called bannimertum which was aunelently tearmed depertatlo if it were perpetual or religatio in insulam if for a time Vincentius de Franchis Petrus de Bellug a in suo speculo fol. 125. num 4. Barbaries Oxycantha is a thornie shrub known to most men to bear a berry or frâ—â—t of a sharp taste These berries as also the leaves of the said tree be medicinable as Goard in his Herbal sheweth lib. 3. cap. 21. You find them mentioned among Drugges to be garbled Anno 1 Jacob. cap. 9. Bargain and sale as it seemeth by Westpart 1. symb lib. 2. sect 436 is properly acontract made of mannors lands renements hereditaments other things transferring the property thereof from the bargainer to the bargainee But the Author of the new terms of Law addeth that it ought to be for money saying farther that this is a good contract for Land c. and that Fee-simple passeth thereby though it be not said in the deed To have and to hold the land to him and to his heire and though there be no liverie and selfin made by the seller so it be by deed intended sealed and enrolled either in the County where the land lyeth or within one of the Kings Courts of Records at Westminster within six moneths after the date of the Deed intended an 27 H. 8. cap. 16. Barkarie Barkaria is a heath house New book of Entries titulo Assise corp poliâ— 2. Some call it a Tan-house Baron Barao is a French word and hath divers fignifications here in England First it is taken for a degree of Nobility next unto a Vicount Bracton lib. 1. cap. 8. num 4. where he saith they be called Barones quasi robur belli And in this fignification it is borrowed from other Nations with whom Baroniae be as much as Provinciae Petrus Belluga in speculo princip fol. 119. So Barones be such as have the government of Provinces as their Fee holden of the King fome having greater some lesser authority within their territories as appeareth by Vincentius de Franobis in divers of his disceisions and others Yet it may probably be thought that of old times here in England all they were called Barons that had such Seigniories as we now call Court-barons as they be at this day called Seigneurs in France that have any such Mannor or Lordship Yea I have heard by men very learned in our Antiquities that neer after the Conquest all such came to the Parliament and sate as Nobles in the upper-house But when by experience it appeared that the Parliament was too much pestered with such multitudes it grew to a custome that none should come but such as the King for their extraordinary wisedome or quality thought good to call by Writ which Writ ran hac vice tantùm After that again men feeing this estate of Nobility to be but casual and to depend meerely upon the Prineâ—s pleasure they sought a more certain hold and obtained of the King letters patents of this dignity to them and their heires male And these were called Barons by letters patents or by creation whose postority be now by inhefitance and true delcent of Nobility those Barons that be called Lords of the Barliament of which kind the King may create more at his pleasure It is thought neverthelesse that there are yet Barons by writ as well as Barons by letters patents and that they may be discerned by their titles because the Barons by writare those that to the title of Lord have their own surnames annexed as Crompton North Norice c. whereas the Barons by letters patents are named by their Barronies These Barons which were first by writ may now justly also be called Barons by prescription for that they have continued Barons in themselves and their auncestors came beyond the memory of man The original of Barons by writ Master Camden in his Britaunia Pag. 109. in meo referreth to Henry the third Barons by letters patents or creation as I have heard among our Antiquaries were first created about the days of Henry the sixth the manner of whose creation read in Master Stows Annals pag. 1121. Of all these you may also read Mast Ferns glory of Generofity pa. 125. 126. And see M. Skene de ver signif verb. Baro. with Sir Thomas Smith lib. 1. dâ—â—â—pub Anglor cap. 17. who saith that none in England is created Baron except he can dispend a thousand pound by year or a thousand markes at the least To these former Master Seager by office Norrey lib. 4. cap. 13. of Honour civill and militariy addeth a â—ird kind of baron calling them Barons by conure and those be the Bishops of the land all which by vertue of Baronies annexed to their Bishopricks have alwaies had place in the upper house of Parliament and are termed by the name of Lords Spiritual Baron in the next signification is an Officer as Barons of the Exchequer be to the King of which the principal is called Lord chief Baron capitalis Baro and the three other for so many there be are his Assistants in causes of Justice between the King and his subjects touching causes appertaining to the Exchequer The Lord chief Baron at this day is the chief Judge of the Court and in matter of Law Information and Plea answereth the Barr and giveth order for judgement thereupon He alone in the Term time doth sit upon Nist prius that come out of the Kings Remembrancers office or out of the office of the Clerk of the Pleas which cannot be dispatched in the mornings for want of time He taketh recognisancea for the Kings debts for appearances and observing of orders He taketh the presentation of all the officers in Court under himself and of the Maior of London and seeth the Kings Remembrancer to give them their oaths He taketh the declaration of certain receivers accounts of the lands of the late augmentation made before him by the Anditors of the Shires He giveth the two parcel makers places by vertue of his office The second Baron in the absence of the Lord chief Baron answereth the Barr in matters aforesaid he also taketh recognisances for the Kings debts apparences and observing of orders He giveth yearly the oath to the late Maior and Escheatour of London for the true account of the profits of his office He taketh a declaration of certain receivers accounts He also examineth the letters and sums of such Sheriffs forrain accounts as also the accounts of Escheatours and Collectours of subsidies and Fifteens as are brought unto him by the Auditors of the Court. The third Baron in the absence of the other two answereth the barr in matters aforesaid he also taketh recognisances as aforesaid He giveth yearly the oath of the late Major and Gawger of London for his true accounting He also taketh a declaration of certain receivers accounts and examineth the letters and sums of such of the former accountants as are brought unto him The fourth Baron is alwayes a
places they there have this commissary is but superfluous and most commonly doth rather vex and disturb the Country for his lucre than of conscience seek to redresse the lives of offenders And therefore the Bishop taking prestation money of his Archdeacons yearely pro exteriori jurisdictione as it is ordinarily called doth by super-onerating their circuit with a commissary not only wrong Archdeacons but the poorer sort of subjects much more as common practice daily teacheth to their great woe Commission commissio is for the most part in the understanding of the Common law as much as delegatio with the Civilians See Brook titulo Commission and is taken for the warrant or Letters Patents that all men exercising jurisdiction either ordinary or extraordinary have for their power to hear or determine any cause or action Of these see divers in the table of the Register original verbo Commissio Yet this word sometime is extended further than to matters of judgement as the Commission of Purveyers or takers anno 11 H. 4. cap. 28. But with this epitheton High it is most notoriously used for the honourable Commission Court instituted and founded upon the Statute 1 Eliz. cap. 1. for the ordering and reformation of all offences in any thing appertaining to the jurisdiction ecclesiastical but especially such as are of higher nature or at the least require greater punishment than ordinary jurisdiction can afford For the world being grown to that loosenesse as not to esteem the censure of excommunication necessity calleth for those censures of fines to the Prince and imprisonment which doe affect men more neerly Commission of rebellion commissio rebellionis is otherwise called a writ of Rebellion Breve Rebellionis and it hath use when a man after proclamation made by the Sheriff upon an order of the Chauncery or court of Statrechamber under penalty of his allegeance to present himself to the Court by a certain day appeareth not And this commission is directed by way of command to certain persons to this end that they or three two or one of them doe apprehend or cause to be apprehended the party as a rebell and contemner of the Kings lawes wheresoever they find him within the Kingdom and bring him or cause him to be brought to the court upon a day therein assigned The true copie of this commission or Writ you have in Cromptons divers jurisdictions Court de Starre-Chamber as also in West tractat touching proceedings in chancery Sectio 24. Commissioner commissionarius is he that hath commission as Letters Patents or other lawful warrant to execute any publike office as Commissioners of the office of Fines and Licenses West parte 2. symbol titulo Fines sect 106. Commissioners in Eyr anno 3 Ed. 1. cap. 26. with infinite such like Committee is he to whom the consideration or ordering of any matter is referred either by some Court or consent of parties to whom it belongeth As in Parliament a Bill being read is either consented unto and passed or denied or neither of both but referred to the consideration of some certain men appointed by the house farther to examine it who thereupon are called Committees Committee of the King West part 2. symbol titulo Chancerie sect 144. This word seemeth to be something strangely used in Kitchin fol. 160. where the widow of the Kings Tenent being dead is called the Committee of the King that is one committed by the ancient law of the land to the Kings care and protection Common bench bancus communis is used some time for the Court of Common plees anno 2 Ed. 3. cap. 11. So called as M. Cambden saith in his Britannia pag. 113. quia communia placita inter subditos ex jure nostro quod commune vocant in hoc disceptantur that is the Plees or Controversies tryed between Common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Justices in Eyr consueverunt Justiciarii imponere villatis juratoribus hundredis toti comitatui concelamentum omnes separatim amerciare quod videtur voluntarium cùm de per jurio concelauâ—ento non fuerint convicti sed potius dispensandum esset cum eis quod anim as in statera posuerint pro pacis conservatione lib. 1. cap. 48. § Quibus And a little following § Et provisum he hath these words Et provisum ests quòd communes misericordiae vel fines comitatuum amerciatorum in finibus ininerum Justiciariorum ante recessum ipsorum Justiciariorum per sacramenta militum aliorum proborum hominum de comitatu eodem affidentur super eos qui contribuere debent unde particulae Justiciariis liberentur ut cum aliis extractis suis ad Scaccarium liberare valeant These last words of his have relation to the statute Westminst pr. cap. 18. which read See Fine Common Plees communia placita is the Kings Court now held in Westminster Hall but in antient time moveable as appeareth by the Statute called Magna charta cap. 11. as also anno 2 Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his Readings saith that until the time that Henry the third granted the great Charter there were but two Courts in all called the Kings Courts whereof one was the Exchequer the other the Kings Bench which was then called Curia Domini regis and Aula regia because it followed the Court or King and that upon the grant of that Charter the Court of Common plees was erected and setled in one place certain viz. at Westminster And because this Court was setled at Westminster wheresoever the King lay thereupon M. Gwin ubi supra saith that after that all the Writs ran Quòd sit coram Justiciariis meis apud Westmonasterium whereas before the party was commanded by them to appear coram me vel Justiciariis meis simply without addition of place as he well observeth out of Glanvile and Bracton the one writing in Henry the seconds time before this Court was erected the other in the latter end of Henry the thirds time who erected this Court. All civil causes both real and personal are or were in former times tryed in this Court according to the strict law of the Realm and by Fortescue cap. 50. it seemeth to have been the onely Court for real causes The chief Judge thereof is called the Lord chief Justice of the Common Plees accompanied with 3 a 4 Assistants or Associates which are created by Letters Patents from the King and as it were enstalled or placed upon the Bench by the Lord Chancelor and Lord chief Justice of the Court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the Officers belonging to this Court are these The Custos brevium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerk of the Warrants Clerk of the Juries or Jurata
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
quod constituimus vos Justiciarium nostrum capitalem ad placita coram nobis terminandum durante bene-placito nostro Teste c. And Bracton in the place now recited speaking of the Common Plees saith that Sine Warranto jurisdictionem non habet which I think is to be understood of a Commission under the great Seal This Court was first called the Kings Bench because the King sat as Judge in it in his proper Person and it was moveable with the Court. See anno 9 H. 3. cap. 11. More of the jurisdiction of this Court see in Crompton ubi supra See Kings Bench. The oath of the Justices see in the Statute anno 18 Edw. 3. stat 4. See Oatb Justice of common plees Justiciarius communium placitorum is also a Lord by his Office and is called Dominus Justiciarius communium placitorum and he with his assistants originally did hear and determine all causes at the Common law that is all civil causes between common persons as well personal as real for which cause it was called the Court of Common Plees in opposition to the Plees of the Crown or the Kings Plees which are special and appertaining to him only Of this and the Jurisdiction hereof see Cromptons jurisdiction fol. 91. This Court was alwayes setled in a place as appeareth by the Statute anno 9 H. 3. cap. 11. The oath of this Justice and his Associates see anno 18 Edw. 3. Stat. 4. See Oath Justice of the Forest Justiciarius Forestae is also a Lord by his Office and hath the hearing and determining of all offences within the Kings Forest committed against Venison or Vert of these there be two whereof the one hath jurisdiction over all the Forests on this side Trent the other of all beyond The chiefest point of their Jurisdiction consisteth upon the articles of the Kings Charter called Charta de Foresta made anno 9 H. 3. which was by the Barons hardly drawn from him to the mitigation of over cruel ordinances made by his predecessors Read M. Camdens Brit. pag. 214. See Protoforestarius The Court where this Justice sitteth and determineth is called the Justice seat of the Forest held every three years once whereof you may read your fill in M. Manwoods first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Justice in Eyre of the Forest See the reason in Justice in Eyre This is the only Justice that may appoint a Deputy per statutum anno 32 H. 8. cap. 35. Justices of Assise Justiciarii ad capiendas Assisas are such as were wont by special Commission to be sent as occasion was offered into this or that County to take Assises the ground of which polity was the ease of the Subjects For whereas these actions passe alway by Jury so many men might not without great hinderance be brought to London and therefore Justices for this purpose were by Commission particularly authorised and sent down to them And it may seem that the Justices of the Common Plees had no power to deal in this kind of businesse until the statute made anno 8 Richard 2. cap. 2. for by that they are enabled to take Assises and to deliver Gaols And the Justices of the kings Bench have by that Statute such power affirmed unto them as they had one hundred years before that Time hath taught by experience that the better sort of Lawyers being fittest both to judge and to plead may hardly be spared in term time to ride into the Countrey about such businesse and therefore of later years it is come to passe that these commissions ad capiendas Assisas are driven to these two times in the year out of term when the Justices and other may be at leasure for these Controversies also wherupon it is also fallen out that the matters wont to be heard by more general Commission of Justices in Eyr are heard all at one time with these Assises which was not so of old as appeareth by Bracton l. 3. c. 7. 2. nu Habet etiam Justiciarios itinerantes de Comitatu in Comitatum quandoque adomnia placita quandoque ad quaedam specialia sicut Assisas c. et ad Gaolas deliberandas quandoque ad unicam vel duas non plures And by this means the Justices of both Benches being justly to be accounted the fittest of all others others their Assistants as also the Sergeant at law may be imployed in these affaires who as gravest in years so are they ripest in judgement and therefore likest to be void of partiality for being called to this dignity they give over practice anno 8 R. 2. cap. 3. but this alway to be remembred that neither Justice of either Bench nor any other may be Justice of Assise in his own Countrey anno 8 R. 2. cap. 2. anno 33 H. 8. cap. 24. Lastly note that in these dayes though the self same men disparch businesse of so divers natures and all at one time which were wont to be performed by divers and at severall times yet they doe it by several commissions Cromptons jurisdictions fol. 210. For those who be in one word called Justices of Circuit and twice every year passe by two and two through all England have one Commission to take Assises another to deliver Gaols another of Oyer and Terminer That Justices of Assise and Justices in Eyre did antiently differ it appeareth anno 27 Ed. 3. cap. 5. and that Justices of Assise and Justices of Gaol delivery were divers it is evident by anno 4 Ed. 3. cap. 3. The oath taken by Justices of Assise is all one with the oath taken by the Justices of the Kings Bench. Old abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of Oyer and Terminer Justiciarii ad audiâ—ndum Terminandum were Justices deputed upon some especial or extraordinary occasion to hear and deter mine some or more causes Fitzherbert in his natura brevium saith that the Commission a'Oyer and Terminer is directed to certain persons upon any great assembly insurrections hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely weighed is provided by the Statute anno 2 Ed. 3. cap. 2. that no such commission ought to be granted but that they shall be dispatched before the Justices of the one Bench or other or Justices errants except for horrible trespasses and that by the special favour of the King The form of this commission see in Fitzh natur brev fol. 110. Justices in Eyre Justiciarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis itineribus proverbially spoken the use of these in antient time was to send them with Commission into divers Counties to hear such causes especially as were termed the Plees of the Crown and therefore I must imagine they were so sent abroad for the ease of the Subjects who must else have been
himself or his Deputie in places convenient looketh to the Assise of wollen cloth made through the land and to seales for that purpose ordained unto them anno 25. Ed. 3. Stat. 4. cap. 1. anno 3. R. 2. cap. 2. who is accomptable to the king for every cloth so sealed in a fee or custom therunto belonging an 17 R. 2. c. 2. Read of this more an 27. Ed. 3. c. 4. an 17. R. 2. c. 2. 5. an 1. H. 4. c. 13. an 7. ejusd c. 10. an 11. ejusd cap. 6. an 13. ejusd ca. 4. an 11. H. 6. ca. 9. an 31. ejusdem cap. 5. anno 4. Ed. 4. ca. 1. anno 8. ejusdem ca. 1. an 1. R. 3. cap. 8. AM Ambidexter is that jurour or embraceour that taketh of both parties for the giving of his verdict He forfeiteth ten times so much as he taketh anno 38. Edw. 3. cap. 12. Cromptons Juflice of Peace fol. 156. b. Amendment amendatio commeth of the French amendment and signifieth in our common Law a correction of an errour committed in a Processe and espyed before judgement Terms of the law Brook titulo Amendment per totum But if the fault be found after judgement given then is the party that will redresse it driven to his writ of errour Terms of the Law Brok titulo Error Amerciament amerciamentum signifieth the pecuniarie punishment of an offendor against the king or other Lord in his court that is found to be in misericordia i. to have offended and to stand at the mercy of the King or Lord. There seemeth to be a difference between amerciament and fines Kitthin fol. 214. And I have heard common Lawyers say that fines as they are taken for punishments be punishments certain which grow expresly from some Statute and that amerciaments be such as be arbitrably opposed by affeerors This is in some sort confirmed by Kitch f. 78. in these words l'amerciament est affire per pares M. Manwood in his first part of Forest Lawes pag. 166. seemeth to make another difference as if he would inferre an amerciament to be a more easie or more mercifull penaltie and a fine more sharp and grievous Take his words If the pledges for such a trespasse saith he do appear by common summons but not the defendant himself then the pledges shall be imprisoned for that default of the defendant but otherwise it is if the defendant himself doe appear and be ready in Court before the Lord Justice in eyr to receive his judgement and to pay his fine But if such pledges do make default in that case the pledges shall be amerced but not fined c. The Author of the new terms of law saith that amerciament is most properly a penaltie assessed by the peers or equals of the partie amercied for an offence done for the which he putteth himself upon the mercy of the Lord. Who also maketh mention of an amerciament royal and defineth it to be a pecuniary punishment laid upon a Sheriff Coroner or such like Officer of the Kings amercied by Justices for his offence See Misericordia Amoveas maium Look ouster le maine AN An tour waste annus dies vastum Look year day and waste Anealing of tile anno 17. Ed. 4. ca. 4. Annats Annaies seemeth to be all one with first fruits anno 25. H. 8. ca. 20. Look First fruits The reason is because the rate of first fruits payed of spiritual livings is after one years profit Of which Polydore Virgil de inventione rerum lib. 8. cap. 2. saith thus Nullum inventum majores Romano Pontifici cumulavit opes quam annatum qua vocant usus qui omnino multò antiquior est quam recentiores quidam scriptores suspicantur Et annates more suo appellant primos fractus unius anni sacer dotii vacantis aut dimidiam eorum partem Sanè hoc vectigal jam pridem cùm Romanus Pontifex non habuerit tot possessiones quot nunc habet cum oportuerit pro dignitate pro officio multos magnosque facere sumptus paulatim impositum fuit sacerdotiis vacantibus quae ille conferret de qua quidem re ut gravi saepe reclamatum fuisse testatur Henricus Hostiensis qui cum Alexandro 4. Pontifice vixit sic ut Franciscus Zabarellus tradat posthac in concilio Viennensi quod Clemens quintus indixit qui factus est Pontifex anno salutis humanae 135. agitatum fuisse ut eo deposito annatum onere vigesima pars vectigalium sacerdotalium penderetur quotannis Romano Pontifici id quidem frustrà Quare Pontifex annatas in sua massa retinuit ut ne indidem exire possent lege caetera Anniented commeth of the French anneantir i. se abjicere atque prosternere It signifieth with our Lawyers as much as frustrated or brought to nothing Littleton lib. 3. cap. warrantie Annua pensione is a writ whereby the King having due unto him an annual pension from an Abbot or Prior for any of his Chaplaines whom he shall think good to name unto him being as yet unprovided of sufficient living doth demand the same of the said Abbot or Prior for one whose name is comprised in the same writ untill c. and also willeth him for his Chaplaines better assurance to give him his Letters patents for the same Register orig fol. 265 307. Fitz. nat br fol. 231. where you may see the names of all the Abbeys and Priories bound unto this in respect of their Foundation or creation as also the form of the Letters Patents usually granted upon this writ Annuitie annuus reditus signifieth a yearly rent to be paid for term of life or years or in fee and is also used for the Writ that lyeth against a man for the recovery of such a rent either out of his Land or out of his Coffers or to be received of his person at a day certain every year not satisfying it according to the Grant Register Origin fol. 158. Fitzh nat br fol. 152. The Author of the new terms of Law defineth annuitie to be a certain sum of mony granted to another in fee-simple fee-tail for term of life or of years to receive of the Granter or his Heirs so that no Free-hold be charged therewith whereof a man shall never have assise or other action but a Writ of Annuity Saintgerman in his Book intituled The Doctor and Student dialogo primo cap. 3. sheweth divers differences between a Rent and an Annuity wherof the first is That every rent be it rent-charge rent-service or rent-seck is going out of Land but an Annuity goeth not out of any Land but chargeth only the person that is to say the Granter or his Heirs that have Assets by descent or the House if it be granted by a House of Religion to perceive of their Coffers The second difference is that for the recovery of an Annuity no Action lyeth but only the Writ of Annuity against the Granter his Heirs or Successors
assisa de Clarendon whereby those that be accused of any hainous crime and not able to purge themselves by fire and water but must abjure the Realm had liberry of fourty daies to stay and try what succour they could get of their Friends towards their sustenance in exile Stawnf pl. cor fo 118. out of Bracton li. 3. tract 2. cap. 16. num 2. Of this also Roger Hoveden maketh mention and more particularly than any I have heard parte poster suorum annalium fo 313. b. in Henrico secundo Assise of the Forest assisa de Foresta which is a statute or condition touching orders to be observed in the Kings Forest Manwood parte 1. of his Forest laws p. 35. Crompton in the Court of Justices of the Forest per totum fo 146. seq And the assise of the King anno 18. Edw. 1. Stat. 1. called the Statute for view of Frank-pledge And these be called assises because they set down and appoint a certain measure tate or order in the things which they concern Of Assise in this singnification doth Glanvile also speak lib. 9. c. 10. in fine Geraliter verum est quod de quolibet placito quod in comitatu deducitur terminatur misericordia quae inde provenit vicecomiti aebetur quae quanta sit per nullam assisam generalem determinadum est And thus much touching Littletons division But if we mark well the Writers of the Law we shall find this word assise more diversly used than this Author hath noted For it is sometime used for the measure or quantity it self and that per Metonymiam effecti because it is the very scantline described or commanded by the Ordinance as for example we say when Wheat c. is of this price then the bread c. shall be of this assise This word is further taken for the whole process in court upon the Writ of assise or for some part thereof as the issue or verdict of the Jury For example assises of new disseisin c. shall not be taken but in their shires and after this manner c. Mag. Char. c. 12. And so it seemeth to signifie Westm 2. cap. 25. an 13 Ed. 1. in these words let the Disseisour allege no false exceptions whereby the taking of the Assises may be deferred c. And anno 34 Ed. 1. Stat. 2. if it be found by assise the assise is arrained to aver by the assise the assise by their default shall pass against them and also anno 1 H. 6. c. 2. assises awarded by default of the Tenents c. Lastly by Merton cap. 4. an 20 Henry 3. certified by the assise quit by the assise c. And in this signification Glanvile calleth it magnam assisam domins regis quae ex duodecim ad minus legalium hominum sacramentis consistit li. 2. c. 7. Bracton useth it in like sort as assisa cadit in transgressionem lib. 4. c. 30. assisa cadit in perambnlationem eodem c. 31. num 2. Fleta defineth an assise in this signification thus Assisa in jure possessorio est quaedam recognitio duodecim hominum juratorum per quam Justicjarii certiorantur de articulis in brevi contentis And assise also thus signifying is said sometime to pass per modum assisae and sometime in modum juratae in manner of an assise when only the Dissesin in question is put to the tryal of the Twelve in manner of a Iury when as any exception is objected to disable the interest of the Disseisee and is put to be tryed by the Twelve before the assise can pass as for example Quaestio status causa successionis causa donationis pactum sive conditio vel conventio voluntas disimulatio transactio vel quistaclamatio vel remissio confirmatio sive consensus propria usurpatio rei propriae difficultas Judicii justum judicium finis chirographum intrusio in rem alienam vel disseisina si incontinenti rejiciatur negligentia quae per transitum temporis excludit actionem Fleta lib. 4. c. 10. § 1. whom read also to this point c. 11. § Si autem à domino and at large c. 16. ejusdem libri l. b. 5. c. 6. § Item vertitur assisa seq And note that assise in this signification is taken four waies Old nat br fol. 105. The first is assise at large which is taken as well upon other points as upon the disseisin For example where an Infant bringeth an assise and the deed of his Ancestor is pleaded whereby he claimeth his right or foundeth his title then the assise shall be taken at large that is the Jury shall enquire not only whether the Plaintiff were disseised or not by the Tenent but also of these two points viz. whether his ancestor were of full age of good memory and out of Prison when he made the Deed pleaded Another example out of Kitchin fol. 66. The Tenent pleadeth a forein release in bar to an assise whereupon the cause was adjourned At the day the Tenent maketh default Therefore the assise was taken at large that is not only whether the Plaintiff were disseised but also whether there be any forein release A third example you may read in Littleton c. Estates upon Condition The second manner of assise in point of assise assisa in modum assisae which is when the Tenent as it were setting foot to foot with the Demandant without farther circumstance pleadeth directly contrary to the Writ no wrong no disseisin The third manner is assise out of the point of assise assisa extra assisam velin modum jurata viz. when the Tenent allegeth some by exception that must be tryed by a Jury before the principal cause can proceed as if he plead a forein release or forein matter tryable in another County For in this case the Justices refer the Record to the Court of Common pleas for the Tryal of the Forein pleas before the disseisin can come to be decussed Of this sort read divers others examples in Bracton l. 4. parte 1. c. 34. For there be of them as he saith and Britten also c. 52. both dilatory and peremptory The fourth and last manner is Assise of right of dammages and that is when the Tenent confessing a putting out and referring it to a demurrer in Law whether it were rightly done or not is adjudged to have done wrong For then shall the Demandant have a Writ to recover dammages which is called assise to recover dammages as also the whole processe Assise is further taken for the Court place or time when and where the Writs and processes of the assise be handled or taken And in this signification assise is general as when the Justices pass their several Circuits every couple with their Commission to take all assises twice in the year For he that speaketh of any thing done at that time and in that place will commonly say that it was done at the general assise It may likewise
lawyers signifying him to whose use any other man is infeoffed in any Lands or Tenements See the new book of entries verbo uses and in Replevin fol. 508. colum 3. verbo Trespas fol. 606. fol. 123. a. b. colum 3. num 7. CH Chafe wax is an Officer in Chauncery that fitteth the wax for the sealing of the Writs such other instruments as are there made to be sent out This Officer is borrowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser i. sectari belluas apros cervos It signifieth two things in the Common Law First as much as actus in the Civil law that is a driving of cattel to or from any place as to chase a distress to a fortlet Old nat br fol. 45. Secondly it is used for a receit for Deer and wild beasts of a middle nature between a Forest and a Park being commonly lesse than a Forest and not endued with so many liberties as the Courts of attachment Swain mote and Justice seat and yet of a larger compas and stored with greater diversity both of keepers and wild beasts or game than a park And Crompton in his book of Jurisdictions fol. 148. saith that a Forest cannot be in the hands of a subject but it forth with loseth the name and becommeth a chase and yet fol. 197. he saith that a subject may be lord and owner of a Forest which though it seem a contrariety yet be both his sayings in some sort true For the King may give or alienate a Forest to a subject yet so as when it is once in the subject it leeseth the true property of a Forest because that the Courts called the Justice seat the Swain more and Attachment forthwith do vanish none being able to make a Lord chief Justice in Eyr of the Forest but the King as M. Manwood well sheweth parte 2. of his Forest Lawes cap. 3. 4. And yet it may be granted in so large a manner that there may be Attachment and Swainmote and a Court equivalent to a Justice seat as appeareth by him in the same chapter num 3. So that a Chase differeth from a Forest in this because it may be in the hands of a subject which a Forest in his proper true nature cannot and from a Park in that that it is not inclosed hath not onely a larger compasse and more store of game but of Keepers also and Overseers See Forest Chaleâ—ge calumnia cometh of the French chalenger i. sibâ— asserere is used in the Common law for an exception taken either against persons or things persons as in assise to the Jurors or any one or more of them or in a case of felony by the prisoner at the barre Smith de reâ— Angl. lib. 2. cap. 12. Briton cap. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration Old nat br fol. 76. Chalenge made to the Jurors is either made to the array or to the polles Chalenge to the array is when the whole number is excepted against as partially empaneled chalenge to or by the polle when some one or more are excepted against as not different Terms of the Law Chalenge to the Jurours is also divided into Chalenge principal and Chalenge per cause i. upon cause or reason Challenge principal otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the Law alloweth without cause alleged or farther examination Lamberd Eirena lib. 4. cap. 14. as a prisoner at the barr arraigned upon felonie may peremptorily chalenge to the number of 20. one after another of the Jurie empaneled upon him alleging no cause but his own dislike and they shall be still put off and new taken in their places But in case of high treason no challenge peremptorie is allowed anno 33 H. 8. cap. 23. Fortescue saith that a prisoner in this case may challenge 35 men c. 27. but that law was abridged by anno 25 H. 8. cap. 3. I cannot here omit to note some difference that in mine opinion I observe between Chalenge principal and Chalenge peremptorie finding peremptorie to be used only in matters criminal and barely without cause alledged more than the prisoners own phantasie Stawnf pl. cor fol. 124. but principal in civil actions for the most part and with naming of some such cause of exception as being found true the law alloweth without farther scanning For example if either party say that one of the Jurors is the son brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farther examination of the parties credit And how far this Chalenge upon children reacheth you have a notable example in Plowden casu Vernon against Manners fol. 425. Also in the plee of the death of a man and in every action real as also every action personal where the debt or dammages amount to 40 marks it is a good Chalenge to any man that he cannot dispend 40 shillings by the year of Free-hold anno 11 H. 7. cap. 21. and Terms of the Law verbo Chalenge The ground of this Chalenge you may see farther in Fleta lib. 4. cap. 8. Chalenge upon reason or cause is when the party doth allege some such exception against one or more of the Jurors as is not forthwith sufficient upon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Jurors as for example if the son of the Juror have married or espoused the daughter of the adverse party Terms of the Law ubi supra This Chalenge per cause seemed to be tearmed by Kitchin chalenge for favour fol. â—2 or rather Chalenge for favour is said there to be one species of Chalenge per cause where you may read what chalenges be commonly accounted principal and what not See the new book of Enteries verbo Chalenge and the Old nat br fol. 158. 159. That this word Chalenge is long sithence latined by the word calumnia appeareth by Bracton lib. 3. tract 2. cap. 18. lib. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will never forgive him that first strook this blow at him Of Chalenge you may farther read Fleta lib. 1. cap. 32. § Ad quem diem seq Chamberdekins are Irish beggers an 1 H. 5. c. 8. Chamberer is used for a Chamber-maid an 33 H. 8. cap. 21. Chamberlain camerarius vel camberlingus cometh of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly used in our Cbronicles Laws and Statutes as Lord great Chamberlain of England Lord Chamberlain of the Kings house the Kings Chamberlain anno 13 Ed. 1. cap. 41. anno 17 R. 2. cap. 6. to whose office it especially appertaineth to look to the Kings chambers and wardrope and to govern the under ministers
