The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.

The third Dialogue.

Of Dettes.

NOmomath.

I pray you let me know Codicgnostes all the waies & meanes wherby one man may become in∣debted to another, so that remedie may be had by processe of law for the debt.

Codign.

A dette may grow by writing or e∣specialtie: as when the dettor confesseth him∣selfe to bee obliged and bound to his creditor, and such bond or obligation may be by deede indented sub eadem forma verborum, & by mu∣tuall deliuerie it becommeth the deed of them

both a. Such a kind of writing wee call instru∣mentum 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: but there is a priuate in∣strument of more solemnity, which is called of vs instrumentum garrantigiae, an instrument of warrantie, vpon which a man shall haue pre∣sent execution: as if it do specifie that one man is indebted to another, this being presently ex∣hibited in place of iudgement, the iudge ought presently to awarde execution c: and such writings obligatorie if they haue any ra∣zure in them in any materiall place are of no credit in law d: and there bee in our law three sorts of bonds, Naturalis, Ciuilis, Praetoria. Na∣turalis 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 ac∣knowledgeth himselfe to bee indebted to the other in a certaine summe of money, and bin∣deth himselfe for the payment of the saide summe. Praetoria, which is deuised and concei∣ued of the Pretor, and Iudge, in precise termes specifijng the debt e. Likewise debt may accrue vnto one by way of contract, which is nothing els but the cōsent 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: for if two doe consent in this true proposition: Titius est ho∣mo, or in this false assertion, Titius est Asinus, yet this is no contract, because non vtrobique obligat f: for if the wordes or acte be obligato∣rie, then the contract is obligatorie, as contrari∣wise, if the words or acte tend to acquittance, then the contract is nothing els but an acquit∣tall, as if the creditor doe redeliuer the writing obligatorie vnto his dettor, this is an acquit∣tance in lawe: for otherwise the redeliuerie should worke nothing g: 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: And if the instru∣ment 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: but this must be limi∣ted 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.

Canonol.

I haue not at any time obserued a∣ny

thing in our lawe which maketh head a∣gainst 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 exami∣ning 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 a∣uowched. For if the husband sell trees grow∣ing vpon the land of his wife, and the wife di∣eth 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. 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. But if a tailor doe make a garment for mee, if we bee not agreed before what I shall pay for the making, hee can not haue an action of debt, otherwise it is for vic∣tuailes and for wine n. Likewise an action of debt lyeth vpon a loane of money, made by the creditor to the debtor o: or it lyeth for a meere dutie, as when an Attourney bringeth an action of debt for money expended in the suite of his client p: or vpon an obligation, as when the especialtie is Nouerint vniuersi me te∣neri &c. And after the deed saith, ad fideliter computandum de proficuis, in this case the obligee may vse an action of debt, or an action of ac∣compt at his pleasure q. Vpon which case Ba∣ker 28. H. 8. in Cores case thus distinguisheth, that if the deliuerie of the money were to this intent, that an increase or profit might rise of it, and not that money might be repaied, there no action of debt will lie, but a writte of ac∣compt onely r. And if a man do make a con∣tracte to paye certaine money for a thing bought by him, if hee make an obligation for the money, the contracte is discharged, and he shall not haue an action of dette vp∣on the contracte s. But if a man make a talie, and writeth wordes obligatorie vpon the ta∣lie, and ensealeth it and deliuereth it as his deede, yet this shall not binde him, but hee may pleade nihil debet against it, or may wage

his law, for an obligation ought to be writte in parchment or paper, and not vpon a peece of wood t. But the Queene may maintayne an action of dette against her Farmour vppon such a talie u. And a man shall not be fined for denying a talye ensealed x. And where∣as you say that a man may bee bounde by deede indented, that is likewise so with vs: For if one acknowledge himselfe by inden∣ture to bee indetted to another man in an hundred pounde: for which hee deliuereth him certayne Veluet, that the other may sell it after the best manner that hee can, and to reteigne it for payment, and if any thing re∣mayne of the dette, that hee will pay it, the other may sell the Veluet for twelue pence, and vse an action of dette for the remnant a. and 11. H. 6. an action of dette was brought for an hundred markes deuised by the last will and testament of A. being in the handes of the defendant, the def▪ by Indenture acknowled∣ged that the said summe of mony remained in his hands, & the deuisee made his executors & died, & the abouesaid action of det was broght by the executors, & it was allowed: the law is likewise so of an accompt b. And if the words of an indenture be so: Ita conuentū est inter nos quòd A. soluat B. 20. li. ad festū Pasch. B. may haue an action of dett hereupon c. So when a man maketh such a bill, namely this bill witnesseth,

