Page:The Common Law by Oliver Wendell Holmes.djvu/38

Rh against his will over an eraig, or heuch, or to the water, and the man happin to drowne, the horse sall perteine to the king as escheit.”

“Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie rides, and be sharp spurres compelles his horse to take the water, and the mau drownes, the horse sould not be escheit, for that comes be the mans fault or trespasse, and not of the horse, and the man has receaved his punishment, in sa farre as he is perished and dead; and the horse quha did na fault, sould not be escheit.”

“The like reason is of all other beastes, quhilk slayes anie man, [It is added in a later work, “of the quhilk slaughter they haue gilt,” ] for all these beasts sould be escheit.”

“The Forme and Maner of Baron Courts” continues as follows: —

“It is to witt, that this question is asked in the law, Gif ane lord hes ane milne, and any man fall in the damne, and be borne down with the water quhill he comes to the quheill, and there be slaine to death with the quheill; quhither aught the milne to be escheit or not? The law sayes thereto nay, and be this reason, For it is ane dead thing, and ane dead thing may do na fellony, nor be made escheit throw their gilt. Swa the milne in this case is not culpable, and in the law it is lawfull to the lord of the land to haue ane mylne on his awin water quhere best likes him.”

The reader will see in this passage, as has been remarked already of the Roman law, that a distinction is taken between things which are capable of guilt and those which