belonging unto the same Fleta lib. 2. cap. 6. 7. Chamberlain of any of the Kings courts anno 7 Edw. 6. cap. 1. Chamberlain of the Exchequer anno 51 H. 3. stat 5. anno 10 Ed. 3. cap. 11. anno 14 ejusdem cap. 14. anno 26 H. 8. cap. 3. Chamberlain of North Wales Stow pag. 641. Chamberlain of Chester Cromptons jurisd fol. 7. This Officer is commonly the receiver of all rents and revenues belonging to that person or City whereunto he is Chamberlain Vide Fletam lib. 2. cap. 70. § Si autem The Latine word seemeth to expresse the function of this officer For camerarius dicitur à camer a i. testitudine sive fornice â—quia custodit pecunâ—as quae in cameris praecipuè reservantur Onyphrius de interpret vocum ecclesiasticarum It seemeth to be borowed from the Feudists who define the word camera thus Camera est locus in quem the saurus recolligitur vel conclave in quo pecunia reservatur Zasius de feudis part 4. num 7. and Peregrinus de jure fisci lib. 6. tit 3. saith that camerarius vel camberlingus quem quaestorem antiqui appellarunt in rebus fisci primum locum tenet quia thesaurarius custos est publicae pecuniae Sane officium hoc primipilatus fuisse nonnulli senserunt There be two officers of this name in the Kings Exchâ—quer who were wont to keep a controlement of the pells of receipt and exitus and kept certain keyes of the treasure cofers which is not now in use They keep the keyes of the Treasurie where the leagues of the Kings predecessors and divers ancient books do remain There is mention of this officer in the Statute an 34. 35 H. 8. cap. 16. There be also Under-chamberlains of the Exchequer which see in Under-chamberlain Champartie cambipartita aliâs champertie seemeth to come from the French champert i. vectigal and signifieth in our Common law a maintenance of any man in his sute depending upon condition to have part of the thing be it lands or goods when it is recovered Fitz. nat br fol. 171. and champertours be they that move plees or sutes or cause to be moved either by their own procurement or by other and pursue at their proper costs for to have part of the land in variance or part of the gains anno 33 Ed. 1. stat 2. in fine Whereunto adde the third statute made the same year This seemeth to have been an ancient fault in our Realm For notwithstanding these former statutes and a form of writ framed unto them yet anno 4 Ed. 3. cap. 11. it was again enacted that whereas the former statute provided redresse for this in the Kings Bench onely which in those dayes followed the Court from thenceforth it should be lawful for Justices of the Common plees likewise and Justices of Assises in their circuits to inquire hear and determine this and such like cases as well at the sute of the King as of the Party How farre this Writ extendeth and the divers forms thereof applyed to several cases See Fitz. nat br fol. 171. and the Register orig fol. 183. and the new book of Enteries verbo Champertie Every Champertie imployeth maintenance Cromptons jurisd fol. 39. See also his Justice of Peace fol. 155. b. c. These with the Romans were called redemptores litium qui sc quotidian as lites mercantur aut qui partem litis paciscuntur l. si remuner andi § Maurus Ï€. Mandati l. si contra l. per diversas Co. eodem 13. Câ—anpion campio is thus defined by Hottoman in verbis feudalibus Campio est certator pro alio datus in duello à campo dictus qui circus erat decertantibus definitus In our Common law it is taken no lesâ—e for him that trieth the combat in his own case than for him that fighteth in the place or quarrel of another Bracton lib. 3 tract 2. cap. 21. num 24. who also seemeth to use this word for such as hold by Seargante or some service of another as campiones faciunt homagium domino suo lib. 2. cap. 35. Of this read more in Battel and Combat 30. Chanceler cancellarius cometh of the French chancelier Vicentius Lupanus de magistratibus Francorum saith that cancellarius is no Latine word howbeit he citeth divers Latine Writers that do use it With him agreeth that excellent man Petrus Pithaeus libro 2. adversariorum cap. 12. and whereas Lupanus would derive it from the verb cancello Pithaeus confeâ—eth he hath good colour for his opinion though he think it not sound and therefore rather deduceth it à cancellis Cancellare is liter as vel scriptum linea per medium duct a damnare and seemeth of it self like wise to be derived à cancellis which signifie all one with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek which we in our tongue call a Leâ—is that is a thing made of wood or iron barres laid crosse-waies one over another so that a man may see through them in and out And is to be thought that Judgement seats in old time were compassed in with those barres being found most necessary to defend Judges and other Officers from the presse of the multitude and yet never the more to hinder any mans view that had a desire or cause to observe what was done Cancellarius at the first by the opinion of Lupanus signified the registers or actuaries in Court grapharios sc qui conscribendis excipiendis judicum act is dant operam Pithaeus saith they were such as we now call Secretarios But this name in our daies is greatly advanced and not only in other Kingdomes but in ours also is given to him that is the chief man for matter of Justice in private causes especially next unto the Prince For whereas all other Justices in our Common-wealth are tied to the Law and may not swerve from it in judgement the Chancelor hath in this the Kings absolute power to moderate and temper the written Law and subjecteth himself onely to the Law of nature and conscience ordering all things juxta aequum bonum And therefore Stanford in his Prerogative cap. 20. fol. 65. saith that the Chancelor hath two powers one absolute the other ordinarie meaning that though by his ordinary power in some cases he must observe the form of proceeding as other ordinary Judges yet that in his absolute power he is not limited by the written law but by conscience and equity according to the circumstances of the matter in question But how long he hath had this power some would doubt For Polidorus Virgilius lib. 9. historiae Anglica hath these words of William the Conquerour Instituit item Scribarum Colleginm qui diplomata scriberent ejns Collegii magistrum vocabat Cancellarium qui paulatim supremus factus est Magistratus qualis hodie habeiur And see Flet. lib. 2. cap. 13. This high Officer seemeh to be derived from France unto us as many other
was the Court never restored but all matters therein wont to be handled were transferred to the Exehequer See Annats Fishgarth anno 23 H. 8. cap. 18. Fitche See Furre Fitzherberd was a famous Lawyer in the dayes of King Henry the eighth and was chief Justice of the Common plees he wrote two worthy Books one an Abridgement of the Common Laws another intituled De Natura Brevium FL Fledwit cometh of the Saxon word Fled that is a fugitive wit which some make but a termination signifying nothing of it self howbeit others say it signifieth a reprehension censure or correction It signifieth in our ancient Law a discharge or freedom from amercements when one having been an Out-lawed fugitive cometh to the peace of our Lord the King of his own accord Rastal Exposition of words or being licensed New Terms of Law See Bloodwit and Childwit See Fletwit Fleet Fleta a famous prison in London so called as it seemeth of the River upon the side whereof it standeth Cambden Britannia pag. 317. Unto this none are usually committed but for contempt to the King and his Laws or upon absolute commandement of the King or some of his courts or lastly upon debt when men are unable or unwilling to satisfie their Creditours Flemeswit or rather Flehenswit cometh of the Saxon word Flean which is a contract of Flegen that is to fly away It signifieth with our Lawyers a liberty or Charter whereby to challenge the Cattel or amercements of your man a fugitive Rastal Exposition of words See Bloodwit Fleta writeth this word two other wayes as Flemenes frevie or Flemesfreict he and interpreteth it habere catalla fugitivorum lib. 1. cap. 47. Fleta is a feigned name of a learned Lawyer that writing a Book of the Common laws of England and other antiquities in the Fleet termed it thereof Fleta He seemeth to have lived in Edward the seconds time and Edward the thirds idem lib. 1. cap. 20. § qui ceperint lib. 2. cap. 66 § item quod nullus Fletwit aliâs Fredwit Skene de verborum significatione verb. Melletum saith that Flitchtwit is a liberty to Courts and to take up the amercements pro melletis he giveth the reason because Flitcht is called Flitting in French Melle which sometime is conjoyned with handstroke And in some books Placitum de meltis is called the moot or plee of beating or striking Flight see Finer Florences an 1 R. 3. cap. 8. a kind of cloath so called Flotson aliâs Flotzam is a word proper to the Seas signifying any goods that by shipwrack be lost and lye floting or swimming upon the top of the water which which Jetson and lagon and shares be given to the Lord Admiral by his Letters Patents Jetson is a thing cast out of the Ship being in danger of wreck and beaten to the Shore by the waters or cast on the Shore by the Mariners Coke vo 6 fol. 106. a Lagon aliâs Lagam vel Ligan is that which lieth in the bottom of the Sea Coke ibid. Shares are goods due to more by proportion FO Foder fodrum signifieth in our English tongue a coarse kind of meat for Horses and other Cattel But among the Feudists it is used for a prerogrative that the prince hath to bee provided of corn and other meat for his horses by his subjects toward his Warrs or other expeditions Arnoldus Clapmarius de arcunis Imperii lib. 1. cap. 11. And read Hotomaa de verbis feudalidus literaf Folgheres or rather Folgers be followers if wee interpret the word according to the â—rue signification Bracton sayth it signifieth Eos qui alii deserviunt Lib. tertio tract 2. cap. 10. Folkmoot is a Saxon word compounded of Folk i. populus and Gemeitan i. convenire It signifieth as M. Lambeâ—t saith in his exposition of Saxon words verbo Conventus two kind of courts one now called the County court the other called the Sheriffs Turn This word is still in use among the Londoners and signifieth celebrem ex omni civitate conventum Stow in his Survey of London But M. Manwood in his first part of Forest laws pag. 111. hath these words Folkemore is the Court holden in London wherein all the folk and people of the Citie did complain on the Maior and the Aldermen for mis-government within the City Forbarre is for ever to deprive anno 9. Rich. 2. ca. 2. Force forcia is a french word signifying vim nervositatem fortitudinâ—m virtutem in our Common law it is most usually applyed to the evill part and signifieth unlawfull violence West thus defineth it Force is an offence by which violence is used to things or persons parte 2. symbol titulo Indictments Sect. 65. where also he divideth it thus Force is either simple or compound Simple is that which is so committed that it hath no other crime adjoined unto it as if one by force doe only enter into another mans possession without doing any other unlawfull act here Mixt force is that violence which is committed with such a fact as of it self only is criminal as if any by force enter into another mans possession and kill a man or ravish a woman there c. he farther divideth it into true force and force after a sort and so proceedeth to divers other branches worth the reading as forceable entry forceable detaining unlawful assembly Rowtes Riots Robellions c. Forceable det aining or witholding of possession is a violent act of resistance by strong hand of men weaponed with harness or other action of fear in the same place or elsewhere by which the Lawful entry of Justices or others is barred or hindred West parte 2. symb titulo Inditements Sect. 65. M. of this see Cromptons Justice of pe ce fol. 58. b. c. usq ad 63. Forcible entrie Ingressus mann forti factua is a violent actuall entry into a house or land c. or taking a distresse of any person weaponed whether he offer violence or fear of hurt to any there or furiously drive any out of the possession thereof West par 2. symb titulo Indictments sect 65. L. of this see Cramptons Justice of peace f. 58. b. 59. c. usq 63. It is also used for a writ grounded upon the Stat. aâ— 8. H. 6. c. 9. wherof read Fiaz nat br at large f. 248. See the new book of Entries verbo Forcible Entrie See Lamb. definition in â—emain â—asâ—â—s Firen l. 2. ca. 4. pag. 145. Forem faâ—infocus commeth of the French forain i. exterus extornus it is used adjectively in our Common law and joyned with divers substantives in senses not unworthy the exposition as Forain matter that is matter triable in another County pl. co fol. 154. or matter done in another County Kitchin fol. 126. For. inplea forinsecum placiâ—um is a refusall of the Judge as incompetent because the matter in hand was not within his precincts Kitchin fo 75. an 4. H. 8. cap. 2. anno 22 ejusdem cap.
hurried to the Kings Bench if the cause were too high for the County Court They differed from the Justices of Oyer and Terminer because they as is above-said were sent upon some one or few especial cases and to one place whereas the Justices in Eyre were sent through the Provinces and Counties of the land with more indefinite and general Commission as appeareth by Bracton lib. 3. cap. 11 12 13 and Britton cap. 2. And again they seem to differ in this because the Justices of Oyer and Terminer as it is before said were sent uncertainly upon any uproar or other occasion in the countrey but these in Eyre as M. Gwin setteth down in the Preface to his Reading were sent but every seven year once with whom Horn in his mirrour of Justices seemeth to agree lib. 2. cap. queux point estre actourrs c. and lib. 2. cap. des peches criminels c. al suyte de Roy c. and li. 3. ca. de Justices in Eyre where he also declarâ—th what belonged to their office These were instituted by Henry the 2. as M. Camden in his Britannia witnesseth pag. 104. And Roger Hoveden parte posteri annalium fol. 313. b. hath of them these words Justiciarii itinerantes constituti per Henricum secundum i. qui divisit regnum suum in sex partes per quarum singulas tres Justiciarios itinerantes constituit quorum nomina haec sunt c. Justices of Gaol delivery Justiciarii ad Gaolas deliberandas are such as are sent with Commission to hear and determine all causes appertaining to such as for any offence are cast into the Gaol part of whose authority is to punish such as let to Mainprise those prisoners that by law be not baileable by the Statute de finibus cap. 3. Fitz. nat br fol. 151. I. These by likelihood in antient time were sent to Countries upon this several occasion But afterward Justices of Assise were likewise authorised to this anno 4 Ed. 3. cap. 3. Their oath is all one with other of the Kings Justices of either Bench Old Abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of labourers were Justices appointed in those times to redresse the frowardnesse of labouring men that would either be idle or have unreasonable wages See anno 21 Edvardi 3. cap. primo anno 25 ejusd cap. 8. an 31 ejusd cap. 6. Justices of Nisi prius are all one now adayes with Justices of Assises for it is a common Adjournment of a cause in the Gommon Plees to put it off to such a day Nisi prius Justiciarit venerint ad eas parte ad capiendas Assisas and upon this clause of Adjournment they are called Justices of Nisi Prius as well as Justices of Assises by reason of the writ or action that they have to deal in their Commission you may see in Cromptons Jurisdictions fol. 204. yet M. Crompton maketh this difference between them because Justices of Assise have power to give judgement in a cause but Justices of Nisi prius only to take the verdict But in the nature of both their functions this seemeth to be the greatest difference because Justices of Nisi prius have to deal in causes personal as well as real whereas Justices of Assise in strict acception deal only with the possessory writs called Assises Justices of trial baston alià s of trayl baston were a kind of Justices appointed by King Edward the first upon occasion of great disorder grown in the Realm during his absence in the Scotish and French warres they are called in the Old nat brev fol. 52. Justices of trial Baston but by Holynshed and Stow Ed. pri of Trail baston or trailing or drawing the staff as Holynshed saith Their office was to make inquisition through the Realm by the verdict of substantial Juries upon all officers as Maiors Sheriffs Bayliffs Escheators and others touching extortion briberies and other such grievances as intrusions into other mens lands and Barratours that used to take money for beating of men and also of them whom they did beat by means of which inqusitions many were punished by death many by ransome and so the rest flying the Realm the land was quieted and the King gained great riches toward the supporting of his wars Inquire farther of the name Baston is thought by some to be the beam of a pair of Scoales or Weights And this is in this place metaphorically applied to the just peising of recompence for offences committed My poor opinion is that the etymologie of this title or addition groweth from the French Treilles i. cancelli bars or lettises of what thing soever a grate with crosse bars or of the singular Treille i. pargula an house arbour a rail or form such as vines run upon and Baston a staff or pole noting thereby that the Justices imployed in this Commission had authority to proceed without any solemn Judgement Seat in any place either compassed in with railes or made Booth or Tent-wise set up with staves or poets without more work wheresoever they could apprehend the malefactors they sought for See libro Assisarum folio 57.141 Justices of Peace Justiciarii ad pacem are they that are aprointed by the kings Commission with others to attend the peace of the Countie where they dwell of whom some upon special respect are made of the Quorum because some businesse of importance may not be dealt in without the presence or assent of them or one of them Of these it is but folly to write more because they have so many things appertaining to their Office as cannot in few words be comprehended And again Justice Fitzherbert sometime sithence as also Master Lamberd and Master Crompton of late have written Bookes of it to their great commendation and fruitfull benefit of the whole Realm See also Sir Thomas Smith de repub Anglorum lib. 2. cap. 19. They were called Gardians of the Peace until the 36. year of king Edward the third cap. 12. where they be called Justices Lam. Eirenarcha lib. 4. cap. 19. pag. 578. Their oath see also in Lamberd lib. 1. cap. 10. Justices of Peace c. within Liberties Justiciarii ad pacem infra libertates be such in Cities and other Corporate Towns as those others be of any County and their authoritie or power is all one within their several precincts Anno 27 H. 8. cap. 25. Justicies is a Writ directed to the Sheriff for the dispatch of Justice in some especiall cause wherewith of his own authoritie he cannot deal in his County Court lib. 12. cap. 18. whereupon the Writ de Excommunicato deliberando is called a Justicies in the Old nat brev fol. 35. Also the Writ de homine replegiando eodem fol. 41. Thirdly the Writ de secunda superoneratione pasturae eodem fol. 73. Kitchin fol. 74. saith that by this writ called Justicies the Sheriff may hold plee of a great summe whereas of his ordinary authoritie he cannot hold plees but
of summs under forty shillings Crompton fol. 231. agreeth with him It is called a Justicies because it is a commission to the Sheriff ad Justiciandam aliquem to doe a man right and requireth no return of any certificate of what he hath done Bracton lib. 4. tract 6. cap. 13. num 2. maketh mention of a Justicies to the Sheriff of London in a case of Dower See the new book of Entries Justicies Justification Justificatio is an upholding or shewing a good reason in Court why he did such a thing as he is called to answer as to Justifie in a cause of Replevin Broke titulo Replevin KE KEeper of the great Seal Custos Magni Sigilli is a Lord by his Office and called Lord-Keeper of the great Seal of England c. and is of the Kings privy Councel under whose hands pass all Charters Commissions and Grants of the King strengthened by the great or broad Seal Without the which Seal all such Instruments by Law are of no force for the King is in interpretation and intendment of Law a Corporation and therefore passeth nothing firmly but under the said Seal This Lord Keeper by the Statute anno 5 Eliz. cap. 18. hath the same and the like place authority preheminence Jurisdiction execution of Laws and all other Customes Commodities and advantages as hath the Lord Chancellor of England for the time being Keeper of the privy Seal Custos privati Sigilli is a Lord by his Office under whose hands pass all Charters signed by the Prince before they come to the broad or great Seal of England He is also of the Kings privy Councell He seemeth to be called Clerk of the privy Seal anno 12 Rich. 2. cap. 11. But of late daies I have known none to bear this Office by reason the Prince thinketh good rather to keep his Seal in his own hands and by private trust to commit it to his principal Secretary or some such one of his Councel as he thinketh fit for that function Keeper of the Touch anno 2 H. 6. cap. 14. seemeth to be that Officer in the Kings Mint which at this day is termed the Master of the Assay See Mint Keeper of the Forest Custos Forestae is also called Chief Warden of the Forest Manwood parte prim of his Forest laws pag. 156. c. and hath the principal government of all things belonging thereunto as also the check of all Officers belonging to the Forest And the Lord Chief Justice in Eyr of the Forest when it pleaseth him to keep his Justice Seat doth forty daies before send out his general Summons to him for the warning of all under Officers to appear before him at a day assigned in the Summons This see in Manwood ubi supra KI King Rex is thought by M. Camden in his Britan. pag. 105. to be contracted of the Saxon word Cyninge signifying him that hath the highest power and absolute rule over our whole Land and thereupon the King is in intendment of Law cleared of those defects that Common persons be subject unto For he is alwaies supposed to be of full age though he be in years never so young Cromptons Jurisdictions fol. 134. Kitchin fol. 1. He is taken as not subject unto death but is a Corporation in himself that liveth ever Crompton ibidem Thirdly he is above the Law by his absolute power Bracton lib. 1. cap. 8. Kitchin fol. 1. And though for the better and equal course in making Laws he do admit the three Estates that is Lords Spiritual Lords Temporal and the Commons unto Counsel yet this in divers learned mens opinions is not of constraint but of his own benignity or by reason of his promise made upon oath at the time of his Coronation For otherwise were he a Subject after a sort and subordinate which may not be thought without breach of duty and loyalty For then must we deny him to be above the Law and to have no power of dispersing with any positive law or of granting especial Privileges and Charters unto any which is his only and clear right as Sir Thomas Smith well expresseth lib. 1. cap. 3. de Repub. Anglica and Bracton lib. 2. cap. 16. num 3. and Britton ca. 39. For he pardoneth life and limme to Offendors against his Crown and Dignity except such as he bindeth himself by Oath not to forgive Stawnf pl. Cor. l. 2. ca. 35. And Habet omnia jura in manu sua Bracton l. 2. c. 24. nu 1. And though at his Coronation he take an Oath not to alter the laws of the Land yet this Oath notwithstanding he may alter or suspend any particular Law that seemeth hurtfull to the publique Estate Blackwood in Apologia Regum cap. 11. See Oath of the King Thus much in short because I have heard some to be of opinion That the Laws be above the King But the Kings Oath of old you may see in Bracton lib. 3. cap. 9. nu 2. for the which look in Oath of the King The Kings Oath in English you may see in the old Abridgement of Statutes titulo Sacram. Regis Fourthly the Kings only Testimony of any thing done in his presence is of as high nature and credit as any Record Whence it commeth that in all Writs or Precepts sent out for the dispatch of Justice he useth none other Witness but himself alwaies using these words under it Teste me ipso Lastly he hath in the right of his Crown many Prerogatives above any common person be he never so potent or honorable whereof you may read you fill in Stawnfords Tractate upon the Statute thereof made anno 17 Ed. 2. though that contain not all by a great number What the Kings power is read in Bracton lib. 2. cap. 24. nu pri 2. King of Heralds Rex Haraldorum is an Officer at Armes that hath the preeminence of this Society See Herald This officer of the Romans was called Pater Patratus Kings Bench Bancus Regius is the Court or Judgement Seat where the King of England was wont to sit in his own person and therefore was it moveable with the Court or Kings houshold And called Curia Domini Regis or Aula Râ—gia as Master Gwin reporteth in the Preface to his Readings and that in that and the Exchequer which were the only Courts of the King untill Henry the Thirds dayes were handled all matters of Justice as well Civil as Criminal whereas the Court of Common Plees might not be so by the Statute anno 9 H. 3. cap. 11. or rather by Master Gwins opinion was presently upon the grant of the great Charter severally erected This Court of the Kings bench was wont in ancient times to be especially exercised in all Criminal matters and Plees of the Crown leaving the handling of private contracts to the County Court Glanvil lib. 1. cap. 2 3 4 lib. 10. cap. 18. Smith de Repub. Anglicana lib. 2. cap. 11. and hath President of it the Lord
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
at least the remedy for the same is likest there to be had by some sodain inrode and happing of such recompence of the injury received as may most conveniently be lighted upon See Reprisalls See Marches Marquis Marchio by the opinion of Hotom verbo Marchio in verbis feudalibus commeth of the German March i. limes signifying originally as much as Custos limitis or Comes praefectus limitis of these Zasius thus writeth de Marchione nihil compertum est nisi quod Gothicum vocabilum putamus And afterwards thus Hujusmodi Marchionum sive ut nos appellamus Margraphiorum origo in limitaneos praepositos sive duces referenda Margraphii dicti quòd limitibus quos vulgo marken appellamus graphii td est praepositi fuerunt c. For in those Territories that have naturally no bounds of great strength or defence there is need of wise and stout men toward their borders for the keeping out of Neighbour enemies But here in England though we have a L. Warden of the Marches northward and a Warden of the Cinque Ports toward the South-east and were wont to have Lord Marchers between us and Wales that served this turn yet those which we call Marquises are Lords of more dignity without any such charge and are in honor and account next unto Dukes At this day I know but one in England and that is the Marques of Winchester being of that noble family of the Powlets See Cassanaeus de consuetud Burg. pag. 15. Marrow was a Lawyer of great account that lived in Henry the seventh this daies whose learned Readings are extant but not in print Lambert Eirenarch lib. 1. cap. 1. Marterns see Furre Master of the Rolls Magistri rotulorum is an Assistant unto the Lord Chancellour of England in the High Court of Chancery and in absence heareth Causes there and giveth Orders Cromptons Jurisdiction fol. 41. His Title in his Patent as I have heard is Clericus parvae bagae Custos rotulorum domus conversorum This Domus conversorum is the place where the Rolls are kept so called because the Jews in ancient time as there were any of them brought to Christianity were bestowed in that House seperately from the rest of their Nation But his office seemeth originally to have sprung from the safe keeping of the Rolls or Records of Indictments passed in the Kings Courts and many other things He is called Clark of the Rolls anno 12 Rich. 2. cap. 2. and in Fortescue his Book cap. 24. and no where Master of the Rolls untill anno 11 H. 7. cap. 20. and yet an 11. ejusdem cap. 25. he is also called Clark In which respect Sir Thomas Smith l. 2. cap. 10. de Repub Angl. well saith That he might not unfitly be called Custos Archivorum He seemeth to have the bestowing of the offices of the six Clarks anno 14 15 Henry the eight cap. 1. Master of the Mint an 2 Hen. 6. cap. 14. he is now called the warden of the Mint whose office see in Mint Master of the Court of Wards and Liveries is the chief principal officer of the Court of Wards and Liveries named and assigned by the King to whose Custody the Seal of the Court is committed He at the entring upon his office taketh an oath before the Lord Chancellor of England well and truly to serve the King in his Office to minister equal Justice to rich and poor to the best of his cunning wit and power diligently to procure all things which may honestly and justly be to the Kings advantage and profit and to the augmentation of the rights and Prerogative of the Crown truly to use the Kings Seal appointed to his Office to endeavour to the uttermost of his power to see the King justly answered of all such profits rents revenues and issues as shall yearly rise grow or be due to the King in his Office from time to time to deliver with speed such as have to do before him not to take or receive of any person any gift or reward in any Case or matter depending before him or wherein the King shall be party wherby any prejudice losse hinderance or disherison shall be or grow to the King an 33 H. 8. cap. 33. Master of the Horse is he that hath the rule and charge of the Kings stable being an Office of high account and alwaies bestowed upon some Noblemen both valiant and wise This Officer under the Emperors of Rome was called Comes sacri stabuli The master of the Horse is mentioned anno 39 Eliz. ca. 7. and an 1 Edw. 6. cap. 5. Master of the Posts is an Officer of the Kings Court that hath the appointing placing and displacing of all such through England as provide Post horse for the speedy passing of the K. messages other businesses in the thorow-fair towns where they dwel as also to see that they keep a certain number of convenient Horses of their own and when occasion is that they provide others therewith to furnish such as have warrant from him to take Post-horses either from or to the Seas or other borders or places within the Realm He likewise hath the care to pay them their wages and make their allowance accordingly as he shall think meet This Officer is mentioned an 2 E. 6. cap. 3. Master of the Armoury is he that hath the care and oversight of his Majesties Armour for his person or Horses or any other provision or store thereof in any standing Armouries with command and placing or displacing of all inferiour Officers thereunto appertaining Mention is made of him anno 39 Elizabeth cap. 7. Master of the Jewel-house is an Officer in the Kings houshold of great credit being allowed bouge of Court that is dyet for himself and the inferiour Officers viz. Clarks of the Jewel-house and a special lodging or Chamber in Court having charge of all plate of Gold of Silver double or parcel guilt used or occupied for the Kings or Queens board or to any Officer of account attendant in Court and of all Plate remaining in the Tower of London of Chains and loose Jewels not fixed to any garment Mention is made of this Officer an 39 Eliz. c. 7. Master of the Kings Houshold magister hospitii is in his just Title called Grant master of the Kings Houshold and beareth the same Office that he did that was wont to be called Lord Steward of the Kings most honourable Houshold anno 32 Henry 8. cap. 39. Whereby it appeareth that the name of this Officer was then changed and Charles Duke of Suffolk President of the Kings Councel then enjoying that office was so to be called ever after so long as he should possess that office Master of the Ordinance anno 39 Eliz. ca. 7. is a great officer to whose care all the Kings Ordinance and Artillery is committed being some great man of the Realm and expert in marshal affairs Master of the Chancery Magister Cancellariae is an assistant
be impeached or excepted against either in this or any other thing The next chapter viz. the 103. sheweth how many persons suffice to make a Record in the Exchequer The next how many in an assise c. I find not that we in our Courts especially the Kings Courts stand much upon the numbers of Recorders or witnesses for the strength of the testimony which the Record worketh but that we take it sufficient which is registred in each Court Glanvile lib. 8. cap. 8. Bracton lib. 3. tract 2. cap. 37. num 4. Bretton in the Proeme of his book saith that the Iustices of the Kings Bench have a Record the Coroner Vicounr Iustices of the Exchequer Iustices of the Gaol delivery the Steward of England Iustices of Ireland Iustices of Chester Iustices assigned by the Kings letters patents in those causes they have Commission to take knowledge of All which as I take it must be understood with that caveat of Brook titulo Record num 20. 22. that an act committed to writing in any of the Kings Courts during the term wherein it is written is alterable and no record but that term once ended and the said act duly enrolled it is a record and of that credit that admitteth no alteration or proof to the contrary Yet see Sir Edward Cooks Reports lib. 4. Rawlius case fol. 52. b. anno 12 Ed. 2. cap. 4. It is said that two Iustices of either Bench have power to record Non-sutes and defaults in the Country It appeareth by Bracton lib. 5. tract 2. cap. 1. et 11. that quatuor milites habent recordum being sent to view a party essoined de malo lecti and lib. 5. tract 1. cap. 4. nu 2. that Serviens Hundredi habet recordum in testimonio proborum hominum And in the Statute of Carleil made anno 15 Ed 2. it is said that one Iustice of either Bench with an Abbot or Prior or a Knight or a man of good fame or credence hath a record in the view of one that is said by reason of sickness to be unable to appear personally for the passing of a fine And anno 13 H. 4. cap. 7. et anno 2 H. 5. cap. 3. that two Iustices of peace with the◠Shyreeve or Under-shyreeve have power to record what they find done by any in a ryot or rout c. That which is before mentioned out of Briton touching the Shyreeve seemeth to be limited by Fitzh nat br fol. 81. D. Who alloweth him a record in such matters only as he is commanded to execute by the Kings Writ in respect of his office And thence it commeth that Kitchin fol. 177. saith that the Escheator and Shyreeve be not Iustices of record but officers of record In which words he signifieth that their testimony is authentical only in some certain things that are expresly injoyned them by vertue of their Commission as Ministers to the King in his higher Courts whereas Iustices of record have in generality a record for all things within their cognisance done before them as Iudges though not expresly or particularly commanded Fitzh in his Nat. br fol. 82. in principio something explaineth this point writing to this effect Every act that the shyreeve doth by vertue of his commission ought to be taken as matter of Record no lesse than the Justices of peace His reasons be two the former because his patent is of record the other because he is a conservatour of the peace And then he addeth that the plees held before him in his County be not of record Yet is the County called a Court of record Westm 2. cao 3. anno 13 Ed 1. But it seemeth by Briton cap. 27. that it is only in these causes whereof the shyreeve holdeth plee by especial writ and not those that he holdeth of course or custome And in that case also it may be gathered out of the same Author that he hath a record but with the testimony of those annexed that be suters to the Court. Which seemeth to agree with Bractons words above specified Scrviens Hundredi habet recordum in testimonio proborum hominum And to this purpose read Glanvile l. 8. c. 8 9 et 10. One Iustice upon view of forcible detinue of land may record the same by statute anno 15 R. 2. cap. 2. the Maior and Constables of the staple have power to record recognisances of debt taken before them anno 10 H. ◠ca. 1. Brook titulo Record seemeth to say that no Court ecclesiastical is of record how truly it is to be inquired For Bishops certifying bastardy bigamy excommunication the vacancy or plenarty of a Church a mariage a divorse a spiritual intrusion or whether a man be professed in any religion with other such like are credited without farther enquiry or controlment See Brook titulo Bastardy See Fleta lib 6. cap. 39 40 41 42. Lamb. Eirenarcha lib. pri cap. 13. Glanvile lib. 7. cap. 14 et 15. the Register original fol. 5. b. Bracton lib. 5. tractat 5. cap. 20. nu 5. Briton cap. 92 94 106 107 109. Doct. and Stud. lib. 2. cap. 5 but especially Cosius apology parte pri cap. 2. And a testament shewed under the seal of the Ordinary is not traversable 36 H. 6.31 Perkins Testament 491. Fulb. paral fol. 61. b. But it may be that this opinion groweth from a difference between that law whereby the court Christian is most ordered and the Common law of this Land For by the Civil or Canon law no instrument or record is held so firm but that it may be checked by witnesses able to depose it to be untrue Co. plus valere quod agitur quà m quod simulate concipitur ca. cum Johannes 10. extra de fide instrumentorum Whereas in our Common law against a record of the Kings court after the term wherein it is made no witnesse can prevail Briton cap. 109. Coke lib. 4. Hinds case fol. 71. lib. assisarum fol 227. nota 21. This reconciliation may be justified by Brook himself titulo Testaments num 4.8 14. and by Glanvile lib. 8. cap. 8. The King may make a Court of record by his grant Glanvile lib. 8. cap. 8. Briton cap. 121. as for example Queen Elizabeth of worthy memory by her Charter dated 26 Aprilis anno 3. regni sui made the Consistoty court of the University of Cambridge a court of record There are reckoned among our common Lawyers three sorts of Records viz. A record judicial as attainder c. A record ministerial upon oath as an office found A record made by conveyance by consent as a fine deed inrolled or such like Coke lib. 4. Andrew Ognels case fol. 54. b. Recordare facias or recordari facias is a writ directed to the Shyreeve to remove a cause depending in an inferiour court to the Kings bench or common plees as out of a court of antient Demeasn Hundred or County Fitz. nat br fol. 71. B. out of the county court idem fol.
