mans dwelling-house wherein some person is or into a Church in the night time to the end to commit some felonie therein as to kill some man or to steal somewhat thence or to do some other felonious act there albeit he execute not the same If the intent or fact of this offendour be to steal this is like robberie if to murther it differeth not much from murther and so of other felonies West parte 2. symbol titulo Indictments Sect. 56. Burglarie in the natural signification of the word is nothing but the robbing of a house but as it is vox artis our Common Lawyers restrain it to robbing a house by night or breaking in with an intent to rob or to do some other felonie The like offence committed by day they call house-robbing by a peculiar name How many wayes burglarie may be committed see Cromptons Justice of Peace fol. 28. b. and fol. 29 30. Butlerage of wines signifieth that imposition of sale wine brought into the land which the Kings Butler by vertue of his office may take of every ship anno 1 H. 8. cap. 5. For the which see more in Botyler C. CA CAblish cablicia among the Writers of the Forest laws signifieth brush wood Manwood parte pag. 84. Cromptons Jurisd fol. 165. Calamus is a cane reed or quill the divers kinds whereof you have set down in Gerards Herbal lib. 1. cap. 24. This is comprized among merchandize and drugs to be garbled in the statute anno 1 Jacobi cap. 19. Calendrin of Worsseds anno 5 H. 8. cap. 4. an 35 ejusdem cap. 5. Cantred is as much in Wales as an Hundred in England For Cantre in the Brittish tongue signifieth centum This word is used anno 28 H. 8. cap. 3. Cape is a writ judicial touching plee of land or tenements so termed as most writs be of that word in it self which carrieth the especiallest intention or end thereof And this writ is divided in Cape magnum cape parvum both which as is before said in Attachment take hold of things immoveable and seem to differ between themselves in these points First because cape magnum or the grand Cape lyeth before appearance and Cape parvum afterward Secondly the Cape magnum summoneth the Tenent to answer to the default and over to the demandant Cape parvum summoneth the Tenent to answer to the default onely and therefore is called Cape parvum or in French English petit Cape Old nat br fol. 161 162. Yet Ingham saith that it is called petit Cape not because it is of smal force but that it consisteth of few words Cape magnum in the old nat br is thus defined This writ is a judicial and lyeth where a man hath brought a Principe quod reddat of a thing that toucheth plee of land and the Tenant make default at the day to him given in the Writ original then this writ shall go for the King to take the land in o the Kings hands and if he come not at the day given him by the grand Cape he hath lost his land c. A President and form of this writ you may see in the Register judicial fol. 1. b. It seemeth after a sort to contain in it the effect missionis in possessionem ex primo secundo decreto among the Civilians For as the first decree seiseth the thing and the second giveth it from him that the second time defaulteth in his appearance so this Cape both seiseth the land and also assigneth to the party a farther day of appearance at which if he come not in the land is forfeited Yet is there difference between these two courses of the Civil and Common law first for that missio in possessionem toucheth both mooveable and immooveable goods whereas the Cape is extended onely to immoveable secondly that the party being satisfied of his demand the remanet is restored to him that defaulted but by the Cape all is seised without restitution thirdly missio in possess is to the use of the party agent the Cape is to the use of the King Of this writ and the explication of the true force and effect thereof read Bracton lib. 5. tract 3. cap. 1. num 4 5 6. See Cape ad valentiam Cape parvum in the Old nat br fol. 162. is thus defined This writ lyeth in case where the Tenant is summoned in plee of land and cometh at the summons and his appearance is of record and after he maketh default at the day that is given to him then shall go this writ for the king c. Of this likewise you have the form in the Register judicial fol. 2. a. Why it is called Cape parvum see in Cape magnum Of both these writs read Fleta lib. 6. cap. 44. § Magnum seq Cape ad valentiam is a species of Cape magnum so called of the end whereunto it tendeth In the Old nat br fol. 161 162. it is thus defined or described This writ lyeth where any impleaded of certain lands and I vouch to warrant another against whom the summons ad warantizandum hath been awarded and the Shyreeve cometh not at the day given then if the Demandant recover against me I shall have this Writ against the vouchee and shal recover so much in value of the land of the vouchee if he have so much and if he have not so much then I shal have executiō of such lands tenements as descend unto him in fee-simple or if he purchase afterward I shal have against him a resummons if he can nothing say I shall recover the value And note ye that this writ lyeth before apparence Thus farre goeth the book Of these and the divers uses of them see the Table of the Register judiciall verbo Cape Capias is a writ of two sorts one before judgment called capias ad respondendum in an action personal if the Shyreeve upon the first writ of distresse return nihil habet in baliva nostra and the other is a writ of execution after judgment being also of divers kinds viz. Capias ad satisfaciendum Capias pro fine Capias utlagatum Capias utlagatum inquiras de lönis catallis Capias ad satisfacieudum is a writ of execution after judgment lying where a man recovereth in an action personal as debt or dammages or detinue in the Kings Court and he against whom the debt is recovered and hath no lands nor tenements nor sufficient goods whereof the debt may be levied For in this case he that recovereth shall have this writ to the Sheriff commanding him that he take the body of him against whom the debt is recovered and he shall be put in prison until satisfaction be made unto him that recovered Capias pro fine is where one being by judgement fined unto the King upon some offence committed against a statute doth not discharge it according to the judgement For by this is his body taken and committed to prison
