Cephalus saith in quaestione valde dubitabili non est praescriptio x Ceph cons 102. But surely bonafides is requisite in such matters of prescription except it be apparāt that the will of God is for the prescription Wherefore Bellarmin confesseth that the Turke doth lawfully possesse such thinges as hee hath taken from vs because God his will is that for our sins we should be cast out of the land wherein we and our ancestors inhabited a Bellar. 5. contr But he doth not possesse them bonafide because hee can not by any speciall meane conuey them particularly to himselfe for as Doctor Gentilis hath well obserued An Turcae opinio latrocinantis cogitat de iusta voluntate Dei b Alb. Gentil lib. de iu. bel 1. 22. Aratus the Sicyonian was so strong and peremptorie for the title of prescription that hee did not thinke it conuenient to remoue or take away from the vsurpers any thing that they haue violently taken from the owner if they haue had possession during the space of fiftie yeares onely c Cicer. 2. de offic Prescription hath alwayes beene of force to hinder these that had right to pursue their clayme Wherefore Demosthenes sayth well Hee that hath helde an other mans landes or goodes a long time should not please himself therewith but impute it to fortune which hath hindred the lawfull owners d Demosth ad maca Is any thing more to bee laughed at then that which is said of some interpreters of the law who are not to bee laughed at that the kingdome of Spaine may now be claimed by the Romane Emperour by reason of his ancient imperiall right whereas it is manifest that sithence the time of the ancient Romane Emperours it hath beene a long time possest of the Saracens a long time of the Spaniards The fifth Chapter That by the consent of all nations consent principally maketh a lawfull mariage IF a man should examine the seueral rites circumstances and ceremonies of the diuers people of the worlde in the knitting and celebrating of mariage he might as well number and obserue the diuerse-couloured spottes of the Chamaeleon for euery nation hath had in this by some fatall lotte both their custome and chaunge of custome I will onely endeuor to proue that which is conteined in my assertion that by the consent of all nations c. The definition of thinges is alway the best proofe therefore it is good to beginne this discourse with the definition of mariage Mariage is the lawfull coniunction of man and woman conteining an indiuiduall societie of life and the participation of diuine and humane right a 30. q. c. nullam where it is said a lawfull coniunction nothing els is meant but a free consent executed by the contract which as it is the beginning of the definition so it is the ground of the mariage and these wordes conteining an indiuiduall societie of life do signifie that they shall continue foreuer together as long as they liue Howbeit the rule of the common Law do in this sauour of the irregular Religion Post contractum matrimonij ante carnalem copulam possit alter altero inuito religionem intrare b Gazalup in verb. nuptiae And for the further proofe that the ground of mariage is consent there be three thinges by the Canon Law required to mariage c Codi ap C. vlti c. 27. q. 2. Fides Proles and Sacramentum Fidelitie which is put in the first place is the hart of mariage and it springeth of consent and therefore if a man do contract with a woman in this sort Contraho tecum si te pro quaestu adulter andum exposueris this is no contract of mariage because it is contra bonum fidei which consisteth in this that neither of the maried couple shall break the bond of mariage but shall faithfully and vnitedly obserue it Likewise Progenie is an other thing that mariage requireth and therefore it can not be a good contract of mariage if it be made in this forme Contraho tecum si generationem prolis euites or si venenum sterilitatis accipias because mariage was instituted of God for the solace of man and the multiplication of mankind by children Thirdly a solemne promise is requisite in mariage and therefore if a man do contract with a woman donec ditiorem vel pulchriorem habeat faeminam this is no good league of mariage because it is contrarie to the oath of an indiuiduall societie And so if any man in a foreine land sucking as yet the smoak of the Popes Tobaccho be a votarie to Religion and a bondslaue to his cloyster for England the Lord be praised is at this day as free from Monkes as it is from wolues Three things are required at his handes namely chastitie obedience and the abdication of propertie as well in landes as in goodes d Gazalup in verb. matrimon But that