may without absurdity be said to proceed from the French bouter i. ponere apponere impellere propellere It signifieth in our common Law as much as to encourage or set on The substantive abetment abettum is used for an incouraging or setting on Stawnf pl. cor fol. 105. And also abettour for him that encourageth or setteth on Old nat br fol. 21. But both verb and noun is alwaies used in the evill part Abishersing according to Rastall in his Abridgement titulo Exposition of law words is to be quit of amerciaments before whomsoever of transgression The Author of the new tearms calleth it otherwise Mishersing and saith it is to be quit of amerciaments before whomsoever of transgression prooved I am of opinion that the word original signifieth a forfeiture or an amerciament and that it is much transformed in the writing by misprision and ignorance of Clarks thinking it very probable that it proceedeth from the German verb Beschetzen which is as much as fisco addicere vel confiscere It seemeth by the former Authors to be tearmed a freedome or liberty because he that hath his word in any Charter or Grant hath not only the forfeitures and amerciaments of all others within his fee or transgressions but also is himself free from all such controll of any within that compass Abjuration abjuratio signifieth in our common law a sworn banishment or an oath taken to forsake the Realm for ever For as Stawnf pl. Cor. lib. 2. ca. 40. saith out of Polydore Virgils 11 book of Chronicles the devotion toward the Church first in Saint Edward a Saxon King and so consequently in all the rest untill anno 22 Hen. 8. was so earnest that if a man having committed felony could recover a Church or Church-yard before he were apprehended he might not be thence drawn to the usual tryal of Law but confessing his fault to the Justices at their comming or to their Coroner before them or him give his oath finally to forsake the Realm Of this you may read a touch an 7 Hen. 7. cap. 7. But the form and effect of this you may have in the old Abridgement of Statutes titulo Abjuration nu 3. taken out of the antient Tractate intituled De officiis Coronatorum as also in Cromptons Tractate of the Office of the Coroner fo 260. b. and in the new Book of Entries verbo Abjuration and in Andrew Horus Mirrour of Justices lib. 1. cap. del Office del Coroner This part of our Law was in some sort practised by the Saxons as appeareth by the Laws of King Edward set out by Master Lambert num 10. but more directlie by the Normans as is evident by the grand Custumary ca. 24. where you have these words in effect He that flieth to a Church or holy place may stay there for eight daies and at the ninth day he must be demanded whether he will yeeld himself to secular justice or hold him to the Church for if he will he may yeeld himself to the lay Court If he cleave to the Church he shall foreswear the Countrie before the Knights and other people of credit which may witness the act if need require The form of the Oath is likewise there set down with the rest of the proceeding in this matter very agreeable with ours This mercy as well of the Saxons as Normans derived unto us something resembleth that of the Roman Emperors towards such as fled to the Church lib. 1. Co. titulo 12. or to the images of themselves eodem titulo 25. And also that of Moses touching the Cities of refuge Exod. cap. 21. vers 13. Num. ca. 15. vers 6 11 12. Deut. 19. vers 2. Josh 20. vers 2. But as it was in our Ancestors daies larger by great oddes in this Realm so had it less reason as may appear to all that will compare them Of all circumstances belonging to this abjuration you may futher read the new Tearms of law Stawnford ubi supra and such others But this grew at the last upon good reason to be but a perpetual confining of the offender to some Sanctuary wherein upon abjurarion of his liberty and free habitations he would choose to spend his life as appeareth an 22 Hen. 8. cap. 14. And this benefit also by other Statutes is at the last wholly taken away So that abjurati on at this day hath place but in few places And if it be inflicted upon any it is not a confining to a Sanctuary for there be no Sanctuaries remaining amongst us but a sworn banishment of the Kings Dominions This the Civilians call exilium or deportatinem li. 28. Digest tit 22. de interdictis relegatis deportatis Abridge abbreviare commeth of the French abreger and in one generall language signifieth as much as to make shorter in words holding still the whole substance But in the Common law it seemeth at the least for the most part to be more particularly used for making a declaration or count shorter by subtracting or severing some of the substance therein comprised As for example a man is said to abridge his plaint in an Assise or a woman her demaund in an action of Dower that hath put into the plee or demand any land not in the tenure of the tenant or defendant and finding that by his answer raseth those parcels out of the plee praying answer to the rest So that here Abridger is not contrahere but rather subtrahere Tearms of the Law Brook titulo Abridgement and an 21 Hen. 8. ca. 3. Of this the Civilians have no use by reason of certain cautelous clauses they ordinarily have at the end of every position or article of their libel or declaration to this effect ponit conjunctim divisim et de quolibet et de tali et tanta quantitate vel summa qualis quanta per confessionem partis adversae vel per probationes legitimas in fine litis apparebit And again in the conclusion of all Non astringens se ad singula probanda sed petens ut quatenus probaverit in praemissis aut eorum aliquo eatenus obtineat by vertue of which clauses the Plaintiff faileth not in the end by any over or under demand neither is driven to begin his Action again but obtaineth for so much as he proveth to be due though not to the height of his demand Abridgement abbreviamentum see Abridge AC ACcedas ad curiam is a Writ that lyeth for him who hath received false judgement in a Court Baron being directed to the Sheriff as appeareth by Dyer f. 169. nu 20. Like as the writ De falso judicio lyeth for him that hath received false judgement in the County Court the form whereof you may see in Fitz. nat br fol. 18. d. in the Register fol. 9. b. where it is said that this writ lyeth for Justice delayed as well as falsly given It is a species of the writ called Recordare Register original fol. 5. b. and Fitz.
they be pursued within the time by them prescribed namely the Statute anno 1 Ed. 6. cap. 1. giveth action for three years after the offences therein shall be committed and no longer and the Statute anno 7 H. 8. cap. 3. doth the like for four years and that anno 31 Eliz. cap. 5. for one year and no more But as by the Civil Law no actions were at the last so perpetual but that by time they might be prescribed against as actiones in rem decem aut viginti terminantur annis personales veró triginta sect 1. de perpet temp actioin Institutio l. 3. Co. de praescript 30. annorum so in our Common law though actions may be called perpetual in comparison of those that be expresly limited by Statute yet is there a means to prescribe against real actions within five years by a fine levied or a recovery acknowledged as you may see farther in the word Fine and Recovery And for this also look Limitation of Assise Action is farther divided in actionem bonae fidei stricti juris Which division hath good use in our common Law likewise though the terms I find not in any of their Writers But of this and such like divisions because they have as yet no apparent acceptance amongst our Lawyers but only a hidden use I refer the Reader to the Civilians and namely to Wesenb in his Paratitles ◠Deobligatio actio AD Addition additio is both the English and French word made of the Latine and signifieth in our common Law a title given to a man over and above his Christian and Surname shewing his Estate Degree Occupation Trade Age Place of Dwelling c. For the use whereof in original writs of Actions personal appeals and indictments It is provided by Statute an 1 H. 5. cap. 5. upon the penalty therein expressed Terms of the Law Brook farther addeth that it is likewise requisite in Towns and Gates of the Towns Parishes in great Towns and Cities where there may be any doubt by reason of more Towns Gates or Parishes of the same name titulo Addition See also M. Cromptons Justice of peace fol. 95 96. Adeling was a word of Honor among the Angles properly appertaining to the Kings Children whereupon King Edward being himself without issue and intending to make Eadgare to whom he was great Uncle by the Mothers side his Heir to this Kingdom called him Adeling Roger Hoveden parte poster suorum Annal. fol. 347. a. Adjournment adjournamentum is almost all one with the French adjouarement i. denunciatio vel diei dictio and signifieth in our Common-law an assignment of a day or a putting off untill another day Adjournment in eyre anno 25 Ed. 3. Statute of Pourveyers cap. 18. is an appointment of a day when the Justices in eyre mean to sit again Adjourn anno 2 Edw. 3. cap. 11. hath the like signification And this whole Title in Brook his Abridgement proveth the same The bastard Latine word adjournamentum is used also among the Burgundians as M. Skene noteth in his Book De verbo signi verbo Ad urnatus out of Cassaneus de consuet Burg. Ad inquirendum is a Writ judicial commanding inquiry to be made of any thing touching a Cause depending in the Kings Court for the better execution of Justice as of Bastardy of Bond-men and such like whereof see great diversity in the Table of the Register judicial verbo ad inquirendum Admeasurement admensuratio is a Writ which lyeth for the bringing of those to a mediocrity that usurp more than their part And it lyeth in two cases one is termed Admeasurement of Dower admensuratio dotis where the widow of the deceased holdeth from the Heir or his Guardian more in the name of her Dower than of right belonging unto her Register orig fol. 171. a. Fitzh nat br fol. 148. The other is Admeasurement of Pasture admensuratio pasturae which lyeth between those that have common of Pasture appendant to their free-hold or common by vicenage in case any one of them or more do surcharge the Common with more Cattel than they ought Register orig fol. 156. b. Fitzh nat br fol. 125. Administer administrator in our Common-law is properly taken for him that hath the Goods of a Man dying intestate committed to his charge by the Ordinary and is accountable for the same whensoever it shall please the Ordinary to call him thereunto I find not this word so used in all the Civil or Canon-law but more generally for those that have the Government of any thing as the Degrees Can. 23. quaest 5. cap. 26. Administratores plane saecularium dignitatum c. and extrava com ca. 11. Grangias autem alia loca Cisterciensium ordinis aliorum Regalium in quibus Gubernatores seu custodes vel administratores ponuntur c. Howsoever the signification of this word grew to be restrained amongst us it greatly booteth not But there was a Statute made anno 31 Ed. 3. cap. 11. whereby Power was given to the Ordinary to appoint these Administrators and to authorize them as fully as Executors to gather up and to dispose the Goods of the deceased alway provided that they should be accountable for the same as Executors And before that viz. Westm 2. anno 13 Ed. 1. cap. 19. it was ordained that the Goods of those that died intestate should be committed to the Ordinary his disposition and that the Ordinary should be bound to answer his debts so far forth as the Goods would extend as Executors And I perswade my self that the committing of this burden unto Bishops and those that derive Ecclesiastical Authority from them grew first from the constitution of Leo the Emperor Co. de Episco et cleri l. nulli li licere 28. Where it is said that if a man dying bequeath any thing to the redeeming of Captives c. and appoint one to execute his Will in that point the Party so appointed shall see it performed and if he appoint none to do it then the Bishop of the City shall have power to demand the legacie and without all delay perform the Will of the deceased Admirall Admiralius commeth of the French amerel and signifieth both in France and with us an high Officer or Magistrate that hath the Government of the Kings Navy and the hearing determining of all Causes as well Civil as Criminal belonging to the Sea Cromptons divers jurisd fo 88. and the Statutes anno 13 R. 2. ca. 5. anno 15. ejusdem ca. 3. anno 2 H. 4. ca. 11. anno 2 H. 4. ca. 6. anno 28. H. 8. ca. 15. with such like This Officer is in all Kingdoms of Europe that border upon the Sea and this Authority in the Kingdom of Naples is called magna Curia Admiratiae quae habet jurisdictionem in eos qui vivunt ex arte maris Vincent de Franch deseis 142. nu 1. This Magistrate among the Romans was called praefectus
classis as appeareth by Tully in Verrem 7. but his Authority was not continual as the Admirals in these day but only in time of War Neither do I find any such Officer belonging to the Emperors in our Code And M. Gwin in the Preface to his reading is of opinion that this Office in England was not created untill the daies of Edward the third His reason is probable Britton that wrote in Edw. the firsts time and in the beginning of his Book taking upon him to name all the Courts of Justice maketh no mention of this Court or Magistrate And again Richard the second finding the Admiral to extend his Jurisdictions over far ordained by Statute made the 10 year of his Reign that the limits of the Admirals jurisdiction should be restrained to the power he had in his Grandfather Edward the thirds daies whereby the said Master Gwin conjectureth that he did nought else but reduce him to his original But contrarily to this it appeareth by antient Records the Copies wherof I have seen that not only in the daies of Edward the first but also of King John all causes of Merchants and Mariners and things happening within the Flood-mark were ever tryed before the Lord Admiral Ad jura Regis is a Writ for the Kings Clark against him that seeketh to eject him to the prejudice of the Kings Title in the right of his Crown Of this you may see divers forms upon divers Cases Register orig fo 61. a. Admittendo clerico is a Writ granted to him that hath recovered his right of presentation against the Bishop in the Common-bank the form whereof read in Fitzh nat br fol. 38. and the Register orig fol. 33. a. Admittendo in socium is a Writ for the association of certain Persons to Justices of Assises formerly appointed Register orig fol 206. a. Ad quod damnum is a Writ that lyeth to the Escheater to inquire what hurt it will be to the King or other Person to grant a Fair or Market or a Mortmain for any Lands intended to be given in Fee-simple to any House of Religion or other body politick For in that Case the Land so given is said to fall into a dead hand that is Such an estate and condition that the chief Lords do leese all hope of Heriots service of Court and escheats upon any traiterous or felonious Offence committed by the Tenant For a body politick dieth not neither can perform personal service or commit Treason or Felony as a single Person may And therefore it is reasonable that before any such Grant be made it should be known what prejudice it is like to work to the Granter Of this read more in Fitzh nat brev folio 221. and look Mortmain Ad terminum qui praeteriit is a Writ of Entry that lyeth in case where a man having leased Lands or Tenements for term of life or years and after the term expired is held from them by the Tenent or other Stranger that occupieth the same and deforceth the Leasour Which Writ belongeth to the Leasour and his Heir also Fitzh nat br fol. 201. Advent adventus is a certain space of time comprising a Month or thereabouts next before the Feast of Christs Nativity Wherein it seemeth that our Ancestors reposed a kind of Reverence for the neerness of that solemn Feast so that all contentions in Law were then remitted for a season Whereupon there was a Statute ordained Westm 1. cap. 48. anno 3. Ed. 1. that notwithstanding the said usual solemnity and time of rest it might be lawfull in respect Justice and Charity which ought at all times to be regarded to take Assises of novel disseisin mort d'auncester and darrein presentment in the time of Advent Septuagesima and Lent This is also one of the times from the beginning whereof unto the end of the Octaves of the Epiphany the solemnizing of Mariages were forbidden by reason of a certain spiritual joy that the Church and so consequently every Member thereof for that time doth or ought to conceive in the remembrance of her Spouse Christ Jesus and so abandon all affections of the flesh See Rogation week and Septuagesima Advocatione decimarum is a Writ that lyeth for the claim of the fourth part or upward of the Tithes that belong to any Church Register orig fol. 29. b. Advow aliâs avowe advocare commeth of the French advoüer aliâs avoüer and signifieth as much as to justifie or maintain an Act formerly done For example one taketh a distress for rent or other thing and he that is distreined sueth a Replevin Now he that took the Distress or to whose use the Distress was taken by another justifying or maintaining the Act is said to avow Terms of the Law Hereof commeth advowant Old nat br fol. 43. and advowrie eodem folio Bracton useth the Latine word in the same signification as advocatio disseifinae li. 4. cap. 26. And I find in Cassanaeus de consuet Burg. pag. 1210. advohare in the same signification and pag. 1213. the Substantive desavohamentum for a disavowing or refusal to avow Advowzen advocatio signifieth in our Common-law a right to present a benefice as much as jus patronatus in the Canon-law The reason why it is so termed proceedeth from this Because they that originally obtained the right of presenting to any Church were Maintainers and Upholders or great Benefactors to that Church either by building or increasing it and are thereupon termed sometime Patroni sometime Advocati cap. 4. cap. 23. de jure Patronatus in Decretal And advowzen being a bastardly French word is used for the right of presenting as appeareth by the Statute of Westm the second anno 13 Edw. 1. ca. 5. Advowzen is of twosorts advowzen in grosse that is sole or principal not adhering or belonging to any Manor as parcel of the right thereof advowzen dependant which dependeth upon a Manor as appertinent unto it termed of Kitchin an incident that may be separated from the Subject Of this M. John Skene de verbo sig hath these words dicitur advocatio Ecclesiae vel quia Patronus alicujus Ecclesiae ratione sui juris advocat se ad eandem Ecclesiam asserit se in eadem habere jus Patronatus eamque esse sui quasi clientis loco vel potiùs cùm aliquis nempe patronus advocat alium jure suo ad Ecclesiam vacantem cumque loco alterius veluti defuncti praesentat quasi exhibet See Advowè next following Advowè alias avowè advocatus is used for him that hath right to present to a benefice Anno 25 Ed. 3. stat 5. ca. unico There have you also Advowe paramount which is as much as the highest Patron and is spoken of the King Advocatus est ad quem pertinet jus advocationis alicujus Ecclesiae ut ad Ecclesiam nomine proprio non alieno possit praesentare Fleta l. 5. ca. 14. § 1. Fitzh in his nat br fol. 39. useth it in
hujusmodi ligna verò lapides brusuras orbes â—ctus qui judicari non possunt ad plagam ad hoc ut inde veniri possit ad duellum Armor arma in the understanding of our Common law is extended to any thing that a man in his wrath or fury taketh into his hand to cast at or strike another Crompton Justice of Peace fo 65. a. So armorum appellatio non utique scuta gladios galeas significat sed fustes et lapides lib. 42 Ï€. de verbo significatione Array arrâ—ia alias arraiamentum commeth of the French Array i. ordo which is an old word out of use Or it may be may be well deduced from raye i. linea It signifieth in our Common Law the ranking or setting orth of a Jury or enquest of men impannelled upon a Cause a. 18 H. 6. c. 14. Thence is the verb to array a panel Old N. B. fo 157. that is to set forth one by another the men impannelled The array shall be quashedi Old Nat. Br. fo 157. By Statute every array in assise ought to be made four daies before Br. tâ—â— Panel nu 10. to challenge the array Kitchin fol. 92. Arrayers seemeth to be used in the Statute an 12 R. 2. c. 6 for such Officers as had care of the Souldiers armour to see them duly appointed in their kinds Arraine arraniare commeth of the French arranger i. astituere ordinare that is to set a thing in order in his place and the same signification it hath in our Common law For example he is said to arrain a Writ of Novel disseisin in a County that sitteth it for Tryal before the Justices of the Circuit Old nat brev fo 109. Littleton fo 78. useth the same word in the same sence viz. the Lease arraineth an assise of Novel disseisin Also a Prisoner is said to be arrained where he is inindicted and brought forth to his Tryal Arrained within the Verge for murther Stawnf pl. cor fol. 150. The course of this arrainment you may read in Sir Tho. Smith de rep Angl. l. 2. c. 23. Arrearages arreragia commeth of the French arrierages i. reliqua It signifieth the remain of an Account or a sum of Mony remaining in the hands of an Accountant It is used sometimes more generally for any mony unpaid at a due time as arrerages of rent That this word is borowed from France it appeareth by Tiraquel de utroque retractu tomo 3. p. 32. num 10. Arrest arestum commeth of the French arrester i. retinere retare subsistere or rather it is a French word in it self signifying a setling stop or stay and is metaphorically used for a decree or determination of a cause debated or disputed to and fro as arrest du Senat i. placitum curiae In our Common law it is taken most of all for a stay or stop as a man apprehended for debt c. is said to be arrested To plead in arrest of Judgement is to shew cause why judgement should be staid though the verdict of the twelve be passed To plead in arest of taking the enquest upon the former issue is to shew cause why an enquest should not be taken c. Brook tit Repleader Take this of the learned Master Lambert in his Eirenarch lib. 2. c. 2. p. 94. Budae saith he in his Greek Commentaries is of opinion that the French word Arrest which with them signifies a decree or judgement of Court took beginning from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. placitum and as we might say the pleasure and will of a Court. And albeit it were not out of the way to think that it is called an Arrest because it stayeth or arresteth the party yet I believe rather that we receive the same from the Norman laws because we use it in the same sence with them For commonly with us an arrest is taken for the excution of the Commandement of some Court or of some Officer in justice But howsoever the name began an arrest is a certain restraint of a mans person depriving him of his own will and liberty and binding it to become obedient to the will of the Law and it may be called the beginning of imprisonment Precepts and Writs of the higher Courts of Law do use to express it by two sundry words as capias and attachies which signifie or take to catch hold of a man But this our Precept noteth it by the words ducifacias that is cause him to be conveyed c. For that the Officer hath after a sort taken him before in that he commeth unto him and requireth him to go to some Justice of the Peace Thus far M. Lambert And belike this word is spread farther than France for Gaile a German Writer sheweth by his Tractate de arrestis imperii that it is used also in the imperial Territories and in the same signification c. 1. n. 1. Arrestandis bonis ne dissipentur is a Writ which lyeth for him whose Cattel or Goods are taken by another that during the controversie doth or is like to make them away and will be hardly able to make satisfaction for them afterward Reg. orig fo 126. b. Arrestando ipsum qui pecuniam recepit ad proficiscendum in obsequium regis c. is a Writ that lyeth for the apprehension of him that hath taken prest mony toward the Kings wars and lyeth hidden when he should go Register orig 24. b. Arresto facto super bonis mercatorum alienigenorum c. is a Writ that lyeth for a Denizen against the Goods of Strangers of any other Country found within the Kingdom in recompence of Goods taken from him in the said Country after he hath been denied restitution there Reg. orig fo 129. a. This among the antient Civilians was called clarigatio now barbarously represaliae Arretted arrectatus is he that is covenanted before a Judge and charged with a crime Stawn pl. cor li. 2.45 quasi ad rectum vocatus It is used sometime for Imputed or laid unto as no folly may be arrected to him being under age Littleton cap. Remitter The Latine Substantive Rettum is used in the Register orig Chawcer useth the verb Arretteth id est layeth blame as M. Speight interpreteth it I may probably conjecture that this word is the Latine Rectum For Bracton hath this phrase ad rectum habere malefactoremi i. to have the Malefactor forth comming so as he may be charged and put to his Tryal lib. 3. tract 2. cap. 10. And in another place Rectatus de morte hominis i. charged with the death of a man codem c. 2. n. 3. Articles of the Clergy articuli Cleri be certain Statues made touching persons and causes Ecclesi astical an 9 E. 2. like unto which there were others made an 14 E. 3. stat 3. AS Assay of measures and weights assais mensurarum ponderum Reg. orig fo 279 is the examination used by the Clark of the
que lieu is interponere judicium suum Of this Verb commeth the Participle assis as estre assis i. sedere And this Participle in the grand Customary of Normandy c. 68. is used as we would say appointed limited or determined viz. au jour qui est assis à faire la battaille se doibuent les champions offrir à la justice That is At the day which is appointed for the combat the Champions ought to offer themselves to the Iustice So that by all these places compared together it is evident whence the original of this word assise floweth How diversly it is used in our Common law it followeth that we declare First Littleton in the Chapter Rents saith that it is aequivocum where he setteth down three several significations of it one as it is taken for a Writ another as it is used for a Iury the third as for an Ordinance And him he that listeth may read more at large My Collections have served me thus first assise is taken for a Writ directed to a Sheriff for the recovery of possession of things immoveable where of your self or your Ancestors have been disseised And this is as well of things corporal as incorporeal rights being of four sorts as here they follow in their order Assise of novel disseisin assisanovae disseisinae lyeth where a Tenent in fee-simple fee-tail or for term of life is lately disseised of his Lands or Tenements or else of a Rent-service Rent-seck or Rent-charge of common of Pasture of an office of toll tronage passage pownage or for a Nusance levied and divers other such like For confirmation whereof you may read Glanvile li. 10. c. 2. Bracton li. 4. tract 1. per totum Britton c. 70. seq Reg orig fol. 197. Fitz. Nat. br fo 177 178 179. New book of Entries fo 74. col 3. West 2. c 25. anno 13 Ed. 1. And to this may aptly be added the Bill of fresh force friscae fortiae which is directed to the Officers or Magistrates of Cities or Towns corporate being a kind of Assise for recovery of possession in such places within forty daies after the force as the ordinary Assise is in the County Fitzh Nat. br fol. 7. c. This the Civilians call Judicium possessorium recuperandi Assise of mort d'auncester assisa mortis antecessoris lyeth where my Father Mother Brother Sister Uncle Aunt c. died seised of Lands Tenements Rents c. that he had in Fee-simple and after his death a Stranger abateth and it is good as well against the Abatour as any other in possession How likewise this is extended see Bracton lib. 4. trast 3. per totum Britton ca. 70. cum multis sequent Fitzh Nat. br fo 114. Regist. orig fo 223. This the Civilians call Judicium possessorium adipiscendâ— Assise of darrein presentment assisa ultimae praesentationis lyeth where I or mine Ancestor have presented a Clark to a Church and after the Church being void by the death of the said Clark or otherwise a Stranger presenteth his Clark to the same Church in disturbance of me And how otherwise this Writ is used see Bracton l. 4. tract 2. Reg. orig fo 30. Fitzh Nat. br fo 195. Assise de utrum assisa utrum lyeth for a Parson against a Lay-man or a Lay-man against a Parson for Land or Tenement doubtfull whether it be lay-fee or free-alms And of this see Bracton li. 4. sract 5. ca. 1. seq Britton ca. 95. The reason why these Writs be called assises may be divers First because they settle the possession and so an outward right in him that obtaineth by them Secondly they were originally sped and executed at a certain time and place formerly appointed For by the Norman law the time and place must be known forty days before the Iustices sate of them and by our Law there must be likewise fifteen daies of preparation except they be tryed in those standing Courts of the King in Westminster as appeareth by F. N. B. fo 177. d e. Lastly they may be called Assises because they are tryed most commonly by especial Courts set and appointed for the purpose as may be well proved not only out of the Customary of Normandy but our books also which shew that in antient times Iustices were appointed by special Commission to dispatch controversies of possession one or more in this or that only County as occasion fell out or disseisins were offered and that as well in Term time as out of Term whereas of later daies we see that all these Commissions of Assises of Eyr of Oyer and Terminer of Gaol-delivery and of Nisi prius are dispatched all at one time by two several Circuits in the year out of term and by such as have the greatest sway of Iustice being all of them either the Kings ordinary Iustices of his Benches Sergeants at the Law or such like Assise in the second signification according to Littleton is used for a Jury For to use his own example it is set down in the beginning of the Record of an Assise of novel disseisin assisa venit recognatura which is as much as to say as Juratores venâ—unt recognituri The reason why the Iury is called an Assise he giveth to be this because by writ of Assise the Sheriff is commanded quod faciat duodecim liberos legales homines de viceneto c. Videre Tenementum illud nomina corum imbreviari quòd summoneat eos per bonas summonitiones quòd sint coram Justiciariis c. parati inde facere recognitionem c. This is as if he should have spoken shorter Metonymia effecti For they are called the Assises because they are summoned by vertue of the Writ so termed And yet the Iury summoned upon a Writ of right is likewise called the Assise as himself there confesseth Which writ of right is not an Assise but this may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or abusively so termed Assise in this signication is divided in magnam parvam Glanvile li. 2. c. 6 7 c. and Britton c. 12. where it appeareth wherein the great Assise differeth from the petit Assise whom I wish to be read by those who would be further instructed in this point For this place thus much in short The former four kinds of Assises used in actions only possessory be called petit assises in respect of the grand Assise For the Law of fees is grounded upon two rights one of possession the other of property and as the grand Assise serveth for the right of property so the petit assise serveth for the right of possession Horns mirror of Justices l. 2. c. de novel disseisin Assise in the third signification according to Littleton is an Ordinance or Statute as the Statute of bread and ale made anno 51 H. 3. is termed the assise of bread and ale assisa panis cervisiae Register orig fol. 279. b. The Assise of Clarendon
Prison at that time or otherwise at their will So that he which is so bayled shall not be said by the Law to be at large or at his own liberty see Lamberts Eirenal l. 3. cap. 2. pag. 330. Bayl is also a certain limit within the Forest accordingly as the forest is divided into the charges of several foresters Crompton in the Oath of the Bow-bearer fol. 201. See Maynprise Bayliff ballivus commeth of the French bailif i. diacetes nomarcha praefectus provinciae and as the name so the office it self in antient time was very answerable to that of France and Normandy for as in France there be sixteen Parliaments Lupanus de magistratibus Francorum lib. 2. cap. Parlamentum which be high Courts whence lieth no appeal and within the precincts of those several parts of that kingdom that belong to each Parlament there be severall provinces unto which within themselves Justice is ministred by certain officers called Bayliffs So in England we see many severall Counties or Shires within the which Justice hath been ministred to the inhabitants of each Countie by the officer whom we now call Sheriff or Vicount one name descending from the Saxons the other from the Normans And though I cannot expressely prove that this Sheriff was ever called a Bayliff yet it is probable that that was one of his names likewise because the County is called many times Balliva that is a Bavliwick as namely in the return of a writ with Non est inventus he writeth thus A. S. infra scriptus non est inventus in Balliva mea post receptionem hujus brevis Kitchin returna brevium fo 285. And again in Bracton lib. 3. tract 2. cap. 33. num 3. And anno 5 Eliz. cap. 23. and anno 14 Edw. 3. stat 1. cap 6. And I think the word Bayliff used ca. 28 of Magna charta compriseth as well Sheriffs as Bayliffs of Hundreds as also anno 14 Edw. 3. stat 1. ca. 9. But as the Realm is divided into Counties so every County is again divided into hundreds within the which it is manifest that in antient time the Kings subjects had justice ministred unto them by the severall Officers of every Hundred which were called Bayliffs as those officets were and are in France and Normandie being chief officers of justice within every Province Lupanus de Magistratibus Francorum lib. 2. cap. Baltvi and the Grand Custumary of Normandie cap. 1. And that this is true among many others I bring Bracton for my witness lib. 3. tract 2. cap. 34. un 5. where it appeareth that Bayliffs of Hundreds might hold plee of Appeal and Approvers But sithence that time these Hundred Courts certain Franchises excepted are by the Statute anno 14 Ed. 3. stat 1. cap. 9. swallowed into the County Courts as you may read in County and Hundred And the Bayliffs name and Office is grown into such contempt at the least these Bailiffs of Hundreds that they are now but bare Messengers and Mandataries within their liberties to serve Writs and such base offices their office consisting in three points only which see in Cromptons Justice of Peace fol. 49. a. Yet is the name still in good esteem some other way For the chief Magistrates in divers Towns Corporate be called Bailiffs as in Ipswich Yarmouth Colchester and such like And again there be certain to whom the Kings Castles be Cōmitted which called are Bailiffs as the Bailiff of Dover Castle These ordinary Bailiffs are of two sorts Bailiffs Errant Bailiffs of Franchises Bailiffs Errant Ballivi itinerantes be those which the Sheriff maketh and appointeth to go hither thither in the County to serve writs to summon the County Sessions Assises such like Bailiffs of Franchises Ballivi Franchesiarū aut libertatū be those that are appointed by every Lord within his liberty to do such offices within his Precincts as the Bailiff Errant doth at large in the County Of these read S. Thomas Smith de re Anglo lib. 2. c. 16. There be also Bailiffs of the Forest Manwood par 1. pa. 113. There be likewise Bayliffs of Husbandry belonging to private men of great Substance who seem to be so called because they dispose of the under Servants every man to his labour and task check them for misdoing their businesse gather the profits to their Lord and Master and deliver an account for the same at the years end or otherwise as it shall bee called for The word Bayliff or Ballivus is by Rebuffus derived from Baal i. dominus quia Ballivi dominantur suis subditis quasi eorum magistri domini Rebuf in constit regias de senten excutionis art 7. glos 1. The office or duty of a Bailiff of a mannor or Houshold which in antient time seemeth to have been all one Fleta well describeth li. 2. ca. 72. 73. This word is also used in the Canon Law ca. dilecto de sentent excom in sexto c. 1. de paenis in Clement where the Glossographer saith it is a French word signifying as much as praepositus and Balia or Bativatus is used among our later interpreters of the Civil and Canon law for Provincia as Balliva here in England is used for a County or Shire Balkers See Conders Ballivo amovendo is a writ to remove a Bailiff out of his office for want of sufficient living within his Bayliwick Reg. or fo 78. Bane seemeth to signifie the destruction or overthrow of any thing Bract. l. 2. tract 8. ca. 1. nu 1. as he which is the cause of another mans drowning is said there to be Labane i. Malefactor In that Bracton in the place aforesaid prefixeth a French article to this word it should seem by his opinion that the word is French but I find it not in any French writer that ever I read Baneret banerettus in M. Skenes opinion seemeth to be compounded of baner and rent whom read more at large of this verbo Baneret de verbo sign But our M. Camden rather draweth the word from the German Bannerheires Britan. pag. 109. in meo libro S. Thomas Smith de republ Angl. li. c. 18. saith That Baneret is a Knight made in the field with the ceremony of cutting off the point of his Standard and making it as it were a Banner and they being being Ba chelors are now of greater degree allowed to display their armes in a banner in the Kings army as Barons doe M. Camden ubi supra hath these words of this matter Baneretti cum vasullorum nomen jam desierat à baronibus secundi erant quibus inditum nomen à vexillo Concessum illis erat miliaris virtutis ergo quadrato vexillo perinde ac barones uti unde equites vexillarii à nonulllis vocantur c. Of creating a Knight baneret you may read farther in M. Segar Norrey his book lib. 2. c. 10. That they be next to Barons in dignity it appeareth by the Statute anno 14 R.
