parchment rolles for their better keeping to all posterity Of these there be two one of the higher another of the lower or Common house Cromptons Jurisd fol. 4 8. Smith de republ Anglorum pag. 38. See also Vowels book touching the order of the Parliament Clerk of the Crown in the Chancery clericus coronae in Cancellaria is an Officer there that by himself or his Deputy is continually to attend the Lord Chancellor or Lord Keeper for special matters of estate by commission or the like either immediately from his Majesty or by order of his councel as well ordinary as extraordinary viz. commissions of Lieutenancies of Justices errant and of Assises of Oyer and Terminer of Gaol-delivery of the peace and such like with their writs of Association and Dedimus potestatem for taking of oaths Also all general pardons upon grants of them at the Kings coronation or at a Parliament where he sitteth in the higher-house at the Parliament time he writs of Parliament with the names of Knights and Burgesses which be to be returned into his office He hath also the making of all special pardons and writs of execution upon bonds of statute of the Staple forfeited which was anneâ—ed to his office in the reign of Queen Mary in consideration of his continual and chargeable attendance both these before being common for every Cursitour and Clerk of Court to make Clerk of the Crown clericus coronae is a Clerk or officer in the Kings Bench whose function is to frame read and record all indictments against Traitors Felons and other offendors there arraigned upon any publike crime He is otherwise tearmed Clerk of the Crown-office And anno 2 H. 4. cap. 10. he is called Clerk of the Crown of the Kings Bench. Clerk of the Extreats clericus Extractorum is a Clerk belonging to the Exchequer who termely receiveth the Extreats out of the Lord Treasurers Remembrancer his office and writeth them out to be levied for the King He also maketh schedules of such summes extreated as as are to be discharged Clerk of assise clericus assisae is he that writeth all things judicially done by the Justices of assise in their circuits Cromptons Jurisdict fol. 227. Clerk of the Pell clericus Pellis is a Clerk belonging to the Exchequer whose office is to enter every Tellers bill into a parchement rolle called Pellis receptorum and also to make another rolle of payments which is called Pellis exitum wherein he setteth down by what warrant the money was payd Clerk of the Warrants clericus Warrantorum is an officer belonging to the Court of Common Plees which entreth all warrants of Atturney for Plaintiff and Defendant and intolleth all Deeds of Indentures of bargain and sale which are acknowledged in the Court or before any Judges out of the Court. And he doth extreat into the Exchequer all issues fines and amerciaments which grow due to the King any way in that Court and hath a standing fee of ten pounds of the King for making the same ex treats See Fitzh nat br fol. 76. in prin Clerk of the pety Bag clericus parvae bagiae is an Officer of the Chauncerie of which sort there be three and the Master of the Rolles their chief Their office is to record the return of all inquisitions out of â—every Shire all Liveries granted in the Court of Wards all ouster le maines to make all patents of Customers Gaugers Controllers and Aulnegers All conge de eslires for Bishops All liberateis upon extents of statute staples the recovery of Recognisances forfeited and all Elegits upon them the summons of the Nobility Clergy and Burgesses to the Parliament Commissions directed to Knights and other of every Shire for seising of the Subsidies Writs for the nominations of Collectours for the fifteenths and all traverses upon any office bill or otherwise and to receive the mony due to the King for the same This Officer is mentioned anno 33 H. 8. cap. 22. Clerk of the Kings great Wardrobe clericus magnae garderobae regis is an Officer of the Kings house that keepeth an account or Inventary in writing of all things belonging to the Kings wardrobe This Officer is mentioned an 1 Ed. 4. cap. 1. Clerk of the Market clericus merketi is an Officer of the Kings house anno 1 Ed. 4. cap. 1. anno 13 R. 2. cap. 4. whose duty is to take charge of the Kings measures and to keep the standards of them that is the examples of all the measures that ought to be through the Land as of Elns Yards Lagens as Quarts Pottles Gallons c. of Weights Bushels and such like and to see that all measures in every place be answerable unto the said Standard Fleta lib. 2. cap. 8.9.10.11.12 of which office as also of our diversity of weights and measures you may there find a Treatise worth the reading Britton also in his 30 chapter saith in the Kings person to this effect We wil that none have Measures in the Realm but we our selves but that every man take his Measures and Weights from our Standards and so goeth on with a Tractat of this matter that well sheweth the ancient law and practice in this point Touching this Officers duty you have also a good statute anno 13 R. 2. c. 4. Clerk of the Kings silver clericus argenti Regis is an Officer belonging to the Court of Common plees unto whom every fine is brought after it hath been with the custos Brevium and by whom the effect of the Writ of Covenant is entred into a Paper-book and according to that note all the fines of that term are also recorded in the Rolles of the Court. And his entrie is in this form He putteth the Shire over the Margin and then saith A.B. dat domino Regi dimidium merkam or more according to the value pro licentia concordandi C. cum C.D. pro talibus terris in tali villa habet chirographum per pacem admissum c. Clerk of the Peace clericus pacis is an Officer belonging to the Sessions of the peace His duty is in the Sessions to read the Endictments to enrol the Acts and draw the Processe to record the Proclamations of rates for servants Wages to enrol the discharge of Apprentices to keep the Counterpain of the Indenture of Armour to keep the Register book of Licenses given to Badgers and laders of corn and of those that are licensed to shoot in gunnes and to certifie into the Kings Bench transcripts of Indictments Outlawries Attainders and Convictions had before the Justices of the peace within the time limited by statute Lamberts Eirenarcha lib. 4. cap. 3. fol. 379. Clerk of the Signet clericus signeti is an Officer attendant continually on his Majesties principal secretary who alwayes hath the custody of the privy Signet as well for sealing his Majesties privat Letters as also such grants as passe his Majesties hand by bill assigned Of these there be four
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
agreeth the Statute anno 34 35 H. â— cap. 14. in ipso principio and anno 1 Ed. 6. cap. 12. in these words that then every such Offender being duly thereof convicted or attainted by the Laws of this Realm c. And again in these words every Woman that is or shall fortune to be Wife of the person so attainted convicted or out-lawed c. To this you may likewise adde the Statute an 2 3 Ed. 6. c. 33. And Ifind by Stawnf pl. cor f. 66. that a Man by our antient Laws was said to be convicted presently upon the verdict guilty but not to be attainted until it appeared he was no clerk or being a Clerk demanded of his Ordinary could not purge himself So that a man was not attainted upon Conviction except he were no Clerk and in one word it appeareth that Attainder is larger than Conviction Conviction being only by the Jury And attainder is not before Judgement Perkins Graunts num 27 29. Yet it appeareth by Stawnf fo 9. that Conviction is called attainder sometime For there he saith that the verdict of the Jury doth either acquit or attaint a man and so it is Westm pr. cap. 14. anno 3 Edw. 1. This antient Law touching the Conviction and Purgation of Clerks is altered by an 23 Eliz. cap. 2. as you may further read in Clergie Attainder Attinctus though it be most used in matters of Felony or Treason yet it is likewise applied to inferiour transgressions as to Disseisin Westm 1. cap. 36. an 3 Ed. 1. and Britton cap. 26. See Attaint and Attainted Attendant attendens commeth of the French attendere i. demorari operiri expectare praestolari it signifieth in our Common law one that oweth a Dutie or Service to another or after a sort dependeth of another For example there is a Lord Mesn and Tenent the Tenent holdeth of the Mesn by a pennie the Mesn holdeth over by two pence The mean releaseth to the Tenent all the right he hath in the Land and the Tenent diâ—â—h His wife shall be endowed of the Land and she shall be attendent to the Heir of the third part of the peny and not of the 3d. part of the two pence For she shall be endowed of the best possession of her husband Another hath Kithin f. 209. in these word where the wife is endowed by the gardian she shall be attendant to the gardian and to the heir at his full age with whom agreeth Perkins also in Dower 424. Atturney atturnatus cometh of the french tourner i. vertere as tourner son esprit a faire quelque chose i. animum adrem aliquam inclinare Thence cometh the participle tourne i. versus conversus and the Substantive tour i. vices vicissitudo as chacun a sontour i. quilibet sua vice It signifieth in our Common law one appointed by another man to do any thing in his stead as much as procurator or syndicus in the Civil law West parte 1. Symbolaogr lib. 2. sect 559. defineth it thus Atturneys be such persons as by the consent commandment or request to take heed see to and take upon them the charge of other mens businesse in their absence by whom they are commanded or requested And where it seemeth that in ancient time those of authority in Courts had it in their arbitrement whether they would suffer men to appear or sue by any other than themselves as is evident by Fitzh nat br fol. 25. in the writ Dedimus potestatem de atturnato faciendo where it is shewed that men were driven to procure the Kings writs or letters patents to appoint Atturneys for them it is sithence provided by Statutes that it should be lawfull so to do without any such circuit as by the Statute anno 20. H. 3. cap. 10. anno 6 Edw. 1. c. 8. anno 27 ejusdem stat 2. anno 12 Edw. 2.1 anno 15 ejusdem cap. unico anno 7 Ric. 2. cap. 14. anno 7 H. 4. cap. 13. anno 3 H. 5. cap. 2. anno 15 Hen. 6. cap. 7. anno 17 H. 7. cap. 2. is to be proved And you may set great diversity of writs in the table of the Regi origen wherein the King by his writ commandeth the Judges to admit of Atturneys Whereby there grew at the last so many unskilfnl Atturneys and so many mischiefes by them that provision for restraining them was requisite Wherefore anno 4 H. cap. 18. it was ordained that the Justrces should examine them and displace the unskilful And again anno 33 H. 6. cap. 7. that there should be but acertain number of them in Norfolk and Suffolk In what cases a man at this day may have an Atturney and in what not see Fitzh ubi supra Atturney is either general or special Atturney general is he that by generall authority is appointed to all our affaires or sutes as the Atturney general of the King pl. cor fol. 152. which is as much as Procurator Caesaris was in the Romane Empire Atturney general of the Duke Cromptons jurisd fol. 105. Atturney special or particular is he that is employed in one or more causes particularly specified Atturneys-general be made after two sorts either by the Kings letters patents before him or the Lord Chancellour or by our appointment before Justices in Eyr in open court Glanvile l. 11. c. pri Britton c. 126. whom of this thing you may read more at large There be also in respect of the divers Courts Atturneys at large and Atturnies special longing to this or that Court only The name is borrowed of the Norman as appeareth by the Custumary c. 65. And I find the word Attornaty or as some read Turnati in the same signification in the title de statu regularium ca. unico Sect. Porro in sexto where the glosse saith that Atturnati dicuntur Procuratores apud acta eonstituti Our old Latine word for this seems to be responsalis Bract. lib. 4. cap. 31. lib. 5. parte 2. cap. 8. and so it is in Scotland at this day but especially for the Atturney of the Defendant as prolocutor is for the Perssewer M. Skene de verb. significatione Responsalis as Sigonius witnesseth in his first book De regno It aliae was in an ancient time the title of the Popes Ambassador Page 11. Atturney of the Court of Wards and Liveries Atturnatus regis in curia Wardorum Liberatur arum is the third office in that Court who must be a person learned in the lawes of the Land being named and assigned by the King At his admission into the office he taketh an oath before the Master of the said Court well and truly to serve the King as his Attorney in all Courts for and concerning any matter or cause that toucheth the possessions and hereditaments limited to the Survey and government of this Court and to procure the Kings profit thereof truly to counsel the King and the Master of the Court in all things concerning the
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
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
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
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
Remembrancers of the Exchequer Rememoratores be three Officers or Clerks one called the Kings Remembrancer anno 35 El. cap. 5. The other the Lord Treasurers Remembrancer upon whose charge it seemeth to lye that they put all Justices of that Court as the Lord Treasurer and the rest in remembrance of such things as are to be called on and dealt in for the Princes behoof The third is called the Remembrancer of the first-fruits Of these you may read something anno quinto Rich. 2. stat pri cap. 14. 15. to the effect above specified These anno 37 Ed. 3. cap. 4. be called Clerks of the Remembrance It seemeth that the name of this Officer is borrowed from the Civilians who have their Memorales qui sunt notarii Cancellâ—riae in regnò subjecti officio Quaestoris Lucas de penna C. lib. 10. tit 12. nu 7. The Kings Remembrancer entreth in his Office all recognisances taken before the Barons for any the Kings Debts for apparences or for observing of Orders He takes all bonds for any of the Kings debts or for appearance or for observing of Orders and maketh Proces upon them for the breach of them He writeth Proces against the Collectors of customs and subsidies and fifteenths for their accounts All informations upon penal Statutes are entred in his Office And all matters upon English-Bills in the Exchequer-chamber are remaining in his Office He maketh the Bills of compositions upon penal Laws taketh the stallments of debts maketh a Record of a Certificate delivered unto him by the Clerk of the Star-chamber of the fines there set and sendeth them to the Pipe He hath delivered unto his Office all manner of indentures fines and other evidences whatsoever that concern the assuring of any lands to the Crown He yearly in crastino animarum readeth in open Court the Statute for the election of Shyreeves and giveth those that chuse them their oath he readeth in open Court the Oath of all the Officers of the Court when they are admitted The Treasurers remembrancer maketh process against all Shyreeves Escheators Receivers and Bayliffs for their accompts He maketh process of Fierifacias and Extent for any debts due to the King either in the Pipe or with the Auditors He maketh process for all such Revenew as is due to the King by reason of his Tenures He maketh Record whereby it appeareth whether Shyreeves and other accountants pay their profers due at Easter and Michaelmas He maketh another Record whereby it appeareth whether Shyreeves and other Accountants keep their daies of prefixion All Extreats of Fines Issues and Amerciaments set in any Courts of Westminster or at the Assises or Sessions are certified into his Office and are by him delivered to the Clerk of Extreats to write Proces upon them He hath also brought into his Office all the accompts of Customers Controllers and other accomptants to make thereof an entry of Record The Remembrancer of the first fruits taketh all compositions for first Fruits and Tenths and maketh Process against such as pay not the same Remitter commeth of the French remettre i. restituere reponere and signifieth in our Common law a restitution of one that hath two Titles to Lands or Tenements and is seised of them by his latter Title unto his Title that is more antient in case where the latter is defective Fitzherberâ— natura brev fol. 149. F. Dyer folio 68. num 22. This in what Case it may be granted to any man see in Brook titulo Remitter and the Terms of Law The Doctor and Student of this matter hath these words If land descend to him that hath right to that Land before he shall be remitted to his better Title if he will Ca. nono fo 19. b. See the new Book of Entries verbo Remitter Render commeth of the French Rendre i. reddere retribuere restituere and signifieth in our Common law the self-same thing For example this word is used in levying of a fine For a Fine is either single by which nothing is granted or rendred back again by the Cognizee to the Cognizour or double which containeth a grant or render back again of some Rent common or other thing out of the Land it self to the Cognisor c. West parte 2. Symbol titulo Fines Sect. 21 30. F. Also there be certain things in a Manor that lie in Prender that is which may be taken by the Lord or his Officer when they chance without any offer made by the Tenant as the Ward of the body of the Heir and of the Land Escheats c. and certain that lye in Render that is must be delivered or answered by the Tenant as Rents Reliefs Heriots and other services Idem codem Sect. 126. C. Also some service consisteth in seisance some in Render Perkins Reservations 696. Rent reditus commeth of the French Rent i. vectigal pensitatio annua and signifieth with us a sum of mony or other consideration issuing yearly out of Land or Tenements Plowden casu Browning fol. 132. b. fol. 138. a. 141. b. There be three sorts of Rents observed by our Common Lawyers that is Rent service Rent charge and Rent seck Rent service is where a man holdeth his Land of his Lord by Fealty and certain Rent or by Fealty Service and certain Rents Littleton lib. 2. cap. 12. fol. 44. or that which a man making a Lease to another for term of years reserveth yearly to be paid him for the same Terms of Law verbo Rents who giveth this Reason thereof because it is in his liberty whether he will distrein or bring an action of Debt A Rent charge is that which a man making over an estate of his Land or Tenements to another by deed indented either in fee or fee tail or lease for term of life reserveth to himself by the said Indenture a sum of Mony yearly to be paid unto him with clause of distress or to him and his heirs See Littleton ubi supra A Rent seck otherwise a dry Rent is that which a man making over an Estate of his Land or Tenement by Deed indented reserveth yearly to be paid him without clause of Distresse mentioned in the Indenture Littleton ubi supra And Terms of the Law verbo Rents See the new Expositor of Law Terms See Plowden casu Browning fol. 132. b. See the differences between a Rent and an Annuity Doctor and Student cap. 30. Dialog primo Reparatione facienda is a writ which lyeth in divers cases whereof one is where three be Tenants in Common or Joynt tenents or pro indiviso of a Mill or house which is fallen into decay and the one being willing to repair it the other two will not In this Case the party willing shall have this writ against the other two Fitz. nat br fol. 127. where read at large the form and many uses of this writ as also in the Regi orig fol. 153. b. Repeal commeth of the French Rappel i. Revocatio and