collegiate the lawe is that though his assent goe not to the election of the partie who is to be the gouernor yet our law commandeth that after the election it should bee registred a c. nobis de iur patronat Yet it seemeth to be spirituall because if a laye patron doe present one and after will varie and present another nowe it is left to the arbiterment of the Ordinarie which of them hee will admit b 2. dist c. ecclesiastic et c. quod autem de iur patronat and hee which is so refused by the Bishop hath no remedie against the second presentee but he may haue remedie against the Bishop for his vniust refusall or wrongfull delay and his remedie in this case is a duplex querela against an inferior Ordinarie and this must be handled in the spirituall court c Pastoralis co tit Anglonomoph Yea but the reason of that is giuen in our lawe because the right of patronage shall not come in debate d Regist 55. Canonol This is petere principium but let me proceed There is such a mutuall correspondence betwixt the patron the Church that they may not bee seuered either in gouernment or in iurisdiction for though the patron hath aliquid honoris as we said because he is to haue the first place in the procession e 16. q. 7. piae mentis yet hee hath also aliquid oneris for he is bound by our lawe to defend the Church from all oppressions f 17. q. 7. filiis and in that regard if he fall into pouertie he is to be mainteined de bonis ecclesiae g Praealleg c. filijs Anglonomoph These circumstances do not inferre the conclusion which you labour for It shall appeare to you Canonologus by our law and by verie strong reason that the right of patronage 5 Ius patronatus is one of the proper obiects of the common law or the aduowson of the Church is one of the proper obiects of the common law First it is a rule with vs that if a man be sued in the spirituall court for a laye fee a prohibition will lye that is for lands and tenementes as M. Fitzh well expoundeth it h Fitzh N. B. 40. I. Now that an aduowson is a tenement lyeth in tenure may 6 That an aduowson lyeth in tenure by seuerall authorities be auouched and therfore a tenure ought as well to bee found by office of an aduowosn as of a mannor i 14. H. 7. 28. â— Bri. 17. E. 3. 10. and a lease for yeares may be made of an aduowson and if the lessee alien in fee this is a disseisin to the lessor k 7. E. 3. 11. and 15. H. 7. all the Iustices agree that an aduowson lyeth in tenure l 15. H. 7 8. And for that cause if one hold and aduowson of the king and graunt it to another without licence the grauntee shall pay a fine m 21. E. 3. 31. 20. E. 3. Estoppel 187. And generally vpon any surmise that a man is sued in the spirituall court for a temporall thing a prohibition will lie n Fitzh 43. h. Now the aduowson is temporall though the admission institutioÌ„ be spiritual Nomomath Let me aske you further this question 13. Diuision if a man sweare to me that he will make me a feofement of certaine land before such a day and he doth it not whether may I sue him in the spirituall court pro laesione fidei Anglonomoph No for if you do a prohibition 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiasticall court will lie by our law because the acte which is to be done is a temporal acte is to be tried by the commoÌ„ law o 38. H. 6. 29. Fitzh 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni 16. D. S. lib. 2. c. 24. and if men be sworne to giue true euidence to a iurie and they doe so whereupon certain persons be endited of some misdemeanor if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath they may make a prohibition p Fitzh N. B. 42. F. 11. H. 4. 88. prohib 12. but if any periurie be committed in a spirituall 2 Periurie in an ecclesiasticall court punishable in an ecclesiasticall court court there the spirituall court shall haue iurisdiction q Stat. de circumspect agat 13. E. 1. 5. Elizab c. 23. c. 9. but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio though not at the suite of the partie r 20. E. 4. 