writ of errour be not suffered to remove his goods untill the errour be tried Register orig fo 131. b. Borow burgus vel burgum may either come from the French burg i. pagus or from the Saxon borhoe i. vadium pignus It signifieth here in England a corporate Town that is not a City anno 2 Ed. 3. ca. 3. namely all such as send Burgesses to the Parliament the number whereof you may see in M. Cromptons jurisd fo 24. It may probably be thought that it was antiently taken for those companies consisting often families which were combined to be one anothers pledge or borhoe See Bracton li. 3. tractat 2. a. 10. See Headborow and Borowhead and M. Lamberd in the duties of Constables pag. 8. Lynwood upon the provinciall ut singula de censibus speak to this effect Aliqui interpretantur burgum esse castrum vel locum ubi sunt crebra castra vel dicitur burgus ubisunt per limites habitacula plura constituta Butthen setting down his own opinion he defineth it thus Burgus dici potest villa quaecuâ—que alia à civitate in qua est universitas approba ta And that he provethout of the 11. book of Justinians Codex tit de fund rei privatae 65. l. 6. ejus tituli where burgus is termed corpus Some derive it from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i turris see M. Skene de verbo sign verbo Borghe The late author M. Verstegan in his restitution of decayed intelligences saith that burg or burgh wherof we say yet Borough or Bourrow metaphorically signifieth a Town having a wall or some kind of closure about it also a Castle All places that in old time had among our ancestors the name of Borrough were places one way or other fenced or fortified Bordlands signifie the demesnes that Lords keep in their hands to the maintenance of their bord or table Bract. li. 4. tractat 3. ca. 9. nu 5. Borrowhead aliâs Headborow capitalis plegius by M. Lamberds opinion in his treatise of Constables is made up of these two words borhoe i. pledge and head and signifieth a head or chief pledge And in explication of this and other Saxon words of this nature he maketh an excellent rehearsall of some antient customs of England during the reign of the Saxons which you may read This borowhead in short was the head or chief man of the Decurie or Borhoe that there he speaketh of chosen by the rest to speak and to doe in the name of the rest those things that concerned them See Boron-holders Borow-holders allâs Bursholders be quasi borhoe calders signifying the same officers that be called borow-heads Lamb. in the duties of Caustables Bracton calleth them Borghio Aldere li. 3. tractat 2. ca. 10. Borow english is a customary descent of lands or tenements whereby in all places where this custome holdeth lands and tenements descend to the youngest sonne or if the owner have no issue to his youngest brother as in Edmuntan Kitchin fa 102. And the reason of this custome as Lutleton saith is for that the youngest is tresumed in law to bee least able to shift for himself Barow goods divisable I find these words in the Statute of Acton Burnal anno 11 Edw. 1. statuto unico and dare not confidently set down the true meaning of them But as before the Statute of 32. 34. H. 8. no lands were divisable at the Common law but in antient baronies so perhaps at the making of the foresaid Statute of Acton burnel it was doubtfull whether goods were devisable but in antient borrowes For it seemeth by the writ de rationabili parte bonorum that antiently the goods of a man were partible between his wife and children Bote signifieth compensation Lamb. explication of Saxon words Thence commeth manbote aliâs monbote that is compensation or amends for a man slain which is bound to another For farther understanding whereof it is to be seen in K. Inas laws set out by M. Lamberd ca. 96. what rate was ordained for the expiation of this offence See Hedgebote Plowbote Howsebote and read M. Skene de verbo signif verbo Bote. Boeiler of the King pincerua regis anno 43 Ed. 3. ca. 3. is an officer that provideth the Kings wines who as Fleta li. 2. ca. 21. saith may by vertue of his office out of every ship loaden with sale wines unum dolium eligere in prora navis ad opus regis et aliud in puppi et pro qualibet pecia reddere tantùm 20. solid mercatori Si autem plura inde habere volucrit bene licebie dum tamen precium fide dignorum judicio pro rege apponatur Bow-bearer is an under-officer of the Forest as M. Crompton in his jurisdict fo 201. setteth down sworn to the true performance of his Office in these words I will true man be to the Master Forester of this Forest and to his lieutenent and in the absence of them I shall truely oversee and true inquisition make as well of swornmen as unsworn in every bayliwick both in the North bayl and South bayl of this Forest and of all manner of trespasses done either to vert or venison I shall truly endeavour my self to attach or cause them to be attached in the next court Attachment there to be presented without any concealment had to my knowledge So help me God c. BR Bracton otherwise called Henry of Bracton was a famous Lawyer of this land renowned for his knowledge both in the Common Civill laws as appeareth by his book every where extant He lived in the dayes of Henry the third Stawnf praero f. 5. b. and as some say Lord chief Justice of England Bread of treate and bread of coker anno 51. H. 3. statuto 1. of bread and ale Bred signifieth broad This word Bracton useth li. 3. wact 2. ca. 15. nu 7. proverbially thus to lange and to bred the meaning whereof you may there find word for word it is as we now speak two long and two broad or two in length or two in brea th Brevibus rotulis liberandis is a writ or mandat to a Shyreeve to deliver unto the new Shyreeve chosen in his room the County with the appertinances together with the rols briefs remembrances and all other things belonging to that office Register orig fo 295. a. Bribours cometh of the French bribeur i. mendicus It seemeth to signifie with us one that pilfreth other mens goods anno 28 Ed. 2. stat 1. ca. unico Brief breve cometh from the French bref ou breif i. brevis and in our Common law siggnifieth a writ whereby a man is summoned to answer to any action or more largely any precept of the King in writing issuing out of any Court whereby he commandeth any thing to be done for the furtherance of justice or good order The word is used in the Civil law sometime in the singular number and masculin gender
as l. ult Cod. de conveniendis fisci debitoribus l. 10. tit 2. you have these words Inter chartul as confiscati brevis quidam adseveratur inventus qui nomina continebat debitorum Where it it is used for a short note Again I find a title restored by Gothofred in the first book of the Code de quadrimenstruis brevibus Quadrimenstruâ— autem breves erant qui de singulis indictionum pensionibus quarto quoque mense solutis conficiebantur Also Lampridius in Alexandro hath it singularly thus notarium qui falsum causae brevem in consilio imperatorio retulisset c. And in the Authenticks Novel 105. cap. 2. you have this word breviatores i. brevium proscriptores Breves autem brevia brevicula sunt chartae sive libelli breves as Gothofred there noteth Where he noteth likewise out of Zonacas in Carthagin Concilio that this is a Greek word thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 See Skene de verbo signif verbo Breve Of these briefs see also Bracton l. 5. tract 5. c. 17. num 2. Breve quidem cùm sit formatum ad similitudinem regulae juris quia breviter paucis verbis intentionem proferentis exponit explanat sicut regula juris rem quae est breviter enarrat Non tamen ita breve esse debet quin rationem vim intentionis contineat c. Brigandine lorica is the French brigandine that is a coat of mail This is used anno 4. 5. Ph. Mar. cap. 2. Brigbote significat quietantiam reparationis pontium Fleta lib. 1. cap. 47. It is compounded of brig a bridge and bote which is a yeelding of amends or supplying a defect See Bote and Bruck-bote Britton was a famous Lawyer that lived in the dayes of K. Edward the first at whose commandement and by whose authority he writ a learned book of the law of this realm The tenure whereof runneth in the Kings name as if it had been penned by himself answerably to the institutions which Justinian assumeth to himself though composed by others Stawnf praero f. 6. 21. S. Eaward Coke saith that this Britton writ his book in the fiftieth year of the said Kings raign lib. 4. fol. 126. a. lib. 6. fo 67. a. M. Guin in the Preface to his reading mentioneth that this John Britton was Bishop of Hereford Broke commonly called S. Robert Broke was a great Lawyer and Lord chief Justice of the Common plees in Queen Maries time Cromptons Justice of peace f. 22. b. he made an abridgment of the whole law a book of high account Broker brocarius seemeth to come from the French broicur i. tritor that is a grinder or breaker into small pieces Because he that is of that trade to deal in matters of money and marchandise between English men and Strangers doth draw the bargain to particulars and the parties to conclusion not forgetting to grinde out something to his own profit These men be called broggers anno 10 R. 2. cap. 1. It may not improbably be said that this word cometh from brocarder i. cavallari because these kind of men by their deceitful speeches and abusing their true trade many times inveigle others In Scotland they be called broccarii and in their own idiome blockers or brockers that is mediators or intercessors in any transaction paction or contract as in buying or selling or in contracting mariage Skene de de verbo sig verbo broccarii He that will know what these brokers were wont and ought to be let him read the statute anno 1 Jacobi ca. 21. These in the Civil law are called proxeneti as also of some licitatores mediatores tit de proxeneticit in Digestis This kind of dealer is also of the Romanes called pararius Sencca l. 2. de benef ca. 22. Caelius Rhodoginus libro 6. c. 32. li. 3. cap. 15. Broderers cometh of the French brodeur and that cometh of bordure i fimbria limbus the edge or hemme of a garment And that because it is distinguished from the rest most commonly by some conceited or costly work he that worketh it is called brodeur in French and broderer or embroderer with us Brodehalpeny commeth of the three Saxon words bret or bred i. a boord and halve that is for this or that cause cujus rei gratia as the Latinists speak and penning it signifieth a tolle or custome for setting up of tables or boords in a Fair or Market From the which they that are freed by the Kings Charter had this word mentioned in their letters patents Insomuch as at this day the freedom it self for shortnesse of speech is called by the name of brodehalpenie Broggers See Brokers Bruckbote Pontagium is compounded of two German words bruck i. pons and bote i. compensatic It signifieth with us a tribute contribution or ayde toward the mending or reedifying of Briâ—ges whereof many are freed by the Kings Charter And thereupon the word is used for the very liberty or exemption from this tribute See Pontage and Brigbote BU Bull bulla seemeth to come from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. consilium as Polydorus Virgilius saith de inventio rerum lib. 8. cap. 2. It signifieth the letters by the Canonists called Apostolick strengthened with a leaden seal and containing in them the decrees or commandments of the Pope or Bishop of Rome The word is used many times in our Statutes as anno 28 H. 8. cap. 16. anno 1. and 2. Ph. Ma. cap. 8. Bullion cometh of the French billon that is the place where gold is tried It signifieth with us gold or silver in masse or billet anno 9 Ed. 3. stat 2. cap. 2. and sometime the Kings exchange or place whither such gold in the lump is brought to be tryed or exchanged anno 27 Ed. 3. stat 2. cap. 14. anno 4 H. 4. cap. 10. See Skene de verbo signif verbo Bullion Burgbote cometh of burg i. castellum and bote 1. compensatio and signifieth a tribute or contribution toward the building or repairing of Castles or walls of defence or toward the building of a Borrow or City From this divers had exemption by the ancient Charters of the Saxon Kings Whereupon it is taken ordinarily for the exemption or liberty it self Rastals expos of words Fleta hath these words of it Significat quietantiam reparationis murorum civitatis vel burgi lib. 1. c. 47. Burg English See Borow English Burgage burgagium is a tenure proper to Cities and Towns whereby men of Cities or Borows hold their lands or tenements of the King or other Lord for a certain yearely rent Old Tenures It is a kind of socage Swinborn parte 3. § 3. num 6. Burglarie burglaria is compounded of two French words bourg i. pagus villa and larecin i. furtum or of bourg laron Coke lib. 4. fol. 39. b. It is according to the acceptance of our Common law thus defined Burglary is a felonious entring into another
men upon any cause anno 25 Ed. 3. stat 4. cap. 2. Cathedrall See Church Casu matrimonii praelocuti is a Writ which lyeth in case where a woman giveth lands to a man in fee simple to the intent he shall marry her and refusesh so to do in reasonable time being required thereunto by the woman The form and farther use thereof learn in the Register orig fol. 233. and in Fitzh nat br fol. 205. Causam nobis significes is a Writ which lyeth to a Maior of a Town or City c. that formerly by the Kings writ being commanded to give seisin unto the Kings grantee lof any land or tenements doth delay so to do willing him to shew cause why he so delayeth the performance of his charge Coke l. 4. casu communalty des Sadlers fol. 55. b. Cautione admittenda is a Writ that lyeth against the Bishops holding an excommunicate person in prison for his contempt notwithstanding that he offereth sufficient caution or assurance to obey the commandments and orders of holy Church from thenceforth The form and farther effect whereof take out of the Regist orig pag. 66. and Fitzh nat br fol. 63. CE Century centuria See Hundred Cepicorpus is a return made by the Sheriff that upon an exigend he hath taken the body of the party Fitzh nat br Fol. 26. Certiorari is Writ issuing out of the Chancery to an inferior Court to call up the records of a cause therein depending that conscionable Justice therein may be ministred upon complaint made by bill that the party which seeketh the said Writ hath received hard dealing in the said Court. Terms of the Law See the divers forms and uses of this in Fitzh nat br fol. 242. as also the Register both original and judicial in the tables verbo Certiorari Crompton in his Justice of peace f. 117. saith that this Writ is either returnable in the Kings Bench and then hath these words nobis mittatis or in the Chauncerie and then hath in caucellaria nostra or in the Common Bench and then hath Justiciariis nostris de banco The word Certiorare is used divers times in the digest of the Civil Law but our later Criticks think it so barbarous that they suspect it rather to be foisted in by Tribonian than to be originally used by those men of whose works the said digest is compiled Prataeus in suo lexico Certificat certificatorium is used for a writing made in any Court to give notice to another Court of any thing done therein As for example a certificat of the cause of attaint is a transcript made briefly and in few words by the Clerk of the Crown Clerk of the Peace or Clerk of Assise to the Court of the Kings Bench containing the tenure and effect of every endictment outlawrie or convictior and Clerk attainted made or pronounced in any other Court anno 34 H. 8. cap. 14. Of this see more in Certificat d'evesque Broke fol. 119. Certification of assise of novel disseisin c. Certificatio assisae novae disseisinae c. is a Writ grant ed for the reexamining or review of a matter passed by assise before any Justices and is called certificatione novae dissessinae Old nat br fol. 181. Of this see also the Register original fol. 200. and the new book of entries verb. Certificat of assise This word hath use where a man appearing by his Bailiff to an assise brought by another hath lost the day and having something more to plead for himself as a deed of release c. which the Bailiff did not or might not plead for him desireth a farther examination of the cause either before the same Justices or others obtaineth Letters patents unto them to that effect The form of these Letters Patents you may see in Fitzh nat br fol. 181. and that done bringeth a Writ to the Sheriff to call both the party for whom the assise passed and the Jurie that was empaneled upon the same before the said Justices at a certain day and place And it is called a certificate because in it there is mention made to the Sheriff that upon the parties complaint of the defective examination or doubts yet remaining upon the assise passed the King hath directed his Letters patents to the Justices for the better certifying of themselves whether all points of the said assise were duly examined yea or not See farther Old nat br and Fitzh ubi supra Of this also you may read Bractoâ— lib. 4. cap. 19. num 4. in fine 5 6. where he discusseth the reason of this point very learnedly and lastly Horn in his Mirrour of Justices lib. 3. cap. finali § en eyde des memoyees c. Certificando ' de recognitione Stapulae it is a Writ directed to the Major of the Staple c. commanding him to certifie the Chauncellor of a statute of the staple taken before him between such and such in case where the party himself detaineth it and refuseth to bring it in Regist orig fol. 152. b. In like manner may be said of certificando de statuto mercatorio eodem fol. 148. and de certificando in cancellarium de inquisitione de idemptitate nominis fol. 195. and certificando quando recognitio c. and certificando quid actum est de brevi super statutum mercatorium fol. 151. and certificando si loquela Warantiae fol. 13. Cessor is he that ceaseth or neglecteth so long to perform a duty be longing unto him as that by his cesse or cessing he incurreth the danger of Law and hath or may have the Writ cessavit brought against him Old nat br fol. 136. And note that where it is said in divers places the Tenent cesseth without any more words such phrase is so to be understood as if it were said the Tenent cesseth to do that which he ought or is bound to do by his Land or Tenement Cessavit is a Writ â—hat lyeth in divers cases as appeareth by Fitzh nat br fol. 280. upon this general ground that he against whom it is brought hath for two years foreslown to perform such service or to pay such rent as he is â—ed unto by his Tenure and hath not upon his Land or his Tenement sufficient goods or cattels to be distreined Consult more at large with Fitz. upon this ubi supra with Fleta lib. 5. cap. 34. § visa sunt and with the Terms of law See Cessavit de cantaria Register orig fol. 238. Cessavit de feod firma eodem fol. 237. Cessavit per biennium eodem folio etiam eodem See the new book of Entries verbo Cessavit Cestui qui vie is in true French Cestui a vie de qui. i. he for whose life any Land or Tenement is graunted Perkins graunts 97. Cestus qui use ille cujus usui vel ad cujus usum is broken French and thus may be bettered Cestui all use de qui. It is an ordinary speech among our Common
to discontinew from their benefices for their particular service Chapiters capitula cometh of the French chapitre i. caput libri It signifieth in our Common law a summary or con ent of such matters as are to be inquired of or presented before Justices in Eyr Justices of Assise or of Peace in their sessions So it is used anno 3 Ed. 1. cap. 27. in these words and that no Clerk of any Justice Escheatour or Commissioner in Eyr shall take any thing for delivering chapiters but onely Clerks of Justices in their circuits and again anno 13 ejusdem cap. 10. in these words and when the time cometh the Sheriff shall certifie the Chapiters before the Justices in Eyr how many Writs he hath and what c. Britton likewise useth the same word in this signification cap. 3. Chapiters or capitula be now called articles most ordinarily and are delivered as well by the mouth of the Justice in his charge as by the Clerks in writing to the Enquest whereas in auncient times as appeareth by Bracton and Britton they were after an exhortation given by the Justices for the good observation of the laws and kings peace first read distinctly and openly in the whole Court and then delivered in writing to the grand Enquest And the same order doth M. Lamberd wish to be kept in these dayes also Eirenar lib. 4. cap. 4. pag. 393. Horn in his mirrour of Justices calieth them articles and expresseth what they were wont to contain lib. 3. cap. des articles in Eyr An example of these chapters or articles you have in the book of assises fol. 138. num 44. as also in Roger Hoveaen parte poster suorum annal i◠Richardo primo fol. 423. Chapter capitulum signifieth in our Common law as in the Canon Law whence it is borrowed congregationem clericorum in ecclesia cathedrali conventuali regulari vel collegiata and in another signification locum in quo fiunt communes tractatus collegiatorum It hath other significations though not greatly worth the repeating in this place which you may read in Linwoods provincials glos in ca quia incontinentiae de constitutionibas verb. Capitulis Why this collegiat company should be called capitulum of the Canonists a man may make a question and for answer it may be said that it is metaphorically so termed the word originally signifying a little head For this company or corporation is a kind of head not onely to rule and govern the Diocesse in the vacation of the Bishoprick but also in many things to advise the Bishop when the See is full See Panormitan in ca. capitulum extrade rescriptis Charta perdonationis se defendendo is the form of a pardon for slaying another in a mans own defence Register original fol. 287. Charta perdonationis Utlagariae is the form of a pardon for a man that is out-lawed Regi orig fol. 288.388 Charter chartea cometh of the French chartres i. instrumenta It is taken in our law for written evidence of things done between man and man whereof Bracton lib. 2. cap. 16. num 1. saith thus Fiunt aliquando donationes in scriptis sicut in chartis ad perpetuam rei memoriam propter brevē hominū vitā c. and a little after num 12. Et sciendum quòd chartarumalia regia alia privatorum regiarum alia privata alia cōmunis aliauniver salis Itemprivatorum alia de puro feoffamēto simplici alia de feoffamento conditionali sive conventionali secundùm omnia genera feoffamextorum fieri potest Item privatorum alia de recognitione pura vel conditionali Item aliam de qutete-clamantia Item alia de confirmatione c. and so through the chapter Briton likewise in his 39. chapter divideth Charters into the Charters of the King and Charters of private persons Charters of the King are those whereby the King passeth any grant to any person or more or to any body politick as a Charter of exemption that a man shall not be empaneled upon any Jury Kitchin fol. 114. fol. 177. Charter of pardon whereby a man is forgiven a felony or other offence committed against the Kings Crown and dignitie Broke tit Charter of pardon Charter of the Forest wherein the lawes of the forest are comprised anno 9 H. 3. Cromptons jurisd fol. 147. Pupilla oculi parte 5. cap. 22. Manwood parte 1. of his Forest laws fol. 1. where he setteth down the Charters of Canutus and fol. 17. where he hath set down that which was made anno 9 H. 3. with the Charter of the Forest which we use M. Skene saith that the laws of the Forest in Scotland do agree De verbo signif verbo Venison Charter of land Broke eodem titulo That which we call a Charter the Lombards in libris feudalibus call praeceptum praeceptionem Hotama verbo praeceptum in verbis feudalibus Of these Charters you have also along discourse in Fleta lib. 3. cap. 14. who expoundeth every substantial part of a deed of gift particularly in order Charter land terra per chartam is such as a man holdeth by Charter that is by evidence in writing otherwise called-Free hold anno 19 H. 7. cap. 13. and Kitchin fol. 86. and these in the Saxons time were wont to be called Bockland Idem fol. 89. and Lamberd in his explication of Saxon words verbo Terra ox Scripto which was held as he there saith with more commodious and easier conditions than Folkland was that is land held without writing And the season he giveth because that was haereditaria libera atque immunis whereas fundus sine scripto censum pensitab at annuum a que officiorum quadam servitute est obligatus Priorem viri plerumque nobiles atque ingenui posteriorem rustici ferè pagani possidebant Illam nos vulgò free-hold per chartam hanc ad voluntatem domini appellamus Thus farre M. Lamberd Charta partie charta partita is nothing but that which we call a pair of indentures containing the covenants and agreements made between Merchants or Sea-faring men touching their maritine affairs anno 32 H. 8. cap. 14. Chartis redd ndis is a Writ which lyeth against him that hath Charters of Feofment delivered him to be kept and refuseth to deliver them Old nat br fol. 66. Register orig fol. 159. Chase See Chace Chatel See Catel Chaunce medley Infortunium cometh of the French words chance i. lapsus and mester i. miscere It signifieth in our Common law the casual slaughter of a man not altogether without the fault of the slayer Stawnf pl. cor lib. 1. cap. 8. calleth it homicide by misadventure West calleth it Homicide mixt part 2. symbol titulo Indictments sect 50. and there defineth it thus Homicide mixt is when the killers ignorance or negligence is joyned with the chance as if a man lop trees by an high way side by which many usually travel and cast down a bow not giving warning to take
that attend in their course and have their dyet at the Secretaries table More largely you may read of their office in the statute made anno 27 H. 8. cap. 11. Clerk of the privy seal clericus privati sigilli is an officer whereof there be four of number that attendeth the Lord Keeper of the privy Seal or if there be none such upon the principal Secretary writing and making out all things that be sent by warrant from the Signer to the privy Seal and are to be passed to the great Seal as also to make out as they are tearmed privy Seals upon any special occasion of his Majesties affairs as for loan of money and such like Of this officer and his function you may read the statute an 27 H. 8. cap. 11. He that is in these dayes called the Lord Keeper of the privy Seal seemeth in antient time to have been called Clerk of the privy Seal and to have been reckoned in the number of the great officers of the realm Read the statute anno 12 R. 2. cap. 11. Clerk of the Juries or Jurata writs clericus Juratorum is an Officer belonging to the Court of the Common plees which maketh out the Writs called Habeas corpora and Distringas for appearance of the Jury either in Court or at the Assises after that the Jury or Panel is returned upon the Venire facias He entreth also into the Rolles the awarding of these Writs and maketh all the continuance from the going out of the Habeas corpora until the verdict be given Clerck of the Pipe clericus Pipae is an Officer in the Kings Exchequer who having all accounts and debts due to the King delivered and drawn out of the Remembrancers offices chargeth them down into the great Roll who also writeth summons to the Sheriff to levy the said debts upon the goods and cattels of the Debtours and if they have no goods then doth he draw them down to the Lord Treasurers Remembrancer to write extreats against their Lands The antient renew of the Crown remaineth in charge before him and he seeth the same answered by the Fermers and Sheriffs to the King He maketh a charge to all Sheriffs of their summons of the Pipe and Green wax and seeth it answered upon their accounts He hath the drawing and ingrossing of all leases of the Kings land Clerk of the Hamper or Hanaper clericus Hanaperii is an Officer in Chauncery anno 2 Edw. 4. cap. 1. otherwise called Warden of the Hamper in the same statute whose function is to receive all the money due to the Kings Majesty for the seals of Charters Patents Commissions and Writs as also fees due to the Officers for enrolling and examining the same with such like He is tied to attendance on the Lord Chauncellour or Lord Keeper daily in the Term time and at all times of sealing having with him leather bagges wherein are put all Charters c. after they be sealed by the Lord Chancellour and those bagges being sealed up with the Lord Chauncellours private Seal are to be delivered to the Controller of the Hamper who upon receipt of them doth as you shal read in his office This Hanaper representeth a shadow of that which the Romans tearmed Fiscum that contained the Emperors treasure Clerk of the Plees clericus placitorum is an Officer in the Exchequer in whose office all the Officers of the Court upon especial privilege belonging unto them ought to sue or to be sued upon any action Clerk of the Treasury clericus the saurariae is an Officer belonging to the Common plees who hath the charge of keeping the records of the Court and maketh out all the records of Nisi prius hath the fees due for all searches and hath the certifying of all records into the Kings Bench when a Writ of Error is brought and maketh out all Writs of Supersedeas de non molestando which are granted for the Defendants while the Writ of Error hangeth Also he maketh all Exemplifications of Records being in the Treasurie He is taken to be the servant of the chief Justice and removeable at his pleasure whereas all other Officers are for tearm of life There is also a Secundary or Under-Clerk of the Treasurie for assistance which hath some allowances There is likewise an Underkeeper who alway keepeth one key of the Treasury door and the chief Clerk of the Secundary an other so the one cannot come in without the other Clerk of Essoines clericus essoniorum is an Officer belonging to the Court of Common plees who onely keepeth the Essoins rolle and hath for entring every essoin six pence and for every exception to barr the essoin in case where the party hath omitted his time six pence He hath also the providing of parchment and cutting it out into rolls and marking the numbers upon them and the delivery out of all the rolles to every Officer and the receiving of them again when they be written and the binding and making up of the whole bundles of every term and this he doth as servant to the chief Justice For the chief Justice is at charge for all the parchment of all the rolles Clerk of the outlawries clericus utlagariarum is an Officer belonging to the Court of Common plees being onely the servant or Deputy to the Kings Atturny general for making out the writs of capias utlagaâ—um after outlawry And the Kings Atturnies name is to every one of those writs And whereas seven pence is payd for the Seal of every other writ betwixt party and party there is but a penny payd for the Seal of this writ because it goeth out at the Kings sute Clerk of the sewers clericus suerarum is an officer appertaining to the Commissioners of sewers writing all things that they do by vertue of their commission for the which see Sewers and see the statute of anno 13 Elizab. cap. 9. Clerk controller of the Kings house whereof there be two is an officer in Court that hath place and seat in the Counting-house and authority to allow or disallow the charges and demands of persuivants or messengers of the Green cloath purveyours or other like He hath also the oversight and controlling of al defaults defects and miscarriages of any the inferiour officers and to sit in the Counting-house with the superior officers viz. the Lord Steward Treasurer Controller and Cofferer either for correcting or bettering things out of order and also for bringing in Countrey provision requisite for the Kings houshold and the censure for failing of carriages and carts warned and charged for that purpose This Officer you have mentioned an 33 H. 8. cap. 12. Clerk of the Nihils clericus Nihilorum is an officer in the Exchequer that maketh a roll of all such summes as are nihiled by the Sheriffs upon their estreats of green wax and delivereth the same into the lord Treasurers Remembrancer his office to have execution done upon it for the King Clerk of the check
is an officer in Court so called because he hath the check and controllement of the yeomen of the Gard and all other ordinary yeomen or huissiers belonging either to his Majesty the Queen or Prince either giving leave or allowing their absences or defects in attendance or diminishing their wages for the same He also nightly by himself or Deputy taketh the view of those that are to watch in the Court and hath the setting of the watch This officer is mentioned anno 33 Henric. 8. cap. 12. Clerk Marshal of the Kings house seemeth to be an Officer that attendeth the Marshall in his Court and recordeth all his proceedings anno 33 Henr. 8. cap. 12. Clothe of Raye an 27 E. 3 stat 1. cap. 4. Closhe is an unlawful game forbidden by the the statute anno 17 E. 4. cap. 3. which is casting of a bowl at nine pinnes of wood or nine shank bones of an ox or horse Clove is the 32 part of a weigh of cheese i. eight pound anno 9 H. 6. cap. 8. Cloves caryophilli are a spice known by sight to every man They are flowers of a tree called caryophillus gathered and hardned by the Sun Of their nature you may read in Gerards Herbal lib. 3. cap. 144. This is comprised among such spices as be to be garbled an 1 Jacob. c. 19. CO Cocket cockettum is a seal appertaining to the Kings Custome-house Regist orig fol. 192 a. and also a scrow of parchment sealed and delivered by the officers of the Custome-house to Merchants as a warrant that their merchandise be customed anno 11 H. 6. cap. 16. which parchment is otherwise called literae de coketto or literae testimoniales de coketto Regist. ubi supr fol. 179 a. So is the word used anno 5 6 Edw. 6. cap. 14. an 14 Edw. 3. stat 1. c. 21. This word is also used for a distinction of bread in the statutes of bread and ale made anno 51 H. 3. where you have mention of bread coket wastelbread bread of trete and bread of Common wheat Coferer of the Kings houshold is a principal officer of his Majesties Court next under the controller that in the Counting-house and elsewhere at other times hath a special charge and oversight of other officers of the houshold for their good demeanour and carriage in their offices to all which one and other being either Sergeants Yeomen Grooms Pages or children of the kitchin or any other in any room of his Majesties servants of houshold and payeth their wages This officer is mentioned an 39 Eliz. cap. 7. Cogs anno 23 H. 8. cap. 18. Conisor of a fine is he that passeth or acknowledgeth a fine in Lands or Tenements to another Cognisee is he to whom the fine is acknowledged West parte 2. symbol tit Fines sect 2. Cognizance cometh from the French cognisance id est intelligentia intellectus notio cognitio with us it is used diversly sometime signifying a badge of a serving-mans sleeve whereby he is discerned to belong to this or that Noble or Gentleman sometime an acknowledgement of a fine or confession of a thing done as cognoscens latro Bracton lib. 3. tract 2. cap. 3.20 32. cognoscere se ad villanum Idem lib. 4. tract 3. cap. 16. As also to make cognisance of taking a distresse sometime as an audience or hearing of a matter judicially as to take cognisance sometime a power or jurisdiction as cognisance of plee is an ability to call a cause or plee out of another Court which no man can do but the King except he can shew Charters for it Manwood parte 1. of his Forest laws pag. 68. See the new Termes of the Law and the new book of Entries verbo Conusance Cognatione see Cosenage Cognisour see Conisour Cognitionibus mittendis is a Writ to a Justice or other that hath power to take a Fine who having taken acknowledgement of a Fine deferreth to certifie it into the Court of Common plees commanding him to certifie it Reg. orig 68. b. Coin cuneus vel cuna seemeth to come from the French coin id est Angulus which probably verifieth the opinion of such as do hold the ancientest sort of Coyn to be cornered and not round Of this Lawyers substantive cuna commeth the Lawyers verb cunare i. to coyn Cromtons Justice of peace fol. 220. Coliander seed or rather coriander seed Semen coriandri is the seed of an hearb so called medicinable and wholesome for divers goo◠purposes which see in Gerards Herbal l. 2. cap. 379. It is numbered among the drugges that be to be garbled an 1 Jacob. cap. 19. Collaterall collateralis commeth of the Latine Laterale id est that which hangeth by the side Lateralia viatoria π. de lega fidelium tertio l. 102. seem to signifie a budget or cap-case to hang by a saddel pomel Collaterall is used in the Common law for that which commeth in or is adhering of the side as collaterall assurance is that which is made over and beside the deed it self For example if a man covenant with another and enter bond for the performance of his covenant the bond is termed collaterall assurance because it is externall and without the nature and essence of the covenant And Crompt Jurisd fol. 185. sayeth that to be subject to the fee ding of the Kings Deer is collaterall to the spoyl within the Forest in the like manner may we say That the liberty to pitch booths or standings for a Fair in another mans ground is collaterall to the ground The private woods of a Common person within a Forest may not bee cut without the Kings licence For it is a prerogative collaterall to to the soil Manwood parte 1. of his Forest laws p. 66. Collaterall warranty see Warranty Collation of benefice collatio beneficii signifieth properly the bestowing of a Benefice by the Bishop that hath it in his own gift or patronage and differeth from Institution in this for that institution into a benefice is performed by the Bishop at the motion or presentation of another who is patron of the same or hath the Patrons right for the time Extra de institutionibus De concessione praebendarum c. And yet is collation used for presentation anno 25 Edw. 3. stat 6. Collatione fact a uni post mortem alterius c. is a writ directed to the Justices of the Common Plees commanding them to direct their writ to a Bishop for the admitting of a Clerk in the place of another presented by the King that during the sute between the King and the Bishops Clerk is departed For judgment once passed for the Kings Clerk and he dying before he be admitted the king may bestow his presentation upon another Regist orig fol. 31. b. Collatione heremitagii is a writ whereby the king conferreth the keeping of an Ermitage upon a Clerk Register orig fol. 303 308. Colour color signifieth in the Common law a probable plee but in truth