in every Tun anno 12 Edw. 4. ca. 3. anno 6 H. 8. ca. 14. anno pri Ed. 6. ca. 13. anno pri Jacobi ca. 33. I have heard it also called a duty due to the Mariners for unloading their Ship arrived in any Haven after the rate of every Tun. Torny See Turney Totted anno 42 Edw. 3. cap. 9. anno 1 Ed. 6. cap. 15. is a word used of a debt which the forein Apposer or other Officer in the Exchequer noteth for a good debt to the King by writing this word Tot unto it Tourn See Turn Tout tempa prist uncore est that is to say in English Alway ready and is at this present This is a kind of Plee in way of excuse or defence unto him that is sued for with-holding any debt or duty belonging to the Plaintiff See of this Broke his Abridgement fol. 258. TR Traile baston See Iustices of trial baston Traitor traditor proditor See Treason Transgressione is a writ called commonly a writ or action of Trespass Of this Fitzherbert in his Natura brevium hath two sorts one Vicountiel so called because it is directed to the Sheriff and is not returnable but to be determined in the County The form whereof differeth from the other because it hath not these words Quire vi armis c. and this see in Fitzherberts natura brev fol. 84 G. The other is termed a writ of trespasse upon the case which is to be sued in the Common bank or the Kings Bench in which are alwaies used these words vi et armis c. And of this you have Fitzh nat br f. 92. E. See Trespass See the divers use of this writ in the Register original in the Table Transcript anno 34 35 H. 8. cap. 14. is the copy of any original written again or exemplified Transcripto Recognitionis factae coram Justiciariis itinerantibus c. is a writ for the certifying of a Recognizance taken before Iustices in Eyre into the Chancery Regist orig fol. 152. b. Transcripto pedis finis levati mittendo in Cancellariam is a writ for the certifying of the foot of a fine levyed before Justices in Eyre c. into the Chancery eodem fol. 169. et Register judicial fol. 14. Travers commeth of the French Traverser iâ—transfigere It signifieth in our Common law sometime to deny sometime to overthrow or undo a thing done Touching the former signification take these words in Wests Symbol parte 2. titulo Chancery Sect. 54. An answer saith he speaking of an answer to a bill in Chancery is that which the Defendent pleadeth or saith in Bar to avoid the Plaintiffs bill or action either by confession and avoiding or by denying and traversing the material parts thereof And again Section 55. A replication is the Plaintiffs speech or answer to the Defendants answer which must affirm and pursue his bill and confess and avoid deny or traverse the Defendants answer And the formal words of this traverse are in Lawyers French sans ceo in Latine absque hoc in English without that See Kitchin fol. 227. titulo Affirmative et Negative In the second signification I find it in Stawnfords praerog cap. 20. through the whole Chapter speaking of traversing an Office which is nothing else but to prove that an Inquisition made of goods or lands by the Escheatour is defective and untruly made So traversing of an Inditement is to take issue upon the chief matter thereof which is none other to say than to make contradiction or to deny the point of the Inditement As in presentment against A. for a Highway over-flown with water for default of scowring a ditch which he and they whose estate he hath in certain land there have used to scowr and cleanse A. may traverse either the matter viz. that there is no Highway there or that the ditch is sufficiently scowred or otherwise he may traverse the cause viz. that he hath not the land c. or that he and they whose estate c. have not used to scowr the ditch Lamb. Earenarcha lib. 4. cap. 13. pag. 521 522. Of Traverse see a whole chapter in Kitchin fol. 240. See the new book of Entries verbo Traverse Treason traditio vel proditio commeth of the French trahison i. proditio and signifieth an offence committed against the the amplitude and Majesty of the Common wealth West parte secund symbol titulo Inditement sect 63. by whom it is there divided into High treason which other call altam proditionem and Petit treason High treason he defineth to be an offence done against the security of the Common wealth or of the Kings most excellent Majesty whether it be by imagination word or deed as to compass or imagine treason or the death of the Prince or the Queen his Wife or his Son and Heir apparent or to deflowre the Kings wife or his eldest Daughter unmarried or his eldest sons wife or levy war against the King in his Realm or to adhere to his enemies aiding them or to counterfeit the Kings great Seal privy Seal or mony or wittingly to bring false mony into this Realm counterfeited like unto the mony of England and utter the same or to kill the Kings Chancellor Treasurer Iustice of the one bench or of the other Iustices in Eyr Iustices of Assise Iustices of Oyer and Terminer being in his place and doing of his office anno 25 Ed. prim cap. 2. or forging of the Kings seal Manuel or privy signet privy seal or forein coyn current within the Realm anno 2 Mar. cap. 6. or diminishing or impairing of mony current anno 5 Eliz. cap. 11. et anno 14 El. ca. 3. et 18 Eliz. ca. pri and many other actions which you may read there and in other places particularly expressed And in case of this treason a man forfeiteth his lands and goods to the King only And it is also called treason Paramount anno 25 Ed. 3. ca. 2. The form of Iudgement given upon a man convicted of high treason is this The Kings Serjeant after the verdict delivered craveth Iudgement against the Prisoner in behalf of the King Then the Lord Steward if the traitor have been noble or other Iudge if he be under a Peer saith thus N. Earl of P. For so much as thou before this time hast been of these treasons indited and this day arraigned for the same and put thy self upon God and thy Peers and the Lords thy Peers have found thee guilty my Iudgement is that thou shalt be conveyed unto the Tower of London whence thou camest and from thence drawn through the midst of London to Tiburn and there hanged and living thou shalt be cut down thy bowels to be cut out and burnt before thy face thy head cut off and thy body to be divided into four quarters and disposed at the Kings Majesties pleasure and God have mercy upon thee Petit treason is rather described by examples than any where logically
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
