of a fine For if a fine duly levied of lands tenements be not impugned within fiue yeres it excludeth all claime for euer And if a man omit his continuall claime for a yeere and a day then the tenent in possession prescribeth an immunity against the entrie of the demandant and his heyre Fitzh nat br fo 79. Terms of the law verbo Continuall clayme Out of our statutes you may haue greater diuersitie which see collected in mine Institutes titulo de Vsucapio longi tempo praescript So that Brissonius in his 14. de verbo fignif seemeth to say truly that prescription is an exception founded vpon so long time runne and past as the lawe limiteth for the pursuite of any action An example may be taken from those statutes anno 1. H. 8. ca. 4. which inacteth that in all actions populer information shall be made within three yeares after the offence committed or els be of no force Of like nature is the statute anno 7. H. 8. ca. 3. which in some cases maketh one yeeres prescription sufficient against informations Custome is also vsed for the tribute or tolle that merchans pay to the king for carying in and out merchandise anno 14. Ed. 3. stat 1. ca. 21. in which signification it is latined custuma Register orig fo 138. a. 129. a. and lastly for such seruices as tenents of a maner owe vnto their lord New booke of entries verbo Custome Customary tenents tenentes per consuetudmem are such tenents as hould by the custome of the maner as their especiall euidence See Copihoulds Custos breuium is the principall clerk belonging to the court of common plees whose office is to receiue and keepe all the writs and put them vpon files euery returne by it selfe and at the end of euery terme to receiue of the protonotaries all the records of Nisiprius called the postea For they are first brought in by the clerk of assise of euery circuit to the protonotarie that entred the issue in that mater for the entring of the iudgement And then doe the protonotaries get of the court peremptory day for euery party to speake what he hath to alleage in arrest of iudgement which day being past he entreth the verdict and iudgement thereupon into the rols of the court and that done he doth in the end of the tearme deliuer ouer to the custos breuium all the records of Nisi prius which came to his hand that terme which receiued he bindeth into a bundle and bestoweth them The custos breuium also maketh entry of the writs of couenant and the concord vpon euery fine and maketh forth exemplifications and copies of all writs and records in his office and of all fines leuied The fines after they be ingrossed the parts therof are diuided betwen the custos breuium and the chirogropher whereof the chirogropher keepeth alwaies with him the writ of couenant and the note the custos breuium keepeth the concord and the foote of the fine vpon the which foote the chirographer doth cause the proclamations to be indorsed when they be all proclaymed This office is in the princes gift Custos placitorum coronae Bracton li. 2. ca. 5. This seemeth to be all one with him whome we nowe call custos rotulorum of this officer I finde mention in the writ odio atia Register original fo 133. b. Custos rotulorum is he that hath the custodie of the rols or records of the sessions of peace and as some thinke of the commission of the peace it selfe Lamb. Eirenarch li. 4. ca. pa. 3. 373. He is alway a Iustice of Peace and Quorum in the countie where he hath his office Idem eodem and by his office he is rather termed an officer or minister then a iudge because the commission of the peace layethe by expresse words this especiall charge vpon him quòd ad dies locapraedicta breuia praecepta processus indictamenta praedicta coramte dictis sociis tuis venire facias Idem eodem where read a competent tract of other things belonging to this office Custos of the spiritualties custos spiritualitatis vel spiritualium is he that exerciseth the spirituall or ecclesiasticall iurisdiction of any dioces during the vacancie of the See the appointment of whome by the canon lawe apperteineth to the deane and chapter ca. ad abolendam Extra Ne sede vacante aliquid innovetur but with vs in England to the Archbishop of the province by prescription How be it divers deanes and chapters if M. Gwin say truly in the preface to his readings doe chalenge this by awncient charters from the kings of this land Cutter of the talyes is an officer in the exchequer that provideth wood for the talyes and cutteth the summe paid vpon them and then casteth the same into the Court to be written vpon DA DAmmage commeth of the french dam or domage signifiing generally any hurt or hinderance that a man taketh in his estate But in the common lawe it particularly signifieth a part of that the Iurours be to inquire of passing for the plaintiffe or demandant in a ciuile action be it personall or reall For after verdict giuen of the principall cause they are likewise asked their consciences touching costs which be the charges of suite called of the Civilians expensae litis and dammages which conteine the hindrance that the plaintiffe or demandant hath suffered by meanes of the wrong done to him by the defendant or tenent Dane guilt Danegold or Danegelt Danegeldum is compounded of Dane and gelt i. pecunia and was a tribute laide vpon our ancesters of 12. pence for euerie hide of land through the realme by the Danes that once got the masterie of vs in regard as they pretended of clearing the sease of pyrates which greatly annoyed our land in those daies Cambd. Brittan 83. with whome agree the lawes of Edward set out by M. Lamberd ca. 11. Stowe in his annals pa. 118. saith that this tribute came to 40000. pownds by the yeare and that it was released by Edw. the confessour The author of the newe Terms of law saith that this tribute began in the time of king Etheldred who being sore distressed by the continuall inuasion of the Dane to procure his peace was compelled to charge his people with importable payments For first he gaue them at fiue severall paiments 113000. poundes and afterward graunted them 48000. poundes yeerely See Roger Houeden parte poster suorum annalium in Henrico secundo fo 344. a. Dareyn continuance See Continuance Darein is a corrupt word of the French dernier i. vltimu◠Darrein presentment vltima praesentatio See Assise or darreyn presentment Dates dactyli is the plumme or fruite of the tree in latine called palma in english the Date tree well knowne to most men by sight And he that will farder vnderstand the nature or diuersities of this fruite may repaire to Gerards herball li. 3. ca. 131. They be numbred among
is formerly said taketh hold of moueable goods or the bodie For it appeareth by Kitchin fo 263. that a man may be attached by a hundred sheepe Reade Skene de verbo signific verbo attachiamentum Now it followeth to shew how attachement differeth from a distresse For so it doth as may be shewed out of Kitchin fo 78. where he saith that processe in court baron is summons attachment and distresse out of the owld nat br fo 27. where it is said that a processe in a quare impedit is summons attachement and one distresse and againe fo 28. wheare speaking of the writ ne admittas he saieth thus and the processe is one prohibition and vpon the prohibition an attachment and distresse and fo 32. in a writ of Indicauit you haue these words and after the attachment returned the distresse shall goe out of the rols of the Iustices Bracton on the other side li. 5. tract 3. ca. 4. nu 2. sheweth that both attachiamentum magnum cape districtiones sunt of which opinion Fleta also is li. 5. ca. 24. § si autem ad But there also he saith that attachiamentum est districtio personalis cape magnum districtio realis So that by his opinion districtio is genus to attachement Britton in his 26. chapter hath words to this effect but in attachement of felony there commeth no distresse otherwise then by the body And if the Shyreeue return in the cases aforesaid that the trespassours haue nothing in his bayliwick by the which they may be distreined it must be awarded that he take their bodies c. In which place an attachement is plainly vsed for an apprehension of an offender by his goods So that to conclude I finde no difference between an attachment and a distresse but these two◠that an attachement reacheth not to lands as a distresse doth and that a distresse toucheth not the bodie if it be properly taken as an attachement doth yet are they diuers times confounded as may appeare by the places formerly alleadged and by Glanvile li. 10. ca. 3. and Fleta li. 2. ca. 66. seqq How be it in the most common vse an attachment is an apprehēsion of a man by his body to bring him to answer the action of the plaintiffe a distresse is the taking of another mans goods for some reall cause as rent seruice or such like whereby to driue him to replevie and so to be plaintiffe in an action of trespas against him that distreined him And so much for the difference and coherēcie of these words See also Distres I finde in West parte 2. symbolaio titulo proceedings in chauncerie sect 22. 23. that attachemēt out of the chaūcery is two-fold one simple and originally decreed for the apprehension of of the partie the other after return made by the Shyreeue quod defendens non est inventus in baliva sua with proclamations made through the whole courtie in such places as he shall thinke meete that the partie appeare by a day assigned and that he attached never the lesse if he may be found This second kinde hath an affinitie with the canonists vijs modis at the which if the partie appeare not he is excommunicate or with the Civilians vijs modis vnâ cum intimatione For in the chaūcerie if he com not vpō this he is forth with pressed with a writ of rebellion There is an attachment of priviledge which is a power to apprehend a man in a priviledged place or els by vertue of a mans priuiledge to call another to this or that courte whereunto he himselfe belongeth and in respect whereof he is priviledged Newe booke of entrise verbo priviledge fo 431. col 2. There is also a foreine attachement which is an attachement of a foriners goods found within a libertie or citie to satisfie some creditour of his within the citie There is also an attachement of the forest which is a court there held For as M. Manwood saith in his first parte of forest lawes p. 90. 92. 99. there be three courts of the forest wherof the lowest is called the Attachement the meane the swaynemote the highest the Iustice seate in eyre This court of attachement seemeth so to be called because the verderours of the forest haue therein no other authoritie but to receiue the attachements of offenders against vert and venison taken by the rest of the officers and to enrol them that they may be presented and punished at the next Iustice seate Manwood parte 1. pa. 93. And this attaching is by three meanes by goods and catels by body pledges and mainprise or by the body onely The courte is kept euery 40. daies throughout the yere And he that hath occasion to learne more of this I refer him to M. Manwood loco quo supra to M. Crompton in his courte of the forest Attachement is commaunded in writs the diversitie whereof you may see in the Register originall vnder the word Attachiamentum in indice At large see assise at large in the word assise and owld nat br fo 105. Verdict at large Littleton fo 98. To vouch at large owld nat br fo 108. To make title at large Kitchin fo 68. See Barre Attaint attincta commeth of the French as you shall see in the word attainted But as it is a substantiue it is vsed for a writ that lyeth after iudgement against a Iurie that hath giuen a false verdict in any court of record be the action reall or personall if the debt or dammages surmount the summe of 40. shillings what the forme of the writ is and how in vse it is extended see Fitzena br fol. 105. and the new booke of entries fol. 84. colum 1. The reason why it is so called seemeth to be because the partie that obtaineth it endeuoureth thereby to touch deprehend or staine the Iurie with periurie by whose verdict he is grieued What the punishment of this periurie is or of him that bringeth the writ against the Iurie if he faile in his proofe see Glanvile lib. 2. cap. 19. Fitz. nat br fol. 109. K. Io. 110. A. B. C. D. c. the termes of the lawe verb. Attaint Fortescue cap. 26. Smith de rep Anglo lib. 3. cap. 2. and anno 11. H. 7. cap. 21. an 23. H. 8. cap. 3. and others In what diuersitie of cases this writ is brought see the Register orig in Indice Attainted attinctus commeth of the French teindre i. tingere the participle whereof is teinct i. tinctus or else of attaindre i. assequi attingere It is vsed in our common lawe particularly for such as are found guiltie of some crime or offence and especially of felonie or treason How be it a man is said to be attainted of of disseisin Westm 1. cap. 24. 36. anno 3. Ed. 1. And so it is taken in French likewise as estre attaint vayncu en aucun cas is to be cast in any case