possession Conspiracie conspiratio though both in Latine and French it be used for an agreement of men to do any thing either good or bad yet in our Lawyers books it is alway taken in the evil part It is defined anno 34 Ed. pri stat 2. to be an agreement of such as do confeder and bind themselves by oath covenant or other aliance that every of them shall bear and ayde the other falsly and maliciously to indite or falsly to move or maintain Plees and also such as cause children within age to appeal men of Felonie whereby they are imprisoned and fore grieved and such as retain men in the Countries with liveries or fees to maintain their malicious enterprises And this extendeth as well to the takets as to the givers And Stewards and Bayliffes of great Lords which by their seignorie office or power undertake to bear or maintain quarrels plees or debates that concern other parties than such as touch the estate of their Lords or themselves anno 4 Ed. 3. cap. 11. anno 3 H. 7. cap. 13. and of this see more anno 1 H. 5. cap. 3. an 18 H. 6. cap. 12. as also in the new book of Entries ver Conspiraey Conspiracie in the places before mentioned is taken more generally is confounded with maintenance and champerty But in a more special signification it is taken for a confederacie of two at the least falsely to endict one or to procure one to be endicted of Felony And the punishment of Conspiracy upon an Indictment of Felony at the Kings sute is that the party attainted leese his frank law to the intent that he be not empaneld upon Juries or Assises or such like éploiments for the testifying of truth And if he have to do in the Kings Court that he make his Atturney and that his lands goods and chattels be seised into the Kings hands his Lands estreaped if he find no better favour his trees raced and his body committed to prison 27 lib. assis 59. Cromptons Justice of Peace fol. 156. b. This is called villanous judgement or punishment See Villanous judgement But if the partie grieved sue upon the Writ of conspiracy then see Fitzh nat br fol. 114. D. 115. I. Conspiracie may be also in cases of lesse weight Idem fol. 116. A. c. See Frank Law Conspiratione is a Writ that lyeth against conspiratours Fitz. nat br fol. 114. d. Cromptons Jurisd fol. 209. See also the Register fol. 134. Constable constabularius vel Conestabulis is a Saxon word compounded of cuning or cyng and staple which do signiffe the stay and hold of the King Lamb. duties of Constables num 4. But I have heard it made heretofore of these two words comes stabuli which seemeth to me the more probable because we have this Officer from France as most others and not from the Saxons And Tilius in his Commentaries de rebus Gallicis li. 2. c. de conistabili hath the same etymologie giving the reason thereof quia praeest stabulo i. equili regis which office is ancient here in England and mentioned by Bracton seeming to answer him that was called tribunus celerum under the first Kings of Rome and Magister equitum afterward The Germans that inhabite the side of the river Rhene note him by this title die constofler and in counterfeit Latine constofelerus and in older time constafolarius that the Romans were wont to tearm assessorem judicii And as Spiegelius in his Lexicon noreth derive the word à stafolo comitis i. gradu Judicis fiscalis For staffel in their language as he saith signifieth a grees or step of a pair of stairs And thereupon stafelstein being a word used in their very ancient writings signifieth as much as Praetorium But a man many times may shew in this kind more curiosity than discretion as perhaps some will judge me here to have done And therefore enough of this This word is diversly used in our Common law first for the Constable of England who is also called Marshall Stawnâ—â— pl. cor fol. 65. Of whose great dignity and authority a man may find many arguments and signes both in the Statutes and Chronicles of this Realm His sway consisteth in the care of the common peace of the Land in deeds of arms and matters of wars Lamb. ubi supra with whom agreeth the statut anno 13 R. 2. cap. 2. statut 1. Smith de Repub. Anglo lib. 2. cap. 25. Of this Officer or Magistrate M. Gwin in the Preface to his Reading saith to this effect The Court of the Constable and Marshal determineth contracts touching deeds of arms tout of the Realm and handleth things concerning warrs within the Realm as Combats blasons of armory c. But it may not deal with battel in appeals nor generally with any other thing that may be tryed by the Law of the Land And read Fortescue c. 32. This office was belonging heretofore to the Lords of certain mannors jure feudi why it is discontinued see Dyer f. 258. nu 39. Out of this high magistracie saith M. Lamberd were drawn these lower Constables which we calâ—oÌ„stables of Hundreds and franchises and first ordained by the Statute of Winchester anno 13 Ed. 1. which appointeth for the conservation of the peace and view of armour two Constables in every Hundred and franchise which in Latine are called constabularii capitales And these be now a dayes called high Constables because continuance of time and increase both of people and offences hath again under these made others in every Town called petit Constables in Latine subconstabularios which are of like nature but of inferiour authority to the other as you may read at large in that learned mans Treatise before named Of these also read S. Thomas Smith lib. 2. cap. 22. Beside these there be officers of particular places called by this name as Constable of the Tower Stawnf pl. cor fol. 152. anno 1 H. 4. cap. 13. Stows annals pa. 812. jurisdict fol. 132. Constable of the Exchequer anno 51 H. 3. statute 5. Constable of Dover Castle Camdeni Britan. pag. 239. Fitzh nat br fol. 240. otherwise called castellane West i. cap. 7. anno 3 Ed. 1. But these be castellani properly as Master Lamberd noteth though conjoyned in name with the others See the Statute anno 32 H. 8. cap. 38. M. Manwood parte prima c. 13. of his Forest laws maketh mention of a Constable of the Forest Consuetudinibus servitiis is a Writ of right close which lyeth against the Tenant that deforceth his Lord of the rent or service due unto him Of this see more at large the Old nat br fol. 77. Fitzh eodem fol. 151. and the Register orig fol. 159. Consultation consultatio is a Writ whereby a cause being formerly removed by prohibition from the Ecclesiastical Court or Court Christian to the Kings Court is returned thither again For the Judges of the Kings Court if upon comparing the libel with
anno 35. H. 8. cap. 26. and the County of Litchfield Cromptons Justice of peace fo 59. a. County is in another signification used for the Countie court which the Sheriff keepeth every month within his charge either by himself or his Deputy anno 2. Ed. 6. ca. 25. Crompt Juris f. 221. Bract. li. 3. c. 7. l. 3. tract 2. cap. 12. Of these Counties or Shires one with another there are reckoned in England 37. beside twelve in Wales The word comitatus is also used for a jurisdiction or territory among the Feudists County court curia comitatus by M. Lamberd is otherwise called conventus in his explication of Saxon words divided into two sorts one retaining the geneeal name as the County-court held every moneth by the Shiereve or his Deputy the under Sheriff wherof you may read in Crompt jurisd f. 231. the other called the Turn held twice every year which see more at large in his place and Cromptons Jurisd fol. 231. This County court had in antient times the cognition of these and other great matters as may appear by Glanvile lib. 1. cap. 2.3.4 by Bracton and Britton in divers places and by Pleta lib 2. cap. 62. But was abridged by the Statute of Magna charta cap. 17. and much more by 1 Ed. 4. cap. unico It had also and hath the determination of certain trespasses and debts under forty shillings Britton cap. 27 28. what manner of proceeding was of old used in this Court see Fleta ubi supra Coursitour See Cursetour Court curia cometh of the French court which signifieth the Kings Palace or Mansion as curtis doth among the Lombards All these spring of the Latine curia which signifieth one of thirty parts into which Romulus divided the whole number of the Romans sometime also the Senat-house as appeareth by Tully in his Offices nihil est quod dignum nobis aut in foro aut in curta agere possumus which in his oration pro Milone he calleth Templum sanctitatis amplitudinis mentis consilii publici caput urbis c. Court with us signifieth diversly as the House where presently the King remaineth with his ordinary retinue and also the place where Justice is judicially ministred of which you find 32 several sâ—rts in M. Cromptons book of Jurisdictions well described And of them most be courts of record some be not and therefore are accounted base Courts in comparison of the rest Beside these also there are Courts Christian Smith de Repnb Anglor lib. 3. cap. 6. which are so called because they handle matters especially appertaining to Christianity and such as without good knowledg in Divinity cannot be well judged of being held heretofore by Archbishops and Bishops as from the Pope of Rome because he chalenged the superiority in all causes spiritual but sithence his ejection they hold them by the Kings authority virtute magistratus sui as the Admiral of England doth his Court Whereupon it proceedeth that they send out their precepts in their own names and not in the Kings as the Justices of the Kings Courts do And therefore as the appeal from these Courts did lye to Rome now by the statute anno 25 H. 8. cap. 19. it lieth to the King in his Chancerie Court baron curia baronis is a Court that every Lord of a manor which in ancient times were called Barons hath within his own precincts Barons in other Nations have great Territories and jurisdiction from their Soveraignes as may be proved out of Cassanaeus de gloria mundi part 5. consideratio 56. by Vincentius de Franchis descis 211. and many others Bu here in England what they be and have been heretofore see in Baron Of this Court Baron you may read your fill in Kitchin that writeth a large Book of it and of a Court Leet Sir Edward Coke in his fourth Book of Reports amongst his Copy-hold cases fol. 26. b. saith that this Court is two after a sort and therefore if a man having a mannor in a Town and do graunt the inheritance of the Copy-holders thereunto belonging unto another this grantee may keep a Court for the customarie Tenants and accept surrenders to the use of others and make both admittances and graunts the other Court is of Free-holders which is properly called the Court Baron wherein the suters that is the Free-holders be Judges whereas of the other the Lord or his Steward is Judge Court of Pypowders See Pie-powders Court of Requests curia requestarum is a Court of equity of the same nature with the Chancerie principally instituted for the help of such petitioners as in conscionable cases deal by supplication with his Majestie This Court as M. Gwin saith in the Preface to his Readings had beginning from Commission first granted by Henry the eighth to the Masters of Requests whereas before that time by his opinion they had no warrant of ordinary jurisdiction but travelled between the King and the Petitioner by direction from the Kings mouth But Sir Julius Caesar in a Tractate of his painfully and very judiciously gathered from the Records of the same Court plainly sheweth that this Court was 9 Henrici septimi though then following the King and not setled in any certain place neither swayed particularly by the Masters of Requests as now it is but more at large by others of the Kings most Honourable Councel whom he pleased to employ in this service For page 148. of the said Tractate you have the form of the oath then ministred to those that were Judges in this Court and à pag. pri usque ad pag. 46. causes of divers natures which in the said Kings dayes were there handled and adjudged This Court as that right honourable and Learned Knight in a Brief of his upon the same Court plainly proveth was and is parcel of the Kings most honoutable Councel and so alwayes called and esteemed The Judges thereof were alwayes of the Kings most Honourable Councel appointed by the King to keep his Councel board The keeping of this Court was never tyed to any place certain but onely where the Counsel sate the suters were to attend But now of late for the ease of suters it hath been kept in the White-Hall at Westminster and onely in Term time It is a Court of Record wherein Recognizances are also taken by the Kings Councel The form of proceeding in this Court was altogether according to the processe of summarie causes in the Civil Law The persons Plaintiffs and Defendants were alwayes either privileged as officers of the Court or their servants or as the Kings servants or as necessary Attendants of them or else where the Plaintiffs poverty or mean estate was not matchable with the wealth or greatnesse of the Defendant or where the cause meerly contained matter of Equity and had no proper remedie at the Common law or where it was specially recommended from the King to the Examination of his Councel or concerned Universities Colleges Hospitals
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
the Heir of him that holdeth Land of the Crown either by Knights service or in soccage and dyeth be he under or at full age directed to the Escheatour of the County for inquiry to be made by him of what estate the deceased party was seised who is next heir unto him and of what value the Land is The form thereof and other circumstances you may learn in Fitz. nat br fol. 251. Dyer was a learned Lawyer and Lord Chief Justice of the Common Plees in the dayes of Queen Elizabeth who writ a Book of great account called his Commentaries or Reports Dies datus is a respight given to the Tenant or Defendant before the Court Brook tisulo Continuance Dicker of Leather is a quantity consisting of ten hides The name may seem to come from the Greek Decas which is also a Latine word signifying ten in number Diguity Ecclesiastical dignitas Ecclesiaâ—tica is mentioned in the statute anno 26 H. 8. cap. 3. and is by the Canonists defined to be administratio cum jurisdictione potestate te aliquae conjuncta Glos in cap. 1. de consuct in sexte whereof you may read divers examples in Duarynus de sacris Eccles minist benefic lib. 2. cap. 6. Dioces diocesis is a Greek word compounded of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and signifieth with us the circuit of every Bishops Jurisdiction For this Realm hath two sorts of divisions one into Shires or Counties in respect of temporal policy another into Diocesses in respect of Jurisdiction Ecclesiasticall Diet a rationabilis is in Bracton used for a reasonable dayes journey lib. 3. parte 2. cap. 16. It hath in the Civil Law divers other significations not needful here to be set down v. vocab utriusque juris Dimibaque See Haque Disalt signifieth as much as to disable Litleton in his Chapter of Discontinuance Disceite See Deceit and deceptione See the new book Entrie verbo Disceit Discent Discensus in the French Descents signifieth in the Common law an order or means whereby Lands or Tenements are derived unto any man from his Ancestors as to makehis discent from his Ancestors Old nat br f. 101. is to shew how and by what degrees the Land in question came to him from his Ancestors as first from his great Grandfather to his Grandfather from his Grandfather to his Father and so to him Or in such other like sort This discent is either lineal or collateral Lineal Discent is conveyed downward in a right line from the Grandfather to the Father and from the Father to the Son and from the Son to the Nephew c. Collateral discent is springing out of the side of the whole blood as Grandfathers brother Fathers brother c. See the new Tearms of Law Disclamer Disclamium is a Plee containing an expresse denial or refusal as if the Tenant sue a Replevin upon a Distresse taken by the Lord and the Lord avow the taking of the distresse saying that he holdeth of him as of his Lord and that he distremed for rent not payd or service not performed then the Tenant denying himself to hold of such Lord is said to Disclaim and the Lord proving the Tenant to hold of him the Tenant leeleth his Land Terms of Law Of this see Skene de verb. fignif verbo Disclamation Also if a man denie himself to be of the blood or kindred of another in his Plee he is said to disclaim his blood Fitzh nat br fol. 197. G. See Brook titulo Diselamer If a man arraigned of Felony do disclaim goods being cleered he leeseth them Stawnf pl. cor fol. 186. See the new book of Entries verbo Disclamer Discontinuance Discontinuatio cometh of the French Discontinuer i. cessare intermittere and signifieth in the Common law nothing else but an interruption of breaking off as discontinuance of possession or discontinuance of proces And the large discourse that Litleton hath about this Discontinuance is rather to shew cases wherein it is or wherein it is not than to define the thing The effect of Discontinuance of possession is this that a man may not enter upon his own Land or Tenement alienated whatsoever his right be unto it of his own self or by his own authority but must bring his Writ and seek to recover possession by Law Examples you may have store in his Tearms of Law verbo Discontinuance And in Litleton codem capite with whom agreeth another in these words But Discontinuance of Possession is indeed an impediment to a man for entring into his own Land or Tenements caused by the fact of one that alienated them contrary to right and gave Livery and Seisin of them whereby the true owner is left only to his action See the new Tearms of Law and the Institutes of the Common law cap. 43. and see S. Ed. Cokes Reports lib. 3. the Case of Fines fol. 85. b. The effect of Discontinuance of Plee is that the instance is fallen and may not be taken up again but by a new Writ to begin the Sute a fresh For to be discontinued to be put without day is all one and nothing else but finally to be dismissed the Court of that instance West parte 2. Symbol tit Fines sect 115. So Crompton in his divers Jurisdictions fol. 131. useth it in these words If a Justice seat be discontinued by the not coming of the Justices the King may renew the same by his Writ c. In this signification Fitzherb in his nat br useth the word divers times as discontinuance of Corody fol. 193. A. To discontinue the right of his wise fol. 191. L. 193. L. Discontinuance of an assise fol. 182. D. 187. B. Disgrading Degradatis is the punishment of a Clerk that being delivered to his Ordinaty cannot purge himself of the offence whereof he was convicted by the Juryâ— and is nothing but the privation of him from those orders of Clerkship that he had as Priesthood Deaconship c. Slâ—â—f 〈…〉 138. There is likewise â—isgrading of a Knight Stowes Annals pag. 855. And it is not to be omitted that by the Canon Law there be two forte of disgrading one summary by word onely and another solemn by devesting the party degraded of those Ornaments and Rites which be the ensighes of his Order or Degree Dismes Decimes is made of the French Decimes and signifieth Tithe or the tenth part of all the fruits either of the earth or beasts or our labour due unto God and so consequently to him that is of the Lords lot and had his share viz. our Pastour It signifieth also the Tenths also of all spititual livings yearly given to the Prince called a perpetuar Dismo anno 2. 3. Edwar. 6. cap. 35. which in ancient times were paid to the Pope until Pope Urbane gave them to Richard the second to aid him against Charles the French King and those other that upheld Clement the seventh against him Polidor Vâ—igil Angl. hist
viderum partes infidelium minusque legem Mahometi noverunt sed sunt ferè omnes Itali male habituati ex rebus furtivis vivunt ac fraudulent is earum permutationibus ludis in quibus ut plurimum fraudes committunt sunt baptizati EI Ejectione custodiae Ejectment de gard is a Writ which lyeth properly against him that casteth our the Gardian from any land during the minority of the Heir Regist orig fol. 162. Fizth nat br fol. 139. Terms of the Law verbo Gard. There be two other writs not unlike this the one is termed Droit de gard or right of guard the other Ravishment de guard Which see in their places Ejectione firmae is a Writ which lyeth for the Lessee for term of years that is cast out before the expiration of his term either by the leassour or a stranger Regist. fol. 227. Fitzh nat br fol. 220. See Quare ejecit infra terminum See the new book of Entries verbo Ejectione firmo Einecia is borrowed of the French Aisne i. primogenitus and signifieth in our Common law Eldership Statute of Ireland anno 14 Hen. 3. Of this see M. Skene de verb. signif verbo Eneya Eire alias Eyre Iter. Bract. lib. 3. c. 11. in Rubrica cometh of the old French word Erre i. iter as à grand erre i. magnis â—ineribus It signifieth in Britton cap. 2. the Court of Justices Itinerants and Justices in Eyre are those onely which Bracton in many places calleth Justiciarios itinerantes of the Eyre read Britton ubi supra who expresseth the whole course of it And Bracton lib. 3. tractat 2. cap. 1. 2. The Eyre also of the Forrest is nothing but the Justice Seat otherwise called which is or should by ancient custome he held every three year by the Justices of the Forrest journying up and down to that purpose Cromptons Jurisd fol. 156. Manwood parte prima of of his Forrest laws pag. 121. See Justice in Eyr Read Skeâ—e de verborum significa verbo Iter whereby as by many other places you may see great affinity between these two Kingdomes in the administration of Justice and Government EL Election de Clerk Electione clerici is a Writ that lyeth for the choice of a Clerk assigned to take and make bonds called statute Merchant and is granted out of the Chancery upon suggestion made that the Clerk formerly assigned is gone to dwell in another place or hath hinderance to let him from following that businesse or hath not land sufficient to answer his transgression if he should deal amisse c. Fitzh na br fol. 164. Elegit is a Writ judicial and lyeth for him that hath recovered debt or dammages in the Kings Court against one not able in his goods to satisfie and directed to the Sheriff commanding him that he make delivery of half the parties lands or tenements and all his goods Oxen and Beasts for the Plough excepted Old nat br fol. 152. Regist orig fol. 299. 301. and the table of the Register Judicial which expresseth divers uses of this Writ The author of the new Terms of Law saith that this Writ should be sued within the year whom read at large for the use of the same Elk a kinde of Ewe to make Bowes of anno 33 H. 8. cap. 9. EM Empanel Impanellare Ponere in assisis Juratis cometh of the French Panne i. Pellis or of Panneau which signifieth sometime as much as a Pane with us as a Pane of glasse or of a window It signifieth the writing and entring the names of a Jury into a parchment Shedule or Roll or Paper by the Sheriff which he hath summoned to appear for the performance of such publike service as Juries are imployed in See Panel Emparlance cometh of the French Parler and signifieth in our Common law a desire or petition in Court of a day to pause what is best to do The Civilians call it petitionem induciarum Kitchin fol. 200. interpreteth it in these words If he imparl or pray continuance For praying continuance is spoken interpretative in that place as I take it The same Author maketh mention of Emparlance general fol. 201. and Emparlance special fol. 200. Emparlance general seemeth to be that which is made onely in one word and in general terms Emparlance special where the party requireth a day to deliberate adding also these words Salvis omnibus advantagiis tam ad jurisdictionem Curia quà m ad breve narrationem or such like Britton useth it for the conference of a Jury upon the cause committed unto them cap. 53. See Imparlance Emprovement See Improvement EN Encheson An. 50. Ed. 3. cap. 3. is a French word signifying as much as occasion cause or reason wherefore any thing is done See Skene de verbo significat verbo Encheson Encroachment or Accrochment cometh of the French Accrocher i. apprehendere inuncare harpagare and that cometh of Crochure i. aduncitas or crochu i. aduncus Encrochment in our Common law signifieth an unlawful gathering in upon another man For example if two mens grounds lying together the one presseth too far upon the other or if a Tenant owe two shillings rent service to the Lord and the Lord taketh three So Hugh and Hugh Spencer encroched unto them royal power and authority anno prim Ed. 3. in prooem Enditement Indictamentum cometh of the French Enditer i. deferre nomen alicujus indicare or from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because M. Lamberd will have it so Eirenar l.b. 4. cap. 5. pag. 468. It signifieth in our Common law as much as Accusatio in the Civil Law though it have not in all points the like effect West part 2. symb titulo Inditements defineth it thus An Inditement is a Bill or Declaration made in form of Law for the benefit of the Common-wealth of an accusation for some offence either criminal or penal exhibited unto Jurours and by their Verdict found and presented to be true before an Officer having power to punish the same offence It is an accusation because the Jury that inquireth of the offence doth not receive it until the party that offereth the Bill appear so farre in it as to subscribe his name and offereth his oath for the truth thereof It differeth from an Accusation in this that the preferrer of the Bill is no way tyed to the proof thereof upon any penalty if it be not pround except there appear conspiracy Wherefore though moved by M. Wests authority I call it an Accusation yet I take it to be rather Denunciatio because it is office done by the great Enquest rather that of a free intent to accuse Of this you may read S. Tho. Smith de Repup Anglor lib. 2. cap. 19. and Stawnf pl. cor lib. 2. cap. 23 24 25 26 c. Usque 34. and M. Lamberds Eirenarcha lib. 4. cap. 5. whence you may receive good satisfaction in this matter Endowment dotatio cometh of the French Doüaire and lignifieth
the least in law unto the Cognizee so that he needeth no writ of Habere facias seisinam for the execution of the same but may enter of which sort is a fine sur cognizance de droit come ceo que il ad de son done that is upon acknowledgement that the thing mentioned in the concord be jus ipsius cognizati ut illa quae idem habet de dono Cognitoris West Sect. 51. K. and the reason of this seemeth to be because this fine passeth by way of release of that thing which the cognizee hath already at the least by supposition by vertue of a former gift of the Cognizor Cokes Reports lib. 3. the case of sines fol. 89. b. which is in very deed the surest fine of all Fines executorie be such as of their own force do not execute the possession in the Cognizees as fines sur cognizance de droit tantùm fines sur done grant release confirmation or render For if such fines be not levied or such render made unto them that be in possession at the time of the fines levied the cognizees must needs sue Writs of Habere facias seisinam according to their several cases for the obtaining of their possessions except at the levying of such executory fines the parties unto whom the estate is by them limited be in possession of the lan is passed thereby for in this case such fines do inure by way of extinguishment of right nor altering the estate of possession of the Cognizee but perchance bettering it West ubi supra sect 20. Touching the form of these Fines it is to be considered upon what Writ or Action the concord is to be made and that is most commonly upon a Writ of Covenant and then first there must passe a payr of Indentures between the Cognizour and Cognizee whereby the Cognizour covenanteth with the Cognizee to passe a Fine unto him of such or such things by a day set down And these Indentures as they are first in this proceeding so are they said to lead the Fine upon this Covenant the Writ of Covenant is brought by the Cognizee against the Cognizour who thereupon yeeldeth to passe the Fine before the Judge and so the acknowledgement being recorded the Cognizour and his Heirs are presently concluded and all strangers not excepted after five years once passed If the Writ whereupon the Fine is grounded be not a Writ of Covenant but of Warrantia chartae or a Writ of right or a Writ of mesn or a Writ of Custome and Services for all these Fines may also be founded West ubi supra sect 23. then this form is observed the Writ is served upon the party that is to acknowledge the Fine and then he appearing doth accordingly See Dyer fol. 179. num 46. This word Fine sometime signifieth a sum of money payd for an In-come to Lands or Tenements let by Lease sometime an amends pecuniary punishment or recompense upon an offence committed against the King and his Laws or a Lord of a Mannor In which case a man is said facere finem de transgressione cum Rege c. Register Jud. fol. 25. a. and of the diversity of these Fines with other maâ—ter worth the learning see Cromptons Justice of peace fol. 141. b. 143.144 and Lamberds Eirenarcha libr. 4. cap. 16. pag. 555. But in all these diversity of uses it hath but one signification and that is a final conclusion or end of differences between parties And in this last sense wherein it is used for the ending and remission of an offence Bracton hath it lib. 2. cap. 15. num 8. speaking of a Common fine that the County payeth to the King for false judgements or other trespasses which is to be assessed by the Justices in Eyr before their departure by the oath of Knights and other good men upon such as ought to pay it with whom agreeth the Statute anno 3 Ed. pri cap. 18. There is also a Common fine in Leets See Kitchin fol. 13. a. v. Common Fine See Fleta lib. 1. cap. 48. Fines pro licentia concordandi anno 21 H. 8. cap. 1. See Fine Fine force seemeth to come of the French Adjective fin and the substantive force i. vis The adjective fin signifieth sometime as much as crafty wily or subtil sometime as much as artificial curious singular exact or perfect as Rien contrefaâ—ct fin i. nihil simulatum aut ad imitationem alterius expressum potest esse exactum vel ita absolutum quin reprehensionem vel offensionem incurrat as it is set down in that work truly regal intituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pag. 115. so that this fine force with us seemeth to signifie an absolute necessity or constraint not avoidable and in this sense it is used Old nat br fol. 78. and in the statute anno 35 H. 8. cap. 12. in Perkins Dower fol. 321. and Plowden fol. 94. Coke vol. 6. fol. 111. a. Fine adnullando levato de tenemento quod fuit de antiquo dominico is a Writ to Justices for the disanulling of a fine levied of lands holden in ancient demesn to the prejudice of the Lord Regist orig fol. 15. b. Fine capiendo pro terris c. is a Writ lying for one that upon conviction by a Jury having his lands and goods taken into the Kings hand and his body committed to prison obtaineth favour for a sum of money c. to be remitted his imprisonment and his lands and goods to be re-delivered unto him Reg. orig fol. 142. a. Fine levando de tenementis tentis de Rege in capite c. is a Writ directed to the Justices of the common plees whereby to license them to admit of a fine for the sale land holding in capite Reg. orig fol. 167. a. Fine non capiendo pro pulchre placitando is a Writ to inhibit officers of Courts to take fines for fair pleading Reg. orig fol. 179. See pleder Fine pro redisseisina capienda c. is a Writ that lieth for the release of one laid in prison for a re-disseisin upon a reasonable fine Reg. original fol. 222. Finarie See Blomarie Finours of gold and silver be those that purifie and part those Merals from other coarâ—er by fire and water anno 4 H. 7. cap. 2. They be also called Patters in the same place sometime Departers Fire-bote for the composition look Hay-boot It signifieth allowance or Estovers of Woods to maintain competent fire for the use of the Tenent First fruits primitiae are the profits of every Spiritual living for one year given in ancient time to the Pope throughout all Christendom but by the statute an 26 H. 8. cap. 3. translated to the Prince for the ordering whereof there was a Court erected anno 32 H. 8. cap. 45. but this Court was dissolved anno pri Mar. sess 2. cap. 10. and sithence that time though those profits be reduced again to the Crown by the Statute anno 1 Eliz. cap. 4. yet