that I A. haue borrowed so much money of C. without saying more, this shall charge the executor as well as an obligation, and the te∣stator could not haue waged his law against this bill: for these words recepisse, or debere, or teneri ad soluendum 20. li. doe make a good ob∣ligation and shall bind the executor: for euerie word which prooueth a man to bee dettor, or to haue a strangers mony in his hands, though it be by bill, yet it shall charge the executor d. As for your instrumentum garrantigiae, an instru∣ment of warrantie as you haue tearmed it, it is fully and proportionably resembled by a re∣cognisance vpon a statute merchant or staple: for thereupon the partie to whom the reconi∣sance is made vpon the certifying of the same in Court shall haue present execution. For if a stranger to the reconisance of a statute come into the Chauncerie and shew the statute, and pray execution, he shall haue it: and if a statute marchant be acknowledged to two, & one of them commeth into the conrt with the statute he shal haue execution in both their names e: And 17. E. 3. two sued a Cerciorari of a statute merchant, and after the Cerciorari returned the parties came not, but others, as execu∣tors profered themselues, and shewed forth the testament and praied execution, and had it f; But the opinion of Hill is to the contrary 18. E. 3. for a Ceciorari was sued vpon a statute

merchant, and before execution the plaintife died: wherefore Greene praied execution for executors; But Hill said, that he should haue sued a Scire facias for the the executors, for it may be that the testator hath released: Where∣fore you must sue a Scire facias out of the certi∣ficat g. And vpon a statute staple the partie shall haue execution of the bodie, landes and goods by one writ: And vpon a statute merchant, first a Capias till a quarter of a yeare be past, and vp∣on a retourne of Non est inuentus, the partie shall haue a writ to haue execution of his lands and goodes h. And a man may sue an action of Dette vpon a statute staple, vpon a statute merchant, and vpon any other recognisance i. And whereas you haue said, that a deede razed is not good in your Law, no more it is in ours, if it be razed or interlined, and in such case the obligour may conclude his plea, if he be im∣pleaded in an action of Dette, with a Non est factum k. And whereas you haue affirmed that there be three sortes of bondes in your Law, Naturalis, Ciuilis, and Praetoria: For the first two I haue shewed that our Law agreeth with yours: and as to the last it agreeth in the sub∣stance of the thing, though not in the sound of the name: For an action of Dette may by our Law be brought vpon a recouerie or iudge∣ment conteining the dette. For if a man reco∣uer dammages in a writ of Wast, he may sue a

writ of Dette vpon this recouerie, if he will l. And so for dammages recouered in a Re∣dissesin, a writ of Aiel, Cosinage, and a writ of Entre sur disseisin m. But in that you said that the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance, this is not so in our Law. For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede, as for him who maketh a deede, to make it a deede: as where as it is ensealed, he may break the seale: and whereas it is deliuered as the bond of the partie, he may redeliuer it in steede of an acquitance m: Yet it is better aunswered by Mast. Keble, that a rede∣liuerie may be either of a deede executorie, or a deede executed: The redeliuerie of a deede executorie hath some operation in Law n, (as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed: if I. S. deliuer the scroule back to the bailor, before the deli∣uerie of it to I. N. and before the condition per∣fourmed, the bailor shall not anie way be char∣ged by vertue of this bond: But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed o:) Now the redeli∣uerie of it nequè ligat, nequè soluit, worketh no∣thing: because a deede can haue but one deliue∣rie, and if the first deliuerie be good, the second

is voide, if the first be not good, the second may be good p. And so it is of a release execu∣ted: for if a man be disseised, and after release to the disseisor, and after the disseisor redeliue∣reth the deede of release to the disseisee, and saith that he will not haue aduantage of it, yet this is to no purpose: for by the release execu∣ted no right may bee demaunded by him to whom the deede is redeliuered: but a right may be defended by him who is in possession, to whom the first deliuerie was q. (But if the disseisee reenter vpon the disseisor, and the dis∣seisor bringeth an Assise, and hath not the deed of release readie to intitle himselfe to the land, the other may still hold possession of the land: but then the redeliuerie of the deede of re∣lease doth him no good directlie, but onelie per accidens, because the want of it doth hurt to the disseisor.)

Nomomath.

Now I pray you resolue vpon this, whether shall the Executor or Admini∣strator be charged in all respects with the dettes and Legacies of the testator, or how farre forth they shall be charged: For I accompt a Lega∣cie to be a kind of dette.

Codicgn.

