places they there have this commissary is but superfluous and most commonly doth rather vex and disturb the Country for his lucre than of conscience seek to redresse the lives of offenders And therefore the Bishop taking prestation money of his Archdeacons yearely pro exteriori jurisdictione as it is ordinarily called doth by super-onerating their circuit with a commissary not only wrong Archdeacons but the poorer sort of subjects much more as common practice daily teacheth to their great woe Commission commissio is for the most part in the understanding of the Common law as much as delegatio with the Civilians See Brook titulo Commission and is taken for the warrant or Letters Patents that all men exercising jurisdiction either ordinary or extraordinary have for their power to hear or determine any cause or action Of these see divers in the table of the Register original verbo Commissio Yet this word sometime is extended further than to matters of judgement as the Commission of Purveyers or takers anno 11 H. 4. cap. 28. But with this epitheton High it is most notoriously used for the honourable Commission Court instituted and founded upon the Statute 1 Eliz. cap. 1. for the ordering and reformation of all offences in any thing appertaining to the jurisdiction ecclesiastical but especially such as are of higher nature or at the least require greater punishment than ordinary jurisdiction can afford For the world being grown to that loosenesse as not to esteem the censure of excommunication necessity calleth for those censures of fines to the Prince and imprisonment which doe affect men more neerly Commission of rebellion commissio rebellionis is otherwise called a writ of Rebellion Breve Rebellionis and it hath use when a man after proclamation made by the Sheriff upon an order of the Chauncery or court of Statrechamber under penalty of his allegeance to present himself to the Court by a certain day appeareth not And this commission is directed by way of command to certain persons to this end that they or three two or one of them doe apprehend or cause to be apprehended the party as a rebell and contemner of the Kings lawes wheresoever they find him within the Kingdom and bring him or cause him to be brought to the court upon a day therein assigned The true copie of this commission or Writ you have in Cromptons divers jurisdictions Court de Starre-Chamber as also in West tractat touching proceedings in chancery Sectio 24. Commissioner commissionarius is he that hath commission as Letters Patents or other lawful warrant to execute any publike office as Commissioners of the office of Fines and Licenses West parte 2. symbol titulo Fines sect 106. Commissioners in Eyr anno 3 Ed. 1. cap. 26. with infinite such like Committee is he to whom the consideration or ordering of any matter is referred either by some Court or consent of parties to whom it belongeth As in Parliament a Bill being read is either consented unto and passed or denied or neither of both but referred to the consideration of some certain men appointed by the house farther to examine it who thereupon are called Committees Committee of the King West part 2. symbol titulo Chancerie sect 144. This word seemeth to be something strangely used in Kitchin fol. 160. where the widow of the Kings Tenent being dead is called the Committee of the King that is one committed by the ancient law of the land to the Kings care and protection Common bench bancus communis is used some time for the Court of Common plees anno 2 Ed. 3. cap. 11. So called as M. Cambden saith in his Britannia pag. 113. quia communia placita inter subditos ex jure nostro quod commune vocant in hoc disceptantur that is the Plees or Controversies tryed between Common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Justices in Eyr consueverunt Justiciarii imponere villatis juratoribus hundredis toti comitatui concelamentum omnes separatim amerciare quod videtur voluntarium cùm de per jurio concelauâ—ento non fuerint convicti sed potius dispensandum esset cum eis quod anim as in statera posuerint pro pacis conservatione lib. 1. cap. 48. § Quibus And a little following § Et provisum he hath these words Et provisum ests quòd communes misericordiae vel fines comitatuum amerciatorum in finibus ininerum Justiciariorum ante recessum ipsorum Justiciariorum per sacramenta militum aliorum proborum hominum de comitatu eodem affidentur super eos qui contribuere debent unde particulae Justiciariis liberentur ut cum aliis extractis suis ad Scaccarium liberare valeant These last words of his have relation to the statute Westminst pr. cap. 18. which read See Fine Common Plees communia placita is the Kings Court now held in Westminster Hall but in antient time moveable as appeareth by the Statute called Magna charta cap. 11. as also anno 2 Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his Readings saith that until the time that Henry the third granted the great Charter there were but two Courts in all called the Kings Courts whereof one was the Exchequer the other the Kings Bench which was then called Curia Domini regis and Aula regia because it followed the Court or King and that upon the grant of that Charter the Court of Common plees was erected and setled in one place certain viz. at Westminster And because this Court was setled at Westminster wheresoever the King lay thereupon M. Gwin ubi supra saith that after that all the Writs ran Quòd sit coram Justiciariis meis apud Westmonasterium whereas before the party was commanded by them to appear coram me vel Justiciariis meis simply without addition of place as he well observeth out of Glanvile and Bracton the one writing in Henry the seconds time before this Court was erected the other in the latter end of Henry the thirds time who erected this Court. All civil causes both real and personal are or were in former times tryed in this Court according to the strict law of the Realm and by Fortescue cap. 50. it seemeth to have been the onely Court for real causes The chief Judge thereof is called the Lord chief Justice of the Common Plees accompanied with 3 a 4 Assistants or Associates which are created by Letters Patents from the King and as it were enstalled or placed upon the Bench by the Lord Chancelor and Lord chief Justice of the Court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the Officers belonging to this Court are these The Custos brevium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerk of the Warrants Clerk of the Juries or Jurata
anno 35. H. 8. cap. 26. and the County of Litchfield Cromptons Justice of peace fo 59. a. County is in another signification used for the Countie court which the Sheriff keepeth every month within his charge either by himself or his Deputy anno 2. Ed. 6. ca. 25. Crompt Juris f. 221. Bract. li. 3. c. 7. l. 3. tract 2. cap. 12. Of these Counties or Shires one with another there are reckoned in England 37. beside twelve in Wales The word comitatus is also used for a jurisdiction or territory among the Feudists County court curia comitatus by M. Lamberd is otherwise called conventus in his explication of Saxon words divided into two sorts one retaining the geneeal name as the County-court held every moneth by the Shiereve or his Deputy the under Sheriff wherof you may read in Crompt jurisd f. 231. the other called the Turn held twice every year which see more at large in his place and Cromptons Jurisd fol. 231. This County court had in antient times the cognition of these and other great matters as may appear by Glanvile lib. 1. cap. 2.3.4 by Bracton and Britton in divers places and by Pleta lib 2. cap. 62. But was abridged by the Statute of Magna charta cap. 17. and much more by 1 Ed. 4. cap. unico It had also and hath the determination of certain trespasses and debts under forty shillings Britton cap. 27 28. what manner of proceeding was of old used in this Court see Fleta ubi supra Coursitour See Cursetour Court curia cometh of the French court which signifieth the Kings Palace or Mansion as curtis doth among the Lombards All these spring of the Latine curia which signifieth one of thirty parts into which Romulus divided the whole number of the Romans sometime also the Senat-house as appeareth by Tully in his Offices nihil est quod dignum nobis aut in foro aut in curta agere possumus which in his oration pro Milone he calleth Templum sanctitatis amplitudinis mentis consilii publici caput urbis c. Court with us signifieth diversly as the House where presently the King remaineth with his ordinary retinue and also the place where Justice is judicially ministred of which you find 32 several sâ—rts in M. Cromptons book of Jurisdictions well described And of them most be courts of record some be not and therefore are accounted base Courts in comparison of the rest Beside these also there are Courts Christian Smith de Repnb Anglor lib. 3. cap. 6. which are so called because they handle matters especially appertaining to Christianity and such as without good knowledg in Divinity cannot be well judged of being held heretofore by Archbishops and Bishops as from the Pope of Rome because he chalenged the superiority in all causes spiritual but sithence his ejection they hold them by the Kings authority virtute magistratus sui as the Admiral of England doth his Court Whereupon it proceedeth that they send out their precepts in their own names and not in the Kings as the Justices of the Kings Courts do And therefore as the appeal from these Courts did lye to Rome now by the statute anno 25 H. 8. cap. 19. it lieth to the King in his Chancerie Court baron curia baronis is a Court that every Lord of a manor which in ancient times were called Barons hath within his own precincts Barons in other Nations have great Territories and jurisdiction from their Soveraignes as may be proved out of Cassanaeus de gloria mundi part 5. consideratio 56. by Vincentius de Franchis descis 211. and many others Bu here in England what they be and have been heretofore see in Baron Of this Court Baron you may read your fill in Kitchin that writeth a large Book of it and of a Court Leet Sir Edward Coke in his fourth Book of Reports amongst his Copy-hold cases fol. 26. b. saith that this Court is two after a sort and therefore if a man having a mannor in a Town and do graunt the inheritance of the Copy-holders thereunto belonging unto another this grantee may keep a Court for the customarie Tenants and accept surrenders to the use of others and make both admittances and graunts the other Court is of Free-holders which is properly called the Court Baron wherein the suters that is the Free-holders be Judges whereas of the other the Lord or his Steward is Judge Court of Pypowders See Pie-powders Court of Requests curia requestarum is a Court of equity of the same nature with the Chancerie principally instituted for the help of such petitioners as in conscionable cases deal by supplication with his Majestie This Court as M. Gwin saith in the Preface to his Readings had beginning from Commission first granted by Henry the eighth to the Masters of Requests whereas before that time by his opinion they had no warrant of ordinary jurisdiction but travelled between the King and the Petitioner by direction from the Kings mouth But Sir Julius Caesar in a Tractate of his painfully and very judiciously gathered from the Records of the same Court plainly sheweth that this Court was 9 Henrici septimi though then following the King and not setled in any certain place neither swayed particularly by the Masters of Requests as now it is but more at large by others of the Kings most Honourable Councel whom he pleased to employ in this service For page 148. of the said Tractate you have the form of the oath then ministred to those that were Judges in this Court and à pag. pri usque ad pag. 46. causes of divers natures which in the said Kings dayes were there handled and adjudged This Court as that right honourable and Learned Knight in a Brief of his upon the same Court plainly proveth was and is parcel of the Kings most honoutable Councel and so alwayes called and esteemed The Judges thereof were alwayes of the Kings most Honourable Councel appointed by the King to keep his Councel board The keeping of this Court was never tyed to any place certain but onely where the Counsel sate the suters were to attend But now of late for the ease of suters it hath been kept in the White-Hall at Westminster and onely in Term time It is a Court of Record wherein Recognizances are also taken by the Kings Councel The form of proceeding in this Court was altogether according to the processe of summarie causes in the Civil Law The persons Plaintiffs and Defendants were alwayes either privileged as officers of the Court or their servants or as the Kings servants or as necessary Attendants of them or else where the Plaintiffs poverty or mean estate was not matchable with the wealth or greatnesse of the Defendant or where the cause meerly contained matter of Equity and had no proper remedie at the Common law or where it was specially recommended from the King to the Examination of his Councel or concerned Universities Colleges Hospitals
but of a Rent the same Actions lye as do of Land as the Case requireth The third difference is that an Annuity is never taken for Assets because it is no Free-hold in law neither shall be put in execution upon a Statute Merchant Statute Staple or Elegit as a Rent may Dyer fol. 345. num 2. speaketh also to this effect Annise-seed semen anisi is a medicinal seed not unknown so called of the herb anisum whereof it is the fruit Of this he that listeth may read Gerards Herbal lib. 2. ca. 397. It is noted among the garbleable drugs and spices anno 1 Jaco ca. 19. Anoisance aliâs Noisance aliâs Nusance nocumentum commeth of the French nuisance i. incommodum noxa and hath a double signification being used as well for any hurt done either to a publick place as high-way bridge or common river or to a private by laying any thing that may breed infection by incroaching or such like means as also for the Writ that is brought upon this transgression whereof see more in Nusance The word Anoysance I find anno 22 H. 8. c. 5. AP Apostate capiendo is a Writ that lyeth against one that having entred and professed some order of Religion breaketh out again and wandereth the Country contrary to the Rules of his Order For the Abbot or Prior of the House certifying this into the Chancery under their Common seal and praying this Writ directed to the Sheriff for the apprehension of such Offendour and for the delivery of him again to his Abbot or Prior or their lawfull Attorney were wont to obtain the same The form wherof with other circumstances you shall find in the Register orig fol. 71 267. and Fitzh natur br fol. 233. C. Apparlement commeth of the French pareilement i. similiter perinde itidem and signifieth a resemblance as apparlment of War anno 2 R. 2. stat 1. ca. 6. Appeal appellum commeth of the French appellor i. accire accersere nominare evocare clamore aliquem flagitare Itsignifieth in our Common-law as much as accusatiâ— with the Civilians For as in the Civil-law Cognisance of criminal Causes is taken either upon inquisition denunciation or accusation so in ours upon indictment or appeal indictment comprehending both inquisition and denunciation And accusation or appeal is a lawfull declaration of another mans crime which by Bracton must be felony at the least in the common-Common-law before a competent Judge by one that setteth his name to the Declaration and undertaketh to prove it upon the penalty that may ensue of the contrary To declare the whole course of an Appeal were too much for this Treatise Wherefore for that I must refer you to Bracton lib. 3. tract 2. c. 18. cum sequent Britton c. 22 23 24 25. and to S. Thomas Smith l. 3. de repub Anglo c. 3. and lastly to Stawnf pl. cor l. 2. c. 6 7 c. usque 17. An Appeal is commenced two waies either by VVrit or by Bill Stawnf ubi supra fol. 46. And it may be gathered by him fol. 148. that an Appeal by VVrit is when a VVrit is purchased out of the Chancery by one to another to this end that he appeal a third of some felony committed by him finding Pledges that he shall do it and deliver this VVrit to the Sheriff to be recorded Appeal by Bill is when a man of himself giveth up his accusation in writing to the Vicount or Coroner offering to undergo the burthen of appealing another therein named This point of our Law among others is drawn from the Normans as appeareth plainly by the grand Customary cap. 68. where there is set down a solemn discourse both of the effects of this Appeal viz. the order of the combat and of the tryal by inquest of which by the Common-law of England it is in the choise of the Defendant whether to take See the new book of entries verbo Appel and the book of Assises fo 78. Appel Appeal of mahem appellum mahemit is an accusing of one that hath maimed another But that being no felony the Appeal thereof is but in sort an action of Trespass because there is nothing recovered but dammages Bracton calleth this appellum de plagis mahemâ—o and writeth of it a whole Chapter l. 3. tract 2. ca. 24. See S. Edw. Cook 4. vol. fo 43. a. Appeal of wrong imprisonment appellum de pace imprisonnamento is used by Bracton for an action of wrong imprisonment whereof he writeth a whole tractat lib. 3. tractat 2. ca. 25. Appeal appellatio used in our Common law divers times as it is taken in the Civil Law which is a removing of a cause from an inferiour Judge to a superiour as appeal to Rome an 24. H. 8. ca. 12. an 1 Eliz. ca. 1. But it is more commonly used for the private accusation of a murtherer by a party who had interest in the party murthered or of any felon by one of his complices in the fact See Approver Appendant appendens is any thing belonging to another as accessorium principali with the Civilians or adjunctum subjecto with the Logicians An Hospital may be appendant to a manor Fitz. nat br f. 142. Common of fishing appendant to a free hold Westm 2. ca. 25. anno 13. Ed. 1. Appertinances pertinentiae commeth of the French appertenir i. pertinere It signifieth in our common law things both corporall belonging to another thing as to the more principall as Hamlets to a chief Mannor common of pasture turbarie piscarie and such like and incorporeall as liberties and services of Tenents Brit. c. 39. Where I note by the way that he accounteth common of Pasture turbary and piscary to be things corporal Look Common Apportionment Apportionamentum is a dividing of a Rent into parts according as the land whence the whole rent issueth is divided among two or more See the new terms of Law Apprentice Appenticius commeth of the French aprenti i. tyro rudis discipulus or of the verb apprendre i. addiscere discere and signifieth with us one that is bound by covenant in word or writing to serve another man of Trade for certain years upon Condition that the Artificer or man of Trade shall in the mean time endeavour to instruct him in his Art or Mysterie S. Thomas Smith in his Book de rep Ang. l. 3. c. 8. saith that they are kind of Bondmen differing only in that they be Servants by Covenant and for a time Of these you may read divers Statutes made by the wisedome of our Realm which I think superfluous here to mention Appropriation appropriatio proceedeth from the French approprier i. aptare accommodare and properly signifieth in the law of England a severing of a benefice ecclesiastical which originally and in nature is juris diviâ—i in patrimonio nullius to the proper and perpetual use of some Religious House or Dean c. and Chapter Bishoprick or College And the reason of
called bannimertum which was aunelently tearmed depertatlo if it were perpetual or religatio in insulam if for a time Vincentius de Franchis Petrus de Bellug a in suo speculo fol. 125. num 4. Barbaries Oxycantha is a thornie shrub known to most men to bear a berry or frâ—â—t of a sharp taste These berries as also the leaves of the said tree be medicinable as Goard in his Herbal sheweth lib. 3. cap. 21. You find them mentioned among Drugges to be garbled Anno 1 Jacob. cap. 9. Bargain and sale as it seemeth by Westpart 1. symb lib. 2. sect 436 is properly acontract made of mannors lands renements hereditaments other things transferring the property thereof from the bargainer to the bargainee But the Author of the new terms of Law addeth that it ought to be for money saying farther that this is a good contract for Land c. and that Fee-simple passeth thereby though it be not said in the deed To have and to hold the land to him and to his heire and though there be no liverie and selfin made by the seller so it be by deed intended sealed and enrolled either in the County where the land lyeth or within one of the Kings Courts of Records at Westminster within six moneths after the date of the Deed intended an 27 H. 8. cap. 16. Barkarie Barkaria is a heath house New book of Entries titulo Assise corp poliâ— 2. Some call it a Tan-house Baron Barao is a French word and hath divers fignifications here in England First it is taken for a degree of Nobility next unto a Vicount Bracton lib. 1. cap. 8. num 4. where he saith they be called Barones quasi robur belli And in this fignification it is borrowed from other Nations with whom Baroniae be as much as Provinciae Petrus Belluga in speculo princip fol. 119. So Barones be such as have the government of Provinces as their Fee holden of the King fome having greater some lesser authority within their territories as appeareth by Vincentius de Franobis in divers of his disceisions and others Yet it may probably be thought that of old times here in England all they were called Barons that had such Seigniories as we now call Court-barons as they be at this day called Seigneurs in France that have any such Mannor or Lordship Yea I have heard by men very learned in our Antiquities that neer after the Conquest all such came to the Parliament and sate as Nobles in the upper-house But when by experience it appeared that the Parliament was too much pestered with such multitudes it grew to a custome that none should come but such as the King for their extraordinary wisedome or quality thought good to call by Writ which Writ ran hac vice tantùm After that again men feeing this estate of Nobility to be but casual and to depend meerely upon the Prineâ—s pleasure they sought a more certain hold and obtained of the King letters patents of this dignity to them and their heires male And these were called Barons by letters patents or by creation whose postority be now by inhefitance and true delcent of Nobility those Barons that be called Lords of the Barliament of which kind the King may create more at his pleasure It is thought neverthelesse that there are yet Barons by writ as well as Barons by letters patents and that they may be discerned by their titles because the Barons by writare those that to the title of Lord have their own surnames annexed as Crompton North Norice c. whereas the Barons by letters patents are named by their Barronies These Barons which were first by writ may now justly also be called Barons by prescription for that they have continued Barons in themselves and their auncestors came beyond the memory of man The original of Barons by writ Master Camden in his Britaunia Pag. 109. in meo referreth to Henry the third Barons by letters patents or creation as I have heard among our Antiquaries were first created about the days of Henry the sixth the manner of whose creation read in Master Stows Annals pag. 1121. Of all these you may also read Mast Ferns glory of Generofity pa. 125. 126. And see M. Skene de ver signif verb. Baro. with Sir Thomas Smith lib. 1. dâ—â—â—pub Anglor cap. 17. who saith that none in England is created Baron except he can dispend a thousand pound by year or a thousand markes at the least To these former Master Seager by office Norrey lib. 4. cap. 13. of Honour civill and militariy addeth a â—ird kind of baron calling them Barons by conure and those be the Bishops of the land all which by vertue of Baronies annexed to their Bishopricks have alwaies had place in the upper house of Parliament and are termed by the name of Lords Spiritual Baron in the next signification is an Officer as Barons of the Exchequer be to the King of which the principal is called Lord chief Baron capitalis Baro and the three other for so many there be are his Assistants in causes of Justice between the King and his subjects touching causes appertaining to the Exchequer The Lord chief Baron at this day is the chief Judge of the Court and in matter of Law Information and Plea answereth the Barr and giveth order for judgement thereupon He alone in the Term time doth sit upon Nist prius that come out of the Kings Remembrancers office or out of the office of the Clerk of the Pleas which cannot be dispatched in the mornings for want of time He taketh recognisancea for the Kings debts for appearances and observing of orders He taketh the presentation of all the officers in Court under himself and of the Maior of London and seeth the Kings Remembrancer to give them their oaths He taketh the declaration of certain receivers accounts of the lands of the late augmentation made before him by the Anditors of the Shires He giveth the two parcel makers places by vertue of his office The second Baron in the absence of the Lord chief Baron answereth the Barr in matters aforesaid he also taketh recognisances for the Kings debts apparences and observing of orders He giveth yearly the oath to the late Maior and Escheatour of London for the true account of the profits of his office He taketh a declaration of certain receivers accounts He also examineth the letters and sums of such Sheriffs forrain accounts as also the accounts of Escheatours and Collectours of subsidies and Fifteens as are brought unto him by the Auditors of the Court. The third Baron in the absence of the other two answereth the barr in matters aforesaid he also taketh recognisances as aforesaid He giveth yearly the oath of the late Major and Gawger of London for his true accounting He also taketh a declaration of certain receivers accounts and examineth the letters and sums of such of the former accountants as are brought unto him The fourth Baron is alwayes a
Saxons pecunia vel tributum See Gyld Genets aliâs Jenets See Furre Gentleman generosus seemeth to be made of two words the one French gentil i. hònestus vel honesto loco natus the other Saxon Mon as if you would say a man well born The Italian followeth the very word calling those gentil homini whom we call Gentlemen The Spaniard keepeth the meaning calling him Hidalgo or Hijo d'algo that is the son of some man or of a man of reckoning The French men call him also gentil homme so that Gentlemen be those whom their blood and race doth make noble and known 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek in Latine Nobiles Smith de Repub. Anglor lib. 1. cap. 20. under this name are all comprised that are above Yeomen so that Noblemen be truly called Gentlemen But by the course and custome of England Nobility is either major or minor the greater contains all titles and degrees from Knights upward the lesser all from Barons downward Smith ubi supra cap. 21. The reason of the name as I take it groweth from this that they observe gentilitatem suam that is the race and propagation of their bloud by giving of arms which the common sort neither doth nor may do For by the Coat that a Gentleman giveth he is known to be or not to be descended from those of his name that lived many hundred years since Howbeit that this is neglected where substance faileth to maintain the countenance For many of great birth fall to poverty whose posterity living and labouring in want have small encouragement to look after the titles of their Ancestors and so in time slip into the number of the ignoble sort yet if they by their vertue or fortune can again advance themselves to sufficient ability the Herald out of his observations can restore them to the Coat of their Progenitors and now and then help them to one that their Ancestors never ware Gentiles homines see in Tiraquel de Nobilitate cap. 2. pag. 53. Tully in his Topickes thus saith of this matter Gentiles sunt qui inter se codem sunt nomine ab ingenuis oriundi quorum majorum nemo servitutem servivit qui capite non sunt diminuti And in the first book of his Tusc questions he calleth Tullum Hostilium one of the Kings of Rome gentilem suum General Issue vid. Issue Gestu fama is a Writ Lamb. Eirenarcha lib. 4. cap. 14. pag. 531. GI Gigge milles were for the fulling of Woollen Cloth and forbidden Anno 5 Edward 6. cap. 22. Gild alias Geld gildare cometh from the Saxon word Gildan i. solvere Lamb. in his explication of Saxon words saith verbo Contubernalis It is used as a verb and as a substantive also and as it is a substantive it is latined Gilda and signifieth a Tribute or sometime an amercement or thirdly a Fraternity or Company combined together with orders and laws made among themselves by the Princes license M. Camden citeth many antiquities by which it appeareth to signifie a tribute or tax as pag. 135. 139. 159. 168. 178. M. Crompton in his Jurisdictions fol. 191. sheweth it to be an amercement as foot geld and fol. 197. he interpreteth it to be a prestation within the Forest in these words To be quit of all manner of Gelds is to be discharged of all manner of prestations to be made for gathering of sheves of Corn of Lamb and of Wool to the use of Foresters Again M. Camden pag. 349. dividing Suffolk into three parts calleth the first Gildable because tribute is thence gathered the second libertatem S. Edmundi the third libertatem S. Etheldredae And the Statutes anno 27 Ed. 3. Stat. 2. cap. 13. anno 11 H. 7. cap. 9. use Gildable in the same sense and so doth the Statute anno 27 H. 8. cap. 26. From this M. Lamberd ubi supra is likewise perswaded that the common word Gild or Gildhall doth proceed being a Fraternity or Communalty of men gathered into one combination supporting their common charge by a mutual contribution And in the Register original fol. 219. b. I read Gildam mercatoriam that is the Gild Merchant which I have heard to be a certain liberty or privilege belonging to Merchants whereby they are enabled to hold certain plees of Land within their own Precincts This word Gildes or Guildes is so used anno 37 Ed. 3. cap. 51. anno 15 R. 2. cap. 5. And Gildbalda Teutonicorum is used for the fraternity of Easterling Merchants in London called the Stilyard anno 22 Hen. 8. cap. octavo Ginger Zinziber is a spice well known being the root of a plant that groweth in hot Countries as Spain Barbary c. The true form whereof you have expressed in Gerards Herbal lib. 1. cap. 38. This is a spice whose root is to be garbled anno 1 Jacob. cap. 19. Gynny peper piper de Ginnea is otherwise called Indian peper of the place whence it cometh The nature and farther description whereof you have in Gerards Herbal lib. 2. cap. 66. This you have mentioned among druggs and spices to be garbled in the Statute 1 Jacob. cap. 19. Gisarms anno 13 Ed. 1. stat 3. cap. 6. is a kind of weapon Fleta writeth it Sisarms lib. 1. cap. 24. § item quod quilibet GL Glawnce Ore Plowden casu Mines fol. 320. b. Glanvil was a learned Lawyer that was chief Justice in Henry the seconds dayes and writ a Book of the Common laws of England which is the ancientest of any extant touching that subject Stawnf praerog cap. prim fol. 5. He was then called in Latine Ranulphus de Glanvilla He dyed in Richard the first his dayes at the City of Acres in the Coast of Jury being with him in his voyage to the Holy Land Plowden casu Stowel folio 368. b. GO Go is used sometime in a special signification in our Common law as to go to God is to be dismissed the Court. Brook titulo Fayler de records num 1. Go forward seemeth also to be a sign given by a Judge to the Seargeant or Counsellor pleading the cause of his Clyent that his cause is not good For when he standeth upon a point of Law and heareth those words of the Judges mouth he taketh understanding that he loseth the Action Smith de Repub. Anglo lib. 2. cap. 13. To go without day is as much as to be dismissed the Court Kitchin fol. 193. Good behavior See Good abearing Good abearing Bonus gestus is by an especial signification an exact carriage or behaviour of a subject toward the King and his liege people whereunto men upon their evil course of life or loose demeanure are sometimes bound For as M. Lamberd in his Eirenarcha lib. 2. cap. 2. saith he that is bound to this is more strictly bound than to the peace because where the peace is not broken without an affray or batterie or such like this surety de bono gestu may be forefeited by the