10. and if a woman haue title to sue a Cui in vita and she maketh oath to the tenant of the land that she will not sue any cui in vita against him if after she sue a Cui in vita and thereupon the tenant sueth her in the spirituall court pro laesione fidei shee may haue a prohibition because the oath toucheth a temporall thing namely land Å¿ Fitzh N. B. 42. â— 4. H. 3. prohibit 19. Bracton lib. 5. c. 2. And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day and at the day hee fayleth of the paiment hee may not now be sued in the spirituall court for the periurie because an action of debt lyeth at the commoÌ„ law for the principal t 22. E. 4. 11. H. 4. 88. prohib 12. But 34. H. 6 it is saide that if a man buy an horse for fiue pounde soluend such a day and sweareth to make paiment at the day but when the day is come fayleth of payment an action of debt lyeth at the common lawe and an other at the spirituall lawe pro laesione fidei and a writ of prohibition lyeth not because they be two distinct thinges u 34. H. 6. 30 Br. prohib 2. yet 2. H. 4. is that a prohibition lyeth in such case x 2. H. 4. 10. Canonolog But Lindwood sheweth that a libell may be so framed that no Prohibition will lie in your last recited case as namelie the libell may be That the partie hath damnablie broken his oath pretending that he was not bound by it a Lindw in capit aeter sanctio verb. periur Anglonomoph That is but a weake support 3. Linwoods authoritie touching punishment pro lâ—sione fidei in temporall matters at the ecclesiasticall Law is not admitted of the spirituall iurisdiction for it is one thing to be punished for periurie an other for his irreligious pretence And surelie I take it to be agreeable to all Lawes that pretenses and intents are not punishable but onelie in crimine laesae Maiestatis And a man may sue a Prohibition directed to the Shirife that he shall not permit nor suffer the Queenes lay
any wayne ouer such a bridge being fraught with carriage shall paie iiij d' and the partie causeth all the thinges in the wayne when he commeth to the bridge to be caried ouer the bridge on mens backes here is no defraudation of the Law But if he should giue iiij pence for the cariage ouer the bridge but not currant money now the Law should be defrauded e Io. in §. penult Insti de â—dop And when a man is preiudiced by the fraudulent dealing of an other man he may by our Law haue an action against him which is called actio doli an action of Deceit Canonolog Indeede the difference of Dolus is vsed likewise in our Law And we haue a rule of that which you haue tearmed dolum bonum 3. The same difference the common Law obserueth Frangenti fidem fides frangatur eidem f 23. q. 1. noli existimare C. de pac l. cum proponas in glo Accur And likewise an example of it vsed in our law namelie of Salomon who did vse such cunning betwixt the two harlots in searching out who was the true and naturall mother of the child But the deceit which of you hath ben tearmed dolus malus is in our Law nomen reatus which it doth punish as being done against the Law for qui peccat non peccat de legis authoritate g 23. q. 4. qui peccat Anglonomoph That deceit which of ye both 4. Dolus malus punishable at the common Law by an action vpon the case or a writ of Deceit hath been tearmed dolus malus doth not in our Law escape punishment but for the more strong inhibiting and repressing of it it doth afforde a double remedie against such as endammage others by deceit namelie either a writ of Deceit or an Action vpon the case For if a man plaie with an other at dice and he hath false dice with which he plaieth and winneth the other mans money he that loseth his money in such sort may haue an Action vpon the case for this deceit And in other like cases an Action vpon the case or a writ of Deceit will lie at the pleasure and election of the plaintife And if I present one to a Church whereof I am Patron to the Ordinarie and one T. disturbeth me wherefore an other man purchaseth a Quare impedit in my name retournable in the Common place I not knowing thereof against the said T. and after causeth the writ to be abated or me to be nonsuit in the action I may haue a writ of Deceit against him h 5. 5. E. 3. Quare impedit 37. 20. H. 6. 20. Fitzh nat bro. 96. A. And in euery case an action vpon the case is maintenable against him which sueth an originall in the name of the plaintife against his will i 7. H. 6. 45. So if a man forge a statute merchant in my name sue a Capias therupon whereby I am arrested and had in execution I may haue a writ of Deceit against him that forged it k 19. H. 6. 44. 58. 34. H. 6. 