appeareth by Bracton in these words Negotium in hoc casu terminabitur per cuntey cuntey sicut inter coharedes Bracton lib. 4. tract 3. cap. 18. And again in the same place In b evi de recto negotium terminabitur per cuntey cuntey And thirdly lib. 4. tract 4. cap. 2. Terminabitur negotium per breve de recto ubi nec duellum nec magna assisa sed per cuntey cuntey omninò which in mine opinion is as much as the ordinary Jury Curfew cometh of two French words couvrir i. tegere and feu i. ignis We use it for an Evening Peal by the which the Conqueror willed every man to take warning for the raking up of his fire and the putting out of his light So that in many places at this day where a Bell customably is rung toward Bed-time it is said to ring Curfew Stowes annals Curia avisare vult is a deliberation that the Court purposeth to take upon any point or points of a cause before judgement be resolved on For this see the new Book of Entries verbo Curia advisare vult Curia claudenda is a Writ that lyeth against him who should fence and close up his ground if he refuse or deferre to do it Regist orig fol 155. Fitzh nat br fol. 127. See also the new Book of Entries verbo Curia claudenda Cursiter clericus de cursu vel cursista curiae cancellariae is an Officer or Clerk belonging o the Chancerie that maketh out original Writs anno 14 15 H. 8. cap. 8. They be called Clerks of Course in the oath of the Clerks of the Chancery appointed anno 18 Ed. 3. stut 5. cap. unico There be of these 24 in number which have allotted unto every of them certain Shires into the which they make out such original writs as are by the subject required and are a Corporation among themselves Curteyn curtana was the name of King Edward the Saint his Sword which is the first Sword that is carried before the Kings of this Land at their Coronation Matthaeus Parisiens in Henrico tertio And I have heard say that the point thereof is broken which may argue an emblem of Mercie Curtilage See Curtelage Custode admittendo Custode amovendo are Writs for the admitting or removing of Gardians Reg. orig in indice Custom consuetudo is all one in signification with our Common Lawyers and Civilians being by them both accounted a part of the law Consuetudo quandoque pro lege servatur saith Bracton in partibus ubi fuerit more utentium approbata Longaevi enim temporis usus consuetudinis non est vilis authoritas lib. 1. cap. 3. It may be thus not unaptly defined Custome is a law or right not written which being established by long use and the consent of our Ancestors hath been and is daily practised our Ancestors that is majores and those of our kindred that are Ultra tritavum lib. 4. § parentem Ï€. de in jus vocando lib. ult § parentes Ï€. de gradibus affini nominibus eorum So that allowing the father to be so much older than his son as pubertas or the years of generation do require the Grandfather so much elder than him and fo forth usque ad tritavum we cannot say that this or that is a Custome except we can justifie that it hath continued so one hundred years For tritavus must be so much elder than the party that pleadeth it yet because that is hard to prove it is enough for the proof of a Custome by witnesse in the Common law as I have credibly heard if 2 or more can depose that they heard their Fathers say that it was a custome all their time and that their Fathers heard their Fathers also say that it was likewise a custome in their time If it be to be proved by record the continuance of a hundred years will serve Custome is either general or particular General I call that which is current thorow England whereof you shall read divers in the Doctor and Student lib. pri c. 7. very worthy to be known Particular is that which belongeth to this or that County as Gravelkind to Kent or to this or that Lordship City or Town Custome differeth from Prescription for that cuâ—ome iâ— common to more and Prescription in some mens opinion is particular to this or to that man Again Prescription may be for a farre shorter time than a Custome viz. for five years or for one year or lesse Example of five years Prescription you have in the levying of a Fine For if a Fine duly levied of Lands and Tenements be not impugned within five years it excludeth all claim for ever And if a man omit his continual claim for a year and a day then the Tenent in possession prescribeth an immunity against the entry of the Demandant his Heir Fitz. nat br fol. 79. Terms of the law verbo continual claim Out of our statutes you may have greater diversity which see collected in mine Institutes titulo de Usucapio longi tempo praescript So that Brissonius in his 14 de verbo signif seemeth to say truly that Prescription is an exception founded upon so long time run and past as the Law limiteth for the pursute of any action An example may be taken from those statutes anno 1 H. 8. cap. 4. which enacteth that in all action popular information shall be made within three years after the offence committed or else be of no force Of like nature is the Statute anno 7 H. 8. cap. 3. which in some cases maketh one years prescription sufficient against informations Custome is also used for the tribute or tolle that Merchants pay to the King for cartying in and out Merchandise anno 14 Ed. 3. stat 1. cap. 21. in which signification it is Latined Custuma Register orig fol. 138. a. r 29. a. And lastly for such services as Tenents of a Mannor owe unto their Lord New book of Entries verbo Custome Customary tenents tenentes per consuetudinem are such Tenents as hold by the Custom of the Mannor as their special evidence See Copie-holds Custos brevium is the principal Clerk belonging to the Court of Common Plees whose office is to receive and keep all the Writs and put them upon files every return by it self and at the end of every Term to receive of the Protonotaries all the Records of Nisi prius called the postea For they are first brought in by the Clerk of Assise of every circuit to the Protonotary that entred the issue in that matter for the entring of the Judgement And then do the Pronotaries get of the Court peremptory day for every party to speak what he hath to allege in arrest of Judgement which day being past he entreth the Verdict and Judgement thereupon into the rols of the Court and that done he doth in the end of the Term deliver over to the Custos brevium all the Records of
feudale beneficium adeptus est quasi qui in vassi fide et clientela est c. M. Skene de verbor signif verb. Ligentia saith that vassallus is divided into Homologum et non homologum Homologus is he that sweareth service with exception of a higher Lord and non homologus is he that sweareth without exception all one with Ligeus And the same Author verb. Vassallus saith that it is vassallus quosi bassallus id est inferior socâ—us From the French bas i. humilis dimissus and the Dutch word gesel i. sccius his reason is because the vassal is inferiour to his Master and must serve and reverence him and yet he is in manner his companion because each of them is obliged one to the other He saith farther out of Cujaceus lib. prim de Feud that leades leodes fideles homines nostri feudatarii ministeriales beneficiarii beneficiati vassalli signifie almost all one thing And a little after he saith thus In the laws of the Feuds vassallus is called fidelis quia fidelit atem jurat Amongst vassals the first place of dignity is given to them that are Duces Marchiones Comites and are called Capitanei Regni The second is granted to Barons and others of like estate and are called Valvasores Majores The third to them who are called Gentlemen or Nobles holding of Barons which also may have under them vassals that be Gentlemen And such vassals holding in chief of Barons are called Valvasores Minores And they which hold of Gentlemen are called Vassalli valvassini seu minimi valvasores But in this Realm he speaketh of Scotland they that hold of Barons are called Milites and they that hold of them are called Subvassores Thus sar Master Skene Vasto is a writ that lyeth for the heir against the Tenent for term of life or of years for making waste or for him in the Reversion or Remainder Fitzh nat br fol. 55. Regist orig fol. 72 76. and Regist. Judicial fol. 17.21 23 69. v. anno 6 Edw. pri cap. 5. Vavasour vavasor alià s valvasor is one that in dignity is next unto Baron Cambden Britan. pag. 109. Bracton lib. prim cap. 8. saith thus of this kind of men Sunt alii potentes sub rege qui dicuntur Barones hoc est robur belli sunt alii qui dicuntur Vavasores viri magne dignitatis Vavasor enim nibil melius dici poterit quà m vas sortitum ad valetudinem Jacobutius de Franchis in praeludio Feudorum tit prim num 4. c. calleth them Valvasores and giveth this reason of it Quia assident valvae i. portae domini in festis in quibus consueverunt homines curtizare eis reverentiam exhibere propter Beneficium eis collatum sicut libertus patrono M. Camden in his Brâ—tan pag. 108. hath these words of them Primis etiam Normannorum temporibus Thani proximi à Comitibus in dignitate censebantur Et valvasores majores si illis qui de feudis cribunt oredimus iidâ—m fuerunt Barones VE Vendiâ—soni expoâ—as is a writ ludicial directed to the under-Sheriff commanding him to sell goods that he hath formerly by commandement taken into his hands for the satisfying of a judgement given into the Kings Court Register judscial fol. 33. b. Venire facias is a writ judicial and goeth out of the record lying where two parties plead and come to issue sc upon the saying of the Country For then the party Plaintiff or Defendant shall have this writ directed to the Sheriff that he cause to come twelve lawfull men of the same Country to say the truth upon the sayd issue taken And if the Enquest come not at the day of this writ returned then shall go a Habcas corpora and after a Distress untill they come Old nar br fol. 157. See how diversly this writ is used in the table of the Registor judicial There is also a writ of this name that is original as appeareth in the Register orig fol. 200. b. which M. Lamberd in his Processes annexed to his Eirenarcha saith to be the common Processe upon any presentment not being felony nor especially appointed for the fault presented by Statute Wherof he setteth down an example in the same place See also the new book of Entries verbo Enquest fol. 253. columma 1 2 3. Venire sacias tot matronas See Ventre inspiciendo See Lamb. Eirenarcha li. 4. ca. 14. pa. 532. Venew vicinetum is taken for a neighbour or near place As for example twelve of the Assize ought to be of the same Venew where the demand is made Old nat br fol. 115. and in the statute anno 4 H. 4. cap. 26. anno 25 H. 8. cap. 6. I find these words And also shall return in every such panell upon the venire facias six sufficient Hundreders at the least if there be so many within the hundred where the Venew lyeth Ventre inspiciendo is a writ for the search of a woman that saith she is with child and thereby with-holdeth land from him that is the next heir at the common law Register original fol. 227. a. Verdour viridarius commeth of the French verdeur i. Saltuarius vel custos nemoris he is as M. Manwood parte pri of his Forest laws pag. 332. defineth him a Iudicial Officer of the Kings forest chosen by the King in the full County of the same Shire within the Forest where he doth dwell and is sworn to maintain and keep the Assises of the Forest and also to view receive and and inroll the Attachments and presentments of all manner of Trespasses of the Forest of vert and venison And the same Author upon the first article of Canutus Charter in the beginning of the same part saith that these in the Saxons times were called Paegened being four in number and they chief men of the Forest as then they were Their Fee was in Canutus time each of them every year of the Kings allowance two horses one of them with a saddle another of them without a saddle one Sword fiue Iavelings one Spear one Shield and ten pounds in mony These four as appeareth by the said Charter num 11. had regalem potestatem and might proceed to a three-fold judgement And if any man offered them or any of them violence if he were a free man he should lose his freedome and all that he had if a villein he should lose his right hand And all the Officers of the Forest were to be corrected and punished by them Ibidem num 10. The Verdour is made by the Kings writ Cromptons jurisd fol. 165. the form of which writ you have in Fitzh nat brev fol. 164. which is directed to the Sheriff for the choise of him in a full County by the assent of the said County Yet if a Verdour be suddenly sick or dead at the time of the Iustice seat a new may be chosen without a writ Manwood parte prim pag.
Market Assayer of the King is an Officer of the Mint for the due trial of Silver indifferently appointed between the Master of the Mint and the Merchants that bring silver thither for exchange An. 2 H. 6. c. 12. Assault insultus commeth of the French verb assailer i. adoriri appetere invadere which French proceedeth also from the Latine assilire i. vim afferre oppugnare It signifieth in out Common law a violent kind of injury offered to a mans person of a higher nature than battery for it may be committed by offering of a blow or by a fearfull speech M. Lambert in his Eirenar lib. 1. cap. 3. whom read The Feudists call this assulium and define it thus Assultus est impetus in personam aut locum sive hoc pedibus fiat vel equo aut machinis aut quacunque alia re assiliatur Zasius de feud parte 10. nu 38. And assilere est vim adferre adoriri oppngnare lib. feud 1. titulo 5. § 1. Assach seemeth to be a Welsh word and to signifie so much as a kind of excuse or strange kind of purgation by the Oaths of 300 men An. 1 H. 5. ca. 6. Assart Assartum in M. Manwoods Judgement parte 2. c. 9. nu 5. of the Forest laws commeth of the French assortir signifying as he saith to make plain or to furnish but rather indeed to set in order and handsomely to dispose Assertum est quod redactum est ad culturam Fleta lib. 4. ca. 21 § Item respondere It signifieth as much as the said M. Manwood saith n. 1. ubi supra an offence committed in the Forest by plucking up those woods by the rooâ—s that are thickets or coverts of the Forest and by making them plain as earable land where he also saith that an assart of the Forest is the greatest offence or trespass of all other that can be done in the Forest to vert or venison containing in it as much as the Waste or more For whereas the waste of the Forest is but the felling and cutting down of the coverts which may grow again in time an assart is a plucking them up c. Which he confirmeth out of the red book in the Exchequer in these words Assarta verò occaesiones nominantur quando sc forestae nemora vel dumeta pascuis latibulis ferarum opportuna succiduutur quibus succisis radicitus avulsis terra subversitur excolitur And again out of the Register origin folâ— 257. a b. in the Writ Adquod damrum sent out in case where a man sueth for a Licence to assart his grounds in the Forest and to make it several for tillage So that it is no offence if it be done with licence To this may Bracton also be added lib. 4. cap. 38. num 11. where he saith that these words boscus efficitnr assartum signifie as much as redactus in culturam Of this you may read more in Cromptons Jurisdictions fo 203. and in Charta de foresta an 9 H. 3. c. 4. where the English word is not assart but assert And in Manwood part 1. of his Forest laws pag. 171. The word is used an 4 Ed. 1. stat 1. in the same signification That which we call assartum is elsewhere tearmed Disboscatio Decis Genu. 78. Assembly unlawfull illicita assemblata commeth of the French assembler i. aggregare whence also is the Substantive assemblee i. coitio congregatio It is in our Common law as M. Lambert defineth it Eiren. li. 1. c. 19. the company of three persons or more gathered together to do an unlawfull act although they do it not See unlawfull assembly Assets quod tantundem valet Bract. l. 5. tract 3. c. 8. nu 2. is nothing but the French assez i. satis For though this word masque under the vilard of a Substantive it is in truth but an Adverb It signifieth in our Common law goods enough to discharge that burthen which is cast upon the Executor or Heir in the satisfying of the Testators or Ancestors debts or Legacies See Brook titulo Assets per dissent by whom you shall learn that whosoever pleadeth Assets faith nothing but that he against whom he pleadeth hath enough descended or come to his hands to discharge that which is in demand The Author of the new Terms of law maketh two sorts of Assets viz. assets par discent and assets enter mains the former being to be alleged against an Heir the other against an Executor or Administor Assigne assignare both it self and the French assigner come of the Latine It hath two significations one general as to appoint a deputè or to set over a right unto another In which signification Briston fo 122. saith This word was first brought into use for the favour of Bastards because they cannot run under the name of Heirs to their Fathers and therefore were and are comprised under the name of Assignees The other signification of this word is special as to appoint at or set forth viz. to assign Ertor Old nat B. fo 19. is to shew in what part of the Process Error is committed To assign false Iudgement codâ—m fo 17. that is to declare how and where the judgement is unjust To assign a false verdict codem fol. 112. and to assign an Oath to be false an 9 R. 2. c. 3. To assign the Cessor Old nat br fol. 1341. to shew how the Plaintiff had cessed or given over To assign waste is to shew wherein especially the waste is committed Reg. orig f. 72. Assign in the general signification is used an 20 Ed. 1. anno 11 H. 6. c. 2. in these words Iustices assigned to take Assises And the Substantive assignment hath the same signification West symb parte 1. lib. 2. sect 496. seq In which manner is also used the Adjective assignee assignatus viz. for him that is appointed or deputed by another to do any Act or perform any business or enjoy any commodity And an assignee may be either in deed or in Law Assignee in deed is he that is appointed by a Person an assignee in Law is he whom the Law so maketh without any appointment of the Person Vide Dyer fol. 6. nu 5. Perkins in Grants saith that an assignee is he that occupiesh a thing in his own right and Deputè he that doth it in the right of another Assise assisa commeth of the French word assise which in the grand Customary of Normandy c. 24. is defined to this effect Assise is an Assembly of Knights and other substantial men with the Bailiff or Iustice in a certain place and at a ceptain time appointed And again c. 55. Assise is a Court in the which whatsoever is done ought to have perpetual strength This Norman word assise commeth of the French asseoire i. collocare to settle or bestow in some place certain as S'asseoir is to fit down by another And metaphorically it is used of things incorporeal as asseoir son jugement sur quel