words Billa vera or disallow by writing Ignoramus such as they doe approve if they touch Life and Death are farther referred to another Jury to be considered of because the case is of such importance but others of lighter moment are upon their allowance without more work fined by the Bench except the party travers the Inditement or challenge it for insufficiency or remove the cause to a higher Court by Certiorari in which two former cases it is referred to another Jury and in the latter transmitted to the higher Lamb. Eir. li. 4. ca. 7. and presently upon the allowance of this Bill by the Grand Enquest a man is said to be indited Such as they disallow are delivered to the Bench by whom they are forthwith cancelled or torn The Petit Iury consisteth of twelve men at the least and are empaneled as well upon criminal as upon civil causes those that passe upon offences of Life and Death doe bring in their verdict either guiltie or not guilty wherupon the Prisoner if he be found guilty is said to be convicted and so afterward receiveth his judgement and condemnation or otherwise is acquitted and set Free Of this read Fortes cap. 27. Those that passe upon civil causes real are all or so many as can conveniently be had of the same Hundred where the land or tenement in question doth lie and four at the least And they upon due examination bring in their verdict either for the Demandant or Tenent Of this see Fortescue cap. 25 26. According unto which judgement passeth afterward in the Court where the cause first began and the reason hereof is because these Justices of Assise are in this case for the ease of the Country only to take the verdict of the Jury by the vertue of the writ called Nisi prius and so return it to the Court where the cause is depending See Nisi prius Joyn with this the chapter formerly cited out of the Custumary of Normandie and that of King Etheldreds laws mentioned by Master Lamberd verbo Centuria in his explication of Saxon words And by these two words you shall perceive that as well among these Normans as the Saxous the men of this Jury were Associates and Assistants to the Judges of the Court in a kind of equalitie whereas now adayes they attend them in great humility and are as it were at their command for the service of the Court the words set down by M. Lamberd are these In singulis centuriis comitia sunto atque liberae conditionis viri duodeni aetate superiores un à cum praeposito sacra tenentes juranto se aedeo virum aliquem innocentem hand condemnaturos sontemve absoluturos to this joyn also the 69. chapter of the said Custumary See Enquest See 12. Men. See Lamberds Eirenarch lib. 4. cap. 3. pag. 384. Juris utrùm is a writ that lieth for the incumbent whose predecessour hath alienated his lands or tenements the divers uses of which writ see in Fitzh nat br fol. 48. Jurisdictiou Jurisdictio is a dignity which a man hath by a power to doe Iustice in causes of Complaint made before him And there be two kinds of Jurisdictions the one that a man hath by reason of his fee and by vertue thereof doth right in all plaints concerning his fee The other is a Iurisdiction given by the Prince to a Bayliff this division I have in the Custumary of Normandie cap. 2. which is not unapt for the practice of our Commonwealth for by him whom they call a Bayliff wee may understand all that have commission from the Prince to give judgement in any cause The Civilians divide jurisdictionem generally in imperium jurisdictionem and imperium in merum et mixtum Of which you may read many especiall tractats written of them as a matter of great difficulty and importance Justes cometh of the French Joustes i. decursus and signifieth with us contentions between Martial men by speares on horsback anno 24 H. 8. cap. 13. Justice Justiciarius is a Freneh word and signifieth him that is deputed by the King to doe right by way of judgement the reason why he is called Justice and not Judex is because in ancient time the latine word for him was Justitia and not Justiciarius as appeareth by Glanv lib. 2. cap. 6. Roger Hoveden part poster suorum annalium fo l 413. a. and divers other places which appellation we have from the Normans as appeareth by the Grand Custumary cap. 3. And I doe the rather note it because men of this function should hereby consider that they are or ought to be not Justi in their judgements but in abstract ipsa justitia howbeit I hold it well if they perform their office in concreto Another reason why they are called Justiciari◠with us and not Judices is because they have their authority by deputation as Delegates to the King and not jure magistratus and therefore cannot depute others in their stead the Justice of the Forest only excepted who hath that liberty especially given him by the Statute anno 32 H. 8. cap. 35. for the Chancellor Marshal Admiral and such like are not called Justiciarii but Judices of these Justices you have divers sorts in England as you may perceive here following The manner of creating these Justices with other appurtenances read in Fortescue cap. 51. Justice of the Kings bench Justiciarius de Banco Regis is a Lord by his office and the chief of the rest wherefore he is also called Capitalis Justiciarius Angliae his office especially is to hear and determine all plees of the Crown that is such as concern offences committed against the crown dignity and peace of the King as treasons felonies mayhems and such like which you may see in Bracton lib. 3. tractat 2. per totum and in Stawnf treatise intituled The plees of the Crown from the first chapter to the fifty one of the first Book But either it was from the beginning or by time is come to passe that he with his Assistants heareth all personal actions and real also if they be incident to any personal action depending before them See Cromptons jurisd fol. 67. c. Of this Court Bracton lib. 3. ca. 7. nu 2. saith thus Placita vero civilia in rem personam in Curia domini Regis terminanda coram diversis Justiciariis terminantur Habet enim plures curias in quibus diversae actiones terminantur illarum curiarum habet unam propriam sicut aulam regiam justiciariios capitales qui proprias causos Regis terminant aliorum omnium par querelam vel per privilegium sive libertatem ut si sit aliquis qui implacitari non debeat nisi coram domino Rege This Justice as it seemeth hath no patent under the broad Seal For so Cromp. saith ubi supra He is made only by Writ which is a short one to this effect Regina Johanni Popham militi salutem Sciatis
upwards to the number of 24. by whose discretion all tryals pass both in civil and criminal causes through all Courts of the common Law in this Realm First for civil causes when proof is made of the matter in question as the parties and their Counsel think good on both sides the point of the fact that they are to give their verdict of is delivered likewise unto them which we call the issue and then are they put in mind of their oath formerly taken to do right between party and party and so sent out of the Court severally by themselves to consider upon the evidence of both sides untill they be agreed which done they return to the Court again and deliver their verdict by the mouth of the foreman And according to the verdict Iudgement afterward passeth either condemnatory for the Plaintiff or absolutory for the Defendant These twelve be called twelve milites Glanvile lib. 2. cap. 14 15. and so be they in Bracton divers times but that word is altered In causes criminal there be two sorts of Enquests one called the grand Enquest and the other the Enquest of life and death The grand Enquest is so called either because it consisteth commonly of a greater number than twelve as of twenty four eighteen or sixteen at the least or else because all causes criminal or penal first passe through them whereas the other Enquest is especially appointed for one or few matters touching life and death committed to their consideration Those of the grand Enquest are also called by Bracton 12 milites lib. 3. tract 2. cap. pri num 2. because they were wont to be Knights as it seemeth and not inferiours except so many Knights could not be found Idem eodem num 1. in fine And their function is to receive all presentments made unto them of any offence and accordingly to give their general opinion of the presentment by writing either these words Billa vera upon the bill of presentment which is an inditement of the party presented or else this word Ignoramus which is an absolving of him Now as criminal causes be of two sorts either capital touching life and member or finable so is there a double course of these Inditements For in causes only finable the party indited must either traverse the Inditement by denying it and so it is referred to a petit Jury whereby he is either convicted or discharged of the crime or else he confessing it the Court setteth his fine upon his head without more work But in matters of life and death the party indited is commanded to hold up his hand and answer guilty or not guilty if guilty he standeth convicted by his own confession if not guilty he is farther referred to the Enquest of life and death which consider upon the proof brought against the Prisoner and accordingly bring in their verdict Guilty or not Guilty so is he judged to dye or delivered by the Court. Of this read more in Inditement Assise Iury. See the statute anno 35 H. 8. cap. 6. 37 ejusdem cap. 22. et anno 2 Ed. 6. cap. 32. et anno 5 Eliz. cap. 25. VA VAcation vacatio hath an especial signification in this Kingdom being used for all that time respectively which passeth between term and term at London And when such times begun and ended in our Ancestors daies see Roger Hovedens annals parte posteriori fol. 343. a. where you shall find that this intermission was called pax Dei et Ecclesiae Vaccarie aliàs vacharie vaccaria aliàs vacheria seemeth to be a house to keep kine in Fleta lib. 2. cap. 41. sect Item inquiratur 12. and Cromptons Jurisd fol. 194. in these words without warrant no subject may have within the Forest a vacary But in the statute anno 37 H. 8. cap. 16. I find vachary to be as it were a special proper name of a certain quantity and compass of ground within the Forest of Ashedown Valew valentia valor The word is in it self plain enough But I cannot omit one place in M. West parte 2. symbol titulo Inditements sect 70. V. W. touching the difference between value and price These be his words And the value of those things in which offences are committed is usually comprised in Inditements which seemeth necessary in theft to make a difference from petit larceny and in trespass to aggravate the fault and increase the fine But no price of things ferae naturae may be expressed as of Deer of Hares c. If they be not in Parks and Warrens which is a Liberty anno 8 Edward 4. fol. 5. nor of Charters of land And where the number of the things taken are to be expressed in the Inditement as of young Doves in a Dove-house young Hawks in a wood there must be said pretii or ad valentiam but of divers dead things ad valentiam and not protii of coyn not current it shall be pretii but of coin current it shall neither be said pretii nor ad valentiam for the price and value thereof is certain But of counterfeit coin shall be said ad valentiam and in counterfeiting of coin shall not be said decem libras in denariis Dominae Reginae nor in pecunia Dominae Reginae but ad instar pecuniae Dominae Reginae Valour of mariage Valore maritagii is a writ that lyeth for the Lord having profered covenable mariage to the Infant without disparidgement against the Infant comming to his years if he refuse to take the Lords offer And it is to recover the value of the mariage Regist orig fol. 164. Old nat br fol. 90. Variarce commeth of the French varier i. alterare it signifieth in the Common law an alteration or change of condition after a thing done For example the Commonalty of a Town make a Composition with an Abbot Afterward this Town by a grant from the King obtaineth Bayliffs This is a variance and in this case if the Abbot commence any sute for breach of the composition he must vary from the words of the Commonalty set down in the Composition and begin against the Bayliffs and the Commonalties Brook tit Variance fol. 292. It is also used for an alteration of something formerly laid in a plee which is easilier known what it is than when it may be used as it appeareth by Brook through the whole title aforesaid See variance in the new book of Entries Vassal vasallus signifieth him that holdeth land in fee of his Lord Hot. verbo Feudal we call him more usually a Tenent in fee whereof some owe fidelity and service and are called vassalli jurati some that owe neither and are called vassalli injurati But of this later sort I think that in England we have not any Of these thus writeth Hotom in his disputations upon the Feuds cap. 3. Propriè is vassa dicitur qui ab Imperatore regale feudum accipit vassallus autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diminutivo nomine qui ab illo
ubi supra Accedas ad Vicecomitem is a writ directed to the Coroner commanding him to deliver a writ to the Sheriff that having a pone delivered unto him doth suppress it Regist orig fol. 83. Accessory Accessorius vel Accessorium is used in our Common law otherwise than among the Civilians For whereas with them it is generally taken for any thing depending upon another here though it be so likewise yet most commonly and notoriously it signifieth a man that is guilty of a felonious offence not principally but by participation as by commandment advice or concealment And a man may be accessory to the offence of another after two sorts by the Common law or by Statute and by the Common law two waies also that is before or after the fact Before the fact as when one commandeth or adviseth another to commit a selony and is not present at the execution thereof For his presence maketh him also a principal wherfore there cannot be an accessory before the fact in man-slaughter because man-slaughter is sodain and not prepensed Cook lib. 4. fol. 44. a. Accessory after the fact is when one receiveth him whom he knoweth to have committed selony Accessory by Statute is he that abetteth counselleth or hideth any man committing or having committed an offence made felonie by Statute For though the Statute make no mention of abettours c. yet they are by interpretation included Of all these consult with Stawnf pl. cor lib. 1. cap. 45 46 47 48. There is also an accessory of an accessory as he that wittinglie receiveth an accessory to felony lib. Assis 26. pl. 51. coron Fitz. 197. Stawnf pl. cor lib. 1. cap. 48. And the Law of England is that so long as the principal is not attainted the accessorie may not be dealt with Stawnf ubi supra The reason whereof you may see Cook li. 4. fo 43. b. And this is also true by the Civil Law Claudius de Battandier in pract crim regula 101. at the least untill the principal be certainly known Of this subject read M. Cromprons Justice fol. 37. b. 38 39. Acceptance is a receiving of a rent whereby the Receiver bindeth himself for ever to allow a former fact done by another whether it be in it self good or not New tearms of Law Accompt computus is in the Common law taken for a writ or action brought against a man that by means of Office or business undertaken is to render an account unto another as a Bailiff toward his Master a Guardian in soccage toward his Ward and such others as you shall find particularly named by Fitz. in his nat br fol. 116. where you may also have the form and further use of this writ See ex parte talis Accroche See Encrochment This word Accroche is used an 25 Edward 3. Stat. 3. cap. 8. Achat commeth of the French achet i. emptio nundinatio and is used for a contract or bargain Brook tit Contract Acquittal signifieth in our Common law most ordinarilie a deliverance and setting free from the suspicion or guiltiness of an offence and is two fold acquital in law or acquital in fact Acquital in law is when two be appealed or endicted of felony one is principal the other accessory the principal being discharged the accessory by consequent is also freed And in this case as the the accessorie is acquitted by law so is principal in fact Stawnf pl. cor fol. 168. Acquittance acquietantia commeth from the French quicter or quitter i. accepto ferre or quictance i. acceptitatio apocha and signifieth a release or discharge from a debt formerly due But the verb acquit the participle acquitted and the noun acquittal signifie also a discharge or clearing from an offence objected as acquitted by proclamation Smith de Rep. Anglo pa. 76. Stawnf pl. cor fol. 168. Brook tit Acquittall See the new tearms of Law verbo Acquittal and Acquittance Acquietandis plegiis is a writ lying for a suretie against the creditour that refuseth to acquit him after the debt is paid by the Debtour Regist orig fol. 158. where it appeareth that this is a Justicies Acre acre is a certain quantity of land containing in length 40 perches and four in breadth or to that quantitie be the length more or less And if a man erect any new Cottage he must lay 4 acres of land to it after this measure anno 31 Eliz. ca. 7. and with this measure agreeth Master Crompton in his Jurisdiction of Courts fol. 222. though he say also that according to the divers customes of divers Countries the the Perch differeth being in some places and most ordinarily but 16 foot dimid But in the County of Strafford 24 foot as was adjudged in the case between Sir Edward Aston and Sir John B. in the Exchequer In the Statute made of sowing of Flax anno 24 H. 8. cap. 4. eight score Perches make an acre which is 40 multiplyed by 4. See also the ordinance of measuring of Land made an 34 Ed. 1. statut 1. which agreeth with this acompt The word Acre seemeth to come from the German word acker which is all one with the Latine ager Action actio is defined by Bracton lib. 3. cap. 1. as it is by Justinian lib. 4. Instit titulo de actionibus viz. Actio nihil aliud est quà m jus persequendi in judicio quod alicui debetur Action is principally divided by Justinian in personalem realem by Bracton into personal real and mixt action personal is that which belongeth to a man against another by reason of any contract offence or cause of like force to a contract or offence made or done by him or some other for whose fact he is by law to answer Bract. lib. 3. cap. 3. nu 2. Action real is defined to be that which is given to any man against another that upon any cause possesseth or occupieth the thing requited or sued for in his own name and no other mans and in this only respect that he possesseth or occupieth the thing and none other Bract. ibid. nu 3. and his reason is this quia habet rem vel possidet quam restituere potest vel dominum nominare This definition and reason he farther exemplifieth in the words there following which he that will may read at large Action mixt is that which lyeth as well against or for the thing which we seek as against the person that hath it and is called mixt because it hath a mixt respect both to the thing and the person Bract. lib. 3. cap. 3. nu 5. For example the division of an Inheritance between co-heirs or co-partners called in the Civil law actio familiae exciscundae secondly the division of any particular thing being common to more called likewise actio de communi dividundo and this kind of action saith Bracton doth seem to be mixt because it lyeth as well against the thing as the person and indeed so do other excellent Civilians as Cuiacius and
Wesenbecius in their Paratitles π. finium regund And though Justinian in his first division omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certain actions naming these and other of like nature that seem to have a mixture c. Of this you may also read Britton at large in his Chapter 71. And this division of action springeth from the object or matter whereabout it consisteth Wesenb parat π. de actio obliga The Author of the new Tearms of Law defineth a mixt action to be a sute given by the Law to recover the thing demanded and also the damages for wrong done as in Assise of novel disseisin the which writ if the disseisour make a feoffment to another the disseiseur shall have a remedie against the disseisour and the feoffer or other land tenant to recover not only the land but the dammages also See the test These words occasion me to shew that actio is by the Civil law called mixta in two respects Nam quadam mistae sunt quòd in se actionis in rem actionis personalis naturam habeant in üs actor reus uterque sit l. actionis verbo § fina w. de obliga actio Tales sunt actio familiae excisc communi dividun finium regun quaedam verò mistae sunt quòd rem simul poenam persequantur ut in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta solvere distulerunt And of this latter sort is the example that the said Author bringeth of a mixt action Action is also by the Civilians divided of the efficient cause in civilem praetoriam Whereof one riseth out of the common civil law the other from some Edict of the Pretour Who being Chief Justicer had authority for his year to supply the defects of the general law by his especial edicts And a division not unlike this may be made in the Common law of England one growing from the antient customary law the other from some Statute Brook tit Action sur le statut Action of the final cause is divided into civill poenal mixt Cook vol. 6. fol. 61. a. Action civil is that which tendeth only to the reeovery of that which by reason of any contract or other like cause is due unto us as if a man by action seek to recover a sum of mony formerly lent c. Action penal is that aimeth at some penalty or punishment in the party sued be it corporal or pecuniary As in the Action legis Aquiliae in the Civil law wherby in our Common law the next Friends of a man feloniously slain or wounded shall pursue the law against the murtherer or him that wounded him to condign punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are deprived and a penalty also for the unjust deteining of the same as in an Action of Tithe upon the Statute anno 2 3 Ed. 6. cap. 13. Action is also according to the form of Petition divided into such as are conceived to recover either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doth Decies tantum lye against Embracers Fitz. not br fol. 171. and against Jurours that take mony for their verdict of one part or the other or both And to be short any other action upon a Statute that punisheth any offence by restitution or fine proportionable to the transgression Action is prejudicial otherwise called preparatorie or else principal prejudicial is that which groweth from some question or doubt in the principal as if a man sue his younger Brother for Land descended from his Father and it be objected unto him he is a Bastard Bract. lib. 3 ca. 4. nu 6. For this point of bastardy must be tryed before the cause can further proceed and therefore is termed praejudicialis quia prius judicanda Action is either awncestrel or personal Stawnf pl. cor 59. Auncestrel seemeth to be that which we have by some right descending from our Ancestor upon us and that personall which hath the beginning in and from our selves Action upon the Case actio super casu is a general Action given for redress of wrongs done without force against any man and by Law not especially provided for For where you have any occasion of sute that neither hath a fit name nor certain form already prescribed there the Clerks of the Chancery in antient time conceived a fit form of Action for the fact in question which the Civilians call actionem in factum and our common Lawyers action upon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gesta enarratione declarant citra formulam ac solennitatem ullam Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the Civill Law there are two sorts actionis in factum one termed actio in factum ex praescriptis verbis the other actio in factum praetoria Wesenb parat de praescrip verb. the former growing upon words passed in contract the other more generally upon any fact touching either contract or offence formerly not provided against this Action upon the Case seemeth in use to be more like to the Pretours Action in factum than to the other because in the perusal of the new book of Entries and Brooks his Abridgement hereupon I perceive that an Action upon the Case lyeth as well against offences as breach of contract Of this see more in the word Trespass Action upon the Statute actio super Statuto is an Action brought against a man upon breach of a Statute to be resembled in mine opinion to any Action given in the law Imperial either upon edictum praetoris ple biscitum or senatusconsultum For as the Pretour so the common People in comitiis tributis and the Senators or Nobility in curia vel senatu had power to make laws whereupon the Pretour or other Judges permitted Action And even so our high Court of Parliament maketh Statutes against such offences as are either newly grown or more and more increased and our Judges entertain their Plees that commence their actions against the breakers of them Action is perpetual or temporal perpetua vel temporalis and that is called perpetual the force whereof is by no time determined Of which sort were all civil Actions among the antient Romans viz. such as grew from Laws decrees of the Senate or constitutions of the Emperors whereas actions granted by the Pretor died within the year de perpet tempor actio in Instit So we have in England perpetual and temporary actions and I think all may be called perpetual that are not expresly limited As divers Statutes give actions so
hujusmodi ligna verò lapides brusuras orbes â—ctus qui judicari non possunt ad plagam ad hoc ut inde veniri possit ad duellum Armor arma in the understanding of our Common law is extended to any thing that a man in his wrath or fury taketh into his hand to cast at or strike another Crompton Justice of Peace fo 65. a. So armorum appellatio non utique scuta gladios galeas significat sed fustes et lapides lib. 42 Ï€. de verbo significatione Array arrâ—ia alias arraiamentum commeth of the French Array i. ordo which is an old word out of use Or it may be may be well deduced from raye i. linea It signifieth in our Common Law the ranking or setting orth of a Jury or enquest of men impannelled upon a Cause a. 18 H. 6. c. 14. Thence is the verb to array a panel Old N. B. fo 157. that is to set forth one by another the men impannelled The array shall be quashedi Old Nat. Br. fo 157. By Statute every array in assise ought to be made four daies before Br. tâ—â— Panel nu 10. to challenge the array Kitchin fol. 92. Arrayers seemeth to be used in the Statute an 12 R. 2. c. 6 for such Officers as had care of the Souldiers armour to see them duly appointed in their kinds Arraine arraniare commeth of the French arranger i. astituere ordinare that is to set a thing in order in his place and the same signification it hath in our Common law For example he is said to arrain a Writ of Novel disseisin in a County that sitteth it for Tryal before the Justices of the Circuit Old nat brev fo 109. Littleton fo 78. useth the same word in the same sence viz. the Lease arraineth an assise of Novel disseisin Also a Prisoner is said to be arrained where he is inindicted and brought forth to his Tryal Arrained within the Verge for murther Stawnf pl. cor fol. 150. The course of this arrainment you may read in Sir Tho. Smith de rep Angl. l. 2. c. 23. Arrearages arreragia commeth of the French arrierages i. reliqua It signifieth the remain of an Account or a sum of Mony remaining in the hands of an Accountant It is used sometimes more generally for any mony unpaid at a due time as arrerages of rent That this word is borowed from France it appeareth by Tiraquel de utroque retractu tomo 3. p. 32. num 10. Arrest arestum commeth of the French arrester i. retinere retare subsistere or rather it is a French word in it self signifying a setling stop or stay and is metaphorically used for a decree or determination of a cause debated or disputed to and fro as arrest du Senat i. placitum curiae In our Common law it is taken most of all for a stay or stop as a man apprehended for debt c. is said to be arrested To plead in arrest of Judgement is to shew cause why judgement should be staid though the verdict of the twelve be passed To plead in arest of taking the enquest upon the former issue is to shew cause why an enquest should not be taken c. Brook tit Repleader Take this of the learned Master Lambert in his Eirenarch lib. 2. c. 2. p. 94. Budae saith he in his Greek Commentaries is of opinion that the French word Arrest which with them signifies a decree or judgement of Court took beginning from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. placitum and as we might say the pleasure and will of a Court. And albeit it were not out of the way to think that it is called an Arrest because it stayeth or arresteth the party yet I believe rather that we receive the same from the Norman laws because we use it in the same sence with them For commonly with us an arrest is taken for the excution of the Commandement of some Court or of some Officer in justice But howsoever the name began an arrest is a certain restraint of a mans person depriving him of his own will and liberty and binding it to become obedient to the will of the Law and it may be called the beginning of imprisonment Precepts and Writs of the higher Courts of Law do use to express it by two sundry words as capias and attachies which signifie or take to catch hold of a man But this our Precept noteth it by the words ducifacias that is cause him to be conveyed c. For that the Officer hath after a sort taken him before in that he commeth unto him and requireth him to go to some Justice of the Peace Thus far M. Lambert And belike this word is spread farther than France for Gaile a German Writer sheweth by his Tractate de arrestis imperii that it is used also in the imperial Territories and in the same signification c. 1. n. 1. Arrestandis bonis ne dissipentur is a Writ which lyeth for him whose Cattel or Goods are taken by another that during the controversie doth or is like to make them away and will be hardly able to make satisfaction for them afterward Reg. orig fo 126. b. Arrestando ipsum qui pecuniam recepit ad proficiscendum in obsequium regis c. is a Writ that lyeth for the apprehension of him that hath taken prest mony toward the Kings wars and lyeth hidden when he should go Register orig 24. b. Arresto facto super bonis mercatorum alienigenorum c. is a Writ that lyeth for a Denizen against the Goods of Strangers of any other Country found within the Kingdom in recompence of Goods taken from him in the said Country after he hath been denied restitution there Reg. orig fo 129. a. This among the antient Civilians was called clarigatio now barbarously represaliae Arretted arrectatus is he that is covenanted before a Judge and charged with a crime Stawn pl. cor li. 2.45 quasi ad rectum vocatus It is used sometime for Imputed or laid unto as no folly may be arrected to him being under age Littleton cap. Remitter The Latine Substantive Rettum is used in the Register orig Chawcer useth the verb Arretteth id est layeth blame as M. Speight interpreteth it I may probably conjecture that this word is the Latine Rectum For Bracton hath this phrase ad rectum habere malefactoremi i. to have the Malefactor forth comming so as he may be charged and put to his Tryal lib. 3. tract 2. cap. 10. And in another place Rectatus de morte hominis i. charged with the death of a man codem c. 2. n. 3. Articles of the Clergy articuli Cleri be certain Statues made touching persons and causes Ecclesi astical an 9 E. 2. like unto which there were others made an 14 E. 3. stat 3. AS Assay of measures and weights assais mensurarum ponderum Reg. orig fo 279 is the examination used by the Clark of the