2. 14. Forein answer that is such an answer as is not triable in the County where it is made an 15. Han. 6. ca. 5. Forein service forinsecum servitium that is such service whereby a mean Lord holdeth over of another without the compasie of his own fee. Brokeâ—titulo Tenurâ—â— fo 251. num 12. et 28. et Kitchin fol. 209. or else that which a Tenent performeth either to his own Lord or to the Lord paramount one of the fee. For of these services Bracton speaketh thus lib. 2. cap. 16. nâ— 7. Item suâ—t quedam forvitia quae dicuntur forinsoca 〈◊〉 sunt in charta de feoff mento expressa et nominata et quae ideo dici possut forinfeca quia perti nent ad Dominum Râ—gem et non ad Dominum capitalem nisi cum in propria persona profectus fuerit in serviâ—iâ— volnisi cum pro servitio suo satisfecerit domina Regi quocuâ— que modo et fiunt 〈◊〉 certis temporibus cum casus et necessitas eveneâ—it et varia habent nomina et divorsa Quandoâ— enim vominantur foriâ—sâ—â—a Largè sumpto vocabitlo quo ad sorvitium Domint Regis quandoque scutaginm quandoque servitium Domini Regis et ideo forinsecum dici potest quia st at capitur foris sive extra servitium quod fit Domino capitali v. Brooke Tavuras 28.95 Fore in service seemeth to be Knights service or Esâ—uage uncertain Pâ—rkins Reservation 650. Forein attachment Attachiamentum forinsoeum is an attachment of foreiners goods found within a Liberty or City for the satisfaction of some Citised to whom the said foreiner oweth money Forein apposer forinsecarum oppositor is an officer in the Exchequer to whom all Sheriffs and Bayliffs doe repair by him to be opposed of their green waxe and from thence draweth down a charge upon the Sheriff and Bayliff to the Clerk or the pipe Forest foresta is a French word signifying a great or vast wood Lieu forestier et sauvage locus-sylvestris et saltuosus The writers upon the Common law define it thus Foresta est locus ubi ferae inhabitant vel includuntur Gloss in ca. cum dilecti extra de donatio et Felinus in cap. Rodulphus versu quid antem foresta extra de rescriptis speaketh to the same effect Some other writers doe say it is called foresta quasi ferarum statio vel tuta mansio ferarum But as it is taken with us M. Manwood in his second part of Forest Lawes ca. 1. nu 1. thus defineth it A forest is a certain territory of woody grounds and fruitfull pastures privileged for wilde beasts and fouls of forest chase and warren to rest and abide in in the safe protection of the King for his princely delight and pleasure which territory of ground so privlieged is meered and bounded with unremoveable markes meers and boundaries either known by matter of record or else prescription and also replenished with wild beasts of Venery or chase and with great coverts of vert for the succour of the said wilde beasts to have their aboad in for the preservation and continuance of which said place together with the vert and venison there are certain particular laws privileges and officers belonging to the same meet for that purpose that are only proper unto a Forest and not to any other place The same definition he hath parte 1. pa. 139. which though it have many superfluities yet it well expresseth the nature of the thing especially the explication adjoyned which there is set down by the said Author in both places in his first part pag. 16. where he fetcheth a forest from such overgrown antiquitie alleging for it the 2 book of Kin. ca. 2. ver 24. ca. 19. ver 23. and the 104 Psalm vers 20. the 131. vers 6. hee taketh license to sport himself for though our English translation have the word Forest to expresse the vastnesse of the desart yet if we look to the original idiome wee shall find no more reason to call those places forests than either chases or parks The manner of making forests as the same Author well setteth down parte 1. pag. 142. is this The King sendeth out his Commission under the broad Seal of England directed to certain discreet persons for the view perambulation meering and bounding of the place that he mindeth to afforest Which returned into the Chancery proclamation is made throughout all the shire where the ground lieth that none shall hunt or chase any manner of wild beasts within that precinct without the Kings speciall license after which he appointeth ordinances lawes officers fit for the preservation of the vert venison so becometh this a forest by matter of record The properties of a forest are these in speciall first a forest as it is truly strictly taken cannot be in the hands of any but the King the reason is given by M. Manwood because none hath power to grant commission to be a justice in Eire for the forest but the King par 1. pag. 87. The second property be the Courts as the Justice sent every three years the Swainmoot thrice every year Idem eod pag. 90. et parte 2. ca. 1. nu 4. et 5. and the attachment once every forty dayes Idem eod pag. 92. The third property may be the officers belonging unto it for the preservation of the vert and venison as first the Justices of the forest the Warden or Keeper the Verders the Foresters Agistours Regarders Bayliffs Bedels and such like which you may see in their places See Manwood parte 2. ca. 1. nu 4. 5. But the chief property of a Forest both by Master Manwood parte 1. pa. 144. and Master Crompton pa. 146. is the Swainemore which as they both agree is no lesse incident unto it than the court of Pye owders to a Fair. Other Courts and Offices are not so requisite in those forests that are in the hands of subjects because they be not truly forests But if this fail then is there nothing of a forest remaining but it is turned into the nature of a Chace See Chace I read of thus many forests in England The forest of Windsor in Berkshire Cambd. Bâ—it pag. 213. of Pickering Crompt 190. of Shirwood idem fol. 202. of Englewood in Cumberland an 4. Hen. 7. ca. 6. and Crompton fol. 42. of Lancaster idem fol. 196. of Wolmore Stowes Annals pa. 462. of Gillingham idem pa. 113. Knaresborow an 21. H. 8. c. 17. of waltham Cambd. pa. 328. of Breden idem pag. 176. of Whitehart idem p. 150. of Wiersdale idem pa. 589. Lownesall ibidem of Deane idem pa. 266 an 8. H. 6. c. 27. an 19. Hen. 7. ca. 8. of Saint Leonards in Southsex Manwood parte 1. pa. 144. of Waybridge and Sapler Idem codem pa. 63. of Whitvey pa. 81. Of Fekenham Camden pa. 441. of Rockingham idem pag. 396. Forest de la mer idem pag. 467. of
fee with the which note Fitzherb agreeth nat br fol. 161. E. So that all the land in the Realm by this reason is either antient demesn or frank fee. The new expounder of the Law terms defineth frank fee to be a tenure in fee simple of lands pleadable at the Common law and not in antient demesn See Fachineus li. 7. c. 39. who defineth it feudum francum esse pro quo nullum servitium praestatur Domino with whom agreeth Zasius de feudis parte 12. saying that therefore it is fedum improprium quia ab omni fervitio liberum Frank ferme firma libera is land or tenement wherein the nature of fee is changed by feofment out of Knights service for certain yearly services and whence neither homage wardship mariage nor relief may be demanded nor any other service not contained in the feo ment Britton ca. 66. num 3. see Fee ferme Frank law libera lex See Cromptons Justice of peace fol. 156. b. where you shall find what it is by the contrary For he that for an offence as conspiracie c. leeseth his frank law is said to fall into these mischiefs first that he may never be impaneled upon any jury or assise or otherwise used in testifying any truth Next if he have any thing to doe in the Kings Court he must not approach thither in person but must appoint his Atturney Thirdly his lands goods and chattels must be seised into the Kings hands and his lands must be estreaped his trees rooted up and his body committed to prison For this the said Author citeth the book of Assises 2 fol. 59. Conspiracy F. 11.24 Edw. 3. fol. 34. See Conspiracy Frank marriage liberum maritagium is a tenure in tail speciall growing from these words in the gift comprised Sciant c. me M. H. de W. dedisse concessisse et praesenti charta mea confirmasse I. A. filio meo Margeriae uxori ejus filiae verae T. N. in liberum maritagium unum messuagium c. West parte 1. Symb. li. 2. sect 303. The effect of which words is that they shall have the land to them and the heirs of their bodies and shall doe fealty to the donour untill the fourth degree Se new terms of law Glanvile li. 7. ca. 18. Bracton li. 2. ca. 7. num 4. where he divideth maritagium in liberum servitio obligatum See Marriage Fleta giveth this reason why the heirs doe no service untill the fourth descent ne donatores vel eorum haeredes per homagum receptionem à reversione repellantur And why in the fourth descent and downward they shall do service to the donour quia in quarto gradu vehementer praesumiter quod terra non est pro defectu haeredum donatariorum reversura libro tertio ca. 11. in princ Frank pledge franciplegium is compounded of frank i. liber and pleige i. fidejussor and signifieth in our Common law a pledge or surety for free-men For the antient custome of England for the preservation of the publike peace was that every free born man at fourteen yeeres of age after Bracton religious persons Clerks Knights and their eldest sonnes excepted should find surety for his truth toward the King and his subjects or else be kept in prison whereupon a certain number of neighbors became customably bound one for another to see each man of their pledge forth comming at all times or to answere the transgression committed by any broken away So that whosoever offended it was forthwith inquired in what pledge he was and then they of that pledge either brought him forth within 31. daies to his answer or satisfied for his offence This was called Frank pledge causa qua supra and the circuit thereof was called Decenna because it commonly consisted of 10. housholds And every particular person thus mutually bound for himself and his neighbours was called Decennier because he was of one Decenna or another This custom was so kept that the Sheriffs at every county court did from time to time take the oaths of young ones as they grow to the age of 14 years and see that he were combined in one dozen or another whereupon this branch of the Sheriffs authoritie was called visus Franciplegii view of Frank pledge See the stat for view of Frank pledge made an 18. E. 2. See Decennier Leetview of Frank pledge Freoborghe That this discipline is borrowed by us of the Roman Emperours or rather Lombards appeareth most manifestly in the second book of Feuds ca. 53. upon which if you read Hotoman with those Authors that hee there recordeth you will think your labour well bestowed Read more of this viz. what articles were wont to be inquired of in this Court in Horns mirrour of Justices lib. 1. ca. de la veneu des francs pleges and what these articles were in antient times see in Fleta lib. 2. cap. 52. Fredwit See Fletwit Free chapel libera Capella by some opinion is a Chapel founded within a Parish for the service of God by the devotion and liberality of some good man over and above the mother Church unto the which it was free for the parishioner◠to com or not to come endowed with maintenance by the founder thereupon called free I have heard others say and more probably that those only be free Chapels that are of the Kings foundation and by him exempted from the Jurisdiction of the Ordinarie but the King may license a subject to found such a Chapel and by his Charter exempt it from the Ordinaries visitation also That it is called free in respect it is exempted from the Jurisdiction of the Diocesan appeareth by the Register original fol. 40. 41. These Chapells were all given to the King with chaunteries anno 1. Edw. 6. ca. 14. Free chapell of Saint Martin le grand an 3. Ed. 4. capite quarto et an 4. E. quarti c. 7. Free hold liberum tenementum is that land or tenement which a man holdeth in fee fee tail or at the least for term of life Bract. lib. 2. ca. 9. The new expounder of the Law terms saith that freehold is of two sorts Freehold in deed and freehold in law Freehold in deed is the real possession of land or tenements in fee fee tai◠or for life Freehold in law is the right that a man hath to such land or tenements before his entry or seisure I have heard it likewise extended to those offices which a man holdeth either in fee or for term of life Britton defineth it to this effect Franck tenement is a possession of the soil or services issuing out of the soil which a free man holdeth in fee to him and his heirs or at the least for term of his life though the soil be charged with free services or other cap. 32. Freehold is sometime taken in opposition to villenage Bract. lib. 4.37 38. M. Lamberd in his explication of Saxon words verbo
him to raise Hue and Crie or to make pursute after the offendour describing the party and shewing as neer as he can which way he is gone the Constable ought forthwith to call upon the Parish for ayde in seeking the felon and if he be not found there then to give the next Constable warning and he the next until the offendour be apprehended or at the least until he be thus pursued to the Sea side Of this read Bract. lib. 3. tract 2. ca. 5. Smith de Repub. Anglo lib. 2. cap. 20. and the statute anno 13 Ed. 1. statute of Winchest cap. 3. a. 28 Ed. 3. cap. 11. anno 27 Eliz. cap. 13. The Normans had such a pursute with a Crie after offenders as this is which they called Haro whereof you may read the Grand Customarie cap. 54. Some call it Harol the reason whereof they give to be this that there was a Duke of Normandy called Rol a man of great justice and severity against grievous offenders and that thereupon when they follow any in this pursute they cry Ha-Rol as if they should say Ah Rol where art thou that wert wont to redresse this or what wouldst thou do against these wretches if thou wert now living But in truth I think it cometh from Harier i. flagitare inquietare urgere Hue is used alone anno 4 Ed. pri stat 2. This the Scots call Huesium and M. Skene de verb. signif verb. Huesium saith that it cometh of the French Oyes i. Audite making one etymologie of this and the crie used before a Prolamation The maner of their Hue and crie she there describeth it is that if a robbery be done a horn is blown and an out-crie made after which if the party flie away and not yeeld himself to the Kings Bailiff he may be lawfully slain and hanged up upon the next gallows Of this Hue and Crie see Cromptons Justice of peace fol. 160. b. Huissers See Usher Hundred Hundredum is a part of a Shire so called originally because it contained ten tithings called in Latine Decennas These were first ordained by King Alfred the 29. King of the West Saxons Stows annal pag. 105. of these thus speaketh M. Lamb. in his Explic. of Saxon words verbo Centuria Aluredus rex ubi cum Guthruno Daco foedus inierat prudentissimum illud olim à Jethrone Moysi datum secutus consililium Angliam primus in satrapias Centurias Decurias partitus est Satrapiam Shire à shyran quod partiri significat nominâ— vit Centuriam Hundred Decuriam Toothing sive Tienmantale i. Decemvirale collegium appellavit atque iisdem nominibus vel hodie vocantur c. And again afterward Decrevit tum porro Aluredus liberae ut conditionis quisque in Centuriam ascriberetur aliquam atque in Decemvirale aliquod conjiceretur collegium De minoribus negotiis Decuriones ut judicarent ac si quae esset res difficilior ad Centuriam deferrent difficilimas denique maximi momenti lites Senator et praepositus in frequenti illo ex omni satrapia cenvontu componerent Modus autem judicandi quis fuerit Ethelredus Rex legem quas frequenti apud Vanatingum senatu sancivit capite 4. hiis fere verbis exponit In singulis Centurits comâ—tia sunto atque liberae conditionis viri duodeni aetate superiores unà cum praeposito sacra tenentes juranto se adeo virum aliquem innocentem haud damnaturos sontemve absoluturos This form of dividing Counties into Hundreds for better Government howsoever it is attributed to king Alfred here with us yet he had it from Germany whence hee and his came hither For there Genta or Centena is a jurisdiction over a hundred towns and containeth the punishment of Capital crimes Andraeus Kitchin in his tractat de sublimi regio territorii jure cap. 4 pag. 123. where he also sheweth out of Tacitus de situ et moribus Germa that this division was usuall amongst the Germans before his dayes By this you understand the original and old use of Hundreds which hold still in name and remain in some sort of combination for their severall services in divers respects but their jurisdiction is abolished and grown to the County Court some few excepted which have been by privilege annexed to the Crown or granted unto some great subject and so remain still in the nature of a Franchise And this hath been ever sithence the Statute anno 14 Ed. 3. stat 1. cap. 9. whereby these Hundred Courts formerly fermed out by the Sheriff to other men were reduced all or the most part to the County Court and so have and doe remain at this present So that where you read now of any Hundred Courts you must know that they be severall franchises wherein the Sheriff hath not to deal by his ordinary authority except they of the Hundred refuse to doe their office See West parte 1. symbol lib. 2. Sect. 288. See Turn The new expounder of Law terms saith that the Latine Hundredum is sometime used for an immunitie or privilege whereby a man is quit of money or customes due to the Governour or hundreders Hundreders Hundredarii be men impaneled or fit to be empaneled of a Jurie upon any Controversie dwelling within the Hundred wher the land lieth which is in question Cromptons Jurisd fol. 217. anno 35 Henrici 8. ca. 6. It signifieth also him that hath the jurisdiction of a Hundred and holdeth the Hundred Court anno 13 Ed. pri cap. 38. an 9 Ed. 2. stat 2. an 2. Ed. 3. cap. 4. and sometime is used for the Bailiff of an Hundred Horn in his mirrour of Justices lib. 1. ca. del office del coroner Hundred laghe signifieth the Hundred Court from the which all the officers of the Kings Forest were freed by the Charter of Canurus ca. 9. Mannwood parte 1. pag. 2. Huers See Conders Huseans commeth of the French houseaux i. ocrea a boot it is used in the Statute an 4. Ed. 4. cap. 7. Hustings Hustingum may seem to come from the French Haulser i. tollere attollere suberigere for it signifieth the principall and highest Court in London anno 11 H. 7. cap. 21. et Fitz. nat br fol. 23. See anno 9 Ed. pri cap. unico Other Cities and Towns also have had a Court of the same name as Winchester Lincolne York and Sheppey and others where the Barons or Citizens have a Record of such things as are determinable before them Fleta libro 2. cap. 55. Husfastne is he that houldeth house and land Bract. lib. 3. tra 2. ca. 10. His words be these Et in franco plegio esse debet omnis qui terram tenet et domum qui dicuntur Hustfastene et etiam alii qui illis deserviunt qui dicuntur Folgheres c. IA IArrock an 1. R. 3. ca. 8. is a kind of cork so called ID Identitate nominis is a writ that lyeth for him who is upon a Capias
joyntly to the Husband and the Wife and after to the Heirs of their bodies whereby the Husband and Wife be made joynt tenants during the coverture Coke lib. 3. Butler and Bakers case f. 27. b. See Frank mariage Joynture is also used as the abstract of Joynt tenants Coke lib. 3. the Marquess of Winchesters Case fol. 3. a. b. Junctura is also by Bracton and Fleta used for joyning of one bargain to another Fleta lib. 2. cap. 60. touching the self-same thing and therefore joynture in the first signification may be so called in respect that it is a bargain of livelihood for the wife adjoyned to the contract of mariage Journ Choppers anno 8 Hen. 6. cap. 5. be regraters of yarn Whether that we now call yarn were in those daies called journ I cannot say but Choppers in these dayes are well known to be changers as choppers of Churches c. Journeyman commeth of the French Journee that is a day or dayes work which argueth that they were called Journeymen that wrought with others by the day though now by Statute it be extended to those likewise that covenant to work in their occupation with another by the year anno quinto Elizabeth cap. quarto IS Issue Exitus commeth of the French Issir i. emanare or the Substantive Issue i. exitus eventus It hath divers applications in the common Law sometime being used for the children begotten between a man and his wife sometime for profits growing from an amercement or fine or expences of sute sometime for profits of lands or tenements West 2. anno 13. Edw. prim cap. 39. sometime for that point of matter depending in sute whereupon the parties joyn and put their cause to the trial of the Jury and in all these it hath but one signification which is an effect of a cause proceeding as the children be the effect of the mariage between the Parents the profits growing to the King or Lord from the punishment of any mans offence is the effect of his transgression the point referred to the trial of twelve men is the effect of pleading or processe Issue in this last signification is either general or special General issue seemeth to be that whereby it is referred to the Jury to bring in their verdict whether the Defendant have done any such thing as the Plaintiff layeth to his charge For example if it be an offence against any Statute and the Defendant plead not culpable this being put to the Jury is called the General issue and if a man complain of a private wrong which the Defendant denieth and pleads no wrong nor disseisin and this be referred to the 12. it is likewise the General issue Kitchin fol. 225. See the Doctor and Student fol. 158. b. The Special issue then must be that where special matter being alleged by the Defendant for his defence both the parties joyn thereupon and so grow rather to a Demurrer if it be quaestio Juris or to tryal by the Jury if it be quaestio facti See the new Book of Entries verbo Issue JU Juncture See Joynture Jure patronatus See the new Book of Entries verbo Jure patronatus in quare impedit fol. 465. col 3. Jurie Jurata commeth of the French Jurer i. jurare it signifieth in our Common law a company of men as 24. or 12. sworn to deliver a truth upon such evidence as shall be delivered them touching the matter in question Of which trial who may and who may not be empanelled see Fitzh nat brev fol. 165. D. And for better understanding of this point it is to be known that there be three manner of trials in England one by Parliament another by Battel and the third by Assize or Jury Smith de Repub. Anglorum lib. 2. cap. 5 6 7. touching the two former read him and see Battel and Combat and Parliament the trial by Assise be the action civil or criminal publike or private personal or real is referred for the fact to a Jury and as they find it so passeth the Judgement and the great favour that by this the King sheweth to his Subjects more than the Princes of other Nations you may read in Glanvil lib. 2. cap. 7. where he called it Regale beneficium clement is principis de consilio procerum populis indultum quo vitae hominum Status integritats tam salubriter consulitur ut in jure quod quis in libero soli tenemento possidet retinendo duelli casum declinare possint homines ambiguum c. see the rest This Iury is not used only in Circuits of Justices Errant but also in other Courts and matters of Office as if the Escheatour make inquisition in any thing touching his Office he doth it by Jury or Inquest if the Coroner inquire how a subject found dead came to his end he useth an Inquest the Justices of Peace in their Quarter Sessions the Sheriff in his County and Turn the Bayliff of a Hundred the Steward of a Court Leet or Court Baron if they inquire of any offence or decide any cause between party and party they doe it by the same manner So that where it is said that all things be triable by Parliament Battel or Assise Assise in this place is taken for a Jury or Enquest empanelled upon any cause in a Court where this kind of trial is used and though it be commonly deemed that this custom of ending and deciding causes proceed from the Saxons and Britons and was of favour permitted unto us by the Conquerour yet I find by the grand Customarie of Normandy cap. 24. that this course was used likewise in that Country For Assise is in that Chapter defined to be an assembly of wise men with the Bayliff in a place certain at a time assigned forty dayes before whereby Justice may be done in causes heard in the Court. Of this custom also and those Knights of Normandie Johannes Faber maketh mention in the Rubrique of the Title de militari testamento in Institut this Jury though it appertain to most Courts of the Common law yet is it most notorious in the half-year Courts of the Justices errants commonly called the great Assises and in the quarter Sessions and in them it is most ordinarily called a Jury And that in civil causes whereas in other Courts it is oftener termed an Enquest and in the Court Baron the Homage In the general Assise there are usually many Juries because there be store of causes both civil and criminal comonly to be tried whereof one is called the Grand Jury and the rest Petit Juries whereof it seemeth there should be one for every Hundred Lamb. Eirenar lib. 4. cap. 3. pag. 384. The Grand Jury consisteth ordinarily of 24. grave and substantial Gentlemen or some of them Yeomen chosen indifferently out of the whole Shire by the Sheriff to consider of all Bils of Inditement preferred to the Court which they doe either approve by writing upon them these
Goods of that people of whom they have received wrong and cannot get ordinary Justice when they can catch them within their own territories or precincts Law Merchant is a Privilege or special law differing from the Common law of England and proper to Merchants and summary in proceeding anno 27 Edw. 3. stat 8 9 19 et 20. anno 13 Edward 1. stat tertio Lawing of dogs expeditatio canum See Expeditate Mastifs must be lawed every three year Crompton jurisdict fol. 163. LE Leasi lessa commeth of the French laysser i. linquere relinquere smittere permittere It signifieth in our Common law a demise or letting of lands or tenements or right of Common or of a Rent or any hereditament unto another for term of years or of life for a rent reserved And a lease is either written called a lease by Indenture or made by word of mouth called a lease paroll See the new terms of the law The party that letteth this lease is called the Leassour and the party to whom it is let the Lessee And a lease hath in it six ponts viz. words importing a demise a leassee named a commencement from a day certain a term of years a determination a reservation of a rent Cook vol. 6. Knights Case fol. 55. a. Leet leta is otherwise called a law day Smith de Repub. Anglor lib. 2. cap. 18. the word seemeth to have grown from the Saxon Lethe which as appeareth by the laws of King Edward set out by M Lambard num 34. was a Court of Jurisdiction above the Wapentake or Hundred comprehending three or four of them otherwise called Thryhing and contained the third part of a Province or Shire These Jurisdictions one and other be now abolished and swallowed up in the County Court except they be held by prescription Kitchin fol. 6. or Charter in the nature of a Franchise as I have said in Hundred The liberty of Hundreds is rare but many Lords together with their Courts Baron have likewise Leets adjoined and thereby doe enquire of such transgressions as are subject to the enquiry and correction of this Court whereof you may read your fill in Kitchin from the beginning of this book to the fift Chapter Bâ—itton cap. 28. But this Court in whose Manor soever it be kept is accounted the kings Court because the authority thereof is originally belonging to the Crown and thence derived to inferiour persons Kitchin fol. 6. Justice Dyer saith that this Leete was first-derived from the Sheriffs Turn fol. 64. And it enquireth of all offences under high treason committed against the Crown and Dignity of the king though it cannot punish many but must certifie them to the Justices of Assise per Statut. anno 1. Ed 3. cap. ult Kitchin fol. 8. but what things be onely inquirable and what punishable see Kitchin in the charge of a Court Leet fol. 8 9 10 11 12 13 14 15 16 17 18 19 20. See also the Statute anno 8. Ed. 2. The Jurisdiction of Bayliffs in the Dutchy of Normandie within the compasse of their Provinces seemeth to be the same or very near the same with the power of our Leet cap. 4. of the grand Custumary Legacie legatum is a particular thing given by last will and testament For if a man dispose or transferre his whole right or estate upon another that is called Haereditas by the Civilians and he to whom it is so transferred is termed haeres Howbeit our common Lawyers call him Heir to whom all a mans lands and hereditaments doe descend by right of bloud See Heir See Hereditaments Leproso amovendo is a writ that lyeth for a Parish to remove a Leper or Lazar that thrusteth himself into the companie of his neighbours either in Church or other publike meeting and commeth with them to their annoyance or disturbance Regist orig fol. 267. Fitz nat Brev. fo 234. Lestage aliâs lastage lastagium proceedeth from the Saxon word last i. onus and is a Custom challenged in Fairs and Markets for carrying of things Rastals Exposition of words or a Custom challenged in cheapings or Fairs Saxon in the description of England cap. 11. Lastage anno 21. R. 2. cap. 18. seemeth to be the ballance of a ship Fleta termeth it Lesting saying quòd significat acquietantiam Le stagii lib. 1. cap. 47. § Lesting Letters of Exchange literae Cambitoriae vel literae Cambii Regist orig fol. 194. a. Letters patents literae patentes bee Writings sealed with the broad Seal of England whereby a man is authorized to doe or enjoy any thing that otherwise of himself he could not anno 19. H. 7. cap. 7. And they be so termed of their form because they be open with the Seal hanging ready to be shewed for the confirmation of the authority given by them If any will say that Letters patents may be granted by Common persons I will not greatly contend For I find that to be true in Fitz. nat br fol. 35. E. Howbeit they bee called rather patents in our Common speech then Letters patents Letters patents to make Denizens anno 32. Hen. 6. cap. 16. yet for difference sake the kings letters patents be called letters patents royal Anno 2 Hen. 6. cap. 10. There is likewise a writ patent Fitzh nat br fol. 1. seqq Levari facias is a writ directed to the Sheriff for the levying of a Sum of money upon lands and tenements of him that hath forfeited a Recognizance c. Regist origin fol. 298. b. 300. b. Levari facias damna de disseisitoribus is a writ directed to the Sheriff for the levying of damages wherein the disseisour hath formerly been condemned to the disseisee Regist fol. 214. b. Levari facias residuum debiti is a writ directed to the Sheriff for the levying of a Remanant of a debt upon lands and tenements or chattels of the debtor that hath in part sasatisfied before Regist. orig fol. 299. Levari facias quando vicecomes returnavir quòd non habuit emptores is a writ commanding the Sheriff to sell the goods of the debtor which he hath already taken and returned that he could not sell them and as much more of the debtors goods as will satisfie the whole debt Register orig fol. 300. a. Letter of Atturney litera Atturnatus is a writing authorizing an Atturney that is a man appointed to doe a lawfull act in our steeds West part prim symbol lib. 2. sect 559. It is called in the civil law mandatum or procuratorum There seemeth to be some difference between a letter of Atturney and a warrant of Atturney For whereas a letter of Atturney is sufficient if it be sealed and delivebefore sufficient witnesse a warrant of Atturney must bee acknowledged and certified before such persons as fines be acknowledged in the Countrey or at the least before some Justice or Sergeant West parte 2. symbol tit Recoveries sect 1. F. See the Statute anno 7 R. 2. cap. 13. Letters of
one with Brittons misaventure Homicide by chance mixed he defineth sect 50. to be when the killers ignorance or negligence is joyned with the chance as if a man loppe Trees by a high way side by which many usually travel and cast down a bough not giving warning c. By which bough a man passing by is slain Miscontinuance Kitchin fol. 231. See Discontinuance Mise misa is a French word signifying as much as expensum in Latine and the Latine word Misa is so used in Kitchin fol. 144. and in West parte 2. symb titulo Proceedings in Chancery Sect. 21. F. It is used anno 2. 3. Edw. 6. ca. 36. for a summ of money paid by the Kings tenents in certain Counties in Wales according to their several customs In the Statute 33 H. 8. c. 13. it is used plurally for certain cunumary gratuities sent to the Lord Marchers of Wales by their Tenents at their first comming to their lands And an 4. et 5. Ph. Mar. cap. 11. Mise is used in an action of right or property for the point whereupon the parties proceed to trial either by Assise or batel as issue is in an action personal if the Mise be upon battel Litleton fo 102. and in the Old nat br fol. 2. you have these words Know yee that this writ hath but two Issues that is to say joyning the mise upon the meer and that is to put himself into the great Assise of our Soveraign Lord the King or to joyn battel See anno 37 Ed. 3. ca. 16. To joyn the mise upon the meer is as much to say as to joyn the mise upon the cleer right and that in more plain termes is nothing else but â—o joyn upon this point whether hath the â—ore right the Tenent or Demandant Litleton lib. 3. cap. 8. fol. 101. b. This word in â—ome other place is used for a Participle signiâ—ing as much as cast or put upon in English which appeareth by Sir Edw. Cokes report in Stafsins case vol. 6. fol. 124. a. Misericordia is used in the Common law for an arbitrary punishment Bracton li. 4. tractat 5. cap. 6. in these words Item siquis in misericordiam inciderâ—t pro disseisina non remanebit misericordia exigenda si ille qui amiserit quaesiverit convictionem Kithin fol. 78. out of Glanvile saith thus Est autem misericordia quia quis per uramentum legalium hominum amerciatus est ne aliquid de suo honor abilicontenemento amittat Which saying you have in a maner word for word Glanv l. 9. ca. 11. Fitzh saith that it is called misericordia because ie ought to be very moderate and rather lesse than the offence according to the tenure of the great Charter cap. 14. This saith Fitzherbert in his nat brev in the writ de moderata misericordia fol. 75. A. I. Misericordia is to be quit of misericors that is discharged of all manner of amercements that may a man fall into within the Forest See M. Cromptons Jurisdictions fol. 196. See Amerciament See Mercie and Moderata misericordia Miskenning i. changing of speech in Court Saxon in the description of England ca. 11. Misnomer is compounded of the French mes which in composition alwaies signifieth as much as amisse and nomer i. nominare It signifieth in our Common law the using of one name for another or mis-terming â—roâ—e titulo Misnomer Misprision misprisio commeth of the French Mespris i. fastidium contemptus It signifieth in our Common law neglect or negligence or over-sight As for example misprision of treason or of felony is a neglect or light account shewed of treason or felony committed by not revealing it when we know it to be committed Stawnf pl. cor l. 1. ca. 19. which read at large or by letting any person committed for treason or felonie or suspition of either to goe before he be indited Also Misprision of Clerks anno 8 H. 6. ca. 15. is a neglect of Clerks in writing or keeping Records Thirdly anno 14 Ed. 3. ca. 6. stat prim by misprision of Clerks no processe shall be admitted Misprision of treason is the concealment or not disclosing of known treason for the which the offendours are to suffer imprisonmenâ— during the Kings pleasure lose their goods and the profits of their lands during their lives Crompton in his Justice of Peace cap. Misprision of felony fol. 40. West parte 2. symb titulo Inditements Sect. 63. in fine Misprision of felonie seemeth only finable by the Justices before whom the party is attainted Cromptons Justice of Peace ubi supra The Justices of the Common place have power to assess fines and amerciaments upon persons offending for misprisions contempts or negligences for not doing or mis-doing any thing in or concerning fines West parte 2. symbol titulo Fines Sect. 133. Justices of Assise shall amend the defaults of Clerks misprising of a Syllable or Letter or writing Cromptons jurisdictions fol. 20â— But it is to be noted that other faults may be accounted misprisions of Treason or Felony because certain latter Statutes do inflict that punishment upon themâ— hâ—t of old hath been inflicted upon misprisions wherof you have an example an 14 El. cap. 3. of such as coyn forein Coyns not current in this Realm and of their Procurers Aiders and Abetters And see the new exposition of Law-terms Misprision signifieth also a mistaking anno 14 Edw. 3. stat pri cap. 6. Misses See Mise Misuser is an abuse of liberty or benefit As he shall make fine for his misuser Old nat br fol. 149. Mystery mysterium commeth of the Latin mysterium or rather from the French mestier i. ars artificium an art or occupation Mittendo manuscriptum pedis finis is a writ Judicial directed to the Treasurer and Chamberlains of the Exchequer to search and transmit the foot of a Fine acknowledged before Justices in Eyr into the Common plees c. Reg. orig fol. 14. a b. Mittimus signifieth a Precept sent by the King out of his Bench to those that have the custody of fines levyed that they send them by a day assigned to his Bench West parte 2. symb titulo Fines Sect. 138. F. 154. B. and also to the Exchequer for certificate that Judgement is given for the livery of Lands to such or such a one out of the Kings hands whereupon he is dismissed also out of the Exchequer anno 5 R. 2. cap. 15. of divers other uses and applications of this Mittimus see the Register original in the Table of the Book MO Moderata misericordia is a Writ that lyeth for him that is amerced in Court Baron or other being not of Record for any transgression or offence beyond the quality of a fault It is directed to the Lord of the Court or his Bailiff commanding them to take a moderate amerciament of the party and is founded upon Magna Charta cap. 14. Quòd nullus liber homo amercietur nisi secundùm qualitatem delicti c.