the bestowing or assuring of a Dower See Dower But it is sometime used Metaphorically for the setting forth or severing of a sufficient portion for a Vicar toward his perpetual maintenance when the Benefice is appropriateâ— See Appropriation And the Statute An. 15. R. 2. c. 5. Endowment de la plus belle parte is where a man dying seised of some lands holding in Knights service and other some in socage the Widow is sped of her Dower rather in the lands holding in soccage than Knights service Of this read Litleton more at large lib. 1. cap. 5. Enfranchisement cometh of the French Franchise i. libertas and is in a manner a French word of it self it signifieth in our Common law the incorporating of a man in any society or body politick For example he that by Charter is made Denizen of England is said to be infranchised and so is he that is made a Citizen of London or other City or Burgesse of any Town Corporate because he is made partaker of those liberties that appertain to the Corporation whereinto he is infranchised So a villain is infranchised when he is made free by his Lord and made capable of the benefits belonging to the free-men Englecerie Engleceria is an old abstract word signifying nothing else but to he an English-man For example if a man be privily slain or murdered he was in old time accounted Francigena which word comprehendeth every alien until Englecerie was proved that is until it were made manifest that he was an English-man A man may marvel what meaning there might be in this but Bracton cleareth the doubt who in his third book tract 2. cap. 15. num 3. telleth us that when Canutus the Danish King having setled his estate here in peace did at the request of our Barons disburden the land of his army wherein he accounted his greatest safety and conditioned with them that his Countrey-men which remained here should continue in peace and the more to secure that that for every Francigena under which word as is above said he comprehended all outlandish men and women and especially Danes that was secretly murthered there should be levied to his Treasurie 66 marks out of the village where the murther was committed or out of the Hundred if the Village were not able to pay it and further that every man murthered should be accounted Francigena except Englecery were proved which how it was to be proved look the seventh Number in the same Chapter And see also Horns mirrour of Justices lib. 1. cap. del office del coroner and Fleta lib. 1. cap. 30. This Engleceris for the abuses and troubles that afterward were perceived to grow by it was clean taken away by a Statute made Anno 14. Edward 3. capite quarto Enheritance See Inheritance Enquest Inquifitio 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 Romans nor French men ever had use of that I can learn And that is the Enquest of Jurors or by Jurie which is the most usual trial of all causes both Civil and Criminal in our realm For in causes Civil after proof is made on either side so much as each party thinketh good for himself if the doubt be in the fact it is referred to the discretion of twelve indifferent men empaneled by the Sheriff for the purpose and as they bring in their Verdict so judgement passeth For the Judge faith the Jurie findeth the fact thus then is the Law thus and so we judge For the Enquest in causes criminal see Jurie and see Sir Thomas Smith de Repub. Anglor lib. 2. cap. 19. An Enquest is either of office or at the mise of the party Stawn pl. cor lib. cap. 12. Entendment cometh of the French entendiment i. intellectus ingenium It signifieth in our Common law so much as the true meaning or signification of a word or sentence See of this Kitchin fol. 224. Entayl feudum talliatum cometh of the French entaille i. inscisus and in our Common law is a substantive abstract signifying Fee-tail or Fee-intailed Litleton in the second Chapter of his Book draweth Fee-tail from the verb Talliare which whence it cometh or whether it will I know not whereas in truth it must come from the French taille i. sectura or tailler i. scindere secare And the reason is manifest because Fee-tail in the Law is nothing but Fee abridged scanted or currelled as you would say or limited and tyed to cettain conditions Taille in France is metaphorically taken for a tribute or subsidie v. Lupanum de Magistratibus Francorum lib. 3. cap. Talea See Fee See Tail Enterpleder Interplacitare is compounded of two French words entre i. inter and pleder i. disputare and it signifieth in our Common law as much as cognitio praejudicialis in the Civil Law that is the discussing of a point incidently falling out before the principal cause can take end For example two several persons being found Heirs to Land by two several offices in one Countie the King is brought in doubt to whether livery ought to be made and therefore before Livery be made to either they must enterplead that is formerly trie between themselves who is the right Heir Stawnf praeroga cap. 12. See more examples in Broke titulo Enterpleder Entire tenancie is contrary to several Tenencie signifying a sole possession in one man whereas the other signifieth joynt or common in more See Broke several Tenencie See the new book of Entries verbo Entier tenancie Entry Ingressus cometh of the French entree i. introitus ingressus aditus and properly signifieth in our Common law the taking possession of Lands or Tenements See Plowden Assise of fresh force in London fol. 93. b. It is also used for a Writ of possession for the which see Ingressu And read West also parte 2. Symbol titulo Recoveries Sect. 2. 3. Who there sheweth for what things it lyeth and for what things it lyeth not Of this Britton in his 114. Chapter writeth to his effect The Writs of entry savour much of the right of poverty As for example some be to recover customes and services in the which are contained these two words solet debet as the Writs Quo jure Rationalibus divisis rationabili est overio with such like And in this place of entrie there be three degrees The first is where a man demandeth Land or Tenements of his own seisin after the Term is expired The second is where one demandeth Lands or Tenements let by another after the Term expired The third where one demandeth Lands or Tenements of that Tenent that had entry by one to whom some Ancestor of the Plaintiff did let it for a Term now expired According to which degrees the Writs for more fit remedy are varied And there is yet a fourth form which is withour degrees and in case of a