same to the best of his cunning wit and power and with allspeed and diligence from time to time at the calling of the Master to endeavor himself for the hearing determination indifferently of such matters and causes as depend before the Master not to take any gift or reward in any matter or cause depending in the Court or elsewhere wherein the King shall be party whereby the King shall be hurt hindred or dis-inherited to do to his power twit and cunning all and every thing that appertaineth to his office Atturney of the Court of the Dutchie of Lancaster Atturnatus curiae Ducatus Lancastriae is the second Officer in that Court and seemeth for his skill in law to be there placed as assessor to the Chancellor of that Court being for the most part some honorable man and chosen rather for some especial Trust reposed in him to deal between the King and his Tenents than for any great learning as was usual with the Emperors of Rome in the choice of their Magistrates Attournment attornamentum commeth of the French tourner i. vertere and in our Common law is an yielding of the Tenent to a new Lord or acknowledgement of him to be his Lord. For otherwise he that buyeth or obteineth any Lands or Tenements of another which are in the occupation of a third cannot get possession yet see the Statute anno 27 H. 8. cap. 16. The words used in Atturnment are set down in Littleton I agree me to the Grant made to you c. But more common Atturnment is to say Sir I atturn to you by force of the same Grant or I become your Tenent c. or else deliver unto the Grantee a pennie halfpenny or farthing by way of Attournment Littleton lib. 3. cap. Attournment 10. whom you may read more at large and find that this Definition proceedeth from more Law than Logick because he setteth down divers other Cases in the same Chapter whereto Attournment apperraineth as properlie as unto this But you may perceive there that Atttournment is the transposing of those Duties that the Tenent ought to his former Lord unto another as to his Lord and also that Attournment is either by word or by act c. Also attournment is voluntarie or else compulsorie by the Writ termed Per quae servitia Old nat br fol. 155. or sometime by Distresse Fitzh nat br fol. 147. Lastly Attournment may be made to the Lord himself or to his Steward in Court Kitchin fo 70. And there is attournment in deed and attournment in Law Coke vol. 6. fo 113. a. Attournment in Law is an Act which though it be no express Attournment yet in intendment of Law is all one Atturnato faciendo vel recipiendo is a Writ which a man owing sute to a County Hundred Wapen-take or other Court and desiring to make an Attourney to appear for him at the same Court whom he doubteth whether the Shetiff or Bailiff will admit or not for his Attourney there purchaseth to command him to receive such a man for his Attourney and admit his appearance by him The form and other circumstances whereof see in Fitzh nat br fo 156. AU Audiendo terminando is a Writ but more properlie termed a Commission directed to tertain persons when as any greater Assembly Insurrection or heinous Demeanour or Trespass is committed in any place for the appeasing and punishment thereof which you may read at large in Fitzh nat br fol. 110. See also Oyer Terminer Audience Court Curia audientiae Cantuariensis is a Court belonging to the Archbishop of Canterbury of equall authority with the Arches Court though inferiour both in dignitie and antiquity The original of this Court was because the Arch-bishop of Canterbury heard many Causes extrajudicially at home in his own Palace in which before he would finally determine any thing he did usually commit them to be discussed by certain learned men in the Civil and Canon laws whom thereupon be termed his Auditors And so in time it grew to one especial man who at this day is called Causarum negotiorumque audientiae Cantuariensis anditoriseu officialis And with this Office hath heretosore commonly been joined the Chancerie of the Arch-Bishop who medleth not in any point of contentious Jurisdiction that is deciding of Causes between party and party except such as are ventilated pro forma only as the confirmation of Bishops Elections or such like but only of Office and especially such as are voluntariae jurisdictionis as the granting of the custodie of the Spiritualities during the vacation of Bishopricks Institutions to Benefices dispencing with Banes of Matrimonie and such like But this is now distinguished in Person from the Audience Of this Audience Court you may read more in the Book intituled De antiquitate Ecclesiae Britannicae historia Audita querela is a Writ that lyeth against him who having taken the Bond called Statute-Merchant of another and craving or having obtained execution of the same at the Maior and Bailiffs hands before whom it was entered at the complaint of the party who entered the same upon suggestion of some just cause why execution should not begranted as a Release or other exception This Writ is granted by the Chaunceler of England upon view of the exception suggested to the Justices of the Common bank or of the Kings Bench willing them to grant Summons to the Sheriff of the Countie where the Creditour is for his appearance at a certain day before them See more in Old nat br fo 66. and Fitzh nat br fo 102. Auditour auditor commeth of the French auditeur and in our Law signifieth an Officer of the King or some other great Personage which yearlie by examining the Accounts of all under Officers accountable maketh up a general Book that sheweth the difference between their receipts or burthen and their allowarces commonly called allocations as namely the Auditours of the Exchequer take the accounts of those Receivors which receive the revenues of the Augmentation as also of the Sheriffs Escheatours Collectours and Customers and set them down and perfect them Him that will read more of this I referre to the Statute anno 33. H. 8. ca. 33. Auditors of the Prests are also officers in the Exchequer that do take and make up the great accounts of Ireland Barwick the Mint and of any money imprested to any man Auditour of the Receits is an officer of the Exchequer that fileth the Tellers bils and maketh an entry of them and giveth to the Lord Treasurer a certificate of the money received the week before He maketh also Debentures to every Teller before they pay any money and taketh their accounts He kepeth the Black book of the Receipts and the Treasurers key of the Treasury and seeth every Tellers monies locked up in the new Treasury Aventure is a mischance causing the death of a man without Felonie as when he is suddenly drowned or burnt by any sudden disease falling into the water
d 14 b c. See Monstraverunt and Fitzherb fol. 14. and Dessendo quietum de telonio fol. 226. Fleta maketh three tenures holding of the Crown Ancient demeasne by Echeate and by Purchase lib. 1. cap. 2. See Demaine Auncient Demesn arere antiquum dominicum à retro is that auncient demeasn which the King granteth over to hold of a mannor Kitch fol. 67 b. Avowè Advocatus see Advowè Britton saith that Avowè is he to whom the right of Advowzen of any Church appertaineth so that he may present thereunto in his own name and is called Avowè for a difference from those that sometime present in another mans name as a Gardian that presenteth in the name of his Ward and for a difference also from them which have the lands whereunto an advowzen appertaineth but only for term of their lives or of yeers or by intrusion or Disseisin cap. 29. Avowrie see advowry Avoir du pois is in true French avoir du poix i. habere pondus aut justi esse ponderis It signifieth in our Common law two things first a kinde of weight diverte from that which is called Troy weight containing but twelve ounces to the pound whereas this containeth sixteen And in this respect it may be probably conjectured that it is so called because it is of more weight than the other Then also it signifieth such merchandise as are weighed by this weight and not by Troy weight as in the statute of York anno 9 Edw. 3. in proaem anno 27 Edw. 3. statut 2. cap. 10. anno 2 Rich. 2. cap. 1. See Weights Auxilium ad silium militem faciendum filiam maritandam is a Writ directed to the Sheriff of every County where the King or other Lord hath any Tenents to levy of them reasonable ayde toward the knighting of his son and the marriage of his daughter See Ayde and Fitzh Nat. Brev. fol. 82. B. BA BAcheler bachalaureus cometh of the French bachalier i. tyro and thereupon I think those that be called Bachelers of the companies in London be such of eath company as be springing towards the estate of those that be employed in councel but as yet are inferiors For every company of the twelve consisteth of a Master two Wardens the Livery which are assistants in matters of counsel or at the least such as the assistants be chosen out of and the Bachelers which are yet but in expectance of dignity among them have their function only in attendance upon the Master and Wardens I have read in an old monument this word Bacheler attributed to the Lord Admiral of England if he be under a Baron in French words to this effect And it is to weet that when the Admiral rideth to assemble a ship of war or other for the business and affairs of the realm if he be a Bacheler he shall take for his dayes wages 4 s. sterling if he bean Earl or Baron he shall take wages after the rate of his estate and degree This word is used an 13 R. 2. stat 2. cap. 1 and signifieth as much as Bacheler knight doth anno 3 Ed. 4. cap. 5. that is a simple knight not a knight baneret See Baneret Touching the farther etymologie of this word Bachalarii teste Renano à Bacillo nominati sunt quia primi studii authoritatem quae per exhibitionem baculi concedebatur jam consecuti fuissent Ut fuerit velut quoddam mancipationis signum in hujusmodi aliquod studium baculi traditto Alciat writeth the word baccalaurei eosque dicit visos à baccâ laureâ nomen sumpsisse in l. cui praecipua 57 π. de verbo signif Backberond is a Saxon word and almost English at this day signifying as much as bearing upon the back or about a man Bracton useth it for a signe or circumstance of manifest theft which the Civilians call Furtum manifestum For dividing Furtum in manifestum non manifestum he defineth furtum manifestum in this sort Furtum verò manifestū est ubi latro deprehensus est seisitus de aliquo latrocinio sc haud habend backberend insecutus fuerit per aliquem cujus res illa fuerit lib. 3. tract 2. cap. 32. Master Manwood in the second part of his Forest laws noteth it for one of the four circumstances or cases wherein a Forester may arrest the body of an offender against vert or venison in the Forest For by the assise of the Forest of Lancaster saith he taken with the manner is when one is found in the kings forest in any of these four degrees sc Stable stand Dog draw Back bear and Bloody hand In which place you may find all these interpreted Badger cometh of the French bagage i. sarcina impedimentum It signifieth with us one that buyeth corn or victuals in one place and carrieth it into another See Cromptons Justice of Peace f. 69 70. Baye or Penne is a Pond head made up of a great height to keep in a great quantity or store of water so that the wheels of the furnace or hammer belonging to an iron mill may stand under them and be driven by the water coming out of them by a passage or floud-gate called the Penstock and falling upon the said wheels This word is mentioned in the statute an 27 Elizab. cap. 19. Bayl ballium plevina manucaptio commeth of the French bailler i. attribuere tradere tribuere It is used in our Common law properly for the freeing or setting at liberty of one arrested or imprisoned upon action either civil or criminal under surety taken for his appearance at a day and place certainely assigned Bracton lib. 3. tract 2. cap. 8. num 8 9. The reason why it is called Bayl is because by this means the party restrained is delivred into the hands of those that binde themselves for his forth-coming There is both common special bayl Common bayl is in actions of small pre judice or slight proof being called common because any Sureties in that case are taken wheras upon causes of greater weight or apparent specialty special bayl or surety must be taken as Subsidy-men at the least and they according to the value Master Manwood in his first part of Forest lawes pag. 167. maketh a great difference between Bayland Mainprise in these words and note that there is a great diversity between bayle and mainprise For he that is mainprised is alwayes sayd to be at large to go at his own liberty out of ward after that he is let to mainprise until the day of his appearance by reason of the said common summons or otherwise But otherwise it is where a man is let to bayle by four or two men by the Lord chief Justice in the Eyre of the forest until a certain day For there he is alwayes accounted by the Law to be in their ward and custody for the time And they may if they will keep him in ward or in
personalem quia personae infertur per verbera cruciatum c. Wesemb parat Ï€. de injur fam libel Baubels baubella is an old word signifying Jewels Ro. Hoveden parte poster suorum annal fol. 449. b. BE Bearding aliâs Barding of wool See Clack Bearers signify all one with Maintainers anno 20 Edvar 3. cap. 5. Beconage Beconagium signifieth money paid for the maintenance of Becons Bewpleder pulchrè placitando is made of 2. French words beau i. decorus formosus pulcher and pleder i. disputare causam agere It signifieth in our Common law a writ upon the statute of Marlbridge or Malborow made the 52. year of H. 3. cap. 11. whereby it is provided that neither in the circuit of Justices nor in Counties Hundreds or Courts-baron any fines shall be taken of any man for fair pleading that is for not pleading fairly or aptly to the purpose Upon which Statute this Writ was ordained against those that violate the law herein See Fitzh nat br fol. 270. A.B.C. whose definition is to this effect the Writ upon the statute of Marlebridge for not fair pleading lyeth where the Shyreeve or other Bailiff in his Court will take fine of the party Plaintiff or Defendant for that he pleâ—deth not fairely c. Bedell Bedellus cometh of the French be deau i. apparitor and it signifieth with us nothing else but a messenger or servitour belonging to a Court as a Court-baron or Leet Kitchin fol 46. where you may see his oath or to the Court of the Forest Manwood parte pri of his forest lawes pag. 221. in these words A Bedel is an officer or servant of the Forest that doth make all manner of garnishments of the Courts of the Forest also all manner of Proclamations as well within the Courts of the Forest as without and also doth execute all the processes of the Forest He is like to a Bailiff errant of a Shyreeve in a County c. Benefice Beneficium is generally taken for all ecclesiastical livings be they dignities or other as anno 13 R. 2. stat 2. cap. 2. where benefices are divided into elective and benefices of gift So is it used in the Canon law also Duarenus de beneficiis lib. 2. cap. 3. Beneficio primo ecclesiastico habendo is a writ directed from the King to the Chancellor to bestow the benefice that first shall fall in the Kings gift above or under such a value upon this or that man Regist orig fol. 307. b. Benevolence Benevolentia is used both in the Chronicles and Statutes of this Realm for a voluntary gratuity given by the subjects to the King Look Stowes annals pag. 701. That it hath been something antiently accustomed it appeareth by him and by the Statute anno 1 Rich. 3. cap. 2. where it is called a new imposition and in that respect reprehended by that Tyrant in his predecessors whether justly or not I cannot say nor mind to dispute But Stow pag. 791. saith that the invention grew from Edward the fourths dayes You may find it also anno 11 H. 7. cap. 10. to have been yeelded to that worthy Prince in regard of his great expences in warres and otherwise This is also mentioned and excepted out of the pardon anno 1 Ed. 6. cap. 15. It is in other Nations called subsidium charitativum given sometime to Lords of the Fee by their Tenents sometime to Bishops by their Clergie Matthaeus de Afflictis descis 136. Gassan de consuet Burg. pag. 134 136. Baldus consitio 120. vol. 6. pag. 230. Of this Maenochius maketh mention lib. 2. cent 2. cap. 178 179. shewing when it is lawful for a Prelate charitativum subsidium à sibi subditis exigere quanta debeat esse ejus summa setting down eight just causes of this exaction Besaile proavus is borrowed of the French bisayeul i. le pere de mon pere grand the father of my grandfather In the Common law it fignifieth a Writ that lieth where the great grandfather was seised in his demesne as of Fee of any Lands or Tenements in Fee-simple the day that he dyed and after his death a stranger abateth or entreth the same day upon him and keepeth out his heir c. The form and farther use of this Writ read in Fitz. nat br fol. 221. D. E. F. c. Beasts of chase Ferae campestres be five of the Forest chase or park that is the Buck the Do the Fox the Martron and the Roe Manwood part prim of his Forest laws pag. 342. part 2. cap. 4. num 2. Beasts of the Forest ferae sylvestres are the Hart the Hind the Hare the Boar and the Wolf Manwood parte 2. of his Forest laws cap. 4. num 1. Beasts and Fowles of Waren are the Hare Conie Fesant and the Patridge Manwood parte 2. cap. 4. num 3. Bestaâ—l cometh of the French bestial i. pecus it seemeth with us to signifie all kind of cattel taken for the Kings provision anno 4 Ed. 3. cap. 3. And bestial is generally used for all kind of cattel anno 1 Jacobi cap. 33. BI Bidding of the Beades was a charge or warning that the Parish Priest gave to his Parishioners at certain especial times to say so many Pater nosters c. upon their beads anno 27 H. S. cap. 26. Bigamie bigamia signifieth a double marriage It is used in the Common law for an impediment that hindreth a man to be a Clerk by reason that he hath been twice married For upon those words of S. Paul to Timothie the first cap. 5. vers 2. Oportet ergo Episcopum irreprehensibilem esse unius uxoris virum the Canonists have founded their doctrine that he that hath been twice married may not be a Clerk And also him that hath married a widow they by interpretation take to have been twice matried And both these they do not onely exclude from holy orders but also deny them all privileges that belong unto Clerks But the author of the new terms of Law well saith that this Law is abolished by anno 1 Ed. 6. cap. 12. And to that may be added the stature anno 18 Elizab. cap. 7. which alloweth to all men that can read as Clerks though not within orders the benefit of Clergie in case of selonie not especially excepted by some other statute Bilanciis deferendis is a Writ directed to a corporation for the carrying of weights to such or such a haven there to weigh the wools that such a man is licenced to transport Reg. orig fol. 270. a. Bilawes are orders made in Court Leets or Court Barons by common assent for the good of those that make them farther than the Publike law doth bind Coke vol. 6. fol. 63. a. Kitchin fo 45. 79. These in Scotland are called burlaw or birlaw Skene de verbo sign verbo Burlaw where he saith thus Lawes of burlaw are made and determined by consent of neighbours elected and chosen by
men upon any cause anno 25 Ed. 3. stat 4. cap. 2. Cathedrall See Church Casu matrimonii praelocuti is a Writ which lyeth in case where a woman giveth lands to a man in fee simple to the intent he shall marry her and refusesh so to do in reasonable time being required thereunto by the woman The form and farther use thereof learn in the Register orig fol. 233. and in Fitzh nat br fol. 205. Causam nobis significes is a Writ which lyeth to a Maior of a Town or City c. that formerly by the Kings writ being commanded to give seisin unto the Kings grantee lof any land or tenements doth delay so to do willing him to shew cause why he so delayeth the performance of his charge Coke l. 4. casu communalty des Sadlers fol. 55. b. Cautione admittenda is a Writ that lyeth against the Bishops holding an excommunicate person in prison for his contempt notwithstanding that he offereth sufficient caution or assurance to obey the commandments and orders of holy Church from thenceforth The form and farther effect whereof take out of the Regist orig pag. 66. and Fitzh nat br fol. 63. CE Century centuria See Hundred Cepicorpus is a return made by the Sheriff that upon an exigend he hath taken the body of the party Fitzh nat br Fol. 26. Certiorari is Writ issuing out of the Chancery to an inferior Court to call up the records of a cause therein depending that conscionable Justice therein may be ministred upon complaint made by bill that the party which seeketh the said Writ hath received hard dealing in the said Court. Terms of the Law See the divers forms and uses of this in Fitzh nat br fol. 242. as also the Register both original and judicial in the tables verbo Certiorari Crompton in his Justice of peace f. 117. saith that this Writ is either returnable in the Kings Bench and then hath these words nobis mittatis or in the Chauncerie and then hath in caucellaria nostra or in the Common Bench and then hath Justiciariis nostris de banco The word Certiorare is used divers times in the digest of the Civil Law but our later Criticks think it so barbarous that they suspect it rather to be foisted in by Tribonian than to be originally used by those men of whose works the said digest is compiled Prataeus in suo lexico Certificat certificatorium is used for a writing made in any Court to give notice to another Court of any thing done therein As for example a certificat of the cause of attaint is a transcript made briefly and in few words by the Clerk of the Crown Clerk of the Peace or Clerk of Assise to the Court of the Kings Bench containing the tenure and effect of every endictment outlawrie or convictior and Clerk attainted made or pronounced in any other Court anno 34 H. 8. cap. 14. Of this see more in Certificat d'evesque Broke fol. 119. Certification of assise of novel disseisin c. Certificatio assisae novae disseisinae c. is a Writ grant ed for the reexamining or review of a matter passed by assise before any Justices and is called certificatione novae dissessinae Old nat br fol. 181. Of this see also the Register original fol. 200. and the new book of entries verb. Certificat of assise This word hath use where a man appearing by his Bailiff to an assise brought by another hath lost the day and having something more to plead for himself as a deed of release c. which the Bailiff did not or might not plead for him desireth a farther examination of the cause either before the same Justices or others obtaineth Letters patents unto them to that effect The form of these Letters Patents you may see in Fitzh nat br fol. 181. and that done bringeth a Writ to the Sheriff to call both the party for whom the assise passed and the Jurie that was empaneled upon the same before the said Justices at a certain day and place And it is called a certificate because in it there is mention made to the Sheriff that upon the parties complaint of the defective examination or doubts yet remaining upon the assise passed the King hath directed his Letters patents to the Justices for the better certifying of themselves whether all points of the said assise were duly examined yea or not See farther Old nat br and Fitzh ubi supra Of this also you may read Bractoâ— lib. 4. cap. 19. num 4. in fine 5 6. where he discusseth the reason of this point very learnedly and lastly Horn in his Mirrour of Justices lib. 3. cap. finali § en eyde des memoyees c. Certificando ' de recognitione Stapulae it is a Writ directed to the Major of the Staple c. commanding him to certifie the Chauncellor of a statute of the staple taken before him between such and such in case where the party himself detaineth it and refuseth to bring it in Regist orig fol. 152. b. In like manner may be said of certificando de statuto mercatorio eodem fol. 148. and de certificando in cancellarium de inquisitione de idemptitate nominis fol. 195. and certificando quando recognitio c. and certificando quid actum est de brevi super statutum mercatorium fol. 151. and certificando si loquela Warantiae fol. 13. Cessor is he that ceaseth or neglecteth so long to perform a duty be longing unto him as that by his cesse or cessing he incurreth the danger of Law and hath or may have the Writ cessavit brought against him Old nat br fol. 136. And note that where it is said in divers places the Tenent cesseth without any more words such phrase is so to be understood as if it were said the Tenent cesseth to do that which he ought or is bound to do by his Land or Tenement Cessavit is a Writ â—hat lyeth in divers cases as appeareth by Fitzh nat br fol. 280. upon this general ground that he against whom it is brought hath for two years foreslown to perform such service or to pay such rent as he is â—ed unto by his Tenure and hath not upon his Land or his Tenement sufficient goods or cattels to be distreined Consult more at large with Fitz. upon this ubi supra with Fleta lib. 5. cap. 34. § visa sunt and with the Terms of law See Cessavit de cantaria Register orig fol. 238. Cessavit de feod firma eodem fol. 237. Cessavit per biennium eodem folio etiam eodem See the new book of Entries verbo Cessavit Cestui qui vie is in true French Cestui a vie de qui. i. he for whose life any Land or Tenement is graunted Perkins graunts 97. Cestus qui use ille cujus usui vel ad cujus usum is broken French and thus may be bettered Cestui all use de qui. It is an ordinary speech among our Common