The making of an Executor, which of vs is tearmed haeredis institutio, is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will r, which is not of force till the death

of the testator, but vntill that time it is kept clausum & signatum, and as Isiodore saith, rather according to the truth of the thing, then accor∣ding to the true deriuation of the word (as ma∣nie times he doth) it is therefore called Testa∣mentum, quia non valet nisi post testatoris monu∣mentum, vntil the testator be laied in his graue s. And such Testaments must be insinuated to the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator: which insinuation is ap∣pointed by Law, Ad euitandum falsitatem, et sci∣endum veritatem Testamenti t. But de iure Prae∣torio though a Testament be not made, yet some person may be appointed by the Praetor to administer the goodes u. And as well the ad∣ministrator, as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they suc∣ceede, which shall come to their handes. And it is a good and safe waie for them so to doe: for if they doe so they shall not be charged fur∣ther with anie debtes then the goodes of the testator, or him that died intestate will extend. And such an Inuentorie by our Law cannot be disprooued, vnlesse the number of the wit∣nesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it, which are commonly called Prizors uu. And the Inuentorie ought to be begun by the Exe∣cutor

within 30. daies after the death of the testator, or at least within 30. daies after that he hath notice that he is made Executor: and it ought to be finished or consummated within thirtie daies after, or at least within a yeare af∣ter, if the thinges be farre distant, and disper∣sed in remote places, and then he shall be char∣ged no further, then the goodes will stretch: otherwise he shall be charged in solidum for the whole dette d.

Canonolog.

These thinges which you haue proposed are not reiected of vs, but are of vali∣ditie in our Law.

Nomomath.

I pray you Anglonomoph. rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can: for these things vtte∣red by him are of great importance and vse at this day: wherefore I would haue you studi∣ouslie and with care to discusse these things.

Anglonomoph.

In the substance of these mat∣ters which he hath mencioned, I doe not see at the first glimse any discordance in our Law, but in the circumstance there will be some dis∣sonancie, and variance. First to speake of the power of an Executor by our Law, it depen∣deth wholie vpon the will and designement of the Testator: For if a man make three his exe∣cutors, and all refuse the administration but one, yet the others shall be executors by vertue of the will, and may administer when they

please, and an action ought to be brought in all their names, otherwise the writ shall abate. And if a man haue goodes in diuerse Prouin∣ces, he may make his executors of his goodes in one of the prouinces, and die intestate as to the other goodes: And if the Ordinarie doe commit the administration of the goodes which are in the other prouince vnto him, now is he both executor and administrator e. And 4. H. 6. in an action of Dette brought by the Executors vpon an Obligation, the defen∣dant demaunded oier of the Testament, and he had it, and the plaintife shewed forth a Te∣stament nuncupatiue, being thus in effect: Memorandum quòd A. constituit B. et C. executo∣res suos, and this was vnder the seale of the Or∣dinarie: and the opinion of the Court was, that this was sufficient matter to maintaine the ac∣tion f: and if there be not speciall caution to the contrarie. By our Law likewise the execu∣tor doth vniuersally succeede in the right of the goodes of the dead, and he may enter into the landes of the testator to take the goodes g. But if a man deuise goodes to one, and die, the deuisee cannot take the goodes without the deliuerie of the executor h. And the execu∣tors do so fullie, and viuelie represent the per∣son of their Testator, that if an action of Dette be brought against two executors, and the one of them pleadeth misnosmer, and the

other pleadeth that he is administrator, and not executor: the opinion of the Court was that they should not haue both pleas, because they did represent their testator, who could haue but one onely plea i. But it seemeth by the booke of 8. Ed. 4. that they shall haue seue∣rall pleas, and the most peremptorie shall be tried k. And an executor or administrator may haue a writ of Error vpon a iudgement giuen against their Testator concerning dette or dammages l. And that a testament and a de∣uise are of no force till the death of the deui∣sor, may appeare by diuers good authorities in our Law m. And whereas Codicgn. hath said, that by their Law there must be an insi∣nuation of the will to the Bishops Officiall, doubtles it is so in our Law, for there must be such an insinuation and probate of the will, before the executors may bring anie action of Dette n. And the Ordinarie may sequester the goodes of the dead, vntill the execu∣tors haue prooued the Testament: And the Metropolitane may do the same, if the goodes be in diuerse dioceses o. But our Law diffe∣reth from the Ciuill Law in this, that the administration of the goodes of him that dieth intestate is not committed by the Praetor, but by the Ordinarie: For if a man be indebted, and die intestate; or if the Executors of one that hath made a Will refuse to be executors,

whereby the goodes do come to the handes of the Ordinarie, the creditors may haue a writ of Dette against the Ordinarie by the statute of Westminster 2. cap. 19 p. and in this case he must be sued by the name of Ordinarie q. But after administration committed the Ordinarie shall not be sued r. And if Sede vacante, the Deane and Chapiter be gardian of the spiritualties, if a man doe then die intestate, and the Deane onelie administreth the goodes, it is sufficient for the Creditors to vse an action against the Deane onely: Otherwise it is if the Deane and Chapiter as Ordinarie should vse an action s. And so if the Ordinarie make his executors and die, the Creditors may haue an action of Dette against the executors of the ordinary t: though 11. E. 3. in the title of Executors be directly to the contrarie u. But a man shall not haue an action of Dette to charge the Ordinarie (as Ordina∣rie) vnlesse he doe administer in his owne dio∣ces uu. But the Ordinarie can not haue an acti∣on of Dette against such which were indebted to the partie intestate, because that action is gi∣uen to the Administratour, and the Ordinarie may commit the administration of the goodes when it pleaseth him. But before the statute of king Edw. the 3. ann 31. ca. 11. the administrators could not haue an action of Dette: therefore it seemeth before that time the Ordinarie might haue vsed an action of dette, otherwise remedie