more remote Seisin whereunto the other three degrees do not extend The Writ in the second degree is called a VVrit of entry in le per and a VVrit in the third degree is called a VVrit of entry in le per cui and the fourth form without these degrees is called a VVrit of entry in le postâ—â— that is to say after the disseisin which such a one made to such a one And if any Writ of entry be conceived out of the right case so that one form be brought for another it is abateable The form of the first degree is such Praecipe Willielmo quod reddat Petro manerium de B. cum pertinentiis quod ille definet pro termino qui est elapsus The second is such Praecipe Petro quod reddat Willielmo manerium c. in quod ille non habuit ingressum nisi per patrem aut matrem avunculum vel amitam vel cognatum avum vel proavum dicts Petri qui dictum manerium dimisit pro termino qui est elapsus The third form is such Praecipe Johanni quod reddat Petro manerium de S. in quod ille non habuit ingressum nisi per T. cui talâ—s pater vel mater vel alius antecessor aut cognatus idem dimisit cujus haeres est ipse Petrus pro termino qui est elapsus And the form without the degrees is such In quod non habuit ingressum nisi post lessam quam talis pater aut mater sic ut supra cujus haeres ille est inde fecit pro termino qui est elapsus And in those four degrees be comprehended all manner Writs of entry which be without certainty and number Thus farre Britton by whom you may perceive that those words solet debet and also those other words in le per in le per cui and in le post which we meet with many times in books shortly and obscurely mentioned do signifie nothing else but divers forms of this Writ applyed to the case whereupon it is brought and each form taking his name from the said words contained in the Writ And of this read Fitzh in his nat br fol. 193. 194. This VVrit of entry differeth from an Assise because it lyeth for the most part against him who entred lawfully but holdeth against Law whereas an Assise lyeth against him that unlawfully disseised yet sometime a VVrit of entry lyeth upon an entrusion Regist orig fol. 233. b. See the new book of Entries verbo Entre brevis fol. 254. colum 3. I read of a VVrit of entry in the nature of an Assise Of this VVrit in all his degrees read Fleta lib. 5. cap. 34. sâ—q Entrusion Intrusio in our Common law signifieth a violent or unlawfull entrance into Lands or Tenements being utterly void of a possessor by him that hath no right nor spark of right unto them Bracton lib. 4. cap. 2. For example if a man step in upon any Lands the owner whereof lately dyed and the right Heir neither by himself or others as yet hath taken possession of them VVhat the difference is between Abator and Intrudor I do not well perceive except an Abatour he be that step peth into land void by the death of a Tenent in Fee and an Entrudor that doth the like into lands c. void by the death of the Tenent for Terms of life or yeers See Fitzh nat br fol. 203. F. The author of the new Terms of Law would have abatement Latined Interpositionem aut intro tionem per interpositionem and to be restrained to him that entreth before the Heir after the decease of a Tenent for life though the new book of Entries fol. 63. C. 205. D. 519. C. by his confession doth Latine Abatement by this word Intrusionem See Abatement See Disseisin See Britton cap. 65. Entrusion is also taken for the Writ brought against an Intrudor which see in Fitzhâ—nat br fol. 203. Entrusion de gard is a Writ that lyeth where the Infant within age entred into his his lands and holdeth his Lord on t for in this case the Lord shall not have the VVrit De communi custodia But this Old nat br fol. 90. Enure signifieth to take place or effect to be availeable Example A Release shall enure by way of extinguishment Litleton cap. Release And a Release made to a Tenent for Term of life shal inure to him in the Reversion ER Erius alias Iris is the Flower de lyce whose divers kinds you have expressed in Gerards Herbal lib. 1. cap. 34. The root of this is mentioned among Merchandize or Drugs to be garbled anno 1 Jacob. cap. 19. Ermins seemeth to come of the French Ermine i. mus araneus It signifieth a Furre of great price Erminstreat see Watlingstreat Errant Itinerans cometh of the French Error i. errare or the old word Erre i. Iter. It is attributed to Justices of circuit p. cor fol. 15. and Baylifes at large See Justices in Eyr and Baylife See also Eyr Errour Error cometh of the French Erreur and signifieth more specially in our Common law an error in pleading or in the Proces Brook titulo Errour And thereupon the VVrit which is brought for remedy of this oversight is called a VVrit of error in Latine De errore corrigendo thus definedâ— by Fitzh nat br fol. 20. A VVrit of Error is that properly which lyeth to redresse false judgement given in any Court of Record as in the Common bench London or other City having power by the Kings Charter or prescription to hold Plee of debt See the new book of Entries verbo Error or trespasse above the sum of twenty shillings This is borrowed from the French practice which they call proposition d'erreur VVhereof you may read in Gregorius De appellation pag. 36. In what diversity of cases this VVrit lyeth see the Register original in the Table verb. Errore corrigendo and Register judicial fol. 34. There is likewise a VVrit of Errour to reverse a Fine West parte 2. sect symbol titulo Fines 151. Errore corrigendo See Error ES Escawbio is a license granted to one for the making over of a Bill of Echange to a man over Sea Register Original fol. 194. a. Escape escapium cometh of the French eschapper i. aufugere effugere and signifieth in the Law a violent or prive evasion out of some lawful restraint For example if the Sheriff upon a Capias directed unto him take one and indeavour to carry him to the Gaol and he in the way either by violence or by slight break from him this is called an escape pl. cor fol. 70. Many examples might be brought out of him and others but the thing is plain Stawnf lib. 1. cap. 26. pl. cor nameth two kinds of Escapes voluntarie and negligent Voluntarie is when one arresteth another for Felonie or some other crime and afterwards letteth him go whither he listeth In which escape the party that
English and the French word seemeth to come of Feriae because it is alwayes incident to the privilege of a Fair that a man may not be arrested or molested in it for any other debt than first was contracted in the same or at least was promised to be payed there anno 17 Ed. 4. cap. 2. anno 1 R. 3. cap. 6. Fair-pleading see Beaw-pleader Faitours seemeth to be a French word antiquated or something traduced For the modern French word is faiseur i. factor It is used in the Statute anno 7 R. 2. cap. 5. And in the evil part signifying a bad doer Or it may not improbably be interpreted an idle liver taken from faitardise which signifieth a kind of num or sleepy disease proceeding of too much sluggishnesse which the Latines call veternus For in the said statute it seemeth to be a Synonymon to Vagabond Falk-land alià s Folk-land See Copy-hold and Free-hold False imprisonment falsum imprisonamentum is a trespasseâ— committed against a man by imprisoning him without lawful cause it is also used for the Writ which is brought upon this trespasse Fitzh nat br fol. 86. K. 88. P. v. Broke h. t. See the new book of Entries verbo False imprisonnement Falso judicio is a Writ that lyeth for salse judgement given in the County Hundred Court Baron or other Courts being no Court of Record be the Plea real or personal Regist orig fol 15. Fitzh nat br f l. 17. See the new book of Entries verbo False judgement False prophecies See Prophecies Falso reâ—urno brevium is a Writ lying against the Sheriff for false returning of Writs Reg. â—â—dic fol. 43. b. Falsifie seemeth to signifie as much as to prove a thing to be false Perkins Dower 383 384 385. Farding or farthing of gold seemeth to be a Coyn used in ancient times containing in value the fourth part of a Noble viz. twenty pence silver and in weighth the sixth part of an ounce of gold that is of five shillings in silver which is three pence and something more This word is found anno 9 H. 5. statut 2. cap. 7. thus Item that the King do to be ordained good and just weight of the noble half noble and farthing of gold with the rates necessary to the same for every City c. By which place it plainly appeareth to have been a Coin as well as the noble and half noble Farding deal alià s Farundel of Land Quadrantata terrae signifieth the fourth part of an Acre Cromptons Jurisdict f. 220. Quadrantata terrae is read in the Regist. orig fol. 1. b. where you have also Denariata obolata solidata librata terrae which by probability must rise in proportion of quantity from the farding deal as an half penny penny shilling or pound rise in value and estimation then must obolata be half an acre denariata an acre solidata twelve acres and librata twelve score acres And yet I finde viginti libratas terrae vel reditus Register orig fol. 94. a. fol. 248. b. Whereby it seemeth that Librata terrae is so much as yeeldeth twenty shillings per annum and centum solidatas terrarum tenementorum redituum fol. 249. a. And in Fitzherb nat br fol. 87. f. I find these words viginti libratas terrae vel reditus which argueth it to be so much Lands as twenty shillings per annum See Furlong Fate or Fat is a great wooden Vessel which among Brewers in London is ordinarily used at this day to measure Mault by containing a Quarter which they have for expedition in measuring This word is read Anno 1 H. 5. cap. 10. anno 11 H. 6. cap. 8. FE Fealty Fidelitas cometh of the French feaulte i. fides and signifieth in our Common law an oath taken at the admittance of every Tenent to be true to the Lord of whom he holdeth his Land And he that holdeth Land by this onely oath of fealty holdeth in the freest manner that any man in England under the King may hold Because all with us that have Fee hold per fidem fiduciam that is by fealty at the least Smith de Republ. Anglor lib. 3. cap. 8. for fidelitas est de substantia