lawyers signifying him to whose use any other man is infeoffed in any Lands or Tenements See the new book of entries verbo uses and in Replevin fol. 508. colum 3. verbo Trespas fol. 606. fol. 123. a. b. colum 3. num 7. CH Chafe wax is an Officer in Chauncery that fitteth the wax for the sealing of the Writs such other instruments as are there made to be sent out This Officer is borrowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser i. sectari belluas apros cervos It signifieth two things in the Common Law First as much as actus in the Civil law that is a driving of cattel to or from any place as to chase a distress to a fortlet Old nat br fol. 45. Secondly it is used for a receit for Deer and wild beasts of a middle nature between a Forest and a Park being commonly lesse than a Forest and not endued with so many liberties as the Courts of attachment Swain mote and Justice seat and yet of a larger compas and stored with greater diversity both of keepers and wild beasts or game than a park And Crompton in his book of Jurisdictions fol. 148. saith that a Forest cannot be in the hands of a subject but it forth with loseth the name and becommeth a chase and yet fol. 197. he saith that a subject may be lord and owner of a Forest which though it seem a contrariety yet be both his sayings in some sort true For the King may give or alienate a Forest to a subject yet so as when it is once in the subject it leeseth the true property of a Forest because that the Courts called the Justice seat the Swain more and Attachment forthwith do vanish none being able to make a Lord chief Justice in Eyr of the Forest but the King as M. Manwood well sheweth parte 2. of his Forest Lawes cap. 3. 4. And yet it may be granted in so large a manner that there may be Attachment and Swainmote and a Court equivalent to a Justice seat as appeareth by him in the same chapter num 3. So that a Chase differeth from a Forest in this because it may be in the hands of a subject which a Forest in his proper true nature cannot and from a Park in that that it is not inclosed hath not onely a larger compasse and more store of game but of Keepers also and Overseers See Forest Chaleâ—ge calumnia cometh of the French chalenger i. sibâ— asserere is used in the Common law for an exception taken either against persons or things persons as in assise to the Jurors or any one or more of them or in a case of felony by the prisoner at the barre Smith de reâ— Angl. lib. 2. cap. 12. Briton cap. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration Old nat br fol. 76. Chalenge made to the Jurors is either made to the array or to the polles Chalenge to the array is when the whole number is excepted against as partially empaneled chalenge to or by the polle when some one or more are excepted against as not different Terms of the Law Chalenge to the Jurours is also divided into Chalenge principal and Chalenge per cause i. upon cause or reason Challenge principal otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the Law alloweth without cause alleged or farther examination Lamberd Eirena lib. 4. cap. 14. as a prisoner at the barr arraigned upon felonie may peremptorily chalenge to the number of 20. one after another of the Jurie empaneled upon him alleging no cause but his own dislike and they shall be still put off and new taken in their places But in case of high treason no challenge peremptorie is allowed anno 33 H. 8. cap. 23. Fortescue saith that a prisoner in this case may challenge 35 men c. 27. but that law was abridged by anno 25 H. 8. cap. 3. I cannot here omit to note some difference that in mine opinion I observe between Chalenge principal and Chalenge peremptorie finding peremptorie to be used only in matters criminal and barely without cause alledged more than the prisoners own phantasie Stawnf pl. cor fol. 124. but principal in civil actions for the most part and with naming of some such cause of exception as being found true the law alloweth without farther scanning For example if either party say that one of the Jurors is the son brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farther examination of the parties credit And how far this Chalenge upon children reacheth you have a notable example in Plowden casu Vernon against Manners fol. 425. Also in the plee of the death of a man and in every action real as also every action personal where the debt or dammages amount to 40 marks it is a good Chalenge to any man that he cannot dispend 40 shillings by the year of Free-hold anno 11 H. 7. cap. 21. and Terms of the Law verbo Chalenge The ground of this Chalenge you may see farther in Fleta lib. 4. cap. 8. Chalenge upon reason or cause is when the party doth allege some such exception against one or more of the Jurors as is not forthwith sufficient upon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Jurors as for example if the son of the Juror have married or espoused the daughter of the adverse party Terms of the Law ubi supra This Chalenge per cause seemed to be tearmed by Kitchin chalenge for favour fol. â—2 or rather Chalenge for favour is said there to be one species of Chalenge per cause where you may read what chalenges be commonly accounted principal and what not See the new book of Enteries verbo Chalenge and the Old nat br fol. 158. 159. That this word Chalenge is long sithence latined by the word calumnia appeareth by Bracton lib. 3. tract 2. cap. 18. lib. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will never forgive him that first strook this blow at him Of Chalenge you may farther read Fleta lib. 1. cap. 32. § Ad quem diem seq Chamberdekins are Irish beggers an 1 H. 5. c. 8. Chamberer is used for a Chamber-maid an 33 H. 8. cap. 21. Chamberlain camerarius vel camberlingus cometh of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly used in our Cbronicles Laws and Statutes as Lord great Chamberlain of England Lord Chamberlain of the Kings house the Kings Chamberlain anno 13 Ed. 1. cap. 41. anno 17 R. 2. cap. 6. to whose office it especially appertaineth to look to the Kings chambers and wardrope and to govern the under ministers
belonging unto the same Fleta lib. 2. cap. 6. 7. Chamberlain of any of the Kings courts anno 7 Edw. 6. cap. 1. Chamberlain of the Exchequer anno 51 H. 3. stat 5. anno 10 Ed. 3. cap. 11. anno 14 ejusdem cap. 14. anno 26 H. 8. cap. 3. Chamberlain of North Wales Stow pag. 641. Chamberlain of Chester Cromptons jurisd fol. 7. This Officer is commonly the receiver of all rents and revenues belonging to that person or City whereunto he is Chamberlain Vide Fletam lib. 2. cap. 70. § Si autem The Latine word seemeth to expresse the function of this officer For camerarius dicitur à camer a i. testitudine sive fornice â—quia custodit pecunâ—as quae in cameris praecipuè reservantur Onyphrius de interpret vocum ecclesiasticarum It seemeth to be borowed from the Feudists who define the word camera thus Camera est locus in quem the saurus recolligitur vel conclave in quo pecunia reservatur Zasius de feudis part 4. num 7. and Peregrinus de jure fisci lib. 6. tit 3. saith that camerarius vel camberlingus quem quaestorem antiqui appellarunt in rebus fisci primum locum tenet quia thesaurarius custos est publicae pecuniae Sane officium hoc primipilatus fuisse nonnulli senserunt There be two officers of this name in the Kings Exchâ—quer who were wont to keep a controlement of the pells of receipt and exitus and kept certain keyes of the treasure cofers which is not now in use They keep the keyes of the Treasurie where the leagues of the Kings predecessors and divers ancient books do remain There is mention of this officer in the Statute an 34. 35 H. 8. cap. 16. There be also Under-chamberlains of the Exchequer which see in Under-chamberlain Champartie cambipartita aliâs champertie seemeth to come from the French champert i. vectigal and signifieth in our Common law a maintenance of any man in his sute depending upon condition to have part of the thing be it lands or goods when it is recovered Fitz. nat br fol. 171. and champertours be they that move plees or sutes or cause to be moved either by their own procurement or by other and pursue at their proper costs for to have part of the land in variance or part of the gains anno 33 Ed. 1. stat 2. in fine Whereunto adde the third statute made the same year This seemeth to have been an ancient fault in our Realm For notwithstanding these former statutes and a form of writ framed unto them yet anno 4 Ed. 3. cap. 11. it was again enacted that whereas the former statute provided redresse for this in the Kings Bench onely which in those dayes followed the Court from thenceforth it should be lawful for Justices of the Common plees likewise and Justices of Assises in their circuits to inquire hear and determine this and such like cases as well at the sute of the King as of the Party How farre this Writ extendeth and the divers forms thereof applyed to several cases See Fitz. nat br fol. 171. and the Register orig fol. 183. and the new book of Enteries verbo Champertie Every Champertie imployeth maintenance Cromptons jurisd fol. 39. See also his Justice of Peace fol. 155. b. c. These with the Romans were called redemptores litium qui sc quotidian as lites mercantur aut qui partem litis paciscuntur l. si remuner andi § Maurus Ï€. Mandati l. si contra l. per diversas Co. eodem 13. Câ—anpion campio is thus defined by Hottoman in verbis feudalibus Campio est certator pro alio datus in duello à campo dictus qui circus erat decertantibus definitus In our Common law it is taken no lesâ—e for him that trieth the combat in his own case than for him that fighteth in the place or quarrel of another Bracton lib. 3 tract 2. cap. 21. num 24. who also seemeth to use this word for such as hold by Seargante or some service of another as campiones faciunt homagium domino suo lib. 2. cap. 35. Of this read more in Battel and Combat 30. Chanceler cancellarius cometh of the French chancelier Vicentius Lupanus de magistratibus Francorum saith that cancellarius is no Latine word howbeit he citeth divers Latine Writers that do use it With him agreeth that excellent man Petrus Pithaeus libro 2. adversariorum cap. 12. and whereas Lupanus would derive it from the verb cancello Pithaeus confeâ—eth he hath good colour for his opinion though he think it not sound and therefore rather deduceth it à cancellis Cancellare is liter as vel scriptum linea per medium duct a damnare and seemeth of it self like wise to be derived à cancellis which signifie all one with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek which we in our tongue call a Leâ—is that is a thing made of wood or iron barres laid crosse-waies one over another so that a man may see through them in and out And is to be thought that Judgement seats in old time were compassed in with those barres being found most necessary to defend Judges and other Officers from the presse of the multitude and yet never the more to hinder any mans view that had a desire or cause to observe what was done Cancellarius at the first by the opinion of Lupanus signified the registers or actuaries in Court grapharios sc qui conscribendis excipiendis judicum act is dant operam Pithaeus saith they were such as we now call Secretarios But this name in our daies is greatly advanced and not only in other Kingdomes but in ours also is given to him that is the chief man for matter of Justice in private causes especially next unto the Prince For whereas all other Justices in our Common-wealth are tied to the Law and may not swerve from it in judgement the Chancelor hath in this the Kings absolute power to moderate and temper the written Law and subjecteth himself onely to the Law of nature and conscience ordering all things juxta aequum bonum And therefore Stanford in his Prerogative cap. 20. fol. 65. saith that the Chancelor hath two powers one absolute the other ordinarie meaning that though by his ordinary power in some cases he must observe the form of proceeding as other ordinary Judges yet that in his absolute power he is not limited by the written law but by conscience and equity according to the circumstances of the matter in question But how long he hath had this power some would doubt For Polidorus Virgilius lib. 9. historiae Anglica hath these words of William the Conquerour Instituit item Scribarum Colleginm qui diplomata scriberent ejns Collegii magistrum vocabat Cancellarium qui paulatim supremus factus est Magistratus qualis hodie habeiur And see Flet. lib. 2. cap. 13. This high Officer seemeh to be derived from France unto us as many other
is an officer in Court so called because he hath the check and controllement of the yeomen of the Gard and all other ordinary yeomen or huissiers belonging either to his Majesty the Queen or Prince either giving leave or allowing their absences or defects in attendance or diminishing their wages for the same He also nightly by himself or Deputy taketh the view of those that are to watch in the Court and hath the setting of the watch This officer is mentioned anno 33 Henric. 8. cap. 12. Clerk Marshal of the Kings house seemeth to be an Officer that attendeth the Marshall in his Court and recordeth all his proceedings anno 33 Henr. 8. cap. 12. Clothe of Raye an 27 E. 3 stat 1. cap. 4. Closhe is an unlawful game forbidden by the the statute anno 17 E. 4. cap. 3. which is casting of a bowl at nine pinnes of wood or nine shank bones of an ox or horse Clove is the 32 part of a weigh of cheese i. eight pound anno 9 H. 6. cap. 8. Cloves caryophilli are a spice known by sight to every man They are flowers of a tree called caryophillus gathered and hardned by the Sun Of their nature you may read in Gerards Herbal lib. 3. cap. 144. This is comprised among such spices as be to be garbled an 1 Jacob. c. 19. CO Cocket cockettum is a seal appertaining to the Kings Custome-house Regist orig fol. 192 a. and also a scrow of parchment sealed and delivered by the officers of the Custome-house to Merchants as a warrant that their merchandise be customed anno 11 H. 6. cap. 16. which parchment is otherwise called literae de coketto or literae testimoniales de coketto Regist. ubi supr fol. 179 a. So is the word used anno 5 6 Edw. 6. cap. 14. an 14 Edw. 3. stat 1. c. 21. This word is also used for a distinction of bread in the statutes of bread and ale made anno 51 H. 3. where you have mention of bread coket wastelbread bread of trete and bread of Common wheat Coferer of the Kings houshold is a principal officer of his Majesties Court next under the controller that in the Counting-house and elsewhere at other times hath a special charge and oversight of other officers of the houshold for their good demeanour and carriage in their offices to all which one and other being either Sergeants Yeomen Grooms Pages or children of the kitchin or any other in any room of his Majesties servants of houshold and payeth their wages This officer is mentioned an 39 Eliz. cap. 7. Cogs anno 23 H. 8. cap. 18. Conisor of a fine is he that passeth or acknowledgeth a fine in Lands or Tenements to another Cognisee is he to whom the fine is acknowledged West parte 2. symbol tit Fines sect 2. Cognizance cometh from the French cognisance id est intelligentia intellectus notio cognitio with us it is used diversly sometime signifying a badge of a serving-mans sleeve whereby he is discerned to belong to this or that Noble or Gentleman sometime an acknowledgement of a fine or confession of a thing done as cognoscens latro Bracton lib. 3. tract 2. cap. 3.20 32. cognoscere se ad villanum Idem lib. 4. tract 3. cap. 16. As also to make cognisance of taking a distresse sometime as an audience or hearing of a matter judicially as to take cognisance sometime a power or jurisdiction as cognisance of plee is an ability to call a cause or plee out of another Court which no man can do but the King except he can shew Charters for it Manwood parte 1. of his Forest laws pag. 68. See the new Termes of the Law and the new book of Entries verbo Conusance Cognatione see Cosenage Cognisour see Conisour Cognitionibus mittendis is a Writ to a Justice or other that hath power to take a Fine who having taken acknowledgement of a Fine deferreth to certifie it into the Court of Common plees commanding him to certifie it Reg. orig 68. b. Coin cuneus vel cuna seemeth to come from the French coin id est Angulus which probably verifieth the opinion of such as do hold the ancientest sort of Coyn to be cornered and not round Of this Lawyers substantive cuna commeth the Lawyers verb cunare i. to coyn Cromtons Justice of peace fol. 220. Coliander seed or rather coriander seed Semen coriandri is the seed of an hearb so called medicinable and wholesome for divers goo◠purposes which see in Gerards Herbal l. 2. cap. 379. It is numbered among the drugges that be to be garbled an 1 Jacob. cap. 19. Collaterall collateralis commeth of the Latine Laterale id est that which hangeth by the side Lateralia viatoria π. de lega fidelium tertio l. 102. seem to signifie a budget or cap-case to hang by a saddel pomel Collaterall is used in the Common law for that which commeth in or is adhering of the side as collaterall assurance is that which is made over and beside the deed it self For example if a man covenant with another and enter bond for the performance of his covenant the bond is termed collaterall assurance because it is externall and without the nature and essence of the covenant And Crompt Jurisd fol. 185. sayeth that to be subject to the fee ding of the Kings Deer is collaterall to the spoyl within the Forest in the like manner may we say That the liberty to pitch booths or standings for a Fair in another mans ground is collaterall to the ground The private woods of a Common person within a Forest may not bee cut without the Kings licence For it is a prerogative collaterall to to the soil Manwood parte 1. of his Forest laws p. 66. Collaterall warranty see Warranty Collation of benefice collatio beneficii signifieth properly the bestowing of a Benefice by the Bishop that hath it in his own gift or patronage and differeth from Institution in this for that institution into a benefice is performed by the Bishop at the motion or presentation of another who is patron of the same or hath the Patrons right for the time Extra de institutionibus De concessione praebendarum c. And yet is collation used for presentation anno 25 Edw. 3. stat 6. Collatione fact a uni post mortem alterius c. is a writ directed to the Justices of the Common Plees commanding them to direct their writ to a Bishop for the admitting of a Clerk in the place of another presented by the King that during the sute between the King and the Bishops Clerk is departed For judgment once passed for the Kings Clerk and he dying before he be admitted the king may bestow his presentation upon another Regist orig fol. 31. b. Collatione heremitagii is a writ whereby the king conferreth the keeping of an Ermitage upon a Clerk Register orig fol. 303 308. Colour color signifieth in the Common law a probable plee but in truth
40. Commen of fishing communia pisâ—ariae Idem l. 2. ca. 34. Common of Turbary i. of digging Turves communia turbariae Idem lib. 4. cap. 41. Commen of estovers communia estoveriorum Kitchin fo 94. Commen is divided into Commen in grosse commen appendant commen appertinent and commen per caus de vicinage i. by reason of neighbourhood Commen in grosse is a liberty to have Commen alone that is without any land or tenement in another mans land to himself for life or to him and his heires And it is commonly passed by deed of grant or specialty Old nat brev fol. 31. 37. Commen appendant and Commen appertinent be in a manner confounded as appeareth by Fitz. Nat. brev fol. 180. and be defined â—â— be a liberty of Common appertaining to or depending of such or such a Free-hold Only Kitchin fol. 94 seemeth to make this difference that he which hath Common appertinent hath it without limitation of this or that kind of Beasts But that is controlled by Dyer fol. 70. b. num 19. Hee that hath Commen appendant hath it but for beasts commendable as horses oxen kine and sheep being accounted fittest for the Plowman and not of Goates Geese and Hogs Whereunto the Author of the new Terms of Law addeth another difference which is That Commen appertinent may be severed from the land wherunto it is appertinent but not Commen appendant The originall of Commen appendant Sir Edw. Coke l. 4. fol. 37. thus expresserh Commen appendant by the antient Law had beginning in this manner when a Lord infeossed another in earable lands to hold of him in Socage id est per servitium socae as all tenure in the beginning according to Litleton was the Feoffee to maintain the service of his plow had Commen in the wasts of his Lord for his necessary beasts to gain and compasse his land and that for two causes one for that as then it was taken it was tacite implyed in the feoffement by reason the Feoffee could not gain or compasse his land without cattel and cattel could not be sustained without pasture and so by consequent the feoffee had as a thing necessary and incident Commen in the wasts and land of the Lord. And this appeareth by antient books temp Ed. 1. tit Commen 24. 17. Ed. 2. tit Commen 23. 20 Ed. 3. tit Admesurement S. 18 Ed. 3. and by the rehearsall of the statute of Merton c. 4. The second reason was for maintenance and advancement of tillage which is much regarded and favoured in the Law Thus far Sir Edward Commen per cause de vicinage is a liberty that the Tenents of one Lord in one town have to Commen with the Tenents of another Lord in another town which kind of Commen they that challenge may not put their cattell into the Commen of the other town for then they be distreinable but turning them into their own fields if they stray into the neighbours Commen they must be suffered See the terms of Law Commen of pasture the Civilians call Jus compascendi cum sc plures ex municipibus qui diversa praedia possidebant saltum communem ut jus compascendi haberent merccâ—rentur l. panul Ï€. si servit vendicetur It is also called Jus compascuum Ibid. Commendam commenda is a Benefice that being void is commended to the charge and care of some sufficient Clerk to be supplyed untill it may be conveniently provided of a Pastor And that this was the true original of this practice you may read at large in Duraneus de sacris ecclesiae ministeriâ—s beneficiis l. 5. ca. 7. And whereas the glosse in verbo commendare in ca. Nemo deinceps de electione in sexto defineth commendam esse ecclesiae custodiam alicui comissam Johannes Andreas thereupon saith thus huic definitioni necessario haec adâ—icienda putem in tempus gratiâ evidentis necessitatis utilitasis Idque docuit textus in dicto capice Nemâ— Corrasius in his paraphrase de sacerdoâ—iorum materia parte 1. cap. 6. nu 3. seq thus describeth the matter In commendam conceditur benificium cùm Romanus Pontifex Legatus aut Episcopus Neque enim inferioribus qui ex privilegio aut alio jure spirituali conferunt concessum est ca. cunt omnes basilicae 16. quaest 7. ecclesiae vacantis custodiam alicui committit administratorem generalem ejus templi eum constituens ca. nemo de electio in sexto Commendare nnim aliud est nihil quà m deponere l. publius Ï€. depositi l. commendare â— de verb. signif Hoc autem ad tempus sex mensium et pro evidenti necessitate aut utilitate ecclesiae lex permittit d. ca. Nemo Quare commendatarius qui ecclesiae vacantis fructuum ad tempus duntaxat custodiam habet nec tenere beneficium jusve habere in beneficio aut canonicum titulum censebitur uti nec depositarius in re deposita whereof also Petrus Gregorius de beneficiis cap. 10. nu 13 thus writeth In hac quarta divisione potest addi tertium genus beneficii quod citra praescriptionem qualitatis à persona alterius qualitatis quà m beneficium exig at natur â possidetur sed sine praejudicio naturae beneficii et per dispensationem eo commendato olim ad tempus certum certae personae hodie ut plerunque quà m diu commendatarius vixerit Vocant hoc beneficium commendatum commendam ut si regulare beneficium à Summo Pontifice conferatur nomine commendae seculari Nam ideo non mutatur beneficii natura nec fit ideo seculare c. And a little after Interim annotabimus duplici de causa fieri commendam ecclesiae nempe vel in utilitatem ecclesia vel commendatarii In primo commenda titulum non dat beneficii commendatario dicitur potius custodia qua revocari potest quod repugnat naturae beficii quod est perpetuum In secundo autem casu beneficium censetur in utilitatem commendatarii commenda facta quam possidere potest quà m diu vixerit c. whom you may also read c. 2 l. 13. Commissary commissarius is a title of ecclesiasticall jurisdiction appertaining to such a one as exerciseth spiritual jurisdiction at the least so far as his Commission permitteth him in places of the Dioces so far distant from the chief City as the Chancellor cannot call the subjects to the Bishops principall Consistory without their too great molestation This Commissary is of the Canonists tearmed commissarius or officialis foraneus Lyndwoods provin cap. 1. de accusatio verbo Mandatum archiepiscopi in glos and is ordained to this especiall end that he supply the Bishops jurisdiction and office in the out-places of the Dioces or else in such parishes as be peculiars to the Bishop and exempted from the jurisdiction of the Archdeacon For where either by prescription or composition there be Archdeacons that have jurisdiction within their Archdeaconries as in most
as were forfeited to the Emperours Treasurie for any offence were bona confiscata so do we those that are forfeited to our Kings Exchequer See more of these goods confiscate in Stawnf pl. cor lib. 3. cap. 24. Conge d'eslire venia elegendi is very French and signifieth in our Common law the Kings Permission royal to a Dean and Chapter in time of vacation to chuse a Bishop or to an Abbey or Priorie of his own foundation to chuse their Abbot or Prior Fitzh nat br fol. 169. B. 170. B.C. c. Touching this matter M. Gwin in the Preface to his Readings saith that the King of England as soveraign Patron of all Arch-bishoprickes Bishoprickes and other Ecclesiastical Benefices had of ancient time free appointment of all Ecclesiastical Dignities whensoever they chanced to be void investing them first per baculum annulum and afterward by his Letters Patents and that in processe of time he made the Election over to others under certain forms and conditions as namely that they should at every vacation before they chuse demand of the King congé de'slire that is license to proceed to Election and then after the Election to crave his royal assent c. And farther he affirmeth by good proof out of Common Law-Books that King John was the first that granted this and that it was afterward confirmed by Westm. pri ca. 1. which statute was made anno 3 Ed. pri And again by the statute Articuli cleri c. 2. which was ordained anno 25 Ed. 3. statuto tertio Congeable commeth of the French conge i. venia It signifieth in our Common law as much as lawful or lawfully done as the entry of the Disseisee is Congeable Litseton fol. 91. in meo Conisance See Cognizance Contzour aliàs cognizour recognitor cometh of the French cognoistre i. cognoscere cernere and is used in the passing of Fines for him that doth acknowledge the Fine and the Conizee is he to whom it is acknowledged West parte 1 symbol l. 2. sect 49. parte 2. titulo Fines sect 114. See Recognizour Conjuration conjuratio is the very French word drawn from the Latine which as it is compounded of con juro so it signifieth a compact or plot made by men combining themselves together by oath or promise to do some publick harm But in our Common law it is especially used for such as have personal conference with the Devil or evil spirit to know any secret or to affect any purpose anno 5 Elizab. cap. 16. And the difference that I have observed how truly let those judge that be better skilled in these matters between conjuration and witchcraft is because the one seemeth by prayers and invocation of Gods powerful names to compel the devil to say or do what he commandeth him the other dealeth rather by friendly and voluntary conference or agreement between him or her and the devil or familiar to have her or his desires and turns served in lieu of blood or other gift offered unto him especially of his or her soul And both these differ from inchantments or sorceries because they are personal conferences with the Devil as is said but these are but medicines and ceremonial forms of words called commonly charms without apparition Consanguineo is a Writ for the which see Avo and see the Register orig De avo proavo consanguinco fol. 226. a. Conservator of the truee and sase conduicts conservator induciarum salvorum regis conductuum was an officer appointed in every port of the Sea under the Kings Letters Patents and had forty pound for his yearly stipend at the least His charge was to enquire of all offences done against the Kings truce and safe conducts upon the main Sea out of the Countries and out of the Franchises of the Cinque ports of the King as the Admirals of Custome were wont and such other things as are declared anno 2 H. 5. cap. 6. Touching this matter you may read another statute anno 4 H. 5. cap. 7. Conservatour of the Peace conservator velcustos pacis is he that hath an especial charge by vertue of his office to see the Kings peace kept Which peace learned M. Lamberd defineth in effect to be a with-holding or abstinence from that injurious force and violence which boysterous and unruly persons are in their natures prone to use toward others were they not restrained by laws and fear of punishment Of these Conservators he farther saith thus that before the time of King Edward the third who first erected Justices of Peace there were sundry persons that by the Common law had interest in keeping of the Peace Of those some had that charge as incident to their offices which they did bear and so included within the same that they were never the lesse called by the name of their office onely some others had it simply as of it self and were thereof name custodes pacis Wardens or Conservators of the Peace The former and latter sort he again subdivideth Which read in his Eirenarcha lib. 1. cap. 3. Consideration consideratio is that with us which the Grecians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the material cause of a contract without the which no contract bindeth This consideration is either expressed as if a man bargain to give twenty shillings for a Horse or else implyed as when the law it self inforceth a confideration as if a man come into a common Inne and there staying sometime taking both meat and lodging or either for himself and his Horse the Law presumeth that he intendeth to pay for both though nothing be farther covenanted between him and his Host and therefore if he discharge not the house the Host may stay his Horse Fulb. parel tract Contracts fol. 6. a. b. Consistorie consistorium is a word borrowed of the Italians or rather Lombards signifying as much as praetorium or tribunal vocab utriusque jur It is used for the place of Justice in the Court Christian Convocation-house domus convocationis is the house wherein the whole Clergie is assembled for consultation upon matters Ecclesiastical in time of Parliament And as the House of Parliament And as the house of the Parliament so this consisteth of two distinct Houses one called the higher Convocation-house where the Archbishops and Bishops sit severally by themselves the other the lower Convocation-house where all the rest of the Clergie are bestowed See Prolecutor Conusance See Cognisance Conusour See Cognizour Consolidation consolidatio is used for the combining and uniting of two Benefices in one Broke titulo Union This word is taken frō the Civil Law where it signifieth properly an uniting of the possession occupation or profit with the property For example if a man have by Legacie usum fructum fundi and afterwards buy the property or fee-simple as we call it of the heir hoc casu consolidatio fieri dicitur § 3. De usu fructu in Institut See Union and Unity of