should haue failed a. but the Ordinarie may & might at all times haue had an action of tres∣passe for the goods of the dead taken out of his owne possession b: but not for goods taken out of the possession of the partie intestate c. But if the Ordinarie without formall letters of admi∣nistration granted, do giue one licence and au∣thoritie to sell the goods of the partie deceased intestate quae peritura essent, and he doeth it ac∣cordingly, he which doth so administer shalbe punished as an executor of his owne wrong d. neyther can hee commit administration by word of mouth, otherwise it is if it bee entred into his register though letters of administra∣tion bee not formally drawne e. And it may come in issue whether he that granteth admi∣nistration were Ordinarie in the place where the administration was committed, as if the village doe extende into two dioceses f. And it may come in issue whether administration were committed by the Ordinarie. And whereas Codicgnost. hath also affirmed, that if the executor or administrator doe make an In∣uentorie, and dispose the goods comprised in the same according to the testament of the par∣tie and appointment of lawe they shall not bee further charged, our lawe in this consorteth with the ciuill law: for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plain∣tife g:

for though hee doe pay debtes vpon contractes, the writte depending against him vppon a bonde, whereas hee had no notice of the suite, he shall not bee in such case char∣ged h. And 3. H. 6. in an action of debt vp∣on an obligation of twentie pound brought against executors, they pleaded riens enter maines, that they had nothing in their hands, and it was founde by verdict that they had tenne pound in their handes: wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade, and the dammages of the goodes of the execu∣tors for their false plea i. But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vp∣on such a plea but onely the goodes of the dead k. But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a de∣uastauerunt, wherefore the Court did graunt a writte to haue execution of the goods of the dead, and if there were no such goods, then of the goods of the executors l. And 4. E. 3. in an action of dette brought against the executors, it was found that they had fully ad∣ministred, and the opinion was, that the Iurors should set downe in certaine how much they had administred, because they shall not bee charged but onely according to that which is found by inquest m. But it was said 34. H. 6.

that when the executors doe plead (fully ad∣ministred, but onely for so much) & their plea is found, the plaintife shall haue iudgement to recouer all his dette, but he shall not haue exe∣cution but onely of the goods in their hands n. But it is good to bee considered what may properly bee saide assets in the handes of the executors: if the executors doe merchaun∣dize with the goodes of the testator, the in∣creasall of them shall bee assets in their hands, and shall charge them, and they cannot plead that they haue fully administred when they haue such assets o. And if executors doe sell the goodes of the testator, and doe buy them againe, they remayne in their handes as as∣sets, because they were the same goods which were the testators p. (But then it seemeth that the money which they had for the sale of the goodes was wasted by them, and not conuerted to the vse of the testator: for other∣wise there is no reason, but that they should haue a propertie in them to their owne vse) for if the executors pay the debtes of the te∣stator of their owne goodes, they may retaine the goodes of the testator to the value in their handes, to their owne vse q. But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one, and 30. li. to ano∣ther, & dieth; and hath but 40. li. and his execu∣tors or administrators agree with the creditor

of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remai∣neth in their hands shall bee assets r. And so a gage being ransomed shall bee assets in their handes, but according to M. Frowikes opini∣on it shall not bee assets if it were ransomed with their owne money s: But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge, being gaged to their testator shall bee assets in their handes. So it hath beene adiud∣ged, that if a man make a feoffement vpon con∣dition that the feoffee shall sell the lande, and distribute the money to the vse of the te∣stator, whereupon he selleth the land, and the feoffor maketh him his executor, the money taken for the land sold shall be adiudged assets in his hands t. So if the executors pleade (fully administred) and it is found for them, and after certaine goodes of the testator come to their handes, wherefore he which brought the first action of dette bringeth the same against them againe, this action is well maintenable u.

Nomomath.

You haue satisfied mee for this point Anglonomoph. Now I pray you Codicg∣nost. strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes. I haue reade that in ancient time it was a law amongst the Romans, that if a man greatly indebted were not able to discharge

the dette, his bodie was mangled and cut in peeces, and the greatest portion of it giuen to his greatest creditor, a lesser to him to whom he did owe lesse, and so pro rata x: which lawe beside the monstrousnesse of it in such a com∣mon weale was verie inhumane: for the credi∣tors might, if they would in their furie, by this law cast the members and partes of the bodies of their debtors to dogges, and other brutish beastes, so that that the Romanes had not so much care of their Senators, gentlemen and ci∣tizens, as the friendes of Diogenes had of him. For when the Cynicke laye vpon his death∣bed, his friends which were then about him, asked him in curteous manner, where he wold be buried, he thinking perhaps that a man was nothing but a mind, answeared them that he would bee buried in the dunghill, and they re∣plyed that that would be verie inconuenient: for the dogges would then rake him vp and deuoure him: Then (said he) lay some staues by mee to beate away the dogges; but they told him that hee could haue no sence in his bodie after his death: then (quoth he) what neede I feare the dogges. This was but the glaunce of Diogenes, who made more ac∣compt of his scoffe then his state. But others more ciuill doe thinke it a great losse, shame, and indignitie that a mans bodie should not