19. Fitzh Nat. be 96. B. So if the Warden of an Infant vouch one by couin who is not sufficient or pleadeth some bad plea wheras he might haue pleaded a better plea the Infant shall haue a writ of Deceit against him and shall recouer the full value in dammages l 9. E. 4. 34. And 11. H. 6. a writ of Deceit was brought against an Attourney for acknowledging a satisfaction whereas his master was not in truth satisfied m 11. H. 6. 34. And in a Praecipe quod reddat if the Shirife retorne the tenant of the land to be summoned whereas in truth he was neuer summoned whereupon the tenant loseth by default vpon the Graund cape retourned Now the tenant may haue a writ of Deceit against him that recouered and against the Shirife for his false retourne n Fitzh Nat. bre 97. C. But the writ of Deceit in this case doth not determine the right of the land but doth only defeat the iudgement o 35. H. 6. 44. 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18. And 5. E. 4. is that no dammages in this case shall be recouered against the Shirife but he shall be onelie fined p 5. E. 4. 49. And if a man recouer in a writ of Wast by default whereas the defendant was neuer summoned the defendant in this case may haue a writ of Deceit q 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. Disceit 56. 19. E. 3. Disceit 3. And if a man bargaine with an other and assume vpon consideration to enfeoffe him of certaine land and he enfeoffeth an other he to whom the assumpsit was made may haue a writ of Deceit r 20. H. 6. 36. 16. E. 4. 9. Fitzh Nat. br 98. F. or an Action vpon the case at his pleasure Å¿ 3. H. 7. 14. 2. H 7. 11. And if one sell to an other a Horse which he knoweth to haue a secreat disease in his bodie or selleth certaine quarters of Graine which is full of grauell a writ of Deceit lieth t 20. H. 6. 36. So 13. H. 4. a writ of Deceit was brought for selling a certaine quantitie of wooll and warranting it to be 50. sackes whereas it wanted of that measure the defendant pleaded in barre that it was weyed before the sale and that the seruants of the plaintife being his factors did accepr it and caried it beyond the sea whereupon the plaintife demurred u 13. H. 4. 1. And if a man lose his land by default in a Praecipe quod reddat whereas he was neuer summoned and die his heire may haue an action of Deceit and shall haue restitution of the land uu 8. H. 6. 5. per Rolfe 15. E. 3. Disceit 43. 18. R. 2. Disceit 50. Fitzh Nat. bre 98. Q. And 1. E. 3. in the booke of Assises it is said that if a recouerie in such case be had against the father by default whereas in truth the father was dead at the time of the recouerie the heire may auoide this by writ of Disceit or Error a 1. Ass p. 16. And whereas there be two tenants for life the remainder to the heires of one of them and they both lose by default being not summoned and the tenant for life dieth the suruiuor shall haue a writ of Disceit for the whole Otherwise it had been if the recouerie had been against the tenant for life onelie by default b 8. E. 3. Disceit 7. Nomomath You haue sufficientlie discussed 7. Diuision the point of deceit Now I would craue your opinions of an other matter Suppose that a man by slaunderous and opprobrious speeches is impeached and his good name impaired this being but a verball iniurie whether doe your Lawes inflict punishment vpon such
slaunder and diffamation which blemisheth the good name of others it detesteth and vtterly disfauoureth condemneth punisheth as a stepdame vnto rancor violent speeches the abortiue children of malice Wherefore an action vpon the case will lye at our law for calling the plaintife theefe Å¿ 27. H. 8. 22. and for calling the pr a false and periured man t 28. H. 8. Br. Acti sur le case 3. 30. H. 8. Br. Acti sur le case 104. so an action vpon the case lyeth for calling the pr false iustice of peace u 4. E. 6. Br. Acti sur le case 112. But to publish one for his villaine who in truth is his villain is no slander nor actionable x 2. E. 4. 