and the like The causes wherewith they deal and whereof they judge are of all sorts as Maritine Ultra Marine Ecclesiastical Temporal But properly Temporal causes and onely of the other sort as they are mixt with Temporal The manner of proceeding in the said Court is first by Privy Seal Letters Missive or Injunction or Messenger or Bond. Secondly By Attachement Thirdly by Proclamation of Rebellion Fourthly by Commission of Rebellion Fifthly by Sergeant at Arms. The effect of the Defendants apparence is that he attend De die in diem on the Councel till he have mad his answer to the Plaintiffs Bill and be licensed to depart upon caution De judicio sisti judicato solvendo and Constitution of his Atturney and Councel by name The authority of this Court is such as upon cause to graunt injunctions for barring the Defendant from suing the Plaintiff at the Common law and to stay the sute at the Common law before commencement and not to arrest the body of the Plaintiff till further order be taken by the Kings Councel and the execution of a Decree in this Court may be done either by imprisonment of the person disobeying being party or claiming under the party or by levy of the summe adjudged upon his Lands Courtesie of England lex Angliae cometh of the French Courtesie i. benignitas humanitas but with us hath a proper signification being used for a Tenure For if a man marry an Inheritrice that is a woman seised of land in fee-simple or fee-tail general or seised as heir of the tail special and getteth a child of her that cometh alive into the world though both it and his wife die forthwith yet if she were in possession shall he keep the land during his life and is called Tenent per Legem Angliae or by the courtesie of England Glanvil lib. 7. cap. 18. Bracton lib. 5. tractat 5. cap. 30. num 7 8 9. r itto n. cap. 51. fol. 132. Fleta lib. 6. cap. 56. § lex quaedam Fitz. nat br fol. 149. D. Littleton lib. 1. cap. It is called the law of England West 3. cap. 3. This is in Scotland called curialitas Scotiae Skene de verbo sign verbo Curialitas who there saith that this is used in these two Realms onely and maketh a large discourse of the custome Coutheutlaughe is he that wittingly receiveth a man outlawed and cherisheth or hideth him In which case he was in antient times subject to the same punishment that the outlaw himself was Bracton lib. 3. tract 2. cap. 13. num 2. It is compounded of couthe i. known acquainted familiar and utlaughe an outlaw as we now call him Coutilage aliâs curtilage Curtilagium alias curtilegium signifieth a garden a yard or a field or piece of void ground lying neer and belonging to a mesuage West parte 2. Symbolaeo titulo Fines sect 26. And so it is used anno 4 Ed. 1. cap. unico anno 35 H 8. cap. 4. anno 39 Eliz. cap. 2. and Coke vol. 6. fol. 64. a. Of this also Lindwood thus writeth Curtilegium vulgare nomen est non ommum patriarum sed certarum Est enim curtis mansio vel manerium ad habitandum cum terris possessionâ—bus aliis emoâ—umentis adtale manerium pertinentibus prout satis colligitur in libro feudorum titulo De controversia investiturae § si quis de manso Col. 10. Unde curtilegium dicitur locus adjunctus tali curti ubi leguntur herbae vel olera â—â—â—c dictus à curtis lego legis pro colligere Thus farre Linwood titulo de decimis ca. Sancta § omnibus verbo Curtelegiorum So that in effect it is a Yard or a Garden adjoyning to a House CR Creansour creditor cometh of the French croyance i. persuasio and signifieth him that trusteth another with any debt be it in money or wares Old nat br fol. 67. Cranage cranagium is a liberty to use a Crane for the drawing up of wares from the Vessels at any creek of the Sea or wharf unto the Land and to make profit of it It signifieth also the money paid and taken for the same New Book of Entries fol. 3. col 3. Creek creca crecca vel crecum seemeth to be a part of a Haven where any thing is landed or disburthned out of the Sea So that when you are out of the Main Sea within the Haven look how many landing places you have so many Creeks may be said to belong to that Haven See Cromptons Jurisdictions fol. 110. a. This word is mentioned in the statute as anno 5 Eliz. c. 5. and divers others Creast-tile See Roof-tile Croft croftum is a little close or pitle joyned to a house that sometimes is used for a Hemp-ground sometime for Corn and sometime for Pasture as the owner listeth It seemeth to come of the old English word Creaft signifying handy-craft because such grounds are for the most part extraordinarily dressed and trimmed by the both labour and skill of the owner Croises cruce signati be used by Britton cap. 122. for such as are Pilgrims the reason may be for that they wear the sign of the Crosse upon their Garments Of these and their Privileges read Bracton lib. 5. parte 2. cap. 2. part 5. cap. 29. and the Grand Custumary of Normandy cap. 45. Under this word are also signified the Knights of the order of Saint John of Jerusalem created for the defence of Pilgrims Gregor Syntagm lib. 15. cap. 13. 14. CU Cuckingool tumbrella is an engine invented for the punishment of Scolds and unquiet women called in ancient time a tumbrel Lamb. Eirenarcha lib. 1. cap. 12. po 62. in meo Bracton writeth this word Tymborella Kitchin where he saith that every one having view of Frank-pledge ought to have a Pillorie and a Tumbrel seemeth by a Tumbrel to mean the same thing cap. Charge in Court leet fol. 13. a. Cuth other uncuth privatus vel extraneus These be old English words not yet worn out of knowledge for the which see Roger Hoveden parte poster suorum annalium fol. 345. a. Cudutlaghe See Couthutlaughe Cui ante divortium is a Writ that a Woman divorced from her Husband hath to recover lands or tenements from him to whom her husband did alienate them during the marriage because during the marriage she could not gainsay it Regist. orig fol. 233. Fitzh nat br fol. 204. Cuinage is a word used for the making up of Tinne into such fashion as it is commonly framed into for the carriage thereof into other places anno 11 H. 7. cap. 4. Cui in vita is a Writ of Entry that a Widow hath against him to whom her Husband aliened her Lands or Tenements in his life time which must contain in it that during his life time she could not withstand it Regist orig fol. 232. Fitzh nat br fol. 193. See the new Book of Entries verbo Cui in vita Cuntey cuntey is a kind of trial as
Those of the new foundation are by a shorter course installed by vertue of the Kings Letters Patents without either election or confirmation This word is also applyed to divers that are the chief of certain peculiar Churches or Chapels as the Dean of the Kings Chappel the Dean of the Arches the Dean of Saint George his Chapel in Windfor the Dean of Bocking in Essex Debet solet These words are divers times used in the Writers of the Common law and may trouble the mind of a young Student except he have some advertisement of them For example it is said in the Old nat br fol. 98. This Writ de secta molindini being in the debet and solet is a Writ of right c. and again fol. 69. A Writ of Quod permittat may be pleaded in the County before the Sheriff and it may be in the debet and in the solet or the debet without the solet according as the Demandant claimeth Wherefore note that those Writs that be in this sort brought have these words in them as formal words not be omitted And according to the diversity of the case both debet and solet are used or debet alone that is if a man sue to recover any right by a Writ whereof his Ancester was disseised by the Tenant or his Ancestor then he useth onely the word debet in his Writ because solet is not fit by reason his Ancestor was disseised and the custome discontinued but if he sue for any thing that is now first of all denied him then he useth both these words debet solet because his Ancestors before him and he himself usually injoyed the thing sued for as sute to a Mill or common of Pasture until this present refusal of the Tenant The like may be said of debet and detinet as appeareth by the Regist orig in the Writ de debito fol. 140. a. Debito is a VVrit which lyeth where a man oweth to another a certain summe of money upon an Obligation or other bargain for any thing sold unto him Fitzh nat br fol. 119. This VVrit is made sometime in the Detinet and not in the Debet which properly falleth out where a manoweth an Annuitie â—or a certain quantitie of wheat barley or such like which he refuseth to pay Old nat br fol. 75. See Debet Solet Denelage Denelagia is the law that the Danes made here in England out of which and Merchenlage and West-Saxonlage the Conquerour compounded certain ordinances for his subjects Camdeni Britan. pag. 94. pag. 183. Decens tales See Tales Decies tantum is a VVrit that lyeth against a Jurour which hath taken money for the giving of his Verdict called so of the effect because it is to recover ten times so much as he took It lieth also against Embracers that procure such an Enquest anno 38 Ed. 3. cap. 13. Reg. orig fol. 188. Fitzh nat br fol. 171. New book of Entries verbo Decies tantum Deceit deceptio fraus dolus is a subtile wily shift or devise having no other name Hereunto may be drawn all maner of craft subtilty guile fraud wylinesse slightnesse cunning covin collusion practice and offence used to deceive another man by any means which hath none other proper or particular name but offence West parte 2. symbol titulo Indictments sect 68. See Cosening Decanniers See Deciners Deceptione is a VVrit that lyeth properly against him that deceitfully doth any thing in the name of another for one that receiveth harm or Dammage thereby Fitzh nat br fol. 95. This VVrit is either original or judicial as appeareth by the Old nat br fol. 50. where you may read the use of both For some satisfaction take these words of that book This VVrit of deceit when it is original then it lieth in case where deceit is made to a man by another by which deceit he may be disherited or otherwise evil intreated as it appeareth by the Register c. And when it is judicial then it lieth out of the Rolls of Record as in case where scire facias is sent to the Sheriff that he warn a man to be before the Justices at a certain day and the Sheriff return the Writ served whereas the said man was not warned by which the party that sueth the scire facias recovereth then the party which ought to have been warned shall have the said Writ against the Sheriff The Author of the Termes of Law verbo Deceit saith that the original VVrit of Deceit lieth where any Deceit is done to a man by another so that he hath not sufficiently performed his bargain or promise In the VVrit judicial he concurreth with the former book See the Reg. orig fol. 112. and the Reg. Judicial in the table verbo Deceptione Decintis solvendis pro possessionibus alienigenarune is a VVrit or Letters Patents yet extant in the Register which lay against those that had fermed the Priors aliens lands of the King for the Rector of the Parish to recover his tithe of them Regist orig fol. 179. Deciners aliâs desiners aliâs doziners decenarii cometh of the French dizeine i. decan ten in number or old of disenier i. decearchus It fignifieth in the ancient monuments of our law such as were wont to have the ouersight and check of ten Fribargs for the maintenance of the Kings peace And the limits or compalâ—e of their jurisdiction was called decenna Bracton lib. 3. tract 2. cap. 15. of whom you may also read Fleta lib. 1. cap. 27. and a touch in the Regist orig fol. 98. b. These seemed to have large authority in the Saxons time taking knowledg of causes within their Circuit and redressing wrongs by way of judgement as you may read in the Laws of King Edward set out by M. Lamberd num 32. In later times I find mention of these as in Britton cap. 12. who saith in the Kings person as he writeth his whole book in this manner VVe will that all those which be 14 years old shall make oath that they shall be sufficient and loyal unto us and that they will be neither Felons nor assenting to Felonsâ— and we will that all be endozeint plevis per dozeniers that is professe themselves to be of this or that Dozein and make or offer surety of their behaviour by these or those Doziniers except Religious persous Clerks Knights and their eldest Sons and Women Yet the same Author in his 29 Chapter something toward the end doth say that all of twelve years old and upward are punishable for not coming to the turn of the Sheriff Except Earls Prelates Barons Religious persons and women Stawnf pl. cor fol. 37. out of Fitzh hath these words The like Law is where the Dozeniers make presentment that a Felon is taken for Felonie and delivered to the Sheriff c. And Kitchin out of the Register and Britton saith thus Religious persons Clerks Knights or VVomen shall not be Deceniers fol.
Hog R. answereth It is true that thou sayest and I delivered thee thy Hog which I am ready to prove Deraisnian he defineth to be a proof of a thing that one denieth to be done by himself which his adversary saith was done defeating or confounding his adversaries Assertion as you would say and shewing it to be without and against reason or likelihood which is avouched in our Common law it is used diversly first generally for to prove as Dirationavit jus suam hares propinquior Glanvil lib. 2. cap. 6. and Habea probos hemmer qui hoc viderum audierunt parati sunt hoc dirationare Idem lib. 4. cap. 6. and Dirationavit terram illam in curia mea Idem lib. 2. cap. 20. 1. he proved that land to be his own c. And pertinentiam eam dirationavit in vita sua vel alio modò juste perquisivit Idem lib. 6. cap. 12. and Bracton useth it after the same sort in these words Habeo sufficientem disratiocinationem probationem lib. 4. tract 6. cap. 16. and so he useth disrationare lib. 4. cap. 22. and so in Westm 2. anno 13 Ed. pri cap. 32. and to derein the warranty Old nat br fol. 146. and to derein the warranty Paramount anno 31 H. 8. cap. primo And dereigner le Warranty in Plowd casu Basset in fine 2. partis fol. 6 7. 8. a. hath the same signification So it is used West 2. cap. 5. anno 13 Ed. 1. in these words And when the parson of any Church is disturbed to demand Tithes in the next Parish by a Writ of Indicavit the patron of the Parson so disturbed to demand Tithes shall have a Writ to demand the Advowson of the Tithes being in demand and when it is deraigned then shall the Plee passe in the Court Christian as sarre forth as it is deraigned in the Kings Court. Bracton also lib. 3. tract 2. cap. 3. num 1. speaking of him that appealeth another for any Treason or Felony hath these words Proponat accufans appellum suum in hunc modum sc debet dicere se interfuisse vidisse certo loco certo die certa hora sciâ—isse ipsum accufatum praelocutum fuisse mortem regâ—s vel seâ—â—tionem suam vel exercitus sui vel consensisse vel anxiliant consilium impendisse vel ad hoc authoritxtem praestitisse hoc ego juxta considerationent curiae disrationare paratus sum He useth it like wise as the Normans use Disraisniam for him that offereth to justifie his denial as lib. 3. tract 2. cap. 2 S. num 1. in these words Rex consilio Episcoporum bonorum mrsit propter comitem ut statuto die ventret ad curiam ad disrationandum vel defendendum se si posset Lastly in some places I find the substantive dereinement used in the very literal signification of the French disrayer or defranger that is as a man would say turning out of course displacing or ferting out of order as dereinement or departure out of Religion anno 31 H. 8. cap. 6. and dereinment or discharge of their profession anno 33 H. 8. cap. 29. which is spoken of those Religious men which forsook their orders and professions as also anno 5 6 Ed. 6. cap. 13. So doth Kitchin use the verb fol. 152. in these words The Leasse entreth into Religion and afterward is dereigned And Britton useth these words Semounse desrenable for a summons that may be challenged as defective or not lawfully made cap. 21. Of this you may read something more in Skene de verb. signif verbo Disrationare where in one signification he confoundeth it with our waging and making of Law De son tort Demesne seem to be certain words of form in an action of trespasse used by way of reply to the Plee of the Defendant For example A. sueth B. in action of Trespasse B. answereth for himself that he did that which A. calleth a Trespasse by the commandement of C. his Master A. saith again that B. did it de son tort demesne sans ceoque C. luy commanda modo et forma that is B. did it of his own wrong without that C. commanded him in such form c. Detinet See Debito and Debet Detinew detinendo is a Writ that lyeth against him who having goods or chattels delivered him to keep refuseth to deliver them again See of this Fitzh nat br fol. 138. To this is answerable in some sort actio depositi in the Civil law And he taketh his action of detinew that intendeth to recover the thing delivered and not the Dammages sustained by the Detinew Kitchin fol. 176. See the new book of Entries verbo Detinew Devastaverunt bona testatoris is a Writ lying against Executors for paying Legacies and Debts without specialties to the prejudice of the creditours that have specialties before the debts upon the said specialties be due For in this case the Executors are as liable to action as if they had wasted the goods of the Testarour riotously or without cause New Terms of Law Devest Devestir is contrary to Invest For as Investire signifieth possessionem tradere So devestire is possessionem auferre feud lib. pri cap. 7. Devise alias divise cometh of the French diviser i. dispertiri discernere separare distinguere as diverser parici et par la distribuere This word is properly attributed in our Common Law to him that bequeaths his goods by his least Will or Testament in writing and the reason is because those that now appertain onely to the Devisour by this act are distributed into many parts Wherefore I think it better written divise then devise howbeit it were not absurd to derive this word from the French deviser i. sermâ—cinari fabulari conâ—ilium conferre For in this sense it agreeth in some sort with the nature of the act of the Testator and with the Etymology of a Testament set down by Justinian who saith that testamentum is quasimentis testatio titulo de testa ordinan in instit and testatio mentis cannot be so well as by talk and conference with our wise and skilful friends Devoires of Cales anno 2 R. 2. Stat. 1. cap. 3. et anno 5. ejusdem Stat. 2. cap. 2. were the customes due to the King for Merchandize brought to or carried out from Caleis when our Staple was there The word is French signifying as much as officium dutie Devorce alias divorce divortium is with our Common Lawyers accounted that separation between two de facto married together which is à vinculò matrimonii non solùm à mensa thoro And therefore the woman so divorced received all again that she brought with her This is not but only upon a nullity of the marriage through some essential impediment as consanguinity or affinity within the degrees forbidden precontract impotency or such like See the new Tearms of Law DI Diem clausit extremum is a Writ that lyeth for
each journey Escuage certain is that which yearly payeth a certain rent in lieu of all services being no further bound than to pay his rent called a Knights-fee or the fourth part of a Knights-fee according to his land and this leeseth the nature of Knights service though it hold the name of Escuage being in effect Soccage Fitzh na br fol. 84. C. Esnecy Aesnecia is a prerogative given to the eldest Comparcener to chuse first after the inheritance is divided Fleta lib. 5. cap. 10. § in divisionem Esples Expletia seem to be the full profits that the ground or land yeeldeth as the Hay of the Meadowes the Feed of the Pasture the corn of the Earable the Rents Services and and such like issues Ingham It seemeth to proceed from the Latine Expleo The profits comprised under this word the Romans call properly accessiones Nam accessionem nomine intelliguntur ea gener aliter omnia quae ex re de qua agitur orta sunt veluti fructus partus omnis causa rei quaecunque ex re procedunt lib. 2. Ï€. De in diem adjectio lib. 50. Ï€. Ad Trebel lib. 61. § hiis etiam Ï€. de furt See the new Terms of Law Esquier Armiger is in letters little altered from the French Esouier i. scutiger It signifieth with us a Gentleman or one that beareth arms as a testimony of his nobility and gentry S. Thomas Smith is of opinion that at the first these were Bearers of arms to Lords and Knights and by that had their name and dignity Indeed the French word is sometime translated Agaso that is a Boy to attend or keep a Horse and in old English Writers it is used for a Lackey or one that carrieth the Shield or Spear of a Knight Mast Cambden in his Britannia pag. 111. hath these words of them having spoken of Knights Hiis proximi fuere Armigeri qui scutiferi hominesque ad arma dicti qui vel à clypeis gentilitiis quae in nobilitatis insignia gestant vel quia principibus ma oribus illis nobilibus ab armis erant nomen traxerunt Olim enim ex hiis duo unicuique militi serviebant galeam clypeumque gestabant c. Hotoman in the sixth Chapter of his Disputations upon the Feodssaith that these which the French men cal Escuiers were 1 Military kind of vassal having jus scuti which is as much to say he there interpreteth himself as that they bare a Shield and in it the ensignes of their family in token of their Gentility or dignity Essendt quietum de telonio is a Writ that lyeth for Citizens and Burgesses of any City or Town that have a Charter or prescription to exempt them from tolle through the whole Realm if it chance they be any where exacted â—he same Fitz. nat br fol. 226. Reg. fol. 258. Essoin essonium cometh of the French essomè or exonniè i. causarius miles he that hath his presence forborn or excused upon any just cause as sicknesse or other incumbrance It signifieth in our Common Law and allegement of an excuse for him that is summoned or sought for to appear and answer to an Action real or to perform sute to a Court Baron upon just cause of absence It is as much as excusatio with the Civilians The causes that serve to essoin any man summoned be divers and infinite yet drawn to five heads whereof the first is ulira mare the second de terra sancta the third de malo veniendi which is also called the common Essoin the fourth is de malo lecti the fifth de servitio Regis For further knowledge of these I refer you to Glanvile in his whole first book and Bracton lib. 5. tract 2. per totum and Britton c. 122 123 124 125. and to Horns Mirrour of Justices lib. 1. cap. des Essoins who maketh mention of some more essoins touching the service of the King celestial then the rest do and of some other points not unworthy to be known Of these Essoins you may read further in Flet. l. 6. c. 8. seq and that these came to us from the Normans is well shewed by the Grand Custumary where you may find in a manner all said that our Lawyers have of this matter cap. 39 40 41 42 43 44 45. Essoins and profers anno 32 H. 8 cap. 21. See Profer Essonio de malo lecti is a Writ directed to the Sheriff for the sending of four lawful Knights to view one that hath essoined himself de malo lecti Regist. orig fol. 8. b. Establishment of dower seemeth to be the assurance of dower made to the Wife by the Husband or his friends before or at marriage And assignement is the setting it out by the Heir afterward according to the Establishment Britton cap. 102. 103. Estandard or Standard cometh of the French estandart or estandart i. signum vexillum It signifieth an Ensigne in war as well with us as with them But it is also used for the principal or standing measure of the King to the scantling whereof all the measures thorowout the Land are or ought to be framed by the Clerk of the Market Anlneger or orher Officer according to their functions For it was established by the Statute of Magna Charta an 6 H. 3. cap. 9. That there should be but one scantling of Weights and Measures through the whole Realm which is sithence confirmed by Aâ—co 14 Ed. 3. cap. 12. and many other Statutes as also that all should be fitted to the Standard sealed with the Kings Seal It is not called a Standard without great reason because it standeth constant and immoveable and hath all other Measures coming toward it for their conformity even as Souldiers in field have their Standard or Colours for their direction in their march or skirmish Of these Standards and Measures read Britton cap. 30. Estate cometh of the French estat i. conditio and signifieth especially in our Common law that Title or Interest which a man hath in Lands or Tenements as estate simple otherwise called Fee-simple and estate conditional or upon condition which is as Litleson saith libro 3. caput 5. either upon condition in Deed or upon condion in Law Estate upon condition in Deed is where a man by Deed indented infeoffeth another in Fee referving to him and to his Heirs yeerly a certain Rent payable at one Feast or at divers upon condition that if the Rent be behind c. that it shall be lawful to the Feoffor and to his Heires to enter in the Lands or Tenements c. Estate upon condition in Law is such as hath a consideration in the Law annexed to it though it be not specified in writing For example if a man grant to another by his Deed the Office of a Parkership for Term of his life this estate is upon condition in the Law or imployed by Law viz. if the Parker so long shall well and
5. where he saith that in case a Writ of right be brought and the seisin of the Demandant or his Ancestor alleged the seisin is not traversable by the Defendant but he may tender or profer the half mark for the enquiry of this seisin which is as much to say in plainer Terms that the Defendant shall not be admitted to denie that the Demandant or his Ancestor was seised of the Land in question and to prove his denial and that he shall be admitted to tender half a Mark in money to have an enquiry made whether the Demandant c. were so seised or not And in this signification I read the same words in the old English natura brevium fol. 26. b. viz. Know ye that in a Writ of right of Advowzen brought by the King the Defendant shall not profer the half Mark no Judgement final shall be given against the King c. Whereof Fitzh ubi supra M. giveth the reason because in the Kings case the Defendant shall be permitted to traverse the seisin by licence obtained of the Kings Sergeant To this effect See Fitz. nat br fol. 31. C.D.E. Half seal is used in the Chancery for the sealing of Commissions unto Delegates appointed upon any appeal in Ecclesiastical or Marine causes anno 8 Eliz. cap. 5. Half tongue See Medietas linguae Halymote alias Healgemot is a Court Baron Manwood parte prima of his Forest laws pag. 111. and the Etymologie is the meeting of the Tenants of one Hall or Mannor M. Gwins Preface to his Reading which for the esteem thereof is by copies spread into many mens hands Hallage is a Fee due for clothes brought for sale to Blackwel-hal in London Coke vol. 6. fol. 62. b. Hamlet Hameletum is a diminutive of Ham which signifieth habitationem Cambden Brit. pag. 149. 354. The French hameau i. viculus is also neer unto it Kitchin hath Hamel in the same sense f. 2.15 who also useth hampsel for an old house or cottage decayed fo 103. Hamlet as Stow useth it in Ed. 3. seemeth to be the seat of a Free-holder For there he saith that the said King bestowed two Manors and nine Hamlets of land upon the monastery of Westminster for the keeping of yearly obits for his Wife Queen Eleanor deceased Hameling of dogs or hambling of dogs is all one with the expeditating of dogs Manwood parte prim of his Forest laws pag. 212. parte 2. cap. 16. num 5. where he saith this is the ancient term that Foresters used for that marter whence this word might be drawn I dare not resolve but it is not improbable that hameling is quasi hamhalding that is keeping at home which is done by paring their feet so as they cannot take any great desight in running abroad See Expeditate Hampsel See Hamlet Hamsoken See Homesoken M. Skene de verb. significa writeth it Haimsuken and deriveth it from Haim a German word signifying a house or dwelling and Suchen that is to seek search or pursue It is used in Scotland for the crime of him that violently and contrary to the Kings peace assaulteth a man in his own house which as he saith is punishable equally with ravishing of a VVoman significat quietantiam misericordiae intrationis in alienam domum vi injusté Fleta lib. pri cap. 47. See Homesoken Hand in and Hand out anno 17 Ed. 4. cap. 2. is the name of an unlawful game Hand-full is four inches by the standard anno 33 H. 8. cap. 5. c. Hankwit aliâs Hangwit or Hengwit cometh of the Saxon words Hangen i. pendere and wit whereof read in Gultwit Rastal in the title Exposition of words saith It is a liberty granted unto a man whereby he is quit of a Felon or Thief hanged without judgement or escaped out of custody I read it interpreted mulcta pro homine injustè suspenso Or whether it may be a liberty whereby a Lord chalengeth the forfeiture due for him that fordoth himself within his Fee or not let the Reader consider See Blood-wit Hanper haneperium haneper of the Chancery anno 10 R. 2. cap. prim seemeth to signifie as fiscus originally doth in Latine See Clerk of the Hanaper Hanse as Ortelius in the Index of his Additament to his Theater ver Ansiatici saith is an old Gothish word where he sheweth not the interpretation It signifieth a certain society of Merchants combined together for the good usage and safe passage of Merchandize from Kingdome to Kingdome This society was and in part yet is endued with many large privileges of Princes respectively within their territories It had four principal seats or staples where the Almain or Dutch Merchants being the Erectours of this society had an especial house one of which was here in London called Gildhalda Teutonicorum or in our Common language the Steelyard Of this you may read more in the place of Ortelius above mentioned Haope cometh of the French happer i. rapio cum quadam velo citate capio and the French seemeth to come from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It signifieth in our Common law the same thing as to hap the possession of a deed poll Litleton fol. 8. Haque is a hand-gun of about three quarters of a yard long anno 33 Henr. 8. cap. 6. anno 2. 3 E. 6. cap. 14. There is also the half-haque or demy-haque See Haquebut Haquebut is that piece of artillery or gun which we otherwise call an harquebuse being both French words Anno 2. 3 Ed. 6. cap. 14. anno 4. 5 Phil. Mar. cap. 2. Hariot aliâs heriot heriotum in the Saxon heregeat a litle altered which is drawn from here i. exercitus And a heriot in our Saxons time signifieth a tribute given to the Lord for his better preparation toward War Lambert innis explication of Saxon words verbo Hereotum The name is still retained but the use altered for wheras by Master Lamberts opinion ubi suâ—ra it did signifie so much as relief doth now with us now it is taken for the best chattel that a Tenent hath at the hour of his death due unto the Lord by custom be it horse oxe cattel or any such like Master Kitchin distinguisheth between Heriot service and Heriot custom fol. 133 134 For interpretation whereof you shall find these words in Brook titulo Hariot num 5. Hariot after the death of the Tenent for life is Hariot custome For Hariot service is after the death of Tenent in Fee-simple The new Expounder of the Law Terms saith That Hariot service in some mans opinion is often expressed in a mans grant or deed that he holdeth by such service to pay Hariot at the time of his death that holdeth in Fee-simple Hariot custome is where Hariots have been payd time out of mind by Custome And this may be after the death of the Tenent for life See Plowden fol. 95 b. 69 a b. Bracton saith that Heriotum est quasi relevium li.