be buried, wherefore Lucan sharpely inueyeth against Caesar: Tu, cui dant paenas inhumato fu∣nere gentes a: And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debar∣red from sepulture. Romulus though hee had caused to be slaine his brother Rhemus, and af∣ter his death did continue his fury as his speech importeth: Sicque meos muros transeat hostis ait. Yet he gaue him sepulture, and atten∣ded vpon the hearse himselfe: for as the Poet saith h:

Dat tamen exequias, neciam suspendere fletum Sustinet, & pietas dissimulata patet: Osculaque applicuit posito supremaferetro, Atque ait: inuito frater adempte vale.

And therefore the Ambassador of Darius doth exceedingly praise the great curtesie of Alex∣ander mourning for the death, and hauing spe∣ciall regard of the sumptuous sepulture of the wife of Darius his professed enemie: Vultum tuum video qualis Darij fuit cum dimitteremur ab eo, & ille tamen vxorem, tu hostem luges. Iam in acie stares, nisi cura tesepulturae eius moraretur c. And Salomon saith diuinely: If a man begette an hundred children, and liue many yeares, and the daies of his yeares bee multiplyed, and his soule bee

not satisfied with good thinges, and hee bee not bu∣ried, I say that an vntimely fruite is better then hee d. Then surely (that I may recourse vnto that from which I digressed) for the Romans to adde shame to affliction, and when the hard debtor is not able to maintaine himselfe with meate and apparell in any reasonable sort, after straite imprisonment and extreame want, to cutte his bodie in peeces, and to distribute it in recompence of of vile money, is a thing ve∣rie immane, and in my opinion greatly ob∣scuring the bright and glorious dignitie of the auncient Romane common weale. Misera∣ble doubtlesse is the state of them which haue nothing but domi inopiam, foris aes alienum, ma∣lam rem, spem multo asperiorem, & nihil reliquum praeter miseram animam e. The Lord in his yeare of Iubilie signifieth his pittie towarde decayed persons. Septimo anno facies remissi∣onem, quae hoc ordine celebrabitur. Cui debetur aliquid, ab amico vel proximo, ac fratre suo repe∣tere non poterit, quòd annus remissionis est domi∣ni ee. And to preuent the cautelous sophi∣strie of miserable worldlings hee giueth this caueat. Caue ne forte subrepat tibi impia cogita∣tio, & dicas in corde tuo: appropinquat septimus annus remissionis, & auertas oculos tuos a pau∣pere fratre tuo nolens ei quod postulat mutuum co∣modare, ne clamet contra te ad dominum &c. Augustus Caesar that wise Emperour was

of so mercifull disposition that for establish∣ment of peace and concord amongst the Ro∣manes, he relieued the common stocke, which was greatly impaired by ciuill warres with his owne priuate wealth, and them that were in∣debted to the common treasurie, the billes of debt being burnt with his owne hands hee did free from the daunger of the roll f. Mercy doubtlesse, and pittie is to be extended to such as haue nothing to help themselues withall, & therefore doe not pay debts, because they can not: Non manca est voluntas, sed potestas mutila. To such I say mercy ought to bee exhibited. The richest man in the world, bee he neuer so good, is a greater debtor to God, then any man is to him: yet God doth forgiue, and will not man forgiue? Quis persequeretur canem mortu∣um. What horsleach would sucke for bloud out of a bloudlesse member? Bitter was that saying of tyranicall Tyberius to one that reque∣sted death, rather then long imprisonment: Nō∣dum tecum redij in gratiam? Blessed are the merci∣full for they shall obtein mercie g. I speake not this as if fauour should bee shewed to couetous churles, which had rather lose their bowels thē their bagges, and deuise fraudulent shifts and knottie conueiances to bereaue & defraud the creditor of his due debt: and whereas they may make payment in ten dayes, doe deferre it ten yeares. It were a blessed thing, if the bodies of

such miserable Midasses might be changed to gold, whilest they were in prison (so their soules might be saued) that by such meanes at the least their creditors might be satisfied. But let euery Creditor vse conscionable discretion, and distinguish betwixt them and these that be otherwise minded.

Diuexet coruos, parcat censura columbis.

Let them vse mercie to such as be humbly min∣ded, and anguished in hart, because they are not able to discharge their debtes: Let them remember that charitie seeketh not her owne: that she freeth the bondman: cheareth the weake: fatneth the poore: doth good against euill. Some think it great charitie to spare a mans goodes, when he hath but a little left, and to imprison his person: if that be charitie.