eamque ab Imperatore Constantino repetitam ut Ducibus praefectis tribunis qui pro augendo Imperio consenuerant darentur agri villâ—que at necessaria suppeterent quoad viverent quas parochias vocabant And a little after verum inter feuda et parochias hoc interest quod kae plâ—rumque senthus et veteranis plerisque emeritae militiae dabantur qui cum de Rep. bene meriti essent publico beneficio reliquum vitae sustentabant aut si quod bellum uasceretur evocari non tam milites quam magistr militum viderentur Feuda vero plurimum Juvenibus robustis primo flore aetatis qui militiae munus sustinere poterant imovero ut possent ut vellent c. Parlament parlamentum is a French word signifying originally as much as Collocutio or colloquium but by use it is also taken for those high Courts of Justice throughour the Kingdome of Frauce where mens causes and differences are publickly determined without farther appeal Whereof there be seven in number as Paris Tolouse Gresnoble in Daulphine Aix in Provence Bordeaux Dijon in Bourgogn and Roan in Normandy Vincentius Lupanus de Magist. Franc. lib. 2. cap. Parlamentum num 28. whereunto Gerard de Hailon addeth the eighth viz. Rhenes in Brettagne In England we use it for the assembly of the King and the 3 Estates of the Realm viz. the Lords Spiritual the Lords temporal and Commons for the debating of matters touching the Common-wealth and especially the making and correcting of Laws which assembly or Court is of all other the highest and of greatest authority as you may read in Sir Thom. Smith de Repub. Auglo l. c. 1. 2. Camd. Britan. pag. 112. and Crompions Jurisd fol. pri seq The institution of this Court Polydor Virgil lib. 11. of his Chronicles referreth after a fort to Henry the first yet confessing that it was used before though very seldome I find in the former Prologue of Grand Customary of Normandy that the Normans used the same means in making their Lawes And I have seen a Monument of Antiquity shewing the manner of holding this Parlament in the the time of King Edward the sonne of King Ethelred which as my note saith was delivered by the descreeter sort of the Realm unto William the Conquerour at his commandement and allowed by him This writing beginneth thus Rex est caput principium finis parlamenti ita non habet parem in suo gradu Et sic ex rege solo primus gradus est Secundus gradus est ex Archieviscapis Episcopis Abbatibus Prioribus per Bavoniam tenentibus Tertius gradus est de procuratoribus cleri Quâ—rtus gradus est de Comitibus Baronibus al is Magnatibus Quintus gradus est de militibus Comitatuum Sextus gradus est de civibus Burgensibus ita est Parlamentum ex sex gradibus sed scienduml cet aliquis dictorum quinque graduum post Regem absens fuerit dum tamen omnes praemoniti fuerint per rationabiles summonitiones parlamentum nihilo minus censetur esse plenum Touching the great authority of this Court I find in Stowes Annals pag. 660. that Henry the sixth directing his privy seal to Richard Earl of Warwick thereby to discharge him of the Captainship of Callis the Earl refused to obey the Privie Seal and continued forth the said office because he received it by Parliament But one example cannot make good a doctrine And of these two one must needs bee true that either the King is above the Parliament that is the positive lawes of his Kingdome or else that he is not an absolute King Aristotle lib. 3. Politico c. 16. Andtherefore though it be a merciful policy and also a politique mercy not alterable without great peril to make lawes by the consent of the whole Realm because so no one part shall have cause to complain of a partiality yet simply to bind the Prince to or by these lawes were repugnant to the nature and constitution of an absolute monarchy See Bracton lib. 5. tract 3. cap. 3. num 3. and Cassan de consuet Burg. pag. 335. and Tiraquel in his book De Nobilitate cap. 20. pag. 68. num 26. See the Statute anno 31 Henr. 8. cap. 8. in proaemio and many excellent men more that handle this point That learned Hottoman in his Francogallia doth vehemently oppugn this ground as some other that write in corners but he is so clean overbern by the pois of reason that not only many meaner men for Learning triumph over him in this case but himself as I have credibly heard upon the sight of his fault cryed God and the world mercy for his offence in writing that erroneous and seditious book The Emperours of Rome had their semestria consilia and their praetorium or place of Councel bailded by Augustus in his palace and thereupon called palatinm afterward termed Consistorium where they as in their principull court did both determine the greatest sort of their causes and also made their constitutions And here had they assisting them many of the wisest of their Empire whom Augustus first called Consiliarios Alexander Severus afterward scriniorum principes others after that palatinos and then comites consistorianos And these men in this respect were indued with great honour and enjoyed many privilege Yet were but the assistants to the Emperour to advise him not chalenging any power over him or equal with him More touching the course and order of this Parliament see in Cromptons Jurisd fol. pri seque and Vowel alias Hocker in his book purposely written of this matter See King Parole Loquela is a French word signifying as much as Dictio allocutio sermo vox It is used in Kitchin fol. 193. for a plea in Court It is also sometime joyned with lease as Lease parol that is Lease per parole a lease by word of mouth Parson Parsona cometh of the French Personne It peculiarly signifieth with us the Rector of a Church the reason whereof seemeth to bee because he for his time representeth the Church and sustaineth the person thereof as well in suing as being sued in any action touching the same See Fleta l. 9. ca. 18. Parson imp rsonee parsona impersonata is he that is in possession of a Church whether appropriated or not appropriated for in the new book of Entries ver Ayde in Annuity you have these words Et praedictus A. dicit quod ipse est persona praedicta Ecclesiae de Simpersonata in eidem ad praesent aâ—ionem F. patronissae c. So I have reason to think that persona is the patron or he that hath right to give the Benefice by reason that before the Lateran Councill he had right to the tithes in respect of his liberality used in the erection or endowment of the Church quasi sustineret personam Ecclesiae and hee persona impersonata to whom the benefice is given in the Patrons
him King John granted them a Maior for their yearly Magistrate Porter of the door of the Parliament house is a necessary Officer belonging to that high Court and enjoyeth the privileges accordingly Cromptons jurisd fo 11. Perter in the Circuit of Justices is an Officer that carrieth a verge or white rod before the Iustices in Eyre so called a portando virgam an 13 Ed. 1. ca. 24. Porter bearing verge virgator before the Iustices of either bench anno 13 Edv. 1. cap. 41. See Vergers Portomote is a word compounded of port i. portus and the Saxon Gemertan i. convenire or of the French mot i. dictio verbum It signifieth a Court kept in Haven towns as Swainmot in the forest Manwood parte prim of his forest laws pag. 111. It is sometimes called the Portmoot Court an 43 Eli. cap. 15. Portsale anno 35 H. 8. cap. 7. i. sale of fish presently upon return in the haven Possession possessio is used two waies in our Common law First for lands and inheritance as he is a man of large possessions In which signification it is also used among the Civilians sc for the thing possessed l. possessionum Cod. commun utriusque Judic Next for the actual enjoying of that which either in truth or pretence is ours And in this signification there is possession indeed and possession in law pl. cor fol. 198. The example there is this before or untill an office be found the King hath only possession in law and not in deed speaking of the lands escheated by the attainder of the owner See Praerog fol. 54. 55. In this signification also there is an unity of possession which the Civilians call Consolidationem Take an example out of Kitchin fol. 134. If the Lord purchase the tenancy held by Heriot service then the Heriot is extinct by unity of possession that is because the seigneury and the tenancy be now in one mans possession Many divisions of possession you may read in Braclon lib. 2. cap. 17. per totum Post. See Per. Post diem is a return of a writ after the day assigned for the return for the which the Custos brevium hath four pence whereas he hath nothing if it be returned at the day or it may be the fee taken for the same Post fine is a duty belonging to the King for a fine formerly acknowledged before him in his Court which is paid by the Cognizee after the fine is fully passed and all things touching the same wholly accomplished The rate thereof is so much and half so much as was paid to the King for the fine and is gathered by the Shyreeve of the County where the land c. lyeth whereof the fine was levied to be answered by him into the Exchequer Post terme is a return of a writ not only after the day assigned for the return thereof but after the term also which may not be received by the Custos brevium but by the consent of one of the Iudges it may be also the see which the Custos brevium taketh for return thereof which is twenty pence Postea is a word used for a matter tryed by Nisi prius and returned into the Court of common pleas for Judgement and there afterwards recorded See Plowden casu Saunders fol. 211. a. See an example of this in Sir Edw. Cokes Reports volum 6. Rowlands Case fol. 41. b. 42. a. See Custos brevium Post disseisen post disseisina is a writ given by the Statute of We. 2. cap. 26. and lyeth for him that having recovered lands or tenements by praecipe quod reddat upon default or reddition is again disseised by the former disseisour Fitzherb nat br fol. 190. see the writ that lyeth for this in the Register original fol. 208. a. Posteriority posterioritas is a word of comparison and relation in tenure the correlative whereof is prioritie For a man holding lands or tenements of two Lords holdeth of his auncienter Lord by priority and of his later Lord by posteriority Stawn praerog fol. 10 11. when one Tenent holdeth of two Lords of the one by priority of the other by posteriority c. Old nat br fol. 94. Pourchas perquisitum commeth of the French pourchasser i. sollicitare ambire it signifyeth the buying of lands or tenements with mony or other agreement and not the obtaining of it by title or descent Conjunctum perquisitum Joynt purchase Regist original fol. 143. b. Pour faire proclaimer que nul enject fimes ou ordures en fosses ou rivers pres cities c. is a writ directed to the Maior Shyreeve or Bayliff of a City or Town commanding them to proclaim that none cast filth into the ditches or places near adjoyning and if any be cast already to remove it This is founded upon the Statute an 12 Rich. 2. ca. 13. Fitz. nat br fol. 176. Pourparty propars propartis vel propartia is contrary to pro indiviso For to make pourparty is to divide and sever the lands that fall to Parceners which before partition they hold jointly and pro indiviso Old nat br fol. 11. Pourpresture pourprestura vel porprestura vel paraprestura seemeth to come from the French pourpris i. conseptum It is thus defined by Glanvile lib. 9. cap. 11. Pourprestura est proprie quando aliquid super Dominum Regem injustè occupatnr Ut in Dominicis Regis vel in viis publicis obstructis vel in aquis publicis transversis à recto cursu vel quando aliquis in civitate super regiam plateam aliquid aedificando occupaverit generaliter quoties aliquid fit ad nocumentum Regii tenementi vel Regiae viae vel civitatis Cromp. in his Jurisd fol. 152. defineth it thus Pour presture is properly when a man taketh unto himself or incroacheth any thing that he ought not whether it be in any jurisdiction land or fraunchis and generally when any thing is done to the Nusance of the Kings tenents Et idem eodem fol. 203 saith to the same effect but more at large See Kitchin fol. 10. and Manwood parte prim of his forest laws pag. 269. parte 2. cap. 10. per totum See Skene de verbo signif verb. Purpesture Where he maketh three sorts of this offence one against the King the second against the Lord of the fee the third against a Neighbour by a Neighbour lying near unto him Pour seisir terres la femme que tient en Dower c. is a writ whereby the King feiseth upon the land which the wife of his Tenent that held in Capite deceased hath for her dowry if she mary without his leave and is grounded upon the Statute of the Kings prerogative cap. 3. see Fitzh fol. 174. Poursuyvant commeth of the French poursuivere i. agere agitare persequi It signifieth the messenger of the King attending upon him in wars or at the Councel table the Star chamber Exchequer or Commission court to be sent upon any occasion or
want of heirs c. Privy seal privatum sigillum is a seal that the King useth sometime for a warrant whereby things passed the privy signet and brought to it are sent farther to be confirmed by the great Seal of England sometime for the strength or credit of other things written upon occasions more transitory and of less continuance than those be that pass the great seal Privilege privilegium is defined by Cicero in his Oration pro domo sua to be lex privata homini irrogata Frerotus in paratit lis ad titulum decretalâ—um de privilegiis thus defineth it privilegium est jus singulare hoc est privata lex quae uni homini vel loco vel Collegio similibus aliis conceditur cap. priv legia distinct 3. priva enim veteres dixere quae nos singula dicimus Infit Agellius li. 10. ca. 20. Idiòque privilegia modò beneficia modò personales constitutiones dicuntur c. It is used so likewise in our Common law and sometimes for the place that hath any special immunity Kitchin fo 118. in the words where debters make feigne dgifts and feoffments of their land and goods to their friends and others and betake themselves to privileges c. Privilege is either personal or real a personal privilege is that which is granted to any person either against or beside the course of the Common law as for example a person called to be one of the Parliament may not be arested either himself or any of his attendance during the time of the Parliament A privilege real is that which is granted to a place as to the Universities that none of either may be called to Westminster hall upon any contract made within their own precincts And one towards the Court of Chancery cannot originally be called to any Court but to the Chancery certain cases excepted If he be he will remove it by writ of Privilege grounded upon the statute anno 18 Edward the third See the new book of Entries verbo Privilege Probat of Testaments probatio testamentorum is the producting and insinuating of dead mens Wills before the ecclesiastical Iudge Ordinary of the place where the patty dyeth And the Ordinary in this case is known by the quantity of the goods that the party deceased hath out of the Dioces where he departed For if all his goods be in the same Dioces then the Bishop of the Dioces or the Arch-deacon according as their composition or prescription is hath the probat of the Testament if the goods be dispersed in divers Dioceses so that there be any sum of note as five pounds ordinarily out of the Dioces where the party led his life then is the Archbishop of Canterbury the ordinary in this case by his prerogative For whereas in old time the will was to be proved in every Dioces wherein the party deceased had any goods it was thought convenient both to the subject and to the Archiepiscopal See to make one proof for all before him who was and is of all the general ordinary of his Province But there may be antiently some composition between the Archbishop and an inferiour ordinary whereby the sum that maketh the prerogative is above five pound See Praerogative of the Archbishop This probat is made in two sorts either in common form or pertestes The proof in common form is only by the oath of the executor or party exhibiting the Will who sweareth upon his credulity that the Will by him exhibited is the last Will and Testament of the party deceased The proof per testes is when over and beside his oath he also produceth witnesses or maketh other proof to confirm the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they have been lawfully summoned to see such a Will proved if they think good And the later course is taken most commonly where there is fear of strife and contention between the kindred or friends of the party deceased about his goods For a VVill proved only in common form may be called into question any time within thirty years after by common opinion before it work prescription Procedendo is a writ whereby a plee or cause formerly called from a base Court to the Chancery Kings bench or Common plees by a writ of privilege or certiorare is released and sent down again to the same Court to be proceeded in there after it appeareth that the Defendant hath no case of privilege or that the matter comprised in the Bill be not well provided Brook hoc titulo and Terms of the law Cook vol. 6. fol. 63. a. See an 21 R. 2. ca. 11. in fine letters of procedendo granted by the Keeper of the privy seal See in what diversity it is used in the table of the original Register and also of the Iudicial Iâ—roces processus is the manner of proceeding in every cause be it personal or real civil or criminal even from the original writ to the end Britton fol. 138 a. wherein there is great diversity as you may see in the table of Fitz. nat br verbo Proces and Brooks Abridgement hoc titulo And whereas the writings of our Common Lawyers sometime call that the Proces by which a man is called into the Court and no more the reason thereof may be given because it is the beginning or the principal part thereof by which the rest of the business is directed according to that saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Divers kinds of Proces upon Inditements before Iustices of the peace See in Cromptons Justice of peace fol. 133 b. 134.135 But for orders sake I refer you rather to M. Lambard is his tractat of Processes adjoined to his Eirenarcha who according to his subject in hand divideth criminal Proces either into Proces touching causes of treason or felony and Proces touching inferiour offences the former is usually a capias capias alià s exigifaciaâ— The second is either upon inditement or presentment or information that upon inditement or presentment is all one and is either general and that is a venire facias upon which if the party be returned sufficient then is sent out a Distringas infinitè untill he come if he be returned with a Nihil babet then issueth out a Capias Capias aliis Capias pluries and lastly an Exigi facias The special proces is that which is especially appointed for the offence by statute For the which he referreth his reader to the eighth chapter of his fourth book being very different Processum continuando is a writ for the continuance of a Proces after the death of the chief Iustice in the writ of oyer and terminer Register original fol. 128. a. Prochein amy proximus amicus vel propinquier is word for word a neer friend It is used in our Common law for him that is next of kinne to a child in his
nonage and is in that respect allowed by law to deal for him in the managing his affairs as to be his Guardian if he hold of any in socage and in the redresse of any wrong done unto him be it by his Guardian if he be ward and hold in Chivalry or any others Stat. West pri cap. 48. 3 Ed. pri and Westm 2. cap. 15. anno 13 Ed. pri Profe alià s Prove is used for an Enquest anno 28 Ed. 3. cap. 13. Proclamation Proclamatio signifieth a notice publickly given of any thing whereof the King thinketh good to advertise his subjects So it is used anno 7 Rich. 2. cap. 6. Proclamation of rebellion is a publick notice given by the officer that a man not appearing upon a Subpoena nor an attachment in the Starchamber or Chancery shall be reputed a rebel except he render himself by a day assigned Cromptons jurisd fol. 92. See Commission of rebellion Proclamation of a fine is a notize openly and solemnly given at all the Assises that shall be holden in the County within one year after the ingrossing of the fine and not at the four general quarter sessions And these Proclamations be made upon transcripts of the fine sent by the Iustices of the common plees to the Iustices of Assise and the Iustices of peace West part 2. symbo titulo Fines sect 132. where also you may see the form of the Proclamation Proclamare est palam et valde clamare used by Tully Livie and the Civilian Ï€. Quibus ad liberta proclamare non licet And Proclamator signifieth him qui litem intendit vel causamagit Cicero de oratore lib. pri Non enim causidicum nescio quem neque proclamaâ—orem aut rebulam hoc sermone conquirimus c. I read in Fitz. nat br fol. 85 C. that the Kings proclamation is sufficient to stay a subject from going out of the Realm See the force of proclamations in an 31 H. 8. c. 8. see also proclamations in divers cases New book of Entries verb. Proclamations Proctors of the Clergy procuratores cleri are those which are chosen and appointed to appear for Cathedral or other Collegiate Churches as also for the common Clergy of every Dioces at the Parliament whose choise is in this sort First the King directeth his writ to the Arch-bishop of each Province for the summoning of all Bishops Deans Arch-deacons cathedral and collegiat churches and generally of all the Clergy of his Province after their best discretion and judgement assigning them the time and place in the said writ Then the Arch-bishops proceed in their accustomed course One example may serve to shew both The Arch-bishop of Canterbury upon his writ received directeth his letters to the Bishop of London as his Dean provincial 1 sect statuimus de poenis verb. tauquam in glos first citing himself peremptorily and then willing him to cite in like manner all the Bishops Deans Arch-deacons cathedral and collegiate churches and generally all the Clergy of his Province to the place and against the day prefixed in the writ But directeth withall that one Proctor sent for every cathedral or collegiate Church and two for the body of the inferiour Clergy of each Dioces may suffice And by vertue of these Letters authentically sealed the said Bishop of London directeth his like Letters severally to the Bishop of every Diocesse of the Province citing them in like sort and commanding them not only to appear but also to admonish the said Deans and Arch-deacons personally to appear and the Cathedrall and collegiat Churches as also the common clergy of the Diocesse to send their Proctors to the place and at the day appointed and also willeth them to certifie the Archbishop the names of all and every so monished by them in a Shedule annexed to their Letters certificatory The Bishops proceed accordingly and the Cathedrall and collegiat Churches as also the Clergy make choise of their Proctors which done and certified to the Bishop he returneth all answerably to his charge at the day These Proctors of the Clergy howsoever the case of late daies is altered had place and suffrage in the lower house of Parliament as well as the Knights Citizens Barons of the Cinque ports and Burgesses For so it plainly appeareth by the statute anno 21 R. 2. cap. 2. cap. 12. And sithence they were removed the Church hath daily grown weaker and weaker I pray God that in short time she famish not but that her liberties be better maintained Procurator is used for him that gathereth the fruit of the benefice for another man anno 3 R. 2. stat 1. cap. 2. And procuracy is used for the specialty whereby he is authorized Ibid. They are at this day in the West parts called Proctors Profer profrum vel proferum is the time appointed for the accompts of Shyreves and other officers in the Exchequer which is twice in the year anno 51. H. 3. statute quins And it may be gathered also out of the Regist fol. 139. in the writ De Atturnato Vicecomitis pro profro faciendo I read also of profers anno 32 H. 8. cap. 21. in these words Trinity term shall begin the Monday next after Trinity Sunday whensoever it shall happen to fall for the keeping of the essoynes profers returns and other ceremonies heretofore used and kept In which place profer seemeth to signfie the offer or indeavour to proceed in action by any man whom it concerneth so to do See Britton cap. 2. fol. 50. b. 55. a. fol. 80. b. and Fleta lib. 1. cap. 38. sect Utlagati et seq Profer the half mark See Half mark Profession professio is in the Common law used particularly for the entring into any religious Order of Friers c. New book of Entries verbo Profession Profits apprender See Prender Prohibition prohibitio is a writ framed for the forbidding of any Court either spiritual or secular to proceed in any cause there depending upon suggestion that the cognition thereof belongeth not to the said Court Fitz. nat br fol. 39. G. but is most usually taken especially in these daies for that writ which lyeth for one that is impleaded in the Court Christian for a cause belonging to the temporal jurisdiction or the cognisance of the Kings court whereby as well the party and his Councel as the Iudge himself and the Register or forbidden to proceed any farther in that cause for that it appertaineth to the dis-inheritage to the Crown of such right as belongeth unto it In how many cases this lyeth see Broke hoc titulo and Fitz. na br fol 93. seq This writ and the praemunire might in these daies well be spared for they were helps to the Kings inheritance and Crown when the two swords were in two divers hands Whereas now both the Iurisdictions being setled in the King there is small reason of either except it be to weary the subject by many quirks and delays from obtaining his
but what observations he must use in his hunting see him pag. 180 181 186. See him likewise parte 2. ca. 20. num 5 8 9 c. See Purlieu Purpresture See Pourpresture Pursey anno 43 Eliz. cap. 10. Purswivant See Poursuivant Purveyours See Pourveyours Pyker aliàs Pycar a kind of ship anno 31 Edw. 3. stat 2. cap. 2. Q QUadragesima is the first Sunday in Lent so called as I take it because it is the fourtieth day before Easter The sunday before that is Quinquagesima the second before Sexagesima the third septuagesima Quae plura is a writ that lyeth where an inquisition hath been made by an Escheator in any county of such Lands or Tenements as any man dyed seised of and all that was in his possession be not thought to be found by the office The form whereof see in the Register original fol. 293. and in Fitz. nat br fol. 255. It differeth from the writ called melius inquirendo as Fitzh there sayth because this is granted where the Escheator formerly proceeded by vertue of his office and the other where he found the first office by vertue of the writ called Diem clausit extremum See the new Book of Entries verbo Quae plura Querens non invenit plegium is a return made by the Sheriff upon a writ directed unto him with this condition inserted Si A. fecsrit B. securum de loquela sua prosequenda c. Fitzherbert Nat. brev fol. 38. o. Quae servitia is a Writ See per quae servitia Quale jus is a writ judicial that lyeth where a man of religion hath judgement to recover Land before execution be made of the judgement for this writ must between Iudgement and execution go forth to the Escheator to enquire whether the religious person hath right to recover or the judgement is obtained by collusion between the Demandant and the Tenant to the intent that the true Lord be not defrauded See Westm 2. Cam. 32. Cum Viri religiosi c. The form of this writ you may have in the Register judicial fol. 8 16 17 et 46. And in the Old nat br fol. 161. See the new book of Entries verbo Quale jus Quare ejecit infra terminum is a writ that lyeth for a Leassee in case where he is cast out of his Ferm before his term be expired against the Feoffee or leassour that ejecteth him And it differeth from the Ejectione firma because this lyeth where the leassor after the lease made infeoffeth another which ejecteth the leassee And the Ejectione firma lyeth against any other stranger that ejecteth him The effect of both is all one and that is to recover the residue of the term See Fitzh nat brev fo 197. See the Register original fol. 227. And the new book of Entries verbo Quare ejecit infra terminum Quare impedit is a writ that lyeth for him who hath purchased a mannor with an advowsen thereunto belonging against him that disturbeth him in the right of his advowsen by presenting a Clerk thereunto when the Church is void And it differeth from the writ called Assisa ultimae praesentationis because that lyeth where a man or his Ancestors formerly presented and this for him that is the purchasor himself See the Expositour of the terms of the Law and Old nat brev fol. 27. Bracton lib. 4. tractat 2. cap. 6. Britton ca. 92. and Fitzh nat br fol. 32. and the Register original fol. 30. where it is said That a Quare impedit is of a higher nature than Assisa ultimae praesentationis because it supposeth both a possession and a right See at large the new Book of Entries verbo Quare impedit Quare incumbravit is a writ that lyeth against the Bishop which within six months after the vacation of a Benefice conferreth it upon his Clerk whilest two others be contending in law for the right of presenting Exposition of the Terms of Law Old nat br fol. 30. and Fitzh nat br fol. 48. Regist origin fo 32. Quare intrusit matrimonio non satisfacto is a writ that lyeth for the Lord against his Tenant being his Ward that after covenable mariage offered him marieth another and entreth neverthelesse upon his Land without agreement first made with his Lord and Gardian Terms of the Law Quare non permittie is a writ that lyeth for one that hath right to present for a turn against the Proprietary Fleta lib. 5. cap. 16. Quarentine quarentina is a benefit allowed by the Law of England to the widow of a landed man deceased whereby she may challenge to continue in his capital messuage or chief Mansion house by the space of forty daies after his decease Of this see Bracton lib. 2. ca. 40. And if the heir or any other attempt to eject her she may have the writ De Quarentina habenda Fitzh nat brev fo 161. See anno 9 H. 3. cap. 7. and anno 20. cap. 1. and Britton cap. 103. M. Skene de verborum significatione verbo Quarentina viduarum deriveth this word from the French quaresme Who also have this custome called lo quaeresme des refues granted to widows after the decease of their husband as he proveth out of Papon in his Arests lib. 15 titulo des dots cap. 7. and li. 10. tit Substitutiones cap. 30. Of this read Fleta also lib. 5. cap. 23. Quarentina habenda is a writ that lyeth for a widow to enjoy her Quarentine Register original fo 175. Quare non admisit is a writ that lyeth against the Bishop refusing to admit his Clark that hath recovered in a plee of advowsen The further use whereof see in Fitz. nat br fo 47. and Register origin fo 32. See the new book of Entries verbo quare non admisit Quare obstruxit is a writ that lyeth for him who having a servitude to passe through his Neighbours ground cannot enjoy his right for that the owner hath so strengthned it Fleta li. 4. cap. 26 sect Item si minus Quarter Sessions is a Court held by the Iustices of Peace in every County once every quarter The jurisdiction whereof how far it exceedeth is to be learned out of M. Lamberts Eirenarcha Sir Thomas Smith de republ Angl. li. 2. cap. 19. But to these you may adde the late Statutes of the Realm for their power daily encreaseth Originally it seemeth to have been erected only for matters touching the peace But in these days it extendeth much further That these Sessions should be held quarterly was first of all ordained so far as I can learn by the statute anno 25 E. 3. statut 1. cap. 8. Of this read Lamberts Eirenarcha the fourth book throughout where he setteth them out both learnedly and at large Quash quassare commeth of the French quasser i. quassare conquassare It signifieth in our Common Law to overthrow Bracton lib. 5 tractat 2. cap. 3. nu 4. Quecbord anno 17 Ed. 4. ca. 2. Que est mesme
lyeth for the tenent in tail tenent in dower or tenent for term of life having lost by default against him that recovered or against his heir Exposition of terms See Brook hoc tit See the Reg. origin fo 171. and the new book of Entries verbo Quod ei deforceat Quod permittat is a writ that lyeth for him that is disseised of his Commune of pasture against the heir of the disseisour being dead Terms of the Law Briton cap. 8. saith That this writ lyeth for him whose Auncestour died seised of commune of pasture or other like thing annexed to his inheritance against the Deforceour See Brook hoc titulo See the Register origin fo 155. and the new book of Entries verbo Quod permittat Quod Clerici non eligantur in officio ballivi c. id est a writ that lyeth for a Clark which by reason of some Land he hath is made or in doubt to be made either Bayliff Bedell or Reeve or some such like officer See Clerico infra sacres c. See the Register orig fol. 187. Fitzh nat br fo 175. Quod Clerici beneficiati de Cancellaria is a writ to exempt a Clark of the Chancery from contribution towards the proctors of the Clergy in Parliament Register origin fo 261. a Quòd persona nec Praebendarti c. is a writ that lyeth for spiritual persons that are distreined in their spiritual possessions for the payment of the fifteenth with the rest of the parish Fitz. nat br fol. 176. Quod non permittat See Consuetudixibus servitiis Quo jure is a writ that lyeth for him that hath land wherein another challengeth commune of pasture time out of mind And it is to compell him to shew by what title he challengeth this Commune of pasture Fitzherberts natura brevium fo 128. Of this see Briton more at large cap. 59. See the Regist orig fo 156. and the new book of Entries verbo Quo jure Quo minus is a writ that lyeth for him that hath a Grant of House-bote and Hey-bote in another mans woods against the Granter making such waste as the Grantee cannot enjoy his grant Old nat br fol. 148 Terms of law see Brook hoc titulo See Kitchin fol. 178. b. This writ also lyeth for the Kings Farmer in the Exchequer against him to whom he selleth any thing by way of bargain touching his farm Perkins Graunts 5. For he supposeth that by the breach of the vendee he is disabled to pay the King his Rent Quo warranto is a writ that lyeth against him which usurpeth any Fraunchis or liberty against the King as to have wayfe stray fair market court baron or such like without good title Old nat br fol. 149. or else against him that intrudeth himself as heir into Land Bracton lib. 4. tractat 1. cap. 2. numb 3. See Brook hoc titulo You may read of this also anno 18 Ed. prim Stat. 2 3. et anno 30 ejusdem And the new book of Entries Quo warranto R RA RAch vintage anno 32 H. 8. c. 14. is a second vintage or voyage for wines by our Merchants into France c. For rackt wines that is wines cleansed and so purged that it may be and is drawn from the lees From this voyage our Merchants commonly return about the end of December or beginning of Ianuary Radknights See Roadknights Ran is a Saxon word signifying so open a spoyling of a man that it cannot be denyed Lamb. Archan fol. 125. defineth it thus Ran dicitur aperta rapina qua negari non potest Ransome redemptio commeth of the French raacon or rencon i. redemptio It signifyeth properly with us the sum paid for the redeeming of a Captive and sometime a great sum of mony to be paid for the pardoning of some hainous crime Anno pri H. 4. cap. 7. Note that when one is to make a Fine and Ransome the Ransome shall be treble to the Fine Cromptons Justice of peace fol. 142. a. and Lamb. Eirenarch lib. 4. cap. 16. pa. 556. Horn in his mirrour of Justices maketh this difference between amerciament and ransome because ransome is the redemption of a corporal punishment due by law to any offence lib. 3. cap. de amerciament taxable Rape rapus vel rapa is a part of a County signifying as much as a Hundred As Southsex is divided into six parts which by a peculiar name are called rapes viz. the Rape of Chichester of Arundel of Brember of Lewis of Puensey of Hastings Cambden Britan. pag. 225. whom also see pag. 229. These parts are in other places called Tythings Lathes or Wapentakes Smith de repub Angl. li. 2. ca. 16. Rape raptus is a felony committed by a man in the violent deflowring of a woman be she old or young Briton ca. 1. whereof West parte 2. Symb. titulo Inditements sect 54 hath these words Copulation violent is termed a rape or ravishment of the body of a woman against her will which is carnal knowledge had of a woman who never consented thereunto before the fact nor after And this in Scotland ought to be complained of the same day or night that the crime is committed Skene de verborum significa verbo raptus His reason quia lapsu diei hoc crimen praescribitur This offence is with us Felony in the principal and his ayders anno 11 Hen. 4. cap. 13. anno pri Ed. 4. ca. 1. West 2. ca. 13. But Fleta saith That the complaint must be made within forty daies or else the woman may not be heard Lib. 3. cap. 5. sect praeterea And carnal knowledge of a woman under ten years old is felony Anno 8 Elizabeth ca. 6. Thus far Master West Of the diversity of Rapes see Cromptons Iustice of peace fol. 43. b. and 44. See Ravishment The Civil law useth raptus in the same signification And rapere virginem vel mulierem est ei vim inferre et vila re Co. li. de raptu virginis Raptuâ—haeredis is a writ lying for the taking away of an heir holding in socage and of this there be two sorts one when the heir is maried the other when he is not Of both these see the Register original fol. 163. b. Rastall was a Lawyer of reverend account that lived in Queen Maries daies and was a Iustice of the Common plees he gathered the statutes of the Land into an abridgement which carryeth his name at this day He is also the Author of the new book of Entries Ratification ratificatio is used for the confirmation of a Clerk in a Prebend c. formerly given him by the Bishop c. where the right of patronage is doubted to be in the King Of this see the Register original fol. 304. Rationabili parte bonorum is a writ that lyeth for the wife against the Executors of her Husband denying her the third part of her Husbands goods after debts and funeral charges defrayed Fitzh nat br fo 222.