Christian hath this means to remoove it to the Kings Court Reg. orig f. 35. b. See Old nat br fol. 31. the Regist fol. 35. and Britton cap. 109. fol. A. Indictments Indictamentum See Indightment Indivisium is used in the common Law for that which two hold in common without partition Kitchin fol. 241. in these words He holdeth pro indiviso c. Indorsementum indorsamentum signifieth in the Common law a condition written upon the other side of an obligation West part 2. symb Sect. 157. Infang aliâs infeng significat quietantiam prioris prisae ratione convivii Flet. lib. 1. cap. 47. Infangthef Hingfangthefe or Infangtheof is compounded of three Saxon words the preposition In fang or fong to take or catch and theft it signifieth a privilege or liberty granted unto Lords of certain Manors to judge any thief taken within their fee. Bract. lib. 3. tract 2. cap. 8. In the laws of King Edward set out by M. Lamberd nu 26. you have it thus described Infangthefe Iustitia cognoscentis latronis sua est de homine suo si captus fuerit super terram suam Illi verò qui non habent has consuetudines coram justicia regia rectum faciant in Hundredis vel in Wapentachiis vel in Scyris The definition of this see also in Britton fol. 90. b. and Roger Hoveden parte poster saorum annalium fol. 345. b. M. Skene de verborum significat verbo Infangthefe who writeth of it at large reciting diversity of opinions touching this and outfangthief Fleta saith that in fangtheef for so he writeth it dicitur latro captus in terra alicujus seisitus aliquo latrocinio de suis propriis hominibus lib. 1. ca. 47. § Infangtheef Information See Enditement See new Terms of Law Informer informator in French informature is an officer belonging to the Exchequer or Kings Bench that denounceth or complaineth of those that offend against any pennal Statute They are otherwise called promotors but the men being bashfull of nature doe blush at this name these among the Civilians are called delatores Informatus nonsum is a formal answer of course made by an Atturney that is commanded by the Court to say what he thinketh good in the defence of his Client by the which he is deemed to leave his Client undefended and so judgement passeth for the adverse partie See the new book of Entries titulo Nonsum informaus And Judgement 12. Ingressu is a Writ of Entrie that is whereby a man seeketh entrie into Lands or Tenements it lyeth in many divers cases wherein it hath as many diversities of formes See Entrie This Writ is also called in the particular praecipe quod reddat because those be formall words in all Writs of entry The Writs as they lye in divers cases are these described in the Old nat br Ingressu ad terminum qui praeteriit fol. 121. Origin Regist. fol. 227. which lieth where the Lands or Tenements are let to a man for term of years and the Tenant holdeth over his term Ingressu dum non fuit compos mentis fol. 223. original Regist fol. 218. which lieth were a man selleth Land or Tenement when he is out of his wits c. Ingressu dum fuit infra atatem fol. 123. Register original fol. 228. which lieth where one under age selleth his Lands c. Ingressu super disseisina in le quibus fol. 125. Register origin fol. 229. which lieth where a man is disseised and dieth for his heir against the disseisour Ingressu in per fol. 126. origin Regist fol. 229. Ingressu sur cui in vita fol. 128. original Register fol. 239. both which see in Entry Ingressu causa matrimonii praelocuti fol. 130. original Register fol. 233. which see Causa matrimonii praelocuti Ingressu in casu proviso fol. 132. Regist origin fol. 235. which see Casu proviso Ingressu cui ante divorâ—ium fol. 130. original Register fol. 233. for which see Cui ante divortium Ingressu in consimili casu fol. 233. original Register fol. 236. for which see Consimili casu Ingressu sine consensu capituli fol. 128. original register fol. 230. for which see Sine assensu capituli Ingressu ad communem legem fol. 132. original Register fol. 234. which lieth where the Tenent for term of life or of anothers life Tenant by courtesie or Tenant in Dower maketh a feofment in fee and dyeth he in reversion shall have the foresaid writ against whomsoever that is in the land after such feofment made Ingrossing of a fine is making the Indentures by the Chirographer and the delivery of them to the party unto whom the cognisance is made Fi zh eb nat br fol. 147. A. Ingrosser ingrossator cometh of the French Grosseur i. crassitudo or Grosier i. Solidarius venditor It signifieth in the Common law one that buyeth corn growing or dead victual to sell again except Barly for mault Oats for Oatmeal or victuals to retail badging by licence and buying of oyles spices and victuals other than fiish ot salt anno 5. Edw. 6. cap. 14. anno 5. Elizab. cap. 14. anno 13. Elizab. cap. 25. these be M. Wests words parte 2. symbol titulo Inditements Sect. 64. Howbeit this definition rather doth belong to unlawful ingrossing than to the word in general See Forstaller Inheritance haereditas is a perpetuity in ands or tenements to a man and his heirs For Littleton ca. 1. li. 1. hath these words And it is to be understood that this word inheritance is not only understood where a man hath inheritance of Lands and Tenements by descent of heritage but also every fee simple or fee tail that a man hath by his purchase may be said inheritance for that that his heirs may inherit him Several inheritance is that which two or more hold severally as if two men have land given them to them the heirs of their two bodies these have joint estate during their lives but their heirs have several inheritance Kitchin fol. 155. See the new Terms of law verbo Enheritance Inhibition Inhibitio is a writ to inhibit or forbid a Judge from farther proceeding in the cause depending before him See Fitz. nat br fo 39. where he putteth prohibition inhibition together inhibition is most commonly a writ issuing out of a higher Court Christian to a lower and inferiour upon an appeal anno 24 H. 8. cap. 12. and prohibition out of the Kings Court to a Court Christian or to an inferiour Temporal Court Injunction injunctio is an interlocutory decree out of the Chancerie sometimes to give possession unto the Plaintiff for want of apparence in the Defendant sometime to the Kings ordinary Court and sometime to the Court Christian to stay proceeding in a cause upon suggestion made that the rigour of the law if it take place is against equity and conscience in that case See West parte 2. symb titulo Proceeding in Chancery Sect. 25. Inlawgh Inlagatus vel homo
joyntly to the Husband and the Wife and after to the Heirs of their bodies whereby the Husband and Wife be made joynt tenants during the coverture Coke lib. 3. Butler and Bakers case f. 27. b. See Frank mariage Joynture is also used as the abstract of Joynt tenants Coke lib. 3. the Marquess of Winchesters Case fol. 3. a. b. Junctura is also by Bracton and Fleta used for joyning of one bargain to another Fleta lib. 2. cap. 60. touching the self-same thing and therefore joynture in the first signification may be so called in respect that it is a bargain of livelihood for the wife adjoyned to the contract of mariage Journ Choppers anno 8 Hen. 6. cap. 5. be regraters of yarn Whether that we now call yarn were in those daies called journ I cannot say but Choppers in these dayes are well known to be changers as choppers of Churches c. Journeyman commeth of the French Journee that is a day or dayes work which argueth that they were called Journeymen that wrought with others by the day though now by Statute it be extended to those likewise that covenant to work in their occupation with another by the year anno quinto Elizabeth cap. quarto IS Issue Exitus commeth of the French Issir i. emanare or the Substantive Issue i. exitus eventus It hath divers applications in the common Law sometime being used for the children begotten between a man and his wife sometime for profits growing from an amercement or fine or expences of sute sometime for profits of lands or tenements West 2. anno 13. Edw. prim cap. 39. sometime for that point of matter depending in sute whereupon the parties joyn and put their cause to the trial of the Jury and in all these it hath but one signification which is an effect of a cause proceeding as the children be the effect of the mariage between the Parents the profits growing to the King or Lord from the punishment of any mans offence is the effect of his transgression the point referred to the trial of twelve men is the effect of pleading or processe Issue in this last signification is either general or special General issue seemeth to be that whereby it is referred to the Jury to bring in their verdict whether the Defendant have done any such thing as the Plaintiff layeth to his charge For example if it be an offence against any Statute and the Defendant plead not culpable this being put to the Jury is called the General issue and if a man complain of a private wrong which the Defendant denieth and pleads no wrong nor disseisin and this be referred to the 12. it is likewise the General issue Kitchin fol. 225. See the Doctor and Student fol. 158. b. The Special issue then must be that where special matter being alleged by the Defendant for his defence both the parties joyn thereupon and so grow rather to a Demurrer if it be quaestio Juris or to tryal by the Jury if it be quaestio facti See the new Book of Entries verbo Issue JU Juncture See Joynture Jure patronatus See the new Book of Entries verbo Jure patronatus in quare impedit fol. 465. col 3. Jurie Jurata commeth of the French Jurer i. jurare it signifieth in our Common law a company of men as 24. or 12. sworn to deliver a truth upon such evidence as shall be delivered them touching the matter in question Of which trial who may and who may not be empanelled see Fitzh nat brev fol. 165. D. And for better understanding of this point it is to be known that there be three manner of trials in England one by Parliament another by Battel and the third by Assize or Jury Smith de Repub. Anglorum lib. 2. cap. 5 6 7. touching the two former read him and see Battel and Combat and Parliament the trial by Assise be the action civil or criminal publike or private personal or real is referred for the fact to a Jury and as they find it so passeth the Judgement and the great favour that by this the King sheweth to his Subjects more than the Princes of other Nations you may read in Glanvil lib. 2. cap. 7. where he called it Regale beneficium clement is principis de consilio procerum populis indultum quo vitae hominum Status integritats tam salubriter consulitur ut in jure quod quis in libero soli tenemento possidet retinendo duelli casum declinare possint homines ambiguum c. see the rest This Iury is not used only in Circuits of Justices Errant but also in other Courts and matters of Office as if the Escheatour make inquisition in any thing touching his Office he doth it by Jury or Inquest if the Coroner inquire how a subject found dead came to his end he useth an Inquest the Justices of Peace in their Quarter Sessions the Sheriff in his County and Turn the Bayliff of a Hundred the Steward of a Court Leet or Court Baron if they inquire of any offence or decide any cause between party and party they doe it by the same manner So that where it is said that all things be triable by Parliament Battel or Assise Assise in this place is taken for a Jury or Enquest empanelled upon any cause in a Court where this kind of trial is used and though it be commonly deemed that this custom of ending and deciding causes proceed from the Saxons and Britons and was of favour permitted unto us by the Conquerour yet I find by the grand Customarie of Normandy cap. 24. that this course was used likewise in that Country For Assise is in that Chapter defined to be an assembly of wise men with the Bayliff in a place certain at a time assigned forty dayes before whereby Justice may be done in causes heard in the Court. Of this custom also and those Knights of Normandie Johannes Faber maketh mention in the Rubrique of the Title de militari testamento in Institut this Jury though it appertain to most Courts of the Common law yet is it most notorious in the half-year Courts of the Justices errants commonly called the great Assises and in the quarter Sessions and in them it is most ordinarily called a Jury And that in civil causes whereas in other Courts it is oftener termed an Enquest and in the Court Baron the Homage In the general Assise there are usually many Juries because there be store of causes both civil and criminal comonly to be tried whereof one is called the Grand Jury and the rest Petit Juries whereof it seemeth there should be one for every Hundred Lamb. Eirenar lib. 4. cap. 3. pag. 384. The Grand Jury consisteth ordinarily of 24. grave and substantial Gentlemen or some of them Yeomen chosen indifferently out of the whole Shire by the Sheriff to consider of all Bils of Inditement preferred to the Court which they doe either approve by writing upon them these
quod constituimus vos Justiciarium nostrum capitalem ad placita coram nobis terminandum durante bene-placito nostro Teste c. And Bracton in the place now recited speaking of the Common Plees saith that Sine Warranto jurisdictionem non habet which I think is to be understood of a Commission under the great Seal This Court was first called the Kings Bench because the King sat as Judge in it in his proper Person and it was moveable with the Court. See anno 9 H. 3. cap. 11. More of the jurisdiction of this Court see in Crompton ubi supra See Kings Bench. The oath of the Justices see in the Statute anno 18 Edw. 3. stat 4. See Oatb Justice of common plees Justiciarius communium placitorum is also a Lord by his Office and is called Dominus Justiciarius communium placitorum and he with his assistants originally did hear and determine all causes at the Common law that is all civil causes between common persons as well personal as real for which cause it was called the Court of Common Plees in opposition to the Plees of the Crown or the Kings Plees which are special and appertaining to him only Of this and the Jurisdiction hereof see Cromptons jurisdiction fol. 91. This Court was alwayes setled in a place as appeareth by the Statute anno 9 H. 3. cap. 11. The oath of this Justice and his Associates see anno 18 Edw. 3. Stat. 4. See Oath Justice of the Forest Justiciarius Forestae is also a Lord by his Office and hath the hearing and determining of all offences within the Kings Forest committed against Venison or Vert of these there be two whereof the one hath jurisdiction over all the Forests on this side Trent the other of all beyond The chiefest point of their Jurisdiction consisteth upon the articles of the Kings Charter called Charta de Foresta made anno 9 H. 3. which was by the Barons hardly drawn from him to the mitigation of over cruel ordinances made by his predecessors Read M. Camdens Brit. pag. 214. See Protoforestarius The Court where this Justice sitteth and determineth is called the Justice seat of the Forest held every three years once whereof you may read your fill in M. Manwoods first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Justice in Eyre of the Forest See the reason in Justice in Eyre This is the only Justice that may appoint a Deputy per statutum anno 32 H. 8. cap. 35. Justices of Assise Justiciarii ad capiendas Assisas are such as were wont by special Commission to be sent as occasion was offered into this or that County to take Assises the ground of which polity was the ease of the Subjects For whereas these actions passe alway by Jury so many men might not without great hinderance be brought to London and therefore Justices for this purpose were by Commission particularly authorised and sent down to them And it may seem that the Justices of the Common Plees had no power to deal in this kind of businesse until the statute made anno 8 Richard 2. cap. 2. for by that they are enabled to take Assises and to deliver Gaols And the Justices of the kings Bench have by that Statute such power affirmed unto them as they had one hundred years before that Time hath taught by experience that the better sort of Lawyers being fittest both to judge and to plead may hardly be spared in term time to ride into the Countrey about such businesse and therefore of later years it is come to passe that these commissions ad capiendas Assisas are driven to these two times in the year out of term when the Justices and other may be at leasure for these Controversies also wherupon it is also fallen out that the matters wont to be heard by more general Commission of Justices in Eyr are heard all at one time with these Assises which was not so of old as appeareth by Bracton l. 3. c. 7. 2. nu Habet etiam Justiciarios itinerantes de Comitatu in Comitatum quandoque adomnia placita quandoque ad quaedam specialia sicut Assisas c. et ad Gaolas deliberandas quandoque ad unicam vel duas non plures And by this means the Justices of both Benches being justly to be accounted the fittest of all others others their Assistants as also the Sergeant at law may be imployed in these affaires who as gravest in years so are they ripest in judgement and therefore likest to be void of partiality for being called to this dignity they give over practice anno 8 R. 2. cap. 3. but this alway to be remembred that neither Justice of either Bench nor any other may be Justice of Assise in his own Countrey anno 8 R. 2. cap. 2. anno 33 H. 8. cap. 24. Lastly note that in these dayes though the self same men disparch businesse of so divers natures and all at one time which were wont to be performed by divers and at severall times yet they doe it by several commissions Cromptons jurisdictions fol. 210. For those who be in one word called Justices of Circuit and twice every year passe by two and two through all England have one Commission to take Assises another to deliver Gaols another of Oyer and Terminer That Justices of Assise and Justices in Eyre did antiently differ it appeareth anno 27 Ed. 3. cap. 5. and that Justices of Assise and Justices of Gaol delivery were divers it is evident by anno 4 Ed. 3. cap. 3. The oath taken by Justices of Assise is all one with the oath taken by the Justices of the Kings Bench. Old abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of Oyer and Terminer Justiciarii ad audiâ—ndum Terminandum were Justices deputed upon some especial or extraordinary occasion to hear and deter mine some or more causes Fitzherbert in his natura brevium saith that the Commission a'Oyer and Terminer is directed to certain persons upon any great assembly insurrections hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely weighed is provided by the Statute anno 2 Ed. 3. cap. 2. that no such commission ought to be granted but that they shall be dispatched before the Justices of the one Bench or other or Justices errants except for horrible trespasses and that by the special favour of the King The form of this commission see in Fitzh natur brev fol. 110. Justices in Eyre Justiciarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis itineribus proverbially spoken the use of these in antient time was to send them with Commission into divers Counties to hear such causes especially as were termed the Plees of the Crown and therefore I must imagine they were so sent abroad for the ease of the Subjects who must else have been
hurried to the Kings Bench if the cause were too high for the County Court They differed from the Justices of Oyer and Terminer because they as is above-said were sent upon some one or few especial cases and to one place whereas the Justices in Eyre were sent through the Provinces and Counties of the land with more indefinite and general Commission as appeareth by Bracton lib. 3. cap. 11 12 13 and Britton cap. 2. And again they seem to differ in this because the Justices of Oyer and Terminer as it is before said were sent uncertainly upon any uproar or other occasion in the countrey but these in Eyre as M. Gwin setteth down in the Preface to his Reading were sent but every seven year once with whom Horn in his mirrour of Justices seemeth to agree lib. 2. cap. queux point estre actourrs c. and lib. 2. cap. des peches criminels c. al suyte de Roy c. and li. 3. ca. de Justices in Eyre where he also declarâ—th what belonged to their office These were instituted by Henry the 2. as M. Camden in his Britannia witnesseth pag. 104. And Roger Hoveden parte posteri annalium fol. 313. b. hath of them these words Justiciarii itinerantes constituti per Henricum secundum i. qui divisit regnum suum in sex partes per quarum singulas tres Justiciarios itinerantes constituit quorum nomina haec sunt c. Justices of Gaol delivery Justiciarii ad Gaolas deliberandas are such as are sent with Commission to hear and determine all causes appertaining to such as for any offence are cast into the Gaol part of whose authority is to punish such as let to Mainprise those prisoners that by law be not baileable by the Statute de finibus cap. 3. Fitz. nat br fol. 151. I. These by likelihood in antient time were sent to Countries upon this several occasion But afterward Justices of Assise were likewise authorised to this anno 4 Ed. 3. cap. 3. Their oath is all one with other of the Kings Justices of either Bench Old Abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of labourers were Justices appointed in those times to redresse the frowardnesse of labouring men that would either be idle or have unreasonable wages See anno 21 Edvardi 3. cap. primo anno 25 ejusd cap. 8. an 31 ejusd cap. 6. Justices of Nisi prius are all one now adayes with Justices of Assises for it is a common Adjournment of a cause in the Gommon Plees to put it off to such a day Nisi prius Justiciarit venerint ad eas parte ad capiendas Assisas and upon this clause of Adjournment they are called Justices of Nisi Prius as well as Justices of Assises by reason of the writ or action that they have to deal in their Commission you may see in Cromptons Jurisdictions fol. 204. yet M. Crompton maketh this difference between them because Justices of Assise have power to give judgement in a cause but Justices of Nisi prius only to take the verdict But in the nature of both their functions this seemeth to be the greatest difference because Justices of Nisi prius have to deal in causes personal as well as real whereas Justices of Assise in strict acception deal only with the possessory writs called Assises Justices of trial baston alià s of trayl baston were a kind of Justices appointed by King Edward the first upon occasion of great disorder grown in the Realm during his absence in the Scotish and French warres they are called in the Old nat brev fol. 52. Justices of trial Baston but by Holynshed and Stow Ed. pri of Trail baston or trailing or drawing the staff as Holynshed saith Their office was to make inquisition through the Realm by the verdict of substantial Juries upon all officers as Maiors Sheriffs Bayliffs Escheators and others touching extortion briberies and other such grievances as intrusions into other mens lands and Barratours that used to take money for beating of men and also of them whom they did beat by means of which inqusitions many were punished by death many by ransome and so the rest flying the Realm the land was quieted and the King gained great riches toward the supporting of his wars Inquire farther of the name Baston is thought by some to be the beam of a pair of Scoales or Weights And this is in this place metaphorically applied to the just peising of recompence for offences committed My poor opinion is that the etymologie of this title or addition groweth from the French Treilles i. cancelli bars or lettises of what thing soever a grate with crosse bars or of the singular Treille i. pargula an house arbour a rail or form such as vines run upon and Baston a staff or pole noting thereby that the Justices imployed in this Commission had authority to proceed without any solemn Judgement Seat in any place either compassed in with railes or made Booth or Tent-wise set up with staves or poets without more work wheresoever they could apprehend the malefactors they sought for See libro Assisarum folio 57.141 Justices of Peace Justiciarii ad pacem are they that are aprointed by the kings Commission with others to attend the peace of the Countie where they dwell of whom some upon special respect are made of the Quorum because some businesse of importance may not be dealt in without the presence or assent of them or one of them Of these it is but folly to write more because they have so many things appertaining to their Office as cannot in few words be comprehended And again Justice Fitzherbert sometime sithence as also Master Lamberd and Master Crompton of late have written Bookes of it to their great commendation and fruitfull benefit of the whole Realm See also Sir Thomas Smith de repub Anglorum lib. 2. cap. 19. They were called Gardians of the Peace until the 36. year of king Edward the third cap. 12. where they be called Justices Lam. Eirenarcha lib. 4. cap. 19. pag. 578. Their oath see also in Lamberd lib. 1. cap. 10. Justices of Peace c. within Liberties Justiciarii ad pacem infra libertates be such in Cities and other Corporate Towns as those others be of any County and their authoritie or power is all one within their several precincts Anno 27 H. 8. cap. 25. Justicies is a Writ directed to the Sheriff for the dispatch of Justice in some especiall cause wherewith of his own authoritie he cannot deal in his County Court lib. 12. cap. 18. whereupon the Writ de Excommunicato deliberando is called a Justicies in the Old nat brev fol. 35. Also the Writ de homine replegiando eodem fol. 41. Thirdly the Writ de secunda superoneratione pasturae eodem fol. 73. Kitchin fol. 74. saith that by this writ called Justicies the Sheriff may hold plee of a great summe whereas of his ordinary authoritie he cannot hold plees but
those which were formerly in use that King Henry the third was thought but hardly to yield unto it that to have the 15th peny of all the movable goods both of the Spiritualty and Temporalty throughout his Realm Holinshed in Hen. the 3d. And though this Charter consist not of above 37 Charters of Laws yet is it of such extent as all the laws we have is thought in some sort to depend of it Polydor. and Holinshed ubi supra Mahim Mahemium commeth of the old French Mehaigne as M. Skene saith de verbor significat verbo Machanium and signifieth a corporal hurt whereby a man loseth the use of any Member that is or might be any defence unto him in Battel The Canonists call it Membrimutilationem as the eye the hand the foot scalpe of the head his foretooth or as some say of any finger of his hand Glanvile lib. 14. cap. 7. See Bracton at large lib. 3. Tractat. 2. cap. 24. num 3. and Britton cap. 25. and Stawnf pl. cor lib. 1. cap. 41 and the new exposition of Law-terms and the Mirrour of Justices cap. d'Homicid The grand Customary of Normandy cap. 6. calleth it Mahaignium and defineth it to be Enormen laesionem All agree that it is the losse of a Member or the use thereof And membrum as Cassan de consuetu Burgund pag. 168. defineth it out of Baldus Est pars corporis habens destinatam operationem in corpore where you may read more of this point But if you will see it largely discussed look Ugolinus de irregularitatibus cap. 4. sect 3 4 5. also read M. Skene ubi supra Mainour aliâs manour aliâs meinoure seemeth to come of the French manier i. manu tractare attrectare or else of Amener i. abducere It signifieth in our Common law the thing that a Thief taketh away or stealeth As to be taken with the Manour Pl. cor fo 179 is to be taken with the thing stollen about him again fo 194. It was presented that a Thief was delivered to the Viscount together with the Mainour And 3ly fo 186 If a man be indicted that he feloniously stole the goods of another where in truth they be his own goods and the goods be brought into the Court as the Mainour and it be demanded of him what he saith to the goods and he disclaim them though he be quitted of the felony he shall lose the goods And again fo 149. If the Defendant were taken with the Manour and the Manour be carried to the Court they in ancient times would arraign him upon the Manour without any appeal or inditement I find this word used in the Old nat brev fol. 110. in this sort where a man maketh a thing by Manour or leavying or estopping in such Case he shall have assise where it signifieth handy labour and is but an abbreviation of Mainovery Mainvre see Minoverye Mainprise manucaptio is compounded of two French words Main 1. manus and prius id est captus which is a participle of the verb prendre id est capere excipere captare It signifieth in our common Law the taking or receiving a man into friendly custody that otherwise is or might be committed to the mercy of the prison upon security given for his forth-comming at a day assigned as to let one to mainprise Old nat bre f. 42. is to commit him to them that undertake his appearance the time appointed And they that do thus undertake for any are called Mainpernours because they do receive him into their hands Pl. Co. fol. 178. Of this sort is the word Mainpernable which signifieth him that hath committed such an Offence as by law he may be thus bayled for in many Cases a man is not mainpernable whereof see Brook titulo Mainprise per totum and Fitzh nat brev fol. 249. seq Master Manwood in his first part of his Forest laws pa. 167. maketh a great difference between Bayl and Mainprise For he that is mainprised quoth he is alwaies said to be at large and to go at his own liberty out of ward after the day is set to mainprise untill the day of his appearance by reason of the said several summons or otherwise But otherwise it is where a man is let to bayl to four or two men by the Lord Justice in Eyr of the Forest untill a certain day For there he is alwaies accounted by the Law to be in their ward and custody for the time And they may if they will keep him in ward or in prison all that time or otherwise at their will So that he that is so bayled shall not be said by the Law to be at large or at his own liberty Thus far Master Manwood The Myrrour of Justices maketh a difference also between pledges and Mainpernours saying that pledges are more general and that Mainpernours are body for body lib. 2. c. de Trespass veniall and lib. 3. cap. des Pledges and Mainpernours When Mainprises may be granted and when not see Cromptons Justice of Peace fol. 136 c. usque 141. and Lambert Eirenarch lib. 3. cap. 2. pag. 336 337 338 339 340. See also Britton fol. 73. a. cap. des Pledges Mainpernours The Author of the Mirrour of Justices saith that Pledges be those that bayl or redeem any thing but the body of a man and that Mainpernours be those that free the body of a man And that Pledges therefore belong properly to real and mixt actions and Mainpernours to personal Maintenance manutentio vel manutenentia is a French word and signifieth an upholding of a cause or person metaphorically drawn from the succouring of a young Child that learneth to go by ones hand In our Common law it is used in the evill part for him that secondeth a Cause depending in sute between others either by lending of mony or making Friends for either party toward his help Anno 32 Hen. 8. cap. 9. And when a mans act in this kind is by Law accounted Maintenance and when not See Brook titulo Maintenance and Kitchm fol. 202 seq and Fitzh natura brev fo 172. and Cromptons Jurisdictions fol. 38. The writ that lieth against a Man for this offence is likewise called Maintenance Terms of the Law verbo Maintenance Special Maintenance Kitchin fol. 204. seemeth to be maintenance most properly so termed Of this see Cromptons Justice of peace fo 155. b. and the New Book of Entries verbo Maintenance Maintenance v. Novos terminos juris Make facere signifieth in the Common law to perform or execute as to make his Law is to perform that law which he hath formerly bound himself unto that is to clear himself of an Action commenced against him by his oath and the Oaths of his Neighbours Old nat brev fol. 161. Kitchin fol. 192. Which Law seemeth to be borrowed of the Feudists who call these men that come to swear for another in this Case Sacramentales Of whom thus saith Hotoman in verbis Feudal