O mites Diomedis equi: Busiridis arae Clementes tu Cinna pius: tu Spartace lenis g.

Let the Creditor think that he may fall into the same calamitie and extremitie himselfe which the dettor suffereth: And (that I may vse the wordes of the noble-witted Curtius,) Suam quis{que} fortunam in consilio habeat, cum de aliena deliberat. The Troians were once a flo∣rishing people: Ferus omnia Iupiter Argos trans∣tulit h: Troy a goodlie Citie: Iam seges est, vbi Troia fuit i. Hecuba in her youth a gallant Prin∣cesse, in her age a captiue, deploring her estate with Me videat et te Troia k. And Seneca the

artificer of sorrow saith well:

Quem dies videt veniens superbum Hunc dies vidit fugiens iacentem.

Most diuine is the saying of that deepe diuine: I haue seene seruants on horses, and Princes walk∣ing as seruants on the ground kk.

Codicgn.

You haue insisted a long time vp∣on a Law antiquated, and made a large com∣ment vpon a supposed text: for the Law, which ministreth occasion of your copious discourse, though it were allowed and vsed by the Ro∣manes for the terrifying of vnconscionable men, which made no scruple to ouerwhelme themselues with dette, and neuer to discharge it, or compound for it, or to shew any thank∣fulnes for it: yet when the horror of the pu∣nishment seemed grieuous and too shamefull vnto them, that Law for the bitternes of it was out of their authentike diskalendred: and ma∣nie yeares are past sithence it was repealed and abrogated l. But now according to our Law execution lieth vpon the goodes of the partie which we tearme bona: but the signification thereof extendeth further then the name of goodes at the common Law: for it signifieth res nostras quae sunt in dominio nostro, vel quasi: and it signifieth aswell inheritance as goodes.

Canonolog.

In this we dissent not from you.

Nomomath.

Let me know Anglonomoph. what maner of execution ye vse for dette at the com∣mon

Law.

Anglonomoph.

The execution is foure-fold, either of goodes onely by Fieri facias, or of the moitie of landes by Elegit: or vpon all the landes by an Extendi facias, vpon the reconu∣sance of a statute, or of the bodie by Capias ad satisfaciendum: euery of which by your paci∣ence I will explane by cases and examples, or by shewing their originall. A Fieri facias is∣sued out of the Eschequer for the king against a Parson for money due to the king out of an Abbey, to which the Church of the Parson was charged in xx. markes, and for two markes behind a Fieri facias issued to the Shirife in these wordes: Fieri fac. de bonis et catallis spiri∣tualibus, et temporalibus prouenientibus de Recto∣ria de R. and the Shirife by his bailie tooke two bookes in the Church, and sold them for the kings dette l. And wheras A. did recouer dam∣mages in a speciall assise before speciall Iustices, and brought an action of Dette for the dam∣mages: it was resolued that the defendant was dettor of recorde, and therefore ought to be discharged by matter of recorde, and for that cause the Fieri facias is: ita quod habeas dena∣rios hic, to the intent that the payment of the money to the plaintife may be of recorde, and the defendant discharged by recorde m. Execution by Elegit is warranted by the Sta∣tute of Westminster 2. cap. 18. which saith:

Si quis recuperet debitum aut damna, sit in electi∣one querentis, an habere velit Fieri facias de terris & catallis (it should seeme to be meant de bonis & catallis) vel quòd Vicecomes liberet, (it see∣meth to be better, et quòd Vicecomes liberet ei omnia catalla debitoris, exceptis bobus et affris ca∣rucae suae & medietatem, it seemeth more agree∣able to the purpose, vel medietatem terrae suae, quousquè debitum fuerit leuatum per rationabile pretium et extentam.) The execution vpon Statute merchant may appeare by this case. A man had execution out of statute merchant, and the Shirife returned an Extent of the lands of the reconusor in this maner, sciz. that he had sent to the baylie of the fraunchise &c. who had retourne of writs to extende the landes, which were within the fraunchise, and so he did, and that which was within the bayliwicke of the Shirife namelie in guildable, himselfe caused to be extended by parcels, and at the end he put the summe of the value, and after the summe he put the charges, as rents, and other charges which were due out of the said landes, and amongest other charges he retour∣ned that the land was charged to the reconusee with xx. li. yearely for euer: And the Iustices cast all the charges of the landes, and the value, and they did perceiue that the charges passed the value by xl. s'. and after it was shewed that the Shirife had sent to an other Baylife of an