are called Ancient Demain and all others be called Frank-fee Kitchin fol. 98. And the Tenents which hold any of those Lands be called Tenents in Ancient Demain the others Tenents in Frank-fee Kitchin ubi supra And also Tenents of the Common law West parte 2. Symbol titulo Fines Sect. 25. The reason is because Tenents in ancient Demain cannot be sued out of the Lords Court Terms of the Law Verbo ancient Demain And the Tenents in Ancient Demain though they hold all by the verge and have none other evidence but copy of Court rol yet they are said to have Free-hold Kitchin fol. 81. See Ancient Demain Demain cart of an Abbot seemeth to be that Cart which the Abbot useth upon his own Demain Anno 6 H. 3. cap. 21. Demurrer demorare cometh of the French demeurer i. manere in aliquo loco vel morari It signifieth in our Common law a kind of pawse upon a point of difficulty in any action and is used substantively For in every action the controversie consisteth either in the fact or in the law If in the fact that is tried by the Jury if in law then is the case plain to the Judge or so hard and rare as it breedeth just doubt I call that plain to the Judge wherein he is assured of the law though perhaps the party and his councel yeeld not unto it And in such the Judge with his Associats proceedeth to Judgement without farther work but when it is doubtful to him and his Associates then is there stay made and a time taken either for the Court to think farther upon it and to agree if they can or else for all the Justices to meet together in the Chequer chamber and upon hearing of that which the Sergeants shall say of both parts to advise and set down what is law And whatsoever they conclude standeth firm without farther remedie Smith de Repub. Anglo lib. 2. cap. 13. West calleth it a Demurrer in Chancery likewise when there is question made whether a parties answer to a Bill of Complaint c. be defective or not and thereof reference made to any of the Bench for the examination thereof and report to be made to the Court parte 2. symb tit Chancery Sect. 29. Denariataterrae See Farding-deal of land Denizen cometh of the French donaison i. donatio And signifieth in our Common law an Alien that is infranchised here in England by the Princes Charter and inabled almost in all respects to do as the Kings native subjects do namely to purchase and to possesse lands to be capable of any office or dignity Yet it is said to be short of naturalization because a stranger naturalized may inherit lands by descent which a man made onely a Denizen cannot And again in the Charter whereby a man is made Denizen there is commonly conteined some one clause or other that abridgeth him of all that full benefit which natural subjects do enjoy And when a man is thus infranchised he is said to be under the Kings protection or Esse ad fidem Regis Angliae before which time he can injoy nothing in Englād Bracton l. 5. tract 5. c. 25. nu 3. Nay he his goods might be seised to the Kings use Horn in his mirrour of Justices lib. 1. c. de la Venue de frane plege Deodand deodandum is a thing given or forfeited as it were to God for the pacification of his wrath in a case of misadventure whereby any Christian soul cometh to a violent end without the fault of any reasonable Creature For example if a Horse should strike his Keeper and so kill him If a man in driving a Cart and seeking to redresse any thing about it should so fall as the Cart wheel runing over him should presse him to death If one should be felling of a Tree and giving warning to company by when the Tree were neer falling to look to themselves and any of them should be slain neverthelesse by the fall of the Tree In the first of these cases the Horse in the second the Cart-wheel Cart and Horses and in the third the Tree is to be given to God that is to be sold distributed to the poor for an expiation of this dreadful event though effected by unreasonable yea senlesse and dead creatures Stawnf pl. cor lib. 1. cap. 2. whereof also read Bracton lib. 3. tract 2. cap. 5. and Britton cap. 7. and West parte 2. symbolaeog titulo Indictments Sect. 49. And though this be given to God yet is it forfeited to the King by law as sustaining Gods person and an executioner in this case to see the price of these distributed to the Poor for the appeasing of God stirred up even against the earth and place by the shedding of innocent blood thereupon Fleta saith that this is sold and the price distributed to the Poor for the soul of the King his Ancestors and all faithful people departed this life l. 1. c. 25. verbo De submersis And it seemeth that this Law hath an imitation of that in Exo dus cap. 21. Si cornu petierit bos virum vel mulierem ita ut moriatur lapidabitur bos neque comedetur caro ejus ac dominus ejus erit innocens De Deoner anda pro rata portionis is a Writ that lieth where one is distrained for a rent that ought to be paid by others proportionally with him For example a man holdeth ten Oxegangs of land by fealty and ten shillings rent of the King and alienateth one Oxegang thereof to one another to another in fee. Afterward the Sheriff or other officer cometh and distraineth onely one of them for the rent he that is distrained may have this writ for his help Fitzh nat br fol. 234. Departer is a word properly used of him that first pleading one thing in barre of an action and being replyed thereunto doth in his rejoynder shew another matter contrary to his first Plea Plowden in Reniger and Fogassa fol. 7. 8. And of this see divers examples in Broke titulo Departer de son plee c. Departers of Gold and Silver See Finours De quibus sur disseisin is a Writ of entry See Fitzh nat br fol. 191. C. Dereyn disrationare vel dirationare may seem to come of the French disarroyer i. confundere turbare to confound or turn out of order or desranger i. to set out of order of lastly of the Norman word desrene for with the Normans desrene is nothing else but a proof of the denial of mans own fact For Rubigineus in his grand custumarie cap. 122 123. maketh mention of lex probabilis and lex deraisnia legem probabilem or probationem he defineth to be a proof of a mans own fact which he saith he hath done and his adversary denieth His example in this A. sueth R. for a Hog saying thou shouldest deliver me a Hog for two shillings six pence which money F. paid thee wherefore I demand my