5. nor to publish one to be a bastard who is in deed a bastard if the defendant doe make title to the bastardes lande and did therefore tearme him bastard that the matter might bee produced into question and triall y 25. Eliz. Baâ—isters case Nomomath Enough of this wee will passe now to other matters The third Dialogue Of Dettes NOmomath I pray you let me know 1 Diuision Codicgnostes all the waies meanes wherby one man may become indebted to another so that remedie may be had by processe of law for the debt Codign A dette may grow by writing or especialtie 1 Dette may grow by writing or especialtie as when the dettor confesseth himselfe to bee obliged and bound to his creditor and such bond or obligation may be by deede indented sub eadem forma verborum by mutuall deliuerie it becommeth the deed of them both a l. seruuÌ„ filij § eum qui chirographum ff de leg 1. Such a kind of writing wee call instrumentum 2 An obligation may be by deed indented at the ciuill law priuatum because it is done in the name and by the hand of a priuate man not in the name of any king or prince and this kind of instrument ought to haue the subscription of three witnesses b C. de proba l. but there is a priuate instrument of more solemnity which is called of 3 What instrumentum garraÌ„tigiae is at the ciuill law vs instrumentum garrantigiae an instrument of warrantie vpon which a man shall haue present execution as if it do specifie that one man is indebted to another this being presently exhibited in place of iudgement the iudge ought presently to awarde execution c ff de re iudi and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law d c. ex liter in glo 2. de fid instrument and there bee in our law three sorts of bonds Naturalis Ciuilis Praetoria Naturalis 4 Three sortes of bonds by the ciuill law is when as by mutuall contract one of the parties becommeth mutually bounde to the other Ciuilis is that which is made in forme of law whereof we haue aboue spoken wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money and bindeth himselfe for the payment of the saide summe Praetoria which is deuised and conceiued of the Pretor and Iudge in precise termes specifijng the debt e Insti de obli in prin Likewise debt may accrue 5 Dette may grow by way of contract vnto one by way of contract which is nothing els but the coÌ„sent of 2. persons for a thing to be done or giuen by the one to the other and it is on both sides obligatorious f de pac l. 1. §. 1. for if two doe consent in this true proposition Titius est homo or in this false assertion Titius est Asinus yet this is no contract because non vtrobique obligat f Gazalup verb. pactum for if the wordes or acte be obligatorie then the contract is obligatorie as contrariwise if the words or acte tend to acquittance then the contract is nothing els but an acquittall as if the creditor doe redeliuer the writing obligatorie vnto his dettor this is an acquittance in lawe for otherwise the redeliuerie should worke nothing g ff de pac l. labeo but if the creditor should redeliuer a pledge vnto the dettor this will not amount to any acquitall or release of the dette because the redeliuerie in that case may haue an other effect namely the vse of the pledge for a certaine time h l. sequent ff eo ti And if the instrument or especialtie of the dette be come to the hands of the dettor the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance i l. si chirograph ff de pig but this must be limited with this restreint if the dettor be a meere stranger in facto vnto the creditor but if he be his seruant or one of his familie conuersing in house with him then the intendment will bee otherwise for then the law will presume that he might easily come by the bond without the priuitie of the creditor k l. vnica §. ille C. de lati li. tol Canonol I haue not at any time obserued any thing in our lawe which maketh head against 6 The canon law agreeth with the ciuill in matters of bonds or dettes these determinations of lawe by you mentioned Anglonomoph Our law with some of these assertions fully agreeth and from some flatly disagreeth as I meane to manifest by examining 7 Dette may grow by contract by the common law in order the particulars of Codicgnostes his speech Dettes with vs may grow many waies and euerie way an action of dette will lye for it may grow by contract as Codicgnost hath auowched For if the husband sell trees growing vpon the land of his wife and the wife dieth before they be cut downe yet the husband may maintaine an action of dette so it is of a vendition by the tenant in taile so where a man hath a horse by wrong and selleth him to another for a certaine summe of money and before the deliuerie of the horse he dyeth or the owner taketh him away yet an action of dette lyeth vpon the vendition l 18. E. 4. 6. So if a man sell ten acres of land to another for ten pound and after he will make no assurance of the land yet he may maintain an action of dette for the money and the other is put to his action vpon the case but if it bee agreed that the assurance shall be made before a certaine day and the ten pound to be payed vpon the perfecting of the assurance then the lawe is otherwise For if hee make not the assurance before the day but after hee shall not haue an action of dette for the ten pound m 22. H. 6. 50. ê‘ Newt But if a tailor doe make a garment for mee if we bee