feudi as Duarenus saith de feud cap. 2. num 4. and Matthaeus de afflictis decis 320. num 4. pag. 465. saith that fidelitas est substantiale feudi non servitium The particulars of his oath as it is used among the Feudists you may read well expressed by Zasius in his Tractare de feudis parte 7. num 15 16. which is worth the comparing with the usual oath taken here in our part of Britanie This fealty is also used in other Nations as the Lombards and Burgundians Cassâ—nae us de consuet Burgund pag. 419 420. And indeed the very first creation of this Tenure as it grew from the love of the Lord toward his followers so did it bind the Tenent to fidelity as appeareth by the whole course of the Feods And the breach thereof is losse of the Fee Duarenus in Commentariis feudorum cap. 14. num 11. Wesenbecins in tract de feudis cap. 15. num 4. seq Antonius Contius in methodo feudorum cap. Quibus modis feudum amittitur Hoteman in his Commentaries De verbis feudalibus sheweth a double fealty one generall to be performed in every subject to his Prince the other special required onely of such as in respect of their Fee are tyed by this oath toward their Land-lords both we may read of in the Grand Custumary of Normandy being of course performed to the Duke by all resient within the Dutchie The effect of the words turned into Latine by the Interpreter is this Fidelitatem autem tenentur omnes residentes in Provincia Duci facere servare Unde tenentur sc ei innocuos in omnibus fideles exhibere nec aliquid ipsum incommodi procurare nec ejus inimic is praebere contra ipsum consilium vel juvamen qui ex hoc inventi fuerint ex causa manifesta notabiles traditores Principis reputantur Et omnes eorum possessiones perpetuae Principi remanebunt si super hoc convicti fuerint vel damnati Omnes enim in Normania tenentur Principi fidelitatem observare Unde nullus homagium vel fidelitatem alicujus potest recipere nisi salva Principis fidelitate Quod etiam est in eorum receptbone specialiter exprimendum Inter Dominos autem alios homines fides taliter debet observari quod neuter in personam alterius personâ—lem violentiam seu percutionis injectionem cum violentia debet irrogari Si quis enim eorum ex hoc fuerit accusatus in curia convictus feudum omne debet amittere c. This fealty special is with us performed either by Free-men or by Villains The form of both see anno 14 Ed. 1. stat 2. in these words When a Free-man shall do fealty to his Lord he shall hold
5. where he saith that in case a Writ of right be brought and the seisin of the Demandant or his Ancestor alleged the seisin is not traversable by the Defendant but he may tender or profer the half mark for the enquiry of this seisin which is as much to say in plainer Terms that the Defendant shall not be admitted to denie that the Demandant or his Ancestor was seised of the Land in question and to prove his denial and that he shall be admitted to tender half a Mark in money to have an enquiry made whether the Demandant c. were so seised or not And in this signification I read the same words in the old English natura brevium fol. 26. b. viz. Know ye that in a Writ of right of Advowzen brought by the King the Defendant shall not profer the half Mark no Judgement final shall be given against the King c. Whereof Fitzh ubi supra M. giveth the reason because in the Kings case the Defendant shall be permitted to traverse the seisin by licence obtained of the Kings Sergeant To this effect See Fitz. nat br fol. 31. C.D.E. Half seal is used in the Chancery for the sealing of Commissions unto Delegates appointed upon any appeal in Ecclesiastical or Marine causes anno 8 Eliz. cap. 5. Half tongue See Medietas linguae Halymote alias Healgemot is a Court Baron Manwood parte prima of his Forest laws pag. 111. and the Etymologie is the meeting of the Tenants of one Hall or Mannor M. Gwins Preface to his Reading which for the esteem thereof is by copies spread into many mens hands Hallage is a Fee due for clothes brought for sale to Blackwel-hal in London Coke vol. 6. fol. 62. b. Hamlet Hameletum is a diminutive of Ham which signifieth habitationem Cambden Brit. pag. 149. 354. The French hameau i. viculus is also neer unto it Kitchin hath Hamel in the same sense f. 2.15 who also useth hampsel for an old house or cottage decayed fo 103. Hamlet as Stow useth it in Ed. 3. seemeth to be the seat of a Free-holder For there he saith that the said King bestowed two Manors and nine Hamlets of land upon the monastery of Westminster for the keeping of yearly obits for his Wife Queen Eleanor deceased Hameling of dogs or hambling of dogs is all one with the expeditating of dogs Manwood parte prim of his Forest laws pag. 212. parte 2. cap. 16. num 5. where he saith this is the ancient term that Foresters used for that marter whence this word might be drawn I dare not resolve but it is not improbable that hameling is quasi hamhalding that is keeping at home which is done by paring their feet so as they cannot take any great desight in running abroad See Expeditate Hampsel See Hamlet Hamsoken See Homesoken M. Skene de verb. significa writeth it Haimsuken and deriveth it from Haim a German word signifying a house or dwelling and Suchen that is to seek search or pursue It is used in Scotland for the crime of him that violently and contrary to the Kings peace assaulteth a man in his own house which as he saith is punishable equally with ravishing of a VVoman significat quietantiam misericordiae intrationis in alienam domum vi injusté Fleta lib. pri cap. 47. See Homesoken Hand in and Hand out anno 17 Ed. 4. cap. 2. is the name of an unlawful game Hand-full is four inches by the standard anno 33 H. 8. cap. 5. c. Hankwit aliâs Hangwit or Hengwit cometh of the Saxon words Hangen i. pendere and wit whereof read in Gultwit Rastal in the title Exposition of words saith It is a liberty granted unto a man whereby he is quit of a Felon or Thief hanged without judgement or escaped out of custody I read it interpreted mulcta pro homine injustè suspenso Or whether it may be a liberty whereby a Lord chalengeth the forfeiture due for him that fordoth himself within his Fee or not let the Reader consider See Blood-wit Hanper haneperium haneper of the Chancery anno 10 R. 2. cap. prim seemeth to signifie as fiscus originally doth in Latine See Clerk of the Hanaper Hanse as Ortelius in the Index of his Additament to his Theater ver Ansiatici saith is an old Gothish word where he sheweth not the interpretation It signifieth a certain society of Merchants combined together for the good usage and safe passage of Merchandize from Kingdome to Kingdome This society was and in part yet is endued with many large privileges of Princes respectively within their territories It had four principal seats or staples where the Almain or Dutch Merchants being the Erectours of this society had an especial house one of which was here in London called Gildhalda Teutonicorum or in our Common language the Steelyard Of this you may read more in the place of Ortelius above mentioned Haope cometh of the French happer i. rapio cum quadam velo citate capio and the French seemeth to come from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It signifieth in our Common law the same thing as to hap the possession of a deed poll Litleton fol. 8. Haque is a hand-gun of about three quarters of a yard long anno 33 Henr. 8. cap. 6. anno 2. 3 E. 6. cap. 14. There is also the half-haque or demy-haque See Haquebut Haquebut is that piece of artillery or gun which we otherwise call an harquebuse being both French words Anno 2. 3 Ed. 6. cap. 14. anno 4. 5 Phil. Mar. cap. 2. Hariot aliâs heriot heriotum in the Saxon heregeat a litle altered which is drawn from here i. exercitus And a heriot in our Saxons time signifieth a tribute given to the Lord for his better preparation toward War Lambert innis explication of Saxon words verbo Hereotum The name is still retained but the use altered for wheras by Master Lamberts opinion ubi suâ—ra it did signifie so much as relief doth now with us now it is taken for the best chattel that a Tenent hath at the hour of his death due unto the Lord by custom be it horse oxe cattel or any such like Master Kitchin distinguisheth between Heriot service and Heriot custom fol. 133 134 For interpretation whereof you shall find these words in Brook titulo Hariot num 5. Hariot after the death of the Tenent for life is Hariot custome For Hariot service is after the death of Tenent in Fee-simple The new Expounder of the Law Terms saith That Hariot service in some mans opinion is often expressed in a mans grant or deed that he holdeth by such service to pay Hariot at the time of his death that holdeth in Fee-simple Hariot custome is where Hariots have been payd time out of mind by Custome And this may be after the death of the Tenent for life See Plowden fol. 95 b. 69 a b. Bracton saith that Heriotum est quasi relevium li.
words Billa vera or disallow by writing Ignoramus such as they doe approve if they touch Life and Death are farther referred to another Jury to be considered of because the case is of such importance but others of lighter moment are upon their allowance without more work fined by the Bench except the party travers the Inditement or challenge it for insufficiency or remove the cause to a higher Court by Certiorari in which two former cases it is referred to another Jury and in the latter transmitted to the higher Lamb. Eir. li. 4. ca. 7. and presently upon the allowance of this Bill by the Grand Enquest a man is said to be indited Such as they disallow are delivered to the Bench by whom they are forthwith cancelled or torn The Petit Iury consisteth of twelve men at the least and are empaneled as well upon criminal as upon civil causes those that passe upon offences of Life and Death doe bring in their verdict either guiltie or not guilty wherupon the Prisoner if he be found guilty is said to be convicted and so afterward receiveth his judgement and condemnation or otherwise is acquitted and set Free Of this read Fortes cap. 27. Those that passe upon civil causes real are all or so many as can conveniently be had of the same Hundred where the land or tenement in question doth lie and four at the least And they upon due examination bring in their verdict either for the Demandant or Tenent Of this see Fortescue cap. 25 26. According unto which judgement passeth afterward in the Court where the cause first began and the reason hereof is because these Justices of Assise are in this case for the ease of the Country only to take the verdict of the Jury by the vertue of the writ called Nisi prius and so return it to the Court where the cause is depending See Nisi prius Joyn with this the chapter formerly cited out of the Custumary of Normandie and that of King Etheldreds laws mentioned by Master Lamberd verbo Centuria in his explication of Saxon words And by these two words you shall perceive that as well among these Normans as the Saxous the men of this Jury were Associates and Assistants to the Judges of the Court in a kind of equalitie whereas now adayes they attend them in great humility and are as it were at their command for the service of the Court the words set down by M. Lamberd are these In singulis centuriis comitia sunto atque liberae conditionis viri duodeni aetate superiores un à cum praeposito sacra tenentes juranto se aedeo virum aliquem innocentem hand condemnaturos sontemve absoluturos to this joyn also the 69. chapter of the said Custumary See Enquest See 12. Men. See Lamberds Eirenarch lib. 4. cap. 3. pag. 384. Juris utrùm is a writ that lieth for the incumbent whose predecessour hath alienated his lands or tenements the divers uses of which writ see in Fitzh nat br fol. 48. Jurisdictiou Jurisdictio is a dignity which a man hath by a power to doe Iustice in causes of Complaint made before him And there be two kinds of Jurisdictions the one that a man hath by reason of his fee and by vertue thereof doth right in all plaints concerning his fee The other is a Iurisdiction given by the Prince to a Bayliff this division I have in the Custumary of Normandie cap. 2. which is not unapt for the practice of our Commonwealth for by him whom they call a Bayliff wee may understand all that have commission from the Prince to give judgement in any cause The Civilians divide jurisdictionem generally in imperium jurisdictionem and imperium in merum et mixtum Of which you may read many especiall tractats written of them as a matter of great difficulty and importance Justes cometh of the French Joustes i. decursus and signifieth with us contentions between Martial men by speares on horsback anno 24 H. 8. cap. 13. Justice Justiciarius is a Freneh word and signifieth him that is deputed by the King to doe right by way of judgement the reason why he is called Justice and not Judex is because in ancient time the latine word for him was Justitia and not Justiciarius as appeareth by Glanv lib. 2. cap. 6. Roger Hoveden part poster suorum annalium fo l 413. a. and divers other places which appellation we have from the Normans as appeareth by the Grand Custumary cap. 3. And I doe the rather note it because men of this function should hereby consider that they are or ought to be not Justi in their judgements but in abstract ipsa justitia howbeit I hold it well if they perform their office in concreto Another reason why they are called Justiciari◠with us and not Judices is because they have their authority by deputation as Delegates to the King and not jure magistratus and therefore cannot depute others in their stead the Justice of the Forest only excepted who hath that liberty especially given him by the Statute anno 32 H. 8. cap. 35. for the Chancellor Marshal Admiral and such like are not called Justiciarii but Judices of these Justices you have divers sorts in England as you may perceive here following The manner of creating these Justices with other appurtenances read in Fortescue cap. 51. Justice of the Kings bench Justiciarius de Banco Regis is a Lord by his office and the chief of the rest wherefore he is also called Capitalis Justiciarius Angliae his office especially is to hear and determine all plees of the Crown that is such as concern offences committed against the crown dignity and peace of the King as treasons felonies mayhems and such like which you may see in Bracton lib. 3. tractat 2. per totum and in Stawnf treatise intituled The plees of the Crown from the first chapter to the fifty one of the first Book But either it was from the beginning or by time is come to passe that he with his Assistants heareth all personal actions and real also if they be incident to any personal action depending before them See Cromptons jurisd fol. 67. c. Of this Court Bracton lib. 3. ca. 7. nu 2. saith thus Placita vero civilia in rem personam in Curia domini Regis terminanda coram diversis Justiciariis terminantur Habet enim plures curias in quibus diversae actiones terminantur illarum curiarum habet unam propriam sicut aulam regiam justiciariios capitales qui proprias causos Regis terminant aliorum omnium par querelam vel per privilegium sive libertatem ut si sit aliquis qui implacitari non debeat nisi coram domino Rege This Justice as it seemeth hath no patent under the broad Seal For so Cromp. saith ubi supra He is made only by Writ which is a short one to this effect Regina Johanni Popham militi salutem Sciatis
lying neer one another and consenting to have their bounds severally known It is directed to the Shyreeve commanding him to make perambulation and to set down their certain limits between them Of this read more at large in Fitz. nat br fol. 133. See Rationalibus divisis See the Regist orig fol. 157. and the new book of Entries verbo Perambulatione facienda Perche pertica is a French word signifying a long pole It is used with us for a rod or Pole of sixteen foot and a half in length Whereof Fourty in length and four in breath make an acre of ground Cromptons Jurisdict fol. 222. Yet by the custom of the country it may be longer as he there saith For in the Forest of Sherwood it is 25. foot fol. 224. M. Skene de verbor signif verbo Particata terrae saith that particata terrae is a Rood of land where he hath also these words in effect Three beer corns without tails set together in length make an inch of the which corns one should be taken off the middle ridge another of the side of the ridge another of the furrow Twelve inches make a foot of measure three foot and an inch make an elne six elnes long make one fall which is the common lineal measure and six elnes long and six broad make a square and superficiall fall of measured land And it is to be understood that one rod one raip one lineall fall of measure are all one for each one of them containeth six elnes in length Howbeir a rod is a staff or pole of wood a rasp is made of tow or hemp And so much land as fall thunder the rod or raip at once is called a fall of measure or a lineal fall because it is the measure of the line or length only Like as the superficiall fall is the measure both of length and bredth Item ten falls in length and four in breadth make a Rood four Roods make and acre c. This is the measure of Scotland whereof you may read more in the same place Perdonatio utlagariae in the Register judiciall fol. 28. is the form of pardon for him that for not comming to the Kings court is out-lawed and afterwards of his own accord yeeldeth himself to prison Peremptory peremptorius commeth of the verb perimere to cut off and joyned with a substantive as action or exception signifyeth a finall and determinate act without hope of renewing So Fitzh calleth a peremtory action nat br fol. 35. P. fol. 38. M. fol. 104. O. Q R. fol. 108. D. G. and non-sute peremptory idem eodem fol. 5. N. F. fol. 11. A peremptory exception Bracton li. 4. cap. 20. Smith derep Anglorum li. 2. cap. 13. calleth that a preremptory acception which can make the state and an issue in a cause Perinde valere is a dispensation graunted to a Clerk that being defective in his capacity to a benefice or other ecclesiastical function is de facto admitted unto it And it hath the appellation of the words which make the faculty as effectual to the party dispensed with as if he had been actually capable of the thing for which he is dispensed with at the time of his admission Perkins was a learned Lawyer fellow and bencher of the inner Temple that lived in the daies of Edw. the 6. and Queen Mary He wrote a book upon divers points of the common Law of very great commendation Permutatione Archidiaconatus ecclesiae eidem annexe cum ecclesia et praebenda is a writ to an Ordinary commanding him to admit a clerk to a benefice upon exchange made with another Regist orig fol. 307. a. Pernour of profits cometh of the French verb. prendere i. acciperâ— and signifieth him that taketh as pernour of profits anno 1 H. 7 ca. pri Pernour de prosits et cesti que use is all one Coke li. i. casu Chuâ—ley fol. 123. a. See Pernour anno 21. R. 2. ca. 15. Per quae ervitia is a writ judicial issuing from the note of a fine and lyeth for the cognizee of a maner seignory chief rent or other services to compell him that is tenant of the land at the time of the note of the fine levyed to atturn unto him West parte 2. symbol titulo Fines-Sect 126. To the same effect speaketh the old nat br fol. 155. See also the new book of Entries verbo per quae servitia Perquesite perquesitum signifyeth in Bracton any thing purchased as per quisitum facere lib. 2. cap. 30. numb 3. lib. 4. cap. 22. perquisites of court be those profits that grow unto the Lord of a maner by vertue of his Court Baron over and above the certain and yearly profits of his land as escheats mariages goods purchased by villeins fines of copie holds and such like New Termes of the Law Person See Parson Personable signifyeth as much as inhabled to hold or maintain plee in a court For example the demaundant was judged personably to maintain this action Old nat br fol. 142. and in Kitchin fol. 214. The tenent pleaded that the wife was an alien born in Portingall without the ligeance of the King and judgement was asked whether she would be answered The Plaintiff saith she was made personable by Parliament that is as the Civilians would speak it habere personam standi in judicio Personable is also as much as to be of capacity to take any thing granted or given Plowden casu Colthirst fol. 27. b. Personal personalis hath in our common Law one strange signification being joyned with the substantive things goods or Chatels as things personal goods personal Chatels personal for thus it signifieth any corporeal and moveable thing belonging to any man be it quick or dead So it is used in Westm par 2. symbol titulo Inditements sect 58. in these words Theft is an unlawfull fellonious taking away another mans moveable personal goods And again fol. 61. Larcency is a felonious taking away of anothers mans moveable personall goods and Kitchin fol. 139. in these words Where personal things shall be given to corporation as a horse a cow an oxe sheep hogs or other goods c. and Stawnford pl. cor fol. 25. Contrectatio rei alienae is to be understood of things personal for in things real it is not felony as the cutting of a tree is not fellony The reason of this application see Chattel Personalty personalitas is an abstract of personall The action is in the personalty old nat br fol 92. that is to say brought against the right person or the person against whom in law it lyeth I find these contrary words Personalitas impersonalitas in the Author of the book called vocabularius utriusque juris as for example Personalitas significatur per has dictiones tu mihi ego tibt cum alio significato quod probbialiter oencluditur si nullo modo concludatur tunc est impersonalttas quia actum vitiat pront ratio dictat verbi gratia
46. B. or other courts of record idem fol. 71. C. 119. K. Howbeit if you will learn more exactly where and in what cases this writ lyeth read Brook in his Abridgement titulo Recordare et pone It seemeth to be called a recordare because the form is such that it commandeth the Shyreeve to whom it is directed to make a record of the proceedings by himself and others and then to send up the cause See the Register verbo Recordare in the table of the original Writs See Certiorari See Accedas ad Curiam Recorder recordator commeth of the French recordeur i. talis persona quae in Ducis curia à judicio faciendo non debet amoveri Grand Custumary of Norm cap. 107. 121. Whereby it appeareth that those which were necessary ludges to the Duke of Normandies courts were called Recorders and who they were is shewed in the ninth chapter of the said book And that they or the greater part of them had power to make a record it is evident in the chapter 107. Here in England a Recorder is he whom the Maior or other Magistrate of any City or Town corporate having jurisdiction or a Court of record within their precincts by the Kings grant doth associate unto him for his better direction in matters of Iustice and proceedings according unto law And he is for the most part a man well seen in the common law Recordo et processu mittendis is a writ to call a Record to gether with the whole proceeding in the cause out of one court into the Kings court Which see in the Table of the Register original how diversly it is used Recorde Utlagariae mittendo is a writ Iudicial which see in the Register judicial fol. 32. Recovery Recuperatio comes of the French Reconvrer i. Recuperare It signifieth in our common law an obtaining of any thing by Iudgement or tryal of Law as evictio doth among the Civilians But you must understand that there is a true recovery and a figned A true recovery is an actual or real recovery of any thing or the value thereof by Iudgement as if a man sued for any land or other thing moveable or immoveable and have a verdict and Iudgement for him A feigned recovery is as the Civilians call it quaedam fictio juris a certain form or course set down by Law to be observed for the better assuring of Lands or tenements unto us And for the better understanding of this read West parte 2. symbol titulo Recoveries sect pri who saith that the end and effect of a recovery is to discontinue and destroy Estates tayls Remainders and Reversions and to bar the former owners thereof And in this formality there be required three parties viz. the Demandant the Tenent and the Vouchee The Demandant is he that bringeth the Writ of Entry and may be termed the Recoverer The Tenent is he against whom the writ is brought and may be termed the Recoveree The Vouchee is he whom the Tenent voucheth or calleth to warranty for the Land in demand West ubi supra In whom you may read more touching this matter But for example to explain this point a man that is desirous to cut off an Estate tayl in lands or tenements to the end to sell give or bequeath it as himself seeth good useth his friend to bring a writ upon him for this Land He appearing to the writ saith for himself that the Land in question came to him or his ancestors from such a man or his ancestor who in the conveyance thereof bound himself and his heirs to make good the title unto him or them to whom it was conveyed And so hers allowed by the court to call in this third man to say what he can for the justifying of his right to this land before he so conveyed it The third man commeth not whereupon the land is recovered by him that brought the writ and the Tenent of the land is left for his remedy to the third man that was called and came not in to defend the Tenent And by this means the entayl which was made by the Tenent or his Ancestor is cut off by judgement hereupon given for that he is pretended to have no power to entayl that land whereunto be had no just title as now it appeared because it is evicted or recovered from him This kind of recovery is by good opinion but a snare to deceive the people Doctor and Stud. cap. 32. diai pri fol. 56. a. This feigned recovery is also called a common recovery And the reason of that Epitheton is because it is a beaten and common path to that end for which it is ordained viz. to cut off the estates above specified See the new book of Entries verbo Recovery I said before that a true recovery is as well of the value as of the thing for the better understanding whereof know that in value signifies as much as Illud quod interest with the Civilians For example if a man buy land of another with warranty which land a third person afterward by sute of Law recovereth against me I have my remedy against him that sold it me to recover in value that is to recover so much in mony as the land is worth or so much other land by way of exchange Fitzh nat brev fol. 134. K. To recover a warranty Old nat brev fol. 146. is to prove by judgement that a man was his warrant against all men for such a thing Recto is a writ called in English a writ of right which is a writ of so high a nature that whereas other writs in real actions be only to recover the possession of the land or tenements in question which have been lost by our ancestor or our selves this aimeth to recover both the seisin which some of our Ancestors or we had and also the property of the thing whereof our Ancestor died not seised as of fee and whereby are pleaded and tryed both their rights together viz. as well of possession as property In so much as if a man once lose his cause upon this writ either by judgement by assise or battell be is without all remedy and shall be excluded per exceptionem Rei judicatae Bracton lib. 5. tract 1. cap. 1. et seq where you may read your fill of this writ It is divided into two species Rectum patens a writ of right patent and Rectum clausum a writ of right close This the Civilians call Judicium petitorum The writ of right patent is so called because it is sent open and is in nature the highest writ of all other lying alwaies for him that hath fee simple in the lands or tenements sued for and not for any other And when it lyeth for him that challengeth fee simple or in what cases See Fitzh nat br fol. pri C. whom see also fol. 6. of a special writ of right in London otherwis◠called a writ of right according to
upwards to the number of 24. by whose discretion all tryals pass both in civil and criminal causes through all Courts of the common Law in this Realm First for civil causes when proof is made of the matter in question as the parties and their Counsel think good on both sides the point of the fact that they are to give their verdict of is delivered likewise unto them which we call the issue and then are they put in mind of their oath formerly taken to do right between party and party and so sent out of the Court severally by themselves to consider upon the evidence of both sides untill they be agreed which done they return to the Court again and deliver their verdict by the mouth of the foreman And according to the verdict Iudgement afterward passeth either condemnatory for the Plaintiff or absolutory for the Defendant These twelve be called twelve milites Glanvile lib. 2. cap. 14 15. and so be they in Bracton divers times but that word is altered In causes criminal there be two sorts of Enquests one called the grand Enquest and the other the Enquest of life and death The grand Enquest is so called either because it consisteth commonly of a greater number than twelve as of twenty four eighteen or sixteen at the least or else because all causes criminal or penal first passe through them whereas the other Enquest is especially appointed for one or few matters touching life and death committed to their consideration Those of the grand Enquest are also called by Bracton 12 milites lib. 3. tract 2. cap. pri num 2. because they were wont to be Knights as it seemeth and not inferiours except so many Knights could not be found Idem eodem num 1. in fine And their function is to receive all presentments made unto them of any offence and accordingly to give their general opinion of the presentment by writing either these words Billa vera upon the bill of presentment which is an inditement of the party presented or else this word Ignoramus which is an absolving of him Now as criminal causes be of two sorts either capital touching life and member or finable so is there a double course of these Inditements For in causes only finable the party indited must either traverse the Inditement by denying it and so it is referred to a petit Jury whereby he is either convicted or discharged of the crime or else he confessing it the Court setteth his fine upon his head without more work But in matters of life and death the party indited is commanded to hold up his hand and answer guilty or not guilty if guilty he standeth convicted by his own confession if not guilty he is farther referred to the Enquest of life and death which consider upon the proof brought against the Prisoner and accordingly bring in their verdict Guilty or not Guilty so is he judged to dye or delivered by the Court. Of this read more in Inditement Assise Iury. See the statute anno 35 H. 8. cap. 6. 37 ejusdem cap. 22. et anno 2 Ed. 6. cap. 32. et anno 5 Eliz. cap. 25. VA VAcation vacatio hath an especial signification in this Kingdom being used for all that time respectively which passeth between term and term at London And when such times begun and ended in our Ancestors daies see Roger Hovedens annals parte posteriori fol. 343. a. where you shall find that this intermission was called pax Dei et Ecclesiae Vaccarie aliàs vacharie vaccaria aliàs vacheria seemeth to be a house to keep kine in Fleta lib. 2. cap. 41. sect Item inquiratur 12. and Cromptons Jurisd fol. 194. in these words without warrant no subject may have within the Forest a vacary But in the statute anno 37 H. 8. cap. 16. I find vachary to be as it were a special proper name of a certain quantity and compass of ground within the Forest of Ashedown Valew valentia valor The word is in it self plain enough But I cannot omit one place in M. West parte 2. symbol titulo Inditements sect 70. V. W. touching the difference between value and price These be his words And the value of those things in which offences are committed is usually comprised in Inditements which seemeth necessary in theft to make a difference from petit larceny and in trespass to aggravate the fault and increase the fine But no price of things ferae naturae may be expressed as of Deer of Hares c. If they be not in Parks and Warrens which is a Liberty anno 8 Edward 4. fol. 5. nor of Charters of land And where the number of the things taken are to be expressed in the Inditement as of young Doves in a Dove-house young Hawks in a wood there must be said pretii or ad valentiam but of divers dead things ad valentiam and not protii of coyn not current it shall be pretii but of coin current it shall neither be said pretii nor ad valentiam for the price and value thereof is certain But of counterfeit coin shall be said ad valentiam and in counterfeiting of coin shall not be said decem libras in denariis Dominae Reginae nor in pecunia Dominae Reginae but ad instar pecuniae Dominae Reginae Valour of mariage Valore maritagii is a writ that lyeth for the Lord having profered covenable mariage to the Infant without disparidgement against the Infant comming to his years if he refuse to take the Lords offer And it is to recover the value of the mariage Regist orig fol. 164. Old nat br fol. 90. Variarce commeth of the French varier i. alterare it signifieth in the Common law an alteration or change of condition after a thing done For example the Commonalty of a Town make a Composition with an Abbot Afterward this Town by a grant from the King obtaineth Bayliffs This is a variance and in this case if the Abbot commence any sute for breach of the composition he must vary from the words of the Commonalty set down in the Composition and begin against the Bayliffs and the Commonalties Brook tit Variance fol. 292. It is also used for an alteration of something formerly laid in a plee which is easilier known what it is than when it may be used as it appeareth by Brook through the whole title aforesaid See variance in the new book of Entries Vassal vasallus signifieth him that holdeth land in fee of his Lord Hot. verbo Feudal we call him more usually a Tenent in fee whereof some owe fidelity and service and are called vassalli jurati some that owe neither and are called vassalli injurati But of this later sort I think that in England we have not any Of these thus writeth Hotom in his disputations upon the Feuds cap. 3. Propriè is vassa dicitur qui ab Imperatore regale feudum accipit vassallus autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diminutivo nomine qui ab illo