petitioners as in conscionable cases deale by supplication with his Maiestie This court as M. Gwin saith in the preface to his readings had beginning from commission first graunted by Henry the 8. to the masters of Requests whereas before that time by his opinion they had no warrant of ordinary iurisdiction but trauelled betweene the king and the petitioner by direction from the kings mouth But Sir Iulius Caesar in a Tractate of his painefully and very iudiciously gathered from the records of the same court plainely sheweth that this court was 9. Henrici septimi though then following the king and not setled in any certaine place neither swayed particularly by the Masters of requests as now it is but more at large by others of the kings most Honourable Councell whom he pleased to employ in this seruice For pag. 148. of the said Tractate you haue the forme of the oath then ministred to those that were Iudges in this court and à pag. prim vsque ad pag. 46. causes of diuers natures which in the said kings dayes were there handled and adiudged This court as that right Honorable and learned Knight in a briefe of his vpon the same court plainely proueth was and is parcell of the kings most Honorable Councell and so alwaies called and esteemed The Iudges thereof were alwaies of the kings most Honourable Councell appointed by the king to keepe his Councell board The keeping of this court was neuer tyed to any place certaine but onely where the Councell sate the suyters were to attend But now of late for the ease of suiters it hath bene kept in the White hall at Westminster and onely in the Tearme time It is a court of Record wherein recognizances are also taken by the kings Councell The forme of proceeding in this court was altogether according to the processe of summarie causes in the ciuile lawe The persons plaintiffes and defendants were alwaies either priviledged as officers of the court or their servants or as the kings seruants or as necessarie attendants of them or else where the plaintiffes pouertie or meane estate was not matchable with the wealth or greatnesse of the defendant or where the cause meerely contained mater of equitie and had no proper remedie at the common law or where it was specially recommended from the king to the examination of his Councell or concerned Vniuersities Colledges Hospitals and the like The causes wherwith they deale and wherof they iudge are of all sortes as maritime vltra marine ecclesiasticall temporall but properly temporall causes and onely of the other sort as they are mixt with temporal The maner of proceeding in the said court is first by privie seale leters missiue or Iniunction or messenger or bond Secondly by attachement Thirdly by proclamation of rebellion Fourthly by commission of rebellion fiftly by Sergeant at armes The effect of the defendants apparence is that he attend de die in diem on the councell till he haue made his answer to the plaintiffes bill and be licenced to depart vpon caution de iudicio sisti indicato solvendo and constitution of his Atturney and councell by name The authoritie of this court is such as vppon cause to graunt iniunctions for barring the defendant from syewing the plaintiffe at the common lawe and to stay the suyte at the common lawe before commencement and not to arrest the bodie of the plaintiffe till furder order be taken by the Kings councell and the execution of a decree in this court may be done either by imprisonment of the person disobeying being partie or claiming vnder the partie or by levie of the summe adiudged vppon his lands Courtesie of England lex Angliae commeth of the french Courtesie i. benignitas humanitas but with vs hath a proper signification being vsed for a tenure For if a man marie an inheretrice that is a woman seised of land in fee simple or fee taile generall or seised as heire of the taile speciall and getteth a childe of her that commeth aliue into the world though both it and his wife die forthwith yet if she were in possession shall he keepe the land during his life and is called tenent per legem Angliae or by the courtesie of England Glanvil li. 7. ca. 18. Bracton li. 5. tracta 5. ca. 30. nu 7. 8. 9. Britton ca. 51. fo 132. Fleta li. 6. ca. 56. § lex quaedam Fitzh nat br fo 149. D. Litleton li. 1. ca. 4. It is called the law of England Westm 2. ca. 3. This is in Scotland called curialitas Scotiae Skene de verbo sign verbo Curialitas who there saith that this is vsed in these two realmes onely and maketh a large discourse of the custome Coutheutlaughe is he that wittingly receiueth a man outlawed and cheriseth or hideth him In which case he was in auncient times subiect to the same punishment that the outlawe himselfe was Bracton li. 3. tracta 2. ca. 13. nu 2. It is compounded of couthe i. knowne acquainted familiar and vtlaughe an outlaw as we now call him Courtilage aliâs curtilage curtilagium aliâs curtilegium signifieth a garden a yard or a feeld or peece of voide ground lying ne ere and belonging to a mesuage West parte 2. Symbolaeo titulo fines sect 26. And so is it vsed anno 4. Ed. i. ca. vnico anno 35. H. 8. ca. 4. anno 39. Eliza ca. 2. and Coke vol. 6. fo 64. a. Of this also Lindwood thus writeth Curtilegium vulgare nomen est non omnium patriarum sed certarum Est enim curtis mansio vel manerium ad habitandum cum terris possessionibus aliis emolumentis ad tale manerium pertimentibus prove satis colligitur in libro feudorum titulo de controuersia investiturae § si quis de manso Coll. 10. Vnde curtilegium dicitur locus adiunctus tali curti vbi leguntur herbae vel olera sic dictus a curtis lego legis pro collig ere Thus farre Linwood titulo de decimis ca. Sancta § omnibus verbo Curtelegiorum So that in effect it is a yard or a garden adioyning to a house Creansour creditor commeth of the french croyance i. persuasio and signifieth him that trusteth another with any debt be it in mony or wares Old nat br fo 67. Cranage cranagium is a liberty to vsea crane for the drawing vp of wares from the vessels at any creek of the sea or wharfe vnto the land and to make profit of it It signifieth also the mony paide and taken for the same New booke of Entries 〈◊〉 3. col 3. Creeke creca crecca vel crecum seemeth to be a part of a hauen where any thing is landed or disburdened out of the sea So that when you are out of the mayne sea within the hauen looke how many landing places you haue so many creeks may be said to belong to that hauen See Cromptons iurisdictions fo 110. a. This word is mencioned in the statute as anno
some time for the place or circuit within the which the king or other Lord hath escheates of his tenents Bracton li. 3. tract 2. cap. 2. pupilla oculi parte 5. ca. 22. Escheate thirdly is vsed for a writ which lieth where the tenent hauing estate of see simple in any lands or tenements holden of a superiour lord dieth seised without heire generall or especiall For in this case the Lord bringeth this writ against him that possesseth these lands after the death of his tenent and shall thereby recouer the same in liew of his seruices Fitzh nat br fol. 144. These that we call Escheats are in the kingdome of Naples called Excadentiae or bona excadentialia as Baro locat excadentias eo modo quo locatae fuerūt ab antiquo it a quod in nullo debit a servitia minuantur non remittit gallinam debitam Iacobutius de Franchis in praeludiis ad feudorum vsum tit 1. nu 29. nu 23. v. Maranta singularia verbo Excadentia And in the same signification as we say the fee is escheated the Feudists vse feudum aperitur li. 1. feud titulo 18. § 2. ti 15. ti 26. § 4. Escheatour Escaetor commeth of Escheate and signifieth an officer that obserueth the Escheates of the king in the countie whereof he is Escheatour and certifieth them into the Eschequer This officer is appointed by the L. treasurer and by leters patents from him and continueth in his office but one yeare neither can any be Escheatour aboue once in 3. yeares anno 1. H. 8. cap. 8. anno 3. eiusd ca. 2. See more of this officer and his authoritie in Cromptons Iustice of peace See an 29. Ed. 1. The forme of the Escheatours oath see in the Register original fol. 201. b. Fitzh calleth him an officer of record nat br fol. 100. C. because that which he certifieth by vertue of his office hath the credit of a record Officium escaetriae is the escheatourship Register orig fo 259. b. Escuage Scutagiū commeth of the French Escu i. clypeus a bucler or sneild In our common lawe it signifieth a kinde of knights seruice called seruice of the shield whereby the tenent holding is bound to follow his Lord into the Scottish or Welsh warres at his owne charge for the which see Chyvalrie But note that Escuage is either vncertaine or certaine Escuage vncertaine is properly Escuage and knights seruice being subiect to homage fealtie ward and mariage so called because it is vncertaine how often a man shal be called to followe his lord into those wars and againe what his charge wil be in each iourney Escuage certaine is that which yearely payeth a certaine rent in lieu of all seruices being no further bound then to pay his rent called a knights fee or halfe a knights fee or the fourth part of a knights fee according to his land this leeseth the nature of knights seruice though it hold the name of Escuage being in in effect Soccage Fitzh nat br fol. 84. C. Esnecy Aesnecia is a prerogatiue giuen to the eldest coparcener to choose first after the inheritance is diuided Fleta li. 5. ca. 10. § in diuisionem Esplees Expletia seeme to be the full profits that the ground or land yeldeth as the hay of the medowes the feede of the pasture the corne of the earable the rents seruices and such like issues Ingham It seemeth to proceede from the latine expleo The profits comprised vnder this word the Romans call properly accessiones Nam accessionum nomine intelligūtur ea generaliter omnia quae ex re de qua agitur orta sunt veluti fructus partus omnis causa rei quaecunque ex re procedunt l. 2. Π. De in diem adiectio li. 50. Π. Ad Trebel l. 61. § hiis etiam Π. de furt See the new Terms of law Esquier Armiger is in leters little altered from the french Escuier i. scutiger It signifieth with vs a gentleman or one that beareth armes as a testimony of his nobilitie or gentrie S. Thomas Smith is of opinion that at the first these were bearers of armes to Lords and Knights and by that had their name and dignity Indeede the french word is sometime translated Agaso that is a boy to attend or keepe a horse and in ould English writers it is vsed for a lackey or one that carieth the shield or speare of a knight Mast Camden in his Britannia pag 111. hath these words of them hauing spoken of Knights Hiis proximi fuere Armigers qui scutiseri hominesque ad arma dicti qui vel a clypeis gentilitiis qua in nobilitatis insignia gestant vel quia principibus matoribus illis nobilibus ab armis erant nomen traxerunt Olim enim ex hiis duo vnicuique militi seruiebant galeam clypeumque gestabant c. Hotoman in the sixth chapter of his disputatiōs vpon the feods saith that these which the French men call Escuiers were a militarie kinde of vassall haueing ius scuti which is as much to say he there interpreteth him selfe as that they bare a shield and in it the ensignes of their family in token of their gentility or dignity Essendi quietum de telonio is a writ that lieth for Citizens or burgesses of any city or towne that haue a charter or prescription to exempt them from tolle through the whole realme if it chaunce they be any where exacted the same Fitzh nat br fol. 226. Register fol. 258. Essoine Essonium commeth of the French Essoniè or exonniè i. causarius miles he that hath his presence forborne or excused vpon any iust cause as sicknesse or other incumbrance It signifieth in our common lawe an alledgement of an excuse for him that is summoned or sought for to appeare and answer to an action reall or to performe suite to a court baron vpon iust cause of absence It is as much as excusatio with the Ciuilians The causes that serue to Essoine any man summoned be diuers infinite yet drawne to fiue heads whereof the first is vltra mare the second de terra sancta the third de malo vemendi which is also called the common Essoine the fourth is de malo lecti the fifth de seruitio Regis For further knowledge of these I referre you to Glanvile in his whole first booke and Bracton li. 5. tractat 2. per totum and Brittan ca. 122. 123. 124. 125. and to Horns mirrour of Iustices li. 1. ca. des Essoinis who maketh mention of some more Essoines touching the seruice of the king celestiall then the rest doe and of some other points not vnworthie to be knowne Of these essoines you may reade farder in Fleta l. 6. c. 8. seqq that these came to vs frō the Normans is well shewed by the Grand Custumarie where you may find in a maner all said that our lawyers haue of this mater cap. 39. 40. 41. 42. 43. 44.
guardeyn of the spiritualties may be either Guardeyn in lawe or Iure Magistratus as the Archbishop is of any Dioces within his prouince or guardian by delegation as he whom the Archbishop or Vicar generall doth for the time depute Gardeyn of the peace Custos pacis See Conservatour of the peace Gardeyn of the Cinque ports Gardianus quinque portuum is a Magistrate that hath the iurisdiction of those hauens in the east part of England which are commonly called the Cinque ports that is the fiue hauens who there hath all that iurisdiction that the Admirall of England hath in places not exempt The reason why one Magistrate should be assigned to these few hauens seemeth to be because they in respect of their situation aunciently required a more vigilant care then other hauens being in greater daunger of invasion by our enemies by reason that the sea is narrower there then in any other place M. Camden in his Britannia pag. 238. saith that the Romaines after they had setled themselues and their Empire here in England appointed a Magistrate or gouernour ouer those East partes whom they tearmed Comitem littoris Saxonici per Britanniam hauing another that did beare the same title on the opposite part of the sea whose office was to strengthen the sea coasts with munition against the outrages and robberies of the Barbarians And farder signifieth his opinion that this Warden of the Cinque ports was first erected amongst vs in imitation of that Romaine policie See Cinque ports Gare anno 31. Fd. 3. cap. 8. is a course wooll full of staring haires as such as groweth about the pesill or shankes of the sheepe Garnishment commeth of the French Garnir i. instruere It signifieth in our common lawe a warning giuen to one for his appearance and that for the beter furnishing of the cause and court For example one is siewed for the detinew of certaine euidences or charters and saith that the euidences were deliuered vnto him not onely by the plaintiffe but by another also and therefore prayeth that that other may be warned to pleade with the plaintiffe whether the said conditions bee performed yea or no. And in this petition he is said to pray garnishment New booke of Entries fol. 211. colum 3. Termes of the lawe Cromptons Iurisd fol. 211. which may be interpreted either warning of that other or else furnishing of the court with parties sufficient throughly to determine the cause because vntill he appeare and ioyne the defendant as Fitzh saith is as it were out of the court nat br fol. 106. G. and the court is not prouided of all parties to the action I am the bolder thus to interpret it because I find Britton in the same mind cap. 28. where he saith that contracts be some naked and sans garnment and some furnished or to vse the literall signification of his word appareled but a naked obligation giueth no action but by common assent And therefore it is necessarie or needfull that euery obligation be appareled And an obligation ought to be appareled with these fiue sortes of garnements c. Howbeit I reade it generally vsed for a warning in many places and namely in Kitchin fol. 6. Garnisher le court is to warne the court And reasonable garnishment in the same place is nothing but reasonable warning and againe fol. 283. and many other authours also But this may be well thought a Metonymie of the effect because by the warning of parties to the court the court is furnished and adorned Garrantie See Warrantie Garter Garterium commeth of the french Iartiere or Iartier i. periscelis fascia poplitaria It signifieth with vs both in diuers statutes and otherwise one especiall garter being the ensigne of a great and noble societie of knights called knights of the garter And this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Poeta among the Graecians was Homer among the Romanes Virgill because they were of all others the most excellent This high order as appeareth by M. Camden pag. 211 and many others was first instituted by that famous king Edward the third vpon good successe in a skirmish wherein the kings garter I know not vpon what occasion was vsed for a token I know that Polidore Virgill casteth in an other suspition of the originall but his groundes by his owne confession grew from the vulgar opinion yet as it is I will mention it as I haue read it Edward the third king of England after he had obtained many great victories King Iohn of Fraunce King Iames of Scotland being both prisoners in the tower of London at one time and king Henry of Castile the bastard expulsed and Don Pedro restored by the prince of Wales did vpon no weighty occasion first erect this order in anno 1350. viz. He dauncing with the Queene and other ladies of the court tooke vp a garter that happened to fall from one of them whereat some of the lords smiling the king said vnto them that eare it were long he would make that garter to be of high reputation shortly after instituted this order of the blew garter which euery one of the order is boūd daily to weare being richly decked with gold and pretious stones and hauing these words written or wrought vpon it Honi soit qui mal y pence which is thus commonly interpreted euill come to him that euill thinketh but I thinke it might be better thus Shame take him that thinketh euill See knights of the garter M. Fearne in his glory of generosity agreeth with M. Camden and expressier setteth downe the victories whence this order was occasioned whatsoeuer cause of beginning it had theorder is inferiorto none in the world consisting of 26. martiall and heroicall nobles whereof the king of England is the cheif and the rest be either nobles of the realme or princes of other countries friends and confederates with this realme the honour being such as Emperours and Kings of other nations haue desired and thankfully accepted it He that will reade more of this let him repaire to M. Camden and Polidore and M. Fern. fol. 120. vbi supra The Ceremonies of the chapter proceeding to election of the inuestures and robes of his installation of his vowe with all such other obseruances see in M. Segars new booke intituled Honour militarie and ciuile li. 2. ca. 9. fo 65. Garter also signifieth the principall king at armes among our English Heralds created by king Henry the 5. Stow. pa. 584. Garthman anno 13. R. 2. stat 1. ca. 19. anno 17. eiusd cap. 9. Gavelet is a speciall and auncient kinde of Cessauit vsed in Kent where the custome of Gavill kind continueth whereby the tenent shall forfeit his lands and tenements to the Lord of whome he holdeth if he withdraw from him his due rents and seruices The new Expounder of lawe Termes whom reade more at large I reade this word anno 10. Ed. 2. cap. vnico where it appeareth to be a writ vsed
anno 1. Iac. cap. 33. conteineth 12. dozen of hides or skins Latitat is the name of a writ whereby all men in personall actions are called originally to the Kings bench Fitz. nat br fo 78. M. And it hath the name from this because in respect of their beter expedition a man is supposed to lurke and therefore being serued with this writ he must put in securitie for his appearance at the day for latitare est se malitiosè occultare animo fraudandi creditores suos agere volentes l. Fulcinius § Quid sit latitare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Quibus ex causis in possessionem eatur But to vnderstand the true original of this writ it is to be knowne that in auncient time whilest the kings bench was moueable and followed the court of the King the custome was when any man was to be siewed to send forth a writ to the Shyreeue of the county where the Court lay for the calling him in and if the Shyreeue returned non est inventus in baliva nostra c. then was there a second writ procured foorth that had these words testatum est eum latitare c. and thereby the Shyreeue willed to attach him in any other place where he might be found Now when the tribunall of the Kings bench came to be setled at Westminster the former course of writ was kept for a long time first sending to the Shyreeue of Midlesex to summon the party and if he could not be found there then next to apprehend him wheresoeuer But this seeming too troublesome for the subiect it was at last deuised to put both these writs into one and so originally to attache the party complained of vpon a supposall or fiction that he was not within the county of Middlesex but lurking else where and that therefore he was to be apprehended in any place else where he was presumed to lye hidden by a writ directed to the Shyreeue of the county where he is suspected to be and by this writ a man being brought in is committed to the Marshall of that court in whose custodie when he is then by reason he is in the same countie where the Kings bench is he may be siewed vpon an action in that court whereas the original cause of apprehending him must be a pretence of some deceit or contempt committed which most properly of old belonged to the cognizance of that court I haue bene enformed that the bringing of these actions of trespas so ordinarily to the kings bench was an inuention of Councelers that because onely Sergeants may come to the common plees barre found a meanes to set themselues on worke in that court The forme of this writ is such Iacobus Dei gratia Angliae Francis Scotiae Hiberniae Rex fidei defensor c. Vicecomiti Cantabrigiae salutem Cum Vicecomitinostro Midlesexiae nuper praeceperimus quod caperet Thomam T. Wilielmum W. si inuenti fuissent in balliua sua eos saluo custodiret ita quòd haberet corpora eorum coram nobis apud Westminster die veneris proximo post octavas Sanctae Trinitatis ad respondendum Roberto R. de placito trangressionis cumque vicecomes noster Midlesexiae ad diem illum nobis returnauerit quod praedicti Thomas T. Wilielmus W. non sunt inuenti in balliua sua super quo ex part praedicti Roberti in curia nostra coram nobis sufficienter testatum est quòd praedicti Thomas Wilielmus latitant discurrunt in comitatu tuo Idcirco tibipraecipimus quòd capias eos si inveÌ„tifuerint in balliua tua eos salvo custodias it a quod habeas corpora eorum coram nobis apud Westminster die Martis proximo post tres septimanas eodem Trinitatis ad respondendum praefato Roberto deplacito praedicto habeas ibi tunc hoc breve Teste Iohanne Pâ—pham apud Westminster Roper Launcegay anno 7. Rich. secundi cap. 13. Law lex cometh of the Saxon lah the generall significatioÌ„ is plaine only this I thought to note that the law of this land hath beene variable For first Dunwallo Mulmutius otherwise Molincius a Brittaine that being Duke of Cornwall reduced the whole land formerly seuered by ciuile wars into the state of a Monarchy made certaine wholsome lawes which long after were called Mulmutius lawes and by Gyldas translated out of the Bryttish tongue into latine Stow in his Annals pag. 16. Of these there remaine yet certaine heads recorded by our historiographers as followeth 1. vt Deorum templa ciuitates hominum consequantur tantam dignitatem ne quis illò confugiens extrahipossit antequà m ab eo quem laeserat veniam impetraverit 2. vt huiusmods privilegium immunitatis habeant etiam ipsae viae quae ducunt ad templa ad vrbes 3. Imo iumenta quoque illa quae res rusticae subueniunt 4. Denique colonorum aratra ipsa tali praerogativa libertatis perfruantur 5. Hoc amplius vt ne quaterra vacaret culturâ neve populus inopia reifrumentariae premeretur aut ea minueretur si pecora sola occuparent agros qui ab hominibus coli dobent 6. Constituit quot aratra quaelibet dioece sis haberet ac poenam statuit iis per quos ille numerus aratrorum foret diminutus 7. Item vetuit bovem aratorâ—m pro debito pecuniae assignari debitoribus si alia bonae debitoris essent Ita fore ne compendii causa homines pecuarii agros incultos redderent sic etiam fore ne quid carum rerum quas natura praebet hominibus vsquam deesse posset Rich. Vitus historiarum Britanniae li. 3. nu 1. And of these lawes we finde no obscure remanets in our lawes now in vse See Magna charta ca. 1 câ— 14. See Sanctuary See Peace Then was there a lawe called Merchenlage whereby the Mercians were gouerned being a kingdome in the heart of the land conteining those countries that be nowe called Northampton shire Leycester shire Rutland shire Lincolne shire Nottingham shire and Derby shire Camd. Britan. pag. 94. whose power was great in the Heptarchy of the Saxons vntill at the last they were conquered by the west Saxons and made subiect to them Polydor. in Angl. Hist lib. 5. But whereas the name of these lawes sauoureth of the Saxons time it is reported by others that Martia a very learned Queene and wife to Quintelinus a Britton king was the author of them long before the Saxons set foote in England Rich. Vitus histo Britan. li. 3. nu 14. who also saith that Alphred the Saxon King translated both these and also those of Mulmutius into the English or Saxon tongue Thirdly there was the lawe of the west Saxons called west Saxenlage and the lawe of the Danes when they set foote into the Realme called Denelage And of these lawes Edward made one lawe as some write whereby he ruled his kingdome But M. Camd. vbi supra speaking nothing of
either of two French words Prime or Primier i. primus and Notaire i. Notarius tabellio or of two Latine words prae notarius quasi primus aut principalis notarius The office is likewise borowed from the later Romanes who made his name of halfe Greeke and halfe Latine viz 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. primus principalis and Notarius It is vsed in our common lawe for the cheife clerks of the Kings courts whereof 3. be of the common pleas and one of the Kings bench For the pregnotarie of the commmon plees anno 5. H. 4. cap. 14. is termed the cheife clerke of that court He of the Kings Bench recordeth all actions civile siewed in that court as the Clerke of the Crowne office doth all criminall causes Those of the common plees doe enter and inrolle all maner of declarations pleadings Assises and Iudgements and all actions the same terme that the apparence is made Also they make out all iudiciall writs as the venire facias after issues ioyned and Habeas corpus for the bringing in of the Iurie after it is returned vpon the venire facias They also make forthe writs of executions and ofseisin writs of supersedeas for appearance to exigents as well as the exigents and writs of priuiledges for remouing of causes from other inferiour courts of Record in case where the partie hath cause of priuiledge Also writs of procedendo of scire facias in all cases and writs to inquire of dammages and all proces vpon prohibitions and vpon writs of audita querela and false Iudgement Finally they inrolle all recognisances acknowledged in that court and all common Recoueries and may make exemplifications of any Record the same terme before the rols be deliuered from them Prender commeth of the French prendre i. accipere acceptare capere prehēdere it signifieth in our common lawe sometime a power or right to take a thing before it be offered as such things as lie in Prender or such as lie in render West parte 2. titula Fines sect 126. where you haue these words If the lord graunt the seruices of his tenent by fine or otherwise the Lord before atturnment shall haue such things as lie in prender as the ward of the body of the heire and of the land escheats c. but not such things as lie in prender as rents and releifes heriots and other seruices For he canot avowe for them before the atturnment Prender de Baron signifieth literally in barbarous French to take a husband but it is vsed in our common lawe as an exception to disable a woman from persiewing an appeale of murder against the killer of her former husband Stawnf pl. cor li. 3. cap. 59. The reason whereof whether it be because by her secōd mariage she may iustly be thought to haue giuen vp the interest shee had in her former husband or for that shee is now couert againe or for both I leaue to consideration Prender del profits signifieth verbatim to take the profits It signifieth substantiuely the taking of the profits See Cromptons Iurisdict fol. 185. See Pernour of profits Prest is vsed for some dutie in money to be paide by the Shyreeue vpon his accoumpt in the exchequer anno 2. 3. Ed. 6. cap. 4. Prest mony is so called of the French word Prest i. explicatus promptus expeditus for that it bindeth those that haue receiued it to be ready at all times appointed Primage is a dutie due to the mariners and saylers for the loading of any shippe at the setting forth from any hauen anno 32. H. 8. cap. 14. Primier seisin Prima seisina ad verbum signifieth the first possession It is vsed in the common lawe for a braunch of the kings prerogatiue whereby he hath the first possession of all lands and tenements through the Realme holding of him in cheife whereof his tenent died seised in his demesn as of fee and so consequently the rents and profits of them vntill the heire if he be of age doe his homage if he be vnder yeares vntill he come to yeares See Stawnf prarog cap. 3. and Bracton lib. 4. tract 3. cap. pri Primo beneficio See Beneficio Prince Princeps is a french word and taken with vs diuersly sometime for the king himselfe but more properly for the kings eldest sonne who is prince of Wales as the eldest sonne to the French king is called Dolphine both being princes by their natiuitie M. Fearn in the glory of generositie pag. 138. For Edward the first to appease the tumultuous spirits of the Welch men who being the auncient Indigenae of this land could not in long time beare the yoke of vs whome they call strangers sent his wife being with childe into Wales where at Carnaruan shee was deliuered of a sonne therevpon called Edward of Carnarvan and afterward asked the Welch men seing they thought much to be gouerned by straungers if they would be quietly ruled by one of their owne nation who answering him yea then quoth he I will appoint you one of your owne country men that cannot speake one word of English and against whose life you can take no iust exception and so named vnto them his sonne borne in Carnarvan not long before from which time it hath continued that the kings eldest sonne who was before called Lord Prince Stawnf praerog cap. 22. fol. 75. hath beene called prince of Wales Stowes Annals pag. 303. See anno 27. H. 8. cap. 26. anno 28. eiusdem cap. 3. Principality of Chester anno 21. Rich. 2. cap. 9. See Cownty palatine and Cromptons diuers iurisdictions fol 137. Prior perpetuall or datife and removeable anno 9. R. 2. cap. 4. and anno 1. Ed. 4. cap. 1. paulo ante finem Lord prior of Saint Iohns of Ierusalem anno 26. H. 8. cap. 2. Priors aliens Priores alieni were certaine religious men borne in Fraunce and gouerners of religious houses erected for out-landish men here in England which were by Henry the fifth thought no good members for this land after such conquest obtained by him in Fraunce and therfore suppressed Whose liuings afterwards by Henry the 6. were giuen to other Monasteries and houses of learning Stowes Annals pag. 582. See anno 1. H. 5. cap. 7. but especially to the erecting of those two most famous Colledges called the Kings Colledges of Cambridge and Eton. Prioritie prioritas signifieth in our common lawe an antiquitie of tenure in comparison of another not so auncient As to hold by Prioritie is to hold of a Lord more aunciently then of another old nat br fol. 94. So to hold in posterioritie is vsed by Stawnf praerog cap. 2. fo 11. And Crompton in his Iurisdiction fol. 117. vseth this word in the same signification The Lord of the prioritie shal haue the custodie of the bodie c. fol. 120. If the tenent hold by prioritie of one and by posterioritie of another c. To which effect see also Fitz. nat br fol. 142. F.
and sould by weight into a kinde of bundle after it is clensed in such maner as it ought to be by statute And to auoide such deceit as the owners were wont to vse by thrusting locks of refuse wooll and such other drosse to gaine weight they are sworne to performe that office truly betweene the owner and the merchant See the statute anno 8. H. 6. cap. 22. anno 23. H. 8. ca. 17. anno 18. Eliza. ca. 25. Would See Weald Wranglands seeme to be misgrowne trees that will neuer prooue timber Kitchin fol. 169. b. Wormseede semen santonicum is medicinal seede browght forth of that plant which in Latine is called Sementina in English holy wormwood whereof you may read in Gerards Herball li. 2. ca. 435. This is a drugge to be garbled anno 1. Iacob cap. 19. Wreck wreccum vel wrectum maris is the losse of a shippe and the goods therein conteined by tempest or other mischaunce at the sea The Ciuilians call it Naufragium This wreck being made the goods that were in the shippe being brought to land by the waues belong to the king by his prerogatiue And therevpon in many bookes of our common lawe the very goods so brought to land are called wreck And wreck is defined to be those goods which are so brought to land Sir Ed. Coke vol. 6. relatio f. 106. a. the statute anno 17. Ed. 2. ca. 11. in these words Item Rex habebit wreccum maris per totum Regnum ballenas sturgiones captas in mari vel alibi infra Regnum exceptis quibusdam locis privilegiatis per Regem Whereby it appeareth that the King hath them or such as haue by graunt this libertie or priuiledge of him And that this statute doth but affirme the auncient lawe of the land it appeareth by Bracton lib. 2. cap. 5. num 7. hiis verbis Suntetiam alia res quae pertinent ad coronā propter privilegium Regis it a communem non recipiunt libertatem quin dari possint ad alium transferi Quia si transferantur translatio nulli erit damnosa nisi ipsi Regi fiue principi Et si huiusmods res alicui concessae fuerint sicut wreccum maris c. The reason of this he toucheth shortly in his first booke cap. 12. num 10. where he reckoneth these goods iure naturali to be in bonis nullius quia non apparet Dominus eorum sed iure Gentium fieri principis And see him also lib. 2. cap. 24. num 1. 2. It is worth the asking to know what is a wreck and what not in this stricter signification And the author of the termes of lawe saith that if any person of the shippe come to land it is not a wreck or the wreck is not such that the king ought to haue the goods with whome agreeth S. Ed. Coke vol. 6. f. 107. a. No if either Dogge or Catte escape aliue to the land the goods are the owners still so he come within a yeare and day to claime them And for this the statute is plaine Westm pri ca. 4. anno 3. Edw. pri which doctrine Fitzh in his nat br fol. 112. 〈◊〉 extendeth thus farre that if any of the goods be cast vpon the drie land by any in the shippe it is no wreck subiect to the prerogatiue for by this some of the shippe are presumed to come to land and still to haue a custodie of the goods Cooke vbi supra This in the Grand Custumarie of Normandie cap. 17. is called varech and latined veriseum where it appeareth that the like lawe to ours was in Normandie almost in all points But some sorts of their pretious Merchandise doe by their lawe appertaine to the Duke by his prerogatiue though a iust challenge of the goods be made within the yeare and day The Emperours of Rome made no advantage of this pitifull event as appeareth titulo De Naufragiis 11. Cod. And it appeareth that Richard the first had some remorse of poore sea mens miseries in this case For he quietum clamavit wreck suis subditis Rog. Hoveden parte poster suorum annal fol. 386. Of this M. Skene de verb. signif speaketh to this effect wreck signifieth a power liberty and prerogatiue appertaining to the King or to any person to whome the same is graunted by him by feofment or any other disposition to take vp and gaine such goods as are ship broken or fall to him by escheate of the sea Writ breue is that with our common lawyers in Sir Tho. Smiths iudgement lib. 2. de Repub Anglorum cap. 9. which the Civilians call Actionem siue formulam But I am rather of his iudgement that hath added the marginall note vnto him saying that Actio is the parties whole suite and that Breue is the kings precept whereby any thing is comaunded to be done touching the suite or action as the defendant or tenent to be summoned a distresse to be taken a disseisin to be redressed c. And these writs are diuersly diuided in diuers respects Some in respect of their order or maner of graunting are termed originall and some Iudiciall Originall writs be those that are sent out for the summoning of the Defendant in a personall or Tenent in a reall action or other like purpose before the suite beginneth or to begin the suite thereby Those be iudiciall that be sent out by order of the court where the cause dependeth vpon occasion growing after suite begunne old nat br fol. 51. And Iudiciall is thus by one signe knowne from the Originall because the Teste beareth the name of the chiefe Iustice of that Court whence it commeth where the Orig. beareth in the Teste the name of the Prince Then according to the nature of the action they be personall or reall and reall be either touching the possession called writs of Entrie or the property called writs of right Fitzh nat br sparsim per totum Some writs be at the suite of a party some of office old nat br fol. 147. Some ordinary some of priuiledge A writ of priuiledge is that which a priuiledged person bringeth to the court for his exemption by reason of some priuiledge See Pro cedendo See the new booke of Entrise verbo priviledge See Briefe Writ of rebellion See Commission of rebellion Writer of the talies Scriptor talliarum is an officer in the Exchequer being clerk to the auditour of the receipt who writeth vpon the talies the whole letters of the tellers billes Y YArd land Virgataterrae is a quantitie of land called by this name of the Saxon Gyrdlander but not so certaine a quantity as that it is all one in all places For in some country it conteineth 20. acres in some 24. in some 30. as M. Lamb. saith in his explication of Saxon words verbo virgata terrae This yard land Bracton calleth virgatam terrae lib. 2. cap. 20. 27. but he expresseth no certainty what it conteineth
quanta per confessionem partis adversae vel per probationes legitimas in fine litis apparebit And againe in the conclusion of all Non astringens se ad singula probanda sed potens vtquatenus probauerit in praemissis aut eorum aliquo eatenus obtineat By vertue of which clauses the plaintiffe faileth not in the end by any ouer or vnder demand neither is driuen to begin his action againe but obtaineth for so much as he proueth to be due though not to the heithe of his demaund Abridgement abbreuiamentum see Abridge A C ACcedas ad Curiam is a Writ that lieth for him who hath receyued false iudgement in a court Baron being directed to the Sheriffe as appeareth by Dyer fol. 169. nu 20. Like as the writ De falso iudicio lyeth for him that hath receiued false iudgement in the county Court the forme whereof you may see in Fitzh nat br fol. 18. d. and in the Register fol. 9. b. where it is said that this writ lyeth for iustice delayed as well as falsly giuen It is a species of the writ called Recordare Register originall fol. 5. b. and Fitzh vbi supra Accedas ad Vicecomitem is a writ directed to the Coroner cōmanding him to deliuer a writ to the Sheriffe that hauing a pone deliuered vnto him doth suppresse it Regist origin fol. 83. Accessory Accessorius vel Accessorium is vsed in our common lawe otherwise then among the Ciuilians For whereas with them it is generally takē for any thing depending vpon another here though it be so likewise yet most commonly and notoriously it signifieth a man that is guiltie of a fellonious offence not principally but by participation as by commandement aduice or concealement And a man may be accessorie to the offence of another after two sorts by the common lawe or by statute and by the common lawe two waies also that is before or after the fact Before the fact as when one commaundeth or aduiseth another to commita felony and is not present at the execution thereof For his presence maketh him also a principall wherfore there cannot be an accessorie before the fact in manslaughter because man-slaughter is sodaine and not prepensed Cooke lib. 4. fol. 44. a. Accessorie after the fact is when one receiueth him whom he knoweth to haue committed felonie Accessorie by statute is he that abetteth councelleth or hideth any man committing or hauing committed an offence made felony 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 accessorie of an accessorie as he that wittingly receiueth an accessorie to felonie lib. Assis 26. pl. 51. Coron Fitzh 196. Stawnf pl. cor li. 1. cap. 48. And the lawe of England is that so long as the principall is not attainted the accessorie may not be dealt with Stawnf vbi supra The reason whereofyou may see Cooke lib. 4. fol. 43. b. And this is also true by the ciuill lawe Claudius de Battandier in pract crim regula 101. at the least vntill the principall be certainely knowne Of this subiect reade M. Cromptons Iustice fol. 37. b. 38. 39. Acceptance is a receiuing of a rent whereby the receiuer bindeth himselfe for euer to allow a former fact done by another whether it be in it selfe good or not new tearmes of law Accompte computus is in the cōmon lawe taken for a writte or action brought against a man that by meanes of office or businesse vndertaken is to render an account vnto another as a bailife toward his Master a guardian in socage toward his ward such others as you shall find particularly named by Fitzh in his nat br fo 116. where you may also haue the forme and further vse of this writte See ex parte talis Accroche See enchrochement This word accroche is vsed ann 25. Ed. 3. Stat. 3. ca. 8. Achat commeth of the french achet 1. emptio nundinatio and is vsed for a contract or bargain Broke tit contract Acquitall signifieth in our cōmon law most ordinarily a deliuerance setting free from the suspicion or guiltines of an offence and is twofold acquitall in law or acquital in fact Acquitall in law is when two be appealed or endicted of felony one as principall the other as accessorie the principall being discharged the accessorie by consequent is also freed And in this case as the accessorie is acquitted by law so is the principall in fact Stawnf pl. cor fo 168. Acquittance Acquietantia cōmeth from the french quicter or quitter i. acceptò ferre or quictance i. acceptitatio apocha and signifieth a release or discharge from a dept formerly due But the verbe acquite the participle acquited the nowne acquital signifie also a discharge or cleering from an offence obiected as acquited by proclamation Smith de rep Anglo pa. 76. Stawnf pl. cor fo 168. Broke tit Acquitall See the new tearmes of lawe verbo acquitall acquittance Acquietandis plegiis is a Writ lying for a suretie against the creditour that refuseth to acquite him after the debt is paid by the debtour Register ori fol. 158. where it appeareth that this is a Iusticies Acre acre is a certaine quātitie of land containing in length 40. perches and foure in breadth or to that quantitie be the length more or lesse And if a man erect any new cotage he must lay 4. acres of land to it after this measure anno 31. Eliza. cap. 7. and with this measure agreeth M. Crompton in his iurisdiction of Courts fol. 222. though he say also that according to the diuers customes of diuers countries the perche differeth being in some places and most ordinarily but 16. foot dimid But in the Counties of Stafford 24. foote as was adiudged in the case betweene Sir Ed. Aston and S. Iohn B. in the Exchequer In the Statute made of sowing of Flaxe ann 24 H. 8. cap. 4. eight score perches make an acre which is 40. multiplied by 4. See also the ordinance of measuring land made anno 34. Ed. 1. Stat. 1. which agreeth with this accompt The word acre seemeth to come from the Germane word acker which is all one with the Latine ager Action actio is defined by Bracton lib. 3. cap. 1. as it is by Iustinian li. 4. Instit titulo de actionibus viz. Actio nihil aliud est quà m ius persequēds in iudicio quod alicui debetur Action is principally diuided by Iustinian in personalem realem by Bracton into personall reall and mixt action personall 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 reall is defined to be that which is giuen to any
man against another that vpon any cause possesseth or occupieth the thing required or siewed for in his owne name and none other mans and in this onely 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 reason he farther exēplifieth in the words there following which he that wil may reade at large Action mixt is that which lyeth aswell against or for the thing which we seeke as against the person that hath it and is called mixt because it hath a mixt respect both to the thing the person Bract. lib. 3. cap. 3. nu 5. For example the diuision of an inheritance betweene coheyres or copartners called in the ciuill lawe actio familiae exciscunde secondly the diuision of any particular thing being common to more called likewise actio de communi dividundo this kind of action saith Bracton doth seeme to be mixt because it lyeth as well against thing as the person and indeed so do other excellent Civilians as Cuiacius and Wesenbecius in their Paratitles Π. finium regund And though Iustinian in his first diuision omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certaine actions naming these and other of like nature that seeme to haue a mixture c. Of this you may also reade Britton at large in his chapter 71. And this diuision of action springeth frō the obiect or matter wherabout it consisteth Wesenb parat 〈◊〉 de actio obliga The author of the new tearmes of law defineth a mixt action to be a suite giuen by the lawe to recouer the thing demaunded and also the dammages for wrong done as in Assise of nouel disseysin the which writ if the diffeisour make a feofment to another the disseiseur shall haue remedie against the disseisour and the feoffer or other land tenant to recouer not onely the land but the dammages also See the rest These words occasion me to shew that actio is by the ciuill lawe called mixta in two respects Nam quaedam mistae sunt quòd in se actionis in rem actionis personalis natur am habeant in iis actor reus vterque sit l. actionis verbo § fina Π. de obliga actio Tales sunt actio familiae ercise communi diuidun finium regun quaedam verò mistae sunt quòd remsimul poenam persequantur vt in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta soluere distulerunt And of this later 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 the one riseth out of the common civil lawe the other from some edict of the Pretour Who being cheife Iusticer had authoritie for his yeare to supply the defects of the general law by his especial edicts And a division not vnlike this may be made in the common law of England one growing from the auncient qustomary law the other from some statute Broke tit Action sur le statut Action of the finall cause is divided into civil poenal mixt Cooke vol. 6. fo 61. a. Action civile is that which tendeth onely to the recouerie of that which by reason of any contract or other like cause is due vnto vs as if a man by action seeke to recouer a summe of money formerly lent c. Action penall is that aimeth at some penaltie or punishment in the partie sued be it corporall or pecuniarie As in the action legis Aquiliae in the civile lawe whereby in our common lawe the next frends of a man feloniously slaine or wounded shall persue the law against the murderer or him that wounded him to condigne punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are depriued and a penaltie also for the vniust deteyning of the same as in an action of tithe vpon the statute anno 2. 3. Ed. 6. ca. 13. Action is also according to the forme of petion divided into such as are conceiued to recouer either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doeth Decies tantum lie against embracers Fitzh nat br fo 171. and against iurours that take mony for their verdict of one part or the other or both And to be short any other action vpon a statute that punisheth any offence by restitution or fine proportionable to the transgression Action is preiudiciall otherwise called preparatorie or els principall preiudiciall is that which groweth from some question or doubt in the principall as if a man sue his younger brother for land descended from his father and it be obiected vnto him that he is a bastard Bract. li. 3. ca. 4. nu 9. For this pointe of bastardie must be tried before the cause can farder proceede therefore is termed preiudicialis quia prius iudicanda Action is either awncestrell or personall Stawnf pl. cor 59. Auncestrel seemeth to be that which we haue by some right descending from our auncester vpon vs and that personall which hath the beginning in and from our selues Action vpon the case actio super casu is a generall action giuen for redresse of wrongs done without force against any man and by lawe not especially provided for For where you haue any occasiō of suite that neither hath a fitte name nor certaine forme alreadie prescribed there the clerkes of the chauncerie in auncient time conceiued a fitte forme of action for the fact in questiō which the Civilians call actionem infactum our common lawyers action vpon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gestae enarratione declarant citra formulā ac solennitatem vllā Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the civile lawe there are two sorts actionis in factum one tearmed actio in factum ex praescriptis verbis the other actio in factum praetoria We semb parat de praescrip verb. the former growing vpon words passed in contract the other more generally vpon any fact touching either contract or offence formerly not provided against this action vpon the case seemeth in vse to bemore like to the pretours action in factum then to the other because in the perusall of the new booke of entries and Brookes his abridgement heerevpon I perceiue that an action vpon the case lieth as well against offenses as breach of contract Of this see more in the word Trespas Action vpon the statute actio super statuto is an action brought against
the recouerie of such a rent either out of his land or out of his cofers or to be receiued of his person at a day certaine euery yere not satisfying it according to the graunt Register orig fol. 158. Fitz. nat br fol. 152. The author of the new tearmes of law defineth annuitie to be a certaine summe of money graunted to another in fee simple fee taile for tearme of life or of yeares to receiue of the graunter or his heires so that no Free-hold be charged therewith whereof a man shall neuer haue assise or other action but a writ of annuitie Saintgerman in his booke intituled The Doctor and Student dialogo primo cap. 3. sheweth diuers differences betweene a rent and an annuitie whereof the first is that euery rent be it rent seruice rent charge or rent seck is going out of land but an annuity goeth not out of any land but chargeth onely the person that is to say the graunter or his heires that haue assets by descent or the house if it be granted by a house of religion to perceiue of their coffers The second difference is that for the recouerie of an annuity no action lyeth but onely the writ of annuitie against the graunter his heires or successors but of a rent the same actions lye as do of land as the case requireth The third difference is that an annuitie is neuer taken for assets because it is no Free-hold in lawe neither shall be put in execution vpon a statute Merchant statute Staple or elegit as a rent may Dyer fol. 345. num 2. speaketh also to this effect Annise seede semen Anisi is a medicinall seed not vnknowne so called of the hearbe anisum whereof it is the fruite Of this he that listeth may reade Gerad◠herball li. 2. ca. 397. It is noted among the garbleable drugs and spices anno 1. Iaco. ca. 19. Anoisance aliàs Noisance aliàs Nusance nocumentum commeth of the French nuisance i incommodum noxa and hath a double signification being vsed as well for any hurt done either to a publike place as high way bridge or common river or to a private by laying any thing that may breede infection by incroaching or such like means as also for the writ that is brought vpon this transgression whereof see more in Nusance The word anoysance I finde anno 22. H. 8. ca. 5. Apostata capiendo is a writ that lyeth against one that hauing entred and professed some order of religon breaketh out againe and wandereth the country contrarily to the rules of his order For the Abbot or Prior of the house certifying this into the chawncerie vnder their common seale and praying this writ directed to the Shyreeue for the apprehensiō of such offend our and for the delivery of him again to his Abbot or Prior or their lawful atturney were wont to obtaine the same The forme whereof with other circumstances you shall finde in the Register orig fo 71. 267. and Fitzh nat br fo 233. C. Apparelment commeth of the French pareisement i. similiter perinde itidem and signifieth a resemblance as apparelment of warre anno 2. R. 2. stat 1. ca. 6. Appeale appellum commeth of the French appeller i. accire accersere nominare evocare clamore aliquem flagitare It signifieth in our common lawe as much as accusatio with the civilians For as in the civile lawe cognisance of criminal causes is taken either vpon inquisition denunciation or accusation so in ours vpon indictment or appeale indictment comprehending both inquisition and denunciation And accusation or apeale is a lawfull declaration of another mans crime which by Bracton must be felonie at the least in the common lawe before a competent Iudge by one that setteth his name to the declaration and vndertaketh to prooue it vpon the penaltie that may ensue of the contrary To declare the whole course of an appeale weare to much for this treatise Wherefore for that I must referre you to Bracton li. 3. tract 2. ca. 18. cum sequent Britton ca. 22. 23. 24. 25. and to S. Thomas Smith li. 3. de repub Anglo ca. 3. and lastly to Stawnf pl. cor li. 2. ca. 6. 7. c. vsque 17. An appeale is commenced two waies either by writte or by bill Stawnf vbi supra fo 46. And it may be gathered by him fo 148. that an appeale by writ is when a writ is purchased out of the chauncerie by one to another to this ende that he appeale a third of some felonie committed by him finding pledges that he shall doe it and deliuer this writ to the Shyreeue to be recorded Appeale by bill is when a man of himselfe giueth vp his accusation in writing to the Vicount or Coroner offering to vndergoe the burden of appealing another therein named This pointe of our lawe among others is drawne from the Normans as appeareth plainly by the grand custumarie ca. 68. where there is set downe a solemne discourse of both the effects of this appeale viz. the order of the cōbate of the tryall by enquest of which by the common lawe of England it is in the ioyce of the defendant whether to take See the newe booke of entrise verbo Appel the booke of Assises fo 78. Appel Appeale of mahem appellum mahemij is an accusing of one that hath maymed another But that being no felony the appeale thereof is but in a sort an action of trespas because there is noe thing recouered but dammages Bracton calleth this appellum de plagis mahemio and writeth of it a whole chapter li. 3. tract 2. ca. 24. See S. Ed. Cook 4. vol. fo 43. a. Appeale of wrong imprisonment appellum de pace imprisonamento is vsed by Bracton for an action of wrong imprisonment whereof he writeth a whole itactat li. 3. tractat 2. ca. 25. Appeale appellatio is vsed in our common law diuers times as it is taken in the civile lawe which is a remouing of a cause from an inferiour iudge to a superiour as appeale to Rome an 24. H. 8. ca. 12. an 1. Elix ca. 1. But it is more cōmonly vsed for the priuate accusation of a murderer by a party who had interest in the partie murdered 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 adiunctum subiecto with the logicians An hospitall may be appendant to a Maner Fitzh nat br fo 142. Common of fishing appendant to a free hold Westm 2. ca. 25. anno 13. Ed. 1. Appertinances pertinentiae commeth of the French appartenir i. pertinere It signifieth in our common lawe things both corporal belonging to another thing as to the more principal as hamlets to a chiefe Maner common of pasture turbarie piscarie and such like and incorporeal as liberties and services of tenents Brit. ca. 39. where I note by the way that he accounteth common
summonitiones quòd sint coram Iustitiarijs c. parati inde facere recognitionem c. This is as if he should haue spoken shorter metonymia effecti For they are called the assises because they are summoned by vertue of the writ so termed And yet the Iurie summoned vpon a writ of right is likewise called the assise as himself there confesseth which writ of right is not an assise But this may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or abusiuely so tearmed Assise in this signification is diuided in magnam paruam Glanvile lib. 2. ca. 6. 7. c. and Britton c. 12. where it appeareth wherein the great assise differeth from the petit assise whome I wish to be read by those that would be furder instructed in this point For this place thus much in short The former 4. kindes of assises vsed in actions only possessory be called petit assises in respect of the graund assise For the law of feese is groūded vpon two rights one of possession the other of propertie and as the grand assise serueth for the right of property so the petit assise serueth for the right of possession Horns myrror of Iustices lib. 2. cap. de novel disseisin Assise in the third signification according to Litleton is an ordinance or statute as the statute of bread and ale made anno 51. H. 3 is termed the assise of bread and ale assisa panis ceruiciae Regist orig fol. 279. b. The assise of Clarendon assisa de Clarendon wherby those that be accused of any hainous crime and not able to purge themselues by fire and water but must abiure the realme had libertie of 40. daies to stay and trie what succour they could get of their friends toward their sustenance in exile Stawnf pl. cor fol. 118. out of Bracton li. 3. tract 2. cap. 16. num 2. Of this also Roger Hoveden maketh mention and more particularly then any that I haue read parte poster suorum annalium fol. 313. b. in Henrico secundo Assise of the Forest assisa de Foresta which is a statute or constitution touching orders to be obserued in the kings forest Manwood parte 1. of his Forest lawes pag. 35. Crompton in the Court of the Iustices of the Forest per totum fol. 146. seq And the assise of the king anno 18. Ed. 3. stat 1. called the statute for view of Francke pledge And these be called assises because they set downe and appoint a certaine measure rate or order in the things which they concerne Of assise in this signification doth Glanvil also speake lib. 9. cap. 10. in fine Generaliter verum est quod de quolibet placito quod in comitath deducitur terminatur misericordia quae inde prouenit vicecomiti debetur quae quanta sit per nullam assisam generalem determinatum est And thus much touching Litletons diuisiō But if we marke well the writers of the lawe we shall find this word assise more diuersly vsed then this author hath noted For it is vsed sometime for the measure or quantity it selfe and that per Metonymiam effecti because it is the very scantline described or commaunded by the ordinance as for example we say when wheate c. is of this price then the bread c. shall be of this assise This word is furder taken for the whole processe in court vpon the writ of assise or for some part therof as the issue or verdict of the Iury. For example assises of new disseisin c. shall not be taken but in their shires and after this maner c. mag char cap. 12. And so it seemeth to 〈…〉 nifie Westm 2. cap. 25. anno 13. Ed. 1. in these words let the disseisiours alledge no false exceptions whereby the taking of the assises may be deferred c. And anno 34. Ed. 1. stat 2. if it be found by assise the assise in arrained to averre by the assise the assise by their default shal passe against them and also an 1. H. 6. cap. 2. assises awarded by default of the tenents c Lastly by Merton cap. 4. anno 20. H. 3. certified by the assise quite by the assise c. And in this signification Glanvile calleth it magnam assisam domim regis quae ex duodecim ad minus legalium hominum sacramentis consistit lib. 2. cap. 7. Bracton vseth it in like sort as assisa cadit in transgressionem lib. 4. cap. 30. assisa cadit in perambulationem codem cap. 31. num 2. Fleta defineth an assise in this signification thus Assisa in iure possessorio est quaedam recognitio duodecim hominum iuratorum per quam Iusticiary certiorantur de articulis in breui contentis An assise also thus signifying is said sometime to passe per modum assisae and sometime in modum 〈…〉 ata in maner of an assise when onely the disseisin in question is put to the trial of the twelue in maner of a iurie when as any exception is obiected to disable the interest of the disseisee and is put to be tryed by the twelue before the assise can passe As for example Quaestio status causa successionis causa donationis pactum siue conditio vel cōnentio voluntas dissimulatio transactio vel quietaclamatio vel remissio confirmatio siue consensus propria vsurpatio rei propriae difficultas iudicij iustum iudicium finis chirographum intrusio in rem alienam vel disseisina si in continenti reijciatur negligentia quae per transitum temporis excludit actunem Fleta lib. 4. cap. 10. § 1. whome reade also to this point cap. 11. § Siautem à Domino and at large cap. 16. eiusdem libri lib. 5. cap. 6. § Item vertitur assisa seq And note that assise in this signification is taken foure waies Old nat br fol. 105. The first is assise at large which is taken aswell vpon other points as vpon the disseisin For example where an infant bringeth an assise and the deed of his auncestor is pleaded whereby he claimeth his right or foundeth his title then the assise shall be taken at large that is the Iurie shall enquire not only whether the plaintiffe were disseised or not by the tenent but also of these other points viz. whether his auncestor were of full age of good memorie and out of prison when he made the deed pleaded Another example out of Kitchin fol. 66. The tenent pleadeth a forraine release in barre to an assise whereupon the cause was adiourned At the day the tenent maketh default Therefore the assise was taken at large that is not onely whether the plaintiffe were disseised but also whether there be any such forraine release A third example you may reade in Litleton cap. Estates vpon condition The second maner of assise in point of assise assisa in modum assisae which is when the tenent as it were setting foote to foot with the demandant without furder circumstance pleadeth directly