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
committed in cutting down trees which grow sparsim here there in the land which is demised to farme for this is wast in the land it selfe because Arborum non est seperatum corpus afundo But this word Arbor extendeth by our Law very far for it may be affirmed of Vines which notwithstanding by reason of the tendernes of them may seeme to obteine a middle nature betwixt a tree and an hearbe Likewise to iuie though that doe rather cleaue to trees then participate the nature of trees And the name of Arbor doth extende to reedes and to willowes But the cutting of some trees that is the lopping or pruning of them may be more auaileable for their growth so that onelie their cutting downe and not their cutting only shall be adiudged to be Wast Such trees are named of vs Arbores caeduae which may grow againe either by the same stocke or by some other impes which may be grafted vpon them Such are the Cherie tree the ashe the medlar tree the oake the laurell the alder tree and the poplar tree c ff Arbo furtim caesa l. 1. et l. vitem et in gl ff de arbo ceden l. 1. §. arbo But the cutting down of such trees may well be called wast and is punishable by our Law And to open the sluces of the riuer Nilus is sharpelie punished cc C. de Nili agge non rumpen l. vnica Canonolog Our Law doth not in any of these things varie from yours Anglonomoph Of all these things vnlesse it be reedes iuy the like things which do more approch to the nature of weedes then of trees we hold in our Law that wast may be cōmitted Nomomath Well then I pray you shew what may properly be tearmed Wast by your Law Anglonomoph and for that purpose consider well of the points of the former speech of Codicgnostes who hath shewed promiscue both of what things wast may be committed and what may be said to be Wast Anglonomoph I will by your pacience seuerally conferre the parcels of his discourse with the determination of our law concerning that which may properly be said to bee waste for the other point will be thereby manifest as he hath before pronounced by their law Waste may bee committed in the decay or demolishment 3 The cōmon law agreeth with the ciuil that wast may be in the decay of an house of an house this likewise is waste by our law therefore in an action of waste 42. E. 3. the declaration was that the tenant had done wast in certain tenements demised vnto him by the predecessor of the plaintife for tearme of life and the wast was assigned to bee in a chamber a furnace and a graunge and the defendant said that there was no chamber at the time of the lease made but by the opinion of Cand. hee ought to haue said nor at any time after wherefore so hee did d 42. E. 3. 22. But the termor is not bound to repayre houses which were ruinous at the time of the lease made vnto him e 12. H. 4. fol. 5 10. H. 7. 3. 12 H. 8. 1. 7. H. 6. 40. And if all the house in such case do happen to fall saue onely the postes and the termor abateth the postes this is not waste because waste must be assigned in a house or some like tenement so it is if a house newly edified be abated which house was neuer couered ee 40. Assis pl. 22. and therefore may not properly bee said to bee a house as I take it by the ciuill law for a house according to the ciuill law doeth consist of foundation wall and couer f Spi. egeli verb. aedes domus And 38. E. 3. waste was assigned in a graunge which was worth but 4. S. and because it was of so small value that none would hold it nor maintaine it it was held to bee no waste g 38. E. 3. 7. Yet M. Fitzh citeth a case out of 34. E. 3. that if waste be done by the warden to the value of 20. pence this shal be adiudged waste and the plaintife shall recouer gg Fitz. N. B. 60. c. And the booke 14. H. 4. is that if a man cutte trees but to the value of three shillings 4. pence This shall be adiudged waste h 14. H. 4. 11. But a wall or pale which hath beene couered with thatch or timber if the tenant suffer it to be discouered this shal be said to be waste i 44. E. 3. 44. 10. H. 7. 21. 