Chief Justice of England with three or four Justices assistants four or five as Fortescue saith cap. 51. and Officers thereunto belonging the Clerk of the crown a Praenatory or Protonotary and other six inferior Ministers or Atturneys Camb. Britan. pag. 112. See Latitat How long this Court was moveable I find not in any Writer But in Brittons time who wrot in K. Ed. the 1. his dayes it appeareth it followed the Court as M. Gwin in his said preface well observeth out of him See Justice of the Kings Bench. Kings silver is properly that money which is due to the King in the court of Common Plees in respect of a licence there granted to any man for passing a fine Coke vol. 6. fol. 39. a. 43. b. Kintall of woad iron c. is a certain waight of Merchandize to the value of an hundred or somthing under or over acording to the divers uses of sundry nations This word is mentioned by Plowden in the case of Reniger Fogassa KN Knave is used for a man-servant anno 14 Edward 3. stat 1. ca. 3. and by M. Verstigans judgement in his restitution of decayed intelligence ca. 10. is borrowed of the Dutch enapa cnave or knave which signifie all one thing And that is some kind of officer or servant as scild-knapa was he that bore the weaon or shield of his superiour whom the Latins call Armigerum and the Frenchmen Escuyer Knight miles is almost one with the Saxon Cnight i. administer and by M. Camdens judgement pag. 110. derived from the same With us it signifieth a Gentleman or one that beareth arms that for his vertue and especially martiall prowesse is by the King or one having the Kings authority singled as it were from the ordinary sort of Gentlemen and raised to a higher account or step of dignity This among all other Nations hath his name from the horse because they were wont in antient time to serve in warres on horseback The Romans called them Equites The Italians at these dayes term them Cavallieri The Frenchmen Chevalliers The German Reiters The Spaniard Gavellaros or Varones à Cavallo It appeareth by the Statute anno 1 Ed. 2. cap. 1. that in antient times Gentlemen having a full Knights fee and holding their land by Knights service of the King or other great person might be urged by distress to procure himself to be made knight when he came to mans estate for the answerable service of his Lord in the kings wars To which point you may also read M. Camden in his Britann pag. 111. But these customs be not now much urged this dignity in these dayes being rather of favour bestowed by the Prince upon the worthier sort of Gentlemen than urged by constraint The manner of making knights for the dignitie is not hereditarie M. Camden in his Britan. pag. 111. shortly expresseth in these words Nostris verò temporibus qui Equestrem dignitatem suscipit flexis genibus educto g'adio leviter in humero percutitur Princeps his verbis Gallicè affatur Sus vel sois Chevalier au nom de Dieu id est Surge aut Sis eques in nomine Dei The Solemnity of making knights among the Saxons M. Stow mentioneth in his Annals pag. 159. See the privileges belonging to a Rnight in Ferns Glorie of Generosity pag. 116. Of these Knights there be two sorts one Spiritual another Temporal Cassanaus in gloria mundi parte 9. Considerat 2. of both these sorts and of many subdivisions read him in that whole part The Temporal or second sort of Knights M. Fern in his Glory of generosity pag. 103. maketh threefold here with us Knights of the Sword Knights of the Bath and Knights of the Soverain Order that is of the Garter of all which you may read what he saith I must remember that mine intent is but to explain the terms especially of our common Law Wherefore such as I find mentioned in Statutes I will define as I can M. Skene de verbor significat verbo Milites saith that in the antient Laws of Scotland Freeholders were called Milities which may seem to have been a custom with us also by divers places in Bracton who saith that Knights must be in Juries which turn Freeholders do serve Knights of the Garter Equites Garterii are an Order of Knights created by Edward the third after hee had obtained many notable victories King John of France and King James of Scotland being both his prisoners together and Henry of Castile the Bastard expulsed out of his Realm and Don pedro being restored unto it by the Prince of Wales and Duke of Aquitane called the Black Prince who for furnishing of this Honourable Order made a choice out of his own Realm and all Christendome of the best and most excellent renowned Knights in Vertues and Honour bestowing this dignity upon them and giving them a Blew Garter decked with Gold Pearl and precious Stones and a Buckle of Gold to wear daily on the left legge only a Kirtle Crown Cloak Chaperon a Coller and other stately and magnifical apparel both of stuff and fashion exquisite and heroical to wear at high Feasts as to so high and Princely an Order was meer Of which order he and his successours Kings of England were ordained to be the Soveraigns and the rest fellows and brethren to the number of twentie six Smith de Repub. Anglo lib. prim cap. 20. I have seen an antient monument whereby I am taught that this Honorable Company is a College or a Corporation having a Common Seal belonging unto it and consisting of a Soveraign Gardian which is the King of England that alwayes governs this order by himself or his Deputy of twenty five Companions called Knights of the Garter of fourteen secular Chanons that be Priests or must be within one year after their admission 13. Vicars also Priests and 26. poor Knights that have no other sustenance or means of living but the allowance of this house which is given them in respect of their daily Prayer to the Honour of God and according to the course of those times of Saint George There be also certain officers belonging to this order as namely the Prelate of the Garter which office is inherent to the Bishop of Winchester for the time being the Chancellor of the Garter the Register who is alwaies Dean of Windsor The principal King at Armes called Garter whose chief function is to mannage and marshal their Solemnities at their yearly Feasts and installations Lastly the Usher of the Garter which as I have heard belongeth to an Usher of the Princes Chamber called Blacke rod. There are also certain ordinances or Constitutions belonging unto this Society with certain forfeitures and sometime penances for the breakers of them which constitutions concern either the Solemnities of making these Knights or their duties after their creation or the Privileges belonging to so high an order but are too large for the nature of this poor Vocabularie
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
and the Statute 31 Elizabeth cap. 5. saith by way of correcting the two former Statutes that all actions c. brought upon any Statute the penalty whereof belongeth to the King shall be brought within two years after the offence committed or else be void And the statute anno 39 Eliz. cap. prim secund saith that actions brought after two years by any common person or after three years by the King alone for decay of husbandry or tillage shall be of no force Whosoever offendeth against any such statute and doth escape uncalled for two years or three years in one case of the two later of these three statutes may justly be said to have prescribed an immunity against that action The like may be said of the statute made anno 23 Elizabeth cap. primo which saith that all offences comprised in that statute made in the 13 year of Elizab. cap. 2. are inquirable before both Justices of peace and of Assise within one year and a day after the offence committed Also the title that a man obtaineth by the passing of five years after a fine acknowledged of any land or tenements may justly be said to be obtained by prescription And whereas the Statute anno 8 R. 2. ca. 4. saith that a Iudge or Clerk convicted for false entring of plees c. may be fined within two years the two years being ended he prescribeth against the punishment of the said Statute and whereas the Statute anno 11 H. 7. saith that he which will complain of maintenance or embracery whereby perjury is committed by a lury must do it within six daies those six daies ended the parties prescribe and whereas the Statute anno 5 Ed. 6. saith that a man being not indicted within 3 months of any offences there mentioned touching Service and Sacraments he shall be clear from thence forward the three months 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 three years And whereas it is ordained by the statute anno 8 H. 6. cap. 9. that those which keep possession of lands by force after 3 years possession held by themselves and their ancestors shall not be subject to the arbitrament of Disseisours there set down I hold this a prescription likewise against those censures v. anno 23 H. 6. cap. 15. Lastly a servant prescribeth liberty after a year Bracton li. 1. ca. 10. nu 3. and the right that is gotten in any Stray to a Lord of a manor no man claiming it within the year and day after proclamation made is an usucapion or prescription See Action perpetual and temporal And see Cromptons Justice of peace fol. 173. b. ubi habebis festum But see one rule for all in Lam. Eirenarch lib. 4. cap. 5. pag. 469. Of this prescription and the learning touching the same you may read a solemn report in S. Edwards Cooks Luttrels case vol. 4. f. 84. b. seq Presentation Praesentatio is used properly for the act of a patron offering his Clerk to the Bishop to be instituted in a benefice of his gift the form whereof see in the Register original fol. 322. a. Presentment is a meer denunciation of the Iurors themselves or some other Officer as Iustice Constable Searcher Surveyours c. without any information of an offence inquirable in the Court whereunto it is presented See Lamberd Eirenarcha lib. 4. cap. 5. pag. 467. President praeses is used in the Common law for the Kings Lieutenant in any Province or Function as President of Wales of York Barwick Presient of the Kings Councel Anno 22 Hen. 8. cap. 8. anno 24 Hen. 8. cap. 3 14. Preignotary Protonotarius is a word that seemeth to be made either of two French words prime or primâ—er i. primus and Notaire i. Notarius tabellio Or of two Latine words prae notarius quasi primus aut principalis notarius The office is likewise borrowed from the later Romans who made his name of half Greek and half Latine viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. primus principalis and Notarius It is used in our Common law for the chief Clerks of the Kings Courts whereof three be of the Common plees and one of the Kings Bench. For the Pregnotary of the Common plees anno 5 H. 4. cap. 14. is tearmed the chief Clerk of that Court He of the Kings Bench recordeth all actions civil sued in that Court as the Clerk of the Crown-office doth all criminal causes Those of the Common plees do enter and inroll all manner of Declarations pleadings assises and judgements and all actions the same term that the apparence is made Also they make out all judicial writs as the Venire facias after issues joyned and Habeas corpus for the bringing in of the Jury after it is returned upon the Venire facias They also make forth writs of executions and of seisin writs of Supersedeas for appearance to Exigents as well as the Exigents and writs of privileges for removing of causes from other inferiour Courts of Record in case where the party hath cause of privilege Also writs of Procedendo of Scire facias in all cases and writs to enquire of dammages and all process upon prohibitions and upon writs of Audita quaerela and false judgement Finally they inroll all Recognisances acknowledged in that Court and all common Recoveries and may make exemplifications of any record the same term before the roles be delivered from them Prender commeth of the French trendere i. accipere acceptare capere prehendere It signifieth in our Common law sometime a power or right to take a thing before it be offered as such things as lye in Prender or such as lye in render West parte 2. titule Fines Sect. 126. where you have these words If the Lord grant the services of his Tenent by fine or otherwise the Lord before atturnment shall have such things as lye in Prender as the ward of the body of the heir and of the Land escheats c. but not such things as lye in render as rents and reliefs heriots and other services For he cannot avow for them before the attournment Prender de Baron signifieth literally in barbarous French to take a Husband But it is used in our Common law as an exception to disable a woman from pursuing an Appeal of murder against the Killer of her former Husband Stawnf pl. cor lib. 3. cap. 59. The reason whereof whether it be because by her second mariage she may justly be thought to have given up the interest she had in her former husband or for that she is now covert again or for both I leave to consideration Prender del profits signifieth verbatim to take the profits It signifieth substantively the taking of the profits See Cromptons jurisdict folio 185. See Pernour of profits Prest is used for some
peace may a Iustice of peace command either as a Minister when he is willed so to do by a higher authority or as aludge when he doth it of this own power derived from his Commission Of both these see Lamberds Eirenarcha lib. 2. cap. 2. pa. 77. See Peace See Supplicavit Suffragan Suffraganeus is a titular Bishop ordained and assisted to aid the Bishop of the Diocesse in his spiritual function c. Suffraganeus Extra de electione For the Etymologie Suffraganei dicuntur quia eorum suffragiis causae Ecclesiasticae judicantur Joach Stephanus de jurisdict lib. 4. cap. 16. num 14. It was enacted anno 26 H. 8. cap. 14. that it should be lawfull to every Diocesan at his pleasure to elect two sufficient men within his Diocesse and to present them to the King that he might give the one of them such Title Stile Name and Dignity of sease in the said Statute specified as he should think convenient Suyte Secta commeth of the French Suite i. affectatio consecutio sequela comitatus It signifieth in our Common law a following of another but in divers senses the first is a sute in Law and is divided into sute real and personal Kitchin fol. 74. which is all one with action real and personal Then is there sute of Court or sute service that is an attendance which a Tenent oweth at the Court of his Lord. Fitz. nat brev in Indice verbo Suite suyte service and suyte real anno 7. H. 7. cap. 2. The new Expositour of Law terms maketh mention of four sorts of sutes in this signification Sute covenant sute custome sute real and sute service Sute covenant he defineth to be when your Ancestor hath covenant with mine Ancestor to sue to the Court of mine Ancestors Sute custome when I and my Ancestors have been seised of your own and your Ancestors sute time out of mind c. Sutereal when men come to the Sheriff Turn or Leet to which Court all men are compelled to come to know the Laws so that they may not be ignorant of things declared there how they ought to be governed And it is called real because of their allegiance And this appeareth by common experience when one is sworn his oath is that he shall be a loyal and faithfull man to the King And this sute is not for the Land that he holdeth within the County but by reason of his person and his abode there and ought to be done twice a year for default whereof he shall be amerced and not distrained I think this should be called ratherregal or royal because it is performed to the King for royal The French word in the usual pronuntiation commeth near to real the letter o being almost suppressed See Leet Suyte service is to sue to the Sheriff Turn or Leet or to the Lords Court from three weeks to three weeks by the whole year And for default thereof a man shall be distrained and not amerced And this sute service is by reason of the tenure of a mans Land Then doth sute signifie the following of one in chase as fresh sute West 1. cap. 46. a. 3 Edw. 1. Lastly it signifieth a Petition made to the Prince or great personage Suyte of the Kings peace secta pacis Regis anno 6 R. 2. stat 2. cap. pri anno 21 ejnsdem cap. 15. anno 5 Hen. 4. ca. 15. is the persuing of a man for breach of the Kings peace by treasons insurrections rebellions or trespasses Summoneas is a Writ Judicial of great diversity according to the divers cases wherein it is used which see in the Table of the Register Judicial Summoner summonitor signifieth one used to call or cite a man to any Court. These by the Common law ought to be boni that is by Fleta his Iudgement liberi homines ideo boni quia terras tenentes qued sint coram talibus Justiciarits ad certos diem â—locum secundum mandatum Justiciariorum Vicecomiti directum parati inde facere recognitionem lib. 4. cap. 5. § Et cum Summons summonitio see Summons Common Summons Marlb cap. 18. anno 52 Hen. 3. it l. Summons in terra petita Kitch fol. 286. is that Summons which is made upon the Land which the party at whose sute the summons is sent forth seeketh to have Summons ad warrantizandum Dyer fol. 69. nu 3â— Sumage Sumagium seemeth to be toll for carriage on horse-back Crompton Jurisd fol. 191. For where the Charter of the Forest cap. 14. hath these words for a horse that beareth loads every half year a half penny the Book called Pupilla oculi useth these words pro uno equo portante summagium per dimidium annum obolum It is otherwise called a Seam And a Seam in the Western parts is a Horse-load Superoneratione pasturae is a writ Iudicial that lyeth against him who is impleaded in the County for the over-burthening of a Common with his cattell in case where he is formerly impleaded for it in the County and the cause is removed into the Kings Court at Westm Supersedeas is a writ which lyeth in divers and sundry cases as appeareth by the Table of the Register original and the Iudicial also and by Fitzh nat bre fol. 226. and many other places noted in the Index of his Book verbo Snpersedeas But it signifieth in them all a command or request to stay or forbear the doing of that which in apparence of Law were to be done were it not for the cause whereupon the Writ is granted For example a man regularly is to have surety of peace against him of whom he will sweat that he is asraid and the Iustice required hereunto cannot deny him Yet if the party be formerly bound to the peace either in Chancery or elsewhere this writ lyeth to stay the lustice from doing that which otherwise he might not deny Super statutum Edward 3. vers servants and labourers is a writ that lyeth against him who keepeth my servants departed out of my service against Law Fitz. nat fol. 167. Super statuto de York quo nul sera viteller c. is a writ lying against him that occupyeth vittelling either in grosse or by retail in a City or Borough Town during the time he is Major c. Fitz. nat brev fol. 172. Super statuto anno pri Ed. 3. cap. 12 13. is a writ that lyeth against the Kings Tenent holding in chief which alienateth the Kings Land without the Kings license Fitzh nat brev fol. 175. Super statuto facto pour Seneshall Marshall de Roy c. is a writ lying against the Steward or Marshall for holding plee in his Court of Freehold or for trespasse contracts not made within the Kings houshold Fitzherbert nat brev fol. 241. Super statuto de Articulis Cleri cap. 6. is a writ against the Sheriff or other Officer that distraineth in the Kings high-way or in the glebe Land antiently given to Rectories Fitz. nat brev
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
affirmed by divers places of our Common law Writers as in the Old nat br fol. 8. You have these words Know ye that a woman shall be in dowed with a villein in grosse c. and again fol. 39. If a man do menace or threaten any villeins which are regardant to a manor c. Bracton hath another division of villeins which is all one with the Civilians For in his first book cap. 6. num 4. he saith thus Scrvi autem nascuntur aut fiunt and then thus goeth forward nascuntur ex nativo et nativa alicujus copulatis vel solutis sive sub potestate Domini constituti sint sive extra potestatem Item nascitur servus qui ex nativa soluta generatur quamvis ex prate libero quia sequitur conditionem matris quasi vulgo conceptus c. And after divers things delivered of this sort he saith again thus Fiunt etiam servi liberi homines captivitate de jure Gentium c. Fit etiam servus liber homo per confessionem in Curia Regis factam ut cum liber homo sit in Curia Regis et se cognoscat ad villanum Item liber homo fit servus si cum semel manumissus fuerit ob ingratitudinem in â—ervitutem revocetur Item fit liber homo servus cum ab initio clericus vel monachus factus fuerit postea ad secularem vitam redierit Quia talis restituti debet Domino suo v. Tiraquellum de Nobilitate cap. 2. pag. 14. num 54. In very many Provinces of France there be certain men called homines manus mortuae qui tanta juris similitudine adscriptitiis colonis conjuncti prope iidem videntur Non autem servi sunt omnino sed in territorio domini sunt tanquam alligati non habentes demigrandi potestatem Itaque servi corporis prosecuti nis vulgò dicuntur quod si fugerint votest eos prosequi dominus capere Tributum autem isti nonnullas commoditates dâ—mino praestant in quibus haec maxima quod ipsie vita functis sine sobole succedit dominus vel ex toto vel ex parts Connanus lib. 2. cap. 10. num 3. whose words I thought not unfit for this place because they express the nature of our villanage something aptly Villein fleeces anno 31 Ed. 3. cap. 8. are fleeces of Wooli that are shorn from scabbed Sheep Vidimus anno 15 H. 6. ca. 3. Villenage Villenagium commeth of villein and signifieth a servile kind of tenure belonging to lands or tenements that is a tenure of lands or tenements by such a service as villeins are fitted to perform For every one that holdeth in villenage is not a villein or a bond man Villenagium vel servitium nihil detrahit libertatis habita tamen distinctione utrum â—ales sint villans tenuerint in villano soccagiâ— de dominico Domini Regis Bracton lib. prim cap. 6. num prim Briton in his 66 chapter speaketh to this effect Villenage is a tenure of the demesns of a Lord delivered to a Tenent at the Lords will by villenous services to improve it to the Lords use and delivered by the Rod and not by any Title of Writing or succession of Inheritance c. And a little after he hath words to this effect In the Manors of our Antient Demesns there be pure villeins both by blood and tenure the which may be cast out of their tenement and deprived of their chatels at the pleasure of the Lord. By which two places I gather though villein tennre do not alway make the Tenent a villein yet that there is a two fold tenure called villenage one wherein both the person and the tenure is bound and in all respects at the disposicion of the Lord and another which in respect of the tenure is after a sort servile though the person be not bond This is well proved by Bracton lib. 2. cap. 8. num 3. in these words Item tenementum non mutaâ— statum liberi non magis quam servi poterit enim liber homo tenere purum villenagium faciendo quicquid ad villanum percinebit nihilo-minus liber erit cum hoc faciat ratione villenagii et non personae suae et ideo poterit quande voluerit villenagium deserere et liber discedere nisi illaqueatus sit per uxorem nativam ad hoc faciendum ad quam ingressus fuit in villenagium et quae praestare poterit impedimentum c. So that a man may hold in pure villenage and yet be a free man in respect of his person But what is pure villenage Bracton answereth in the words there next following Purum villenagium est à quo praestatur servitium incertum et indeterminatum ubi sciri non poterit vespere quale servitium fieri debet mane viz. ubi quis facere tenetur quicquid ei praeceptum fueâ—it The other sort of villenage which is not pure is there called of Bracton villanum soccagium which differeth from the other in this because it is only tyed to the performance of certain services agreed upon between the Lord and the Tenent Whereof see Bracton also in the same place by whom you may perceive that a man may hold per villanum soccagium and yet have liberum tenementum if he have it to himself and his heirs This villanous soccage is to carry the Lords dung into his Fields to plow his Ground at certain dayes sow and reap his Corn plash his Hedges c. See Soccage Villanous judgement Villanum judicium is that which casteth the reproach of villeny shame upon him against whom it is given as a Conspirator c. Stawnf pl. cor l. 3. c. 12. f. 175. This M. Lamb. in his Eirenarchà li. 1. ca. 13. pag. 63. calleth villenous punishment and saith that it may be well called infamous because the judgement in such a case shall be like the antient judgement in Attaint as it is said anno 4 H. 5. Fitzh Judgement 220. and is in 27. lib. Assis pl. 59 set down to be that their Oaths shall not be of any credit afterward nor lawfull for them in person to approach the Kings Courts and that their lands and goods be seised into the Kings hands their trees rooted up and their bodies imprisoned c. And at this day the punishment appointed for perjury having somewhat more in it than corporal or pecuniary pain stretching to the discrediting of the testimony of the Offender from ever after may be partaker of this name Thus far M. Lamberd Virgata terrae Reg. orig fol. 167. a. See Yard land Viridario eligendo is a writ that lyeth for the choise of a Verdour in the Forest Regist origin fol. 177. Visitation of maners Visitatio morum was wont to be the name of the Regarders Office in antient time Manwood parte pri of his Forest laws pag. 195. See Regarder Visne Vicinetum signifieth a neighbour place or a place neer at hand an
until he content the King for his fine Coke lib. 3. fol. 12. a. Capias utlagatum is a word of execution or after judgement which lyeth against him that is outlawed upon any sure by the which the Sheriff upon the receipt thereof apprehendeth the party outlawed for not appearing upon the exigend and keepeth him in safe custodie until the day of return assigned in the writ and then presenteth him unto the Court there farther to be ordered for his contempt Capias utlagatum inquir as de bonis catallis is a writ all one with the former but that it it giveth a farther power to the Shyreeve over and beside the apprehension of the body to inquire of his goods and cattels The form of all these writs see in the Old nat br fol. 154. and see the Terms of law verbo Proces Lastly you may find great variety of this kind in the table of the Register judiciall verbo Capias Capias in Wiâ—hernamium de averiis is a Writ lying for Cattel in Withernam Register orig f. 82. 83. see Withernam Capias in Withernamium de bemine is a writ that lieth for a servant in Withernam Register onig f. 79. 80. see Withernam Capias conductos ad proficiscendum is a writ that lieth for the taking up of such as having received prest money to serve the King slink away and come not in at their time assigned Register orig fo 191. Captain aliâs capitayne capitaneus commeth of the French capitaine and signifieth with us him that leadeth or hath charge of a company of Souldiers and is either generall as he that hath the governance of the whole host or speciall as he that leadeth one only band The word capitanei in other nations signifieth more generally those that are in Latine called principes or proceres because as Hotteman saith in verbis feudalibus tanquam caput reliquo corpori sic hii reliquis civibus praesunt He divideth them into two sorts and to use his words alii sunt capitanei regni quo verbo Duces Comites Marchiones intelliguntur l. 1. feud tit 1. § 1. ti 7. Alii impropriè qui urbium praefecti sunt quibus plebs ab liquo superiorum gubernanda committitur qui vallasoâ—es rigit majores appellantur l. feud tit 1. § 1. tit 7. et tit 17. So we have captaines of Castles here in England and other places as of the Isles of Gersay and Gernsey of the Isle of Wight c. Capite is a tenute which holdeth imâ— ediately of the King as of his crown be it by Knights service or socage Broke tet tenures 46. 94. Dyer fo 123. nu 38. et fo 363. nu 18. and not as of any Honour Castle or Mannor therefore it is otherwise called a tenure that holdeth meerely of the King because as the crown is a corporation and seigneurie in grosse as the Common lawyers term it so the King that possesseth the crown is in account of law perpetually King and never in his minority nor never dieth no more than populus doth whose authoritie he beareth See Fitzh nat br f. 5. F. Note by the way that a man may hold of the King and not in Capite that is not immediately of the crown in grosse but by means of some Honour Castle or Mannor belonging to the Crown whereof I hold my land Wherof Kitchin saith wel that a man may hold of the King by Knights service and yet not in capite because he holdeth happily of some honour by Knights service which is in the Kings hands as by descent from his ancestors not immediatly of the King as of his crown f. 129. with whom agreeth Fitzh nat or f. 5. K. whose words are to this effect So that it plainly appeareth that lands which be held of the King as of an Honour Castle or Mannor are not held in capite of the King because that a writ of right in that case shall be directed to the Bailiff of the Honour Castle or manor c. but when the lands be held of the King as of his Crown then they be not held of Honour Castle or Mannor but meerly of the King as King and of the Kings Crown as of a seigneury of it self in gross the chief above all other seigneuries c. And this tenure in capite is otherwise called tenure holding of the person of the King Dyer fo 44. nu 37. Author of the new Terms ver Tenure in capite Broke titulo Tenures nu 65. 99. And yet M. Kitchin fo 208. saith that a man may hold of the person of the King and not in capite His example is this If the King purchase a mannor that I. S. holdeth the Tenent shall hold as he held before and shall not render livery or primeiâ— seisin nor hold in capite And if the King grant that mannor to W. N. in fee excepting the services of I. S. then I. S. holdeth of the King as of the person of the King and yet holdeth not in capite but as he held before So that by this Book tenure holding of the person of the King and tenure in capite are two divers tenures To take away this difficulty I think M. Kitchin is in that place to be taken as if he said not in capite by Knights service but by socage following 〈◊〉 usuall speech because most commonly where wee talk of tenure in capite wee mean tenure by knights service Carno Cromptons jurisd fol. 191. is an immunitie Carke seemeth to be a quantity of Wool whereof thirty make a Sarpler anno 27 H. 6. ca. 2. See Sarpler Carrack alià s Carrick seemeth to be a ship of burthen so called of this Italian carrico or carco a burthen or charge or the Spanish cargo you have this word anno 2 R. 2. ca. 4. anno 1 Ja. ca. 33. Carroway seeds alià s Carruway seeds semen cari vel carei is a Seed springing of the herb so called of whose operation you may read in Gerards Herball li. 2. cap. 396. It is reckoned among the Merchandise that ought to be garbled anno 1 Jaco ca. 19. Carue of land carrucata terrae commeth of the French charue i. aratrum and with us is a certain quantity of land by the which the Subjects have sometime been taxed whereupon the tribute so levied is called Caruago Caruagium Bracton li. 2. cap. 16. nu 8. It is all one with that which the same Author lib. 2. cap. 17. calleth carucatam terrae For Littleton ca. Teuure in socage saith that haec soca socae idem est quod caruca sc one soke or one plow land Yet one place I find in Stowes annals that maketh me doubt pag. 271. where he hath these words The same time King Henry took caruage that is to say two marks of silver of every Knights fee toward the marriage of his sister Izabell to the Emperour where caruage cannot be taken for a Plow land