terms And read also in some Civilians of Assirmativa praegnans and that is quae habet in se inclusivam negativam Et hoc importare videntur dictiones Solùm tantiâ—m qua implicant negativam Pacianus De probationibus lib. 1. cap. 31. num 16. fol. 93. Neif nativa cometh of the French Naif i. naturalis vel nativus it signifieth in our Common law a Bondwoman anno 1 Ed. 6. cap. 3. the reason is because women become bound rather nativitate than by any other means Ne injustè vexes is a Writ that lyeth for a Tenent which is distrained by his Lord for other services than he ought to make and is a Prohibition to the Lord in it self commanding him not to distrain The especial use of it is where the Tenent hath formerly prejudiced himself by performing more services or paying more rent without constraint than he needed For in this Case by reason of the Lords seisin he cannot avoid him in avowry and therefore he is driven to this Writ as his next remedy Regist orig fol. 4. Fitz. nat brev fol. 10. Ne Vicecomes colore mandati Regis quemquam amoveat à possessione ecclesiae minus justè Regist orig fol. 61. NI Nient comprise is an exception taken to a Petition as unjust because the thing desired is not contained or comprehended in that Act or Deed whereupon the Petition is grounded For example one desireth of the Court to be put in possession of a House formerly among other Lands c. adjudged unto him The adverse party pleadeth that this Petition is not to be granted because though he had a judgement for certain Lands and Houses yet the House into the possession whereof he desireth to be put is not contained among those for the which he had judgment See the New Book of Enteries titulo Nient comprise This seemeth to be especially to hinder execntion Nifle anno 3 Ed. 4. cap. 5. Nihil anno 5 R. 2. stat 1. cap. 3. is a word set upon a Debt illeviable by the forein Apposer in the Exchequer Nihil dicit is a failing to put in answer to the Plea of the Plaintiff by the day assigned which if a man do commit judgement passeth against him as saying nothing why it should not Nisi prius is a Writ Iudicial which lyeth in Case where the Enquest is paneled and returned before the Iustices of the Bank the one party or the other making Petition to have this Writ for the ease of the Country It is directed to the Sheriff commanding that he should cause the men impaneled to come before the Iustices in the same County for the determination of the Cause there except it be so difficult that it need great deliberation In which it is sent again to the Bank v. anno 14 Edward 3. cap. 15. The form of the Writ see in Old nat br fol. 159. and in the Register judicial fol. 7. 28. 75. See the New Book of Entries verbo Nisi prius And it is called Nisi prius of these words comprised in the same whereby the Sheriff is willed to bring to Westminster the men empaneled at a certain day or before the Iustistices of the next Assises Nisi die Lunae apud talem locum prius venerint c. whereby it appeareth that Iustices of Assises and Iustices of Nisi prius are differing And Iustices of Nisi prius must be one of them before whom the Cause is depending in the Bench with some other good man of the County associated unto him Fitzherb nat brev fol. 240. E. which he taketh from the Statute of York anno 12 Ed. 2. See Westm 2. cap. 30. anno 13 Edw. prim anno 27 ejusdem cap. 4. anno 2 Edw. 3. cap. 17. anno 4 ejusdem cap. 11. anno 14 ejusdem cap. 16. anno 7 Rich. 2. cap. 7. anno 18 Eliz. cap. 12. NO Nobility Nobilitas in England compriseth all Dignities above a Knight So that a Baron is the lowest degree thereof Smith de Repub. Anglor lib. prim ca. 17. Bartolus in his Tractate de Nobilitate which he compiled upon the Law Si ut proponis C. de dignitatibus libro 12. rehearseth four Opinions de Nobilitate but rejecteth them and himself defineth it thus Nobilitas est qualitas illata per principatum tenextem qua quis ultra honestos plebeios acceptus ostenditur But this definition is too large for us except we will account Knights and Banerets inter plebem which in mine opinion were too haish For Equites among the Romans were in a middle rank inter Senatores plebem Nocumento See Nusance Nomination nominatio is used by the Canonists and Common Lawyers for a power that a man by vertue of a Mannor or otherwise hath to appoint a Clerk to a Patron of a Benefice by him to be presented to the Ordinary New Terms of the Law Non-ability is an exception taken against the Plaintiff or Demandant upon some cause why he cannot commence any sute in Law as Praemunire Outlawry Villenage or Excommunication or because he is a Stranger born The Civilians say That such a man hath not personam standi in judicio See Brook hoc titulo See Fitz. nat brev fo 35. a. fo 65. d. fo 77. c. The new Expositor of Law Terms teckoneth six causes of Non-ability as if he be an Outlaw a Stranger born condemned in a Praemunire professed in Religion excommunicate or a Villein Howbeit the second cause holdeth only in Actions real or mixt and not in personal except he be a Stranger and an enemy Non admittas See ne admittas Nonage is all the time of a mans age under one and twenty years in some cases or fourteen in some as mariage See Brook titulo Age. See Age. Non capiendo Clericum see Clericum non capiendo Non-claym Cromptons Jurisdict fo 144 seemeth to be an exception against a man that claimeth not within the time limited by Law as within a year and day in case where a man ought to make continual Claim or within five years after a Fine levyed Vide Cook lib. 4. in Prâ—oemio See Continual claim Non compos mentis it is of four sorts First he that is an Ideot born Next he that by accident afterwards wholly loseth his wits Thirdly a Lunitick that hath sometime his understanding and sometime not Lastly he which by his own Act depriveth himself of his right mind for a time as a Drunkard Coke lib. 4. fo 124. b. Non distringendo is a Writ comprising under it divers particulars according to divers Cases all which you may see in the Table of the Register origin verbo non distringendo Non est culpabilis is the general Answer to an Action of Trespass whereby the Defendant doth absolutely deny the fact imputed unto him by by the Plaintiff whereas in other especial Answers the Defendant granteth a Fact to be done and allegeth some reason in his defence why he lawfully might
portionis is a Writ that lyeth for a joint renent or renent in Common that is distreyned for more rent than the proportion of the Land commeth unto Reg. orig fol. 182. b. OP Open Law Lex manifesta Lex apparens is making of Law which by Magna Charta cap. 28. Bayliffs may not put men unto upon their own bare assertions except they have Witnesses to prove their imputation OR Orchel anno 1 R. 3. cap. 8. Orchall anno 24 H. 8. cap. 2. anno 3 4 Ed. 6. cap. 2. seemetst to be all one with Cork Ordinance of the Forest Ordinatio Forestae is a Statute made touching Forest causes in the 34 year of Edward 1. See Assise Ordinary Ordinarius though in the Civil law whence the word is taken it doth signifie any Judge that hath authority to take knowledge of Causes in his own right as he is a Magistrate and not by deputation yet in our Common law it is most commonly and for ought I remember alway taken for him that hath ordinary jurisdiction in causes Ecclesiastical See Brook hoc titulo Linwood in cap. exterior titulo de Constitutionibus verbo Ordinarii saith quòd Ordinarius habet locum principaliter in Episcopo et aliis superioribus qui soli sunt universales in suis ju isdictionibus sed sunt sub eo aliâ—ordinarii hii viz. quibus competit jurisdictio ordinaria de jure privilegio vgl consuetudine c. v. c. Ordinatione contra servientes is a Writ that lyeth against a Servant for leaving his Master against the Statute Register original fol. 189. Ordel Ordalium is a Saxon word signifying as much as Judgement in some mens opinions compounded of two Saxon words or a privative as a in Greek and dael 1. pars It signifieth as much as expers but it is artificially used for a kind of purgation practised in antient times whereby the party purged was judged expers criminis called in the Canon law purgatio vulgaris and utterly condemned There were of this two sorts one by fire another by water Of these see M. Lamberd in his explication of Saxon words verbo Ordalium where he expresseth it at large with such superstitions as were used in it Of this you may like wise read Holinshed in his description of Britain fol. 98. and also M. Manwood parte pri of his Forest laws pag. 15. But of all the rest Hotoman especially disput de feud p. 41. where of five kind of proofs which he calleth feudales probationes he maketh this the fourth calling it explorationem et hujus furiosae probationis 6. genera fuisse animadvertit per flammam per aquam perferrum candens per aquam vel gelidam vel ferventem per sortes et per corpus Domini of all which he allegeth several exemples out of History very worthy the reading See M. Skene also de verbor significatione verbo Machamium This seemeth to have been in use here with us in Henry the seconds dayes as appeareth by Glanvile lib. 14. c. 1 2. Read also of this in M. Verstegans Restitution of decayed intelligence cap. 3. pag. 63. seq Orfgild aliis Cheapegeld is a restitution made by the Hundred or County of any wrong done by one that was in plegio Lamberd Archaion page 125. 126. Org is anno 31. Ed. 3. stat 3. cap. 2. is the greatest sort of North sea-fish now a daies called Organ ling. Oredelf is a liberty whereby a man claimeth the Ore found in his soyl New exposition of Termes Ortelli is a word used in the book termed pupilla oculi in the chapter containing the Charter of the Forest parte 5. cap. 22. and signifyeth the clawes of a dogs foot being taken from the French orteils des pieds i. digiti pedum the Toes OS Osmonds anno 32. Henr. 8. cap. 14. OT Oth of the King Juramentum Regis is that which the King taketh at his Coronation which in Bract. is set down in these words Debet Rex in coronatione sua in nomine Jesu Christi praestito sacramento haec tria promittere populo sibi subdito Inprimis se esse praecepturum pro viribus opem impensurum ut ecclesiae dei et omni populo Christiano vera pax omnisuo tempore observetur Secundò ut rapacitates et omnes inquietates omnibus gradibus interdicat Tertiò ut in omnibus judciis aequitatem praecipat misericordiam ut indulgeat ei suam misericordiam clemens misericors Dens ut per justitiam suam firma gaudeant pace universi And in the old abridgment of Statutes set out in King Henry the eighths dayes I find it thus described This is the oath that the King shall swear at his Coronation That he shall keep and maintain the right and the liberties of the Holy Church of old time granted by the righteous Christian Kings of England and that hee shall keep all the Lands Honours and Dignities righteous and free of the Crown of England in all manner whole without any manner of minishment and the rights of Crown hurt decayed or lost to his power shall call again into the ancient estate and that he shall keep the peace of the Holy Church and of the Clergy and of the people with good accord and that he shall doe in all his judgements equity and right justice with discretion and mercy and that he shall grant to hold the Lawes and customes of the Realm and to his power keep them and affiem them which the folke and people have made and chosen and the evill Lawes and customes wholey to put out and stedfast and stable peace to the people of this Realm keep and cause to be kept to his power and that hee shall grant no Charter but where he may doe it by his oath All this I find in the foresaid Book titulo Sacramentum Regit and Charter of Pardon quinto Oth of the Kings Justices is That they well and truly shall serve the King and that they shall not assent to things that may turn to his dammage or disinheritance Nor that they shall take no fee nor livery of none but the King Nor that they shall take gift or reward of none that hath adoe before them except it be meat and drink of small value as long as the plce is hanging before them nor after for the cause Nor that they shall give counsell to none in matter that may touch the King upon pain to be at the Kings will body and goods And that they shall doe right to every person notwithstanding the Kings Letters c. Anno 18. Ed. 3. statut 4. which the old abridgement maketh to be anno 20. ejusdem statuâ—o perse Otho was a Deacon Cardinal of S. Nichens in carcere Tulliani and Legate for the Pope here in England anno 22 H. 3. whose constitutions we have at this day Stows An. p. 303. and see the first constitution of the said Legat Othobonus was a Deacon Cardinal
eamque ab Imperatore Constantino repetitam ut Ducibus praefectis tribunis qui pro augendo Imperio consenuerant darentur agri villâ—que at necessaria suppeterent quoad viverent quas parochias vocabant And a little after verum inter feuda et parochias hoc interest quod kae plâ—rumque senthus et veteranis plerisque emeritae militiae dabantur qui cum de Rep. bene meriti essent publico beneficio reliquum vitae sustentabant aut si quod bellum uasceretur evocari non tam milites quam magistr militum viderentur Feuda vero plurimum Juvenibus robustis primo flore aetatis qui militiae munus sustinere poterant imovero ut possent ut vellent c. Parlament parlamentum is a French word signifying originally as much as Collocutio or colloquium but by use it is also taken for those high Courts of Justice throughour the Kingdome of Frauce where mens causes and differences are publickly determined without farther appeal Whereof there be seven in number as Paris Tolouse Gresnoble in Daulphine Aix in Provence Bordeaux Dijon in Bourgogn and Roan in Normandy Vincentius Lupanus de Magist. Franc. lib. 2. cap. Parlamentum num 28. whereunto Gerard de Hailon addeth the eighth viz. Rhenes in Brettagne In England we use it for the assembly of the King and the 3 Estates of the Realm viz. the Lords Spiritual the Lords temporal and Commons for the debating of matters touching the Common-wealth and especially the making and correcting of Laws which assembly or Court is of all other the highest and of greatest authority as you may read in Sir Thom. Smith de Repub. Auglo l. c. 1. 2. Camd. Britan. pag. 112. and Crompions Jurisd fol. pri seq The institution of this Court Polydor Virgil lib. 11. of his Chronicles referreth after a fort to Henry the first yet confessing that it was used before though very seldome I find in the former Prologue of Grand Customary of Normandy that the Normans used the same means in making their Lawes And I have seen a Monument of Antiquity shewing the manner of holding this Parlament in the the time of King Edward the sonne of King Ethelred which as my note saith was delivered by the descreeter sort of the Realm unto William the Conquerour at his commandement and allowed by him This writing beginneth thus Rex est caput principium finis parlamenti ita non habet parem in suo gradu Et sic ex rege solo primus gradus est Secundus gradus est ex Archieviscapis Episcopis Abbatibus Prioribus per Bavoniam tenentibus Tertius gradus est de procuratoribus cleri Quâ—rtus gradus est de Comitibus Baronibus al is Magnatibus Quintus gradus est de militibus Comitatuum Sextus gradus est de civibus Burgensibus ita est Parlamentum ex sex gradibus sed scienduml cet aliquis dictorum quinque graduum post Regem absens fuerit dum tamen omnes praemoniti fuerint per rationabiles summonitiones parlamentum nihilo minus censetur esse plenum Touching the great authority of this Court I find in Stowes Annals pag. 660. that Henry the sixth directing his privy seal to Richard Earl of Warwick thereby to discharge him of the Captainship of Callis the Earl refused to obey the Privie Seal and continued forth the said office because he received it by Parliament But one example cannot make good a doctrine And of these two one must needs bee true that either the King is above the Parliament that is the positive lawes of his Kingdome or else that he is not an absolute King Aristotle lib. 3. Politico c. 16. Andtherefore though it be a merciful policy and also a politique mercy not alterable without great peril to make lawes by the consent of the whole Realm because so no one part shall have cause to complain of a partiality yet simply to bind the Prince to or by these lawes were repugnant to the nature and constitution of an absolute monarchy See Bracton lib. 5. tract 3. cap. 3. num 3. and Cassan de consuet Burg. pag. 335. and Tiraquel in his book De Nobilitate cap. 20. pag. 68. num 26. See the Statute anno 31 Henr. 8. cap. 8. in proaemio and many excellent men more that handle this point That learned Hottoman in his Francogallia doth vehemently oppugn this ground as some other that write in corners but he is so clean overbern by the pois of reason that not only many meaner men for Learning triumph over him in this case but himself as I have credibly heard upon the sight of his fault cryed God and the world mercy for his offence in writing that erroneous and seditious book The Emperours of Rome had their semestria consilia and their praetorium or place of Councel bailded by Augustus in his palace and thereupon called palatinm afterward termed Consistorium where they as in their principull court did both determine the greatest sort of their causes and also made their constitutions And here had they assisting them many of the wisest of their Empire whom Augustus first called Consiliarios Alexander Severus afterward scriniorum principes others after that palatinos and then comites consistorianos And these men in this respect were indued with great honour and enjoyed many privilege Yet were but the assistants to the Emperour to advise him not chalenging any power over him or equal with him More touching the course and order of this Parliament see in Cromptons Jurisd fol. pri seque and Vowel alias Hocker in his book purposely written of this matter See King Parole Loquela is a French word signifying as much as Dictio allocutio sermo vox It is used in Kitchin fol. 193. for a plea in Court It is also sometime joyned with lease as Lease parol that is Lease per parole a lease by word of mouth Parson Parsona cometh of the French Personne It peculiarly signifieth with us the Rector of a Church the reason whereof seemeth to bee because he for his time representeth the Church and sustaineth the person thereof as well in suing as being sued in any action touching the same See Fleta l. 9. ca. 18. Parson imp rsonee parsona impersonata is he that is in possession of a Church whether appropriated or not appropriated for in the new book of Entries ver Ayde in Annuity you have these words Et praedictus A. dicit quod ipse est persona praedicta Ecclesiae de Simpersonata in eidem ad praesent aâ—ionem F. patronissae c. So I have reason to think that persona is the patron or he that hath right to give the Benefice by reason that before the Lateran Councill he had right to the tithes in respect of his liberality used in the erection or endowment of the Church quasi sustineret personam Ecclesiae and hee persona impersonata to whom the benefice is given in the Patrons
Mines fol. 322. a. to be received in a sute before issue joyned upon an ayde prier Idem casu Dutchy of Lancaster fol 221. b. to be never in nonage codem f. 218. b. that a man indicted may not wage battel with him Idem casu nimes fol. 335. b. that no man upon any right may enter upon him being in possession but must be put to sute Dyer f. 139. nu 33 to seise the lands of his tenents that alienate without license Plowd casu Mines fol. 322. a. that no subject may wage his law against him Broke chose in action 9 Coke lib. 4. fol. 93. to present in the right of the youngest coparcener being his ward before the elder Plowd casu Mines fol. 332. b. fol. 333. a. that a benefice by institution is not full against him Coke Digbies c. f. 79. a. not to find pledges for the persecuting of any action For he cannot be amerced Fitzh na br f. 31. F. fo 47. C. To sue in what Court he will Fitz. na b. f. 7. B. 32. E. To sue the writ Ne adm ttas after 6 months Reg. or f. 31. a. That a mans villain having remained in his ancient demesn by the space of a year may not be recovered by the writ de nativo habendo Fitzh nat br fol. 79. A. To grant an office with the habendam post mortem alterius Dyer fol. 295. nu 1. to shorten the ordinary time of summons being 15 daies in writ of right Brit. ca. 121. To give what honour or place he listeth to his subjects anno 31 H. 8. cap. 10. To be owner of a forest See Forest To have free warren See Warren Not to be owted of his freehold Cromptons justice of peace fol. 59. b. et 16. a. To araign a man being both a Traitor and a Felon rather upon the Treason than upon the Felony because he may have the whole Escheats idem eodem fol. 99. a. To warrant the day of appearance to his subject being in his service and summoned to appear at a day certain Fitzh nat br fol. 17. a. Divers of these and many others did belong fisco imperatorum which you may find in the Digest de jure fisci et Co. lib. 10. tit 1. Besides these also many moe may be observed to belong unto our King out of the laws which I leave to their collection which are of longer reading and more painfull industry Prerogative of the Archbishop of Canterbury or York prerogativa Archiepiscopi Cantuariensis seu Eboracensis is an especial preeminence that these Sees have in certain cases above ordinary Bishops within their Provinces And that of the Archbishop of Canterbury principally consisteth of these points First in the confirmation of all elections made of Bishops by the Dean and Chapter of all Cathedral Churches as also the consecration of them Next in a power of visiting his whole Province of assembling Synods of supplying the defects and negligences of inferiour Bishops of receiving appeals from their Courts of assigning coadjutors to those Bishops that grow weak and insufficient to discharge their function of appointing Vicars general to those that have either none or an insufficient man employed in that office and of dispensing in all Ecclesiastical cases wherein the laws bear dispensation of taking oath of every Bishop at his confirmation to perform canonical obedience unto the See of Canterbury But these seem to belong unto him by an ordinary Archiepiscopal authority Certain other things there be that appertain unto him more than ordinarily to other Archbishops as the original calling of any person in any cause belonging to spiritual jurisdiction out of any part of his Province though not appealed But this point is now limited by the Statute made anno 23 H. 8. cap. 9. The receiving of an appeal from the lowest Judge Ecclesiastical within his Province immediately The appointing of a Keeper or Guardian of the spiritualties during the vacancy of any Bishoprick By which means all Episcopal rites of the Diocess for that time do belong unto him as Visitation Institution to benefices and such like The visitation of every Dioces within his province when and in what order it pleaseth him As also of all other privileged Churches The probat of Testaments and granting of Administrations in case where the party deceased hath goods of any considerable value out of the Diocess wherein he dyeth And that value is ordinarily five pounds except it be otherwise by composition between the said Archbishop and some other Bishop as in the Diocess of London it is ten pounds The probat of every Bishops Testament or the administration of his goods dying intestate though not having any goods chattels or debts without the compass of his own jurisdiction The bestowing of any one dignity or Prebend in any Cathedral church upon the creation of a new Bishop that himself thinketh good to make choice of There may be more particulars of this prerogative that I know not but these may be sufficient to express the thing that I desire to declare Who so desireth to read these more more at large and other privileges of this Church in temporal matters may resort to the book intituled De antiquitate Britannicae Ecclesia nominatim de privilegiis Ecclesiae Cantuariensis historia and especially to the eighth chapter of the said book pa. 25. Prerogative Court curia Praerogativa Archiepiscopi Cantuariensis is the Court wherein all Wills be proved and all Administrations taken that belong to the Archbishop by his prerogative which see in Prerogative And if any contention do grow between two or more touching any such Will or Administration the cause is properly debated and determined in this Court The Judge of this court is called Judex Curia praerogativâ— Cantuariensis The Archbishop of York hath also the like power and court which is termed his Exchequer but far inferiour to this in countenance and profit Prescription praescriptio is a course or use of any thing for a time beyond the memory of man as the exposition of the Law terms doth define it Kitchin fol. 104. saith thus Prescription is when for continuance of time whereof there groweth no memory a particular person hath particular right against another particular person And custom is where by continuance of time beyond memomory divers persons have gotten a right with whom agreeth Sir Edward Coke lib. 4. fol. 32. a. And usage is by continuance of time the efficient cause of them both and the life of both prescription and custome Thus saith Kitchin But as in the Civil law so I think likewise in the common Prescription may be in a shorter time As for example where the Statute anno 1 H. 8. cap. 9. saith that all actions popular must be sued within three years after the offence committed and the Statute anno 7 ejusdem cap. 3. That four years being past after the offence committed in one case and one year in another no sute can be commenced
want of heirs c. Privy seal privatum sigillum is a seal that the King useth sometime for a warrant whereby things passed the privy signet and brought to it are sent farther to be confirmed by the great Seal of England sometime for the strength or credit of other things written upon occasions more transitory and of less continuance than those be that pass the great seal Privilege privilegium is defined by Cicero in his Oration pro domo sua to be lex privata homini irrogata Frerotus in paratit lis ad titulum decretalâ—um de privilegiis thus defineth it privilegium est jus singulare hoc est privata lex quae uni homini vel loco vel Collegio similibus aliis conceditur cap. priv legia distinct 3. priva enim veteres dixere quae nos singula dicimus Infit Agellius li. 10. ca. 20. Idiòque privilegia modò beneficia modò personales constitutiones dicuntur c. It is used so likewise in our Common law and sometimes for the place that hath any special immunity Kitchin fo 118. in the words where debters make feigne dgifts and feoffments of their land and goods to their friends and others and betake themselves to privileges c. Privilege is either personal or real a personal privilege is that which is granted to any person either against or beside the course of the Common law as for example a person called to be one of the Parliament may not be arested either himself or any of his attendance during the time of the Parliament A privilege real is that which is granted to a place as to the Universities that none of either may be called to Westminster hall upon any contract made within their own precincts And one towards the Court of Chancery cannot originally be called to any Court but to the Chancery certain cases excepted If he be he will remove it by writ of Privilege grounded upon the statute anno 18 Edward the third See the new book of Entries verbo Privilege Probat of Testaments probatio testamentorum is the producting and insinuating of dead mens Wills before the ecclesiastical Iudge Ordinary of the place where the patty dyeth And the Ordinary in this case is known by the quantity of the goods that the party deceased hath out of the Dioces where he departed For if all his goods be in the same Dioces then the Bishop of the Dioces or the Arch-deacon according as their composition or prescription is hath the probat of the Testament if the goods be dispersed in divers Dioceses so that there be any sum of note as five pounds ordinarily out of the Dioces where the party led his life then is the Archbishop of Canterbury the ordinary in this case by his prerogative For whereas in old time the will was to be proved in every Dioces wherein the party deceased had any goods it was thought convenient both to the subject and to the Archiepiscopal See to make one proof for all before him who was and is of all the general ordinary of his Province But there may be antiently some composition between the Archbishop and an inferiour ordinary whereby the sum that maketh the prerogative is above five pound See Praerogative of the Archbishop This probat is made in two sorts either in common form or pertestes The proof in common form is only by the oath of the executor or party exhibiting the Will who sweareth upon his credulity that the Will by him exhibited is the last Will and Testament of the party deceased The proof per testes is when over and beside his oath he also produceth witnesses or maketh other proof to confirm the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they have been lawfully summoned to see such a Will proved if they think good And the later course is taken most commonly where there is fear of strife and contention between the kindred or friends of the party deceased about his goods For a VVill proved only in common form may be called into question any time within thirty years after by common opinion before it work prescription Procedendo is a writ whereby a plee or cause formerly called from a base Court to the Chancery Kings bench or Common plees by a writ of privilege or certiorare is released and sent down again to the same Court to be proceeded in there after it appeareth that the Defendant hath no case of privilege or that the matter comprised in the Bill be not well provided Brook hoc titulo and Terms of the law Cook vol. 6. fol. 63. a. See an 21 R. 2. ca. 11. in fine letters of procedendo granted by the Keeper of the privy seal See in what diversity it is used in the table of the original Register and also of the Iudicial Iâ—roces processus is the manner of proceeding in every cause be it personal or real civil or criminal even from the original writ to the end Britton fol. 138 a. wherein there is great diversity as you may see in the table of Fitz. nat br verbo Proces and Brooks Abridgement hoc titulo And whereas the writings of our Common Lawyers sometime call that the Proces by which a man is called into the Court and no more the reason thereof may be given because it is the beginning or the principal part thereof by which the rest of the business is directed according to that saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Divers kinds of Proces upon Inditements before Iustices of the peace See in Cromptons Justice of peace fol. 133 b. 134.135 But for orders sake I refer you rather to M. Lambard is his tractat of Processes adjoined to his Eirenarcha who according to his subject in hand divideth criminal Proces either into Proces touching causes of treason or felony and Proces touching inferiour offences the former is usually a capias capias alià s exigifaciaâ— The second is either upon inditement or presentment or information that upon inditement or presentment is all one and is either general and that is a venire facias upon which if the party be returned sufficient then is sent out a Distringas infinitè untill he come if he be returned with a Nihil babet then issueth out a Capias Capias aliis Capias pluries and lastly an Exigi facias The special proces is that which is especially appointed for the offence by statute For the which he referreth his reader to the eighth chapter of his fourth book being very different Processum continuando is a writ for the continuance of a Proces after the death of the chief Iustice in the writ of oyer and terminer Register original fol. 128. a. Prochein amy proximus amicus vel propinquier is word for word a neer friend It is used in our Common law for him that is next of kinne to a child in his
open concurse of Merchants and protest that I am deceived by him And thereupon if he hath any goods remaining in any mans hands within the Realm the Law of Merchants is that I be paid out of them Prouver Probator See Approuver anno 5 H. 4. cap. 2. See Approvours Province Provincia was used among the Romans for a Country without the compasse of Italy gained to their subjection by the sword whereupon the part of France next the Alpes was so called of them when it was in their dominion and of that carrieth the same name at this present But with us a Province is most usually taken for the circuit of an Archbishops Iurisdiction as the Province of Canterbury and the Province of York anno 32 H. 8. ca. 23. anno 33 ejusdem cap. 31. yet it is used divers times in our statutes for several parts of the Realm Provincial provincialis is a chief goververnor of an order of Friers anno quar Hen. quar cap. 17. Protoforestaâ—ius was he whom the antient Kings of this Realm made chief of Wind for Forest to hear all causes of death or mayhem or of slaughter or of the Kings Deer within the Forest Camden Brit. pag. 213. See Justice of the Forest Prove See Profe Provision proviso is used with us as it is used in the Canon law for the providing of a Bishop or any other person of an Ecclesiastical living by the Pope before the Incumbent be dead It is also called gratia expectativa or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenns de sacris ecclesiae ministeriis beneficiis l. 3. cap. 2. but also for England particularly in divers statutes of the Realm viz. anno 35 Ed. 3. cap. 22. stat 4. statu 5. commonly called the statute de provisionibus anno 27 ejusdem cap. 1. anno 38 ejusdem stat 2. cap. pri 2 3 4. anno 38 ejusdem anno 2 Rich. 2. cap. 7. anno 3 ejusdem cap. 3. anno 7 ejusdem cap. 12. anno 12 ejusdem cap 15. anno 13 ejusdem stat 2. cap. 2 3. anno 16 ejusdem cap. 5. anno 2 Henr. 4. cap. 3 et 4. et anno 5 ejusdem cap. prim et anno 7 ejusdem cap. 6 et 8. et anno 9 ejusdem cap. 8. anno 3 Henr. 5. cap. quar See Praemunire Provisour Provisor is he that sueth to the court of Rome for a provision Old nat br fol. 143. See Provision Proviso is a condition inserted into any deed upon the observance whereof the validity of the deed consisteth which form of condition seemeth to be borrowed from France for Pourvieu Gallicum semper conditionem inducit Tiraquel tome 3. pag. 316. Our common Lawyers say that it sometime signifieth but a covenant whereof you have a large dispute in the second Book of Sir Edward Cooks Reports in the Lord Cromwels case It hath also another signification in matters Iudicial as if the Plaintiff or demandant desist in prosecuting an action by bringing it to a tryal the defendant or tenent may take out the venire factas to the Shyreeve which hath in it these words Proviso quòd c. to this end that if the Plaintiff take out any writ to that purpose the Sheriff shall summon but one Iury upon them both See Old natura brev in the writ Nisi prius fo 159. PU Purchas See Pourchas Purfles of a womans gown anno 33 H. 8 cap. 5. Purgation purgatio is a clearing of a mans self from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great use in England touching matter of Felony imputed to Clerks in former time as appeareth by Stawnf pl. cor li. 2. cap. 48. See Clergy It is still observed for matter pertaining to the Ecclesiastical court as suspicion or common fame of incontinency or such like Purgation is either Canonical canonica or vulgar vulgaris Canonical is that which as prescribed by the Canon law The form whereof is usually in the Spiritual court the man suspected taking his oath that he is clear of the fault objected and bringing so many of his honest Neighbours being not above twelve as the court shall assign him to swear upon their consciences and credulity that he sweareth truly or hath taken a true oath Vulgar purgation was by fire or water or by combat used by infidels and Christians also untill by the Canon law it was abolished tit 15. depurgatione Canon et vulga in Decretalibus Combat though it be lesse in use than it was yet it is and may be still practised by the Laws of the Realm in cases doubtfull if the defendant chuâ—e rather the combat than other tryal See Ordell See Combat Purlue is all that ground near any Forest which being made Forest by Henry the second Richard the first or King John were by perambulation granted by Henry the third severed again from the same Manwood parte 2. of his Forest laws cap. 20. And he calleth this ground either pouralce i. perambulationem or purliu purluy which he saith be but abusively taken for pourallee ubi supra num 3. But with the licence of that industrious and learned Gentleman I am bold to say that this word may be no less fitly made of two French words pur i. purus and lieu i. locus and my reason is because that such grounds as were by those Kings subjected to the Laws and Ordinances of the Forest are now cleared and freed from the same for as the Civilians call that purum locum qui sepulchrorum reliâ—ioni non est obstrictus sect 9. de reruus divisin institution so no doubt in imitation of that very point our auncestors called this purlieu i. purum locum because it was exempted from that servitude or thraldome that was formerly layd upon it So ager purus est qui neque sacer neque sanctus neque religiosus sed ab omnibus hujusmodi nominibus vacare videtur lib. 2. sect 4. Ï€. de religio et sumptibus funerum And therefore Master Crompton Purraile is not much amisse fol 153. of his Iurisdict because we may also derive it from the French words pur and allee that is as much as to say as a clear or a free walk or passage And where it is sometime called Pouralee that may and doth come from pur and alee i. itio profectio ambulatio because he that walketh or courseth within that compasse is clear enough from the laws or penalties incurred by them which hunt within the precincts of the Forest See the statute anno 33 Edw. prim stat 5. Pourlie man is he that hath ground within the purlieu and being able to dispend forty shillings by the year of Freehhold is upon these two points licensed to hant in his own purlieu Manwooâ— parte 1 of his Forest laws pag. 151 and 157.
46. B. or other courts of record idem fol. 71. C. 119. K. Howbeit if you will learn more exactly where and in what cases this writ lyeth read Brook in his Abridgement titulo Recordare et pone It seemeth to be called a recordare because the form is such that it commandeth the Shyreeve to whom it is directed to make a record of the proceedings by himself and others and then to send up the cause See the Register verbo Recordare in the table of the original Writs See Certiorari See Accedas ad Curiam Recorder recordator commeth of the French recordeur i. talis persona quae in Ducis curia à judicio faciendo non debet amoveri Grand Custumary of Norm cap. 107. 121. Whereby it appeareth that those which were necessary ludges to the Duke of Normandies courts were called Recorders and who they were is shewed in the ninth chapter of the said book And that they or the greater part of them had power to make a record it is evident in the chapter 107. Here in England a Recorder is he whom the Maior or other Magistrate of any City or Town corporate having jurisdiction or a Court of record within their precincts by the Kings grant doth associate unto him for his better direction in matters of Iustice and proceedings according unto law And he is for the most part a man well seen in the common law Recordo et processu mittendis is a writ to call a Record to gether with the whole proceeding in the cause out of one court into the Kings court Which see in the Table of the Register original how diversly it is used Recorde Utlagariae mittendo is a writ Iudicial which see in the Register judicial fol. 32. Recovery Recuperatio comes of the French Reconvrer i. Recuperare It signifieth in our common law an obtaining of any thing by Iudgement or tryal of Law as evictio doth among the Civilians But you must understand that there is a true recovery and a figned A true recovery is an actual or real recovery of any thing or the value thereof by Iudgement as if a man sued for any land or other thing moveable or immoveable and have a verdict and Iudgement for him A feigned recovery is as the Civilians call it quaedam fictio juris a certain form or course set down by Law to be observed for the better assuring of Lands or tenements unto us And for the better understanding of this read West parte 2. symbol titulo Recoveries sect pri who saith that the end and effect of a recovery is to discontinue and destroy Estates tayls Remainders and Reversions and to bar the former owners thereof And in this formality there be required three parties viz. the Demandant the Tenent and the Vouchee The Demandant is he that bringeth the Writ of Entry and may be termed the Recoverer The Tenent is he against whom the writ is brought and may be termed the Recoveree The Vouchee is he whom the Tenent voucheth or calleth to warranty for the Land in demand West ubi supra In whom you may read more touching this matter But for example to explain this point a man that is desirous to cut off an Estate tayl in lands or tenements to the end to sell give or bequeath it as himself seeth good useth his friend to bring a writ upon him for this Land He appearing to the writ saith for himself that the Land in question came to him or his ancestors from such a man or his ancestor who in the conveyance thereof bound himself and his heirs to make good the title unto him or them to whom it was conveyed And so hers allowed by the court to call in this third man to say what he can for the justifying of his right to this land before he so conveyed it The third man commeth not whereupon the land is recovered by him that brought the writ and the Tenent of the land is left for his remedy to the third man that was called and came not in to defend the Tenent And by this means the entayl which was made by the Tenent or his Ancestor is cut off by judgement hereupon given for that he is pretended to have no power to entayl that land whereunto be had no just title as now it appeared because it is evicted or recovered from him This kind of recovery is by good opinion but a snare to deceive the people Doctor and Stud. cap. 32. diai pri fol. 56. a. This feigned recovery is also called a common recovery And the reason of that Epitheton is because it is a beaten and common path to that end for which it is ordained viz. to cut off the estates above specified See the new book of Entries verbo Recovery I said before that a true recovery is as well of the value as of the thing for the better understanding whereof know that in value signifies as much as Illud quod interest with the Civilians For example if a man buy land of another with warranty which land a third person afterward by sute of Law recovereth against me I have my remedy against him that sold it me to recover in value that is to recover so much in mony as the land is worth or so much other land by way of exchange Fitzh nat brev fol. 134. K. To recover a warranty Old nat brev fol. 146. is to prove by judgement that a man was his warrant against all men for such a thing Recto is a writ called in English a writ of right which is a writ of so high a nature that whereas other writs in real actions be only to recover the possession of the land or tenements in question which have been lost by our ancestor or our selves this aimeth to recover both the seisin which some of our Ancestors or we had and also the property of the thing whereof our Ancestor died not seised as of fee and whereby are pleaded and tryed both their rights together viz. as well of possession as property In so much as if a man once lose his cause upon this writ either by judgement by assise or battell be is without all remedy and shall be excluded per exceptionem Rei judicatae Bracton lib. 5. tract 1. cap. 1. et seq where you may read your fill of this writ It is divided into two species Rectum patens a writ of right patent and Rectum clausum a writ of right close This the Civilians call Judicium petitorum The writ of right patent is so called because it is sent open and is in nature the highest writ of all other lying alwaies for him that hath fee simple in the lands or tenements sued for and not for any other And when it lyeth for him that challengeth fee simple or in what cases See Fitzh nat br fol. pri C. whom see also fol. 6. of a special writ of right in London otherwis◠called a writ of right according to
signifieth in our Common law even the same as the repeal of a Statute Rastal titulo Repeal Brook useth Repellance in this signification titulo Rapellance Repleader Replacitare is to plead again that which was once pleaded before Rastal titulo Repleader See the new Book of Entries verbo Repleader Replegiare See Replevie See Second deliverance Replevie Plevina is the bringing of the writ called Replegiari facias by him that hath his Cattell or other Goods distreined by another for any cause and putting in surety to the Shyreeve that upon the delivery of the thing distreined he will persue the action against him that distreined Terms of Law See Replegiare It is used also for the bayling of a man pl. cor f. 72 73 74. West pri cap. 11. cap. 15. anno 3 Ed. 1. Replegiare de averiis is a writ brought by one whose Cattell be distreined or put in pound upon any cause by another upon surety given to the Shyreeve to persue the action in law anno 7 H. 8. cap. 4. Fitz. nat br fol. 68. See the Register original of divers sorts of this writ called Replegiare in the Table verbo codem See also the Register judicial fol. 58. 70. See also the new book of Entries verbo Replevin See Dyer fol. 173. un 14. Replevish replegiare is to let one to mainprise upon surety Anno 3 Edw. 1. cap. 11. Replication replicatio is an exception of the second degree made by the Plaintiff upon the first answer of the Defendant West parte 2. symbol titulo Chancery sect 55. West 2. anno 13 Ed. pri cap. 36. This is borrowed from the Civilians De replicationibus li. 4. Institutio titulo 14. Report reportus is in our Common law a relation or repetition of a Case debated or argued which is sometime made to the Court upon reference from the Court to the Reporter sometime to the world voluntarily as Ploydens reports and such like Reposition of the Forest was an act whereby certain Forest grounds being made purlieu upon view were by a second view laid to the Forest again Manwood parte pri pag. 178. Reprisells reprisalia are all one in the Common and Civil law Reprisalia est potestas pignorandi contra quemlibet de terra debitoris data creditori pro injuriis et damiis acceptis Vocabucarius utriusque juris This among the ancient Romanes was called Clarigatio of the verb Clarigo i. res clarè repeto It is called in the Statute anno 27 Ed. 3. stat 2. cap. 17. Law of Marque of the German word March i. terminus limes And the reason may be because one destitute of Justice in another territory redresseth himself by the goods belonging to men of that territorie taken within his own bounds Requests Supplicum libelli Curia Requistionum is a Court of the same nature with the Chauncery redressing by equity the wrongs that poor men do suffer at their hand whose might they are not able to withstand either in Law or otherwise It took beginning as some men think by commission from King Henry the 8. before which time the Masters of Requests had no warrant of ordinary Iurisdiction but travailed between the Prince and Petitioners by direction from the mouth of the King Guins Preface to his readings But see Court of Requests Resceyt Receptio seemeth to be an admission of a third person to plead his right in a cause for merly commenced between other two See the new book of Entries verbo Resceit V. Aide prier The Civilians call this admissionem tertii pro suo interesse Of this you have one example in the terms of Law viz. if Tenant for term of life or Tenant for term of years bring an action he in the reversion commeth in and prayeth to be received to defend the land and to plead with the Demandant Many more you may have in Brook titulo Resceit fol. 205. See Perkins Dower 448. Receit is also applyed to an admittance of plee though the controversie be between two only Brook estoppel in many places Resceyt of homage is a relative to doing homage for as the Tenant who oweth homage doth it at his admission to the land so the Lord receiveth it Kitchin fol. 148. See Homage Rescous Rescussus cometh of the French Rescourre se Rescourre du danger i. asserere se ab injuria It signifieth in our common Law a resistance against a lawful authority as for example if a Bayliff or other Officer upon a Writ do arrest a man and another upon a Writ do arrest a man and another one or more by violence do take him away or procure his escape this act is called a Rescus Cassanaeus in his book de consuctud Burg. hath the same word coupled with resistentia fol. 294. whereby it appeareth that other nations doe use this word in the same signification that we doe or the very like It is also used for a Writ which lyeth for this act called in our Lawyers Latine Breve de rescussu whereof you may see both the form and use in Fitz. nat bre fol. 101. and the Register original fol. 125. See the new book of Entries vâ—rbo rescous This rescous in some cases is treason and in some felony Crompton Justice fol. 54. b. Reseiser reseisire is a taking again of lands into the Kings hands whereof a general livery or â—â—ster le main was formerly missused by any person or persons and not according to form and order of law Of this see Stawnf praeroga 26. where it is handled at large See resumption Resiance resiantia seemeth to come of the French rasseoir see Rasseoir is residere and signifieth a mans aboad or continuance in a place Old nat br fol. 85. whence also commeth the participle resiant that is continually dwelling or abiding in a place Kitchin fol. 33. It is all one in truth with Residence but that custom of speech tyeth that only to persons ecclesiastical Reservation signifieth that rent or service which the granter in any grant tyeth the grantee to perform unto him or them or the Lord Paramont Perkins reservations per cotum Residence residentia cometh of the Latin residere and is peculiarly used both in the Canon and common Law for the continuance or aboad of a Parson or Vicar upon his benefice The default whereof except the party be qualified and dispensed with is the losse of ten pounds for every month anno 28 Henr. 8. cap. 13. Resignation resignittiò is used particularly for the giving up of a Benefice into the hands of the Ordinary otherwise called of the Canonists renunciatio And though it signifie all one in nature with the word Surrender yet it is by use more restreined to the yeelding up of a spiritual living into the hands of the Ordinary and Surrender to the giving up of temporal Lands into the hands of the Lord. And a resignation may now be made into the hands of the King as well as of the Diocesan because he
called Statutum de frangentibus prisonam that the breach of Prison was felony if it were the Kings prison it is sithence but trespasse except the Prisoner were committed for felony But it is most commonly used for that wrong or dammage which is doue by a private man to the King as in his Forest pl. cor lib. 2. cap. 18. or to another private man And in this signification it is of two sorts trespasse general otherwise termed trespasse vi et armis and trespass especial otherwise called trespasse upon the case And this seemeth to be without force Terms of the Law Action upon the case as appeareth by Kitchin fol. 176. The former I take to be called general because it riseth from that general ground in Law and whatsoever is done by any private mans humour vi et armis is an offence The latter I call especial because Kitchin calleth the other general and another reason may be this because it springeth from a particular case or fact not contained under any other general head And the action lying for this trespasse is otherwise called an action upon the case as may be gathered out of divers places under the title Trespasse in Brook his Abridgement How to distinguish the form of these writs or actions see Fitzherb nat br fol. 86. L. 87. H. I. in an Action of trespasse this is perpetual that the Plaintiff sueth for dammages or the value of the burt done unto him by the Defendant It seemeth an hard thing to distinguish these two kinds of trespasses so as to be able to say when it is a trespasse vi et armis and when upon the case as may well appear to him that shall peruse this title in Brook But this is to be left to the experience of grave and skilfull Pleaders I find moreover in Kitchin so 188. that there is a trespasse local and trespasse transitory trespass local is that which is so annexed to a place certain as if the Defendant joyn issue upon the place and traverse the place only by saying Absque hoc that he did the trespasse in the place mentioned in the declaration and aver it it is enough to defeat the action Trespass transitory is that which cannot be defeated by the Defendants traverse of the place saying Without that I committed the trespasse in the place declared because the place is not material Examples of both you have set down by Kitchin in the place above named to this effect traverse by Absque boc of trespass in battery or goods brought in is transitory and not local as it is of trees cut and heâ—bs And therefore in trespasse transitory the place shall not make issue neither is it traversable no more than is a trespasse upon a case of an Assumption Bracton in his fourth book cap. 34. num 6. divideth transgressionem in majorem et minorem which place read See also great diversity of trespasses in the new book of Enteries verbo Trespass Tryal triatio is used in our Common law for the examination of all causes civil or criminal according to the laws of our Realm Of this word Stawn pl. cor lib. 2. cap. 26. writeth to this effect There was a Statute made prim secund Philip. Mar. cap. 10. to this purpose And be it farther enacted by the anthority aforesaid that all tryals hereafter to be had awarded or made for any Treason shall be had and used according to the due order and course of the Common laws of this Realm and not otherwise c. By this word tryal saith Stawnf in that place some understand as well the inquest that indicteth a man as the inquest upon the arraignment that attainteth or acquiteth him For these two make but one entire tryal that every man is to have when he is impeached of treason But others have answered to this that tryal in common speech is the tryal that a man is to have after he is indicted and not before For in Law the Inditement is nought but the accusation against him which he is to make answer unto and that being tryed it either attainteth or acquitteth him So that the tryal is the lssue which is tryed upon the Inditement and not the Inditement it self For that is no part of the thing which tryeth but the thing which is tryed and the offence And so this word Tryal understood in the Statute an 33 H. 8. c. 23. where he saith thus Must be indicted within the Shires or places where they committed their offences and also tryed before by the Inhabitants or Free-holders So he putteth a difference between Inditement tryal as he doth afterward in these words There to be indicted and tryed of their offences c. Thus far Stawnf Sir Tho. Smith de Repub. Angl. lib. 2. ca. 5. saith That by order usage of England there are three Tryals that is 3 wayes and manners whereby absolute and definite Judgement is given by the Parliament which is the highest and most absolute by battel and great assise which he severally describeth in three Chapters following though not so fully as the thing requireth But of the great Assise he speaketh at large in the three and twentieth Chapter of the same book And of these Tryals see more in Stawnf pl. cor lib. 2. cap. pri 2. 3. whereof he divideth the great Assise into two sorts one proper to Barons of the Parliament which is by 20 or 18 of their Peers the other common to others of lower condition which is by 12 men that be neighbours to the place where the offence was committed And of those you may read him at large in the said Chapters there following See Twelve men See the New book of Entries verbo Trial. Trihing Trihinga vel Trithinga seemeth by a place in Edward the Confessors laws set out by Master Lamberd nu 34. to be the third part of a Shire or Province otherwise called Letbe which we now call Leet The same Law doth M. Camden mention pag. 102 103. This Court is above a Court Baron and inferiour to the Shire or County This word is also used in the sentence of excommunication upon the great Charter and Charter of the Forest denounced in the daies of Edward the first as it is latined in the book called Pupilla oculi parte 5. cap. 22. A. I. In these words Visus autem defranco plegio sic fiat sc quod pax nostra teneatur quod Trihinga integra sit sicut esse consuevit c. Of this Fleta lib. 2. cap. 61. sect final writeth thus Sciendnm est quod aliae potestates erant super Wapentakia quae Tritinga dicebantur eo quòd erat tertia pars provinciae qui vero super eas dominabantur trithingreves vocabantur quibus deferebantur causae quae non in Wapentakiis poterant definiri in Shiram sicque quòd vecatur Hundredum jam per variationem locorum idiomatù Wapentakie appellatur tria vel quatuor