in every Tun anno 12 Edw. 4. ca. 3. anno 6 H. 8. ca. 14. anno pri Ed. 6. ca. 13. anno pri Jacobi ca. 33. I have heard it also called a duty due to the Mariners for unloading their Ship arrived in any Haven after the rate of every Tun. Torny See Turney Totted anno 42 Edw. 3. cap. 9. anno 1 Ed. 6. cap. 15. is a word used of a debt which the forein Apposer or other Officer in the Exchequer noteth for a good debt to the King by writing this word Tot unto it Tourn See Turn Tout tempa prist uncore est that is to say in English Alway ready and is at this present This is a kind of Plee in way of excuse or defence unto him that is sued for with-holding any debt or duty belonging to the Plaintiff See of this Broke his Abridgement fol. 258. TR Traile baston See Iustices of trial baston Traitor traditor proditor See Treason Transgressione is a writ called commonly a writ or action of Trespass Of this Fitzherbert in his Natura brevium hath two sorts one Vicountiel so called because it is directed to the Sheriff and is not returnable but to be determined in the County The form whereof differeth from the other because it hath not these words Quire vi armis c. and this see in Fitzherberts natura brev fol. 84 G. The other is termed a writ of trespasse upon the case which is to be sued in the Common bank or the Kings Bench in which are alwaies used these words vi et armis c. And of this you have Fitzh nat br f. 92. E. See Trespass See the divers use of this writ in the Register original in the Table Transcript anno 34 35 H. 8. cap. 14. is the copy of any original written again or exemplified Transcripto Recognitionis factae coram Justiciariis itinerantibus c. is a writ for the certifying of a Recognizance taken before Iustices in Eyre into the Chancery Regist orig fol. 152. b. Transcripto pedis finis levati mittendo in Cancellariam is a writ for the certifying of the foot of a fine levyed before Justices in Eyre c. into the Chancery eodem fol. 169. et Register judicial fol. 14. Travers commeth of the French Traverser iâ—transfigere It signifieth in our Common law sometime to deny sometime to overthrow or undo a thing done Touching the former signification take these words in Wests Symbol parte 2. titulo Chancery Sect. 54. An answer saith he speaking of an answer to a bill in Chancery is that which the Defendent pleadeth or saith in Bar to avoid the Plaintiffs bill or action either by confession and avoiding or by denying and traversing the material parts thereof And again Section 55. A replication is the Plaintiffs speech or answer to the Defendants answer which must affirm and pursue his bill and confess and avoid deny or traverse the Defendants answer And the formal words of this traverse are in Lawyers French sans ceo in Latine absque hoc in English without that See Kitchin fol. 227. titulo Affirmative et Negative In the second signification I find it in Stawnfords praerog cap. 20. through the whole Chapter speaking of traversing an Office which is nothing else but to prove that an Inquisition made of goods or lands by the Escheatour is defective and untruly made So traversing of an Inditement is to take issue upon the chief matter thereof which is none other to say than to make contradiction or to deny the point of the Inditement As in presentment against A. for a Highway over-flown with water for default of scowring a ditch which he and they whose estate he hath in certain land there have used to scowr and cleanse A. may traverse either the matter viz. that there is no Highway there or that the ditch is sufficiently scowred or otherwise he may traverse the cause viz. that he hath not the land c. or that he and they whose estate c. have not used to scowr the ditch Lamb. Earenarcha lib. 4. cap. 13. pag. 521 522. Of Traverse see a whole chapter in Kitchin fol. 240. See the new book of Entries verbo Traverse Treason traditio vel proditio commeth of the French trahison i. proditio and signifieth an offence committed against the the amplitude and Majesty of the Common wealth West parte secund symbol titulo Inditement sect 63. by whom it is there divided into High treason which other call altam proditionem and Petit treason High treason he defineth to be an offence done against the security of the Common wealth or of the Kings most excellent Majesty whether it be by imagination word or deed as to compass or imagine treason or the death of the Prince or the Queen his Wife or his Son and Heir apparent or to deflowre the Kings wife or his eldest Daughter unmarried or his eldest sons wife or levy war against the King in his Realm or to adhere to his enemies aiding them or to counterfeit the Kings great Seal privy Seal or mony or wittingly to bring false mony into this Realm counterfeited like unto the mony of England and utter the same or to kill the Kings Chancellor Treasurer Iustice of the one bench or of the other Iustices in Eyr Iustices of Assise Iustices of Oyer and Terminer being in his place and doing of his office anno 25 Ed. prim cap. 2. or forging of the Kings seal Manuel or privy signet privy seal or forein coyn current within the Realm anno 2 Mar. cap. 6. or diminishing or impairing of mony current anno 5 Eliz. cap. 11. et anno 14 El. ca. 3. et 18 Eliz. ca. pri and many other actions which you may read there and in other places particularly expressed And in case of this treason a man forfeiteth his lands and goods to the King only And it is also called treason Paramount anno 25 Ed. 3. ca. 2. The form of Iudgement given upon a man convicted of high treason is this The Kings Serjeant after the verdict delivered craveth Iudgement against the Prisoner in behalf of the King Then the Lord Steward if the traitor have been noble or other Iudge if he be under a Peer saith thus N. Earl of P. For so much as thou before this time hast been of these treasons indited and this day arraigned for the same and put thy self upon God and thy Peers and the Lords thy Peers have found thee guilty my Iudgement is that thou shalt be conveyed unto the Tower of London whence thou camest and from thence drawn through the midst of London to Tiburn and there hanged and living thou shalt be cut down thy bowels to be cut out and burnt before thy face thy head cut off and thy body to be divided into four quarters and disposed at the Kings Majesties pleasure and God have mercy upon thee Petit treason is rather described by examples than any where logically
titulo Fines Sect. 156. Warrantia icustodiae is a Writ judicial that lyeth for him that is challenged to be ward unto another in respect of land said to be holden in Knights service which when it was bought by the Ancestors of the Ward was warranted to be free from such thraldome And it lyeth against the warranter and his heirs Regist. judic fol. 36. Warrant of Attorney See Letter of Attorney and Warranty Wardwite significat quietantiam misericordiae in casu qno non invenerit quis hominem ad wardam facteudam in castra vel alibi Fleta lib. 1. cap. 47. Warren Warrenna alià s varrenna commeth of the French Garrenne i. vivarium vel locus in quo vel aves vel pisces vel ferae continentur quae ad victum duntaxat pertinent Calapine out of Aulus Gellius lib. 2. Noct. Attic. ca. 20. A warren as we use it is a prescription or grant from the King to a man of having Feasants Partridges Connies and Hares within certain of his Lands Cromptons Jurisd fol. 148. where he saith that none can have warren but only the King no more than Forest or Chase Because it is a special privilege belonging to the King alone And a little after he hath these words to this effect the King may grant warren to me in mine own lands for Feasants and Patridges only And by this grant no man may there chase them without my licence And so of Hares but not of Connies For their property is to destroy the fruits of the earth as to eat Corn and pill the bark of Apple trees Master Manwood in his first part of Forest laws saith thus of it a warren is a franchise or privileged place of pleasure only for those beasts and fowles that are beasts and fowles of warren tantùm campestres non sylvestres viz. For such beasts fowls as are altogether belonging to the fields and not unto the woods and for none other beasts or fowles There are but two beasts of warren that is to say Hares and Connies And there are also but two fowles of warren viz. Feasants and Partridges And none other wildbeasts or birds have any firm peace privilege or protection within the warren If any person be found to be an offendor in any such free warren he is to be punished for the same by the course of the Common law and by the Statute anno 21 Edward 3. called the Statute de malefactoribus in parcis chaceis c. For the most part there are no Officers in a warren but the Master of the Game or the Keeper A free warren is sometime inclosed and also the same sometime doth lye open for there is no necessity of inclosing the same as there is of a Park for if a Park is suffered to lye open it ought to be seised into the Kings Kings hands Thus far M. Manwood Warscot is the contribution that was wont to be made towards Armor in the Saxons time In Canutus his Charter of the Forest set out by M. Manwood in the first part of his Forest laws uum 9. you have these words Sint omnes tam primaris quà m madiocres minuti immunes liberi quieti ab omnibus provincialibus summonitionibus et popularibus placitis quae Hundred laghe Angli dicunt et ab omnibus aâ—morum oneribus quod Warscot Angli dicunt et forinsecis querelis Warwis aliâs Wardwit is to be quit of giving mony for keeping of watches New exposition of law terms Wasie vastum commeth of the French gaster i. populari It signifieth diversly in our Common law first a spoil made either in houses woods gardens orchards c. by the tenent for term of life or for term of anothers life or of years to the prejudice of the Heir or of him in the Reversion or Remainder Kitchin fol. 168. c. usque 178. upon this committed the Writ of waste is brought or the recovery of the things wherupon the waste is made See Vastâ— Waste may be also made of tenents or bondmen belonging or regardant to the manor Regist. orig fol. 72. a. et 73. a. See the new book of Entries verbo Waste A waste of the Forest as M. Manwood saith parte prim of his Forest laws pag. 172. is most properly where a man doth cut down his own woods within the Forest without license of the King or of the Lord Chief Justice in Eyr of the Forest But it is also where a man doth plow up his own meadow or Pasture and converteth it unto tillage And of this you may read him at large in his second part cap. 8. num 4 et 5. Waste in the second signification is taken for those parts of the Lords Demesns that be not in any one mans occupation but lye common for bounds or passages of the Lord and Tenent from one place to another and sometimes for all the Kings Subjectâ— VVhich seemeth to be called waste because the Lord cannot make such profit of it as he doth of other of his land by reason of that use which others have of it in passing to and fro Upon this none may build or feed or cut down Trees without the Lords license VVaste hath a third signification as year day and waste Annus dies et vastum which is a punishment or forfeiture belonging to petit treason or felony wherof you may read Stawnf pl. cor lib. 3. cap. 30. And see Year Day and Waste Wasters anno 5 Ed. 3. cap. 14. See Roberds wen. See Draw latches Wastoll bread anno 51 H. 3. statute of br ad and statute of pilory Waterbayliffs seem to be officers in Porttowns for the searching of Ships an 28 H. 6. ca. 5. Watling street is one of the four waies which the Romans are said to â—have made here in England and called them Consulares Praetorias Militares Publicas Master Cambden in his Britannia perswadeth himself that there were more of this sort than four This street is otherwise called Werlam street as the same Author saith and howsoever the Romans might make it and the rest the names be from the Saxons And Roger Hoveden saith it is so called because the Sons of Wethle made it leading from the East sea to the VVest Annal part prior fol. 248. a. This street leadeth from Dover to London and so to Saint Albons and there onward directly toward the North-west through the Land as from Dunstable to Westchester anno 39. El. cap. 2. The second street is called Ikenild street beginning ab Icenis who were the people inhabiting Norfolk Suffolk and Cambridge shire as M. Cambden declareth pag. 345. The third is called Fosse the reason of the name he giveth because he thinketh it was ditched on each side The fourth is called Ermin street Germanico vocabulo à Mercurio quem sub nomine Iâ—munsull i. Mercurii columma Germani majores nostri colueruâ—t Of these read more in the said Author pag. 43 44. In the description of England
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
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
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
be speciall in this signification as if an especial Commission should be granted to certain as in antient times they often were Bracton lib. 3. c. 11. in fine for the taking of an assise upon one disseisin or two any thing done in the Court before them a man would say it was done at such an especial assise And in this very signification doth Glanvile use it lib. 9. c. 12. in these words Sicontra dominum suum non infra assisam tunc distringitur â—se occupator c. and lib. 13. cap. 32. in these words cùm quis itaque infra assisam domini regis i. infra tempus à domino rege de consilio procerum ad hoc constitutum quandoque majus quandoqne minus censetur alium injuste sine judicio disseisiverit c. Of this word Assise you may read in Mâ— Skene de verbo signif de verbo Assise and by him understand that in Scotland also it is diversly used viz. in five several significations And touching the fifth signification he hath these words An Assise is called a certain number of men lawfully summoned received sworn and admitted to judge and discern in sundry civil causes like as Perambulations Cognitions Molestations pourpestrure division of Lands serving of Briefs and in all and sundry Criminal causes decided and tryed by an assise whereof there are two kinds one ordinarily in use which may be called a little assise of the number of 13 or 15 persons the other called a Great assise which consisteth of 25. Persons c. The rest is very worth the reading Assisa continuanda is a Writ directed to the Justices assigned to take an assise for the continuance of the cause in case where certain Records alleged cannot in time be procured by the party that would use it Reg. orig f. 217. Assisa praeroganda it is a Writ directed to the Justices of Assise for the stay of proceeding by reason of the Kings business wherein the party is imployed Register orig fo 208 and 221. Association associatio is a patent sent by the King either of his own motion or at the sure of the Plaintiff to Justices appointed to take assises of novel disseisin or of Oyer and Terminer c. to take others unto them as fellows collegues in that business The derivation is plain the examples and sundry uses hereof you may find in Fitzh nat br fol. 185. E. fo 111. B. but more particularly in the Reg. orig fol. 201 202 205 206 207 223 224. Assoile absolvere commeth of the French absouldre and signifieth to deliver or set free from an excommunication Stawnf pl. cor fol. 72. in words to this effect otherwise the Defendant should remain in Prison untill the Plaintiff were assoiled that is delivered from his excommunication Assumpsit is a voluntary promise made by word whereby a man assumeth or taketh upon him to perform or pay any thing unto another This word containeth any verbal promise made upon consideration which the Civilians express by divers words according to the nature of the promise calling it sometime pactum sometime sponsionem sometime promissionem pollicitationem or constitutum the word seemeth to be drawn from the Latine assumptio quae significat professionem l. Ï€. ad municipalem AT Attache attachiare commeth of the French attacher i. figere nectere illigare defigere alligare In our Common law it signifieth to take or apprehend by Commandement or Writ And M. Lambert in his Eirenarch lib. 1. cap. 16. maketh this difference between an Arrest and an Attachment that an arrest proceedeth out of lower Courts by Precept and an attachment out of higher Courts by Precept or Writ and that a Precept to arrest hath these formal words ducifacias c. and a Writ of attachment these words praecipimus tibi quòd attachies talem habeas cum coram nobis c. whereby it appeareth that he which arresteth carrieth the party arrested to another higher Person to be disposed of forthwith he that attacheth keepeth the Party attached and presenteth him in Court at the day assigned in attachment Yet I observe out of Master Kitchin that an attachment issueth out of a Court Baron which is a low Court cap. Attachment in Court Baron fol. 79. Another difference there is that an arrest lyeth only upon the body of a man and an attachment sometime upon his goods as shall be shewed in the sequel It may be likewise asked how an attachment and a capias do differ and how an attachment and a cape and an attachment and a Distress First that an attachment differeth from a capias it appeareth by Kitchin in these words fol. 79. Note that in a Court Baron a man shall be attached by his goods and a capias shall not go out thence whereby I gather that an attachment is more general taking hold of a mans goods and a capias of his body only Then an attachment differeth from a cape in this because a cape be it cape magnum or cape parvum taketh hold of immoveables as Lands or Tenements and are properly belonging to action real as you may gather out of their forms in Fitzh nat br whereas attachment hath rather place in Actions personal as Bracton plainly setteth down lib. 4. tract 4. cap. 5. num 3. Where nevertheless it appeareth that a cape may be likewise used in an Action personal An attachment as is formerly said taketh hold of moveable goods or the body For it appeareth by Kitchin fol. 263. that a man may be attached by an hundred Sheep Read Skene de verbo signif verbo Attachiamentum Now it followeth to shew how Attachment differeth from a Distress For so it doth as may be shewed out of Kitchin fol. 78. where he saith that Process in Court Baron is Summons Attachment and Distress our of the Old nat br fol. 27. where it is said that a Process in a quare impedit is Summons Attachment and one Distress and again fol. 28. where speaking of the Writ Ne admittas he saith thus And the Process is one prohibition and upon the prohibition an Attatchment or Distress and fol. 32. in a Writ of Indicavit you have these words And after the attachment returned the Distress shall go out of the Roles of the Justices Bracton on the other side l. 5. tract 3. c. 4. num 2. sheweth that both attachiamentum magnum cape districtiones sunt Of which opinion Fleta also is li. 5. ca. 24. § si autem aed. But there also he saith that attachiamentum est districtio personalis cape magnum districtio realis So that by his opinion districtio is genus to Attachment Britton in his 26 Chapter hath words to this effect But in Attachment of Felony there commeth no Distress otherwise than by the body And if the Sheriff return in the cases aforesaid that the Trespassours have nothing in his Bayliwick by the which they may be distreined it must be awarded that he
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.
himself never quiet but at brawl with one or other To this effect you may read M. Lamb. Eirenarcha pa. 342. who saith likewise that barettor for so he writeth it may seem to come from the Latine baratro or balatro that is a vile knave or unthrift and by a metaphor a spot in a Common wealth See the statute of Champerty anno 33 Ed. 1. stat 2. cap. unico and West 1. ca. 32. an 3 Ed. 1. M. Skene de verè signif verbo barracrie saith that Barrators be Symonists called of the Italian word barrataria signifying corruption or bribery in a Judge giving a false sentence for money whom you may read more at large as also Hortensius Cavalcanus in his tractat de brachio rigio parte 5. nu 66. whose words are Barataria verò dicitur quando Judex aliquid petit indebitum ut justituam faciat Who also nu 195. part 5. saith thus barraterii appellantur qui praetorium nimis frequentant And in another place of the same work Barratria dicitur quia fit quoddam barratrum i. commutatio pecuniae cum justitia c. See also Aegidius Bossius in practica criminali titulo de officialibus corrupt c. nu 2. 6. Baratariam committunt Judices qui justitiam auro vendunt Paris Pateola de syndicatu verbo Barataria pa. 217. Barre fee is a fee of twenty pence that every prisoner acquitted of felony paieth to the Gaoler Crompt Justece of peace fo 158. b. Barrel is a measure of wine oyl c. containing the eighth part of a tunne the fourth of a Pipe and the second of a hogshead that is 31. gallons and a half anno 1 R. 3. cap. 13. But this vessel seemeth not to contain any certain quantity but differeth according to the liquor for a barrel of beer containeth 36. gallons the Kilderkin 18. and the Firkin 9. a barrel of ale 32. gallons the Kilderkin 16. and the firkin 8. gallons an 23 H. 8. c. 4. Barriers commeth of the French barres and signifieth with us that which the Frenchmen call jeu de barres i. palaestraâ—â— a martial sport or exercise of men armed and fighting together with short swords within certain limits or lists whereby they are severed from the beholders Barter may seem to come of the French barater i. circumvenire It signifieth in our Statutes exchange of wares with wares anno 1 R. 3. ca. 9. and so bartry the substantive anno 13 Eliz. cap. 7. The reason may be because they that chop and change in this manner doe what they can for the most part one to over-reach the other See barratour Base estate is in true French bas estat It signifieth in our Common law that estate which base Tenents have in their lands Base Tenents be they as M. Lamberd saith in his explica of Saxon words verb. Paganus which do to their Lords villanous service The Author of the Terms of law in his Tractat of old Terms saith that to hold in fee base is to hold at the will of the Lord. Kitchin fol. 41. seemeth to make base tenure and franck to be contraries where it appeareth that he putteth Copy-holders in the number of base Tenents And out of these I think that it may be probably conjectured that every base Tenent holdeth at the wil of the Lord but yet that ther is a difference between a base estate and villenage which Fitzh in his nat br f. 12. B. C. seemeth co confound For the above-named Author of the Terms of law saith in the place before ciced that to hold in pure villenage is to doe all that the Lord will command him So that if a Copy-holder have but base estate he not holding by the performance of every commandement of his Lord cannot be said to hold in villenage Whether it may be said that Copy-holders be by custome and continuance of time grown out of that extreme servitude wherein they were first created I leave to others of better judgement but Fitz. loco citato saith tenure by Copie is a Term but lately invented Base Court is any Court that is not of record as the Court Baron Of this read Kitchin f. 95 96 c. Base fee See Base estate Baselard baslardus in the Statute an 12 R. 2. ca. 6. signifieth a weapon which M. Speight in his exposition upon Chawcer calleth pugionem vel sicam Bastard bastardus See Bastardy And See Skene de verbo signif verbo Bastardus Bastardy bastardia commech of the French bastard i. nothus Cassanaeus de consuetu Burg. pag. 1116 saith bastard and filius naturalis be all one Bastardy in our Common law signifieth a defect of birth objected to one begotout of wedlock Bract. l. 5. cap. 19 per totum How bastardy is to be proved or to be inquired into if it be pleaded see Rastals book of Entries tit Bastardy 104. f. Kitchin f. 64 maketh mention of Bastardy special and Barstardy general The difference of which is that Bastardy general is a Certificate from the Bishop of the Diocess to the Kings Justices after just inquity made that the party inquired of is a Bastard or not a Bastard upon some question of inheritance Bastatdy special is a sute commenced in the Kings Court against him that calleth another Bastard so termed as it seemeth because Bastardy is the principall and especiall case in trial and no inheritance contended for And by this it appeareth that in both these fignifications Bastardy is rather taken for an examination or triall whether a mans birth be defective or illegitimate than for Bastardy it self See Broke titulo Bastardy n. 29. and Doctor Ridlies book pa. 203 204. Baston is in French a staff club or coulstaff It signifieth in the Statutes of our Realm one of the Warden of the Fleet his servants or officers that attendeth the Kings Court with a red staff for the taking of such to ward as be committed by the Court. So it is used anno 1 R. 2. cap. 12. anno 5 Eliz. cap. 23. Batable ground seemeth to be the ground in question heretofore whether it belonged to England or Scotland lying between both the Kingdomes anno 23 H. 8. cap. 16. as if we should say debatable ground For by that name M. Skene de verbo sign verbo Plegius calleth ground that is in controversie between two Battel duellum commeth of the French battaile i. bellum praelium and signifieth in our Common law a tryal by combat The manner whereof because it is long and full of ceremonies I do for the better and more full understanding of it referre you to Glanvile lib. 2. cap. 3 4 5. to Bracton lib. 3. tract 2. cap. 21. fol. 140. to Britton cap. 22. and to S. Thomas Smith de repub Anglorum lib. 2. cap. 7. lib. 3. cap. 3. See Combat Battery commeth of the French batre i. verberare cudere percutere and signifieth in our Common law a violent striking of any man which the Civilians call injuriam
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
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
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
corporate as hath a Bishop and a Cathedrall Church For Lucas de Penna lege unica tituli De Metropol Bcryto tit 21. lib. 10. Cod. hath these words Idem locus urbs civitas opidum appellatur Pro quo est etiam infra De spectaculis l. Nemo Civitas enim dicitur quatenus cum justitia magistr atuum ordine gubernatur opidum quatenus est â—bi copia incolarum urbs quatenus muris debito more cingitur Propriè autem dicitur civitas quae habet Episcopum Supra de Episcop Cleri l. Nulli Aliâs dicitur gener aliter omnis habitatio plurimorum quae muro cingitur Ï€. de verbo signif lib. 2. de penu lega l. Nam quod § Si ita Sed strictè loquendo si Episcopo caret dicitur nrbs Ï€. de verb. signif l. Pupillus § Oppidum c. Yet M. Crompton in his Jurisdictions where he reckoneth up the Cities leaveth out Ely though it have a Bishop and a Cathedrall Church and putteth in Westminster though now it have no Bishop And anno 35 Eliz. cap. 6. Westminster is called a City anno 27 ejusd cap. 5. Of the Statutes not printed it is alternatively termed a City or Borow It appeareth by the Statute 35 H. 8. cap. 10. that then there was a Bishop of Westusmjter Civitas according to Aristotle li. politicorum ca. pri is defined to be a certain or uniform government of the Inhabitants Caesar civitatem vocat populum eodem jure utentem Camd. Britan. pa. 310. But this is the generall definition of a Common-wealth and not of a City at the least as we now a dayes particularly take it For over and beside that which is above said Cassanaeus in consuetudi Burg. pag. 15. saith that France hath within the territories of it one hundred and four Cities and giveth reason of this his saying because there be there so many seates of Archbishops and Bishops CL Clack as to clack force and bard alià s beard good wools anno 8 H. 6. ca. 22. whereof the first viz. to clack wool is to cut off the sheeps mark which maketh it to weigh lesse and so yeeld the lesse custome to the King to force wool is to clip off the upper and more hairy part of it to bard or beard it is to cut the head and neck from the rest of the sleece Clamea admittenda in iâ—inere per Atturnatum is a writ whereby the King commandeth the Justices in Eyre to admit of ones claiâ—n by Atturney that is employed in the Kings service and cannot come in his own person Register orig fol. 19. b. Clayme clameum is a challenge of Interest in any thing that is in the possession of another or at the least out of his own as claim by Charter claim by Descen Old nat br fol. 11. Si dominus infra annum clamcum qualitercunque apposuerit Bracton lib. 1. cap. 10. See the definition and divers sorts of claim in Plowden Casu Stowel fol. 359. a. Clarentius See Herald Clergie clerus clericatus is diversly taken sometime for the whole number of those that are de clero Domini of the Lords lot or share as the tribe of Levi was in Judaea sometime for a plee to an Indictment or an appeal and is by Stawnf pl. cor l. 2. cap. 41 thus defined Clergy is an antient liberty of the Church which hath been confitmed by divers Parliaments and is when a Priest or one within Orders is arraigned of felony before a secular Judge he may pray his Clergy which is as much as if he prayed to be delivered to his Ordinary to purge himself of the offence objected And this might be done in case of murther Cook lib. 4. fol. 46 a. This libertie is mentioned in articulis cleri ann 9 Ed. 2. cap. 16. and what persons might have their Clergy and what not see Stawnf pl. cor lib. 2. cap. 42 43. Howbeit there be many statutes made since he writ that book whereby the benefit of Clergy is abridged As anno S. El. cap. 4. an 14. ejusdem cap. 5. anno 18 ejusdem cap. 4 6 7. anno 23 ejusdem cap. 2 a. 29 ejusdem cap. 2. an 31 ejusdem cap. 12. a. 39 ejusdem cap. 9. cap. 15. Of this see Cromptons Justice of peace fol. 102 103 104 105. And Lamberts Eirenarcha lib. 4. cap. 14. pag. 543. And note by the way that the antient course of the Law in this point of Clergy is much altered for by the statute Anno 18 Eliz. cap. 7. Clerks be no more delivered to their Ordinaries to be purged but now every man though not within orders is put to read at the barre being found guilty and convicted of such felony as this benefit is granted for and so burnt in the hand and set free for the first time if the Ordinaries Commissioner or Deputy standing by do say legit ut Clericus or otherwise suffereth death for his transgression Clerico admittendo is a Writ directed to the Bishop for the admitting of a Clerk to a Benefice upon a Ne admittas tried and found for the party that procureth the Writ Reg. orig fol. 31 6. Clerico capto per statutum mercatorum c. is a Writ for the delivery of a Clerk out of prison that is imprisoned upon the breach of a statute metchant Rtg. orig fol. 147. Clerico convicto commisso gaolae in defectu ordinarii deliberando c. is a Writ for the delivery of a Clerk to his Ordinary that formerly was convicted of felony by reason his Ordinary did not challenge him according to the privileâ—ges of Clerks Regist origin fol. 69. a. Clerico infra sacros ordines constituto non eligendo in officium is a Writ directed to the Bailiffs c. that have thrust a Bayliwick or bedleship upon one in holy Orders charging them to release him again Register orig fol. 143. a. Clerk clericus hath two significations one as it is the title of him that belongeth to the holy ministery of the Church that is in these dayes either Minister or Deacon or what other degree or dignity soever though according to former times not onely Sacerdotes Diaconi but also subdiaconi cantores acolyti exoâ—cistae ostiarii were within this account as they be at this day where the Canon Law hath full power And in this signification a Clerk is either religious otherwise called regular or secular anno 4 Hen. 4. cap. 12. The other signification of this word noteth those that by their function or course of life practise their pen in any Court or otherwise as namely the Clerk of the Rolles of Parliament Clerks of the Chancery and such like whose peculiar offices I purpose to set down in order according to that knowledge that I could procure of them Clerk of the Parliament Rolls Clericus Rotulorum Parliamenti is he that recordeth all things done in the high Court of Parliament and engrosseth them fairely into
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
false and hath this end to draw the triall of the cause from the Jury to the Judges Of this see twò apt examples in the Authour of the new Terms verbo Colour who also referreth you to the Doctor and Student fol. 158. c. See Brook tit Colour in Assise trespas c. fol. 104. Collusion collusio is in our Common law a deceitfull agreement or compact between two or more for the one party to bring an action against the other to some evill purpose as to defraud a third of his right c. See the new Terms and Brook tit Collusion See also one Case of Collusion in the Register orig fol. 179 a. Combat duellum is a French word signifying as much as certamen decertatio dimicatio discrimen praelium pugna but in our Common law it is taken for a formall tryall of a doubtfull cause or quarrell by the Sword or Bastons of two Champions Of this you may read at large both in divers Civilians as Paris de Puteo de re militari duello Alciat de Duello Hottoman disputatio feudalium cap. 42. and others As also in our Common Lawiers of England namely Glandvile l. 14. cap. 1. Bracton l. 3. tract 2. cap. 3. Britton cap. 22. Horns Myrrhor of Justices l. 3. cap. des exceptions in fine proxime and c. Juramentum duelli Dyer fo 301. nu 41. 42. That this also was antiently the Law of the Lombards before they invaded Italy which was about the year of our Lord 571 appeareth by Sigonius in his History de regno Italiae l. 2. de Aricaldo rege who there reporteth that the said king having put away his wife Gundeberga upon a surmise of Adulterie with Tato Duke of Etruria at the private suggestion of Adalulphus a great man among the Lombards being charged by Clotharius the King of France his Ambassadour of whose blood shee waâ—that he had done her wrong he answered that he had done her no wrong Wherupon Ansoaldus one of the Ambassadour replyed That they would easily beleeve him if he would suffer the truth to be tryed by combat between some one of the Quenes friends and her accuser according to the custome of the Lombards And the king yielding unto this Adulphus was vanquished by one Pitto otherwise called Charles set forth for the Queenes Champion and shee restored to her former place and honour Comin seed alià s Cumin seed Semen cumini is a seed brought forth by an Herb so called which you may see described in Gerards Herball lib. 2. cap. 416. this is placed among the garbleable drugs anno 1. Jacob. cap. 19. Commitatu commisso is a writ or a Commission whereby the Sheriff is authorized to take upon him the sway of the Countie Reg. orig fol. 295. a. b. and Cokes Reports l. 3. fol. 72. a. Comitatu castro commisso is a writ whereby the charge of a County together with the keeping of a Castle is committed to the Sheriff Reg. orig fol. 295. a. Commandrie praeceptoria was by some mens opinion a Manor or chief messuage with which lands or tenements were occupied belonging to the Priorie of S. Johns in Hierusalem in England and he which had the Government of any such Manor or house was called the Commander who had nothing to dispose of it but to the use of the Priory taking only his sustenance thence according to his degree and was usually a brother of the same Priorie Author of the new Terms of law verbo Commandrie By some other Books it appeareth that the chief Prior of S. Johns was a commander of a Nunnerie and constituted the Prioress of the said Nunnery who was under his obedience and removeable at his will notwithstanding that she had covent comon seal and had her possessions severall and was wont to lease the land for Term of years Fulbecks Paralels fol. 2. a. Of these commandries also Petrus Gregorius lib. de beneficiis cap. 11. num 11. hath these words Praeceptoriae dictae commendae satrorum militum veluti ordinis hospitalis Sancti Johannis Hierosolymitani beneficia quidem secundum quid ecclesiastica dicuntur à Barbatia ad Clement causam col 51. de Electione Tamen non prop iè dicuntur ex genere communium beneficiorum eo quòd personae conferentes quibus conferuntur non sunt laicae vel ecclesiasticae sed tertii ordinis De his beneficiâ—s fit mentio cap. exhibita de privilegiis in extravag com in cap. Dudum de decimis These in many places of our Realm are tearmed by the name of Temples because they sometime belonged to the Templers Of these you read anno 26 H. 8. cap. 2. anno 32 ejusd cap. 24 And of these the said Gregorius Tolosanus l. 15 sui syntagmatis cap. 34. hath these words Monuimus superiori capite crescente numero peregrinorum juxta templum Hierosolymitanum Xendochium edificatum tit Divi Johannis quo exciperentur peregrini quos coenobia caepere non possent Hujus ergo ministerio quoque viri pâ—i nobiles se devoverunt qui peregrinos tutarentur â latronum seu Agarenorum incursu defen dere nt Horum professio est votum solenne paupertatis abdicationis propriorum castuatis et obedientiae Proinde propter primum votum nihil proprii habent vel habere debent sed accipiunt annonam quà m diu vivunt vel praeceptorias quas vocant Commandries administrant quà m diu eas possident et optione mutant vel en magistri licentia permutant reddituri morientes quae apud eos reperientur societati Of these Corasius in his para phrase ad sacerd nat part 1. ca. 3. saith thus Praeceptoriae Rhodienses cum non nisi fratribus Hierosolymitanis atque ita personis ecclesiasticis confer antur beneficiis ecclesiasticis annumer ari merit ò debent Commandement praeceptum is used diversly in the Common law sometime for the commandement of the King when upon his meer motion and from his own mouth he casteth any man into prison Stawnf pl. Coron fol. 72. or of the Justices And this commandement of the Justices is either absolute or ordinary Absolute as when upon their own authority in their wisdome and descretion they commit a man to prison for a punishment ordinary is when they commit one rather for safe custody than punishment And â— man committed upon an ordinary commandement is replevisable Pl. cor fol. 73. Commandement is again used for the offence of him that willeth another man to transgresse the law or to do any such thing as is contrary to the law as Murther Theft or such like Bract. l. 3. tract 2. ca. 19. And this the Civilians call mandatum Angelus de maleficiis Commen communiae commeth from the French cummun i. quod ad omnes pertinet and signifieth in our Common law that soyl or water whereof the use is common to this or that town or Lordship as Commen of pasture communia pasturae Bract. lib. 4. ca. 19.