22. H. 6. B. 16. H. 7. per Fin. waste 131. But if a house become ruinous for default of some couering at the time of the death of the auncestor and after the tenant suffereth the house to be more ruinous the heire may haue an action of wast for the late ruine which happened after the death of the auncestor k 2. Mari. Br. wast 117. Neither is it sufficient in barre of a writ of waste of a house that the defendant hath built a new house in lieu of that which is fallen but the defendant must say that it is as much in length and as much in latitude as the other was or at least hee must say that it is as profitable but when a house is ruinous and decayed at the time of the lease of it made and it afterwarde falleth and the defendant buildeth a newe it is not necessarie that hee should make an other house of equall longitude or latitude l 22. H. 6. 18. And the necessitie of building a house ought to come in question as if the lessee haue great need of a stable and if no house be built vpon the land at the time of the lease the lessee may not cutte trees to make an house m 11. H. 4. 32. But if waste bee made by the kinges enemies or by tempest the tenant shall not therefore bee punished by a writte of Waste n 43. E. 3. 6. Yet in such case a speciall couenant will binde the tenant And therefore it was adiudged 15. Elizab. that whereas the termor did couenant and agree pro se executoribus to repayre and maintaine the houses and to finde principall timber which is decayed by the default of him or his executors and dyeth and the house is burnt in defaulte of the executors that a writte of couenaunt in this case woulde lye agaynst the executors and that dammages shoulde bee recouered de bonis testatoris and not condicionally if there were none such of their owne goodes and yet this happened by casualtie o 15. Eliz. 324. Dy. But the reason thereof is giuen in an other place Modus conuentio vincant legem p 28. H. 8. 19. Dy. And 29. Henrici octaui the lessee of a meadowe did couenaunt and agree to keepe and maintaine the bankes in good repaire and the saide bankes were drowned ouerflowed by high waters or sodaine floud
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
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
by the Canon Law 3. The common Law agreeth with them 7. Diuision 1 Two sortes of Accomptants by the Ciuill Law 2. Likewise by the Canon Law 3. And also by the common Law The diuisions and principall contents of the fifth Dialogue of Wast done in a mans ground 1. Diuision 1. OF what thinges Wast may be committed by the Ciuill Law 2. Cutting of Wood in Sylua caedua by the ciuill Law is no Wast 3. The common Law agreeth with the ciuill that Wast may be in the decaie of an house 4. A speciall couenant will binde the partie to repaire houses and walles battered downe by violence vnresistable by the common Law 5. The tenant by the common Law may cut Trees for the reparation of houses 6. The common Law agreeth with the Ciuill in the cutting of silua caedua 7. The common Law agreeth with the Ciuill in tollerating the lopping of Trees which may be auaileable for their groweth 2. Diuision 1 That both by the Ciuill and common Law where land is empeired by the inundation of water this is wast 3. Diuision 1 That by the common Law he that commeth to land by an other mans graunt ought to vse it according to the graunt 2. The digging for coale or claie in the land demised is Wast by the common Law 3. The suffering of the ground to become rushie or weedie by the common Law is Wast 4. That the Ciuill Law agreeth with the common Law in suffering one to amend conduit-pypes in an other mans ground 3. Diuision 1 The punishment of Wast by the Ciuill Law 2. The punishment of Wast by the common law The diuisions and principall contents of the sixth Dialogue of Parceners 1. Diuision 1. TWo sortes of Parceners Parceners by the common Law and Parceners by Custome 2. Who be Parceners by the common Law 3. Who be Parceners by the Custome 4. That by the ciuill Law where 3. heires are instituted they are not reputed as one heire 5. That by the common Law Parceners are reputed as one heire as to the discent of the land 6. Parceners in regard of the particion are accepted as seuerall persons 2. Diuision 1 The Statute of 31. H. 8. giueth a writ de Partitione facienda as well to Iointenants and Tenants in common as to parceners 2. The three seuerall actions against Parceners Iointenants and Tenants in common by the