Who there citeth the eighteenth chapter of Magna Charta and Glanvile to prove that according to the Common law of England the goods of the deceased his debts first paid should be divided into three parts whereof his wife to have one his chldren the second and the executors the third Fitzherbert saith also that this writ lyeth also as well for the children as for the wife And the same appeareth by the Regist original fol. 142. b. I have heard some learned men say that it hath no use but where the custome of the Country serveth for it See the new book of Entries verbo Rationabili parte rationabili parte bonorum Rationabilibus divisis is a writ which lyeth in case where two Lords in divers towns have their seigneuries joyning together for him that findeth his waste by little and little to have been encroached upon within memory of man against the other that hath encroached thereby to rectifie the bounds of their Seigneuries In which respect Fitzherbert calleth it in his own nature a writ of right The old Natura brevium saith also that this is a Iusticies and may be removed by a pone out of the County to the Common bank See further the form and use of this writ in Fitzherberts natura brevium fo 128. and in the Reg. fo 157. b. and in the new book of Entries verbo rationalibus divisis The Civilians call this Judicium finium regundorum Ravishment raptus commeth of the French ravissement i. direptio ereptio raptie raptus raptura and signifyeth in our law an unlawfull taking away either of a woman of an heir in ward Sometime it is used also in one signification with rape viz. the violent deflowring of a woman See Rape And thereupon is the writ called ravishment de gard otherwise called de haerede abducto lying for the Lord whose tenent by reason of his tenure in Knights service being his ward is taken and conveyed from him See Fitz. nat br in the writ De recto de custodia fo 140. f. See also the old Nat. br fo 92 93 94. See the new book of Entries verb. Rape ravishment de gard Rawe anno 4 Edw. 4. cap. 1. Rawnge commeth of the French ranger i. astituere ordinare or else the substantive ' rang i. ordo series It is used in our Common law both as a verb as to rawnge and also as a substantive as to make rawnge Charta de Foresta cap. 6. The word is appropriated to the Forest signifying the office of the Rawnger The Rawnger is a sworn officer of the Forest of which sort there seem to be twelve Charta de foresta ca. 7. whose authority is partly declared in his oath set down by M. Manwood parte pri of his Forest laws page 50. in these words You shall truly execute the office of a Rawnger in the Purluise of B. upon the borders of the Kings Forest of W. you shall rechase and with your hound drive back again the wild beasts of the Forest as often as they shall raunge out of the same Forest into your Purlieuse You shall truly present all unlawfull hunting and hunters of wild beasts and venery as well within the Purlieuse as within the Forest And these and all other offences you shall present at the Kings next court of Attachments or Swainmote which shall first happen so help you God but the same Author setteth down his office more particularly in his second part cap. 20. num 15 16 17. The sum whereof is this A Rawnger is an Officer of the Forest or to the Forest but not within the Forest having no charge of vert but only of venison that commeth out of the Forest into his charge or part of the pourallee to safe conduct them back again And therefore in those Forests that have no pourallees there to be no Rawngers but Foresters serve the turn This Rawnger is made and appointed by the King his Letters patents under the great seal and for his better encouragement in his duty he hath a yearly fee of twenty pound or thirty pound paid out of the Exchequer and certain fee Deer both red and fallow His office consisteth chiefly in these three points ad perambulan dum quotidie per terras deafforestatas ad videndum audiendum et inquirendum tam de malefactis quam de malefactoribus in Balliva sua ad resugandum feras forestae tam veneris quam chaseae de terris deafforestatis in terras afforestatas et ad praesentandum omnes transgressiones Forestae in terris deafforestatis factas ad poximas curias illius forestae tentas Rawsom see Rausom Ray seemeth to be a word attributed to cloath never coloured or dyed v. anno 11 H. 4. ca. 6. RE Realty see Royalty Reasonable ayd rationabile auxilium is a duty that the Lord of the fee claimeth of his tenants holding by Knights service or in socage to mary his daughter or to make his son Knight West 1. ca. 39. See Ayd See Frook titulo Reasonable ayd Reattachment Reattachiamentum is a second attachment of him that was formerly attached and dismissed the Court without day as by the not comming of the Iustices or some such like casualty Brook tit Reattachment where he maketh Reattachment general and a Reattachment special Reattachment general seemeth to be where a man is reattached for his appearance upon all writs of assise lying against him Brook eodem num 18. Then special must be for one or more certain Register Iudicial fo 35. See the new book of Entries verbo Reattachment Rebellion rebellio is a French word signifying the taking up of arms against the King or present Estate This French commeth from the Latine rebellio which signifieth a second resistance of such as being formerly overcome in battell by the Romans yielded themselves to their subjection The Frenchmen and we use it generally for the traiterous taking up of arms against the Estate be it by natural subjects or by others formerly subdued Read more of this lib. 3. Feudorum ca. 61. and Hotâ—man upon the same Chapter See the writ of Rebellion Rebell is sometime attributed to him that wilfully breaketh a law anno 25 Ed. 3. cap. 6. and anno 31 ejusdem stat 3. cap. 2. Sometime to a Villein disobeying his Lord anno 1 R. 2. cap. 6. Rebellious Assembly is a gathering together of twelve persons or more intending or going about practising or putting in ure unlawfully of their own authority to change any laws or statutes of this present Realm or to destroy the inclosure of any Park or ground inclosed or banks of any fish-ponds pool or conduit to the intent the same shall remain void or to the intent unlawfully to have common or way in any of the said grounds or to destroy the Deer in any Park or any Warren of conies or dove-houses or fish in any ponds or any House Barns Mills or Bays or to burn stacks of corn or to
abate rents or prices of victuals anno pri Mar. 12. anno 1 Eliz. cap. 17. See West parte 2. symb titulo Inditem Sect. 65. And Cromptons Justice of peace fol. 41. b. Rebutter commeth of the French Bouter i. pellere impellert propellere intrudere and signifyeth in our Common law the same thing For example a man giveth land to him and the issue of his body to another in fee with warranty And the Donee leaseth out his Land to a third for years The heir of the Donour impleadeth the Tenant alleging that the Land was in tayl to him The Donee commeth in and by vertue of the warranty made by the Donor repelleth the Heir because though the land were intailed to him yet he is beiâ— to the warrantee likewise and this is called a Rehutter See Brook titulo barre num 23. And again if I grant to my Tenent to hold sine impetitione vasti and afterward I implead him for waste made he may debar me of this action by shewing my grant And this is likewise a Rebutter idem eodem num 25. See the new book of Entries verbo Rebutter Renant an 32 H. 8. ca. 2. Recaption recaptio signifieth a second distresse of one formerly distreined for the self same cause and also during the plea grounded upon the former distresse It likewise signifieth a writ lying for the party thus distreâ—ned the form and further use whereof you may see in Fitz. nat br fol. 71. and the Regist. orig fo 86. and the Register Judicial fo 69. and the new book of Entries verb. Recaption Receyver receptor or receptator generally and indefinitely used is as with the Civilians so also with us used commonly in the evil part for â—uch as receive stollen goods from theeves and conceal them li. 1. Ï€ de receptatoribus But annexed to other words as the receiver of rents c. it signifieth many times an officer of great account belonging to the King or other great personage Cromptons Jurisdict fol. 18. There is also an officer called the Receiver of Fines who receiveth the mony of all such as compound with the King in the office of the Finances for the buying of any lands or tenements holden in Capite West parte 2. symb titulo Fines sect 106. Receiver of all offices accountable an 1 Ed. 4. cap. 1. Receiver general of the Dutchy of Lancaster is an office belonging to the Dutchy Court that gathereth in all the revenues and fines of the lands of the said Dutchy and of all forfeitures and assessements or what else is thence to be received Receiver general of the Court of Wardt and liveries is an officer belonging to that Court that is to receive all rents revenues fines of the lands belonging to his Majesties Wards as also the fines for licences to the Kings widows to mary of custer le maine sued out and for ideots and lunaticks land and finally all other profits whatsoever in mony arising to his Majesty out of or by reason of the Court of Wards and liveries Receiver general of the Muster Rolls anno 35 Eliz. ca. 4. Receiver general of the Dutchy of Lancaster of the Wards and liveries anno 39 Elizab. cap. 7. Receyt See Resceit Recluse Reclusus is he that by reason of his order in religion may not stir out of his house or cloyster Littleton fol. 92. Recognisance Recoguitio commeth of the French Recogneisance i. agnitio recognitio and in our Common law is thus defined A Recognisance is a bond of Record testifyng the recognizour to owe unto the recognizee a certain sum of mony and is knowledged in some court of Record or before some Iudge or other officer of such Court having authority to take the same as the Masters of the Chancery the Judges of either Bench Barons of the Exchequer Justices of peace c. And those that be meer Recognisances are not sealed but inrolled And execution by force thereof is of all the recognisors goods and chatells except the draught beasts and implements of husbandry and of the moyety of his Lands West parte pri symb li. 2. titulo Recognisances sect 149. And of these you may see there great diversity of Presidents Note farther that a Recognisance though in the special signification it do but acknowledge a certain debt and is executed upon all the goods and half the lands of the recognisour yet by extention it is drawn also to the Bonds commonly called Statute Merchant and Statute of the Staple as appeareth by the Register orginal fol. 146 151 252. and by West ubi supra and others See Statute Merchant and Statute Staple Recognisance hath yet another signification as appeareth by these words in the Statute West 1. cap. 36. anno 3 Ed. 1. It is provided also and agreed that if any man be attainted of disseisin done in the time of our King that now is with robbery of any manner of goods or moveables by recognisance of Assise of novel disseisin the judgement shall c. In which place it is used for the verdict of the twelve men impaneled upon an Assise which twelve are also called recognitors of the Assise Littleion fol. 72. So also Bracton called them lib. 5. tractat 2. cap. 9. nu 2. in these words In essonio verâ— reddendo exigentur omnes illi quos causa tetigerit sicut particeâ—â— Warrantus alii ut supra Recognitores in assisis Juratores in Juratis Inquisitores inquisitionibus c. And again lib. 3 tract 1. cap. 11. num 16. See the Statute anno 20 Ed. prim stat 4. See the new book of Entries ver Recognisance Recognitione adnullanda per vim duritiem facta is a writ to the Iustices of the Common Bench for the sending of a Record touching a recognisance which the recognisour suggesteth to be acknowledged by force and hard dealing that if it so appear it may be disannulled Register original folio 183. a. b. Recognitors recognitores is a word used for the Iury empaneled upon an assise The reason why they be so called may be because they acknowledge a disseisin by their verdict See Bracton lib. 5. tract 2. cap. 9. nu 2. lib. 3. tract prim cap. 11. num 16. Record recordum commeth of the Latine recordari The word is both French and English and in both tongues signifieth an authentical or uncontroulable testimony in writing Briton cap. 27. and Lamb. Eirenarch lib. 1. cap. 13. In the grand Custumary of Normandy there are several Chapters of divers Records expressing whose presence in each of the Courts is sufficient to make that which is enacted to be a record viz. the 102. Chapter where you have words to this effect The record of the Kings Court is a record of things done before the King All things done before the King so he have one other witness This record may he and other make if he himself will not make it it may be made by three others And his person may not
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
used in our vulgar talk for the petit Sessions which are yearly kept for the disposing of Servants in service by the Statute anno 5 Elizabeth cap. 4. See Recognisance Statute sessions otherwise called Petit Sessions are a meeting in every Hundred of all the Shires in England where of custome they have been used unto the which the Constables do repair and others both Housholders and servants for the debating of differences between Masters and their Servants the rating of Servants wages and the bestowing of such people in Service as being fit to serve either refuse to seek or cannot get Masters anno 1 Eliz. cap. 4. Statu'o stapulae is a writ that lyeth to take his body to Prison and to seise upon his Lands and goods that hath forfeited a bond called Statute staple Regist orig fol. 151. a. Statutam de laborariis is a writ Iudicial for the apprehending of such labourers as refuse to work according to the Statute Reg. judi fol. 27. b. Statuto Mercatorio is a writ for the imprisoning of him that hath forfeited a bond called the Statute Merchant untill the debt be satisfied Regist origin fol. 146. b. and of these there is one against Lay persons ubi supra and another against Ecclesiastical 148. Stavisaker staphis agria vel herba pedicularis is a medicinable herb the kind and vertues thereof you have set forth in Gerards Herbal lib. 1. cap. 130. The seed of this is mentioned among drugs to be garbled anno 1 Jacob. ca. 19. Stenrerie is used for the same that Stannaries be in the statute anno 4 H. 8. cap. 8 See Stannaries Sterling Sterlingum is a proper epitheton for mony currant within the Realm The name groweth from this that there was a certain pure Coyn stamped first of all by the Easterlings here in England Stows Annals pag. 112. The which I rather believe because in certain old Monuments of our English and broken French I find it written Esterling so Roger Hoveden writeth it parte poster annalium fol. 377. b. M. Skene de verborum sipnific verbo Sterlingus saith thus Sterling is a kind of weight containing 32 corns or grains of wheat And in the Canon law mention is made of five shilling sterling and of a merk sterling ap 3. de arbitriss c. constituit 12. de procurator And the sterling peny is so called because it weighs so many grains as I have sundry times proved by experience and by the law of England the peny which is called the sterling round and without clipping weigheth 32 grains of wheat without tails whereof twenty make an ounce and 12 ounces a pound and eight pound make a gallon of wine and eight gallons maketh a bushell of London which is the eighth part of a quarter Hitherto M. Skene Buchanan lib. 6. saith that the common People think it so termed of Sterling a Town in Scotland Our Lyndwood saith that it is called sterling of the bird which we call a sterling which as he noteth was ingraven in one quarter of the coin so termed cap. Item quia de testamentis vaerb Cent. solides in Glos Stews are those places which were permitted in England to women of prosessed incontinency for the proffer of their bodies to all commers it is derived from the French Estuves i. thermae vaporarium Balneum because wantons are wont to prepare themselves to these venerous acts by bathing themselves And that this is not new Homer sheweth in the 8 book of his Odiss where he reckneth hot bathes among the effeminate sort of pleasures Of these stewes see the statute anno 11 Hen 6. ca. pri Steward See Seneschall and Stuward Steward of the Kings house an 25 Ed. 3. statute 5. cap. 21. Stily ard Guilda Theutonicorum anno 22 H. 8. ca. 8. et anno 32 ejusdem ca. 14. is a place in London where the fraternity of the Easterling Merchants otherwise the Merchants of Hawnse and Almain an pri Ed. 6. cap. 13. are wont have their abode See Geld. It is so called of a broad place or Court wherein Steel was much sold upon the which that house is now founded Nathan Câ—itraeus See Hawnse Stone of wool Petra lanae see Weights See Sarpler It ought to weigh 14 pounds yet in some places by custome it is more See Cromptons Justice of peace f. 83. b. Straife aliâs Stray See Estry Straits anno 18 H. 6. ca. 16. Streme works is a kind of work in the Stanaries for saith M. Camden titulo Cornwall pa. 119. Horum Stanarioâ—um five metallicorum operum duo sunt genera Alterum Lode-works alterum streme works vo cant Hoc in lecis inferioribus est cum Fossis agendis stanni venas sectantur et fluvierum alveos subinde defl ctunt illud in locis aeditiorsbus cum in montibus puteor quod Shafts vcc in t in magnam attitudinem defodiunt et cuniculos agunt These you may read mentioned an 27 H. 8. cap. 23. Stirks Strip See Estreapement SU Suard aliâs steward senescallus seemeth to be compounded of Steed and ward and is a word of many applications yet alway signifieth an officer of chief account within the place of his sway The greatest of these is the Lord high Steward of England whose power if those Antiquities be true which I have read is next to the Kings and of that height that it might in some sort match the Ephori amongst the Lacedemonians The custom of our Common-wealth hath upon great consideration and policie brought it to passe that this high Officer is not appointed for any long time but only for the dispatch of some especiall businesse at the arraignment of some Nobleman in the case of treason or such like which once ended his Commission expireth Of the high Steward of Englands Court you may read Cromptons Jurisd f. 28. I have read in an antient Manuscript of what credit I know not that this Officer was of so great power in antient times that if any one had sought justice in the Kings Court and not found it he might upon complaint therof made unto him take those Petitions and reserving them to the next Parliament cause them there to be propounded and not only so but also in the presence of the King openly to rebuke the Chancellor or any other Judge or officer whom he found defective in yeilding Justice And if in case the judge or Officer so reprehended did allege that his defect grew from the difficultie of the case insomuch as he durst not adventure upon it then the case being shewed and so â—ound the Lord Steward together wich the Constable of England there in the presence of the King and Parliament might elect five and twenty persons or more or fewer according to their discretion and the case or cases in question some Earls some Barons some Knights some Citizens and Burgesses which upon deliberation should set down what they thought just and equal and their decree being read and allowed by Parliament did
sayth in his explication of Saxon words verbo Coventus is Conventus whereupon it is to be noted as he saith in the same place that the Swainmote is a Court of Freeholders within the Forest Of the which you may read him at large pag. 110. c. usque 122. TA. TAbling of Fines is the making of a Table for every County where his Majesties writ runneth contaning the contents of every Fine that shall passe in any one Term as the name of the County Towns and places wherein the Lands or Tenements mentioned in any Fine do lye the name of the Plaintiff and Deforceant and of every manner named in the Fine This is to be done properly by the Chirographer of Fines of the Common plees who the first day of the next Term after the ingrossing of any such Fine shall fix every of the said Tables in some open place of the Court of the Common Plees and so every day of the said Term during the sitting of the said Court. And the said Chirographer shall deliver to the Sheriff of every County his Undersheriff or Deputy fair written in Parchment a perfect content of the Table so to be made for that Shire in the Term that shall be next before the Assises to be holden in the same County or else in the mean time between the Term and the said Assises to be set up the first day and every day of the next Assices in some open place of the Court where the Justices of Assises then shall sit to contiuue there so long as they shall sit in the said Court If either the Chirographer or Sheriff fail herein he forfeiteth five pounds And the Chirographers fee for every such Table is four pence anno 23 Elizab. cap. 3. This saith West parte 2 Symbol titulo Fines Sect. 130. Tail tallium commeth of the French Tail i. Sectura or the verb taillor i. scindere signifying in our Common law two several things both grounded upon one reason Plowden casu Willion fol. 251. a. b. First it is used for the fee which is opposite to fee simple by reason that it is so as it were minced or pared that it is not in his free power to be disposed of him which owneth it but it is by the first giver cut or divided from all other and tyed to the issue of the Donee Coke lib. 4. in prooemio And this limitation or tayl is either general or special Tail general is that whereby lands or tenements are limited to a man and to the heirs of his body begotten And the reason of this term is because how many soever women the tenent holding by his Title shall take to his wives one after another in lawfull matrimony his issue by them all have a possibility to inherit one after the other Tail special is that whereby Lands or tenements be limited unto a man and his Wife and the Heirs of their two bodies begotten because if the man bury his wife before issue and take another the issue by his second wife cannot inherit the Land c. Also if Land should be given to a man and his wife and to their Son and Heir Iohn for ever this is tail especial See more of this in fee And Liitleton lib. pri cap. 2. and the new book of Entries verbo Tail Tail in the other signification is that which we vul garly call a Tallie For it is une taille de bois a cloven peice of wood to nick up an account upon for in the Statute anno 10. Ed. pri cap. 11. and anno 27. ejusdem stat pri cap. 2. it is termed a Tail and anno 38 Edw. 3. cap. 5. And so in Broke his Abridgement titulo Taild ' Exchequer fol. 247. See Tails Tailes talliae are in these dayes called Talleyes well known what they be Of these read in our statutes two sorts to have been usuall in the Exchequer for a long continuance The one is termed tayles of debt anno 1 Rich. 2. cap. 5. which are a kind of acquittance for debt paid in to the King For example the University of Cambridge payeth yeerly ten pounds for such things as are by their Charter granted them in see ferm five pounds at the Annunciation and five at Michaelmas Hee that payeth the first five pounds receiveth for his discharge a tail or talley and he that payeth the other five receiveth the like With both which or notes of them he repaireth to the Clerk of the Pipes office and there in stead of them receiveth an acquittance in parchment for his whole discharge Then be there also mentioned Tayles of reward anno 27 H. 8. cap. 11. anno 33. et 34. ejusdem cap. 16. and anno 2 et 3 Ed. 6. ca. 4. And these seem to be tailes or talies of allowances or recompence made to Sheriffs for such matters as to their charge they have performed in their office or for such monies as they by course have cast upon them in their accounts but could not levie them where they were due And these as it seemeth by the said statute anno 27 H. 8. cap. 11. were of old granted in the Exchequer unto them upon warrant made to the Treasurer and Chamberlains there by the Clerks of the Signet upon Bill assigned by the King But sithence the statute anno 2 et 3 Edw. 6. cap. 4. What the course in this case is I am not so well informed Only I hear that for some Counties these tailes be still in use and that the warrant commeth now from the Auditour of the Receites unto those that make these talies And that the Sheriff with them proceedeth to those who take his finall account and there hath his allowance accordingly Taylage tallagium aliâs Tallage commeth of the French taille which originally signifieth a piece cut out of the whole and metaphorically is used for a share of a mans substance payed by way of tribute It signifieth with us a rolle or taxe as anno prim Ed. 2. cap. unico And Stowes Annals pag. 445. Thence cometh Tailaigiers in Chawcer for tax or tollegatherers Taint Attinctus commeth of the French teinct i. infectus tinctus and signifieth either Substantively a conviction or Adjectively a person convicted of felonie or treason c. See Attaint Tales is a Latin word of known signification It is used in our Common law for a supply of men empaneled upon a Jury or Enquest and not appearing or at their apparence challenged by the party or either party if there be two as not indifferent for in this case the Iudge upon petition granteth a supply to be made by the Sheriff o◠some men there present equal in reputation to those that were empanelled And hereupon the very act of supplying is called a Tales de Circumstantibus This supply may be one or more and of as many as shall either make default or else be challenged by each partie Stawnford pl. cor lib. 3. cap. 5. Howbeit he that hath had
distinction groweth from an event after the death of him that covenanteth to warrant But to make this plain I find warranty to be used equivocally signifying one sort the contract or covenant of warranty first made as appeareth by Bracton in the place formerly noted and in another sort the very effect and performance of this contract either by the Warrenter or his heirs when he or they be by the tenent thereunto vouched or called As also I shew out of Bracton lib. 5. tract 4. cap. pri nu 2. in these words Inprimis videndum est quid sit warrantizatio Et sciendum quòd warrantizare nihil aliud est quà m defendere acquietare tenentem qui warrantum vocabit in seisina sua c. VVith whom agreeth Fleta saying that Warrantizare nihil aliud est quam possidentem defendere lib. 5. ca. 15. § 1. lib. 6. cap. 23. quod lege per totum And the former division of lineal and collateral warranty rather belonging to warranty in the second signification than the former And that this way it is imperfect or at the least obscure I think it not hard to declare First to shew this I note out of Bracton who may be called to warranty And he lib. 5 tract 4. cap. pri num 5. saith thus Videndum est quis vocari possit ad warrantum sciendum quod tam maseulus quam foemina tam minor quà m major dism tamen si minor vocetur remane at platitum de warrantia in suspenso usque ad aetutem uisicausa fuerit ita favorabilis quòd aetas expectari non debeat sicut ex causa Dotis Item non solum vocandus est ad warrantum ille qui dedit vel vendidit verum etiam vocandi sunt eorum haeredes-descendentes in infinitum propter verba in Chartis contenta Ego haeredes mei warrantizabimus tali haeredibus suis c. Et in quo casu tenentur haeredes warrantizare sive sini propinqui sive remoti remotiores vel remotissimi Et quod de haeredibus dititur idem dici poterit de assignatis et de illis qui sunt locoallorum haeredum sicut sunt capitales Domini qui tenentibus suis quasi succedunt vel propter aliquem defectum vel propter aliqund delictum sicut de eschaetis Dominorum By which words we perceive that the burthen of this warranty is not tyed to heirs only be they in the descending or collateral line but that under this word Haeredes are comprised all such as the first warranters Lands afterwards come unto either by descent or otherwise ex causa lueraâ—iva So that if a man have twenty children yet if he will and may give his land to a Stranger leaving his children no land that Stranger in this case is his assign and is contained under this word Heir So if he commit felony after such warranty covenanted and forfeited his lands to his Lord by escheat the Lord is quesihares in this case and lyable to the warranty sormerly passed And in these two later cases warranty in the second signification seemeth to be neither lineal nor collateral and at the least as Littleton and the other Author have defined or by example expressed them But let us define these two species as they be wherefore lineal warranty is that which he is called unto by the Tenent upon whom the land warranted had descended if the warrantee had not been covenanted For example A. selleth to B. twenty acres land with clause of warranty and afterward dyeth leaving issue C. soon after B. is impleaded for this Land by D. and voucheth C. This is called a lineal warranty because but for it the land had descended from A. to C. Warranty collateral is that whereunto he is called by the Tenent upon the covenant of him from whom the Land could not descend to the party called For example B. the Son purchaseth Tenements in fee whereof A. his Father disseiseth him and selleth them to C. with a clause of warranty A. being dead C. is impleaded for the Tenements and calleth B. to warranty This warranty whereunto B. is called ia collateral because the Tenements if the warranty had not been covenanted by A. could not have descended from him to his Father A. for they were his own by purchase Many other examples there be of this in Littleton And this very case he maketh his example of warranty by disseisin as also of warranty collateral which plainly argueth that warranty by disseisin and warranty collateral are not distinct members of warrantee but may be confounded though one warranty may carry both names in divers respects For there is some warranty collateral that beginneth not by disseisin For example A. Tenent in tayl alienated to B. in fee and dyeth leaving issue C. afterward D. Brother to A. and Uncle to C. releaseth to B. with warranty and dying leaveth B. his heir being next of blood unto him This warraaty is collateral because it descendeth upon C. from his Vncle D. and yet it beginneth not by disseisin of his said Uncle Warranty hath a double effect one to debar him upon whom it descendeth from the first warranter as his next of blood from claiming the land warranted and another to make it good to the Tenent if by him he be vouched thereunto or else to give him as much other land by exchange But as the former of these effects taketh place with all heirs except those to whom the Land warranted was entailed and that reap no equivalent benefit by the first warranter anno 6 Ed. prim cap. 3. so the later prejudiceth none that receiveth not sufficient Land from the first warranter to make it good Bracton lib. 5. tractat 4. cap. 8. num prim cap. 13. num 2. In the Customary of Normandy cap. 5. you have vouchment de garant which the Interpreter translateth Vocamentum Garanti a voucher or calling of the warranter into the Court to make good his sale or gift Warrantia diei is a writ lying in case where a man having a day assigned personally to appear in Court to any action wherin he is sued is in the mean time by commandment imployed in the Kings service so that he cannot come at the day assigned This writ is directed to the Justices to this end that they neither take nor record him in default for that day Register original fol. 18. Of this you may read more in Fitzherb nat brev fol. 17. and fee Glanvile lib. prius cap. 8. Warrantia chartae is a writ that lyeth properly for him who is infeoffed in land or tenements with clause of warranty and is impleaded in an Assise or Writ of Entry wherein he cannot vouch or call to warranty for in this case his remedy is to take out this writ against the seoffor of his heir Regist. origin fol. 157. Fitzh nat brev fol. 134. Of this yon may likewise read Fleta lib. 6. cap. 35. and West parte 2. symb
which doctrine Fitzherbert in his Natura brevium fol. 112. E. extendeth thus far that if any of the goods be cast upon the dry Land by any in the ship it is no wreck subject to the Prerogative for by this some of the Ship are presumed to come to land and still to have a custody of the goods Cook ubi supra This in the Grand Customary of Normanny cap. 17. is called varech and latined veriscum where it appeareth that the like law to ours was in Normandy almost in all points But some sorts of their precious Merchandise do by their law appertain to the Duke by his Prerogative though a just challenge of the goods be made within the year and day The Emperors of Rome made no advantage of this pitifull event as appeareth titulo De Naufragiis 11. Cod. And it appeareth that Richard the first had some remorse of poor sea-mens miseries in this case For he quietum clam evit wreck suis subditis Rog. Hoveden parte poster suerum annâ—l fol. 386. Of this M. Skene de verb. siguif speaketh to this effect wreck signifieth a power liberty and prerogative appertaining to the King or to any person to whom the same is granted by him by feoffment or any other disposition to take up and gain such goods as are ship-broken or fall to him by escheat of the sea Writ breve is that with our Common Lawyers in Sir Thomas Smiths judgement lib. 2. de Repub. Anglorum ca. 9. which the Civilians call Actionem sive formulam But I am rather of his judgement that hath added the marginal note unto him saying that Actio is the parties whole sute and that Breve is the Kings precept whereby any thing is commanded to be done touching the sute or action as the Defendant or Tenent to be summoned a distresse to be taken a disseisin to be redressed c. And these writs are diversly divided in divers respects Some in respect of their order or manner of granting are termed original and some judicial Original writs be those that are sent out for the summoning of the Defendant in a personal or Tenent in a real action or other like purpose before the sute beginneth or to begin the sute thereby Those be judicial that be sent out by order of the Court where the cause dependeth upon occasion growing after sute begun Old nat brev fol. 51. And Iudicial is thus by one sign known from the Original because the Teste beareth the name of the Chief Iustice of that Court whence it commeth where the Original beareth in the Teste the name of the Prince Then according to the nature of the action they be personal or real and real be either touching the possession called writs of Entry or the property called writs of right Fitz. nat br sparsim per totum Some writs be at the sute of a party some of office Old nat br fol. 147. Some ordinary some of privilege A writ of privilege is that which a privileged person bringeth to the Court for his exemption by reason of some privilege See Procedendo See the new book of Entries verbo Privilegt See Brief Writ of Rebellton See Commission of Rebellion Writer of the Tallies Scriptor talliarum is an Officer in the Exchequer being Clerk to the Auditor of the Receipt who writeth upon the Tallies the whole letfers of the Tellers bills Y. YA YArd lands Virgata terrae is a quantity of land called by this name of the Saxon Gyrdlander but not so certain a quantity as that it is all one in all places For in some Countries it containeth 20 acres in some 24. in some 30. as M. Lamberd saith in his explication of Saxon words verbo virgata terrae This Yard land Bracton calleth virgatam terrae lib. 2. cap. 10. et 37. but he expresseth no certainty what it containeth YE Year and day annus et dies is a time thought in construction of our Common law fit in many cases to determine a right in one and to work an usucapion or prescrition in another As in a case of an estray if the owner Proclamations being made chalenge it not within that time it is forfeit So is the year and day given in case of appeal in case of descent after entry or claim of no claim upon a fine or writ of right at the Common law so of a villein remaining in antient demean of the death of a man sore bruised or wounded of Protections Essoins in respect of the Kings service of a wreck and divers other cases Coke vol. 6. fol. 107. b. And that touching the death of a man seemeth an imitation of the Civil Law Nam si mortiferè fuerit vulneratus et posteà post longum intervallum mortuus fit inde annum numerabimus secundum Iulianum l. ait lex n. ad legem Aquiâ— Year day and wasto annus dies et vastum is a part of the Kings Prerogative whereby he challengeth the profits of their lands and tenements for a year and a day that are attainted of petit treason or felony whosoever be Lord of the Manor whereunto the lands or tenements do belong and not only so but in the end wasteth the tenement destroyeth the houses rooteth up the woods gardens pasture and ploweth up meadows except the Lord of the fee agree with him for the redemption of such waste afterward restoring it to the Lord of the fee wherof you may read at large Siawnf prarog cap. 16. fol. 44. et seq YO Yoman seemeth to be one word made by contraction of two Danish words young men which I gather out of Canutus Charter of the Forest set out out by M. Manwood parte prim fol. prim num 2. in these words Sunt sub quolibet horum quatuor ex mediocribus hominibus quos Angli Legespend â—uncupant Dani vero yong men vecaut locati qui curam et onus tum viâ—idâ—s tum veneris suscipiant These M. Cambden in his Britan. pag. 105. placeth next in order to Gentlemen calling them Iugenuos whose opinion the Statute affirmeth anno 6 R. 2. cap. 4 Whereunto adde the Statute anno 20. ejusdem Regis cap. 2. Sir Thomas Smith in his Repub. Anglor lib. prim cap. 23. calleth him a Yoman whom our Laws call legalem hominem which as he saith is in English a â—ee man born that may dispend of his own free land in yearly revenue to the sum of 40 shillings sterling Of these he writeth a good large discourse touching their estate and use in this Common wealth The former etymologie of the name he liketh not making question whether it come of the Dutch Yonger yea or not which in the Low-countries signifieth a mean Gentleman or a gay fellow but he that hath added the marginal notes to that book seemeth to draw it from the Saxons Geman which signifieth a maried man M. Verstegan in his restitution of decayed intelligence cap. 10. writeth that Gemen among the antient Teutonicks and Germein among the modern signifieth as much as common and that the first Letter G. is in this word as in many others turned into Y. and so writeth Yemen and that therefore Yemen or Yeomen signifieth so much as Commoner Yoman signifieth an Officer in the Kings house which is in the middle place between the Sergeant and the Groom as Yoman of the Chaundry and Yoman of the Scullery an 33 Hen. 8. cap. 12. Yoman of the Crown anno 3 Ed. 4. cap. 5. anno 22 ejusdem cap. 1. anno 4 H. 7. cap. 7. This word Yongmen is used for Yomen in the Statute anno 33 H. 8. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS