The Doctor and Student (1518)
Christopher St. Germain
Certain cases and grounds where ignorance of the deed excuseth in the laws of England, and where not
Stud. If a man buy a horse in open market of him that in right had no property to him, not knowing but that he hath right, he hath good title and right to the horse, and the ignorance shall excuse him. But if he had bought him out of the open market, or if he had known that the seller had no right, the buying in open market had not excused him. Also if a man retain another man’s servant, not knowing that he is retained with him, the ignorance excuseth him both of the offence that was at the common law against the maxim that prohibited such retaining of another man’s servant, and also against thee statute 35 Edw. III., whereby it is prohibit, upon pain of imprisonment, that none shall retain no servant that departeth within his term, without licence or reasonable cause: for it hath been alway taken, that the intent of the makers of the said statute was, that they that were ignorant of the first retainor should not run in any penalty of the statute. And the same law is of him that retaineth one that is ward to another, not knowing that he is his ward. And if homage be due, and the tenant after that the homage is due maketh a feoffment, and after the lord, not knowing of the feoffment distraineth for the homage; in that case that ignorance shall excuse him of his damages in a replevin, though he cannot avow for the homage. But if he had known of the feoffment, he should have yielded damages for the wrongful taking. Also if a man be bound in an obligation that he shall repair the houses of him that he is bound to by such a certain tine, as oft as need shall require, and after the houses have need to be repaired, but he that is bound knoweth it not; that ignorance shall not excuse, for he hath bound himself to it, and so he must take knowledge at his peril. But if the condition had been, that lie should repair such houses as lie to whom he was bound should assign, and after he assigneth certain houses to be repaired, but he that is bound hath no knowledge of that assignment: that ignorance shall excuse him in the law, for he hath not bound himself to no reparation in certain, but to such as the party will assign, and if he assign none, he is bound to none; and therefore sith lie that should make the assignment is privy to the deed, he is bound to give notice of his own assignment: but if the assignment had been appointed to a stranger, then the obligor must have taken knowledge of the assignment at his peril. Also, if a man buy lands whereunto another hath title, which the buyer knoweth not, that ignorance excuseth not him in the law, no more than it doth of goods. Also, if a servant come with his master’s horse to a town that by custom may attach goods for debt, and upon. a plaint against the servant an officer of the town, by information of the party, attached the master’s horse, thinking that it were the servant’s horse, that ignorance excuseth him not; for when a man will do an act, as to enter into lands, seine goods, take a distress, or such other, he must by the law at his peril see that that he doth be lawfully done, as in the case before rehearsed. And in like wise, if a sheriff by a replevin deliver other beasts than were distrained, though that the party that distrained shew him they were the same. beasts, yet an action of trespass lieth against him, and ignorance shall not excuse him: for he shall be compelled by the law, as all officers commonly be, to execute the king’s writ at his peril according to the tenor of it, and to see that the act that he doth be lawfully done. But otherwise it is after some men, if upon summons in a praecipe quod reddat, the sheriff by information of the demandant summoneth the tenant in another man’s land, thinking it for the tenant’s land; there they say he shall he excused: for in that case he doth not seise the land, ne take possession in the land, but only doth summon the tenant upon the land; and the writ commandeth him not that he shall summon the tenant upon his own land, but generally that he shall summon him, and nameth not in what land; and then by an old maxim in the. law it is taken, that he shall summon him upon the land in demand: and therefore though he mistake the land, and be ignorant of it, yet if the demandant inform him that that is the land that he demandeth, that sufficeth to the sheriff as to his entry for the summoning, as they say, though it be not the tenant’s land. And here I make an end of these questions for this time.
Doct. I pray thee yet or we depart take a little more pain in my desire.
Stud. What is that?
Doct. That thou wouldst shew me thy mind in divers cases of the law of the realm, which (as me seemeth) stand, not so clearly with conscience as they should do. And therefore I would gladly hear thy conceit therein, how they may stand with conscience.
Stud. Put the cases, and I shall with good-will say as I think to them.