Ciuill Law 3. Diuision 1 Diuerse kindes of Particion at the common Law First A particion to haue a third part or a 4. part 2. A particion by way of release 3. Particion by the graunt of a thing de nouo 4. Particion by way of reseruation 5. Particion by taking the third part or the fourth part of the profites 6. A difference in the Ciuill Law where a thing that hath partes cohaerentes is diuided and where a thing that hath partes distantes The diuisions and principall contents of the seauenth Dialogue of Conditions 1. Diuision 1. SI doth not alwaie signifie a condition in the Ciuill Law 2. Sometime it signifieth an vncertaine cause 3. Sometime it signifieth a certaine cause 4. Sometime an vncertaine euent 5. Sometime a condition 6. Si doth signifieth an vncertaine cause at the common Law 7. Si signifieth a certain cause at the common Law 8. Likewise an vncertaine euent by the common Law 9. Likewise a condition 2. Diuision 1 The word Nisi or vnlesse doth sometimes signifie a condition at the Ciuill Law 2. How a modification or limitation of a graunt is made 3. A difference betwixt a limitation and a condition at the common Law 4. The common Law is more ample and large-handed then the Ciuill Law in matters of limitation 3. Diuision 1 Rursus or the word againe signifieth once againe by the Ciuill Law 2. How farre forth a word of restraint is to be extended by the common Law 4. Diuision 1 An agreement by word may defeat a matter in writing by the ciuill Law 2. The common Law is quite contrarie to the aforesaid assertion of the uill Law 5. Diuision 1 Three sortes of impossibilities at the Ciuill Law 2. What impossibilitas iuris is at the Ciuill Law 3. What impossibilitas facti is at the Ciuill Law 4. Impossibilitas naturae by the Ciuill Law 5. Which be conditions against Law by the censure of the Canon Law 6. What conditions impossible in fact are at the common Law 6. Diuision 1 Conditions by the ciuill law are taken according to equitie 2. The common lawe taketh conditions many times strictly 7. Diuision 7 There may bee a substitution conditionall of one heire after another or one executor after an other at the ciuill law 2. The heire at the ciuill law must succedere in vniuersum ius defuncti 3. By will according to the common law an entre may be limited to a straunger 4. The aduantage of entry limited to a stranger is in the late reports doubted of 5. That the entry for the condition broken defeateth the whole estate Errata Faultes Page Corrections  nations fol. 2. a. matrons There want these words fol. 4. a. There bee two sorts of tithes ecclesiasticall and feudall stande fol. 6. b. sue There want these wordes fol. 10. a. or Darius linea 22. Tertorike 17. b. Teutonike  harde 38. a. pore fate 59. b. foote puerpercie 60. a. puerperie lande 69. b. Lord. FINIS THE PANDECTES OF the law of Nations CONTAYNING seuerall discourses of the questions points and matters of Law wherein the Nations of the world doe consent and accord Giuing great light to the vnderstanding and opening of the principall obiects questions rules and cases of the Ciuill Law and Common law of this Realme of England Compiled by WILLIAM FVLBECKE Opinionum commenta delet dies Nationum iudicia confirmat LONDON Imprinted by Thomas Wight 1602. To the curteous Reader CVrteous Reader when Sulpitius returning out of Asâ—a sailed from Aegina to Megara he began to cast his eye and bend his contemplation to the regions round about him behind him was Aegina before him Megara on the right hand Piraeus on the left hand Corinth which had bene in ancient time verie flourishing Cities but were now ruinated prostrated and buried in dust that wise Romane whose eye did alwaies ayme at some conuenient marke and whose mind made perfect vse of her selected obiect when he saw these carkasses of townes considered his owne estate which was far more brittle I likewise wandring in my thoughts through the paradise of learning amongst many delightfull apparitions espied foure excellent lawes the first was the canon-law to which for the grauity I bowed the second the Ciuil which for the wisedom I admired the third the Common law to which I did my homage the fourth the law of Nations which I submissiuely reuerenced yet the hew and state of her seemed to bee much chaunged and the iniquitie of crabbed times had set the print of her metamorphosis vppon her Her other three sisters did condole with her
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