other fraunchise in which the partie had lands, and of these landes he made the third extent, so that by that extent the value passed the charges by tenne shillinges, wherefore execution was awarded n. And 9. E. 3. one sued a writ to take the bodie of him, who had made a statute mer∣chant to him, and the Shirife retourned that he was dead, wherefore he praied a writ to the Shirife to deliuer vnto him all the lands which he had the day of the reconusance, or at any time after, and he had it o. Execution by Ca∣pias and imprisonment is after this manner. Dammages were recouered against I. in a writ of Trespas in the kinges bench, in the time of king Henry the fourth, and after in the time of king Henry the fifth he was condemned in Lon∣don at the suit of an other, and put in New∣gate, and he at whose suit he was condemned in the kings bench had a Capias ad satisfacien∣dum to the Shirifes of L. which did send the bodie, and did certifie that he was condem∣ned at manie mens suites in London, and now he that sued the Capias came into the Court and did acknowledge agreement to be made, and the defendant was readie to make a fine to the king, and praied to be deliuered: But be∣cause he was condemned in the time of an other king, and the Iustices which be now haue not knowledge of the persons, which were parties to the pleas in the time of an

other king as the Law doth intende, and like∣wise, because if he be acquited heere, he must be sent backe into London, because hee is condemned there: and thirdlie, because by couin betwixt him which acknowledgeth a∣greement, and the defendant, he may defraud him at whose suit he is condemned of his ex∣ecution: for if he be deliuered, the other is without remedie, therefore a Scire facias was awarded p. The like Law is in an execution vpon an Action of Dette, and in an acquitall, the fine to the king being excepted.

Nomomath.

Well, I will trouble you no further about questions of Dette. Now let vs passe according to the platforme of the conference to examine doubtes touching Ac∣comptes.

Notes

• 1 Diuision.
• 1 Dette may grow by wri∣ting or especi∣altie.
• a

  l. seruū filij. § eum qui chi∣rographum. ff. de leg. 1.
• 2 An obligati∣on may be by deed indented at the ciuill law.
• b

  C. de pro∣ba. l.
• 3 What instru∣mentum garrā∣tigiae is at the ciuill law.
• c

  ff. de re iudi.
• d

  c. ex liter. in glo. 2. de fid. instrument.
• 4 Three sortes of bonds by the ciuill law.
• e

  Insti. de ob∣li. in prin.
• 5 Dette may grow by way of contract.
• f

  de pac. l. 1. §. 1.
• f

  Gazalup. verb. pactum.
• g

  ff. de pac. l. labeo.
• h

  l. sequent. ff. eo. ti.
• i

  l. si chiro∣graph. ff. de pig.
• k

  l. vnica. §. ille. C. de lati. li. tol.
• 6 The canon law agreeth with the ciuill in matters of bonds or dettes.
• 7 Dette may grow by con∣tract by the common law.
• l

  18. E. 4. 6.
• m

  22. H. 6. 50. {per} Newt.
• n

  12. E. 4. 8.
• 8 An action of debt lyeth at the commō law for a loan of money.
• o

  Fitzh. N. B. 119. G.
• 9 An action of debt lyeth at the commō law for a meer duety.
• p

  Fitzh. N. B. 121. L. 10. H. 4. Dette 158. 3. E. 4. 29.
• q

  41. E. 3. 10. 42. E. 3. 9. 28. E. 3. 98.
• r

  28. H. 8. 20. Dy. Cores. C.
• 10 An obliga∣tion made af∣ter a contract dissolueth the contract by the common law.
• s

  9. E. 4. 25. 28. H. 6. 4. 21. H. 7. 5. 1. H. 6. 8. per ••ab. 20. H. 6. 23 35. E. 3. det. 83.
• t

  25. E. 3. 40. 44. E. 3. 21. 2. R. 2. dett. 4. 12. H. 4. 13.
• u

  5. E. 4. 10.
• x

  4. E. 2. en le title de fine.
• 11. A man may be bound by deed in∣dented by the common law.
• a

  18. E. 4. 5.
• b

  11. H. 6. 46.
• c

  30. H. 6. per Yeluert. Stath. tit. Couenant.
• d

  28. H. 8. 20. Cores c. per Fitzia. et Mountague.
• 12 A statute bond is resem∣bled to an in∣strument of warrantie at ciuill law.
• e

  11. E. 4. 9.
• f

  17. E. 3. 31.
• g

  18. E. 3. 10.
• h

  15. H. 7. 14. Fitzh. Nat. bre. 131. D.
• i

  Fitzh. Nat. bre. 122. D. et fol. 17.
• 13. A deede razed is not good at the cōmon Law.
• k

  1. H. 7. 14. Doues C. per Keble.
• 14. The com∣mon Law a∣greeth in sub∣stance with the Ciuill Law in the three sorts of bonds.
• l

  Fitzh. Nat. be. 122. C. 20. H. 7. 3.
• m

  43. E. 3. 2.
• 15. The com∣mon Law dis∣senteth from the Ciuill, in not making the redeliuerie of, a bond an acquitance.
• m

  1. H. 7. Dones C. per Fin.
• n

  ibi. per Keble.
• o

  Perkins tit. Faits.
• p

  1. H. 6. 4.
• q

  1. H. 7. Dones c. per Vauisor & Keble.
• 2. Diuision.
• 1. By the Ciuil Law the Exe∣cutor succee∣deth in vni∣uersum ius de∣suncti.
• r

  C. de haere. l. 1.
• s

  Isiodor. li. 5.
• 2. Insinuation of a wil neces∣sarie by the ci∣uill Law.
• t

  L. iubemus. C. de test. l. si. C. de fidei∣com.
• u

  Iusti. de bo. poss. §. 1. et ff. eo. tit.
• 3. By the Ci∣uill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased.
• uu

  cum Io. de si. instru.
• d

  Gazal. in verb. Inuen∣tar.
• 4. The power of the Execu∣tor dependeth wholie vpon the will of the Testator by the common Law.
• e

  35. H. 6. 36.
• f

  4. H. 6. 1
• g

  P. 9. H. 6. Stath. tit. Ex∣ecut. ou Entr.
• h

  37. H. 6. 30. 11. H. 4. Exe∣cut. 58. per Thirn.
• i

  37. H. 6. 30. 7. H. 4. 13.
• k

  8. E. 4. 24. Execut. 31.
• l

  Fitzh. Nat. bre. 21. M.
• 5. According to the cōmon Law a Deuise is of no force vntil the death of the deuisor.
• m

  Littlet. lib. 2. c. 10 sect. 8. 27. Ass. pla. 60.
• 6. The com∣mon Law a∣greeth with the Ciuill in the insinuati∣on of willes.
• n

  7. H. 4. 18. 10. Eliz. Com. Brets c. et en Greyst. case.
• o

  9. E. 4. 33.
• p

  Fitzh. Nat. bre. 120. D.
• q

  9. E. 4. 34.
• r

  8. Elizab. 247. Dy.
• s

  17. E. 2. Br̄e 822.
• 7. That an ac∣tion of Dette will lie against the Ordinarie.
• t

  Fitzh. N. B. 120. D. Vieux Nat. br. 61.
• u

  11. E. 3. Exe∣cutors 77
• uu

  12. R. 2. Administr̄ 21.
• a

  Fitzh. N. B. ibid.
• b

  18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12.
• c

  17. E. 2. Briefe 822.
• d

  9. Elizab. 256. Dy.
• e

  21. H. 6. 23.
• f

  35. H. 6. 46.
• 8 The Canon law agreeth with the ciuill in administring the goods cō∣prised in the Inuentorie ac∣cording to the testament.
• g

  7. H. 4. ••0. Plowd. com. 277.
• h

  2. H. 4. 21.
• i

  3. H. 6. 4.
• k

  Dauis. C. com. 440.
• l

  11. H. 4. 70.
• m

  40. E. 3. Statha. tit. ex∣ecutors.
• n

  34. H. 6. stath. tit. Execut.
• 9 What may properly be said to be as∣sets in the hands of the executors.
• o

  11. H. 6. 35. per Bal.
• p

  18. H. 6. 4.
• q

  6. H. 8. 2. Dy.
• r

  27. H. 8. 6. per Fitzh.
• s

  20. H. 7. 2.
• t

  2. H. 4. 21. Executors. 51. 3. H. 6. 3.
• u

  7. E. 4. 8. per Littlet. & Danby.
• 1 The rigo∣rous law of the Romanes in their execu∣tion for dette.
• x

  Paul. Ma∣nut. lib. de le∣gi. Roma.
• 2 The execu∣tion of the Romanes greatly to bee reproued, be∣cause it did depriue men of buriall.
• a

  Luca. lib. 7.
• h

  Oui. Fasto. 4
• c

  Curti. li. 4.
• d

  Ecclesiast. c. 6. v. 3.
• e

  Salusti. in Catilin.
• ee

  Deuteron. c. 15.
• f

  Dio. Nicae. in vit. August. Carol. Sigo. in fi. lib. fast. & triumph. Roma.
• g

  Mat. 5. v. 7.
• g

  Claudi. lib. 1. in Ruffi.
• h

  Virg. in Aenei.
• i

  Ouid. in epistol.
• k

  Senec▪ in Troia.
• kk

  Ecclesiast. c. 10. vers. 7.
• 3. That the rigorous Law of execution for bette was afterward a∣brogated by the Romanes.
• l

  Hotom. lib. illustr. quaest.
• 4. By the Ci∣uill Law exe∣cution for deue¦lieth vpon the goodes of the partie, & how far forth the word (goodes) extendeth.
• 5. A fourefold execution for dette by the common Law.
• 6. The execu∣tion of goodes by Fieri facias is opened.
• l

  8. H. 5. 4.
• m

  11. H. 4. 58.
• 8. Execution vpon statute merchant is opened.
• n

  29. E. 3. 1.
• o

  9. E. 3. 24.
• 8. Execution by Capias ad satisfaciendum is shewed.
• p

  8. H. 5. 7.