termed the Deane of the Arches or the officiall of the Arches court Deane of the Arches because with this officialtie is commonly ioyned a peculiar iurisdiction of thirteene parishes in London tearmed a Deantie being exempted from the authoritie of the Bishop of London and belonging to the Archbishop of Canterburie of which the parish of Bow is one the chiefe because the Court is there kept Some others say that he was first called Deane of the arches because the officiall to the Archbishop being many times employed abroad in ambassages for the king and realme the Deane of the Arches was his substitute in his court and by that meanes the names became confounded The iurisdiction of this Iudge is ordinarie and extendeth it selfe through the whole Prouince of Canterburie So that vpon any appeale made he foorthwith and without any farder examinatiō of the cause sendeth out his citation to the party appealed and his inhibition to the Iudge from whome the appeale is made Of this he that will may reade more in the booke intituled De antiquitate Eccelesiae Britānicaehistoria Arma moluta seeme to be sharpe weapons that doe cut not blunt that doe onely breake or bruise Bracton li. 3. tract 2. ca. 23. Stawnf pl. cor fo 78. 79. whereof Bracton hath these words arma moluta plagam faciunt sicut gladius bisacuta huiusmodi ligna verò lapides brusuras 〈…〉 bes ictus qui iudicari non possunt ad plagam ad hoc vt inde veniri possit ad duellum Armour arma in the vnderstanding of our common lawe is extended to any thing that a man in his anger or furie taketh into his hand to cast at or strike another Cromptons Iustice of peace fo 65. a. So armorum appellatio non vtique scuta gladios galeas significat sed fustes lapides l. 42. Π. de verbo significatione Array arraia aliàs arraiamentum commeth of the French array i. ordo which is an old word out of vse or it may be well deduced from raye i. linea It signifieth in our commō lawe the ranking or setting forth of a iurie or enquest of men impaneled vpō a cause a. 18. H. 6 c. 14. Thence is the verb to array a panel owld nat br fo 157. that is to set forth one by another the men empaneled The array shal be quashed owld nat br fo 157. By statute every array in assise ought to be made foure daies before Broke titulo Panel nu 10. to chalenge the array Kitchin fo 92. Arreyers seemeth to be vsed in the statut anno 12. Rich. 2. ca. 6. for such officers as had care of the souldiers armour to see them duly appointed in ther kindes Arraine arraniare commeth of the French arranger i. astituere ordinare that is to set a thing in order or in his place and the same signification it hath in our common law For example he is saide to arraine a writ of novel disseisin in a countie that fitteth it for triall before the Iustices of that circuit owld nat br fo 109. Litleton fo 78. vseth the same word in the same sence viz. the lease arraineth an assise of nouel disseisin Also a prisoner is said to be arrained where he is indighted and brought forth to his triall Arrained within the verge vpon murder Stawnf pl. cor fo 150. The course of this arrainment you may read in S. Thomas Smith de repub Anglo li. 2. ca. 23. Arrearages arreragia commeth of the French arrierages 1. reliqua It signifieth the remaine of an account or a summe of mony remaining in the hands of an accoūtant It is vsed sometime more generally for any mony vnpaide at the due time as arrearages of rent That this word is borowed from France it appeareth by Tiraquel de vtroque retractu tomo 3. pa. 32. nu 10. Arrest arestum commeth of the French arrester i. retinere retare subsistere or rather it is a French word in it selfe signifying a setling stop or stay and is metaphorically vsed for a decree or determinatiō of a cause debated or disputed to and fro as arrest du Senat. i. placitum curiae In our comon law it is taken most of all for a stay or stoppe as a man apprehended for debt c. is said to be arrested To pleade in arrest of iudgment is to shew cause why iudgment should be stayed though the verdict of the 12. be passed To plead in arrest of taking the enquest vpon the former issue is to shew cause why an enquest should not be taken c. Broke tit Repleder Take this of learned M. Lambard in his eirenarch li. 2. ca. 2. pa. 94. Budae saith he in his greeke commentaries is of opinion that the French word arrest which with them signifieth a decree or iudgment of court tooke beginning of the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. placitum and as we might say the pleasure and will of a court And albeit it were not out of the way to think that it is called an arrest because it stayeth or arresteth the partie yet I beleeue rather that we receiued the same from the Normane lawes because we vse it in the same sence with thē For commonly with vs au arrest is taken for the execution of the commaundement of some court or of some officer in iustice But howsoeuer the name began an arrest is a certaine restraint of a mans person depriuing him of his owne will and libertie and binding it to become obedient to the will of the lawe And it may be called the beginning of imprisonment Precepts writs of the higher courts of lawe do vse to expresse it by two sundry words as capias and attachies which signifie to take or catch hold of a man But this our precept noteth it by the words duci facias that is cause him to be conueyed c. For that the officer hath after a sort taken him before in that he commeth vnto him and requireth him to go to some Iustice of the peace Thus farre M. Lamberd And by like this word is spred farder then France For Gaile a Germaine writer sheweth by his Tractate de arrestis imperii that it is vsed also in the imperiall territories in the same significatiō c. 1. n. 1. Arrestandis bonis ne dissipentur is a writ which lyeth for him whose catell or goods are taken by another that during the controuersie doth or is like to make them away and will be hardly able to make satisfaction for thē afterward Reg. orig fol. 126. b. Arrestando ipsum qui pecuniam recepit ad proficiscendum in obsequium Regis c. is a writ that lieth for the apprehension of him that hath taken prest money towards the kings warres and lieth hidden when he should goe Register orig 24. b. Arresto facto super bonis mercatorum alienigenorum c. is a writ that lyeth for a denizen against the goods of strangers
his assistants in causes of iustice betweene the king and his subiects touching causes appertaining to the Exchequer The Lord chiefe Baron at this day is the chiefe Iudge of the court and in matter of lawe information and plea answereth the barre and giueth order for iudgment thereuppon He alone in the terme time doth sit vpon Nisi prius that come out of the Kings Remembrancers office or out of the office of the clerke of of the please which cannot be dispatched in the mornings for want of time He taketh recognisances for the Kings debts for appearances and obseruing of orders He taketh the presentation of all the officers in court vnder himselfe and of the Mayor of London and seeth the Kings Remembrancer to giue them their oathes He taketh the declaration of certaine receiuers accompts of the lands of the late augmentation made before him by the Auditors of the shires He giueth the two parcel makers places by vertue of his office The second Baron in the absence of the Lord chiefe baron answereth the barre in matters aforesaid he also taketh recognisances for the kings debts apparences and obseruing of orders He giueth yearely the oath to the late Maior and escheatour of London for the true accompt of the profits of his office He taketh a declaration of certaine receyuers accompts He also examineth the letters and summes of such Shyreeues foraine accompts as also the accompts of Escheatours and Collectours of Subsidies and Fifteens as are brought vnto him by the auditors of the Court. The third Baron in the absēce of the other two answereth the barre in matters aforesaide he also taketh recognisances as aforesaide He giueth yerely the oath of the late Mayor and gawger of London for his true accōpting He also taketh a declaration of certaine receiuers accompts and examineth the leters and sūmes of such of the former accountants as are brought vnto him The fourth barons is alwaies a coursetour of the court and hath bene chosen of some one of the clerks in the remembrancers offices or of the clerke of the pipes office He at the daies of prefixion taketh oth of al high shyreeus and their vndershyreeues and of all escheatours baylifs and other accountāts for their true accounting He taketh the oath of al collectours controllers surueyours and serchers of the custome houses that they haue made true entrances in their bookes He apposeth all shyreeues vyon their sūmons of the pipe in open court He informeth the rest of the Barons of the course of the court in any mater that concerneth the kings prerogatiue He likewise as the other Barons taketh the declaration of certaine receiuers accompts and examineth the leters and summes of such of the former accountants as are brought vnto him These barons of the exchequer areauncient officers for I finde them named westm 2. ca. 11. anno 13. Ed. 1. and they be called barons because barons of the realme were wont to be employed in that office Fleta li. 2. ca. 24. S. Thomas Smith saith of them that their office is to looke to the accompts of the Prince and to that end they haue auditors vnder them as also to descide all causes appertaining to the Kings profits comming into the exchequer by any meanes This is in part also proued by the statut anno 20. Ed. 3. ca. 2. anno 27. eiusdem stat 2. ca. 18. anno 5. R. 2. stat 1. ca. 9. 12. anno 14. eiusd ca. 1◠And hereupon they be of late men learned in the common lawe of the realme wheras in auncient times they were others viz. maiores discretiores in regno siue de clero essent siue de curea Ockam in his lucubrations de fisci regij ratione Horn in his mirrour of Iustices saieth that barons were wont to be two and they Knights ca. De la place del Eschequer Then be there in this signification Barons of the Cinque portes anno 31. Ed. 3. stat 2. ca. 2. et anno 33. H 8. ca. 10. which are two of euery of the seuen towns Hastings Winchelsey Ry Rumney Hithe Douer Sandwiche that haue places in the lower house of Parlament Cromptons iurisd fo 28. Baron in the the third signification is vsed for the husband in relation to his wife which is so ordinary in all our lawe writers that wright in french as it were superfluous to confirme it by any one Baronet I reade this word anno 13. R. 2. stat 2. ca. 1. but I hould it falsely printed for Baneret or els to signifie all one with it Baronye baronia baronagium is the fee of a baron In which accompt are not only the fees of temporall Barons but of Bishops also who haue two respects one as they are spirituall men without possessions as was the tribe of Levy among the Israelites being susteined by the only first frutes and tenthes of the other tribes Iosue ca. 13. versue 14. The other respect they haue groweth from the bountie of our english Kings whereby they haue baronies at the least are thereby Barons or Lords of the Parlament This baronie as Bracton saith li. 2. ca. 34. is a right indiuisible and therefore if an inheritance be to be divided among coparceners though some capitall messuages may be divided yet si capitale messuagium sit caput Comitatus vel caput Baroniae he saith they may not be parcelled The reason is ne sic caput per plures particul as diuidatur plura iura comitatuum baroniarum deveniant ad nihilum per quod deficiat Regnum quod ex Comitatibus Baronys dicitur esse constitutum Barre barra commeth of the French barre or barriere i. repagalum obex vectis It is vsed in our common law for a peremptory exception against a demaūd or plaint and is by the author of the Termes of law defined to be a plee brought by the defendant in an action that destroieth the action of the plaintiffe for euer It is divided into a barre to common intent and a barre speciall Abarte to a common intendment is an ordinarie or generall barre that ordinarily disableth the declaration or plee of the plaintiffe a barre speciall is that which is more then ordinarie falleth out in the case in hand or question vpon some speciall circumstance of the fact Plowden casu Colthirst fo 26. a. b. For exāple an executor being sued for his testators debt pleadeth that he had no goods left in his hands at the day when the writ was purchased or taken out against him This is a good barre to common intendment or prima sacie But yet the case may so fall out that more goods might come to his hands sithence that time which if the plaintiffe can shew by way of replication then excep the haue a more especiall plee or barre to alleadge he is to be condemned in the action See also Plowden in the case aofre named fo 28. a. b. and Brooke titulo Barre nu
barrs laide crosse waies one ouer another so that a man may see through them in and out And it is to be thought that iudgement seates in ould time were compassed in with those barres being founde most necessary to defend the iudges and other officers from the presse of the multitude and and yet neuer the more to hinder any mans view that had a desire or cause to obserue what was done Cancellarius at the first by the opinion of Lupanus signified the registers or actuaries in court grapharios sc qui conscribendis excipiendis iudicum actis dant operam Pithaeus saith they were such as we now call Secretarios But this name in our daies is greatly advanced and not onely in other kingdomes but in ours also is giuen to him that is the cheife man for mater of iustice in priuate causes especially next vnto the prince For whereas all other Iustices in our common wealth are tied to the lawe and may not swerue from it in iudgement the Chanceler hath in this the kings absolute power to moderate and temper the written lawe and subiecteth himselfe onely to the lawe of nature and conscience ordering all things iuxta aequum bonum And therefore Stawnford in his Prerogatiue ca. 20. fo 65. saith that the Chanceler hath two powers one absolute the other ordinary meaning that though by his ordinary power in some cases he must obserue the forme of proceeding as other ordinarie Iudges yet that in his absolute power he is not limited by the written law but by conscience and equitie according to the circumstances of the mater in question But how long he hath had this power some would doubt For Polidorus Virgilius lib. 9. historiae Anglica hath these words of William the Conqueror Instituit item Scribarum Collegium qui diplomata scriberent eius Collegii magistrum vocabat Cancellarium qui paulatim supremus factus est Magistratus qualis hodie habetur And see Fleta lib. 2. cap. 13. This high Officer seemeth to be derived from Fraunce vnto vs as many other Officers and vsages be For of this thus writeth Boërius in his Tractate De authoritat Magni Concilii num 8. Consistorio Franciae post Principem Dominus Franciae Cancellarius cui velut excelsum iudicii tribunal hoc in regno sub Principe tamen nostro moderanti sigillumque authenticum quo sine publicis patētibus regiis literis nulla fides adhibetur liberam administrationem habenti omnes singuli regii Iusticiarii quocunque nomine nuncupentur ac quavis authoritate fungantur e◠inferiores sunt Et meritò Succedit enim in quaestoris locum c. He that beareth this magistracie is called the Chanceler of England anno 7. R. 2. cap. 14. and by the Statute anno 5. Eliz. cap. 18. the Lord Chanceler and Keeper haue all one power Note farder that diuers inferior Officers are called Chancelers as Chanceler of the Exchequer an 25. H. 8. cap. 16. whose office hath bene thought by many to haue bene created for the qualifying of extremities in the Exchequer He sitteth in the court and in the Exchequer chamber and with the rest of the court ordereth things to the kings best benefit he is alwaies in cōmission with the Lord Treasurer for the letting of the lands that came to the crowne by the dissolution of Abbeyes and hath by priuie seale from the king power with others to compound for forfeitures of bonds and forfeitures vpon penall statutes He hath also much to doe in the reuenue come by the dissolution and first fruites as appeareth by the acts of vniting them to the Crowne Chanceler of the Duchie of Lācaster anno 3. Ed 6. cap. 1. an 5. eiusdem cap. 26. whose office is principall in that court to iudge and determine all controuersies betweene the king and his tenents of the Duchie land and otherwise to direct all the kings affaires belonging to that court Chanceler of the Order 1. of the Garter Stowes annals pag. 706. Chanceler of the Vniversity anno 9. H. 5. cap. 8. anno 2. H. 6. cap. 8. Chaunceler of the court of Augmentations anno 27. H. 8. cap. 27. anno 32. eiusdem cap. 20. anno 33. eiusd cap. 39. Chaunceler of the first fruites anno 32. H. 8. cap. 45. Chaunceler of courts anno 32. H. 8. cap. 28. Chaunceler of the Diocesse anno 32. H. 8. cap. 15. Chancerie cancellaria is the court of equitie and conscience moderating the rigour of other courtes that are more streightly tyed to the leter of the lawe whereof the Lord Chancelor of England is the chiefe Iudge Cromptons iurisd fol. 41. or else the Lord Keeper of the great Seale sithence the statute 5. Eliz. cap. 18. It taketh the name from the Chaunceler as M. Camden noteth in his Britannia pag. 114. in meo The Officers belonging to this court are as is abouesaid the Lord Chaunceler or Keeper of the broade Seale twelue Masters of the Chancerie whereof the Master of the rolles is one and the chiefe the sixe Clerkes the Examiners a Sergeant at armes the Marshall and cryer of the court the clerks of the courts otherwise called Courseters the clerkes of the petie bagge the clerke of the crowne the clerk of the hanaper the protonotary or register the controller of the hanaper the clerk of appeales the sealer the ch 〈…〉 axe the clerke of the facult 〈…〉 the clerk of the patents clerk of the starre chamber clerk of presentations clerk of dismissions clerk of licenses to alienate clerkes of the enrolments clerk of the protections clerk of the court of wards clerk of the sub penaes which see described in their places Chapell capella commeth of the French chapelle i. aedicula and is of 2. sorts either adioining to a Church as a parcel of the same which men of worth doe build vt ibidem familiaria sepulchra sibi constituant to the vse of the Romans l. 5. Π. de religio or els separate from the mother church where the parish is wide and is commonly called a chappell of case because it is builded for the case of one or more parishioners that dwell ouer farre from the Church and is serued by some inferiour curate prouided at the charge of the rector or of them that haue benifite by it as the composition or custome is Whence the word is deriued the Canonists differ in opinion Rebuffus de pacif posses nu 104. saying that some take it à capiendo laicot others à capra because it representeth those cotages which men were wont to couer ouer with goates skins Petrus Gregorius in suo syntagma te li. 15. ca. 29. hath these words of this thing Capellanus à capellania capella cui praeficitur nominatur item ab officio seu beneficio capellania Capella aliquibus dicta quasi capiens 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu populos vel capiens laudem vel secundùm praepositum a cappa Diui Martint aut a
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
enabled to hould certaine plees of land within their owne precincts This word Gildes or Guildes is so vsed anno 37. Ed. 3. ca. 51. anno 15. R. 2. cap. 5. And Gildhalda Teutonicorum is vsed for the fraternity of easterling merchaunts in London called the stilyard anno 22. H. 8. cap. octauo Ginger Zinziber is a spice well knowne being the roote of a plant that groweth in hot countries as Spaine Barbary c. The true forme whereof you haue expressed in Gerards herball li. 1. ca. 38. This is a spice whose roote is to be garbled anno 1. Iaco. ca. 19. Ginny peper piper de Ginnea is otherwise called Indian peper of the place whence it commeth The nature and farder description whereof you haue in Gerards herball lib. 2. ca. 66. This you haue mentioned among drugs and spices to be garbled in the statute i. Iaco. ca. 19. Gisarms anno 13. Ed. 1. stat 3. cap. 6. is a kinde of weapon Flet a writeth it Sisarmes lib. 1. ca. 24 § item quod quilibet Glaunce Ore Plowden casu Mines fo 320. b. Glanuill was a learned lawyer that was Chiefe Iustice in Henry the seconds dayes and writte a booke of the common lawes of England which is the auncientest of any extant touching that subiect Stawnf praerog cap. prim fol. 5. He was then called in Latine Ranulphus de Glanvilla He died in Richard the first his daies at the citie of Acres in the coast of Iury being with him in his voyage to the holy land Plowden casu Stowel fol. 368. b. Goe is vsed sometime in a speciall signification in our cōmon lawe as to go to God is to be dismissed the court Broke titulo Fayler de records num 1. Goe forward seemeth also to be a signe giuen by a Iudge to the Sergeant or Counceler pleading the cause of his client that his cause is not good For when he standeth vpon a point of lawe and heareth those words of the Iudges mouth he taketh vnderstanding that he looseth the action Smith de Repub. Anglo lib. 2. cap. 13. To go without day is as much as to be dismissed the court Kitchin fol. 193. Good behauiour See Good abearing Good abearing Bonus gestus is by an especiall signification an exact cariage or behauiour of a subiect toward the king and his liege people whereunto men vpon their euill course of life or loose demeanure are sometimes bound For as M. Lamberd in his Eirenarcha lib. 2. cap. 2. saith he that is bound to this is more strictly bound then to the peace because where the peace is not broken without an affray or batterie or such like this suretie de bono gestu may be forfeited by the number of a mans company or by his or their weapons or harnesse Where of see more in that learned Writer in the same chapter as also in M. Cromptons Iustice of peace fol. 119. b. 120. 121. 122. 123. 124. 125. 126. 127. Good country Bona patria is an Assise or Iury of country men or good neighbours Skene de verbo signif verbo Bona patria Graffer grafarius signifieth as much as a notarie or scriuener It commeth of the French greffier i. scriba actuarius This word is vsed in the statute anno 5. H. 8. c. 1. Graines grana paradisi aliâs Cardamomum is a spice medicinable and wholesome whereof you may see diuers kindes in Gerards herball l. 3. ca. 148. These are cōprised among merchādise that be to be garbled an◠I. c. 19. Grand assise See Assise and Magna assisa Grand Cape see Cape and Attachment Grand Sergeanty See Chyvalrie Seargeantye Grand distresse Magna destrictio is a distresse taken of all the lands and goods that a man hath within the county or bayliwicke whence he is to be distrained Fleta li. 2. ca. 69. § penult See Distresse This word is vsed anno 51. H. 3. ca. 9. This falleth out when the defendant hath been attached and yet appeareth not vpō his attachment or whē he appeareth afterward makes default For then the Shyreeue is commanded to distreine the Defendant by all his goods and chatels and to answer the king the issues of his lands Grange grangia is a house or building not onely where corne is laide vp as barns be but also where there be stables for horses stalles for oxen and other catell sties for hogs and other things necessary for husbandry Lindwood ca. item omnes de iudiciis verbo Graungus in glossa Graunt Concessio grantum Glanvile signifieth specially in our common law a gift in writing of such a thing as cannot aptly be passed or conueyed by word only as rent reversions seruices advowsens in grosse common in grosse villein in grosse tythes c. or made by such persons as cannot giue but by deede as the king and all bodies politique which differences be often in speech neglected and then is it taken generally for euerry gift whatsoeuer made of any thing by any person and he that graunteth it is named the grauntour and he to whome it is made the Grauntee West parte i. symbol lib. 2. sect 334. A thing is said to lie in graunte which cannot be assigned with out deede Coke l. 3. Lincolnes Coll. case f. 63. a. Greate men are sometimes vnderstood of the laity of the higher house of parlament as anno 43. Ed. 3. ca. 2. anno 8. R. 2. in prooem and sometime of the knights c. of the lower house as anno 2. R. 2. stat 2. in princip Gree commeth of the French Grè i. sententia beneplaecitum It signifieth in our common law contentment or good liking as to make gree to the parties is to satisfie them for an offence done anno 1. Rich. 2. cap. 15. Greachbreach is breaking of the peace Saxon in the descriptiion of England ca. 11. v. Rastal titulo exposition of words The new expounder of lawe termes writeth it Grichbreach and giueth it the same signification See Greve Greene hewe is all one with vert Manwood parte 2. of his forest lawes cap. 6. nu 5. See Vert. Greene waxe seemeth to be vsed for estretes deliuered to Shyreeues out of the exchequer vnder the seale of that court to be levied in the county anno 42. Ed. 3. ca. 9. anno 7. H. 4. cap. 3. See Forein apposer Greue praepositus is a word of power and authoritie signifiing as much as Dominus or praefectus Lamberd in his exposi of Saxon words verbo Praefectus Where he seemeth to make it all one with Reve as I thinke vndoubtedly it is The Saxon word is Gerefa whereof we haue diuers words compounded as Shyreeue Portgreave c. which were wont of the Saxons to be written Scyrgerefa Portgerefa See Shyreeue and Portgreve See Roger Hoveden parte poster suorum annal fo 346. b. where he saith thus Greue dicitur ideo quod iure debeat grithe i. pacem ex illis facere qui patriae inferunt Vae i. miseriam vel malum Grithbreach