water comming out of them by a passage or flud-gate called the penstocke and falling vpon the said wheeles This word is mentioned in the statute anno 27. El. cap. 19. Bayle Ballium plevina manucaptio commeth of the French bailler i. attribuere tradere tribuere It is vsed in our common lawe properly for the freeing or setting at liberty of one arrested or imprisoned vpon action either civill or criminall vnder suretie taken for his apparence at a day and place certainely assigned Bracton lib. 3. tract 2. cap. 8. num 8. 9. The reason why it is called Bayle is because by this meanes the party restrained is deliuered into the hands of those that bind themselues for his forth-comming There is both common and speciall baile Cōmon baile is in actions of small preiudice or flight proofe being called common because any sureties in that case are taken whereas vpon causes of greater weight or apparent specialtie speciall baile or suretie must bee taken as subsidie 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 betweene bayle and mainprise in these words and note that there is a great diuersitie betweene bayle and mainprise For he that is mainprised is alwaies said to be at large and to go at his own libertie out of ward after that he is let to mainprise vntill 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 foure or two men by the Lord chiefe Iustice in eyre of the Forest vntill a certaine day For there he is alwaies accompted by the lawe to be in their ward and custodie for the time And they may if they wil keepe him in ward or in prison at that time or otherwise at their will So that he which is so bailed shall not be said by the lawe to be at large or at his owne libertie See Lamberds eirenarcha lib. 3. cap. 2. pag. 330. Bayle is also a certaine limit within the forest accordingly as the Forest is diuided into the charges of seuerall Foresters Crompton in the oath of the bow-bearer fol. 201. See Maynprise Baylife ballivus commeth of the French bailif i. diaecetes nomarcha praefectus Prouinciae and as the name so the office it selfe in auncient time was very aunswerable to that of Fraunce and Normandie for as in France there be sixteene Parlaments Lupanus de Magistratibus Francorum lib. 2. cap. Parlamentum which be high courts whence lyeth no appeale within the preeincts of those seuerall parts of that kingdome that belong to each Parlament there be seueral prouinces vnto which within themselues iustice is ministred by certaine officers called bayliffes so in England we see many seuerall counties or shires within the which iustice hath bene ministred to the inhabitants of each countie by the officer whome we now call Shyreeue or Vicount one name descending frō the Saxons the other from the Normans And though I cannot expressely proue that this Shyreeue was euer called a bailiffe yet is it probable that that was one of his names likewise because the countie is called many times balliva that is a Bayliwicke as namely in the returne of a writ with non est inuentus he writeth thus A. S. infra scriptus non est inventus in balliva mea post receptionem huius brevis Kitchin returna brevium fol. 258. and againe in Bracton lib. 3. tract 2. cap. 33. num 3. and anno 5. Eliz cap. 23. and anno 14. Ed. 3. stat 1. cap. 6. And I thinke the word bailife vsed cap. 28. of Magna charta compriseth as well Shyreeues as bailiffes of hundreds as also anno 14. Ed. 3. stat 1. cap. 9. But as the realme is diuided into Counties so euery Countie is againe diuided into hundreds within the which it is manifest that in auncient times the kings subiects had iustice ministred vnto them by the seuerall officers of euery hundred which were called bailiffes as those officers were and are in Fraunce and Normandie being chiefe officers of iustice within euery Prouince Lupanus de Magistratibus Francorum lib. 2. cap. Balivi and the grand custumary of Normandie cap. 1. And that this is true among many others I bring Bracton for my witnes li. 3. tract 2. cap. 34. n. 5. where it appeareth that bailiffes of hundreds might hold plee of appeale and approuers But fithence that time these hundred courts certain franchises excepted are by the statute anno 14. Ed. 3. stat 1. cap. 9. swalowed into the Countie courts as you may reade in countie and hundred And the Bailiffes name office is growne into such contempt at the least these bailiffes of hundreds that they are now but bare messengers and mandataries within their liberties to serue writs and such like base offices their office consisting in 3. points onely which see in Cromptons Iustice of peace fol. 49. a. Yet is the name still in good esteeme some other way For the chiefe Magistrates in diuers townes corporate be called Bailiffes as in Ipsewitch Yarmouth Colchester and such like And againe there be certaine to whom the kings castels be committed which are called Bailifs as the Bailiffe of Dover castell These ordinary bayliffes are of two sorts baylifs errant and baylifs of franchises Baylifes errant ballivi it inerantes be those which the Shyreeue maketh and appointeth to goe hither thither in the countie to serue writs to summon the countie sessions assises and such like Baylifs of franchises ballivi franchesiarum aut libertatum be those that are appointed by euerie lord within his libertie to doe such offices within his precincts as the baylife errant doth at large in the countie Of these read S. Thomas Smith de repub Anglo li. 2. ca. 16. There be also baylifes of the forest Manwood parte 1. pa. 113. There be likewise baylifes of husbandrie belonging to priuate men of great substance who seeme to be so called bycause they dispose of the vnder servants every man to his labour and taske check them for misdoing their buisenes gather the profits of their lord and master and deliuer an accompt for the same at the yeares end or otherwise as it shall be called for The word baylife or balivus is by Rebuffus deriued from Baal i. dominus quia ballivi dominantur suis subditis quasi eorum magistri domini Rebuf in constitut regias de senten executionis art 7. glos 1. The office or dutie of a bayliffe of a maner or household which in aunciēt time seemeth to haue beene all one Fleta well describeth li. 2. ca. 72. 73. This word is also vsed in the canon lawe ca. dilect◠de sentent excom in sexto ca. pri de poenis in clement wher the glossographer saith it is a French word signifiing as much as praepositus balia or balivatus is vsed among our later interpreters of
101. Kitchin fo 215. Barre also in the same signification is devided into barre materiall and barre at large Kitchin fo 68. A barre materiall as it seemeth may otherwise be called a barre speciall as when one in the stoppe of the plaintiffes action pleadeth some particular mater as a descent from him that was the vndoubted owner a feofment made by the auncester of the plaintiffe or such like A barre at large is when the tenent or defendant by way of exception doth not traverse the plaintifes title by pleading not guiltie nor confesse and avoid it but onely maketh to himselfe a title in his barre As if in an Assise of novel disseisin the tenent pleade a feosment of a straunger vnto him and giues but a colour onely to the plaintiffe Of this there is an apt example to be found 5. H. 7. fo 29. Barre is also in regarde of the effect diuided into barre perpetuall barre pro tempore Perpetuall is that which overthroweth the actioÌ„ for euer Barre pro tempore is that which is good for the present and may faile heereafter looke an example or two in Broke titulo Barre nu 23. where he saith that to plead plene administrauit is good vntill it may appeare that more goods come to the executors hands afterward which also holdeth for an heire that in an action of his auncesters debt pleadeth rien per disceÌ„t This word is also vsed for a materiall bar as the place where Seâ—geants or CouÌ„celers stand to pleade causes in courte or prisoners to aunswere to their endictments Of which our coÌ„mon lawyers that be lyceÌ„ced to plead in other contries called licentiati are termed barristers anno 24. H. 8. ca. 24. Barrator barectator commeth from the French barat i. astutia and is neere the French it selfe in significatioÌ„ For barateur in that tong betokneth a deceiver and a barator in our common law is a common wrangler that setteth men at ods and is himselfe never quiet but at brawle with one or other To this effect you may read M. Lamberds eirenarcha pa 342. who saith likewise that barettor for so he writeth is may seeme to come from the latine baratro or balatro that is a 〈◊〉 knaue or vnthrift and by a metaphor a spot in a coÌ„mon wealth See the statute of champerty an 33. Ed. 1. stat 2. ca. vnico and West 1. ca. 32. anno 3. Ed. i. M. Skene de verb. signif verbo barratrâ— saith that barratours be Symonists called of the Italian word barrataria signifying corruption or briberie in a Iudge giuing a false sentence for mony whome you may read more at large as also Hortensius Cavalcanus in his tractat de brachio reg 10. parte 5. nu 66. whose words are Barataria veròdicitur quando Iudex aliquid petit indebitum vt iustitiam faciat Who also nu 195. partis 5. saith thus barraterii appellaÌ„tur qui praetorium nimis frequentaÌ„t And in another place of the same worke Baratria dicitur quia fit quoddam barratrum i. commutatio pecuniae cum iustitia c. See also Aegidius Bossius in practica criminali titulo de officialibus corrupt c. nu 2. 6. Baratariam committunt Iudices qui iusticiaÌ„ auro vendunt Paris Puteola de syndicatu verbo Barataria pa. 217. Barre fee is a see of 20. 〈◊〉 that every prisoner acquited of felonie payeth to the gaoler Crompt Iustice of peace fo 158. b. Barrell is a measure of wine oyle c. conteining the 8. parte of a tonne the 4. of a pipe and the second of a hogsehead that is 31. gallons and a halfe anno 1. R. 3. ca. 13. But this vessel seemeth not to conteine any certaine quantitie but differeth according to the liquor for a barrell of beere conteineth 36. gallons the Kilderkin 18. and the firkin 9. a barrell of ale 23. gallons the kilderkin 16. and the firkin 8. gallons anno 23. H. 8. ca. 4. Barriers commeth of the French barres and signifieth with vs that which the French men call ieu de barres i. palastraÌ„ a martial sport or exercise of meÌ„ armed and fighting together with short swords within certain limits or lists whereby they are severed from the beholders Barter may seeme to come of the French barater i. circumvâ—nire It signifieth in our statutes exchange of wares with wares an 1. R. 3. ca. 9. so bartry the substantiue anno 13. Eliza. ca. 7. The reason may be because they that choppe and change in this maner doe what they can for the most part one to ouer-reach the other See barratour Base estate is in true French basestat It signifieth in our coÌ„mon law that estate which base tenents haue in their lands Base tenents be they as M. Lamberd saith in his explica of SaxoÌ„wordâ— verbo Paganus which do to their lords villeinous service The author of the termes of law in his Tractat of old termes saith that to hold in see base is to hold at the will of the lord Kitchin fo 41. seemeth to make base tenure and franck to be contraries where it appeareth that he putteth copy holders in the number of base tenents And out of these I thinke that it may be probably coniectured that everie base tenent holdeth at the will of the lord but yet that there is a difference betweene a base estate and and villenage which Fitzh in his nat br fo 12. B. C. seemeth to coÌ„found For the aboue named author of the termes of law saith in the place before cited that to hold in pure villenage is to doe all that the lord will commaund him So that if a copie holder haue but base estate he not holding by the performance of everie commandement of his lord cannot be saide to hold in villenage Whether it may be said that copy holders be by custome and continuaÌ„nce of time growne out of that extreame servitude wherein they were first created I leaue to others of better iudgement but Fith. loco citato saith tenure by copie is a terme but lately invented Base courte is any court that is not of record as the court baron Of this read Kitchin f. 95. 96. c. Base fee See base estate Baselard baslerdus in the statut anno 12. R. 2. ca. 6. signifieth a weapon which M. Speight in his exposition vpon Chancer cal-leth pugimem vol 〈◊〉 Bastard bastardus See Bastardy and See Skeene de verbo siguif verbo Bastardus Bastardy bastardia commeth of the French bastard i. â—othuâ— Cassanans de consuetis Burg. pa. 1116. saith bastard and silius naturalis be all one Bastardy in our common law signifieth a defect of birth obiected to one begotten out of wedlock Bract. li. 5. ca. 19. per totum How bastardie is to be prooued or to be inquired into if it be pleaded see Rastalls booke of Entrise tit Bastardie fo 104. Kitchin fo 64. maketh mention of bastardie speciall and bastardie generall The difference of which is that bastardie generall is a
the partie himselfe detaineth it and refuseth to bring it in Regist orig fo 152. b. In like maner may be said of certificando de statuto mercatorio eodem fo 148. and de certificando in cancellarium de inquisitione de idemptitate nominis fo 195. and certificando quando recognitio c. and certificando quid actum est de breui super statutum mercatorium fo 151 certificando si loquela Warantiae fo 13. Cessor is he that ceseth or neglecteth so long to performe a dutie belonging vnto him as that by his cesse or cessing he incurreth the daunger of lawe and hath or may haue the writ cessavit brought against him Old nat br fo 136. And note that where it is saide in diuers places the tenent cesseth without any more words such phrase is so to be vnderstood as if it were said the tenent ceseth to doo that which he ought or is bound to doe by his land ortenement Cessavit is a writ that lyeth in diuers cases as appeareth by Fitzh nat br fo 208. vpon this generall grounde that he against whome it is brought hath for 2. yeares foreslowne to performe such seruice or to pay such rent as he is tied vnto by his tenure and hath not vpon his land or his tenement sufficient goods or catells to be distreined Consult more at large with Fitz. vpon this vbi supra with Fleta li. 5. ca. 34. § visa sunt and with the Termes of lawe See Cessauit de cantaria Register orig fo 238. Cessavit de feodi firma eodem fo 237. Cessavit per biennium eodem folio etiam eodem See the newe booke of entrise verbo Cessavit Cestui qui vie is in true French cestui a vie de qui i. he for whose life any land or renement is graunted Perkins graunts 97. Cestui qui vse ille cuius vsui vel ad cuius vsum is broken french and thus may be bettered Cestui al vse de qui It is an ordinarie speech among our common lawyers signifying him to whose vse any other man is infeoffed in any lands or tenements See the newe booke of entrise verbo vses and in Replevin fo 508. colum 3. verbo Trespas fo 606. fo 123. a. b. colum 3. n◠7. Chafe waxe is an officer in chauncery that fitteth the waxe for the fealing of the writs and such other instruments as are there made to be sent out This officer is borowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser 1. sectari belluas apros cervos It signifieth two things in the commō lawe First as much as actus in the civil lawe that is a dryving of catell to or from any place as to chase a distresse to a fortlet Old nat br fo 45. Secondly it is vsed for a receite for deere and wilde beasts of a middle nature betweene a forest and a parke being commonly lesse then a forest and not endued with so many liberties as the courtes of attachment Swaine mote and Iustice seate and yet of a larger compas and stored with greater diuersity both of keepers and wilde beasts or game then a park And Crompton in his booke of Iurisdictions fo 148. saith that a forest cannot be in the hands of a subiect but it forthwith looseth the name and becommeth a chase and yet fo 197. he saith that a subiect may be lord and owner of a forest which though it seeme a contrariety yet be both his sayings in some sort true For the king may giue or alienate a forest to a subiect yet so as when it is once in the subiect it leeseth the true property of a Forest because that the courts called the Iustice seate the Swain mote and Attachment foorthwith doe vanish none being able to make a Lord chiefe Iustice in Eyre 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 maner that there may be Attachement and Swainemote and a court equiualent to a Iustice 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 subiect which a Forest in his proper true nature cannot and from a Parke in that that it is not inclosed and hath not onely a larger compasse and more store of game but of Keepers also and ouerseers See Forest Chalenge calumnia commeth of the French chalanger i. sibiasserere and is vsed in the commō lawe for an exception taken either against persons or things persons as in assise to the Iurors or any one or more of them or in a case of felonie by the prisoner at the barre Smith de rep Anglor lib. 2. cap. 12. Britton ca. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration old nat br fol. 76. Chalenge made to the Iurours 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 indifferent Termes of the law Chalenge to the Iurours is also divided into Chalenge principall and Chalenge per cause i. vppon cause or reason Chalenge principall otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the lawe alloweth without cause alledged or farder examination Lamberd Eirenar lib. 4. cap. 14. as a prisoner at the barre arraigned vpon felonie may peremptorily chalenge to the number of 20. one after another of the Iurie empaneled vpon him alledging no cause but his owne dislike and they shall be still put off and new taken in their places But in case of high treason no Chalenge peremptorie is allowed an 33. H. 8. cap. 23. Fortescue saith that a prisoner in this case may chalenge 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 obserue betweene Chalenge principall and Chalenge peremptorie finding peremptorie to be vsed onely in maters criminall and barely without cause alledged more then the prisoners owne phantasie Stawnf pl. cor fol. 124. but principall in ciuill actions for the most part and with naming of some such cause of exception as being found true the lawe alloweth without farder scanning For example if either partie say that one of the Iurors is the sonne brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farder examination of the parties credit And how farre this chalenge vpon kinred reacheth you haue a notable example in Plowden casu Vernon against Maners fol. 425. Also in the plee of the death of a man
nat br fol. 138. To this is answerable in some sort actio depositi in the ciuile lawe And hee taketh his action of ditinew that intendeth to recouer the thing deliuered and not the dammages sustained by the detinew Kitchin fol. 176. See the new booke of Entries verbo Detinew Devastaverunt bona testatoris is a writ lying against executors for paying Legacies and debts without specialties to the preiudice of the creditours that haue specialties before the debt vpon the said specialties be due For in this case the executors are as lyable to action as if they had wasted the goods of the testatourriotously or without cause New termes of lawe Devest devestire is contrarie to Invest For as Investire signifieth possessionem tradere So devestire is possessionem auferrâ— feud libro primo cap. 7. Devise aliâs divise commeth of the French diviser i. disperâ—iri discernere separare distinguere as diviser par ci par la distribuere This word is properly attributed in our common lawe to him that bequeathes his goods by his last 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 thinke it better written divise theÌ„ deuise howbeit it were not absurd to deriue this word from the French deuiser i. sermocinari fabulari consilium conferre For in this sence it agreeth in some sort with the nature of the act of the testator and with the Etymologie of a testament set downe by Iustinian who saith that testamentum is quaesi mentis testatio titulo de Testa ordinan in Institut and testatio mentis cannot be so well as by talke and conference with our wise and skilfull friends Devoires of Cales anno 2. R. 2. Stat. 1. cap. 3. anno 5. eiusdem stat 2. cap. 2. were the customes due to the king for merchandize brought to or caried out from Caleis when our Staple was there The word is French signifying as much as officium dutie Devorce aliâs divorce divortium is with our common Lawyers accompted that separation betweene two de facto maried together which is à vinculo matrimonii non solùm à mensa thoro And therefore the woman so divorced receiueth al againe that shee brought with her This is not but onely vpon a nullitie of the mariage through some essentiall impediment as consanguinitie or affinity within the degrees forbidden precontract impotencie or such like See the new Tearmes of lawe Diem clausit extremum is a writ that lyeth for the heyre of him that holdeth land of the Crowne either by Knights seruice or in soccage and dyeth be he vnder or at full age directed to the escheatour of the county for inquirie to bee made by him of what estate the partie deceased was seised and who is next heyre vnto him and of what valew the land is The forme thereof and other circumstances you may learne in Fitzh nat br fol. 251. Dyer was a learned Lawyer and Lord chiefe Iustice of the Common plees in the dayes of Queene Elizabeth who writ a booke of great accompt called his Commentaries or Reports Dies datus is a respight giuen to the tenent or defendant before the court Brooke titulo Continuance Dicker of lether is a quantitie consisting of tenne hides The name may seeme to come from the Greeke decas which is also a Latine word signifying tenne in number Dignitie ecclesiasticall dignitas ecclesiastica is mentioned in the statute anno 26. H. 8. cap. 3. and is by the Canonists defined to be administratio cum iurisdictione potestate aliqua coniuncta Glos in cap. 1. de consuet iu sexto whereof you may reade diuers examples in Duarenus de sacris eccles minist benefic lib. 2. cap. 6. Dioces dioecesis is a Greeke word compounded of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and signifieth with vs the circuit of euery Bishops iurisdiction For this realme hath two sorts of diuisions one into Shyres or Counties in respect of temporall policie another into Diocesses in respect of iurisdictioÌ„ ecclesiasticall Dieta rationabilis is in Bracton vsed for a reasonable daies iourney lib. 3. parte 2. chap. 16. It hath in the ciuile law diuers other significations not needfull heere to be set downe v. vocab vtirusque iuris Dimy haque See Haque Disalt signifieth as much as to disable Litleton in his chapter of Discontinance Disceite See deceite and deceptione See the new booke of Entry verbo Disceit Discent Discensus in the french Descente signifieth in the common law an order or means whereby lands or tenements are deriued vnto any man from his auncestours as to make his discent from his Auncestours Old nat br fol. 101. is to shew how and by what degrees the land in question cam to him from his auncestours as first from his great grandfather to his grandfather from his grandfather to his father and so to him Or in such other like sort This discent is either lineall or collaterall Lineall discent is conueied downeward in a right line from the Grandfather to the father and from the father to the sonne and from the sonne to the Nephew c. Collaterall discent is springing out of the side of the whole blood as Grandfathers brother fathers brother c. See the new Tearmes of law Disclamer Disclamium is a plee containing an expresse deniall or refusall as if the tenent siew a replevin vpon a distresse taken by the lord and the lord avow the taking of the distresse saying that he houldeth of him as of his Lord and that he distreined for rent not paid or seruice not perfourmed then the tenent denying himselfe to hould of such Lord is said to disclaime and the Lord prouing the tenent to hould of him the tenant leeseth his land Tearmes of law Of this see Skene de verb signif verbo Disclamation Also if a man deny himselfe to be of the blood or kindred of another in his plee he is said to disclaime his blood Eitzh nat br fol 197. G. See Brooke titulo Disclaimer If a man arraigned of felonie do disclaime goods being cleared he leeseth them Stawnf pl. cor fol. 186. See the new booke of Entries verbo Disclamer Discontinuance Discontinuatio commeth of the french Discontinuer i. cessare intermittere and signifieth in the common law nothing els but an interruption or breaking of as discontinuance of possession or discontinuance of proces And the large discourse that Litleton hath about this Discontinuance is rather to shew cases wherein it is or wherein it is not then to define the thing The effect of discontinuance of possession is this that a man may not enter vpon his owne land or tenement alienated whatsoeuer his right be vnto it of his owne selfe or by his owne authority but must bring his writ and seeke to recouer possession by law Examples you may haue store in his Terms of law verbo Discontinuance And in Litleton
deliberandas quandoque ad vnicam vel duas non plures And by this meanes the Iustices of both benches being iustly to be accounted the fittest of all others and others their assistants as also the Sergeants at law may be imployed in these affaires who as grauest in yeares so are they ripest in iudgement and therefore likest to be voide of prociality for being called to this dignity they giue ouer practise anno 8. R. 2. cap. 3. but this alway to be remembred that neither Iustice of either bench nor any other may be Iustice of Assise in his owne country anno 8. Rich. 2. cap. 2. anno 33. H. 8. cap. 24. lastly note that in these daies though the selfe same men dispatch busines of so diuers natures and all at one time which were wont to be performed by diuers and at seuerall times yet they doe it by seuerall commissions Cromptons Iurisdictions fo 210. For those who be in one word called Iustices of circuit and twice euery yeare passe by two and two through all Englād haue one cōmission to take Assises another to deliuer Goales another of oyer and terminer That Iustices of Assise and Iustices in Eyre did aunciently differ it appeareth an 27. Ed. 3. cap. 5. and that Iustices of Assise Iustices of goale deliuery were diuerse it is euident by anno 4. Fd. 3. cap. 3. The oath taken by Iustices of assise is all one with the oath taken by the Iustices of the kings bench Ould abridgement of statutes titulo Sacramentum Iusticiariorum See Oath Iustices of oyer and terminer Iusticiarii ad audiendum terminandum were Iustices deputed vpon some especiall or extraordinary occasion to heare and determine some or more causes Fitzherberd in his natura beruium saith that the commission d' oyer and terminer is directed to certaine persons vpon any great assembly insurrection hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely wayed it is prouided by the statute anno 2. Ed. 3. cap. 2. that no such commission ought to be graunted but that they shal be dispatcheo before the Iustices of the one bench or other or Iustices errāts except for horrible trespasses that by the especial fauour of the King The forme of this cōmission see in Fitzh natura breu fol. 110. Iustices in Eyre Iusticiarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis iteneribus prouerbially spoken the vse of these in auncient time was to send them with commission into divers counties to heate such causes especially as were termed the plees of the crowne and therefore I must imagine they were so sent abroad for the ease of the subiects who must els haue beene hurried to the kings bench if the cause were too high for the countie court They differed from the Iustices of oyer and terminer because they as is aboue said were sent vpon some one or fewe speciall cases and to one place whereas the Iustices in Eyre were sent through the prouinces and counties of the land with more Indefinite and generall commission as appeareth by Bracton lib. 3. cap. 11. 12. 13. and Britton cap. 2. And againe they seeme to differ in this because the Iustices of oyer and terminer as it is before said were sent vncertainly vpon any vproare or other occasion in the country but these in Eyre as M. Gwin setteth downe in the preface to his reading were sent but euery seuen yeare once with whome Horn in his myrrour of Iustices seemeth to agree lib. 2. cap. queux poient estre actours c. and lib. 2. c. des peches criminels c. al suyte de Roy c. and lib. 3. c. de Iustices in Eyre where he also declareth 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 fo 313. b. hath of them these wordes Iusticiarij itinerantes constituti per Henricum secundum i. qui diuisit regnum suumin sex partes per quarum singulas tres Iusticiarios itinerantes constituit quorum nomina haec sunt c. Iustices of Gaol deliuery Iusticiarii ad Gaolas deliberandas are such as are sent with commission to heare and determine all causes apperteining to such as for any offence are cast into the Gaol part of whose authoritie is to punish such as let to mainprise those prisoners that by lawe be not bayleable by the statute de finibus cap. 3. Fitzh nat br f. 251. I. These by likelyhoode in auncient time were sent to countries vpon this seuerall occasion But afterward Iustices of Assise were likewise authorised to this anno 4. Ed. 3. cap. 3. Their oath is all one with other of the kings Iustices of either bench Ould Abridgement of statutes titulo Sacramentum Iusticiariorum See Othe Iustices of labourers were Iustices appointed in those times to redresse the frowardnesse of labouring men that would either be idle or haue vnreasonable wages See anno 21. Eduardi 3. cap. primo anno 25. eiusd cap. 8. anno 31. eiusdem cap. 6. Iustices of Nisi prius are all one now a daies with Iustices of Assises for it is a common Adiournment of a cause in the common plees to put it off to such a day Nisi prius Iusticiarii venerint ad eas partes ad capiendas Assisas and vpon this clause of Adiournment they are called Iustices of Nisi prius as well as Iustices of Assises by reason of the writ or action that they haue to deale in their commission you may see in Cromptons Iurisdsctious fol. 204. yet M. Crompton maketh this difference betweene them because Iustices of Assise haue power to giue iudgement in a cause but Iustices of Nisi prius only to take the verdict But in the nature of both there functions this seemeth to be the greatest difference because Iustices of Nisi prius haue to deale in causes personall as well as reall wheras Iustices of Assise in strict acception deale only with the possessory writs called Assises Iustices of trial bastō alias of trayl baston were a kind of Iustices appointed by King Edward the first vpon occasion of great disorder growne in the Realme during his absence in the Scottishe and French warres they are called in the ould nat bre f. 52. Iustices of triall Baston but by Holynshed and Stow in Edw. pri of Traile baston of trailing or drawing the staffe as Holinshed saith Their office was to make inquisition through the Realme by the verdict of substantiall Iuries vpon all officers as Mayors Shyreeues Bailifes escheatours others touching extortion briberies and other such greeuances as intrusions into other mens lands and Barratours that vsed to take mony for beating of men and also of them whom they did beate by meanes of which inquisitions many were punished by death many by ransome and so the rest flying 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 to foure or two men by the lord Iustice in eyre of the Forest vntill a certaine day For there he is alwayes accounted by the lawe to be in their ward and custody for the time And they may if they will keepe 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 lawe to be at large or at his owne libertie Thus farre M. Manwood The myrror of Iustices maketh a difference also betweene pledges and mainpernours saying that pledges are more generall that mainpernours are bodie for bodie lib. 2. cap. de trespasse venial and lib. 3. cap. des pledges mainpernours When mainprises may be granted and when not see Cromptons Iustice of peace fol. 136. c. vsque 141. and Lamberd Eiren. lib. 3. cap. 2. pag. 336. 337. 338. 339. 340. See also Britton fol. 73. a. cap. Des pledges mainpernours the author of the Myrror of Iustices saith that pledges bee those that bayle or redeeme 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 reall and mixt actions and mainpernours to personall Maintenance manutentio vel manutenentia is a French word and signifieth an vpholding of a cause or person metaphorically drawne from the succouring of a young child that learneth to goe by ones hand In our common lawe it is vsed in the euill part for him that secondeth a cause depending in suite betweene others either by lending of mony or making friends for either partie toward his help anno 32. Henr. 8. cap. 9. And when a mans act in this kinde is by lawe accounted Maintenance and when not see Broke titulo Maintenance and Kitchin fol. 202. seqq and Fitz. nat br fol. 172. and Cromptons Iurisdict fol. 38. The writ that lyeth against a man for this offence is likewise called Maintenance Termes of the lawe verb. Maintenance Speciall maintenance Kitchin fol. 204. seemeth to bee maintenance most properly so tearmed Of this see Cromptons Iustice of peace fol. 155. b. and the new booke of Entries verbo Maintenance Maintenance vid. Nouos terminos Iuris Make facere signifieth in the common lawe to performe or execute as to make his lawe is to performe that lawe which he hath formerly bound himselfe vnto that is to cleare himselfe of an action commenced against him by his oath and the oathes of his neighbours Old nat br fol. 161. Kitchin fol. 192. which lawe seemeth to be borowed of the Feudists who call these men that come to sweare for another in this case Sacramentales Of whom thus saith Hotoman in verbis foundal Sacramentales a sacramento i. iuramento diccbantur â—i qui quamuis res de qua ambigebatur testes non fuissent tamen ex eius cuius res agebatur animi sententia in eadem quae ille verba iurabant illius vide licet probitate innocentia confisi Nam tum demum adhibebantur cùm testes nulli extarent See the rest The formall words vsed by him that maketh his lawe are commonly these Heare O ye Iustices that I doe not owe this summe of money demaunded neither all nor any part thereof in maner and forme declared so helpe me God and the contents of this booke To make seruices or custome is nothing else but to performe them Old nat br fol. 14. To make oath is to take an oath Maletent in the Statute called the Confirmation of the liberties of c. anno 29. Ed. prim cap. 7. is interpreteted to be a tolle of 40. shillings for euery sacke of wooll Stow in his Annals calleth it a Maletot pag. 461 See also the Statute de tallagio non concedendo an 34. eius stat 5. Malin See Marle Manbote signifieth a pecuniary compensation for killing of a man Lambard in his exposition of Saxon words verbo Aestimatio Of which reade Roger Houeden also in parte poster suorum annal fol. 344. a. b. Mandamus is a writ that lyeth after the yere and day wheras in the meane time the writ called diem clausit extremum hath not bene sent out to the Excheatour for the same purpose for the which it should formerly haue bene sent forth Fitzh nat br fol. 253. B. See Diem clausit extremum Mandamus is also a charge to the shyreeue to take into the kings hands all the lands and tenements of the kings widowe that against her oath formerly giuen marieth without the kings consent Register fol. 295. b. See Widow Mandatum is a commaundment iudiciall of the king or his Iustices to haue any thing done for the dispatch of iustice wherof you shall see diuersity in the table of the Register iudiciall verbo Mandatum Maner Manerium seemeth to come of the French manoir i. domicilium habitatio M. Skene de verbo significatione verbo Manerium saith it is called Manerium quasi Manurium because it is laboured with handy worke by the Lord himselfe It signifieth in our common law a rule or gouernmeÌ„t which a man hath ouer such as hould land within his fee. Touching the originall of these maners it seemeth that in the beginning there was a certaine compasse or circunt of ground graunted by the king vnto some man of worth as a Baron or such like for him and his heires to dwell vpon and to exercise some iurisdiction more or lesse within that compasse as he thought good to graunt performing him such seruices and paying such yearely rent for the same as he by his graunt required and that afterward this great man parcelled his land to other meaner men inioyning them againe such seruices and rents as he thought good and by that meanes as he became tenent to the king so the inferiours became tenents vnto him See Perkins Reseruations 670. and Andrew Horns booke intituled the mirrour of Iustices li. 1. ca. du Roy Alfred See the definition of a Maner Fulb. fol. 18. And this course of benefiting or rewarding their nobles for good seruice haue our kings borowed from the Emperours of Rome or the Lombard kings after they had setled themselues in Italy as may well appeare by Antonius Contius in methodo feudorum c. i. de origine libris Feudorum And I finde that according to this our custome all lands houlden in fee throughout Fraunce are diuided into Fiefz and arrierfiefz whereof the former are such as are immediatly graunted by the king the secoÌ„d such as the kings feudataries doe againe graunt to others Gregorii Syntagm lib. 6. an 5. nu 3. But the inconstancy of mans estate and the mutability of time hath brought to passe that those great men or their posterity haue alienated these Mansions and lands so giuen them by their Prince and others that had none haue by ther welth
columna 1. whereupon because the foreyner neede not be tryed in that Court the record and cause is remooued to the common plees c. See of this Fitz. nat br fol. 6. E. Vser de action is the persiewing or bringing of an action which in what place and countie it ought to be See Brooke titulo Lieu Countie fol. 64. Vse vsus is in the originall signification plaine enough but it hath a proper application in our common lawe and that is the profit or benefit of lands or tenements And out of M. Wests first parte of his simbol lib. pri sect 48. 49. 50. 51. and 52. I gather shortly thus much for this purpose Euery deede in writing hath to be considered the substance and the adiuncts Touching the substance a deede doth consist of two principall parts namely the premisses and the consequents The premisses is the former parte thereof and is commonly saide to be all that which preceedeth the Habendum or limitation of the estate which be the persons contracting and the things contracted The consequent is that which foloweth the premisses that is the Habendum In which are two limitations the one of the estate or propertie that the party passiue shall receiue by the deede the other of the vse which is to expresse in the said Habendum to or for what vse and benefite he shall haue the same estate And of the limitation of those vses you may read many presidents set downe by the same author in his second booke of his saide first part sectio 308. and so forth to 327. These vses were inuented vpon the statute called West 3. or Quia emptores terrarum before the which statute no vses were knowne Perkins Devises 528. And because mens wits had in time devised many deceits by the setling of the possession in one man and the vse in another there was a statute made anno 27. H. 8. ca. 1. wherby it was inacted that the vse and possesssion of lands and possessions should alway stand vnited New expositour of lawe termes verbo Vse v. Coke lib. 1. Chudleise case fol. 121. seqq Vsher Ostiarius commeth of the French Huissier i. Accensus apparitor Ianitor It signifieth with vs first an officer in the Eschequer of which sort there be foure ordinarie vshers that attend the cheife officers and Barons of the court at Westminster and Iuries Shyreeues and all other accoumptants at the pleasure of the court Therbe also Vshers in the Kings house as of the priuy chāber c. Vtas Octavae is the eight day following any terme or feast as the vtas of Sainct Michaell the vtas of Sainct Hilary the vtas of Sainct Martine of Sainct Iohn Baptist of the Trinitie c. as you may reade anno 51. H. 3. stat concerning generall daies in the Benche And any day betweene the feast and the eighth day is saide to be within the vtas The vse of this is in the returne of writs as appeareth by the same statute Vtfangthef is an auncient Royaltie graunted to a Lord of a maner by the King which giueth him the punishment of a theefe dwelling out of his liberty and hauing committed theft without the same if he be taken within his fee. Bracton lib. 2. cap. 24. who in his third booke tract 2 ca. 35. seemeth rather to interpret the word then to expresse the effect and saith thus Vtfangthef dicitur extraneus latro veniens aliunde de terra aliena qui captus fuit in terra insius qui tales habet libertates It seemeth to be compounded of these three words Vt fang thef which in our moderne English be oute take or taken Theefe Of this Fleta hath these words vtfangenthef dicitur latro extraneus veniens a liunde de terra aliena qui captus fuerie in terra ipsius qui tales habet libertates Sed non sequitur quod possit ille hominem suum proprium extra libertatem suam captum reducere vsque in libertatem ibi eum iudicare reducere tamen poterit indicatum iudicium in proprio patibulo exequiratione libertatis commodum tamen non video Debet enim quilibet iuri subiacere vbi deliquit proprios tamen latrones alienos iudicare possunt dum tamen infra libertatem fuerint capti c. Vtlaghe significat bannitum extra legem Fleta li. 1. cap. 47. See Vtlawrie Vtlagato capiendo quando vtlagatur in vno comitatu postea fugit in alium is a writ the nature whereof is sufficiently expressed in the words set downe for the name thereof See the Register originall fo 133. Vtlawrie vtlagaria aliâs vtlagatio is a punishment for such as being called into lawe and lawfully sought doe comtēptuously refuse to appeare And as Bracton saith li. 3. tract 2. ca. 11. He that is siewed must be sought and called at 5. counties a moneth being betweene euery countie to answer to the lawe And if he come not within that time pro exlege tenebitur cum principi non obediat nec legi ex tunc vtlagabitur that is as the author of the termes of lawe saith he shal be pronounced by the coroner to be out of the Kings protection and depriued of the benefit of the lawe The effect of this is diuers as the same Author saith for if he be outlawed in an action personall he meaneth at the suite of another in a ciuile cause he shall forfeit all his goods and cattells to the King if vpon felonie then he shall forfeit all his lands and tenements that he hath in fee simple or for terme of his life and his goods and cattles Bracton vbi supra nu 5. saith that such as be out-lawed vpon felonie ex tunc gerunt caput lupinum ita quod sine iudiciali inquisitiene ritè pereant secum suum iudicium portent meritò sine lege pereunt qui secundum legem viuere recusarunt Et haec ita si cum capiendi fuerint fugiant vel se defendant si autem vivi capti fuerint vel se reddiderint vita illorum mors erit in manu Domini Regis See Horns mirrour of Iustices lib. 3. cap. des fautes punishables Bracton saith in the place aboue specified with whome also Fleta agreeth lib. 1. cap. 27. that a Minor or a woman cannot be outlawed But take his owne words Minor verò qui infra aetatem 12. annorum fuerit vtlagarinon potest nec extra legem poni quia ante talem aetatem non est sub lege aliqua nec in Decenna non magis quà m foemina quae vtlagari non potest quia ipsa non est sub lege i. Inlaugh Anglicè sc in frāco plegio sive decenna sicut masculus 12. annorum vlteriùs Et ideo non potest vtlagari Waiviari tamen bene potest pro derelicta haberi cum pro felonia aliqua fugam fecerit siue ceperit Est enim waiuium quod nullus aduocat nec