the rols to euerie officer and the receiuing of them againe when they be written and the binding and making vp of the whole bundels of euerie terme and this he doth as seruant to the cheife Iustice For the cheife Iustice is at charge for all the parchemēt of all the rols Clerk of the outlawries clericus vtlagariarum is an officer belonging to the court of common plees being onely the seruant or deputie to the kings atturney generall for making out the writs of capias vtlagatum after outlawrie And the kings atturneis name is to euerie one of those writs And whereas seuen pence is paide for the seale of everie other writ betwixt partie party there is but a peny paid for the seale of this writ because it goeth our at the Kings suite Clerk of the sewers clericus sucraerum is an officer apperteining to the commissioners of sewers writing all things that they doe by vertue of their cōmission for the which See Sewers and see the statute anno 13. Elizabe ca. 9. Clerk controller of the kings house whereof there be two is an officer in court that hath place and seate in the compting house and authoritie to allow or disallow the charges and demands of pursuivants or messengers of the greene cloth purveiours or other like He hath also the ouer-sight and controlling of all defaults defects and miscariages of any the inferiour officers and to sit in the counting house with the superiour officers viz. the L. Steward treasurer controller and coferer either for correcting or bettering things out of order and also for bringing in country provision requisite for the Kings houshold and the censure for fayling of cariages and carts warned charged for that purpose This officer you haue mentioned anno 33. H. 8. ca. 12. Clerk of the Nihils clericus nihilorum is an officer in the Exchequer that maketh a rolle of all such summes as are nihiled by the shyreeues vpon their estreats of greene waxe and dilivereth the same into the Lord treasurers remembrancer his office to haue execution done vpon it for the king Clerk of the check is an officer in court so called because he hath the check and controlment of the yeomen of the gard and all other ordinary yeomen and huissiers belonging either to his maiesty the Queene or Prince either giuing leaue or allowing their absences or defects in attendance or deminishing their wages for the same He also nightly by himselfe or depute taketh the view of those that are to watch in the court and hath the setting of the watch This officer is mentioned anno 33. H. 8. ca. 12. Clerk marshiall of the kings house seemeth to be an officer that attendeth the marshiall in his court and recordeth all his proceedings anno 33. H. 8. cap. 12. Clothe of raye anno 27. Ed. 3. sta 1. cap. 4. Closhe is an vnlawfull game forbidden by the statute anno 17. Ed. 4. cap. 3. which is casting of a bowle at nine pinnes of wood or nine shanke bones of an oxe or horse Clove is the 32. part of a weigh of cheese i. 8. pound anno 9. H. 6. cap. 8. Cloues caryophylli are a spice knowne by sight to euery man They be flowers of a tree called caryophyllus gathered and hardened by the Sunne Of their nature you may reade in Gerards Herball lib. 3. cap. 144. This is cōprised among such spices as be to be garbled anno 1. Iacob cap. 19. Cocket cokettum is a seale appertaining to the kings custome house Regist orig fol. 192. a. also ascrow of parchement sealed and deliuered by the officers of the custome house to merchants as a warrant that their merchandize be customed anno 11. H. 6. cap. 16. which parchment is otherwise called literae de coketto or literae testimoniales de coketto Regist vbi supra fol. 179. a. So is the word vsed anno 5. 6. Ed. 6. cap. 14. and anno 14. Ed. 3. stat 1. cap. 21. This word is also vsed for a distinction of bread in the statutes of bread ale made anno 51. H. 3. where you haue mention of bread coket wastell bread bread of trete and bread of common wheate Coferer of the Kings houshold is a principal officer of his Maiesties court next vnder the Controller that in the counting house and elsewhere at other times hath a speciall charge and ouersight of other officers of the houshold for their good demeanure and cariage in their offices to all which one and other being either Sergeants Yeomē groomes pages or children of the kitchin or any other in any roome of his Maiesties seruants of houshold and payeth their wages This officer is mentioned anno 39. Elixab cap. 7. Cogs anno 23. H. 8. cap. 18. Conisour of a fine is he that passeth or acknowledgeth a fine in lands or tenemēts to another Cognise◠is he to whom the fine is acknowledged West parte 2. symbol titulo Fines sect 2. Cognizance commeth from the French cognisance i. intelligentia intellectus notio cognitio with vs it is vsed diuersly some time signifying a badge of a seruingmans sleeue whereby he is discerned to belong to this or that Noble or Gentleman somtime an acknowledgement of a fine or confession of a thing done as cognoscens latro Bracton lib. 3. tract 2. cap. 3. 20. 32. cognoscere se ad villanum Idem lib. 4. tractat 3. cap. 16. As also to make cognisance of taking a distresse somtime as an audience or hearing of a mater iudicially as to take cognisance sometime a power or iurisdiction as cognisance of plee is an habilitie to call a cause or plee out of another court which no man can doe but the king except he can shew charter for it Manwood parte 1. Of his Forest lawes pag. 68. See the new tearmes of the lawe and the new booke of Entries verbo Conusance Cognatione See Cosenage Cognisour see Conisour Cognitionibus mittendis is a writ to a Iustice or other that hath power to take a fine who hauing taken knowledgement of a fine deferreth to certifie it into the court of common plees commanding him to certifie it Regist orig 68. b. Coin cuneus vel cuna seemeth to come from the French coin i. angulus which probably verifieth the opinion of such as doe hould the auncientest sort of coyne to be cornered and not round Of this Lawyers substantiue cuna commeth the Lawyers verbe cunare i. to coyne Cromptons Iustice of peace fol. 220. Coliander seede or rather Coriander seede Semen coriandri is the seede of an herbe so called medicinable and wholesome for diuers good purposes which see in Gerards Herball lib. 2. cap. 3. 79. It is numbred among the drugges that be to be garbled anno 1. Iacob cap. 19. Collaterall collateralis commeth of the Latine laterale i. that which hangeth by the side Lateralia viatoria Π. de lega fideium tertio l. 102. seeme to signifie a budget or capcase to hang by a saddle pomel Collaterall
beneficiū iusve habere in beneficio aut canonicum titulum censebuur vti nec depositarius in re deposita wherof also Petrus Gregorius de beneficiis ca. 10. nu 13. thus writeth In hac quarta divisione potest adds tertium genus beneficii quod citra praescriptionem qualitatis a persona alterius qualitatis quà m beneficium exigat naturâ possidetur sed sine praeiudicio naturae beneficii per dispensationem eo commendato olim ad tempus certum certae personae hodie vt plerunque quà m diu commendatarius vixerit Vocant hoc beneficium commendatum commendam vt si regulare beneficium á Summo Pontisice conferatur nomine commēdae saeculari Nam ideo non mutatur beneficii natura nec fit ideo saeculare c. And a little after Interim annotabimus duplici de causa fieri commendam ecclesiae nempe vel in vtilitatem ecclesiae vel commendatarii In primo commenda titulum non dat beneficii commendatario dicitur potius custodia quae revocari potest quod repugnat naturae beneficii quod est perpetuum In secundo autem casu beneficium censetur in vtilitatem commendatarii commēda facta quam possidere potest quà m diu vixerit c. whome you may also read ca. 2. li. 13. Commissarie cōmissarius is a title of ecclesiasticall iurisdiction appertaining to such a one as exerciseth spirituall iurisdiction at the least so farre as his commission permitteth him in places of the dioces so farre distant from the cheife citie as the chanceler cannot call the subiects to the Bishops principall consistorie without their to great molestation This commissarie is of the canonists termed commissarius or officialis foraneus Lyndwoods provin ca. 1. de accusatio ver bo Mandatum archiepiscopi in glos and is ordeined to this especiall end that he supply the bishops iurisdiction and office in the out places of the dioces or els in such parishes as be peculiars to the bishop and exempted from the iurisdiction of the Archdeacon For where either by prescription or composition there be archedeacons that haue iurisdiction within their archdeaconries as in most places they haue there this commissarie is but superfluous and most commonly doth rather vexe and disturb the country for his lucre then of conscience seeke to redresse the liues of offenders And therefore the Bishop taking prestation mony of his archdeacons yearely pro exteriori iurisdictione as it is ordinarily called doeth by superonerating their circuit with a commissarie not onely wrong archdeacons but the poorer sort of subiects much more as common practise daily teacheth to their great woe Cōmission commissio is for the most part in the vnderstanding of the common lawe as much as delegatio with the Civilians See Broke titulo commission and is taken for the warrant or letters patents that all men exercising iurisdiction either ordinarie or extraordinarie haue for their power to heare or determine any cause or action Of these see diuers in the table of the Register originall verbo Commissio yet this word sometime is is extended farder then to maters of iudgement as the commission of purveiours or takers anno 11. H. 4. ca. 28. But with this epitheton high it is most notoriously vsed for the honourable commission court instituted and founded vpon the statute 1. Eliza. ca. 1. for the ordering and reformation of all offences in any thing appertaining to the iurisdiction ecclesiasticall but especially such as are of higher nature or at the least require greater punishment then ordinarie iurisdiction can afford For the world being growne to that loosenes as not to esteeme the censure of excommunicatiō necessitie calleth for those censures of fynes to the prince and imprisonment which doe affect men more neerely Commission of rebellion Commissio rebellionis is otherwise called a writte of rebellion breue rebellionis and it hath vse when a man after proclamation made by the Shyreeue vpon an order of the channcerie or court of Starre chamber vnder penaltie of his allegance to present himselfe to the court by a certaine day appeareth not And this commission is directed by way of commaund to certaine persons to this end that they or three two or one of them doe apprehend or cause to be apprehend the party as a rebell and contemner of the kings lawes wheresoeuer they find him within the kingdome and bring him or cause him to be brought to the courte vpon a day therein assigned The true copie of this commission or writ you haue in Cromptons diuers Iurisdictions Court de Starre chamber as also in West tractat touching proceedings in Chancerie Sectio 24. Commissioner commissionarius is he that hath commission as leters patents or other lawfull warrant to execute any publike office as commissioners of the office of fines and licenses West parte 2. symbol titulo Fines sect 106. commissioners in eyre an 3. Ed. 1. ca. 26. with infinite such like Committee is he to whome the consideration or ordering of any mater is referred either by some court or consent of parties to whome it belongeth As in Parlament a bille being read is either consented vnto and passed or denied or nether of both but referred to the consideration of some certaine men appointed by the house farder to examine it who thereupon are called committees Committee of the King West par 2. symbo titulo Chancerie sect 144. This word seemeth to be something strangely vsed in Kitchin fo 160. where the widow of the kings tenent being dead is called the cōmittee of the king that is one committed by the auncient law of the land to the kings care and protection Common bench bancus communis is vsed some time for the court of common plees anno 2. Ed. 3. ca. 11. So called as M. Camden saith in his Britannia pa. 113. quia communia placita inter subditos ex iure nostro quod communae vocant in hoc disceptantur that is the plees or controuersies tryed betweene common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Iustices in eyre consueverunt Iusticiarii imponere villatis iuratoribus hundredis toti comitatui concelamētum omnes separatim amerciare quod videtur voluntarium cùm de periurio concelamento non fuerint convicti sed potius dispensandum esset cumeis quod animas in statera posuerint pro pacis conservatione li. 1. cap. 48. § Quibus And a litle following § Et provisum he hath these words Et provisum est quòd communes misericordiae vel fines comitatuum amerciatorumin finibus itinerum Iusticiariorum ante recessum ipsorum Iustitiariorum per sacramenta militum aliorum proborum hominum de commitatu eodem affidentur super eos qui contribuere debent vnde particulae Iusticiariis liberentur vt cum aliis extractis suis ad Scaccarium liberare valeant These last words of his haue relation to the statute Westminst
other thing that may be tried by the lawe of the land And reade Fortescue ca. 32. This office was belonging heeretofore to the lords of certaine maners iure feudi and why it is discontinued see Dyer fo 258. nu 39. Out of this high magistracie saith M. Lamberd were drawen these lower constables which we call constables of hundreds franchises and first ordeined by the statute of Winchester anno 13. Ed. 1. which appointeth for the conseruation of the peace and view of armour two constables in euerie hundred and franchise which in latine are called constabularii capitales And these be nowe a daies called high constables because continuance of time and increase both of people and offenfes hath againe vnder these made others in euery towne called petit constables in latine subconstabularios which are of like nature but of inferiour authoritie to the other as you may read at large in that learned mans treatise before named Of these also read S. Thomas Smith li. 2. ca. 22. Beside these there be officers of particular places called by this name as constable of the tower Ssawnf pl. cor fol. 152. anno 1. H. 4. ca. 13. Stowes annals pa. 812. iurisdict fo 132. constable of the exchequer anno 51. H. 3. statute 5. Constable of Douer castel Camdeni Britan. pa. 239. Fitzh nat br fo 240. otherwise called castellane Westm i. ca. 7. anno 3. Ed. i. But these be castellani properly as M. Lamberd noteth though conioined in name with the others See the statute anno 32. H. 8. ca. 38. M. Manwood parte prima ca. 13. of his forest lawes maketh mention of a constable of the forest Consuetudinibus seruities is a writ of right close which lyeth against the tenent that deforceth his lord of the rent or seruice dew vnto him Of this see more at large the Old nat br fo 77. Fitzh eodem fo 151. and the Register orig fo 159. Consultation consultatio is a writ whereby a cause being formerly remoued by prohibition from the ecclesiasticall court or court christian to the kings court is returned thither againe For the Iudges of the kings court if vpon comparing the libell with the suggestion of the party they do find the suggestion false or not proued and therefore the cause to be wrongfully called from the court christian then vpon this consultation or deliberation they decree it to be returned againe wherevpon the writ in this case obtained is called a consultation Of this you may reade the Register orig fo 44. 45. c. vsque fol. 58. Old nat br fo 32. Fitzh eodem fo 50. Contenement contenementum seemeth to be the free hould land which lyeth to a mans tenement or dwelling house that is in his owne occupation For in magna charta ca. 14. you haue these words A free man shall not be amerced for a small fault but after the quantity of the fault and for a great fault after the maner thereof sauing to him his contenement or free hould And a merchant likewise shal be amerced sauing to him his merchandies and any other villaine then owers shal be amerced sauing his wainage if he take him to our mercy And Bracton li. 3. tracta 2. ca. 1 nu 3. hath these words sciendum quòd miles liber homo non amerciabitur nisi secundùm modum delicti seoundùm quod delictum fuit magnum vel parvum saluo contenemento suo mercator verò non nisi salua merchandiza sua villanus nisi saluo Waniagio suo which mercy seemeth to haue bene learned from the ciuile lawe whereby executio non potest fieri in boues aratra aliaue instrumenta rusticorum l. executores Authen Agricultores Co quae res pign obliga nec in stipendia arma equos militum l. stipendia Co. de executio rei indica ibi doctores nec in libros scholarium glos in l. Nepos Proculo verbo dignitate Π. de verbo significa Quae tamen rusticorum militum scholarium priuilegia circa executionem vera esse eatenus obtinere intelligenda sunt quatenus alia bona habent Iohan. Eimericus in processu indiciario cap. de Executione senten 79. num 11. Continuance seemeth to bee vsed in the common law as prorogatio is in the ciuile lawe For example Continuance vntil the next assise Eitz nat br fol. 154. F. and 244. D. in both which places it is sayde that if a record in the treasurie be alledged by the one partie and denyed by the other a certiorari shall be siewed to the Treasurer and the chamberlaine of the Exchequer who if they certifie not in the Chauncerie that such a record is there or that it is likely to be in the Tower the king shall send to the Iustices repeating the certificate and will them to continue the assise In this signification it is likewise vsed by Kitchin fol. 202. 199. and also anno 11. H. 6. cap. 4. Continuall claime continuum clameum is a claime made from time to time Within euery yere and day to land or other thing which in some respect we cannot attaine without daunger For example if I be disseised of land into which though I haue right vnto it I dare not enter for feare of beating it behooueth me to hold on my right of entry to the best oportunitie of me mine heyre by approching as neare it as I can once euery yere as long as I liue and so I saue the right of entry to mine heire Termes of law Againe if I haue a slave or villein broken from me and remaining any where within the auncient demesn of the king being in the handes of the king I cannot maintaine the writ de nativo habendo as long as he continueth there but if I claime him within the yeare and the day and so continue my claime vntill I can find him within that compasse I may lawfully lay hold of him as mine owne Fitz. nat br fol. 79. See more in Litleton verbo Continuall claime And the new booke of Entries Ibid. and Fleta lib. 6. cap. 53. Contract contractus is a covenant or agreement with a lawfull consideration or cause West parte prim symbol lib. 1. Sect. 10. and lib. 19. Π. de verbo Significa with other places it is thus defined Contractus est negotium inter duos pluresve data opera gestum vt vel vterque invicem vel alteruter obligetur Who so will throughly examine the difference betweene this and pactū and such other words something like in signification let him search the civilians and he shall find worke both pleasant and profitable and well fitting the common lawe also Contra formam collationis is a writ that lyeth against an abbot or his successor for him or his heire that hath giuen land to an Abbey to certaine good vses and findeth that the Abbot or his successour hath made a feofment thereof with the assent of the tenents to
originall writ of deceite lieth where any deceit is done to a man by another so that he hath not sufficiently performed his bargaine or promise In the writ iudicial he concurreth with the former booke See the Reg. orig fo 112. and the Reg. iudiciall in the table verbo Deceptione Decimis solvendis pro possessionibus alienigenarum is a writ or leters patents yet extant in the Register which laye against those that had fermed the Priors aliens lands of the king for the Rector of the Parish to recouer his tythe of them Regi orig fol. 179. Deciners aliâs desiners aliâs doziners decennarii commeth of the French dizeine i. decas tenne in number or else of disenier i. decearchus It signifieth in the auncient monuments of our lawe such as were wont to haue the ouersight and checke of ten friburgs for the maintenance of the kings peace And the limits or compasse of their iurisdiction was called decenna Bracton lib. 3. tract 2. cap. 15. of whom you may also reade Fleta lib. 1. cap. 27 and a touch in the Regist orig fol. 68. b. These seemed to haue la 〈…〉 authoritie in the Saxons time 〈◊〉 king knowledge of causes within their circuite and redressing wrongs by way of iudgement as you may reade in the lawes of king Edward set out by M. Lambard num 32. In later times I find mention of these as in Britton cap. 12. who saith in the kings person as he writeth his whole booke in this maner We will that all those which be 14. yeares old shall make oath that they shall be sufficient and loyall vnto vs and that they will be neither felons nor assenting to felons and we will that all be en dozeine plevis per dozeniers that is professe themselues to be of this or that dozein and make or offer suretie of their behauiour by these or those doziniers except religious persons clerks knights and their eldest sonnes and women Yet the same author in his 29. chapter some thing toward the end doth say that all of 12. yeares old and vpward are punishable for not comming to the Turne of the Shyreeue except Earles Prelats Barons religious persons and women Stawnf pl. cor fol. 37. out of Fitzh hath these wordes The like lawe is where the dozeniers make presentment that a felon is taken for felonie and deliuered to the Shyreeue c. And Kitchin out of the Register and Britton saith thus Religious persons clerkes knights or women shall not be deceniers fol. 33. So that hereby I gather that of later times this word signifieth nothing but such an one as by his oath of loyaltie to his Prince for suretie none ordinarily findeth at these dayes is setled in the combination or societie of a dozein And a dozein seemeth now to extend so farre as euery leete extendeth because in leetes onely this oathe is ministred by the steward and taken by such as are twelue yeares old and vpwards dwelling within the compasse of the leete where they are sworne Fitz. nat br fol. 161. A. The particulars of this oath you may reade in Bracton lib. 3. tract 2. cap. 1. num 1. in these words Quibus propositis that is the commission of the Iustices being read and the cause of their comming being shewed debent Iusticiarii se transferre in aliquem locum secretum vocatis ad se quatuor vel sex vel pluribus de maioribus de comitatu qui dicuntur Busones Comitatus ad quorum nutum dependent vota aliorum et sic inter se tractatum habeant Iusticiarii ad muicem ostendant qualiter a Domino Rege eius concilio prouisum sit quod omnes tam milites qùam alii qui sunt quindecim annorum ampliùs iurare debent qùod vtlagatos murditores robbatores burglatores non receptabunt neceis consentient nec eorum receptatoribus si quos tales nouerint illos attachiari facient hoc Vicecomiti baliuis suis monstrabunt si hutesium vel clameum de talibus audiverint statim audsto clamore sequantur cum familia hominibus de terra sua Here Bracton setteth downe 15. yeares for the age of those that are sworne to the kings peace but lib. 3. tract 2. cap. 11. num 5. he nameth 12. yeares See Inlaughe A man may note out of the premisses diuersities betweene the auncient and these our times in this point of law and gouernement as well for the age of those that are to be sworne as also that Decennier is not now vsed for the chief man of a Dozen but for him him that is sworne to the kings peace and lastly that now there are no other Dozens but leetes and that no man ordinarily giueth other security for the keeping of the kings peace but his owne oathe and that therefore none aunswereth for anothers transgression but euery man for himselfe And for the general ground this may suffice See Frankepledge Declaration declaratio is properly the shewing foorth or laying out of an action personall in any suite howbeit it is vsed sometime and indifferently for both personall and reall actions For example anno 36. Ed. 3. c. 15. in these words By the auncient termes and formes of declarations no man shall be preiudiced so that the mater of the action be fully shewed in the demonstration in the writ See the new Termes of lawe See Cownte Dedimus potestatem is a writ whereby commission is giuen to a priuate man for the speeding of some act appertaining to a Iudge The Civilians call it Delegationem And it is graunted most commonly vpon suggestiō that the partie which is to doe something before a Iudge or in court is so feeble that he cannot trauell It is vsed in diuers cases as to make a personall aunswer to a bill of complaint in the Chaunceric to make an Atturney for the following of a suite in the Countie Hundred Wapentake c. Oldnat br fol. 20. To levie a fine West part 2. symbol titulo Fines sect 112. and diuers other effects as you may see by Fitzh nat br in diuers places noted in the Index of the booke In what diuersitie of cases this writ or commission is vsed see the table of the Regist orig verbo Dedimus potestatem Deedes Facta signifie in our commō law wrighungs that containe the effect of a contract made betweene man and man which the ciuilians call literarum obligationem And of deeds there be two sorts deeds indented and deeds poll Which diuision as M. West saith parte i. Simbol lib. 1. sect 46. groweth from the forme or fashion of them the one being cut to the fashion of teeth in the toppe or side the other being plaine And the definition of a deede indented he expresseth thus Sect. 47. A deed iudented is a deede consisting of two partes or more in which it is expressed that the parties to the same deede haue to euery parte thereof interchangeabely or seuerally
register fol. 234. which lyeth where the tenent for terme of life or of anothers life tenent by curtesie or tenent in Dower maketh a feofment in fee dyeth he in the reuersion shall haue the foresaid writagainst whomsoeuer that is in the land after such feofment made Ingrossing of a fine is making the indentures by the chirographer and the deliuery of them to the party vnto whom the cognisance is made Fitzh nat br fol. 147. A. Ingrosser ingrossator commeth of the frence Grosseur i. crassiiudo or Grosier i. Solidarius venditor it signifieth in the common law one that buieth corne growing or dead victuall to sell againe except barly for mault oats for oatemeale or victuals to retaile badging by licence and buying of oiles spices and victualls other then fish or salte anno 5. Edward 6. cap 14. anno 5. Elizab cap 14. anno 13. Elizab. cap 25. these be M. Wests words parte 2. simbol titulo Inditements sect 64. howbeit this definition rather doth belong to vnlawfull ingrossing then to the word in generall see Forstaller Inheritance hareditas is a perpetuity in lands or tenements to a man and his heirs For Litleton cap i. lib i hath these words and it is to be vnderstand that this word inheritance is not onely vnderstand where a man hath inheritance of lands and tenements by discent of heritage but also euery fee simple or fee taile that a man hath by his purchase may be said inheritance for that that his heires may inherit him Seuerall inheritance is that which two or moe hould seuerally as if two men haue land giuen them to them and the heires of their two bodies these haue ioynt estate during their liues but their heires haue seuerall inheritance Kitchin fol 155. See the new terms of law verbo Enheritance Inhibition Inhibitio is a writt to inhibit or forbid a Iudge from farder proceding in the cause depēding before him See Fitzh nat br fol 39. where he putteth prohibition and inhibition together inhibition is most commonly a writ issuing out of a higher courte Christian to a lower and inferiour vpon an Appeale anno 24. H. 8. cap 12. and prohibition out of the kings courte to a court Christian or to an inferiour temporall court Iniunction iniunctio is an interlocutory decree out of the Chācerie sometimes to giue possession vnto the plaintife for want of apparence in the defendant sometime to the Kings ordinary court and somtime to the court Christian to stay proceeding in a cause vpon suggestion made that the regour of the law if it take place is against equitie and conscience in that Case see West parte 2. simb titulo Proceeding in Chauncery sect 25. Inlawgh Inlagatus vel homo sub lege signifieth him that is in some frank pledge of whome take Bractons words l. 3. tracta 2. cap. H. nu 5. Minor verò qui infra aetatem duodecim annorū fuerit vtlagari non potest nec extra legem poni quia ante talem aetatem non est sub lege aliqua nec in decenna non magis quam foemina quae vtlagari non potest quia ipsa non est sub lege i. Inlowghe anglicè sc in franco plegio siue decenna sicut masculus duodecim annorum vlteriūs c. Inlaughe significat hominem subiectum leg i Fleta li. i. cap. 47. Inlagary Inlagatio is a restitution of one outlawed to the kings protection and to the benifite or estate of a subiect Bracton lib. 3 tracta 2 cap. 14. nu 6. 7. 8. Britton cap 13. Inmates are those that be admitted to dwell for their mony iointly with another mā though in seuerall roomes of his mantiō house passing in and out by one doore and not being able to maintaine themselues which are inquiralle in a leete Kitchin fol 45 where you may reade him at large who be properly Inmates in intendment of law and whoe not Imprision anno 18 Ed 3 statu 4 cap. vnico seemeth to signifie so much as an attempt comming of the french empris which is all one with enterpris an enterprise Inquirendo is an authoritie giuen to a person or persons to inquire into some thing for the kings aduantage which in what cases it lieth see the Register originall fol. 72. 85. 124. 265. 266. 179. 267. Inquisition Inquisitio is a maner of proceeding in maters criminall by the office of the Iudge which Hostiensis defineth thus Inquisitio nihil aliud est quà m alicuius criminis manifesti ex bono aquo Iudicis compeientis canonicè facta investigatio ca. qualiter de accusatio In the Decretales this course we take here in England by the great Enquest before Iustices in Eyre See Eyre and the places in Bracton and Britton there noted Inquisition is also with vs vsed for the King in temporall causes and profits in which kinde it is confounded with Office Stawnf praerog fo 51. See Office Inrolement Irrotulatio is the registring recording or entring of any lawful act in the rowles of the chauncerie as recognisance acknowledged or a statute or a fine leuied See West parte 2. symbol titulo Fines sect 133. Insimul tenuit is one species of the writ called a Formdon See Formdon Intakers be a kinde of theeues in Ridesdall anno 9. H. 5. ca. 8. so called as it seemeth because they dwelling within that libertie did receiue in such booties of catell or other things as the out parters brought in vnto them See Out parters Interdiction Interdictio is vsed in the common lawe in the same signification that it hath in the canon lawe where it is thus defined interdictio est censura ecclesiastica prohibens administrationem diuinorum c. quod in te de paenitent remiss in the Decretals and thus is it vsed anno 24. H. 8. cap. 12. Interpleder See Enterpleder Intrusion Intrusio by Bracton lib. 4. cap. 2. is thus defined Intrusio est vbi quis cui nullum ius competit in re nec scintilla Iuris possessionem vacuam ingreditur quae nec corpore nec animo possidetur sicut haereditatem iacentem antequam adita fuerit ab harede vel saltem a domino capitals ratione custodiae vel ratione eschaeta si forte heredes non existant vel si post mortem alicuius per finem factum vel per modum donationis vbi successio sibi locum vendicare non possit vel si post mortem alicuius qui tenuit ad vitam debeat tenementum reverti ad proprietariū ponat quis se in seisinā antequā tenemētū illud veniat ad illū ad quem pertinere deberet ex praedictis causis with whome agreeth Fleta lib. 4. cap. 30. § 1. 2. See Britton cap. 65. to the same effect See the newe booke of Entries verbo Entrusion See Entrusion See disseisin the author of new Terms of lawe would haue intrusion especially after the tenent for life is deceased verbo Abatement and abatement in all other cases But I finde
Regale beneficium clementis principis de consilio procerum populis indultum quo vitae hominū status integritati tam salubriter consulitur vt in iure quod quis in libero soli tenemento possidet retinendo duells casum declinare possint homines ambiguum c see the rest This Iury is not vsed onely in circuits of Iustices errant but also in other courts and maters of office as if the Escheatour make inquisition in any thing touching his office he doth it by a Iury or inquest if the Coroner inquire how a subiect found dead came to his end he vseth an inquest the Iustices of peace in ther quarter Sessions the Shyreeue in his county and Turne the baylife of a Hundred the Stewarde of a court Leete or court Baron if they inquire of any offence or descide any cause betweene party and party they doe it by the same maner So that where it is said that all things be triable by Parlament Battell or assise Assise in this place is taken for a Iury or Enquest empaneled vpō any cause in a court where this kind of triall is vsed and though it be commonly deemed that this custome of ending and desciding causes proceede from the Saxons and Brittons and was of fauour permitted vnto vs by the Conquerour yet I finde by the grand Customarie of Normandie cap 24. that this course was vsed likewise in that countrie For Assise is in that Chapter defined to be an assembley of wise men with the Bailife in a place certaine at a time assigned 40. daies before wherby Iustice may be done in causes heard in the court of this custome also and those Knights of Normandie Iohannes Faber maketh mention in the Rubrique of the title de militari testamento in Institut this Iury though it appertaine to most courts of the common law yet is it most notorious in the half yeare courts of the Iustices errants commonlie called the great assises and in the quarter Sessions and in them it is most ordinarily called a Iurie And that in ciuile causes wheras in other courts it is oftener tearmed an enquest and in the court Baron the Homage In the generall Assise there are vsually many Iuries bicause there be store of causes both ciuil and criminall commonly to be tried wherof one is called the Grand Iury and the rest petit Iuries whereof it seemeth there should be one for euery Hundred Lamb. Eirenar l. 4. cap. 3. pa. 384. The Grand Iurie consisteth ordinarily of 24. graue and substantiall gentlemen or some of them yeomen chosen indifferently out of the whole shyre by the Shyreeue to consider of all bils of Inditement preferred to the court which they doe either approoue by writing vpon them these words billa vera or disallowe by writing Ignoramus such as they doe approoue if they touch life and death are farder referred to another Iury to be considered of because the case is of such importance but others of lighter moment are vpon their allowance without more worke fined by the bench except the party travers the Inditement or chalenge it for insufficiencie or remooue the cause to a higher court by certiorarie in which 2. former cases it is referred to another Iurie and in the latter transmitted to the higher Lamb. Eire l. 4. c. 7. presently vpon the allowance of this bill by the Grand Enquest a man is said to be indighted Such as they dissalowe are deliuered to the benche by whome they are forthwith cancilled or torne The petit Iury consisteth of 12. men at the least are Empanelled as well vpon criminall as vpon ciuile causes those that passe vpon offences of life and death doe bring in their verdict either guiltie or not guiltie wherevpon the prisoner if he be found guiltie is said to be conuicted and so afterward receaueth his iudgment and condemnation or otherwise is acquited and sett Free of this reade Fortes cap 27. those that passe vpon ciuile causes reail are all or so many as can conueniently be had of the same hundred where the land or tenement in question doth lie and 4. at the least And they vpon due examination bring in their verdict either for the demaundant or Tenent of this see Fortesc cap. 25. 26. according vnto which iudgement passeth afterward in the court where the cause first began and the reason hereof is because these Iustices of Assise are in this case for the ease of the cuntry onely to take the verdict of the Iurie by the vertue of the writ called nisi prius and so returne it to the court where the cause is depending See Nisi prius Ioyne with this the chapter formerly cited out of the custumary of Normandie and that of King Etheldreds lawes mentioned by Maister Lamberd verbo Centuria in his explication of Saxon words and by these two words you shall perceiue that as well among these Normans as the Saxons the men of this Iuty were associats and Assistants to the Iudges of the court in a kind of equality where as now a daies they attend them in great humility and are as it were at their commaund for the seruice of the court the words set downe by M. Lamberd are these In singulis centuriis comitia sunto atque liberae condicionis viri duodeniaetate superiores vnà cum praeposito sacra tenentes iuranto se adeo virum aliquem innocentem haud condemnaturos sontemve absoluturos to this ioyne also the 69. chapter of the saide custumarie See Enquest See 12. men See Lamberds Eurenarch lib. 4. cap. 3. p. 384. Iuris vtrùm is a writ that lyeth for the incumbent whose predecessour hath alienated his lands or tenements the diuers vses of which writ see in Fitzh nat br fol. 48. Iurisdiction Iurisdictio is a dignity which a man hath by a power to doe Iustice in causes of complaint made before him And there be two kinds of Iurisdictions the one that a man hath by reason of his fee and by vertue thereof doth right in all plaints concerning his see The other is a Iurisdiction giuen by the prince to a baylife this diuision I haue in the Custumary of Normandy cap. 2. which is not vnapt for the practise of our common welth for by him whom they call a baylife we may vnderstand all that haue commission from the prince to giue iudgement in any cause The ciuilians diuide iurisdictionem generally vnderstand in imperium iurisdictionem and imperium in merum mixtum Of which you may reade many especiall tractats writen of them as a mater of great difficulty and importance Iustes commeth of the French Ioustes i. decursus and signifieth with vs contentions betweene Martiall men by speares on horsbacke anno 24. H. 8. cap. 13. Iustice Iusticiarius is a French word and signifieth him that is deputed by the king to do right by way of iudgement the reason why he is called Iustice and not Iudex is because in auncient time the
latine word for him was Iusticia and not Iusticiarius as appeareth by Glan lib. 2. cap. 6. Roger Houeden parte poster suorum annalium fo 413. a. and diuers other places which appellation we haue from the Normans as appeareth by the grand custumary cap. 3. and I doe the rather note it because men of this function should hereby consider that they are or ought to be not Iusti in their iudgements but in abstract ipsâ— iusticia how be it I hould it well if they performe their office in concreto Another reason why they are called Iusticiary with vs and not Iudices is bicause they haue their authority by deputation as Delegates to the king and not iure magistratus and therefore cannot depute others in their steed the Iustice of the Forest onely excepted who hath that liberty especially giuen him by the statute anno 32. H. 8. cap. 35. for the Chanceller Marshall Admirall and such like are not called Iusticiarii but Iudices of these Iustices you haue diuers sorts in England as you may perceaue heare following The maner of creating these Iustices with other appertenences reede in Fortescu cap. 51. Iustice of the Kings bench Iusticiarius de Banco regis is a Lord by his office and the cheife of the rest wherefore he is also called Capitalis Iusticiarius Angliae his office especially is to heare and determine all plees of the crowne that is such as concerne offences committed against the crowne dignitie and peace of the King as treasons felonies may hems and such like which you may fee in Bracton lib. 3. tractat 2. per totum and in Stawnf treatise intituled the plees of the crowne from the first chapter to the 51. of the first Booke But either it was from the beginning or by time it is come to passe that he with his assistans heareth all personall actions and reall also if they bee incident to any personall action depending before them See Cromptons Iuridict fol. 67. c. of this court Bracton lib. 3. cap. 7. nu 2. saith thus placita verò ciuilia in rem personam in Curia Domini Regis terminanda coram diuersis iusticiarus terminantur Habet enim plures curias in quibus diversae actiones terminantur illarum curiarum habet vnam propriam sicut aulam regiam iusticiarios capitales qui proprias causas Regis terminant aliorum omnium per querelam vel per priuilegium siue libertatam vt si sit aliquis qui implacitari non debeat nisi coram Domino rege This Iustice as it seemeth hath no patent vnder the broad seale For so Crompton saith vbi supra He is made onely by writ which is a short one to this effect Regina Iohanni Popham militi saluteÌ„ Sciatis quod consistuimus vos Iusticiarium nostrum capitalem ad placita coram nobis terminandum durante beneplacito nostro Teste c. And Bracton in the place nowe recited speaking of the common plees saith that sine warranto inrisdictionem non habet which I thinke is to be vnderstood of a commission vnder the great Seale This court was first called the kings bench because the King sate as Iudge in it in his proper Person and it was moueable with the court See anno 9. H. 3. cap. 11. more of the Iurisdiction of this court see in Crompton vbi supra See Kings bench The oath of the Iustices see in the statute anno 18. Ed. 3. stat 4. See Oathe Iustice of common plees Iusticiarius communium placitorum is also a Lord by his office and is called Dominus Iusticiarius communium placitorum and he with his assistants originally did heare and determine all causes at the common lawe that is all ciuil causes betweene common persons as well personall as reall for which cause it was called the court of common plees in opposition to the plees of the Crowne or the Kings plees which are speciall and appertaining to him onely Of this and the Iuridisdiction hereof see Cromptons Iurisdiction fo 91. This Court was alwaies setled in a place as appeareth by the statute anno 9. H. 3. cap. 11. The oath of this Iustice and his associats see anno 18. Ed. 3. stat 4. See Oath Iustice of the Forest Iusticiarius Forestae is also a Lord by his office and hath the hearing and determining of all offences within the Kings forest committed against Venison or Vert of these there bee two whereof the one hath Iurisdiction oueral the forests on this side Trent the other of all beyond the cheifest point of their Iurisdiction consisteth vpon the articles of the Kings Charter called Charta de Foresta made anno 9. H. 3. which was by the Barons hardly drawne from him to the mitigation of ouer cruell ordinances made by his predecessors Reade M. Camdens Britan. Pag. 214. See Protoforestarius The Court where this Iustice sitteth and determineth is called the Iustice seate of the Forest held euery three yeares once whereof you may reade your fill in M. Manwoodes first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Iustice in Eyre of the forest See the reason in Iustice in Eyre This is the only Iustice that may appoint a deputy per statutum anno 32. H. 8. cap. 35. Iustices of Assise Iusticiarii ad capiendas Assisas are such as were wont by speciall commission to be sent as occasion was offered into this or that county to take Assises the ground of which polity was the ease of the subiects For whereas these actions passe alway by Iury so many men might not without great hinderance be brought to London and therefore Iustices for this purpose were by commission particularly authorised and sent downe to them And it may seeme that the Iustices of the common plees had no power to deale in this kinde of busines vntill the statute made anno 8. Rich. 2. cap. 2. for by that they are enhabled to take Assises and to deliuer Gaols And the Iustices of the kings Bench haue by that statute such power affirmed vnto them as they had one hundred yeares before that Time hath taught by experience that the beter sort of Lawyers being fittest both to iudge and plead may hardly be spared in terme time to ride into the country about such busines and therefore of later yeares it is come to passe that these commissions ad â—apiedas Assisas are driuen to these two times in the yeare out of terme when the Iustices and other may beat leasure for these controuersies also whereupon it is also fallen out that the maters wont to be heard by more generall Commissions of Iustices in Eyre are heard all at one time with these Assises which was not so of ould as appeareth by Bracton lib. 3. c. 7. nu 2. Habet etiam Iusticiarios itineraÌ„tes de comitatu in Comitatum quandoque ad omnia placita quandoque ad quaedam specialia sicut Assisas c. ad Gaolas
vertue whereof a man hath some imploiment in the affaires of another as of the King or other common person but also an Inquisition made to the Kings vse of any thing by vertue of his office who inquireth And therefore wee oftentimes reade of an office found which is nothing but such a thing found by Inquisition made ex officio In this signification it is vsed anno 33. H. 8. cap. 20. and in Stawnfords praerog fol. 60. 61. where to trauers an office is to trauers the inquisition taken of office And in Kitchin fol. 177. to returne an office is to returne that which is found by vertue of the office see also the newe booke of Entries verbo Office pur le Roy. And this is by a metonymie of the effect And there be two sorts of offices in this signification issuing out the exchequer by commission viz. an office to intitle the King in the thing inquired of and an office of instruction which reade in Sir Edw. Cokes reports vol. 6. Pages case fol. 52. a. b. Office in fee is that which a man hath to himselfe and his heires anno 13. Ed. 1. ca. 25. Kitchin fol. 152. See Clerk Official officialis is a word very diversly vsed For by sundry Ciuilians of other countries that write in these daies it appeareth to be applyed in many places to such as haue the sway of temporall iustice Aegidius Bossius in pract crim tit De officialibus corruptis c. But by the auncienter ciuile lawe it signifieth him that is the minister or appparitor of a magistrate or Iudge l. 1. § si quis vltro Π. de quaestio Co. de filiis officialium c. li. 12. In the Canon lawe it is especially taken for him to whome any Bishop doth generally commit the charge of his spirituall iurisdiction And in this sence one in euery Dioces is officialis principalis whome the statutes and lawes of this Kingdome call chanceler anno 32. H. 8. cap. 15. The rest if there be more are by the canō law called officiales foranei glos in clem 2. de Rescriptis but with vs termed Cōmissaries Commissarii as in the statute of H. 8. or some times Commissarii foranei The difference of these 2. powers you may reade in Lyndwood titulo de sequestra posses ca. 1. verbo Officialis But this word officiall in our statutes and common lawe signifieth him whom the Archdeacon substituteth in the executing of his iurisdiction as appeareth by the statute aboue mentioned and many other places Officiariis non faciendis vel amovendis is a writ directed to the magistrates of a corporatiō willing them not to make such a man an officer and to put him out of the office he hath vntill enquirie be made of his maners according to an inquisition formerly ordeined Register originall fol. 126. b. Onerando pro rata portionis is a writ that lieth for a ioint tenent or tenent in common that is distreined for more rent then the proportion of his land cōmeth vnto Reg orig f. 182. a. Open Lawe Lex manifesta Lex apparens is making of Lawe which by Magna charta ca. 28. Bayliffes may not put men vnto vpon their owne bare assertions except they haue witnesses to proue their imputation Orchel anno 1. R. 3. ca. 8 Orchall anno 24. H. 8. ca. 2. anno 3. 4. Ed. 6. ca. 2. seemeth to be all one with cork Ordinance of the forest Ordinatio Forestae is a statute made touching forest causes in the 34. yeare of Edward 1. See Assise Ordinarie Ordinarius though in the ciuil lawe whence the word is taken it doth signifie any iudge that hath authoritie to take knowledge of causes in his owne right as he is a magistrate and not by deputation yet in our common lawe it is most commonly and for ought I remember alway taken for him that hath ordinarie Iurisdiction in causes ecclesiasticall See Brooke hoc titulo Lindwood in cap. exterior titulo de Constitutionibus verbo Ordinarii saith quòd Ordinarius habet locum principaliter in Episcopo aliis superioribus qui soli sunt vniuersales in suis iurisdictionibus sed sunt sub eo alii ordinarii hii viz. quibus competit Iurisdictio ordinaria de iure privilegio vel consuetudine c. v. c. Ordinatione contra seruientes is a writ that lieth against a servant for leauing his master against the statute Register originall fol. 189. Ordael Ordalium is a Saxon word signifiing as much as Iudgement in some mens opinions compounded of two Saxon words or a priuatiue as α in greeke and dael i. pars It signifieth as much as expers but it is artificially vsed for a kind of purgation practized in auncient times whereby the party purged was iudged expers criminis called in the canon lawe purgatio vulgaris and vtterly condemned There were of this two sorts one by fire another by water Of these see M. Lamberd in his explication of Saxon words verbo Ordalium where he expresseth it at large with such superstitions as were vsed in it Of this you may likewise read Holinshed in his description of Britanie fol. 98. and also M. Manwood parte pri of his forest lawes pag. 15. But of all the rest Hotoman especially disput de feud ca. 41. where of fiue kinde of proofes which he calleth feudales probationes he maketh this the fourth calling it explorationem huius furiosae probationis 6. genera fuisse animadvertit per flammam per aquam per ferrum candens per aquam vel gelidam vel feruentem per sortes per corpus Domini of all which he alledgeth seuerall examples out of historie very worthie the reading See M. Skene also de verbor significatione verbo Machamiū This seemeth to haue bene in vse here with vs in Henry the seconds dayes as appeareth by Glanvile lib. 14. cap. 1. 2. Reade also of this in M. Verstegans Restitution of decayed intelligence cap. 3. pag. 63. seqq Orfgild aliâs Cheapegild is a restitution made by the Hundred or Countie of any wrong done by one that was in plegio Lamberd Archaion pag. 125. 126. Orgeis anno 31. Ed. 3. stat 3. cap. 2. is the greatest sort of North sea-fish now adaies called Organ ling. Oredelfe is a liberty whereby a man claimeth the Ore found in his soyle New exposition of Termes Ortelli is a word vsed in the booke termed pupilla oculi in the chapter containing the charter of the Forest parte 5. cap. 22. and signifieth the clawes of a dogges foote being taken from the French orteils des pieds i. digiti pedum the toes Osmonds anno 32. Henr. 8. cap. 14. Oath of the King Iuramentum Regis is that which the King taketh at his Coronation which in Bracton is set downe in these words Debet Rex in coronatione sua in nomine Iesu Christi praestito sacramento haec tria promittere populo sibi subdito Inprimis se esse
Cathedrall and collegiate churches as also the Clergie make choice of their Proctors which done and certified to the Bishop he returneth all answerably to his charge at the day These proctors of the Clergie howsoeuer the case of late dayes is altered had place and suffrage in the lower house of Parlament as well as the knights citizens Barons of the Cinque ports and Burgesses For so it plainely appeareth by the Statute anno 21. R. 2. cap. 2. cap. 12. And sithence they were remooued the Church hath daily growne weaker and weaker I pray God that in short time she famish not but that her liberties be better maintained Procurator is vsed for him that gathereth the fruites of a benefice for another man anno 3. R. 2. stat 1. cap. 2. And procuracy is vsed for the specialtie whereby he is authorized Ibid. They are at this day in the West parts called Proctors Profer profrum vel proferum is the time appointed for the accompts of Shyreeues and other officers in the Exchequer which is twice in the yeare anno 51. H. 3. statut quint. And it may be gathered also out of the Register fol. 139. in the writ De Atturnato Vicecomitis pro profro faciendo I reade also of profers anno 32. H. 8. cap. 21. in these words Trinitie terme shall beginne the Monday next after Trinity Sunday whensoeuer it shall happen to fall for the keeping of the essoins profers returnes and other ceremonies heretofore vsed and kept In which place profer seemeth to signifie the offer or indeauour to proceede in action by any man whom it concerneth so to doe See Briton cap. 27. fol. 50. b. 55. a. fol. 80. b. and Eleta lib. 1. cap. 38. § Vtlagati seqq Profer the halfe merke See Halfe merke Profession professio is in the common lawe vsed particularly fot the entring into any religious Order of Friars c. New booke of Entries verbo Profession Profits apprender See Prender Prohibition prohibitio is a writ framed for the forbidding of any court either spirituall or secular to proceed in any cause there depending vpon suggestion that the cognition thereof belongeth not to the said court Fitz. nat br fol. 39. G. but is most vsually taken especially in these dayes for that writ which lyeth for one that is impleeded in the Court Christian for a cause belonging to the temporall iurisdiction or the cognisance of the Kings court whereby as well the partie and his Councell as the Iudge himselfe and the Register are forbidden to proceed any farder in that cause for that it appertaineth to the disinheriting of the Crowne of such right as belongeth vnto it In how many cases this lyeth see Broke hoc titulo and Fitz. na br fol. 39. seqq This writ and the praemunire might in these daies well be spared For they were helpes to the kings inheritance and Crowne when the two swords were in two diuers hands Whereas now both the Iurisdictions being setled in the King there is small reason of either except it be to weatie the subiect by many quircks and delayes from obtaining his right of this prohibition you may reade Bracton also lib. 5. tract 5. cap. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. who saith that it lyeth not after sentence giuen in any cause howsoeuer the case is altered and againe the statute made anno 50. Ed. 3. which ordaineth that aboue one prohibition should not lye in one cause See the diuersitie of prohibitions in the table of the original Regist See the new booke of Entries verbo Prohibition and Fitz. nat br fol. 39. Prohibitio de vastodirecta parti is a writ Iudiciall directed to the tenent and prohibiting him from making waste vpon the land in controuersie during the suite Register Iudiciall fol. 21. It is sometime made to the Shyreeue the example whereof you haue there next following Pro Indiuiso is a possession and occupation of lands or tenements belonging vnto two or more persons whereof none knoweth his seuerall portion as Coparceners before partition Bracton lib. 5. tracta 2. cap. pri nu 7. Prolocutour of the conuocation house prolocutor domus conuocationis is an officer chosen by persons ecclesiasticall publiquely assembled by the kings writ at euery parlament And as there be two houses of conuocation so be there two prolocutours one of the higher house the other of the lower house who presently vpon the first assembly is by the motion of the Bishops chosen by the lower house and presented to the Bishops for their prolocutour that is the man by whom they meane to deliuer their resolutions to the higher house and to haue their owne house especially ordered and gouerned His office is to cause the clerk to call the names of such as are of that house when he seeth cause to cause all things propounded to be read by him to gather the suffrages and such like Promoters promotores be those which in popular and penall actions doe deferre the names or complaine of offenders hauing part of the profit for their reward These were called among the Romaines Quadruplatores or Delatores They belong especially to the Exchequer and the kings bench Smith de Repub Anglo li. 2. cap. 14. Pro partibus liberandis is a writ for the partition of lands betweene coheires Register originall fol. 316. Prophecies prophetia be in our common law taken for wiserdly foretellings of maters to come in certaine hidden and enigmaticall speeches Whereby it falleth out many times that great troubles are stirred in our common wealth and great attempts made by those to whom the speach framed either by the description of his cognisance armes or some other quality promiseth good successe anno 3. Ed. 6. cap. 15. anno 7. eiusdem cap. 11. anno 5. Eliza. ca. 15. But these for distinctions fake are called false or phantasticall prophecies Property proprietas signifieth the highest right that a man hath or can haue to any thing which is no way depending vpon any other mâ—ns courtesie And this none in our kingdome can be said to haue in any lands or tenements but onely the King in the right of his Crowne Because all the lands through the realme are in the nature of fee and doe hould either mediately or immediately of the Crowne See Fee This word neuerthelesse is in our common law vsed for that right in lands and tenements that common persons haue because it importeth as much as vtile dominium though not directum Proprietate probanda is a writ See the originall Regist fol. 83. a. 85. b. It lyeth for him that will proue a propertie before the Shyreeue Brookes Propertie 1. For where a propertie is alledged a replegiare lyeth not Idem ibidem Proprietarie proprietarius is he that hath a propertie in any thing but it is most notoriously vsed for him that hath the fruites of a benefice to himselfe and his heires or successours as in time past Abbots and Priors had
to them and their successours See Appropriation Prorata portionis See Onerando pro rata portionis Protection protectio hath a generall and a speciall signification In the generall it is vsed for that benefite and safetie that euery subiect or Denizen or alien specially secured hath by the Kings lawes And thus it is vsed anno 25. Ed. tertii capite 32. Protection in the speciall signification is vsed for an exemption or an immunitie giuen by the King to a person against suites in lawe or other vexations vpon reasonable causes him thereunto moouing which I take to be a braunch of his prerogatiue And of this protection Fitzh maketh two sortes in his nat br fol. 28. The first forme or sort he calleth a protectiō cum clausula volumus wherof he mentioneth foure particulars A protection quia profecturus for him that is to passe ouer sea in the kings seruice A protection quia moratur for him that is abroad in the Kings seruice vpon the sea or in the marches anno 7. H. 7. cap. 2. A protection for the Kings debter that he be not siewed or attached vntill the King be payed his debt See anno 15. Ed. 3. This some Ciuilians call moratoriam which see In singularibus Marantae verb. Princeps pag. 79. col 2. And a protection in the kings seruice beyond the seas or on the marches of Scotland whereof you may reade something anno 1. R. 2. cap. 8. See the Regist orig fol. 23. and Britton cap. 123. The second forme of protection is tearmed cum clausula Nolu 〈…〉 which is graunted most commonly to a spirituall company for their immunitic from taking of their catell by the Kings ministers But it may be graunted also to one man spirituall or temporall Of these things reade the same authour and the formes of these writs See also in the Register originall fol. 22. 23. And see the new Expositour of lawe termes to what action the kings protection doth not extend See also the new booke of Entries verbo Protection Protonotarie protonotarius See Preignetarie Protestation protestatio is as Iustice Walsh defineth it a defence or safegard to the partie which maketh it from being cōcluded by the act he is about to doe that issue cannot be ioyned vpon it Plowden fol. 276. b. whereof see the Register original fol. 306. b. And see Protest Protest protestari hath two diuers applications one is by way of cautell to call witnesse as it were or openly to affirm that he doth either not at all or but after a sort yeeld his consent to any act as vnto a proceeding of a Iudge in a court wherein his iurisdiction is doubtfull or to answer vpon his oath farder then he by lawe is bounde See Plowden casu Gresbroke fol. 276. b. and the Register orig fol. 306. b. Another is by way of complaint to protest a mans bill For example if I giue mony to a Merchant in Fraunce taking his bill of exchange to be repayed in England by one to whome he assigneth me if at my comming I find not my selfe satisfied to my contentment but either delayed or denyed then I goe into the Burse or some open concurse of Merchants and protest that I am deceiued by him And thereupon if he haue any goods remaining in any mans hands within the Realme the lawe of Merchants is that I be paid out of them Prouuer Probator See Approuuer anno 5. H. 4. ca. 2. See Approuours Prouince Prouincia was vsed among the Romans for a Country without the compasse of Italie gained to their subiection by the sword wherevpon the part of Fraunce next the Alpes was soe called of them when it was in their dominion and of that carieth the same name at this present But with vs a province is most vsually taken for the circuit of an Archebishops Iurisdiction as the Province of Canterbury and the province of Yorke anno 32. H. 8. cap. 23. anno 33. eiusdem cap. 31. yet it is vsed diuers times in our statutes for seuerall parts of the Realme Provinciall Prouincialis is a cheife gouernour of an order of Friers anno quar Henr. quar cap. 17. Protoforestarius was he whom the auncient kings of this Realme made chiefe of Winsour forest to heare all causes of death or mayhem or of slaughter or of the Kings deare within the Forest Camd. Britan. pag. 213. See Iustice of the Forest Prove See Profe Prouision Provisio is vsed with vs as it is vsed in the Canon lawe for the providing of a Bishop or any other person of an ecclesiasticall liuing by the Pope before the Incumbent be dead It is also called gratia expectatiua or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenus de sacris ecclesiae ministoriis beneficiis lib. 3. cap. 2. but also for England particularly in diuers statuts of the Realme viz. anno 25. Ed. 3. cap. 22 sttat 4. statu 5. commonly called the statute de prouiscribus anno 27. eiusdem cap. i. anno 38. eiusdem stat 2. cap. 1. 2. 3. 4. anno 38. eiusdem anno 2. Rich. 2. cap. 7. anno 3. eiusdem cap. 3. anno 7. eiusdem cap. 12. anno 12. eiusdem cap. 15. anno 13. eiusdem stat 2. cap. 2. 3. anno 16. eiusdem cap. 5. anno 2. H. 4. cap. 3. 4. anno 5. eiusdem cap. pri anno 7. eiusdem cap. 6. 8. anno 9. eiusdem cap. 8. anno 3. H. 5. cap. 4. See Praemunire Provisour Provisor is he that sieweth to the court of Rome for a prouision old nat br fol. 143. See Provision Proviso is a condition inserted into any deede vpon the obseruance wherof the validitie of the deede consisteth which forme of condition seemeth to be borrowed from Fraunce for Pourve u Gallicum semper conditionem inducit Tiraquel tomo 3. pag. 216. Our common lawyers say that it sometime signifieth but a couenant whereof you haue a large disdispute in the 2. booke of Sir Ed. Cokes reports in the Lord Cromwels case It hath also another signification in maters Iudiciall as if the plaintife or demaundant desist in prosecuting an action by bringing it to a triall the defendant or tenent may take out the venire facias to the Shyreeue which hath in it these words Prouiso quòd c. to this ende that if the plaintife take out any writ to that purpose the shyreeue shall summon but one Iurie vpon them both See old natura breuium in the writ Nisi prius fol. 159. Purchas See pourchas Purfles of a womans growne anno 33. H. 8. cap. 5. Purgation Purgatio is a cleering of a mans selfe from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great vse in England touching maters of felonie imputed to Clerks in former time as appeareth by Stawnf pl.
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
of pasture turbarie and piscary to be things corporal looke Common Apporcuâ—â—ent Apportion 〈…〉 tuÌ„ is a dividing of a rent into parts according as the land whence the whole rent issueth is divided among two or more See the new termes of lawe Apprentice Apprenticius commeth of the French aprenti i. tyro rudis discipulus or of the verb apprendre i. addiscere discere and signifieth with vs one that is bound by couenant in word or writing to serue another man of trade for certaine yeares vpon condition that the artificer or man of trade shall in the meane time endeavour to instruct him in his art or misterie S. Thomas Smith in his booke de rep Ang. li. 3. ca. 8. saith that they are a kinde of bond men differing onely in that they be seruants by couenant and for a time Of these you may reade divers statutes made by the wisedome of our realme which I thinke superfluous heere to mention Appropriation appropriatio proceedeth from the French approprior i. apeare acc 〈…〉 re and properly signifieth in the lawe of England a severing of a benefice ecclesiasticall which originally and in nature is iuris diuini in p 〈…〉 nullius to the proper and perpetuall vse of some Religious house or Deane c. and Chapter Bishop rick or Colledge And the reason of the name I take to be this because that whereas persons ordinarily be not accounted domini but vsufructuarij hauing no right of fee simple Littleton titulo Discontinuance these by reason of their perpetuitie are accounted owners of the fee simple and therefore are called proprietarij And before the time of Richard the second it was lawfull as it seemeeth simply at the least by mans lawe to appropriate the whole fruites of a benefice to an abbey or priory they finding one to serue the cure But that King made so euill a thing more tolerable by a lawe whereby he ordeined that in euery licence of appropriation made in chauncerie it should expresly be contained that the diocesan of the place should prouide a conuenient summe of money yearely to be paide out of the fruites toward the sustenance of the poore in that parish and that the Vicar should be well and sufficiently endowed anno 15. Rich. 2. ca. 6. Touching the first institution other things worth the learning about appropriations reade Plowden in Grendons case fo 496. b. seqq as also the new termes of lawe verbo Appropriation To an appropriation after the licence obteined of the King in chauncerle the consent of the Diocesan Patron and incumbent are necessarie if the Church be full but if the Church be voide the Diocesan and the Patron vpon the Kings licence may conclude it Plowden vbi supra To dissolue an appropriation it is enough to present a Clerke to the Bishop For that once done the benefice returneth to the former nature Fitzh nat br fo 35. 〈◊〉 Approvour approbator commeth of the French approuver i. approbare comprobare calculum albo adijcere It signifieth in our common law one that coÌ„fessing felony of him self appealeth or accuseth another one or more to be guilty of the same he is called so because he must prooue that which he hath alleadged in his appeale Stawnf pl. cor fo 142. And that proofe is by battell or by the countrey at his election that appealed The forme of this accusation you may in part gather by M. Cromptons Iustice of peace fo 250. 251. that it is done before the coroner either assigned vnto the selon by the court to take and record what he saith or els called by the felon himselfe and required for the good of the Prince common wealth to record that which he saith c. The oath of the approuer when he beginneth the combate see also in Crompton in the very last page of his booke as also the proclamation by the Herald Of the antiquity of this law you may reade something in Horns myrror of Iustices l. 1. in fine cap. del office del coroner Of this also see Bracton more at large lib. 3. tract 2. cap. 21. 34. and Stawnf pl. cor lib. 2. cap. 52. cum seq Approuers of the king Appruatores regis be such as haue the setting of the kings demeasneâ— in smal Manors to the kings best aduantage anno 51. H. 3. stat 5. See Approue Approue appruare commeth of the French approuer i. approbare comprobare calculum albo adiicere it signifieth in the common lawe to augment or as it were to examine to the vttermost For example to approue land is to make the best benefite thereof by increasing the rent c. So is the Substantiue approuement vsed in Cromptons iurisd fol. 153. for the profits them selues So is it likewise in the statute of Merton cap. 4. anno 2. H. 3 land newly approued Old nat br fol. 79. So the Sheriffes called themselues the kings approuers anno 1. Ed. 3. cap. 8. which is as much in mine opinion as the gatherers or exactors of the kings profits And anno 9. H. 6. cap. 10. Bailiffes of Lords in their franchises be called their approuers But anno 2. Ed. 3. cap. 12. Approuers be certaine men especially sent into seuerall counties of the Realme to increase the Fermes of hundreds and wapentakes which formerly were set at a certaine rate to the Sheriffes who likewise dimised them to others the countie Court excepted Approuement appruamentum see Approue See the Register iudiciall fol. 8. br 9. a. See the new tearmes of lawe verbo Approuement Arbitratour arbiter may be taken to proceede from either the Latine arbitrator or the French arbitre it signifieth an extraordinarie iudge in one or moe causes betweene party and partie chosen by their mutuall consents West parte 2. Symb. titulo Compromise Sect. 21. who likewise diuideth arbitrement into generall that is including all actions quarels executions and demands and special which is of one or moe matters facts or things specified eodem sect 2. 3. 4. T 〈…〉 vilians make a difference betweene arbitrum arbitratorem l. 76. Î . pro socio For though they both ground their power vpon the compromise of the parties yet their libertie is diuers For arbiter is tyed to proceede and iudge according to lawe with equitie mingled arbitrator is permitted wholy to his owne discretion without solemnitie of processe or course of iudgement to heare or determine the controuersie committed vnto him so it be iuxta arbitrium boniviri Arches court Curia de arcubus is the chiefe and auncientest CoÌ„sistorie that belongeth to the Archbishop of Canterburie for the debating of spiritual causes and is so called of the Church in London dedicated to the blessed Virgin commonly called Bow church where it is kept And the Church is called Bow church of the fashion of the Steeple or clocher thereof whose toppe is raised of stone pillars builded arch-wise like so many bent bowes The Iudge of this Court is
the Lord Chancelour or by our appointment before Iustices in eyre in open court Glanvile li. 11. cap. pri Britton cap. 126. whome of this thing you may reade more at large There be also in respect of the diuers courts Atturneys at large and Atturneys special belonging to this or that court onely The name is borrowed of the Normanes as appeareth by the custumarie cap. 65. And I find the word attornati or as some reade tornati in the same signification in the title de statu regularium ca. vnico § Perrò i. n sexto where the glosse saith that Atturnati dicuntur Procuratores apud acta constituti Our old Latine word for this seemeth to be responsalis Bract. lib. 4. cap. 31. lib. 5. parte 2. cap. 8. and so it is in Scotland at this day but especially for the Atturney of the defendant as prolocutor is for the persewer M. Skene de verb. significatione Responsalis as Sigâ—nius witnesseth in his first booke de regno Italie was in auncient time the title of the Popes ambassadour pag. 11. Atturney of the court of wards and Liueries Atturnatus regis in curia Wardorum LiberaturaruÌ„ is the third officer in that Court who must be a person learned in the lawes of the land being named and assigned by the king At his admission into the office he taketh an oath before the Master of the said court well and truly to serue the king as his Atturney in all courts for and concerning any mater or cause that toucheth the possessions and hereditaments limited to the suruey and gouernement of this court and to procure the kings profite thereof truly to councell the king and the Master of the Court in all things concerning the same to the best of his cunning witte and power and with all speed and diligence from time to time at the calling of the Master to endeuour himself for the hearing and determination indifferently of such matters causes as depend before the Master not to take any gift or reward in any mater or cause depending in the court or else where wherein the king shall be partie whereby the king shall be hurt hindred or disinherited to do to his power wit and cunning all and euery thing that appertaineth to his office Atturney of the Court of the Duchie of Lancaster Atturnatus curia Ducatus Lancastriae is the second officer in that Court and seemeth for his skill in law to be there placed as assessor to the Chanceler of that court being for the most part some honorable man and chosen rather for some especiall trust reposed in him to deale betweene the king and his tenents then for any great learning as was vsuall with the Emperors of Rome in the choice of their Magistrates Attournment attornamentum commeth of the French tourner i. vertero and in our common lawe is an yeelding of the tenent to a new Lord or acknowledgement of him to be his Lord. For otherwise he that buyeth or obtaineth any lands or tenements of another which are in the occupation of a third cannot get possession yet see the statute an 27. H. 8. cap. 16. The words vsed in atturnment are set downe in Litleton I agree me to the graunt made to you c. But the more common atturnment is to say Sir I attourn to you by force of the same graunt or I become your tenent c. or else deliuer vnto the grauntee a peny halfepeny or farding by way of attournment Litleton lib. 3. cap. Attournment 10. whome you may reade more at large and find that his definition proceedeth from more lawe then Logickeâ— because he setteth downe diuers other cases in the same chapter whereto attournment appertaineth as properly as vnto this But you may perceiue there that attournment is the transposing of those duties that the tenent ought to his former Lord vnto another as to his Lord and also that attournment is either by word or by act c. Also attournment is voluntarie or else compulsorie by the writ tearmed Per quaeseruitia Owld nat br fol. 155. or sometime by distresse Fitzh nat br fol. 147. Lastly attournment may be made to the Lord himselfe or to his Steward in Court Kitchin fol. 70. And there is attournment in deede and attournment in lawe Coke vol. 6. fo 113. a. Attournment in lawe is an act which though it be no expresse attournment yet in intendment of law is all one Atturnato faciendo vel vecipiendo is a writ which a man oweing suite to a countie hundred weapon take or other court and desiring to make an attourney to appeare for him at the same court whome he doubteth whether the Shyreeue or bailiffe will admit or not for his Attourney there purchaseth to commaund him to receiue such a man for his attourney and admit his appearance by him The forme and other circumstances whereof see in Fitzh nat br fo 156. Audiendo terminando is a writ but more properly tearmed a commission directed to certaine persons when as any great assembly insurrectioÌ„ or heinous demeanure or trespasse is committed in any place for the appeasing and punishment thereof which you may read at large in Fitzh nat br fo 110. See also oyer terminer Andience courte Curia audientiae Cantuariensis is a court belonging to the Archbishop of Canterburie of equall authoritie with the Arches court though inferior both in dignity and antiquitie The originall of this court was because the Archeb of Canterbury heard many causes extra iudicially at home in his owne palace in which before he would finally determine any thing he did vsually commit them to be discussed by certaine learned men in the ciuile canon lawes whome thereupon be termed his auditors And so in time it grew to one especiall man who at this day is called Causarum negotiorumque audientiae Cantuariensis auditor seu officialis And with this office hath heretofore commonly bene ioyned the Chancelership of the Archbishop who medleth not in any point of coÌ„tentious iurisdiction that is desciding of causes betweene party and party except such as are ventilated pro forma onely as the confirmation of bishops elections or such like but onely of office and especially such as are voluntariae iurisdictionis as the granting of the custody of the spiritualties during the vacation of Bishoprickes Institutions to benefices dispensing with banes of matrimonie and such like But this is now distinguished in person from the Audience Of this Audience court you may reade more in the booke intituled De antiquitate ecclasiae Brittannicae historia Audita querela is a writ that lieth against him who hauing taken the bond called statute Merchant of another and craving or hauing obteined execution of the same at the Maior Bayliffes hands before whome it was entred at the complaint of the partie who entred the same vpon suggestion of some iust cause why execution should not be graunted as a release or other exception This writ is
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
certificate from the Bishop of the dioces to the Kings Iustices after iust enquiry made that the party inquired of is a bastard or not a bastard vpon some question of inheritance Bastardy speciall is a suite commenced in the Kings court against him that calleth another bastard so termed as it seemeth because bastardy is the principall and especiall case in triall and no inheritance contended for And by this it appeareth that in both these significations bastardy is rather taken for an examination or triall whether a mans birth be defectiue or illegitimat itselfe See Broke titulo Bastardy 〈◊〉 29. and Docter Ridlies booke pa. 203. 204. Baston is in french a staffe club or coulestaffe It signifieth in the statuts of our realme one of the warden of the fleets his seruants or officers that attendeth the Kings court with a red staffe for the taking of such to warde as be committed by the court So it is vsed anno 1. R. 2. ca. 12. anno 5. Eliz. ca. 23. Batable ground seemeth to be the ground in question heretofore whether it belōged to England or Scotland lying betweene both the kingdomes anno 23. H. 8. ca. 16. as if we should say debatable ground For by that name M. Skene de verbo sign verbo Plegius calleth ground that is in controuersie betweene two Battell duellum commeth of the French bataille i. bellum praelium and signifieth in our cōmon lawe a triall by combate The maner wherof becauseit is long and full of ceremonies I doe for the better and more full vnderstanding of it referre you to Glanvile lib. 2. cap. 3. 4. 5. to Bracton lib. 3. tract 2 cap. 21. fol. 140 to Britton cap. 22. and to S. Thomas Swith de repub Anglorum li. 2. cap. 7. lib. 3. cap. 3. See Bombat Battery cōmeth of the French batre i. verberare cudere percutere and signifieth in our common lawe a violent striking of any man which the Civilians call iniuriam personalem quia personae infertur per verbera cruciatū c. Wesemb parat Π. de Iniur fam libel Baubels baubella is an old word signifying Iewels Ro. Hoveden parte poster suorum annal fo 449. b. Bearding aliâs Barding of wooll See Clack Bearers signifie all one with Maintainers anno 20. Edvar 3. cap. 5. Beconage Beconagium signifieth money paid for the maintenance of Becons Bewpleder pulchrè placitando is made of 2. french words beau 1. decorus formosus pulcher and pleder 1. disputare causam agere It signifieth in our common law a writ vpon the statute of Marlbridge or Marlborow made the 52. yeare of H. 3. ca. 11. whereby it is provided that neither in the circuit of Iustices nor in Counties Hundreds or Courts-baron any fines shall be taken of any man for faire pleading that is for not pleading fairely or aptly to the purpose Vpon which Statute this writ was ordained against those that violate the lawe herein See Fitz. nat br fol. 270. A. B. C. whose definition is to this effect The writ vpon the Statute of Marlebridge for not faire pleading lyeth where the Shyreeue or other Bailiffe in his court will take fine of the party plaintiffe or defendant for that he pleadeth not fairely c. Bedell Bedellus commeth of the French bedeau i. apparitor it signifieth with vs nothing else but a messenger or seruitour belonging to a Court as a Court-baron or Leet Kitchin fol. 46. where you may see his oath or to the Court of the Forest Manwood parte pri of his Forest lawes pag. 221. in these words A Bedell is an officer or seruant of the Forest that doth make all maner of garnishments of the Courtes of the Forest and also all maner of Proclamations as well within the Courts of the Forest as without and also doth execute all the processes of the Forest He is like to a Bailiffe errant of a Shyreeue in a countie c. Benefice Beneficium is generally taken for all ecclesiasticall liuings be they dignities or other as anno 13. R. 2. sat 2. ca. 2 where benefices are diuided into electiue and benefices of gift So is it vsed in the Canon lawe also Duarenus de beneficiis lib. 2. cap. 3. Beneficio primo ecclesiastico habendo is a writ directed from the King to the Chanceler to bestow the benefice that first shall fall in the kings gift aboue or vnder such a valew vpon this or that man Regist orig fol. 307. b. Benevolence Benevolentia is vsed both in the Chronicles and Statutes of this realme for a voluntarie gratuitie giuen by the subiects to the King Looke Stowes annals pag. 701. That it hath bene something aunciently accustomed it appeareth by him and by the Statute anno 1. Ric. 3. cap. 2. where it is called a newe imposition and in that respect reprehended by that tyrant in his predecessors whether iustly or not I cannot say nor mind to dispute But Stowe pag. 791. saith that the inuention grewe from Edward the fourths dayes You may find it also anno 11. H. 7. ca. 10. to haue bene yeelded to that worthy Prince in regard of his great expences in wars and otherwise This is also mentioned and excepted out of the pardon anno 1. Ed. 6. cap. 15. It is in other nations called subsidium charitativum giuen somtime to Lords of the fee by their tenents somtime to bishops by their Clergy Matthaeus de Afflictis de scis 136. Cassan de conseut Burg. pag. 134. 136. Baldus consitio 120. vol. 6. pag. 230. Of this Maenochius maketh mention lib. 2. centur 〈◊〉 ca. 178. 179. shewing when it is lawful for a Prelate charitativum subsidium à sibi subditis exigere quanta debeat esse eius summa setting downe eight iust causes of this exaction Besaile proavus is horowed of the French bisayeul i. le pere de man pere grand the father of my grandfather In the common law it signifieth a writ that lieth where the great grandfather was seised in his demesne as of fee of any lands or tenements in fee-simple the day that be dyed and after his death a strāger abateth or entreth the same day vpon him and keepeth out his heyre c. The forme and farder vse of this writ reade in Fitz. nat br fol. 221. D. E. F. c. Beastes of chace Ferae campestres be fiue of the Forest chace or parke that is the Bucke the Doe the Foxe the Martron and the Roe Manwood parte prim of his Forest lawes pag. 342. parte 2. cap. 4. num 2. Beastes of the forest ferae sylvestres are the Hart the Hind the Hare the Boare and the Wolfe Manwood parte 2. of his Forest lawes cap. 4. num 1. Beasts and Fowles of Waren are the Hare Conie Fesant and the Pertridge Manwood parte 2. cap. 4. num 3. Bestaile commeth of the French bestial i. pecus it seemeth with vs to signifie all kind of catell taken for the kings provision
or reall Personall may be so called in two respects one because they belong immediatly to the person of a man as a bowe horse c. the other for that being any way withheld iniuriously from vs we haue no meanes to recouer them but by personall action Chatels reall be such as either appertain not immediatly to the person but to some other thing by way of dependencie as a boxe with charters of land the body of a ward apples vpon a tree or a tree it selfe growing on the ground Cromptons Iustice of peace fo 33. B or els such as are necessary issuing out of some immoveable thing to a person as a lease or rent for tearme of yeares Also to hould at will is a chatell reall New tearmes verbo Chatell The ciuilians comprehend these things as also lands of what kin de or hould so euer vnder bona bona autē diuiduntur in mobilia immobilia mobilia verò in ea quae se movent vel ab aliis moventur v. legem 49. l. 208 〈◊〉 de verb. significa interpretes ibidem Bract. also ca. 3. li. 3. nu 3. 4. seemeth to be of the same iudgement Catallis captis nomine districtionis is a writ which lyeth within a borowe or within a house for rent going out of the same and warranteth a man to take the doores windowes or gates by way of distresse for the rent Old nat br fo 66. Catallis reddendis is a writ which lyeth where goods being deliuered to any man to keepe vntill a certaine day and be not vpon demande deliuered at the day And it may be otherwise called a writ of detinew See more of it in the Register orig fo 139. and in the ould nat br fo 63. This is answerable to actio depositi in the ciuile lawe Catchepolle though it now be vsed as a word of contempt yet in auncient times it seemeth to haue bene vsed without reproch for such as we now call sergeants of the mace or any other that vse to arrest men vpon any cause anno 25. Ed. 3. stat 4. ca. 2. Cathedrall See church Casu matrimonii praelocuti is a writ which lyeth in case where a woman giueth lands to a man in fee simple to the intent he shall mary her and refuseth so to doe in reasonable time being required thereunto by the woman The forme and farder vse hereof learne in the Register orig fol. 233. and in Fitzh nat br fo 205. Causam nobis significes is a writ which lyeth to a Mayer of a towne or city c. that formerly by the kings writ being commaunded to giue seisin vnto the kings grantee of any land or tenements doth delay so to do willing him to shew cause why he so delayeth the performance of his charge Coke li. 4. casu communalty des Sadlers fo 55 b. Cautione admittenda is a writ that lyeth against the Bishop houlding an excommunicate person in prison for his contempt notwithstanding that he offereth sufficient caution or assurance to obey the commandments and orders of holy church from thence forth The forme and farder effect whereof take out of the Regist orig pa. 66. and Fitzh nat br fol. 63. Century centuria See Hundred Cepi corpus is a returne made by the Shyreue that vpō an exigēd he hath taken the bodie of the partie Fitzh nat br fo 26. Certiorari is a writ issuing out the chauncerie to an inferiour courte to call vp the records of a cause therein depending that conscionable iustice therein may be ministred vpon complaint made by bill that the partie which seeketh the said writ hath receiued hard dealing in the said court Termes of the lawe See the diuers formes and vses of this in Fitzh nat br fo 242. as also the Register both originall and iudiciall in the tables verbo Certiorari Cromptō in his Iustice of peace fo 117. saith that this writ is either returnable in the Kings bench and then hath these wordes nobis mittatis or in the chauncerie and then hath in cancellaria nostra or in the common bench and then hath Iusticiariis nostris de banco The word certiorare is vsed diuers times in the digest of the ciuile lawe but our later Kritiques think it soe barbarouse that they suspect it rather to be foisted in by Tribonian thē to be originally vsed by those men of whose workes the saide digest is compiled Prataeus in suo lexico Certificat certificatoriū is vsed for a wirting made in any courte to giue notice to another courte of any thing done therein As for example a certificate of the cause of attainte is a transcript made briefely and in few words by the clerke of the Crowne clerke of the peace or clerke of assise to the courte of the Kings benche conteying the tenure and effect of everie endictment outlawrie or conviction and clerke attained made or pronounced in any other court an 34. H. 8. c. 14. Of this see more in Certificat d'evesque Broke f. 119. Certification of assise of novel dissessin c. Certificatio assisae novae disseisinae c. is a writ graunted for there examining or reuew of a mater passed by assise before any Iustices and is called certificatione novae disseisine Old nat br fo 181. Of this see also the Register Original fo 200. and the newe booke of entrise verbo Certificat of assise This word hath vse where a man appearing by his bayliffe to an assise brought by another hath lost the day and hauing something more to pleade for himselfe as a deede of release c. which the bayliffe did not or might not pleade for him desireth a farder examination of the cause either before the same Iustices or others and obteineth leters patents vnto them to that effect The forme of these leters patents you may see in Fitzh nat br fo 181. and that done bringeth a writ to the Shyreeue to call both the party for whome the assise passed and the Iurie that was empaneled vpon the same before the said Iustices at a certaine day and place And it is called a certificate because in it there is mention made to the Shyreeue that vpon the parties complainte of the defectiue examination or doubts yet remaining vpon the assise passed the King hath directed his leters patēts to the Iustices for the beter certifiing of themselues whether all points of the said assise were duly examined yea or not See farder old nat br and Fitzh vbi supra Of this also you may reade Bracton li. 4. ca. 19. nu 4. in fine 5. 6. where he discusseth the reason of this pointe very learnedly and lastly Horn in his Myrrour of Iustices li. 3. ea finali § en eyde des memoyres c. Certificando de recognitions Stapulae is a writte directed to the Mayor of the staple c. cōmaunding him to certifie the chaunceler of a statute of the staple taken before him betweene such and such in case where
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
pr. cap. 18. which reade See Fine Common plees communia placita is the kings Court now held in Westminster hall but in auncient time moueable as appeareth by the statute called Magna charta cap. 11. as also anno 2. Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his readings saith that vntill the time that Henry the third granted the great charter there were but two courts in all called the Kings courts whereof one was the Exchequer and the other the kings bench which was then called curia Domini regis and aula regia because it followed the court or king and that vpon the grant of that charter the court of common plees was erected and setled in one place certaine viz. at Westminster And because this court was setled at Westminster wheresoeuer the king lay thereupon M. Gwin vbi supra saith that after that all the writs ranne Quòd sit coram Iusticiariis meis apud Westmonasterium whereas before the partie was cōmanded by thē to appeare coram me vel Iusticiariis meis simply without addition of place as he well obserueth out of Glanvile and Bracton the one writing in Henry the seconds time before this court was erected the other in the later end of Henry the thirds time who erected this court All ciuill causes both reall and personall are or were in former times tryed in this court according to the strict lawe of the realme and by Fortescue cap. 50. it seemeth to haue bene the onely court for reall causes The chiefe Iudge thereof is called the Lord chiefe Iustice of the common plees accompanied with 3. or 4. assistants or associates which are created by leters patents from the king and as it were enstalled or placed vpon the bench by the Lord Chaunceler and lord chiefe Iustice of the court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the officers belonging to this court are these the custos breuium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerke of the warrants Clerke of the Iuries or iurata writs Clerke of the Treasurie Clerke of the kings siluer Clerke of the essoins Clerke of the outlawries Whose distinct functions looke in their places See Common bench Common day in plee of land an 13. R. 2. stat 1. cap. 17. signifieth an ordinarie day in the court as Octavis Michaelis quindena pascae c. as you may see in the statute made anno 51. H. 3. concerning generall dayes in the bench Common house of parlament is vsed for the nether house because the commōs of the realme that is the knights of the shires and burgeses possesse that house Crompton iurisd 9. Commotes seemeth to be compounded of the prepositiō con and mot i. dictio verbum and signifieth in Wales a part of a shire as a hundred anno 28. H. 8. ca. 3. It is written commoithes anno 4. H. 4. ca. 17. and is vsed for a gathering made vpon the people as it seemeth of this or that hundred by welsh minstrels Common law comunis lex hath three diuers significatiōs which see in the author of new termes of law verbo Common law Communi custodia is a writ that lyeth for that lord whose tenent houlding by knights seruice dyeth and leaueth his eldest sonne vnder age against a straunger that entreth the land and obtaineth the ward of the body It may seeme to take the name from the common custom or right in this case which is that the lord haue the wardship of his tenent vntill his full age or because it is common for the recouery both of land and tenent as appeareth by the forme thereof Old nat br fo 89. See also the Register orig fo 161. a. Communi placito non tenendo in scaccario is a writ directed to the treasurer and barons of the exchequer forbidding them to hould plee betweene two common persons in that court neither of them belonging toward the said court Register orig fo 187. b. Companion of the garter is one of the knights of that most noble and honourable order anno 24. H. 8. ca. 13. See Garter Compromis compromissum is a mutuall promise of two or more parties at difference to referre the ending of their controuersies to the arbitriment and equitie of one or more arbitratours West defineth is thus parte 2. Symbol titulo Compromise sect pri A compromise or submission arbitrium compromissum submissio is the faculty or power of pronouncing sentence betweene persons at controuersie giuen to arbitratours by the parties mutuall priuate consent without publique authority Computo is a writ so called of the effect because it compelleth a baylife chamberlaine or receiuer to yeld his accoumpt Old nat br fo 58. It is founded vpon the statut of Westm 2. ca. 2. anno 13. Ed. i. which for your beter vnderstanding you may read And it lyeth also for executours of executours anno 15. Ed. 3. statut de prouis victuall ca. 5. Thirdly against the garden in socage for waste made in the minority of the heire Marlb ca. 17. And see farder in what other cases it lyeth Register orig fo 135. old nat br vbi supra Fitzh nat br fo 116. Concealers be such as finde out concealed lands that is such lands as priuily are kept from the king by common persons hauing nothing to shew for them anno 39. Eliza. ca. 22. They be so called a concelando as mons a mouendo per antiphrasin Concord concordia is in the common law by a peculiar signification defined to be the very agreement betweene parties that intend the leuying of a fine of lands one to the other how and in what maner the land shall passe For in the forme thereof many things are to be considered West parte 2. Symbol titulo Fines and concords sect 30. whome read at large Concord is also an agreement made vpon any trespas cōmitted betweene two or more and is diuided into a concord executory and a concord executed See Plowden casu Reniger Fogassa fo 5. 6. where it appeareth by some opinion that the one bindeth not as being imperfect the other absolute and tyeth the parties and yet by some other opinion in the same case it is affirmed that agreements executory be perfect and doe noe lesse binde then agreements executed fo 8. b. Concubinage concubinatus is an exception against her that sieweth for her dower whereby it is alleadged that shee was not a wife lawefully maried to the party in whose lands shee seeketh to be endowed but his concubine Britton ca. 107. Bract. li. 4. tract 6. ca. 8. Condition conditio is a rate maner or lawe annexed to mens acts staying or suspending the same and making them vncertaine whether they shall take effect or no West parte 1. symb li. 2. Sect. 156. In a lease there may be two sorts of conditions condition collaterall or condition annexed to
that they were neuer the lesse called by the name of their office only some others had it simply as of it selfe and were thereof named custodes pacis wardens or conservators of the peace The former and later sort he againe subdivideth Which read in his eirenarcha li. 1. ca. 3. Consideration consideratio is that with vs which the Grecians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the materiall cause of a contract without the which no contract bindeth This consideration is either expressed as if a man bargain to giue 20. shillings for a horse or els implyed as when the law it selfe inforceth a consideration as if a man come into a common Inne and there staying sometime taketh both meat and lodging or either for himselfe and his horse the lawe presumeth that he intendeth to pay for both though nothing be farder couenanted betweene him and his host and therefore if he discharge not the house the host may stay his horse Fulb parel tracta Contracts fo 6. a. b. Consistory consistorium is a word borowed of the Italians or rather Lombards signifing as much as praetorium or tribunal vocab vtriusque iur It is vsed for the place of iustice in the courte christian Convocation house domus convocationis is the house wherein the whole clergie is assembled for consultation vpon maters ecclesiasticall in time of parlament And as the house of Parlament so this consisteth of two distinct houses one called the higher conuocation house where the Archebishops and Bishops sitte seuerally by themselues the other the lower conuocation house where all the rest of the clergy are bestowed See Prolocutor Conusance See Cognisance Conuzour See Cognizour Consolidation consolidatio is vsed for the combining and vniting of two benefices in one Brooke titulo Vnion This word is taken from the civile lawe where it signifieth properly an vniting of the possession occupation or profit with the propertie For example if a man haue by legacie vsumfructum fundi and after ward buy the propertie or fee simple as we call it of the heire hoc casu consolidatio fieri dicitur § 3. De vsufructu in Institut See Vnion and Vnitie of possession Conspiracie conspiratio though both in Latine and French it be vsed for an agreement of men to doe any thing either good or bad yet in our lawyers bookes it is alway taken in the evill part It is defined anno 34. Ed. pri statut 2. to be an agreement of such as doe confedre or binde themselues by oath covenant or other allyance that everie of them shall beare and ayde the other falsly and malitiously to indight or falsly to mooue ormaintaine plees and also such as cause childrē within age to appeale mē of felonie whereby they are imprisoned and sore grieued and such as reteine men in the contries with liueries or feese to maintaine their malitious enterprises And this extendeth as well to the takers as to the givers And Stewards and baylifes of great lords which by their seignorie office or power vndertake to beare or maintaine quarels plees or debates that concerne other parties then such as touch the estate of their lords or themselues anno 4. Ed. 3. cap. 11. anno 3. H. 7. ca. 13. of this see more an 1. H. 5. c. 3. an 18. H. 6. c. 12. as also in the new book of ētries ver Cōspiracy Conspiracie in the places before mentioned is taken more generally and is confounded with maintenance and champertie But in a more speciall signification it is taken for a confederacie of two at the least falsly to endict one or to procure one to be indicted of felonie And the punishment of conspiraciē vpon an endictment of felonie at the kings suyte is that the partie attainted leese his franke lawe to the intent that he be not empaneled vpon iuries or assises or such like employments for the testifiing of truth And if he haue to doe in the kings court that he make his atturney and that his lands goods and chatels be seysed into the kings hands his lands estreaped if he finde no better fauour his trees raced and his body committed to prison 27. lib. assis 59. Cromptons Iustice of peace fo 156. b. This is called vilanous iudgement or punishment See Vilanous iudgement But if the partie greiued siew vpon the writ of conspiracie then see Fitzh nat br f. 114. D. 115. I. Conspiracie may be also in cases of lesse weight Idem fo 116. A. c. See Franke law Conspiratione is a writ that lieth against conspiratours Fitz. nat br fo 114. d. Cromptons iurisd fo 209. See also the Regist fo 134. Constable constabularius vel conestabulis is a Saxon word compounded of cuning or cyng and staple which doe signifie the stay and hold of the king Lamb. duties of constables nu 4. But I haue heard it made heretofore of these two words comes stabuli which seemeth to me the more probable because we haue this officer from France as most others and not from the Saxons And Tilius in his commentaries de rebus gallicis li. 2. ca. de conistabili hath the same etymologie giuing the reason thereof quia praeest stabulo i. equiliregis which office is auncient heere in England and mentioned by Bracton seeming to answere him that was called tribunus celervm vnder the first kings of Rome and Magister equitum afterward The Germans that inhabite the side of the riuer Rhene note him by this title die constofler and in counterfeit latine constofelerus and in owlder time constafolarius that the Romanes were wont to tearme assessorem iudicij And as Spiegelius in his lexicon noteth deriue the word a stafolo comitis i. gradu Iudicis fiscalis For staffel in their language as he saith signifieth a grees or steppe of a paire of staires And therevpon staffelstein being a word vsed in their very awncient writings signifieth as much as praetorium But a man many times may shew in this kinde more curiositie then discretion as perhaps some will iudge me heere to haue done And therefore enough of this This word is diuersly vsed in our common law first forthe cunstable of England who is also called marshiall Stawn pl. cor fo 65. of whose great dignitie and authoritie a man may find many arguments and signes both in the statutes and chronicles of this realme His sway consisteth in the care of the common peace of the land in deedes of armes and maters of warres Lamb. vbi supra with whome agreeth the statut anno 13. R. 2. ca. 2. statu 1. Smith de Repub. Anglo li. 2. c. 25. Of this officer or magistrate M. Gwyn in the preface to his readings saith to this effect The court of the constable and marshiall determineth cōtracts touching deeds of armes out of the realme and handleth things cōcerning wars within the realme as combats blasōs of armorie c. But it may not deale with battel in appeales nor generally with any
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
these words saluis omnibus aduantagiis tam ad iurisdictionem Curia quà m ad breue narrationem or such like Britton vseth it for the conference of a Iury vpon the cause committed vnto them ca. 53. See Imparlance Emprouement See Improuement Encheson A. 50. Ed. 3. ca. 3. is a french word signifiing as much as occasión cause or reason wherefore any thing is done See Skene de verbo significa verbo Encheson Encrochement or Accrochemēt commeth of the french Accrocher 1. apprehendere inuncare harpagare and that commeth of Crochure 1. aduncitas or crochu 1. aduncus Encrochement in our common law signifieth an vnlawfull gathering in vpon another man For Example if two mens grounds lying togither the one presseth too farre vpon the other or if a tenent owe two shillings rent seruice to the Lord the Lord taketh three So Hugh and Hugh Spencer encroched vnto them royall power and authoritie annoprim Ed. 3. in prooem Enditement Indictamentum commeth of the French Enditer i. deferre nomen alicuius indicare or from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because M. Lamberd will haue it so Eirenar lib. 4. cap. 5. pag. 468. It signifieth in our common lawe as much as Accusatio in the ciuile lawe though it haue not in all points the like effect West parte 2. symb titulo Inditements defineth it thus An Inditement is a Bill or declaration made in forme of lawe for the benefite of the common wealth of an accusation for some offence either criminall or penall exhibited vnto Iurours and by their verdict found and presented to be true before an Officer hauing power to punish the same offence It is an accusation because the Iury that inquireth of the offence doth not receiue it vntill the party that offereth the Bill appeare so farre in it as to subscribe his name and offer his oth for the truth thereof It differeth from an Accusation in this that the preferrer of the Bill is no way tyed to the proofe thereof vpon any penalty if it be not proued except there appeare conspiracy Wherefore though moued by M. Wests authority I call it an Accusation yet I take it to be rather Denuntiatio because it is of office done by the great enquest rather then of a free intent to accuse Of this you may reade S. Tho. Smith de Repub. Anglor lib. 2. cap. 19. and Stawnf pl. cor lib. 2. cap. 23. 24. 25. 26. c. Vsque 34. and M. Lamberds Eirenarcha li. 4. ca. 5. whence you may receiue good satisfaction in this mater Endowment Dotatio commeth of the french Doüare and signifieth the bestowing or assuring of a Dower See Dower But it is sometime vsed metaphorically for the setting forth or seuering of a sufficient portion for a vickar toward his perpetuall maintenance when the benefice is appropriated See Appropriation And the statute A. 15. R. 2. cap. 6. Endowment de la plus Belle part is where a man dying seised of some lands houlding in knights seruice and other some in socage the widow is sped of her dower rather in the lands houlding in socage then knights seruice Of this reade Litleton more at large li. 1. ca. 5. Enfranchisement cōmeth of the french Franchise 1. libertas and is in a maner a french word of it selfe It signifieth in our common law the incorporating of a man into any societie or body politicke For example he that by charter is made Denizen of England is said to be enfranchised and so is he that is made a citizen of London or other city or Burges of any towne corporate because he is made partaker of those liberties that appertaine to the corporation whereinto he is enfranchised So a villaine is enfranchised when he is made free by his Lord and made capable of the benefites belonging to freemen Englecerie engleceria is an old abstract word signifying nothing else but to be an English man For example if a man bee priuily slaine or murthered he was in old time accompted Francigena which word comprehendeth euery alien vntil Englecerie was proued that is vntill it were made manifest that he was an Englishman A man may maruell what meaning there might be in this but Bracton cleareth the doubt who in his third booke tract 2. cap. 15. num 3. telleth vs that when Canutus the Danish king hauing setled his estate here in peace did at the request of our Barons disburden the land of his armie wherein he accompted his greatest safetie and conditioned with them that his countrimen which remained here should continue in peace and the more to secure that that for euery Francigena vnder which word as is aboue said he comprehended all outlandish men and women and especially Danes that was secretly murthered there should be leauied to his Treasurie 66. merkes out of the village where the murder was cōmitted or out of the hundred if the village were not able to pay it and further that euery man murdered should be accompted Francigena except Englecery were proued which how it was to be proued looke the 7. number in the same chapter And see also Horns myrror of Iustices lib. 1. cap. del office del coroner and Fleta lib. 1. cap. 30. This Englecerie for the abuses and troubles that afterwarde were perceiued to grow by it was cleane taken away by a statute made anno 14. Ed. 3. capite quarto Enheritance See Inheritance Enquest Inquisitio is all one in writing with the french word and all one in signification both with the French and Latine Howbeit it is especially taken for that Inquisition that neither the Romanes nor French men euer had vse of that I can learne And that is the Enquest of Iurors or by Iurie which is the most vsuall triall of all causes both ciuile and criminall in our realme For in causes ciuill after proofe is made of either side so much as each partie thinketh good for himselfe if the doubt be in the fact it is referred to the discretion of twelue indifferent men empaneled by the Shyreeue for the purpose and as they bring in their verdict so iudgement passeth For the Iudge saith the Iurie findeth the fact thus then is the law thus and so we iudge For the enquest in causes criminall see Iurie and see Sir Thomas Smith de Repub. Anglor lib. 2. cap. 19. An enquest is either of office or at the mise of the partie Stawnf pl. cor lib. 3. cap. 12. Entendment commeth of the French entendement i. intellectus ingenium It signifieth in our common lawe so much as the true meaning or signification of a word or sentence See of this Kitchin fol. 224. Entayle feudum talliatum commeth of the French entaille i. inscisus and in our cōmon lawe is a substantiue abstract signifying Fee-tayle or Fee-intayled Litleton in the second chapter of his book draweth Fee-tayle from the verbe Talliare which whence it commeth or whether it will I know not whereas in truth it must come from the French taille
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.
Habere facias visum is a writ that lyeth in diuers cases where view is to be taken of the lands or tenements in question See Fitzh nat br in Iudice verbo View See Bracton li. 5. tract 3. ca. 8. lib. 5. parte 2. ca. 11. See vi 〈…〉 See the Register Iudiciall fol. 1. 26 28. 45. 49. 52. Haberiects Hauberietus pannus magn chart ca. 25. pupilla oculi parte 5. ca. 22. Hables is the plurall of the French hable signifiing as much as a porte or hauen of the sea whence ships doe set forth into other countries and whether they doe arriue when they returne from their voyage This word is vsed anno 27. Hen. 6. cap. 3. Haerede deliberando alii qui habet custodiam terrae is a writ directed to the Shyreeue willing him to commande one hauing the body of him that is ward to another to deliuer him to him whose ward he is by reason of his land Register originall fol. 161. b. Haerede abducto is a writ that lyeth for the lord who hauing the wardship of his tenent vnder age by right cannot come by his body for that he is conueyed away by another old nat br fol. 93. See Ravishment de Gard and Haerede rapto in Regist orig fol. 163. Haeretico comburendo is a writ that lyeth against him that is an heretike viz. that hauing beene once conuinced of herisy by his Bishop and hauing abiured it afterward falleth into it againe or into some other and is therevpon committed to the secular power Fitzh nat br fol. 269. Haga is vsed as a kinde of latine word for a house I finde in an auncient booke sometime belonging to the abbey of Saint Augustines in Canterbury that king Stephen sent his writ to the Shyreeue and Iustices of Kent in this maner Stephanus Rex Anglorum vicecomiti Iusticiariis de Kent salutem praecipio quòd faciatis habere ecclesiae sancti Augustini monachis hagam suam quam Gosceoldus eis dedit it a bene in pace iustè quietè liberè sicut eam eis dedit in morte sua coram legalibus testibus c. Hagbut See Haque and Haquebut Haye boote seemeth to be compounded Haye i. Sepes and Bote. i. compensatio The former is french and the second is Saxon. And although it doe fall out sometime that our words be so compounded yet is it rare wherefore it may be thought peraduenture to come as well from Hag and boote which be bothe saxon words It is vsed in our common lawe for a permission to take thorns and freeth to make or repaire hedges Halfe haque See Haque Half merk dimidia merka seemeth to signifie a noble Fitzh nat br fol 5. where he saith that in case a writ of right be brought and the seisin of the Demaundant or his auncester alleaged the seisin is not traversable by the Defendant but he may tender or proferre the halfe merke for the inquirie of this seisin which is as much to say in plainer termes that the Defendant shall not be admitted to deny that the Demandant or his auncester was seised of the land in question and to proue his deniall but that hee shal be admitted to tender halfe a merke in money to haue an inquirie made whether the Demandant c. were so seised or not And in this signification I reade the same words in the old English natura breuium fol. 26. b. viz. Know ye that in a writ of right of Advouzen brought by the king the defendant shall not proferre the halfe merke ne iudgement finall shall be giuen against the king c. Wherof Fitz. vbi supra M. giueth the reason because in the kings case the defendant shall bee permitted to trauerse the seisin by licence obtained of the Kings Sergeant To this effect see Fitz. nat br fol. 31. C. D. E. Halfe seale is vsed in the Chauncerie for the sealing of Commissions vnto Delegates appointed vpon any appeale in ecclesiasticall or marine causes an 8. Elizab. cap. 5. Halfe tongue See Medietas linguae Halymote aliâs Healgemot is a Court Baron Manwood parte prim of his Forest lawes pag. 111. and the etymologie is the meeting of the tenents of one hall or maner M. Gwins preface to his reading which for the esteeme thereof is by copies spred into many mens hands Hallage is a see due for cloths brought for sale to Blackwell hal in London Coke vol. 6. fol. 62. b. Hamlet Hameletum is a diminutiue of Ham which signifieth habitationem Camden Brit. pag. 149. 354. The French hameau i. viculus is also nere vnto it Kitchin hath Hamel in the same sence fol. 215. who also vseth hampsel for an ould house or cotage decayed fol. 103. Hamlet as Stowe vseth it in Ed. 3. seemeth to be the seate of a Free holder For there he saith that the said king bestowed two maners and nine hamlets of land vpon the monasterie of Westminster for the keeping of yearely obits for his wife Queene Eleanor deceased Hameling of dogges or hambling of dogges is all one with the expeditating of dogges Manwood parte prim of his Forest lawes pag. 212. parte 2. cap. 16. num 5. where he saith that this is the auncient terme that Foristers vsed for that mater whence this word might be drawne I dare not resolue but it is not improbable that hameling is quasi hamhalding that is keeping at home which is done by paring their feete so as they cannot take any great delight in running abroade See Expeditate Hampsell See Hamlet Hamscken see Homesoken M. Skene de verb significa writeth it Haimsuken and deriueth it from Haim a German word signifiing a house or dwelling and Suchen that is to seeke search or persiew It is vsed in Scotland for the crime of him that violently and contrary to the kings peace assaulteth a man in his owne house which as he saith is punishable equally with rauishing of a woman significat quietantiam miserâ—â—rdiae intrationis in alienam domum vi iniustè Fleta lib. pri cap. 47. See Homesoken Hand in and Hand out anno 17. Ed. 4. cap. 2. is the name of an vnlawful game Hand full is foure inches by the standard anno 33. H. 8. cap. Hankwit alias Hangwit or Hengwit commeth of the Saxon words Hangen i. pendêre and wit whereof reade in Gultwit Rastall in the title Exposition of words faith it is a liberty graunted vnto a man wherby he is quit of a felon or theese hanged without iudgement or escaped out of custodie I reade it interpreted mulcta pro homine iniustè suspenso Or whether it may be a libertie whereby a Lord chalengeth the forfeiture due for him that fordoeth himselfe within his fee or not let the Reader consider See Bloodwit Hanper haneperium haueper of the Chauncerie anno 10. R. 2. cap. prim seemeth to signifie as fiseus originally doth in Latine See Clerke of the Hanaper Hanse as Ortelius in the Index of
to the crowne or graunted vnto some great subiect and so remaine still in the nature of a Fraunchise And this hath beene euer sithence the stat anno 14. Ed. 3. stat 1. ca. 9. whereby these Hundred courts formerly fermed out by the Shyreeue to other men were reduced all or the most part to to the countie court and so haue and doe remaine at this present So that where you read now of any hundred courts you must know that they be seuerall fraunchises wherein the Shyreeue hath not to deale by his ordinarie authoritie except they of the Hundred refuse to doe their office See West parte 1. symbol lib. 2. sect 288. See Turn The newe expounder of lawe termes saith that the latine Hundredum is sometime vsed for an immunitie or priviledge whereby a man is quit of mony or customes due to the gouernours or Hundreders Hundreders Hundredarii be men empaneled or fit to be empaneled of a Iurie vpon any controversie dwelling within the Hundred where the land lieth which is in question Cromptons Iurisdict fol. 217. anno 35. Henrici 8. cap. 6. It signifieth also him that hath the Iurisdiction of a hundred and holdeth the hundred court anno 13. Ed. pri ca. 38. anno 9. Ed. 2. stat 2. anno 2. Ed. 3. ca. 4. and sometime is vsed for the Bayliffe of an hundred Hornin his mirrour of Iustices li. 1. ca del office del coroner Hundredlaghe signifieth the Hundred courte from the which all the officers of the Kings forest were freed by the charter of Canutus ca. 9. Manwood parte 1. pag. 2. Huors See Conders Huseans commeth of the French houseaux i. ocrea aboote It is vsed in the Statute anno 4. Ed. 4. ca. 7. Hustings Hustingum may seeme to come from the French Haulser i. tollere attollere suberigere for it signifieth the principall and highest court in London anno 11. H. 7. ca. 21. Fitzh nat br fol. 23. See anno 9. Ed. pri ca. vnico Other Cities and townes also haue had a court of the same name as Winchester Lincolne Yorke and Sheppey and others where the Barons or Citizens haue a record of such things as are determinable before them Fleta libro 2. cap. 55. Husfastene is he that holdeth house and land Bracton lib. 3. tractat 2. ca. 10. His words be these Et in franco plegio esse debet omnis qui terram tenet domum qui dicuntur Husfastene etiam alii qui illis deserviunt qui dicuntur Folgheres c. I A I Arrock anno 1 Rt. 3. ca. 8. is a kinde of cork so called Identitate nominis is a writ that lyeth for him who is vpon a Capias or Exigent taken and committed to prison for another man of the same name whereof see the forme and farder vse in Fitzh nat br fol. 267. see the Register originall fol. 194. Idiot and he that afterward becometh of insane memory differeth in diuers cases Coke fol. 154. b. lib. 4. See here following Idiota inquirenda Idiota inquirenda vel ex aminanda is a writ that is directed to the excheatour or the Shyreeue of any county where the king hath vnderstanding that there is an Idiot naturally borne so weake of vnderstanding that he connot gouern or mannage his inheritance to call before him the partysuspected of Idiocie examin him And also to inquire by the oaths of twelue men whether he be sufficiently witted to dispose of his owne lands with discretion or not and to certifie accordingly into the Chauncery For the king hath the protection of his subiects by his prerogatiue the gouernmēt of their lands and substance that are naturally defectiue in their owne discretion statut de praerogatiua Regis editum anno 17. Ed. 2. cap. 8. wherof read Stawnf praerog cap. 9. and of this writ read Fitzh nat br fol. 232. see the register orig fol. 267. Ietzon se Flotzon Ieofaile is cōpoūded of 3. french words I' ay faille i. ego lapsus sum signifieth in our commō lawe an ouer-sight in pleading touching the which you haue a statute anno 32. H. 8. cap. 30. whereby it is enacted that if the Iury haue once passed vpon the issue though afterward there be found a Ieofaile in the pleading yet iudgement shall likewise be giuen according to the verdict of the Iury. See Brooke tit Rrepleder the author of the new tearms of law saith that a Ieofaile is when the parties to any suite haue in pleading proceeded so farre that they haue ioyned issue which shal be tried or is tried by a Iury or inquest and this pleading or issue is so badly pleaded or ioyned that it will be errour if they proceed then some of the said parties may by their councell shew it to the court as well after verdict giuen and before iudgement as before the Iury be charged the shewing of which defects before the Iury charged was often when the Iury came into the court to trie the issue then the councell which will shew it shall say this inquest you ought not to take and if it be after verdict then he may say to Iudgement you ought not to goe and because of this many delayes grew in suites diuers statutes are made to redresse them viz. 32. H. 8. c. 30. others in Q. Elizabethes daies and yet the fault litle amended Ignoramus is a word properly vsed by the grand Enquest empaneled in the inquisition of causes criminall and publique and writen vpon the bill whereby any crime is offered to their cōsideration when as they mislike their euidence as defectiue or to weake to make good the presentment The effect of which word so written is that all farder inquiry vpon that party for that fault is thereby stopped and he deliuered without farder aunswer It hath a resemblance with that custome of the auncient Romans where the Iudges when they absolued a person accused did wright A. vpon a litle table prouided for that purpose i. Absoluimus if they iudged him guilty they writ C. id est Condemnamus if they found the cause difficult and doubtfull they writ N. L. id est Non liquet Asconius Pedianus in oratio pro Milone Alexander ab Alexandro Genial dierum li. 3. ca. 14. Ikenildstreate is one of the four famous wayes that the Romans made in England taking the beginning ab Icenis which were they that inhabited Northf Southf and Cambridg shyre Camd. Britan. fol. 343. See Watlingstreat Imparlance interlocutio vel interloquela is a petition made In court vpon the count of the Demanndant by the tenent or declaration of the plaintife by the defendant whereby he craueth respight or an other day to put in his aunswer See Brooke titulo Continuaence See Dies datus Imparlaunce seemeth to be generall or speciall speciall imparlaunce is with this clause saluis omnibus aduantagiis tam ad iurisdictionem curiae quà m breue narrationem Kitchin fol. 200. Then generall in reason must be that which
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
cap. 17. Bartolus in his Tractate De Nobilitate which he compiled vpon the lawe Si vt proponis C. de dignitatibus libro 12. rehearseth foure opinions de Nobilitate but reiecteth them and himselfe defineth it thus Nobilitas est qualitas illata per principatum tenentem qua quis vltra honestos plebeios acceptus ostenditur But this definition is too large for vs except we will accompt Knights and Banerets inter plebem which in mine opinion were too harsh For Equites among the Romanes were in a middle ranke inter Senatores plebem Nocumento See Nusance Nomination nominatio is vsed by the Canonists and common Lawyers for a power that a man by vertue of a maner or otherwise hath to appoint a Clerke to a patron of a benefice by him to be presented to the Ordinarie New termes of the lawe Non-abilitie is an exception taken against the plaintiffe or demandant vpon some cause why he cannot commence any suite in lawe as a Praemunire Outlawrie Villenage Excommunication or because he is a stranger borne The Ciuilians say that such a man hath not personam standi in iudicio See Broke hoc titulo see Fitzh nat br fol. 35. A. fol. 65. D. fol. 77. C. The new Expositour of lawe termes reckoneth sixe causes of Non-ability as if he be an outlawe a stranger borne condemned in a premunire professed in religion excommunicate or a villein Howbeit the second cause holdeth onely in actions reall or mixt and not in personall except he be a straunger and an enemie Non admittas See Ne admittas Non-age is all the time of a mans age vnder one and twenty yeares in some cases or fourteen in some as mariage See Broke titulo Age. See Age. Non capiendo clericum See Clerico non capiendo Non clayme Cromptons Iurisd fol. 144. seemeth to be an exception against a man that claimeth not within the time limited by lawe as within the yeare and day in case where a man ought to make continuall claime or within fiue yeares after a fine leuyed v. Coke lib. 4. in prooemio See Continuall clayme Non compos mentis is of foure sortes first he that is an idiot borne next he that by accident afterward wholy leeseth his wits thirdly a lunaticke that hath somtime his vnderstanding and sometime not lastly hee which by his own act depriueth himselfe of his right mind for a time as a drunkard Coke lib. 4. fol. 124. b. Non distringendo is a writ comprising vnder it diuers particulars according to diuers cases all which you may see in the Table of the Register original verbo Non distringendo Non est culpabilis is the generall answer to an action of trespasse whereby the defendant doth absolutely deny the fact imputed vnto him by the plaintiffe whereas in other especiall answers the defendaunt graunteth the fact to be done and alledgeth some reason in his defence why he lawfully might doe it And therefore whereas the Rhetoricians comprise all the substance of their discourses vnder three questions An sit quid sit quale sit this aunswere falleth vnder the first of the three all other answers are vnder one of the other two And as this is the generall aunswer in an action of trespasse that is an action criminall ciuily prosecuted so is it also in all actions criminally followed either at the suite of the king or other wherein the defendant denieth the crime obiected vnto him See the new booke of Entries titulo Non culpabilis and Stawnf pl. cor lib. 2. cap. 62. Non est factum is an aunswer to a declaration whereby a man denyeth that to be his deed whereupon he is impleaded Broke hoc titulo Non implacitando aliquem de libero tenemento fine breui is a writ to inhibit Bayliffes c. from distraining any man without the kings writ touching his free hould Register fol. 171. b. Non intromittendo quando breue praecipe in capite subdolè impetratur Is a writ directed to Iustices of the bench or in Eyre willing them not to giue one hearing that hath vnder the colour of intitling the king to land c. as houlding of him in capite deceitfully obteined the writ called praecipe in capite but to put him to his writ of right if he thinke good to vse it Register orig fo 4. b. Non mercandizando victualia is a writ directed to the Iustic̄es of Assise commaunding them to inquire whether the officers of such a towne doe sell victuals in grosse or by retaile during their office contrary to the statute and to punish them if they finde it true Register fol. 184. Non molestando is a writ that lyeth for him which is molested contrary to the kings protection graunted him Register fol. 24. Non omittas is a writ lying where the Shyreeue deliuereth a former writ to a Bayliffe of a fraunchis within the which the party on whom it is to be serued dwelleth the Bayliffe neglecteth to serue it for in this case the Shyreeue returning that he deliuered it to the Bayliffe this shal be directed to the Shyreeue charging him himselfe to execute the kings commaundement Old nat br fol. 44. of this the Reg. orig hath three sorts fol. 82. b. 151. and the Reg. Iudiciall one fol. 5. 56. Non ponendo in Assisis Iuratis is a writ founded vpon the stat Westm 2. ca. 38. and the stat Articuli super chartas ca. 9. which is graunted vpon diuers causes to men for the freeing them from Assises and Iuries See Fitzh nat br fol. 165. See the Register fol. 179. 100. 181. 183. Non procedendo ad Assisam Rege inconsulto is a writ to stop the triall of a cause appertaining vnto one that is in the kings seruice c. vntill the kings pleasure be farder knowne Reg. fol. 220. a. Non residentia pro clericis Regis is a writ directed to the Ordinary charging him not to molest a Clerk imployed in the kings seruice by reason of his non residence Register orig fol. 58. b. Non-suite is a renuntiation of the suite by the plaintife or demaundant when the mater is so farre proceeded in as the Iury is ready at the barre to deliuer their verdict anno 2. H. 4. ca. 7. See the new booke of Entries verbo Non-suite The ciuilians terme it Litis renunciationem Non soluendo pecuniam ad quam Clericus mulctatur pro non residentia is a writ prohibiting an Ordinary to take a pecuniary mulct imposed vpon a clerk of the kings for non-residence Regist orig fol. 59. Non tenure is an exception to a coumpt by saying that he houldeth not the land specified in the coumpt or at the least some parte of it anno 25. Ed. 3. stat 4. ca. 16. West parte 2. Simbol titulo Fines sect 138. maketh mention of non-tenure generall and non-tenure speciall See the new booke of Entries verbo Non-tenure where it is said that especiall non-tenure is an
time exhorting them ne merces tam viles tanti emerent Parke parcus commeth of the French parquer i. vallo vel fossa circundare It signifieth with vs a peece of grounde inclosed and stored with wild beastes of chase Which a man may haue by prescription or the kings graunt Cromptons Iurisd fol. 148. M. Manwood parte pri of his Forest lawes pag. 148. defineth it thus A parke is a place of priuiledge for wilde beastes of venerie and also for other wild beasts that are beasts of the Forest and of the chase tam syluestres quam campestres And all those wild beastes are to haue a firme peace and protectioÌ„ there So that no man may hurt or chase them within the park without licence of the owner of the same Who also fol. 149. saith thus A parke is of another nature then either a chase or a warren is For a parke must bee inclosed and may not lye ope for if it doe that is a good cause of seisure of the same into the hands of the king as a thing forfeited as a free chase is if it be enclosed And moreouer the owner cannot haue action against such as hunt in his park if it lye open See Forest See Chase See Warren This word Parke Baldwinus deriueth a paradiso eumque locum esse dicit in quo varia animalia ad vsum voluptatis aut venationis includuntur possidentur adempta naturali libertate Ad tit de rerum divis in Institutionib Parco fracto is a writ which lyeth against him that violently breaketh a pound and taketh out beasts thence which for some trespas done vpon another mans ground are lawfully impounded Register originall fol. 166. Fitzh nat br fol. 100. Parish parochia commeth of the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Accolarum conuentus accolatus sacra vicinia it is vsed in the Cannon law some time for a Bishoprick But in our common law it signifieth the particular charge of a secular priest For euery church is either Cathedrall Couentuall or Parochiall Cathedrall is that where there is a Bishop seated so called a Cathedra Conuentuall consisteth of Regular clerks professing some order of religion or of Deane and chapter or other colledge of spirituall men Parochiall is that which is instituted for the saying of diuine seruice and ministring the holy Sacraments to the people dwelling within a certaine compas of ground neare vnto it Our Realme was first diuided into parishes by Honorius Archb of Canterbury in the yeare of our Lord. 636. Camden Britan. pag. 104. Of these parish churches I finde there were in England in the daies of H. 8. the number of 45000. Hotoman in his disputations de feudis ca. 2. maketh mention of this word parochia out of Pomponius Laetus in these words Nam sic quoque Pomponius Laetus veterem consuetudinem fuisse scribit eamque ab Imperat 〈…〉 Constantino repetitam vt Duc 〈…〉 praefectis Tribunis qui pro augendâ— Imperio consenuerant darentur agri villaeque vt necessaria suppet 〈…〉 quoad viuerent quas paroehias cabant And a litle after ver 〈…〉 inter feuda parochias hoc 〈…〉 est quod hae plerumque senibus 〈…〉 veteranis plerisque emeritae 〈…〉 dabantur qui cum de Rep. bene meriti essent publico beneficio reliquum vitae sustentabant aut si quod bellum nasceretur euocati non tam milites quà m magistri milituÌ„ viderentur Feuda vero plurimum Iâ—â—enibus robustis primo flore aetatis qui militiae munus sustinere poteraÌ„t imo verò vt posseÌ„t vt velleÌ„t c. Parlament parlamentum is a French word signifiing originally as much as Collocutio or colloquium but by vse it is also taken for those high courts of Iustice throughout the kingdome of Fraunce where mens causes and differences are publikely determined without farder appeale Whereof there be seuen in number as Paris Tolouse Gresnoble in Daulphene Aix in Prouence Bordeaux Diion in Bourgogine and Roan in Normandy Vincentius Lupanus de Magistrat Franc. lib. 2. cap. Parlamentum num 28. whereunto Gerard de Haillon addeth the eighth viz. Rhenes in Brettagne In England we vse it for the assembly of the king and the three estates of the Realme videlicet the Lords Spirituall the Lords Temporall and commons for the debating of maters touching the common wealth and especially the making and correcting of lawes which assembly or court is of all other the highest and of greatest authoritie as you may reade in Sir Thomas Smith de Repub. Anglo lib. 2. cap. 1. 2. Camd. Britan. pag. 112. and Cromptons Iurisd fol. pri seqq The institution of this court Polydor Virgil lib. 11. of his Chronicles referreth after a sort to Henry the first yet confessing that it was vsed before though verie seldome I find in the former prologue of the Grande Custumarie of Normandie that the Normans vsed the same meanes in making their lawes And I haue seene a monument of Antiquite shewing the maner of houlding this parlament in the time of King Edward the sonne of King Etheldred which as my note saith was deliuered by the discreeter sorte of the Realme vnto William the Conquerour at his commaundement allowed by him This writing beginneth thus Rex est caput principium finis parlamenti ita non habet parem in suo gradu Et sic ex Rege solo primus gradus est Secundus gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per BaroniaÌ„ tenentibus Tertius gradus est de procuratoribus cleri Quartus gradus est de Comitibus Baronibus aliis Magnatibus Quintus gradus est de militibus Comitatuum Sextus gradus est de civibus Burgensibus ita est parlamentum ex sex gradibus sed sciendum licet aliquis dictorum quinque graduum post Regem absens fuerit dum tamen omnes praemoniti fuerint per rationabiles summonitiones parlamentum nibilo minus censetur esse plenum Touching the great authoritie of this court I finde in Stowes Annalls pag. 660. that Henry the sixth directing his priuie seale to Richard Earle of Warwicke thereby to discharge him of the Captainship of Cales the Earle refused to obey the priuie seale and continued forth the said office because he receiued it by Parlament But one example cannot make good a doctrine And of these two one must needes be true that either the king is aboue the Parlament that is the positiue lawes of his kingdome or els that he is not an absolute king Aristotle lib. 3. Politico cap. 16. And therefore though it be a mercifull policie and also a politique mercie not alterable without great perill to make lawes by the consent of the whole Realme because so no one part shall haue cause to complaine of a partialitie yet simply to binde the prince to or by these lawes weare repugnant to the nature and constitution of an absolute monarchy See Bracton lib. 5.
within his prouince immediatly The appointing of a keeper or guardian of the spiritualties during the vacancie of any bishopricke By which means all episcopall rites of the Dioces for that time do belong vnto him as Visitation Institution to Benefices and such like The visitation of euery Diocesse within his prouince when in what order it pleaseth him As also of all other priuiledged Churches The probate of Testaments and graunting of administrations in case where the party deceased hath goods of any considerable valew out of the diocesse wherein he dyeth And that valew is ordinarily fiue pounds except it be otherwise by composition betweene the said Archbishop and some other Bishop as in the Diocesse of London it is tenne pounds The probate of euery Bishops Testament or the administration of his goods dying intestate though not hauing any goods chatels or debts without the compasse of his owne iurisdiction The bestowing of any one dignitie or prebend in any Cathedrall church vpon the creation of a new Bishop that himselfe thinketh good to make choice of There may be more particulars of this prerogatiue that I know not but these may be sufficient to expresse the thing that I desire to declare Who so desireth to reade these more at large and other priuiledges of this Church in temporall maters may resort to the booke intituled De antiquitate Britannicae Ecclesia nominatim de priuilegiis Ecclesia Cantuariensis historia and especially to the 8. chapter of the said booke pa. 25. Prerogatiue Court curia prerogatiuae Archiepiscopi Cantuariensis is the Court wherein all Wils be proued and all administrations taken that belong to the Archbishop by his prerogatiue which see in Prerogatiue And if any contention do grow betweene two or more touching any such will or administration the cause is properly debated determined in this Court The Iudge of this Court is called Iudex Curiae praerogatiuae Cantuariensis The Archbishop of Yorke hath also the like power and court which is tearmed his Exchequer but farre inferiour to this in countenance and profite Prescription praescriptio is a course or vse of any thing for a time beyond the memory of man as the exposition of the law terms doth define it Kitchin fol. 104. saith thus Prescription is when for continuance of time whereof there groweth no memory a perticuler person hath perticuler right against another perticuler person And custome is where by continuance of time beyond memorie diuers persons haue gotten a right with whome agreeth Sir Edward Cooke lib. 4. fol. 32. a. And vsage is by continuance of time the efficient cause of them both and the life of both prescription and custome Thus saith Kitchin But as in the Ciuill lawe so I think likewise in the common Prescription may be in a shorter time As for example where the Satute anno 1. H. 8. cap. 9. saith that all actions popular must be siewed within three yeares after the offence committed and the Statute anno 7. eiusdem cap. 3. That foure yeares being past after the offence committed in one case and one yeare in another no suite can be commenced and the Statute 31. Eliz. cap. 5. saith by way of correcting the two former statutes that all actions c. brought vpon any Statute the penaltie whereof belongeth to the King shall be brought within two yeares after the offence committed or else be voide And the Satute anno 39. Eliz. cap. prim secund saith that actions brought after two yeare by any common person or after three yeares by the king alone for decay of husbandry or tillage shall bee of noe force Whosoeuer offendeth against any such Statute and doth escape vncalled for two yeares or three yeares in one case of the two later of these three Statutes may iustly be said to haue prescribed an immunitie against that action The like may be said of the Statute made anno 23. Eliz. cap. prime which saith that all offences comprised in the Statute made in the 13. yeere of Eliz. cap. 2. are inquirable before both Iustices of peace and of Assise within one yeare and a day after the offence committed Also the title that a man obtaineth by the passing of fiue yeares after a fine acknowledged of any lands or tenements may iustly be said to be obtained by prescription And whereas the Statute anno 8. R. 2. cap. 4. saith that a Iudge or Clerke convicted for false entring of plees c. may be fined within two yeares the two yeares being ended he prescribeth against the punishment of the saide Statute and whereas the Statute anno 11. H. 7. saith that he which will complaine of maintenance or embracery whereby periurie is committed by a Iurie must doe it within sixe dayes those sixe daies ended the parties prescribe and whereas the statute anno prim Ed. 6. saith that a man being not indicted within 3 monethes of any offences there mentioned touching Seruice and Sacraments he shal be cleare from thence forward the three monethes being ended he prescribeth And the same may be said of the statute anno 5. Ed. 6. cap. 5. which saith that a man shall not be indited of any offence there mentioned touching the decay of tillage after 3. yeares And whereas it is ordeined by the statute anno 8. H. 6. cap. 9. that those which keepe possession of lands by force after 3. yeares possession held by themselues their auncestours shall not be subiect to the arbitrement of Disseisours there set down I hould this a prescription likewise against those censures v. anno 23. H. 6. ca. 15. Lastly a seruant prescribeth liberty after a yeare Bracton li. 1. ca. 10. nu 3. and the right that is gotten in any Stray to a Lord of a maner no man claiming it within the yeare and day after proclamation made is an vsucapion or prescription See Action perpetuall and temporall And see Cromptons Iustice of peace fol. 173. b. vbi habebis festum But see one rule for all in Lamb. Eirenarch li. 4. ca. 5. pa. 469. Of this prescription and the learning touching the same you may reade a solemne report in S. Ed. Cookes and Luttrels case vol. 4. fo 84. b. seqq Presentation Praesentatio is vsed properly for the act of a patron offering his Clerke to the Bishop to be instituted in a benefice of his gift the forme whereof see in the Register originall fol. 302. a. Presentment is a meere denuntiation of the Iurours themselues or some other offices as Iustice Constable searcher surueiours c. without any information of an offence inquirable in the court wherevnto it is presented See Lamberd Eirenarcha lib. 4. ca. 5. pa. 467. President Praeses is vsed in the Common law for the kings Liuetenent in any Prouince or function as President of Wales of Yorke of Barwick President of the Kings Councell anno 22. H. 8. cap. 8. anno 24. H. 8. cap. 3. 14. Preignotarie Protonotarius is a word that seemeth to be made
if they thinke good And the later course is taken most commonly where there is feare of strife and contention betweene the kindred and freinds of the party deceased about his goods For a will proued only in common forme may be called into question any time within 30. yeares after by common opinion before it worke prescription Procedendo is a writ whereby a plee or cause formerly called from a base court to the Chaūcerie Kings bench or commō plees by a writ of priuiledge or certiorare is released and sent downe againe to the same court to be proceded in there after it appeareth that the defendant hath no cause of priniledge or that the mater comprised in the bille be not well proned Brooke hoctitulo and Termes of lawe Cooke vol. 6. fol. 63. a. See anno 21. R. 2. cap. 11. in fine leters of procedendo graunted by the keeper of the priuie scale See in what diuersitie it is vsed in the table of the originall Register and also of the Iudiciall Proces Processus is the maner of proceeding in euery cause be it personall or reall ciuile or criminall even from the originall writ to the end Britton fol. 138. a. where in there is great diuersitie as you may see in the table of Fitzh br verbo Proces and Brookes Abridgement hoc titulo And whereas the wtitings of our common lawyers sometime call that the proces by which a man is called into the court and no more the reason thereof may be giuen because it is the beginning or the principall part thereof by which the rest of the busines is directed according to that saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diucrs kinds of proces vpon Inditements before Iustices of peace See in Cromptons Iustice of peace fol. 133. b. 134. 135. But for orders sake I referre you rather to M. Lamberd in his tractat of ptocesses adioyned to his Eirenarcha who acording to his subiect in hand diuideth criminall proces either into proces touching causes of treason or selonie and proces touching inferiour offēces the former is vsually a capias capias aliâs exigi facias The second is either vpon enditement or presentment or information that vpon enditement or presentment is all one and is either generall and that is a venire facias ' vpon which if the partie be returned sufficient then is sent out a Distringas infinite vntill he come if he be returned with a Nibil habet then ifsueth out a Capias Capias aliâs Capias pluries and lastly an Exigifacias The speciall proces is that which is especially appointed for the offēce by statute for the which he referreth his reader to the 8. Chapter of his 4. booke being very different Processium continuando is a writ for the continuance of a proces after the death of the cheife Iustice in the writ of oyer and terminer Register originall fol. 128. a. Prochein Amy Proximus amicus vel propinquior is word for word a neere freind It is vsed in our common lawe for him that is next of kinde to a childe in his nonage and is in that respect allowed by lawe to deale for him in the managing of his affaires as to be his Gardian if he hold of any in socage and in the redresse of any wrong done vnto him be it by his Gardian if he be ward and hold in Chiualrie or any others Statut. West pri cap. 48. 3. Ed. pri and Westm 2. cap. 15. anno 13. Ed. pri Profe aliâs Prove is vsed for an Enquest anno 28. Ed. 3. cap. 13. Proclamation Proclamatio signifieth a notice publikely giuen of any thing whereof the King thinketh good to advertise his subiects So it is vsed anno 7. Rich. 2. ca. 6. Proclamation of rebellion is a publike notice giuen by the officer that a man not appearing vpon a Sub poena nor an attachment in the Starre Chamber or Chauncerie shal be reputed a rebell except he render himselfe by a day assigned Cromptons Iurisd fol. 92. See Commission of rebellion Proclamation of a fine is a notice openly and solemnly giuen at all the Assises that shall be holden in the Countie within one yeare after the ingrossing of the fine and not at the foure generall quarter sessions And these proclamations be made vpon transcripts of the fine sent by the Iustices of the Common plees to the Iustices of Assise and the Iustices of peace West parte 2. symbol titulo Fines sect 132. where also you may see the forme of the proclamarion Proclamare est palā valde clamare vsed by Tullie Liuie and the Civilians Π. Quibus ad liberta proclamare non licet And Proclamator signifieth him qui litem intendit vel causam agit Cicero de oratore lib. pri Non enim causidicum nescio quem neque proclamatorem aut rabulam hoc sermone conquirimus c. I reade in Fitzh nat br fol. 85. C. that the kings proclamation is sufficient to stay a subiect from going out of the Realme See the force of proclamations anno 31. H. 8. cap. 8. see also Proclamations in diuers cases Newe booke of Enteries verbo Proclamation Procters of the clergie procuratores cleri are those which are chosen and appointed to appeare for cathedrall or other Collegiat churches as also for the common clergie of euery Dioces at the Parlament whose choice is in this sort First the king directeth his writ to the Archebishop of each province for the summoning of all Bishops Deanes Archdeacons cathedrall and collegiat churches and generally of all the clergie of his prouince after their best discretion and iudgement assigning them the time and place in the said writ Then the Archebishops proceede in their accustomed course One example may serue to shew both The Archebishop of Canterbury vpō his writ receiued directerh his leters to the Bishop of London as his Deane provincial 1. § statuimui de poenis verb. tanquam in glos first citing himselfe petemptorily and then willing him to cite in like maner all the Bishops Deanes Archedeacons cathedrall and collegiate churches and generally all the Clergie of his Prouince to the place and against the day prefixed in the writ But directeth withal that one Proctor sent for euery Cathedrall or Collegiat Church and two for the bodie of the inferiour Clergie of each Diocesse may suffice And by vertue of these leters authentically sealed the said Bishop of London directeth his like leters seuerally to the Bishop of euery Diocesse of the Prouince citing them in like sort and commaunding them not onely to appeare but also to admonish the said Deanes and Archdeacons personally to appeare and the Cathedral 〈…〉 and collegiat Churches as also the common Clergie of the Diocesse to send their Proctors to the place and at the day appointed and also willeth them to certifie the Archbishop the names of all and euery so monished by them in a shedule annexed to their leters certificatorie The Bishops proceed accordingly and the
See the new booke of Entries verbo Remitter Render commeth of the French Rendre i. reddere retribuere restituere and signifieth in our common lawe the selfe same thing For example this word is vsed in leuying of a fine For a fine is either single by which nothing is graunted or rendred backe againe by the Cognizee to the Cognizoumor double which conteineth a graunt or render backe againe of some rent common or other thing out of the land it selfe to the Cognizor c. West parte 2. symbol titulo Fines sect 21. 30. F. Also there be certaine things in a maner that lie in prender that is which may be taken by the Lord or his officer when they chaunce without any offer made by the tenent as the ward of the body of the heire and of the land escheats c. and certaine that lie in Render that is must be deliuered or answered by the Tenent as rents reliefes heriots and other seruices Idem eodem sect 126. C. Also some service confisteth in seisaÌ„ce some in Render Perkins Reseruations 696. Rent Reditus commeth of the French Rent i. vectigal pensitatio annua and signifieth with vs a summe of mony or other consideration issuing yearly out of land or tenements Plouden casu Browning fol. 132. b. fol. 138. a. 141. b. There be three sorts of rents obserued by our common Lawyers that is Rent seruice Rent charge and Rent seck Rent seruice is where a man houldeth his land of his Lord by fealty and certaine rent or by fealty seruice and certaine rent Litleton lib. 2. ca. 12. fol. 44. or that which a man making a lease to another for terme of yeares reserueth yearely to be paid him for the same Termes of lawe verbo Rents who giueth this reason thereof because it is in his libertie whether he will distraine or bring an action of debt A Rent charge is that which a man making ouer an estate of his land or tenements to another by deede indented either in in fee or fee tayle or lease for terme of life reserueth to himselfe by the said indenture a summe of money yearely to be paide vnto him with clause of distresse or to him and his heires See Litleton vbi supra A Rent seck otherwise a drie rent is that which a man making ouer an estate of his land or tenement by deede indented reserueth yeerely to be paid him without clause of distresse mentioned in the Indenture Litleton vbi supra and termes of the lawe verbo Rents see the newe expositour of lawe Termes See Plowden casu Browning fol. 132. b. See the differences betweene a rent and an annuitie Doctor and Student cap. 3. Oâ—dialo primo Reparatione facienda is a writ which lieth in diuers cases whereof one is where three be tenents in common or ioynt tenents or pro Indiviso of a mille or house which is fallen into decay and the one being willing to repaire it the other two will not In this case the party willing shall haue this writ against the other two Fitzh nat br f. 127. where read at large the form many vses of this writ as also in the Regi orig fol. 153. b. Repeale commeth of the French Rappel i. Revocatio and signifieth in our common lawe euen the same as the Repeale of a statute Rastall titulo Repeale Brooke vseth Repellance in this signification titulo Repellance Repleader Replacitare is to plead againe that which was once pleaded before Rastall titulo Repleader See the newe booke of Entries verbo Repleder Replegiare See Replevie See Second deliuerance Replevie Pleuina is the bringing of the writ called Replegiarifacias by him that hath his catel or other goods distreined by another for any cause and putting in suerty to the Shyreue that upon the deliuery of the thing distreined he will persiew the action against him that distreined Termes of lawe See Replegiare It is vsed also for the bayling of a man pl. cor fol. 72. 73. 74. West pri cap. 11. cap. 15. anno 3. Ed. 1. Replegiare de averus is a writ brought by one whose catell be distreined or put in pound vpon any cause by another vpon surety giuen to the Shyreeue to persiew the action in lawe anno 7. H. 8. cap. 4. Fitzh nat br fol. 68. See the Register originall of diuers sorts of this writ called Replegiare in the table verbo eodem See also the Register Iudiciall fol. 58. 70. see also the newe boke of Entries verbo Replevin See Dyer fol. 173. nu 14. Replevish Replegiaro is to let one to mainprise vpon suretie anno 3. Ed. 1. cap. 11. Replication replicatio is an exception of the second degree made by the plantife vpon the first answer of the Defendant West parte 〈◊〉 symbol titulo Chauncerie sect 55. Westm 2. anno 13. Ed. pri cap. 36. This is borowed from the Ciuilians De replicationibus lib. 4. Institutio titulo 14. Report Reportus is in our common lawe a relation or repetition of a case debated or argued which is sometime made to the court vpon reference from the court to the Reporter somtime to the world voluntarily as Ploydens reports such like Reposition of the Forest was an act whereby certaine forest grounds being made purlieu vpon view were by a second view laide to the Forest againe Manwood parte pri pag. 178. Reprisels Reprisalia are all one in the common and Ciuill law Represalia est potestas pignorandi contra quemlibet de terya debitoris data creditori pro iniuriis damnis acceptis Vocabularius vtriusque iuris This among the auncient Romans was called Clarigatio of the verb Clarigo i. res clarè repeto It is called in the statute anno 27. Ed. 3. stat 2. cap. 17. lawe of Marque of the German word March i. terminus limes And the reason may be because one destitute of Iustice in another territory redresseth himselfe by the goods belonging to men of that territorie taken within his owne bounds Requests Supplicum libelli Curia Requisitionum is a Court of of the same nature with the Chauncerie redressing by equitie the wrongs that poore men doe suffer at their hand whose might they are not able to withstand either in lawe or otherwise It tooke beginning as some men thinke by commission from King Henry the 8. before which time the Masters of Requests had no warrant of ordinary Iurisdiction but travailed betweene the Prince and petioners by direction from the mouth of the King Guins preface to his readings But see Court of Requests Resceyt Receptio seemeth to be an admission of a third person to pleade his right in a cause formerly commenced betweene other two See the newe booke of Entries verbo Resceit v. Aide prier The Ciuilians call this admissionem tertii pro suo interesse Of this you haue one example in the Termes of lawe viz. if Tenent for terme of life or tenent for terme of yeares bring an action he
sub aliorum testimonio faciet de his rebus This high Officer hath by vertue of his office at this day the nomination of the Escheatours yeerely throughout England and giueth the places of all customers controllers and searchers in all the ports of the Realme He sitteth in the chequer chamber and with the rest of the court ordereth things to the Kings best benefite He with the Barons may by statute stall depts of three hundred pounds and vnder And by commission from his maiestie he with others ioyned with him letteth leases for liues or yeares of the lands that came to the Crowne by the dissolution of Abbeys He by his office giueth warrant to certaine men to haue their wine without impost He taketh declaration of all the money payed into the Receipt of the Exchequer and of all Receiuers accompts Then is there a Treasurer of the kings houshold who is also of the priuie Councell and in the absence of the Steward of the Kings houshold hath power with the Controller and the Steward of the Marshalsea without commission to heare and determine treasons misprisions of treasons murder homicide and bloudshed committed within the Kings pallace Stawnf pl. cor lib. 3. cap. 5. In the statute anno 28. Rich. 2. cap. 18. anno 11. H. 7. cap. 16. mention is made of the Treasurer of Calis In Westm 2. cap. 8. of the Treasurer of the Exchequer anno 27. Ed. 3. stat 2. cap. 18. ann 35. Eliz. cap. 4. Of the Treasurer of the Nauie or Treasurer of the warres or garrisons of the Nauie anno 39. El. cap. 7. Treasurer of the Kings chamber anno 26. H. 8. cap. 3. anno 33 eiusdem cap. 39. Treasurer of the warres anno 7. H. 7. cap. prim anno 3. H. 8. cap. 5. Treasurer of the Chauncerie West parte 2. symbol titulo Fines sect 152. Treasurer of the Kings Wardrobe anno 15. Ed. 3. stat prim cap. 3. anno 25. eiusdem stat 5. cap. 21. whose office you haue well set foorth in Fleta lib. 2. cap. 14. Treasurer of the Countie for poore souldiers anno 35. Eliz. cap. 4. And most corporations through the kingdome haue an officer of this name that receiueth their rents and disburseth their common expences Treate commeth of the French traire i. emulgere and signifieth in the common lawe as much as taken out or withdrawne As a Iurour was chalenged for that hee might not dispend 40. pounds and for that cause he was treate by the Statute old na br fol. 159. that is remoued or discharged Breade of treate anno 51. H. 3. Statute of breade c. what it signifieth I cannot learne Trespas Transgressio is a French word signifiing as much as Mors obitus excessiss The reason whereof I take to be because in interpretation it is a passage from one place or estate to another for in Britton cap. 29. I find trespassants for passengers In our common law and language it is vsed for any transgression of the lawe vnder treason felonie or misprision of treason or of felonie as may be gathered out of Stawnf pl. cor fol. 38. where he saith that for a Lord of the Parlament to depart from the Parlament without the kings licence is neither treason nor felonie but trespasse And againe fol. 31. saying that where it was wont before the statute made anno prim Ed. 2. called Statutum de frangentibus prisonam that the breach of prison was felonie if it were the Kings prison it is sithence but trespasse except the prisoner were committed for felonie But it is most commonly vsed for that wrong or dammage which is done by a priuate man to the King as in his Forest pl. cor lib. 2. cap. 18. or to another priuate man And in this signification it is of two sortes trespasse generall otherwise termed trespasse vi armis and trespasse especiall otherwise called trespasse vpon the case And this seemeth to be without force Termes of the Lawe Action vpon the case as appeareth by Kitchin fol. 176. The former I take to be called generall because it riseth from that generall ground in lawe that whatsoeuer is done by any priuate mans humour vi armis is an offence The later I call especiall because Kitchin calleth the other generall and another reason may be this because it springeth from a particular case or fact not conteined vnder any other generall head And the action lying for this trespasse is otherwise called an action vpon the case as may be gathered out of diuers places vnder the title Trespasse in Brookes his Abridgement How to distinguish the forme of these writs or actions See Fitz. nat br fol. 86. I. 87. H. I. In an action of trespasse this is perpetuall that the plaintiffe sieweth for dammages or the valew of the hurt cone vnto him by the Defendant It seemeth an hard thing to distinguish these two kinds of trespasses so as to be able to say when it is a trespasse vi armis and when vpon the case as may well appeare to him that shall peruse this title in Brooke But this is to be left to the experiēce of graue and skilfull pleaders I find moreouer in Kitchin fol. 188 that there is a trespasse locall and trespasse transitorie trespasse locall is that which is so annexed to a place certaine as if the Defendant ioyne issue vpon the place and trauers the place onely by saying Absque hoc that he did the trespasse in the place mentioned in the declaration and averre it it is enough to defeate the action Trespasse transitorie is that which cannot be defeated by the defendants trauers of the place saying without that I cōmitted the trespasse in the place declared because the place is not materiall Examples of both you haue set downe by Kitchin in the place aboue named to this effect trauers by Absque hoc of trespasse in batterie or goods brought in is transitorie and not locall as it is of trees cut or herbes And therefore in trespasse transitorie the place shall not make issue neither is it trauersable no more then is a trespasse vpon a case of an Assumption Bracton in his fourth booke cap. 34. num 6. diuideth transgressionē in maiorem minorem which place reade See also great diuersitie of trespasses in the new booke of Entries verbo Trespasse Triall triatio is vsed in our common lawe for the examination of all causes ciuill or criminall according to the lawes of our Realme Of this word Stawn pl. cor lib. 2. cap. 26. writeth to this effect There was a statute made prim secund Philip. Mar. cap. 10. to this purpose And be it furder enacted by the authoritie aforesaid that all trials hereafter to be had awarded or made for any treason shal be had and vsed according to the due order and course of the common lawes of this Realme and not otherwise c. By this word triall saith Stawnf in that place some vnderstand
to appeare there except their apparence be especially required vpon some extraordinary cause anno 25. H. 3. cap. 10. and Britton cap. 29. It seemeth to be called the Shyreeues Turn of the French word Tour. i. ambitus circuitus vicissitudo and is of Britton called Tour cap. 61. sub fine capitis as if we would say The Shyreeue his course for as Britton noteth in the said 29. chapter that which before the Shyreeue is called the Shyreeues Turne is called in the court of Fraunchises and Hundreds the view of Frank-pledge wherein inquirie is especially made of such as be not in any dozin with whome Fleta agreeth And by Fleta it appeareth that this Turn was the Shyreeues course to keepe his courtin euery Hundred lib. 2. cap. 52. in princip So that as the inferiour courts had their times to take knowledge of those and other causes belonging to their cognisance So the Shyreeue had his course or turne to doe the like at these two seuerall seasons That if there were any defects in them it might be redressed in these and Gods peace and the Kings so much the more carefully obserued This as Lamberd saith was of old called also the Shyreeues moote lib. 4. cap. 4. In this court as Britton saith vbisupra the Shyreeue causeth tobe found out 12. of the most sage loyall and sufficient men of all the Hundred for he kept his turne twice every yeare in each Hundred Magna charta cap. 35. Britton vbi supra whome he charged vpon their oathes to present the truth touching the articles ministred vnto them and set downe by Britton in the same chapter This done he put all other to their oathes according to their dozins and villages truly to present vnto the former twelue all things concerning such articles as by them they should be asked of But fithence the Hundred courts are all called to the county by the statute anno 14. Ed. 3. cap. 3. Statut. pri these Turnes be likewise kept in one cheife place of euery shire and not seuerally in euery Hundred as before they were Of this you may reade more in Britton or in Cromptons Iurisdiction fol. 230. and in the Mirrour of Iustices lib. pri cap. de Turnes Turney Torneamentum commeth of the French Tournoy i. Decursorium It signifieth a martiall exercise of Knights or Souldiers fighting one with another in disport and is thus defined ca◠felicit Extra de Torneamentis Torneamenta dicuntur Nundinae vel feriae in quibus milites ex condicto convenire ad oftentationem virium suarum audaciae temerè congredi solent This word is vsed in the statute anno 24. Henric. octau capit 13. and as I haue heard it signifieth with vs in England those combats that are made with arming swords on horsebacke And I thinke the reason of the name to proceede from the French Tourner i. vertere because it consisteth much in agilitie both of horse and man Turno vececomitum is a writ that lyeth for those that are called to the Shyreeues turne out of their owne Hundred Register orig fol. 174. Tuain nithes gest hospes duarum noctium Roger Houeden parte poster suorum annalium fol. 345. b. who if he did harme to any his hoste was not aunswerable for it but himselfe See Thrid nithes hawan man Twelue men Duodecim homines legales is a number of twelue persons or vp wards to the number of 24. by whose discretion all tryals passe both in ciuill and criminall causes through all courts of the common law in this Realme First for ciuile causes when proofe is made of the mater in question as the parties and their councell thinke good on both sides the point of the fact that they are to giue their verdict of is deliuered likewise vnto them which we call the issue and then are they put in minde of their oath formerly taken to doe right betweene party and party and so sent out of the court seuerally by themselues to consider vpon the evidence of both sides vntill they be agreed which done they returne to the court againe and deliuer their verdict by the mouth of the foreman And according to this verdict Iudgement afterward passeth either condemnatorie for the plantife or absolutory for the Defendant These 12. be called 12. milites Glanuilo lib. 2. cap. 14. 15. and so be they in Bracton diuers times but that word is altered In causes criminall there be two sorts of Enquests one called the graund Enquest and the other the Enquest of life and death The graund Enquest is so called either because it consisteth commonly of a greater number then 12. as of 24. 18. or 16. at the least or els because all causes criminall or penall first passe through them whereas the other Enquest is especially appointed for one or few maters touching life and death committed to their considerations Those of the grand Enquest are also called by Bracton 12. milites lib. 3. tracta 2. cap. pri nu 2. because they were wont to be Knights as it see meth and not inferiours except so many knights could not be found Idem eodem num 1. in fine And their function is to receiue all presentments made vnto them of any offence and accordingly to giue their generall opinion of the presentment by writing either these words Balla vera vpon the bille of presentment which is an Inditement of the party presented or els this word Ignoramus which is an absoluing of him Now as criminall causes be of two sortes either capitall touching life and member or finable so is there a double course of these Inditements For in causes onely finable the party indited must either trauers the Inditement by denying it and so it is referred to a petit Iury whereby he is either conuicted or discharged of the crime or els he confessing it the court setteth his fine vpon his head wirhout more worke But in maters of life and death the party indited is commaunded to hold vp his hād āswer guilty or not guilty if guilty he standeth conuicted by his owne confession if not guilty he is farder referred to the Enquest of life and death which consider vpon the proofe brought against the prisoner and accordingly bring in their verdict Guilty or not Guilty So is he iudged to dye or deliuered by the court Of this read more in Iuditement Assise Iury See the statute anno 35. H. 8. cap. 6. 37. ciusdem cap 22. anno 2. Ed. 6 cap. 32. an 5. El. ca. 25. V VAcation vacatio hath an especiall signification in this kingdome being vsed for all that time respectiuely which passeth betweene terme and terme at London And when such times begunne and ended in our anncesters daies see Roger Hovedens annals parte posteriori fo 343. a. where you shall find that this intermission was called pax Dei ecclesiae Vaccarie aliâs vacharie vaccaria aliâs vacheria semeth to be a house to keepe kine in Fleta