as were forfeited to the Emperours Treasurie for any offence were bona confiscata so do we those that are forfeited to our Kings Exchequer See more of these goods confiscate in Stawnf pl. cor lib. 3. cap. 24. Conge d'eslire venia elegendi is very French and signifieth in our Common law the Kings Permission royal to a Dean and Chapter in time of vacation to chuse a Bishop or to an Abbey or Priorie of his own foundation to chuse their Abbot or Prior Fitzh nat br fol. 169. B. 170. B.C. c. Touching this matter M. Gwin in the Preface to his Readings saith that the King of England as soveraign Patron of all Arch-bishoprickes Bishoprickes and other Ecclesiastical Benefices had of ancient time free appointment of all Ecclesiastical Dignities whensoever they chanced to be void investing them first per baculum annulum and afterward by his Letters Patents and that in processe of time he made the Election over to others under certain forms and conditions as namely that they should at every vacation before they chuse demand of the King congé de'slire that is license to proceed to Election and then after the Election to crave his royal assent c. And farther he affirmeth by good proof out of Common Law-Books that King John was the first that granted this and that it was afterward confirmed by Westm. pri ca. 1. which statute was made anno 3 Ed. pri And again by the statute Articuli cleri c. 2. which was ordained anno 25 Ed. 3. statuto tertio Congeable commeth of the French conge i. venia It signifieth in our Common law as much as lawful or lawfully done as the entry of the Disseisee is Congeable Litseton fol. 91. in meo Conisance See Cognizance Contzour aliàs cognizour recognitor cometh of the French cognoistre i. cognoscere cernere and is used in the passing of Fines for him that doth acknowledge the Fine and the Conizee is he to whom it is acknowledged West parte 1 symbol l. 2. sect 49. parte 2. titulo Fines sect 114. See Recognizour Conjuration conjuratio is the very French word drawn from the Latine which as it is compounded of con juro so it signifieth a compact or plot made by men combining themselves together by oath or promise to do some publick harm But in our Common law it is especially used for such as have personal conference with the Devil or evil spirit to know any secret or to affect any purpose anno 5 Elizab. cap. 16. And the difference that I have observed how truly let those judge that be better skilled in these matters between conjuration and witchcraft is because the one seemeth by prayers and invocation of Gods powerful names to compel the devil to say or do what he commandeth him the other dealeth rather by friendly and voluntary conference or agreement between him or her and the devil or familiar to have her or his desires and turns served in lieu of blood or other gift offered unto him especially of his or her soul And both these differ from inchantments or sorceries because they are personal conferences with the Devil as is said but these are but medicines and ceremonial forms of words called commonly charms without apparition Consanguineo is a Writ for the which see Avo and see the Register orig De avo proavo consanguinco fol. 226. a. Conservator of the truee and sase conduicts conservator induciarum salvorum regis conductuum was an officer appointed in every port of the Sea under the Kings Letters Patents and had forty pound for his yearly stipend at the least His charge was to enquire of all offences done against the Kings truce and safe conducts upon the main Sea out of the Countries and out of the Franchises of the Cinque ports of the King as the Admirals of Custome were wont and such other things as are declared anno 2 H. 5. cap. 6. Touching this matter you may read another statute anno 4 H. 5. cap. 7. Conservatour of the Peace conservator velcustos pacis is he that hath an especial charge by vertue of his office to see the Kings peace kept Which peace learned M. Lamberd defineth in effect to be a with-holding or abstinence from that injurious force and violence which boysterous and unruly persons are in their natures prone to use toward others were they not restrained by laws and fear of punishment Of these Conservators he farther saith thus that before the time of King Edward the third who first erected Justices of Peace there were sundry persons that by the Common law had interest in keeping of the Peace Of those some had that charge as incident to their offices which they did bear and so included within the same that they were never the lesse called by the name of their office onely some others had it simply as of it self and were thereof name custodes pacis Wardens or Conservators of the Peace The former and latter sort he again subdivideth Which read in his Eirenarcha lib. 1. cap. 3. Consideration consideratio is that with us which the Grecians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the material cause of a contract without the which no contract bindeth This consideration is either expressed as if a man bargain to give twenty shillings for a Horse or else implyed as when the law it self inforceth a confideration as if a man come into a common Inne and there staying sometime taking both meat and lodging or either for himself and his Horse the Law presumeth that he intendeth to pay for both though nothing be farther covenanted between him and his Host and therefore if he discharge not the house the Host may stay his Horse Fulb. parel tract Contracts fol. 6. a. b. Consistorie consistorium is a word borrowed of the Italians or rather Lombards signifying as much as praetorium or tribunal vocab utriusque jur It is used for the place of Justice in the Court Christian Convocation-house domus convocationis is the house wherein the whole Clergie is assembled for consultation upon matters Ecclesiastical in time of Parliament And as the House of Parliament And as the house of the Parliament so this consisteth of two distinct Houses one called the higher Convocation-house where the Archbishops and Bishops sit severally by themselves the other the lower Convocation-house where all the rest of the Clergie are bestowed See Prolecutor Conusance See Cognisance Conusour See Cognizour Consolidation consolidatio is used for the combining and uniting of two Benefices in one Broke titulo Union This word is taken frō the Civil Law where it signifieth properly an uniting of the possession occupation or profit with the property For example if a man have by Legacie usum fructum fundi and afterwards buy the property or fee-simple as we call it of the heir hoc casu consolidatio fieri dicitur § 3. De usu fructu in Institut See Union and Unity of
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
the suggestion of the party they do find the suggestion false or not proved and therefore the cause to be wrongfully called from the Court Christian then upon this consultation or deliberation they decree it to be returned again whereupon the Writ in this case obtained is called a consultation Of this you may read the Register orig fol. 44 45. c. usque fol. 58. Old nat br fol. 32. Fitz. eodem fol. 50. Contenement contenementum seemeth to be the free-hold Land which lyeth to a mans Tenement or dwelling house that is in his own occupation For in Magna charta chap. 14. you have these words A free man shall not be amerced for a small fault but after the quantity of the fault and for a great fault after the manner thereof saving to him his contenement or free-hold And a Merchant likewise shall be amerced saving to him his merchandies and any other villain then owers shall be amerced saving his waynage if he take him to our mercy And Bracton lib. 3. tractat 2. cap. 1. num 3. hath these words sciendum quòd miles liber homo non amerciabitur nisi secundùm modum delicti secundùm quod delictum fuit magnum velparvum salvo contenemento suo mercator verò non nisi salva merchandiz sua villanus nisi salvo Waniagio suo which mercy seemeth to have been learned from the Civil law whereby executio non potest fieri in boves aratra aliave instrumenta rusticorum l. executores Authen Agricultores Co. quae res pign obliga nec in stipendia arma equos militum l. stipendia Co. de executio rei judica ibi doctores nec in libros scholarium glos in l. Nepos Proculo verbo dignitate π. de verbo significa Quae tamen rusticorum militum scholarium privilegia circa executionem vera esse eatenus obtinere intelligenda sunt quatenus alia bona habent Johan Eimericus in processu judiciario cap. de Executione senten 79. num 11. Continuance seemeth to be used in the Common law as prorogatio is in the Civil law For example Continuance until the next Assise Fitz. nat br fol. 154. F. and 244. D. in both which places it is said that if a record in the Treasurie be alleged by the one party and denyed by the other a certiorari shall be sued to the Treasurer and the Chamberlain of the Exchequer who if they certifie not in the Chauncerie that such a record is there or that it is likely to be in th◠Tower the King shall send to the Justices repeating the certificate and will them to continue the Assise In this signification it is likewise used by Kitchin fol. 202. 199. and also anno 11 H. 6. cap. 4. Continual claim continuum clameum is a claim made from time to time Within every year and day to Land or other thing which in some respect we cannot attain without danger For example if I be disseised of land into which though I have right unto it I dare not enter for fear of beating it behooveth me to hold on my right of entry to the best opportunity of me and minetheir by approaching as neer it I can once every year as long as I live and so I save the right of entry to mine heir Terms of Law Again if I have a slave or villein broken from me and remaining any where within the ancient demeasne of the King being in the hands of the King I cannot maintain the writ de nativo habendo as long as he contuinueth there but if I claim him within the year and the day and so continue my claim until I can find him within that compass I may lawfully lay hold of him as mine own Fitz. nat br fol. 79. See more in Litleton verbo Continual claim And the new book of Entries Ibid. and Fleta lib. 6. cap. 53. Contract contractus is a Covenant or agreement with a lawful consideration or cause West parte prim symbol l. 1. Sect. 10. and lib. 19. π. de verbo Significa with other places it is thus defined Contractus est negotium inter duos pluresve data opera gestum ut vel uterque invicē vel alteruter obligetur Who so will throughly examine the difference between this pactum and such otherwords something like in signification let himsearch the Civilians and he shall find workboth pleasant and profitable and well fitting the Common law also Contra formam collation is is a Writ that lieth against an Abbot or his successor for him or his heir that hath given land toan Abbey to certain good uses and findeth that the Abbot or his Successour hath made a Feofment thereof with the assent of the Tenents to the disherison of the House and Church This is founded upon the statute of West 2. cap. 41. And of this see the Regist orig fol. 238. and Fitzh nat br fol. 210. And note that the Author of the Terms of Law saith that this is not brought against the Tenent or alienee Contra formam feoffamenti is a Writ that lyeth for the heir of a Tenent infeoffed of certain Lands or Tenements by charter of Feofment of a Lord to make certain services and sutes to his Court and is afterward distreined for more than is contained in the said charter Register orig fol. 176. Old nat br fol. 162. and the Terms of the Law Contributione facienda is a Writ that lieth in case where more are bound to one thing and one is put to the whole burthen Fitz. nat br fol. 162. bringeth these examples If Tenents in common or joynt hold a Mill pro indiviso and equally take the profits thereof the Mill falling to decay and one or more of them refusing to contribute toward the reparation thereof the rest shall have this Writ to compel them And if there be three Coparceners of Land that owe sute to the Lords Court and the eldest perform the whole then may she have this Writ to compel the other two to a contribution of the charge or to one of them if one onely refuse The Old nat br frameth this Writ to a case where one onely sute is required for Land and that Land being sold to divers sute is required of them all or some of them by distresse as intirely as if all were still in one fol. 103. See the Register orig fol. 176. Controller contrarotulator commeth of the French contrerouleur i. antigraphus graecè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which in Rome was used for him cui ia muneris iujunctum erat ut observares pecúniam quam in usum Principis vel civitatis collegerunt exactores Budaeus in annota prio in pand tit De officio quaestoris In England we have divers officers of this name as Controller of the Kings house pl. cor fol. 52. anno 6 H. 4. cap. 3. Controller of the Navie anno 35 Elizabeth cap. 4. Controller of the Custome Cromptons
from the verb couvar i. tegere It is particularly applyed in our Common law to the estate and condition of a married woman who by the lawes of our Realm is in potestute viri and therefore disabled to contract with any to the prejudice of her self of her husband without his consent and privity or at the least without his allowance and confirmation Broke hoc tit per totum And Bracton saith that omnia quae sure uxorit sunt ipsius viri nec habet uxer potestatem sui sed vir L◠2. cap. 15. and that vir est caput mutieris li. 4. cap. 24. and again that in any law-matter sine viro respondere non potest li. 5. tract 2. cap. 3. and tract 5. cap. 23. ejusdem libri hee hath words to this effect Vir uxor sum quasi unica persona quia caro una sanguis unus Res licet sit propria uxoris vir tamen ejus custos cùm sit caput mulieris and lib. 1. cap. 10. nu 2. Uxores sunt sub virg a viri And if the husband alienate the wifes land during the mariage she cannot gainesay it during his life See Cui ante divortium and Cui in vita Covine covina is a deceitfull assent or agreement between two or more to the prejudice or hurt of another New terms of Law It commeth from the French verb convenancer i. depascisci or rather convenir i. convenire Coucher signifieth a Factour that continueth in some place or Countrey for trasique anno 37. Ed. 3. cap. 16. It is used also for the generall book into which any Corporation entreth their particular acts for a perpetuall remembrance of them Counte commeth of the French coumpte i. subductus computatio ratio or of emote i. warratio It signifieth as much as the original de claration in a process though more used in reall actions than personall as declaration is rather applyed to personall than reall Fitz. nat br fol. 16. A. 60. D. Pl. 71. A. 191. E. 217. A. Libellus with the Civilians comprehendeth both And yet count and declaration be confounded sometimes as Count in debt Kitchin fol. 281. count or declaration in appeal pl. cor fol. 78. Count in trespasse Britton ca. 26. Count in an action of Trespasse upon the case for a slander Kuchin fol. 252. This word seemeth to come from France and Normandy For in the grand Custumary ca. 64. I find Contours to be those which a man set teth to speak for him in court as advocates and cap. 63. Pledurs to be another sort of spokes-men in the nature of Atturneys for one that is himself present but suffereth another to tell his tale Where also in the 65. chapter Atturney is said to be he that dealeth for him that is absent See this text and glosse upon those 3. chapters Camntours by Horn in his Mirror of Justices li. 2. ca. Des loyers are Sergeants skilfull in the law of the Realm which serve the common people to pronounce and defend their actions in judgement for their fee when occasion requireth whose duty if it be as it is there described and were observed men might have much more comfort of the Law than they have Countenance seemeth to be used for credit or estimation Old nat br fo 111. in these words Also the attaint shall be granted to poor men that will swear that they have nothing whereof they may make Fine saving their countenance or to other by a reasonable Fine So is it used anno 1. Ed. 3. stat 2. cap. 4. in these words Sheriffs shall charge the Kings debtors with as much as they may levie with their oaths without abating the Debtors countenance Counter computatorium seemeth to come of the Latine computare or the French counter For we use it for the name of a prison whereinto he that once slippeth is like to acconut ere he get out Counter-plee is compounded of two French words contre i. contra adversus and pleder i. causam agere it signifieth properly in our Common law a replication to ayde prier For when the Tenent by cour esie or in dower prayeth in ayde of the King or him in the teversion for his better defence or else if a stranger to the action begun desire to be received to say what he can for the safegard of his estate that which the demandant allegeth against this request why it should not be admitted is called a counter-plee See Broke tit And in this signification it is used anno 25. Ed. 3. stat 3. cap. 7. See also the new Termes of Law and the Statute anno 3. Ed. 1. cap. 39. County comitatus signifieth as much as Shire the one descending from the French the other from the Saxons both containing a circuit or portion of the Realm into the which the whole land is divided for the better government thereof and the more easie administration of justice So that there is no part of the Kingdome that lieth not within some County and every County is governed by a yearly officer whom we call a Sheriff which among other duties belonging to his office putteth in execution all the Commandements and Judgements of the Kings courts that are to be executed within that compasse Fortescue cap. 24. Of these Counties there be four of especiall mark which therefore are termed Counties Palatines as the Countie Palatine of Laucaster of Chester of Durham of Ely an 5. Eliz. 1. ca. 23. I read also of the Countie Palatine of Hexam an 33. H. 8. ca. 10. Unde quaere And this County Palatine is a Jurisdiction of so high a nature that whereas all Plees touching the life or mayhem of man called Plees of the Crown be ordinarily held and sped in the Kings name and cannot passe in the name of any other the chief governours of these by especial charter from the King did heretofore send out all writs in their own name and did all things touching Justice as absolutely as the Prince himself in other Counties only acknowledging him their Superiour and Soveraign But by the Statute anno 27. H. 8. ca. 25. this power is much abridged unto the which I refer the reader as also to Crom. Juris fol. 137. for the whole course of this court Besides these Counties of both sorts there be likewise Counties Corporate as appeareth by the Statute anno 3. Ed. 4 5. And these be certain Cities or antient Boroughs of the land upon which the Princes of our Nation have thought good to bestow such extraordinary liberties Of these the famous Citie of London is one and the principall York another an 32. H. 8. cap. 13. the City of Chester a third an 42. Eliz. cap. 15. Canterbury a fourth Lamb. Eire lib. 1. cap. 9. And to these may be added many more but I have only observed out of the statutes other writers the County of the Town of Kingston upon Hull anno 32. H. 8. cap. 13. the County of the Town of Haverford West
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
Terms of the Law verbo Account Expectant is used in the Common law with this word fee and thus used it is opposite to Fee simple For example Lands are given to a Man and his Wife in Frank-marriage to have and to hold to them and their Heirs In this case they have Fee-simple But if it be given to them and the Heirs of their body c. they have Tail and Fee expectant Kitchin fol. 153. Matthaeus de afflict is useth the Ad ective expectativa substantively in the same signification Descis 292. num 2. p. 412. Explees see Espleese Expeditate expeditare is a word usual in the Forest signifying to cut out the balls of the great dogs feet for the preservation of the Kings game Every one that keepeth any great Dogs not expeditated forfeiteth to the King three shillings four pence Cromptons Jurisdict fol. 152. M. Manwood useth the same word parte prim of his Forest Laws pag. 205 and pag. 212. he setteth down the manner of expeditating Dogges heretofore viz. Quòdtres ortell abscindantur sive pellota de pede anteriori that is that the three clawes of the fore-foot on the right side shall be cut off by the skin whereunto he also addeth out of the same ordinance called the Assise of the Forest that the same manner of expeditating of Dogs shall be still used and kept and none other Quaere whence it groweth that Master Crompton and he differ the one saying that the ball of the foot is cut out the other that the three fore-clawes are pared off by the skin Expensis militum levandis is a Writ directed to the Sheriff for levying allowance for the Knights for the Parliament Regist orig fol. 191. b. Expensis militü non levandis ab hominibus de antiquo dominico nec à nativis is a Writ wherby to prohibit the Sheriff from levying any allowance for the Knights of the Shire upon those that hold in ancient Demesn c. Reg. orig fol. 261. b. Extend extendere cometh of the French estendre i. dilatare dispandere distendere and signifieth in our Common law to value the Lands or Tenements of one bound by Statute c. that hath forfeited his bond to such an indifferent rate as by the yearly rent the Obligor may in time be payd his debt The course and circumstances of this see in Fitz. h. nat br fol. 131. Brief d'execution sur statut Merchant Extendi facias is a Writ ordinarily called a Writ of Extent whereby the value of Lands c. is commanded to be made and levied in divers cases which see in the Table of the Register original Extent extenta hath two significations sometimes signifying a Writ or commission to the Sheriff for the valuing of Lands or Tenements Register judicial in the Table of the Book Sometime the Act of the Sheriff or other Commissioner upon this Writ Brook titulo Extent fol. 313. Extinguishment in our Common law signifieth an effect of consolidation For example if a man have due unto him a yearly rent out of any Lands and afterward purchase the same Lands now both the property and rent are consolidated or united in one Possessor and therefore the rent is said to be extinguished In like manner it is where a man hath a Lease for years and afterward buyeth the property this is a consolidation of the property and the fruits and is an extinguishment of the Lease See the Terms of Law Extirpatione is a Writ judicial that lieth against him who after a verdict found against him for Land c. doth maliciously overthrow any house upon it c. and it is two-fold one ante judicium the other post judicium Register judicial fol. 13.56.58 Extortion Extortio signifieth in our Common law an unlawful or violent wringing of money or money-worth from any man For example if any Officer by terrifying any the Kings subjects in his office take more than his ordinary duties he committeth and is inditeable of Extortion To this by M. Wests judgement may be referred the exaction of unlawful Usury winning by unlawful Games and in one word all taking of more than is due by colour or pretence of right as excessive toll in Milners excessive prizes of Ale Bread Victuals Wares c. West parte 2. Symbol titulo Indictments Sect. 65. M. Manwood saith that Extortion is Colore officii and not virtute officii parte 1. of his Forest laws pag. 216. M. Crompton in his Justice of Peace fol. 8. hath these words in effect Wrong done by any man is properly a Trespasse but excessive wrong done by any is called Extortion and this is most properly in officers as Sheriffes Maiors Bailiffes Escheatours and other Officers whatsoever that by colour of their Office work great oppression and excessive wrong unto the Kings subjects in taking excessive reward or fees for the execution of their office Great diversity of cases touching Extortion you may see in Cromptons Justice of Peace fol. 48. b. 49. 50. See the difference between colore officii virtute vel ratione officii Plow casu Dives fol. 64. a. This word is used in the same signification in Italy also For Cavalcanus de brachio regio parte 5. num 21. thus describeth it Extortio dicitur fieri quando Judex cogit aliquid sibi dari quod non est debitum vel quod est ultra debitum vel ante tempus petit id quod post administratam justitiam debetur Extreats See Estreats Eyre See Eire FA. FAculty Facultas as it is restrained from the original and active signification to a particular understanding in Law is used for a privilege or especiall power granted unto a man by favour indulgence and dispensation to do that which by the Common law he cannot do as to eat flesh upon dayes prohibited to marry without Banes first asked to hold two or more Ecclesiastical Livings the Son to succeed the Father in a Benefice and such like And for the granting of these there is an especial Officer under the Arch-bishop of Canterbury called Magister ad Facultates the Master of the Faculties Fag anno 4 Ed. 4. cap. 1. Faint and false action seem to be Synonyma in Litleton fol. 144. for faint in the French tongue signifieth as much as feigned in English Faint pleader falsa placitatio cometh of the French feint a Participle of the Verb feindre i. simulare fingere and pledoir i. placitare It signifieth with us a false covenous or collusory manner of pleading to the deceit of a third party anno 34. 35. H. 8. cap. 24. Faire aliàs Feire feria cometh of the French feire and signifieth with us as much as Nundinae with the Civilians that is a solemn or greater sort of Market granted to any Town by privilege for the more speedie and commodious provision of such things as the subject needeth or the utterance of such things as we abound in above our own uses and occasions both our
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
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.
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
Gustwit seemeth to be compounded of Gult i. noxa and wit which is sayd by some skilful men to be an ancient termination of the words in the Saxon tongue fignifying nothing in it self but as dom or hood and such like be in these English words Christendom and Manhood or such others Others say and it is true that wit signifieth blame or reprehension Gultwit as Saxon in his Description of England cap. 11. doth interpretet it is an amends for trespasse Gust Hospes is used by Bracton for a stranger or guest that lodgeth with us the second night lib. 3. tract 2. cap. 10. In the laws of Saint Edward set forth by Master Lambert num 27. it is written Gest Of this see more in Uncothe Gumme gummi is a certain clammy or tough liquor that in manner of a sweaty excrement issueth out of trees and is hardned by the Sun Of these there be divers sorts brought over Seas that be drugs to be garbled as appeareth by the statute Anno 1 Jacob. cap. 19. Gutter-tile aliâs Corner-tyle is a tyle made three-corner-wise especially to be layd in Gutters or at the corners of the tyled houses which you shall often see upon Dove-houses at the four corners of their roofs anno 17 Ed. 4. cap. 4. HA HAbeas corpus is a Writ the which a man indited of some trespasse before Justices of peace or in a Court of any franchise and upon his apprehension being layd in prison for the same may have out of the Kings bench thereby to remove himself thither at his own costs and to answer the cause there c. Fitzh nat br fol. 250. h. And the order is in this case first to procure a Certiorari out of the Chancery directed to the said Justices for the removing of the Inditement into the Kings Bench and upon that to procure this Writ to the Sheriff for the causing of his body to be brought at a day Reg. jud fol. 81. where you shall find divers cases wherein this Writ is used Habeas corpora is a Writ that lieth for the bringing in of a Jurie or so many of them as refuse to come upon the venire facias for the trial of a cause brought to issue Old nat br fol. 157. See great diversity of this Writ in the table of the Register Judicial verbo habeas corpora and the new book of Entries verbo codem Habendum is a word of form in a deed of conveyance to the true understanding whereof you must know that in every deed of conveyance there be two principal parts the Premises and the Habendum The office of the Premisses is to expresse the name of the Grantor the Grantee and the thing granted or to be granted The office of the habendum is to limit the estate so that the general implication of the estate which by construction of law passeth in the Premisses is by the habendum controlled and qualified As in a Lease to two persons the habendum to one for life the remainder to the other for life altereth the general implication of the joynt tenancie in the Free-hold which should passe by the Premisses if the habendum were not Coke vol. 2. Bucklers case fo 55. See Use Habere facias seisinam is a Writ Judicial which lieth where a man hath recovered lands in the Kings Court directed to the Sheriff and commanding him to give him seisin of the land recovered Old nat br fol. 154. Terms of the Law wherof see great diversity also in the table of the Register Judicial verbo Habere facias seisinam This Writ is issuing sometime out of the Records of a fine executory directed to the Sheriff of the County where the land lieth and commanding him to give to the Cognizee or his heirs seisin of the land whereof the Fine is levied which Writ lyeth within the year after the Fine or Judgement upon a Scire facias and may be made in divers forms West parte 2. symb titulo Fines Sect. 136. There is also a Writ called Habere facias seisinam ubi Rex habuit annum diem vastum which is for the delivery of lands to the Lord of the Fee after the King hath taken his due of his lands that was convicted of Felony Register origin fol. 165. Habere facias visum is a Writ that lieth in divers cases where view is to be taken of the lands or tenements in question See Fitzh nat br in Indice verbo View See Bracton lib. 5. tract 3. cap. 8. lib. 5. parte 2. cap. 11. See view See the Register Judicial fol. 1 26 28 45 49 52. Haberâ—ects Hauberiteus pannus magn chart cap. 25. Pupilla oculi parte 5. cap. 22. Hables is the plural of the French hable signifying as much as a Porte or Haven of the Sea whence Ships do set forth into other Countries and whither they do arrive when they return from their voyage This word is used anno 27 Hen. 6. cap. 3. Haerede deliberando alii qui habet custodiam terrae is a Writ directed to the Sheriff willing him to command one having the body of him that is ward to another to deliver him to him whose ward he is by reason of his land Regist. orig fol. 161. b. Haerede abducto is a Writ that lyeth for the Lord who having the wardship of his tenent under age by right cannot come by his body for that he is conveyed away by another Old nat br fol. 93. See Ravishment de Gard and Haerede rapto in Regist orig fol. 163. Haeretico comburendo is a Writ that lyeth against him that is an heretick viz. that having been once convinced of heresie by his Bishop and having abjured it afterward falleth into it again or into some other and is thereupon committed to the secular power Fitz. nat br fol. 269. Haga is used as a kind of Latine word for a house I find in an ancient book sometime belonging to the Abbey of Saint Augustines in Canterbury that King Stephen sent his Writ to the Sheriff and Justices of Kent in this manner Stephanus Rex Anglorum Vicecomiti et Iusticiariis de Kentsalutem Praecipio quòd faciatis habere Ecclesiae sancti Augustini monachis hagam suam quam Gosceoldus eis dedit ita bene in pace justae quietè liberè sicut eam eis dedit in morte sua coram legalibus testibus c. Hagbut See Haque and Haquebut Haye boote seemeth to be compounded of Haye i. Sepes and Bote i. compensatio The former is French and the second is Saxon. And although it do fall out sometime that our words be so compounded yet it is rare Wherefore it may be thought peradventure to come as well from Hag and Boote which be both Saxon words It is used in our Common law for a permission to take thorns and freeth to make or repair hedges Half haque See Haeque Half merk dimidia merka seemeth to signifie a noble Fitzh nat br fol.
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
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
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
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
Marque See Marque and law of Marque See Reprisals See an 14. Hen. 6. cap. 7. Letters patents of summons for debt anno 9. H. 3. cap. 18. Levy Levare cometh of the French Lever i. allevare attollere It is used in our Common law for to set up any thing as to levie a mill Kitchin fol. 180. or to cast up as to levie a ditch Old nat br fol. 110. or to gather and exact as to levie money See Levarifacias LI Libell Libellus literally signifieth a litle book but by use it is the originall declaration of any action in the civill law an 2 H. 5. cap. 3. anno 2 Ed. 6. ca. 13. It signifieth also a criminous report of any man cast abroad or otherwise unlawfully published in writing but then for difference sake it is called an infamous libel famosus libellus Libello habendo See Copia libelli deliberanda Libera Chasea habenda is a writ Judicial granted to a man for a free chace belonging to his Manor after he hath by a Jury proved it to belong unto him Register Judicial fol. 36. 37. Liberate is a warrant issuing out of the Chancery to the Treasurer Chamberlanes and Barons of the Exchequer or Clerk of the Hamper c. for the payments of any annuall pension or other sums granted under the broad Seal v. Brooke titulo Taile d'Exchequer nu 4. Reg. orig fol. 193. a. b. or somtime to the Sheriff c. nat br fol. 132. for the delivery of any lands or goods taken upon forfeits of Recognisance Fitz. nat br fol. 131 132 v. Coke lib. 4. Fulwoods case fo 64 66. 67. It is also to a Jayler from the Justices for the delivery of a Prisoner that hath put in bail for his appearance Lamb. Eiren. lib. 3. ca. 2. Libertate probanda is a writ that lieth for such as be challenged for Slaves and offer to prove themselves free to the Sheriff that he take security of them for the proving of their freedome before the Justices of Assise and provide that in the mean time they be quiet from their vexations that challenge them for Slaves Fitzh nat brev fol. 77. See Nativo habendo Libertatibus allocandis is a writ that lieth for a Citizen or Burgesse of any City that contrarily to the liberties of the Citie or Town whereof he is is impleaded before the Kings Justices or Justices errants or Justice of the Forest c. that refuseth or deferreth to allow his privilege Origi Regist fol. 262. Fitz. nat br fol. 229. Libertatibus exigendis in itinerè is a writ whereby the King willeth the Justices in Eyre to admit of an Atturney for the defence of another mans liberty c. before them Regist orig fol. 19. b. Libertas lbertas is a privilege held by grant or prescription whereby men enjoy some benefit or favor beyond the ordinarie subject Liberties royal what they be see in Bracton lib. 2. cap. 5. Broke hoc titulo See Franchise Librata terrae containeth four Oxegans and every Oxegange 13. Aâ—â—s Skene de verb. signif verbo Bovata terra See Farding deal of land Licence to goe to election Licentia eligendi Regist fol. 294. See Conge d'eslire Licence to arise licentia surgendi is a liberty given by the Court to a tenent that is essoined de malo lecti in a real action For the law is that in this case he may not arise out of his bed or at least go out of his chamber untill he have been viewed by Knights thereunto appointed and so upon view of his sicknesse have a day assigned him to appear or else lie until he be licensed by the Court to arise And the reason of this is as I take it because it may appear whether he caused himself to be essoined deceitfully yea or not and therefore if the Demandant can prove that he be seen out of his chamber walking up and down his grounds or else going abroad unto any other place before he be viewed or have license of the Court he shall be adjudged to be deceitfully essoined and to have made default Of this see Bracton lib. 5. tract 2. ca. 7 10 and 12. and Fleta li. 6. ca. 10. Horn in the second book of his Mirrour ca. des Essoynes saith that the adverse party may grant licentiam surgendi to his adversary thus essoyned And if he will not the king upon just cause may Licentia surgendi is the writ whereby the Tenent essoined de malo lecti obtaineth liberty to rise See License to arise See the Register fo â— Licentia transfretandi is a writ or warrant directed to the keepers of the port at Dover c. willing them to let some passe quietly over sea that hath formerly obtained the kings license thereunto Register original fol. 193. b. Lieutenent locum tenens is a French word signifying as much as Legatus It is compounded of lieu id est locus and tenir id est tenere It signifieth with us him that occupieth the Kings place or representeth his person as the Lieutenent of the kings of Ireland anno 4. H. 4. cap. 6. So it is used an 2 3 Edward 6. cap. 2. whence that officer seemeth to take his beginning But I read also in Master Manâ— woods first part of Forest laws pag. 113. that the Lord chief Justice in Eyre of the Forest and the chief warden also have their lieutenents in the forest So that though a Lieutenant be most ordâ—nary and most properly used for the deputy of a king yet is it somtime extended to their deputies that be but lieutenants to the King Lieutenent of the ordinance anno 39 Eliza. cap. 7. Liege ligius is a word borrowed from the Feudists and hath two several significations in our common Law sometime being used for Liege Lord an 34 35 H. 8. cap. 1. and an 25 ejusdem cap. 3. and somtime for Liege man an 10 R. 2. ca. 1. and an 11 ejusdem cap. 1. Liege-lord is he that acknowledgeth no superiour Duarenus in commentar de Consuctud n. Feudorum cap. 4. nu 3. Liegeman is he that oweth legeancie to his Liege lord Master Skene de verbo signif verbo Ligeantia saith that it is derived from the Italian word Liga i. a Band league or obligation In whom read more of this matter Ligeancie is such a duty or fealty as no man may owe or bear to more than one Lord. Jdem eodem num 4. I find also this definition of ligeancie in the graund Custumary of Normandie ca. 13. Ligeantia est ex qua domixo tenentur vasalli sui contra omnes homines qui mori possunt vivere proprii corporis praeberi consilsi auxilii juvamentum ci se in omnibus innocuos exhibere nec ei adversantinm partem in aliquo confovere Dominus etiam eosdem tenetur regere protegere defensare eosque secundum ura consuetudines leges patriae pertractare This is otherwise called legietas
Sacramentales à Sacramento id est juramento diceb antur ii qui quamvis rei de qua ambigebatur testes non fuissent tamen ex ejus cujus res agebatur animi sententia in eadem quae ille verba jurabant illius videlicet probitate innocentia confisi Nam tuum demum adhibebantur cum testes nulli extarent See the rest The formal words used by him that maketh his Law are commonly these Hear O ye Justices that I do not owe this sum of mony demanded neither all nor any part thereof in manner and form declared so help me God and the contents of this Book To make services or custom is nothing else but to perform them Old nat brev folio 14. To make Oath is to take Oath Maletent in the Statute called the confirmation of the liberties of c. anno 29 E. 1. cap. 7. is interpreted to be a toll of forty shillings for every sack of Wool Srow in his Annals calleth it a Maletot pag. 461. See also the Statute de Tallagio non concedendo an 35 ejusdem stat Malin see Marle Manbote signifieth a pecuniary compensation for killing of a man Lambert in his Exposition of Saxon words verbo Aestimatis Of which read Roger Hoveden also in parte poster suorum annal f. 344. a b. Mandamus is a writ that lyeth after the year and day whereas in the mean time the writ called Diem clausit extremum hath not been sent out to the Escheatour for the same purpose for the which it should formerly have been sent forth Fitzh nat brev fol. 253. B. See Diem clausit extremum Mandamus is also a charge to the Sheriff to take into the Kings hands all the lands and tenements of the Kings widow that against her oath formerly given marieth without the Kings consent Register fol. 295. b. See widow Mandatum is a commandment judicial of the King or his Justices to have any thing done for the dispatch of Justice where of you shall see diversity in the Table of the Register judicial verbo Mandatum Manor Manerium see meth to come of the French manoir i. domicilium habitatio M. Skene de verb. signif verb. Manerium saith it is called mane ium quasi manurium because it is laboured with handy work by the Lord himself It signifieth in our Common law a rule or government which a man hath over such as hold Land within his fee. Touching the original of these Manors it seemeth that in the beginning there was a certain compasse or circuit of ground granted by the King unto some man of worth as a Baron or such like for him and his Heirs to dwell upon and to exercise some Jurisdiction more or lesse within that compass as he thought good to grant Performing him such services and paying such yearly rent for the same as he by his grant required and that afterward this great man parcelled his Land to other meaner men injoining them again such services and rents as he thought good and by that means as he became Tenent to the King so the inferiours became Tenents unto him See Perkins Reservations 670. and Andrew Horns Book intituled the Mirrour of Justices l. 1. cap. du Roy Alfred See the definition of a Manor Fulb. fol. 18. And this course of benefiting or rewarding their Nobles for good service have our Kings borrowed from the Emperors of Rome or the Lombard Kings after they had setled themselves in Italy as may well appear by Antonius Contius in methodo feudorum c. 1. de origin libris Feudorum And I find that according to this our custom all lands holden in fee throughout France are divided into Fiefz and arrierifiefz where of the former are such as are imediatly granted by the K. the second such as the Kings feudataries do again grant to others Gregorti Syntagm lib. 6. ca. 5. nu 3. But the inconstancie of mans estate and the mutability of time hath brought to passe that those great men or their posterity have alienated these Mansions and lands so given them by their Prince and others that had none have by their wealth purchased many of them And again that many for capital offences have forfeited them to the King and that thereby they still remain in the Crown or are bestowed again upon others so that at these dayes many be in the hands of mean men such as by their skill in Law or Physick by Merchandize Grazing or such other good husbandry have gathered wealth and inabled themselves to purchase them of those that by descent received them from their ancestors in greater abundance than wit to keep them But whosoever possesseth these Maners the liberty belonging unto them is real and predial and therefore remaineth still though the owners be changed In these dayes a Maner rather signifieth the Jurisdiction and royaltie incorporeal than the land or site For a man may have a Maner in grosse as the law termeth it that is the right and interest of a Court Baron with the perquisites thereunto belonging and another or others have every foot of the land thereunto belonging Kitchin fol. 4. Broke hoc titulo per totum Bracton lib. 4. ca. 31. num 3. divideth manerium in capitale non capitale See Bracton lib. 5. tractat 5. ca. 28. nu pri See Fee The new exâ— ositor of Law terms faith that Maner is a thing compounded of divers things as of a house land earable pasture meadow wood rent advonzen Court Baron and such like And this ought to be by long continuance of time to the contrary whereof mans memory cannot discern c. Mansio Mansio as Bracton defineth it lib. 5. cap. 28. nu pri is a dwelling consisting of one or more houses without any neighbour And yet he granteth forthwith that Mansio Mansioni pessit esse vicinata I find it most commonly used for the Lords chief dwelling house within his fee whether it have neighbours adjoyning or not otherwise called the capital mesuage Bracton lib. 2. ca. 26. or the chief Maner place Mansio amongst the antient Romans was a place appointed for the lodging of the Prince or Souldiers in their journey furnished with convenient entertainment by the neighbours adjoyning And in this sense we read primam mansionem for the first nights lodging and so in order It is probable that this word Mansion doth in some construction signifie so much land as Beda calleth Familiam in his Ecclesiastial History For Master Lamberd in his explication of Saxon words verb. Hida terrae saith that that which he calleth familiam others â—ince call Manentem vel mansam Mansus and Mansum I read of in the Feudists which as Hotoman saith in verbis feudalibus est neque domus neque area neque hortus sed ager certi modi ac mensurae And again in Commentariis Feudorum lib. p. tit 4. vers de Manso Agri deserti et inculti certa mensura dabantur cultoribus quasi in
Kings house belongeth to the Earl of Norffolk in fee and that he may appoint with the Kings consent a Knight under him to execute the office which office he also describeth to be especially to execute the judgements and decrees of the Steward and to have the keeping of the prisoners lib. 2. cap. 4. and read further of his office in the fift chap. of the said Book which is to dispose of the Lodging in the Kings houshold under the Chamberlain and to clear the Verge of Strumpets c. anno 5 H. 3. statut 5. Then be there other inferiour Officers of this name as Marshal of the Justices in Eyr anno 3 Edw. 1. cap. 19. Marshal of the Kings Bench anno 5 Ed. 3. ca. 8. and this is he which hath the Custody of the Prison called the Kings Bench in Southwark Fitzh nat brev fol. 251. I. And these inseriour Marshals be either ad placitum or in fee Kitchin fol. 143. I find also in Fleta lib. 2. ca. 15. mention of a Marshal of the Kings Hall whose office is when the Tables be prepared and Cloaths laid to call out both those of the Houshold and Strangers according to their worth and decently to place them to reject unworthy persons to know the number of the Hall and to testifie it at the next account to see Dogs kept out to save the Almes from filching to see silence kept and every man competently served with meat and drink and when the Court removeth to appoint every of the Houshold his lodging There is also a Marshal of the Eschequer anno 51 H. 3. stat 5. to whom the Court committeth the custody of the Kings Debtors during the Term-time to the end they may be farther imprisoned if they clear not their Debts He also assigneth Sheriffs Escheatours Customers and Collectors their Auditors before whom they shall account He hath all inquisitions taken before Escheators virtute officii delivered unto him to be delivered by him to the Treasurers Remembrancer Mareshalsee Marescaltia is the Court of the Marshal or word for word the seat of the Marshal whom see Cromptons jurisd fol. 102. It is also used for the Prison in Southwark the reason whereof may be because the Marshal of the Kings house was wont perhaps to sit there in judgement See the Statute anno 9 R. 2. ca. 5. anno 2 Henry 4. cap. 23. Martial law is the Law that dependeth upon the voice of the King or the Kings Lieutenant in wars For howbeit the King for the indifferent and equal temper of Laws to all his Subjects do not in time of Peace make any laws but by the consent of the three estates in Parliament yet in wars by reason of great dangers rising of small occasions he useth absolute power in so much as his word goeth for Law And this is called Martial law Smith de Repub. Angl. li. 2. cap. 3. See Law of Armes Mariage Maritagium signifieth not only the coupling together of a man and wife but also the interest of bestowing a ward or a widow in mariage Magna Charta cap. 6. anno 9 Hen. 3. and Bracton lib. 2. cap. 3. and also it signifieth land given in mariage Bracton lib. 2. cap. 34 39. And in this signification the same Author saith that Maritagium est aut liberum aut servitio obligatum li. 2. cap. 7. num 3 4. Liberum maritagium disitur ubi donator vult quod terra sic data quieta sit libera ab omni seculari servitio quod ad Dominum feudi possit pertinere its quòd ille cui sic data fuerit nullum omninò inde faciat servitium usque ad tertium haeredem usque ad quartum gradum ita quòd tertius haeres sic inclusivus See the rest See also Skene de verbo significat verbo Maritagium who is worth the reading Maritagio amisso per desaltam is a writ for the Tenent in Franck mariage to recover lands c. whereof he is deforced by another Reg. fol. 171. Maritagio forisfacto is a writ See For is factura Maritagii Marke merca commeth of the Saxon Mearc which signifieth a piece of money worth thirty silver pence Lamb. explication of Saxon words verbo Mancusa what it now signifieth in our coyn every man knoweth But in antient times I find a mark of gold which was the quantity of eight ounces Stowes Annals pag. 32. and again pag. 691. 12 marks of Gold Troy weight the which was 200 pounds of English money after which rate every mark valued 16 pounds 13 shillings four pence M. Skene de verbo signif verbo Merke saith that in tractatu de ponderibus mensuris a mark signifieth an ounce weight or half a pound whereof the Dram is the eight part like as the ounce is the eight part of a mark citing Cassanaeus de consuet Burgund Rub. prim § 7. verbo Solz Turnoys hiis verbis Solidus inquit in jure capitur pro auro quorum 72. faciunt libram auri duodecim unciae faciunt libram octo unciae mercam Market mercatus commeth of the French marche i. emporium forüm nundinarium it signifieth with us the same thing and also the liberty or privilege whereby a Town is inabled to keep a market Old nat brev fol. 149. So doth Bracton use it lib. 2. cap. 24. num 6. lib. 4. cap. 46. where he sheweth that one market ought to be distant from another Sex leucas dimidiam tertiam partem dimidiae The reason thereof both he and Fleta giveth in these words Quia omnes rationabiles dietae constant ex 20 milliaribus Dividatur ergo dieta in tres partes prima autem matutina detur euntibus versus mercatum secunda detur ad emendum vendendum quae quidem sufficere debet omnibus nisi sint forte mercatores statarii qui meroes deposuerint exposuerint suerint venales quibus necessaria erit prolexior mora in mercatu tertia pars relinquitur redeuntibus de mercatu ad propria Et quae quident omuia necessa erit facere de die non de nocte propter insidias incursum latronum ut omnia sint in tuto c. lib. 4. cap. 28. § Item refert Marle is a kind of stone or chalke which men in divers Countries of this Realm cast upon their Land to make it the more fertile It is some where called Malin anno 17 Edw. 4. cap. 4. Marque seemeth to be a French word signifying notam vel signum or else to come from the German march i. limes it signifieth in the ancient Statutes of our Land as much as reprisals as anno 4 H. 5. cap. 7. Marques and Reprisals are used as Synonyma And Letters of Marques are found in the same signification in the same Chapter The reason may be because the griefs whereupon these Letters are sought and granted are commonly given about the bounds and limits of every every Countrie or
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.
contrario sensu be-because Communalties never die MU Murtuarie mortuarium is a gift left by a man at his death to his parish Church for the recompence of his personal Tithes and Offerings not duly payed in his life time And if a man have three or more cattel of any kind the best being kept for the Lord of the fee as a Heriot the second was wont to be given to the Parson in right of the Church ca. statutum De consuetu in provincial Touching this you have two Statutes one anno 13. Edw pri commonly called Circumspectè agatis whereby it appeareth that Mortuaries are suable in the Court Christian the other anno 21 H. 8. ca. 6. whereby is fet down an order and rate in money for Mortuaries Mulier as it is used in the Common law seemeth to be a word corrupted and used for Melior or rather the French Melieur It signifieth the lawfull issue preferred before an elder Brother born out of Marrimonie an H. 6. ca. 11. Smith de repub Anglo lib. 3. ca. 6. But by Glanvile lib. 7. ca. 1. the lawful issue seemeth rather Mulier then Melior because it is begotten è muliere and not ex Concubine for he calleth such issue filios mulierates opposing them to Bastards And Britton cap. 70. hath frere mulier i. the Brother begotten of the wife opposite to frere bastard This seemeth to be used in Scotland also For Master Skene de verborum significat verbo Mulieratus filius saith that Mulieratus filius is a lawful son begotten of a lawful wife Quia mulieris appellatione uxor continetur l. Mulieris 13. ibidem Glossa de verborum significatione Mulmutins laws See Law Multure Molitura vel Multura cometh neer the French Moulture and signifieth in our Common law the tolle that the Miller taketh for grinding of corn Murage Muragium is a tolle or tribute to be levied for the building or repairing of publike edifices or walles Fitzherberts Nat. Brev. fo 227. d. Murage seemeth also to be a libertie granted by the King to a town for the gathering of money toward walling of the same Anno 3 Edw. 1. ca. 30. Murder murdrum is borrowed of the French Meurtrier i. Carnifex homicide or Meurtre i. internecio homicidium The new Expositor of the Law-Tearms draweth it from the Saxon word Mordren signifying the same thing It signifyeth in our Common law a wilfull and felonious killing of another upon prepensed malice anno 52 H. 3. ca. 25 West parte 2. symbol titulo Inditements Sect. 47. Bracton li. 3. tract 2. ca 15. nu 1. defineth it to be homicidium quod nullo praesente nullo sciente nullo audiente nullo vidente clam perpetratur And of the same mind is Britton cap. 6. as also Fleta lib. 1. cap. 30. Yet Fleta saith also That it was not murther except it were proved the party slain were english and no stranger But as Stawnf saith pl. Cor. li. 1. cap. 2. the Law in this point is altered by the Statute anno 14 Edward 3. cap. 4. and murther is now otherwise to bee defined When a man upon prepensed malice killeth another whether secretly or openly it maketh no matter or be he an English man or a foreiner living under the Kings protection And prepensed malice is here either expresse or implied Expresse when it may be evidently proved that there was formerly some evil will implied when one killeth another suddenly having nothing to defend himself as going over a stlle or such like Cromptons Justice of peace in the Chapter of Murther fol. 19. b. See Master Skene de verbor significat Verbo Murdrum This by the Latine interpreter of the grand Custumary of Normandie is called Multrum cap. 68. See Were Muster cometh of the French moustre i. specimen spectamen exemplum as feire moustre generale de toute son armee is as much as lustrare exercitum The signification is plain Mustred of record anno 18 Henr. 6. cap. 19. seemeth to be dare nomen or to be introlled in the number of the Kings souldiers Master of the Kings musters anno 2 Ed. 6. cap. 2 see Muster Muster-master general anno 35. Elizab. cap. 4. See Master of the Kings Musters NA NAam Namium seemeth to come from the Dutch word nemmen i. capio It signifieth in our Common law the taking or apprehending of another mans moveable goods and is either lawfull or unlawful Lawfull naam is nothing else but a reasonable distresse proportionable to the value of the thing distreined for and this naam was antiently called either vif or mort quick or dead according as it is made of dead or quick chatels Lawful naam is so either by the Common law or by a mans particular fact by the Common law as when one taketh another mans beasts dammage feisant in his grounds by a mans particular fact as by reason of some contract made that for default of payment of an annuity agreed upon it shall be lawfull to distrein in such or such lands c. Horns Mirrour of Justices lib. 2. ca. de vec de naam where you may read of other circumstances required in lawfull naam viz. of what thing or of what things first in what maner on what dayes and at what houses it ought to be made with other points worth the reading for the understanding of our Law Antiquities See Withernam Nasse anno 4 Hen. 7. ca. 21. seemeth to be the proper name of Orford Haven Whether it be so termed of the boats or water Vessels that lie there or not let the Reader judge But nasselle is in French a kind of small boat Nativo habendo is a writ that lieth to the Sheriff for a Lord whose Villein claimed for his inheritance is run from him for the apprehending and restoring of him to his Lord again Regist orig fol. 87. Fitz. nat brev fo 77. See Libertate probanda Naturalization See Denizen NE Ne admittas is a writ that lieth for the Plaintiff in a Quare impedit or him that hath an action of Darrein presentment depending in the common Bench and feareth that the Bishop will admit the Clerk of the Defendant during the sute between them And this writ must be sued within six months after the avoydance Because after the six months the Bishop may present by lapse Register original fol. 31. Fitz. nat brev fol. 37. where see the rest Negative pregnant Negativa praegnans is a negative implying also an affirmative As is a man being impleaded to have done a thing upon such a day or in such a place denieth that he did it modo forma declarata which implyeth neverthelesse that in some sort he did it Or if a man be said to have alienated land c. in fee he denying that he hath alienated in fee seemeth to confesse that he hath alienated in some other sort Dyer fol. 17. nu 95. See Brook hoc titulo and Kitchin fol. 232. And see the new exposition of law
do it And therefore whereas the Rhetoricians comprise all the substance of their discourses under three Questions An sit quid sit quale sit this Answer falleth under the first of the three all other Answers are under one of the other two And as this is the general Answer in an Action of Trespass that is an Action criminal civilly prosecuted so is it also in all Actions criminally followed either at the sute of the King or other wherein the Defendant denyeth the crime objected unto him See the New Book of Entries titulo Non culpabilis and Stawnf pl. cor lib. 2. cap. 62. Non est factum is an Answer to a Declaration wherby a man denyeth that to be his Deed whereupon he is impleaded Broke hoc titulo Non implacitando aliquem de libero tenemento sine brevi is a Writ to inhibit Bailiffs c. from distreining any man without the Kings Writ touching his Freehold Register fol. 171. b. Non intromittendo quando breve praecipe in capite subdolè impetratur is a Writ directed to Iustices of the Bench or in Eyr willing them not to give one hearing that hath under the colour of intitling the King to Land c. as holding of him in Capite deceitfully obtained the Writ called Praecipe in capite but to put him to this Writ of Right if he think good to use it Register original fol. 4. b. Non Mercandizando victualia in a Writ directed to the Justices of Assise commanding them to inquire whether the Officers of such a Town do sell Victuals in gross or by retayl during their Office contrary to the Statute and to punish them if they find it true Regist fol. 184. Non molestando is a Writ that lyeth for him which is molested contrary to the Kings Protection granted him Register fol. 24. Non omittas is a Writ lying where the Sheriff delivereth a former Writ to a Bayliff of a Franchise within the which the party on whom it is to be served dwelleth and the Bayliff neglecteth to serve it for in this Case the Sheriff returning that he delivered it to the Bayliff this shall be directed to the Sheriff charging him himself to execute the Kings commandement Old nat brev fol. 44. of this the Regist. orig hath three sorts fol. 82. b. 151. and the Register judic one folio 5 56. Non penendo in Assisis Juratis is a Writ founded upon the Stat. Westm 2. ca. 38. and the stat Articuli super Chartas cap. 9. which is granted upon divers causes to men for the freeing them from Assises and Juries See Fitz. nat brev fol. 165. See the Regist fol. 179 100 181 183. Non precedendo ad Assisam Rege inconsulto is a writ to stop the Tryal of a Cause appertaining unto one that is in the Kings service â— c. untill the Kings pleasure be farther known Register fol. 220. a. Non residentia pro clericis regis is a Writ directed to the Ordinary sharging him not to molest a Clerk imployed in the Kings service by reason of his non residence Regist orig folio 58. b. Non sute is a renunciation of the sute by the Plaintiff or demandant when the matter is so far proceeded in as the Jury is ready at the Bar to deliver their verdict anno 2 H. 4. cap. 7. See the New Book of Entries verbo Non-sute The Civilians term it Litis renunciationein Non solvendo pecuniam ad quam Clericus muâ—ctatur pro non residentia is a Writ prohibiting an Ordinary to take a pecuniary mulct imposed upon a Clerk of the King for Non-residence Reg. orig fol. 59. Non-tenure is an exception to a count by saying that he holdeth not the Land specified in the count or at the least some part of it anno 25 Edw. 3. statut 4. cap. 16 West parte 2. Symbol titulo Fines Sect. 138. maketh mention of Non tenure general and Non tenure special See the New Book of Entries Verbo Non tenure where it is said that especial Non tenure is an exception alleging that he was not Tenent the day whereon the writ was purchased Non tenure general is then by Likelyhood where one denyeth himself ever to have been Tenent to the Land in question Non sum informatus See Informatus non sum Non sane memorie Non sanae memoriae is on exception taken to any Act declared by the Plaintiff or Demandant to be done by another whereupon he groundeth his Plaint or Demand And the Contents of this Exception be that the party that did that Act being himself or any other was not well in his wits or mad when he did it See the New Book of Entries titulo nonsane memorie and Dum non fuit compos mentis See also supra Non compos mentis Non term non terminus is the time of Vacation between Term and Term. It was wont to be called the times or days of the Kings peace Lamb. Archaiono fol. 126. and what these were in the time of King Edward the Confessour see there This time was called Justicium or Feriae among the Romans or dies nefasti Ferias appellari notum est tempus illud quod forensibus negotiis jure dicendo vacabat Earum autem aliae solennes erant alia repentinae Brisson de verb. signif lib. 6. vide Wesenbec paratit De Feriis num 6. Note of â— Fine nota finis is a brief of a fine made by the Chirographer before it be ingrossed The form whereof see in West parte 2. Symbol titulo Fines Section 117. Novel assignment nova assignatio is an assignment of time or place or such like otherwise than as it was before assigned In Brook you may find these words in effect titulo Deputy num 12. See novel assignment of Trespass in a new place after Bar pleaded Brock tit Trespass 122. and novel assignment in a Writ de ejectione custodiae titulo Ejectione custodiae num 7. See Assignment NU Nuae mater See Mater Nunne Nonna is the French word nonnain or nonne something altered which signifieth a holy or confecrated Virgin or a woman that hath by vow bound her self to a single and chaste life in some place and Company of other women seperated from the world and addicted to an especial service of God by Prayer Fasting and such like holy exercises If we would know whence this word came into France Saint Hierome maketh it an Aegyptian word as Hospinian recordeth of him in this Book De origine progressu monachatus fol. 2. Nuper obiit is a Writ that lyeth for a Co-heir being deforced by her Co-heir of Lands or Tenements whereof the Grandfather Father Uncle or Brother to them both or any other their Common Ancesters died seised of an Estate in Fee-simple See the form of the Writ Origin Regist fol. 226 c. Fitzh nat brev fol. 197. If the Ancestor died sessed in Fee tail then the Co-heir deforced shall have a Formedon Idem
portionis is a Writ that lyeth for a joint renent or renent in Common that is distreyned for more rent than the proportion of the Land commeth unto Reg. orig fol. 182. b. OP Open Law Lex manifesta Lex apparens is making of Law which by Magna Charta cap. 28. Bayliffs may not put men unto upon their own bare assertions except they have Witnesses to prove their imputation OR Orchel anno 1 R. 3. cap. 8. Orchall anno 24 H. 8. cap. 2. anno 3 4 Ed. 6. cap. 2. seemetst to be all one with Cork Ordinance of the Forest Ordinatio Forestae is a Statute made touching Forest causes in the 34 year of Edward 1. See Assise Ordinary Ordinarius though in the Civil law whence the word is taken it doth signifie any Judge that hath authority to take knowledge of Causes in his own right as he is a Magistrate and not by deputation yet in our Common law it is most commonly and for ought I remember alway taken for him that hath ordinary jurisdiction in causes Ecclesiastical See Brook hoc titulo Linwood in cap. exterior titulo de Constitutionibus verbo Ordinarii saith quòd Ordinarius habet locum principaliter in Episcopo et aliis superioribus qui soli sunt universales in suis ju isdictionibus sed sunt sub eo aliâ—ordinarii hii viz. quibus competit jurisdictio ordinaria de jure privilegio vgl consuetudine c. v. c. Ordinatione contra servientes is a Writ that lyeth against a Servant for leaving his Master against the Statute Register original fol. 189. Ordel Ordalium is a Saxon word signifying as much as Judgement in some mens opinions compounded of two Saxon words or a privative as a in Greek and dael 1. pars It signifieth as much as expers but it is artificially used for a kind of purgation practised in antient times whereby the party purged was judged expers criminis called in the Canon law purgatio vulgaris and utterly condemned There were of this two sorts one by fire another by water Of these see M. Lamberd in his explication of Saxon words verbo Ordalium where he expresseth it at large with such superstitions as were used in it Of this you may like wise read Holinshed in his description of Britain fol. 98. and also M. Manwood parte pri of his Forest laws pag. 15. But of all the rest Hotoman especially disput de feud p. 41. where of five kind of proofs which he calleth feudales probationes he maketh this the fourth calling it explorationem et hujus furiosae probationis 6. genera fuisse animadvertit per flammam per aquam perferrum candens per aquam vel gelidam vel ferventem per sortes et per corpus Domini of all which he allegeth several exemples out of History very worthy the reading See M. Skene also de verbor significatione verbo Machamium This seemeth to have been in use here with us in Henry the seconds dayes as appeareth by Glanvile lib. 14. c. 1 2. Read also of this in M. Verstegans Restitution of decayed intelligence cap. 3. pag. 63. seq Orfgild aliis Cheapegeld is a restitution made by the Hundred or County of any wrong done by one that was in plegio Lamberd Archaion page 125. 126. Org is anno 31. Ed. 3. stat 3. cap. 2. is the greatest sort of North sea-fish now a daies called Organ ling. Oredelf is a liberty whereby a man claimeth the Ore found in his soyl New exposition of Termes Ortelli is a word used in the book termed pupilla oculi in the chapter containing the Charter of the Forest parte 5. cap. 22. and signifyeth the clawes of a dogs foot being taken from the French orteils des pieds i. digiti pedum the Toes OS Osmonds anno 32. Henr. 8. cap. 14. OT Oth of the King Juramentum Regis is that which the King taketh at his Coronation which in Bract. is set down in these words Debet Rex in coronatione sua in nomine Jesu Christi praestito sacramento haec tria promittere populo sibi subdito Inprimis se esse praecepturum pro viribus opem impensurum ut ecclesiae dei et omni populo Christiano vera pax omnisuo tempore observetur Secundò ut rapacitates et omnes inquietates omnibus gradibus interdicat Tertiò ut in omnibus judciis aequitatem praecipat misericordiam ut indulgeat ei suam misericordiam clemens misericors Dens ut per justitiam suam firma gaudeant pace universi And in the old abridgment of Statutes set out in King Henry the eighths dayes I find it thus described This is the oath that the King shall swear at his Coronation That he shall keep and maintain the right and the liberties of the Holy Church of old time granted by the righteous Christian Kings of England and that hee shall keep all the Lands Honours and Dignities righteous and free of the Crown of England in all manner whole without any manner of minishment and the rights of Crown hurt decayed or lost to his power shall call again into the ancient estate and that he shall keep the peace of the Holy Church and of the Clergy and of the people with good accord and that he shall doe in all his judgements equity and right justice with discretion and mercy and that he shall grant to hold the Lawes and customes of the Realm and to his power keep them and affiem them which the folke and people have made and chosen and the evill Lawes and customes wholey to put out and stedfast and stable peace to the people of this Realm keep and cause to be kept to his power and that hee shall grant no Charter but where he may doe it by his oath All this I find in the foresaid Book titulo Sacramentum Regit and Charter of Pardon quinto Oth of the Kings Justices is That they well and truly shall serve the King and that they shall not assent to things that may turn to his dammage or disinheritance Nor that they shall take no fee nor livery of none but the King Nor that they shall take gift or reward of none that hath adoe before them except it be meat and drink of small value as long as the plce is hanging before them nor after for the cause Nor that they shall give counsell to none in matter that may touch the King upon pain to be at the Kings will body and goods And that they shall doe right to every person notwithstanding the Kings Letters c. Anno 18. Ed. 3. statut 4. which the old abridgement maketh to be anno 20. ejusdem statuâ—o perse Otho was a Deacon Cardinal of S. Nichens in carcere Tulliani and Legate for the Pope here in England anno 22 H. 3. whose constitutions we have at this day Stows An. p. 303. and see the first constitution of the said Legat Othobonus was a Deacon Cardinal
de decimis cap. sancta verb. Pannagiis M. Skenede verborum signif calleth it pannagium and defineth it to be the duty given to the King for the pasturage of swine in the forest The french word for this same thing is panage or glandee i. glandatio vel glandium collectio et pastio suum ex glandibus And wee surely take it from the French whence they had it or what etoymolgie they make of it let themselves look PE Peace pax in the generall signification is opposite to war or strife But particularly it signifyeth with us a quiet and harmlesse cariage or behaviour toward the King and his People Lamberd eirenarcha li. 1. cap. 2. pa. 7. And this is one way provided for all men by oath as you may read in Franck pledge but more especially in case where one particular man or some few go in danger of harm from some other For upon his oath made thereof before a Justice of peace he must be secured by good bond See Lamb. eirenarcha lib. 2. ca. 2. pag. 77. See also Cromptons Justice of peace fol. 118. b. c. usque f. 129. This among the Civilians is called cautio de non offendendo Gail de pace publ lib. pri ca. 2. nu 1. Peace of God and the Church pax Dei ecclesiae is anciently used for that rest which the Kings subjects had from trouble and sute of law between the terms See Vacation Peace of the King anno 6. R. 2. stat pri ca. 13. is that peace and security both for life and goods which the King promiseth to all his Subjects or others taken to his protection See Sute of the Kings peace This point of policy seemeth to have been borrowed by us from the Feudists for in the second book of the seuds there is a chapter viz. 53. chapter intituled thus De pace tenenda inter subditos et juramento firmanda et vindicanda et de paena judictbus opposit a qui eum vindicare et justitiam facere neglexerint the contents of which chapter is a Constitution of Frederick the first as Hotoman there proveth expounding it very learnedly and like himself Of this Kings peace Roger Hoveden setteth down divers branches parte poster suorum annalium in H. 2. fol. 144. a. b. and fol. 430. b. he mentioneth a form of an oath which Hubert Archbishop of Canterbury and chief Iustice of England in R. the first his daies sent through the whole realm to be taken by the Kings subjects See Deciners See Surety of peace There is also the peace of the Church for which see Sanctuary And the peace of the Kings highway which is the immunity that the Kings highway hath from all annoyance or molestation See watlin street The peace of the plow whereby the plow and plow cattel are secured from distresses For which see Fitz. nat br fol. 90. A. B. So Fayres may be said to have their peace because no man may in them be troubled for any debt elsewhere contracted See Fayre Pedage pedaginm signifieth money given for the passing by foot or horse through any countrey Extra de Censibus ca. Innovamus I read not this word in any English writer but only the author of the book called pupilla occuli parte 9. ca. 7. A. D. I. I think we rather use passage for it Pedagia dicuntur quae dantur à transeuntibus in locum constitutum à principe Et capiens pedagium debet dare salvum conductum et territorium ejus tenere securum Baldus in usibus Feudorum de pa. jura fir sect Conventionales Cassan de consuetud Burg. pa. 118. hath these words Pedaginm à pede dictum est quòd à transeuntibus solvitur c. Peere pila seemeth properly to be a fortresse made against the force of the sea for the better security of ship that lye at harbour in any haven So is the peer of Dover described in M. Camd. Bris. pag. 259 in meo Peeres pares commeth of the French per i. par It signifieth in our common Law plurally those that are empaneled in an Enquest uppon any man for the convicting and clearing him of any offence for the which he his called in question And the reason thereof is because the course and custome of our nation is to trie every man in this case by his equals West pri cap. 6. anno 3. Edw. prim So Kitchin useth it fol. 78. in these words Mais fi le amerciament soit assirre per pares And this word in this signification is not in use with us only but with other nations also For pares sunt convasalli quorum sententi◠vasallus propter felo-xiam est condemnatus Barklaius de Regno lib. 4. cap. 2. Fit pares sunt qui ab ecdem domino feudum tenent lib. prim Feudor cap. 26. But this word is most notoriously used for those that be of the Nobility of the Realm Lords of the Parliament and so it is used in Stawnf pl. of the Crown lib. 3. cap. Trial per les Peeres being the first The reason whereof is because though there be a distinction of degrees in our Nobility yet in all publike actions they are equal as in their voices in Parliament and in passing upon the triall of any Noble man c. This appellation seemeth to be borrowed from Fraunce and from those twelve Peeres that Charles the Great or Lewis the younger in some mens opinion instituted in that kingdome which be next unto the King and are of like dignity among themselves touching their power in publike affairs Or whom you may read Vincentius Lupanus de magist Francia lib. 1. cap. Pares Franciae So that wee though wee have borrowed the appellation and applyed it with some reason to all that are Lords of the Parlament yet we have no set number of them because the number of our Nobles may be more or lesse as it pleaseth the King Pelota is a word used in the book called pupilla oculi parte 5. ca. 22. signifying the ball of the foot of the French pelote i. pila Pein fort dure See Pain fort et dure Pelt wool is the woll pulled off the skinne or pelt of dead sheep anno 8 H. 6. cap 22. Penon anno 11 R. 2. cap. prim is a Standard Banner or Ensigne carried in warr It is borrowed from Fraunce for pennon in the French language signifyeth the same thing See Baronet yee read this word anno 11. R. ca. 1. Penue See Baye Peper Piper is a spice known in a manner to every child being the fruit of a plant that is between a tree and a herb of whose diversities and nature you may read Gerards herball lib. 3. cap. 146. This is set among merchandize that are to be garbled anno 1. Jacob. cap. 9. Peper lowse anno 32. H. 8. cap. 14. Per cui post See Entrie Perambulatione facienda is a writ that is sued out by two or more Lords of Maners
placitum commeth of the French ploid i. lis controversia It signifieth in our Common law that which either party allegeth for himself in Court And this was wont to be done in French from the Conquest untill Edward 3. who ordained them to be done in English a. 36. cap. 15. Pleas are divided into pleas of the Crown and Common pleas Pleas of the Crown in Scotland be 4. robberie rape murder and wilfull fire Skene de verb. sign verb. Placitum With us they be all sutes in the Kings name against offences committed against his Crown and dignity Stawnf pl. cor cap. 1. or against his Crown and peace Smith de repub Angl. li. 2. cap. 9. And those seem to be treasons felonies misprisions of either and mayhem For those only doth that reverend Judge mention in that tractat Common pleas be those that be held between Common persons Yet by the former definitions these must comprise all other though the King be a party Plea may farther be divided into as many branches as Action which see For they signifie all one Then is there a Forein plea whereby matter is alleged in any Court that must be tryed in another As if one should lay Bastardy to another in a Court Baron Kitchin fol. 75. The word placitum is used by the Commentours upon the Feuds in the same signification that pleas be with us And Placitare with them is littgare causas agere Hotom in verb. feudal verb. Placitare Pledge Plegius commeth of the French Pleige i. fidejussor Pleiger aucun i. fidejubere pro aliquo In the same signification is Plegius used by Glanvile Libro decimo capite quinto and Plegiatio for the act of suretiship in the interpreter of the Grand Customary of Normandy capite 60. Plegii dicuntur personae quae se obligant ad hoc ad quod qui eos mittit tenebatur And in the same Book capit 89 90. Plegiatio is used as Glanvile before doth use it Salvi plepii be used for Plegii Pupill oculi parte quint. capit 22. Charta de foresta This word Plegius is used also for Frank pledge sometime as in the end of William the Conquerours Laws set out by Master Lambard in his Archaionum fol. 125. in these words Omnis homo qui voluerit se tenere pro libro sit in plegio ut plegius cum habeat ad usticiam si quid offenderit c. And these be called capital pledges Kitchin fol. dectm◠See Frank pledge Plena forisfactura and plena vita see Forfeiture Plegiis acquietandis is a Writ that lyeth for a surety against him for whom he is surety if he pay not the mony at the day Fitzherb nat br folio 137. Regist original 158. a. Plenartie is an abstract of the adjective plinus and is used by our Common Lawyers in matters of benefices Wherein plenarty and vacation be meerly contrary Stawnford prerogativ cap. octavo fol. 32. Westm secundo capit quint. anno 13 Edvard prim Plevin Plevina commeth of the French plevine i. sponsi See Replevin Plite of Lawn c. anno 3 Edw. 4. cap. 5. seemeth to be a certain measure as a yard or elle c. Plonkets anno 1 R. 3. cap. 8. is a kind of wollen cloth Pluries is a Writ that goeth out in the third place For first goeth out the original Capias which if it speed not then goeth out the Sicut aliàs and if that fail then the Pluries See Old nat br fol. 33. In the writ De excom captendo see in what diversity of cases this is used in the Table of the original Register PO Pole See Perch Polein anno 4. Ed. 4. cap. 7. seemeth to be a sharp or picked top set in the fore-part of the shooe or boot This fashion was first taken up in Richard the seconds daies the picks being made so long as they were tyed up to the knees with silver or golden chains and forbidden by Edw. the fourth Stow. pag. 4. Policy of assurance is a course taken by those which do adventure wares or merchandize by sea whereby they loath to hazard their whole adventure do give unto some other a certain rate or proportion as ten in the hundred or such like to secure the safe arival of the ship and so much wares at the place agreed upon So that if the ship and wares do miscarry the assurer maketh good to the venturer so much as he promised to secure as 20 30 100. more or lesse and if the ship do safely arive he gaineth that clearly which the venturer compoundeth to pay him And for the more even dealing between the venturer and the securer in this case there is a certain Clerk or Officer ordained to set down in writing the sum of their agreement that they afterwards differ not among themselves upon the bargain This is in coarse Latine elsewhere called assecuratio This term you have anno 43 Eliz. cap. 11. Pondage See Poundage Pone is a writ whereby a cause depending in the County court is removed to the Common Bank Old nat br fol. 2. See in what diversity of Cases it is used in the table of the Original Register Pone per vadium is a writ commanding the Shyreeve to take surety of one for his appearance at a day assigned of this see five sorts in the table of the Register Judic verbe Pone per vadium Ponendis in assisis is a writ founded upon the statute of Westm 2. cap. 38. and upon the statute Articuli super chartas c. 9. which statutes do shew what persons Vicounts ought to impanel upon Assizes and Iuries and what not as also what number he should empanel upon Iuries and Inquests which see in the Regist orig fol. 178. a. and in Fitz. nat br fol. 165. Ponendum in ballum is a writ whereby to will a Prisoner held in Prison to be committed to bail in cases baylable Regist. orig fol. 133. b. Ponendo sigillnm ad exceptionem is a writ whereby the King willeth Iustices according to the statute of West 2. to put their seals to exceptions laid in against the Plaintiffs declaration by the Defendant Pontage pontagiuns is a contribution towards the maintenance or re-edifying of bridges Westm 2. cap. 25. anno 13 Ed. pri It may be also toll taken to this purpose of those that pass over bridges anno 39 Eliz. cap. 24. anno 1 H. 8. cap. 9. and see the Statute anno 22 H. 8. cap. 5. Pontibus reparandis is a writ directed to the Shyreeve c. willing him to charge one or more to repair a bridge to whom it belongeth Register orig fol. 153. b. Portgreve portgrevius is compounded of two words port and greve or grave i. praefectus It signifieth with us the chief Magistrate in certain Coast towns and as M. Camden sayth in his Britan pag. 325. the chief Magistrate of London was termed by this name instead of whom Richard the first ordained two Bayliffs but presently after
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
right of this prohibition you may read Bracton also lib. 5. tract 5. cap. 3 4 5 6 7 8 9 10 11 12. who saith that it lyeth not after sentence given in any cause however the case is altered and again the statute made anno 50 Ed. 3. which ordaineth that above one Prohibition should not lye in one cause See the diversity of prohibitions in the table of the original Regist See the new book of Entries verbo Prohibition and Fitz. na br fol. 39. Prohibtio de vasto directa parti is a writ judicial directed to the tenent and prohibiting him from making waste upon the land in controversie during the sute Register judicial fol. 21. It is sometime made to the Shyreeve the example whereof you have there next following Pro indiviso is a possession and occupation of lands or tenements belonging unto two or more persons whereof none knoweth his several portion as coparceners before partition Bracton lib. 5. tracta 2. cap. pri nu 7. Prolocutour of the Convocation house prolocutor domus convocationis is an officer chosen by persons Ecclesiastical publikely assembled by the Kings writ at every Parliament And as there be two houses of Convocations so be there two prolocutors one of the higher house the other of the lower house who presently upon the first Assembly is by the motion of the Bishops chosen by the lower house and presented to the Bishops for their prolocutour that is the man by whom they mean to deliver their resolutions to the higher house and to have their own house especially ordered and governed His office is to cause the Clerk to call the names of such as are of that house when he sees cause to cause all things propounded to be read by him to gather the suffrages and such like Promoters promotores be those which in popular and penall actions do defer the names or complain of offenders having part of the profit for their reward These were called among the Romans Quadruplatores or Delatores They belong especially to the Exchequer and the Kings bench Smith de repub Angl. li. 2. ca. 14. Pro patribus liberandis is a writ for the partition of lands between co-heirs Register original fol. 316. Prophecies prophetiae be in our common law taken for wisardly foretellings of matters to come in certain hidden and enigmatical speeches Whereby it falleth out many times that great troubles are stirred in our Common-wealth and great attempts made by those to whom the speech framed either by the description of his cognisance arms or some other quality promiseth good successe anno 3 Ed. 6. cap. 15. anno 7 ejusdem cap. 11. anno 5 Elizab. ca. 15. But these for distinctions sake are called false or phantastical prophecies Property proprietas signifieth the highest right that a man hath or can have to any thing which is no way depending upon any other mans courtesie And this none in our Kingdome can be said to have in any lands or tenements but only the King in the right of his Crown Because all the Lands through the Realm are in the nature of fee and do hold either mediately or immediately of the Crown See Fee This word neverthelesse is in our Common law used for that right in lands and tenements that common persons have because it importeth as much as utile dominium though not directum Proprietate probaenda is a writ See the original Regist fol. 83. a. 85. b. It lyeth for him that will prove a property before the Shyreeve Brooks Property 1. For where a property is alleged a replegiare lyeth not Idem ibidem Proprietarie proprietarius is he that hath a property in any thing but is most nototiously used for him that hath the fruits of a benefice to himself and his heirs or succescessors as in time past Abbots and Priors had to them and their Successors See Appropriation Pro rata portionis See Onerando prorata portionis Proection protectio hath a general and special signification In the general it is used for that benefit and safety that every subject or Denizen or alien specially secured hath by the Kings laws And thus it is used an 25 Edw. tertii capite 22. Protection in the special signification is used for an exemption or an immunity given by the King to a person against sutes in law or other vexations upon reasonable causes him thereunto moving which I take to be a branch of this prerogative And of this protection Fitzh maketh two sorts in his nat br fol. 28. The first form or sort he calleth a protection cum clausula Volumus whereof he mentioneth four particulars A protection quia profecturus for him that is to passe over sea in the Kings service A protection quia moratur for him that is abroad in the Kings service upon the sea or in the marches anno 7 H. 7. cap. 2. A protection for the Kings debter that he be not sued or attached untill the King be payed his debt See anno 15 Ed. 3. This some Civilians call moratoriam which see In singularibus Marantae verb. Princeps p. 79. col 2. And a protection in the Kings service beyond the seas or on the marches of Scotland whereof you may read something anno 1 R. 2. cap. 8. See the Regist orig fol. 23. and Britton cap. 123. The second form of protection istermed cum clâ—usula Nolumuâ— which is granted most comonly to a spiritual company for their immunity from taking of their cattel by the Kings ministers But it may be granted also to one man spiritual or temporal Of these things read the same Author and the forms of these writs See also in the Register Original fol. 22. 23. And see the new expositour of law terms to what action the Kings protection doth not extend See also the new book of Entries verbo protection Protonotarie protonotarius See Preignetary Protestation protestatio is as Justice Walsh defineth it a defence of safegard to the party which maketh it from being concluded by the act he is about to do that issue cannot be joyned upon it Plowden fol. 276. b. whereof see the Regist orginal fol. 306. b. And see Protest Protest protestari hath two divers applications one is by way of cautell to call witnesse as it were or openly to affirm that he doth either not at all or but after a sort yeeld his consent to any act as unto proceeding of a Iudge in a Court wherein his jurisdiction is doubtfull or to answer upon his oath farther than he by law is bound See Plowden casu Gâ—esbroke fol. 276. b. and the Register original fol. 306. b. Another is by way of complaint to protest a mans bill For example if I give mony to a merchant in France taking his Bill of Exchange to be repayed in England by one whom he assigneth me if at my comming I find not my self satisfied to my contentment but either delayed or denyed then I go into the burse or some
open concurse of Merchants and protest that I am deceived by him And thereupon if he hath any goods remaining in any mans hands within the Realm the Law of Merchants is that I be paid out of them Prouver Probator See Approuver anno 5 H. 4. cap. 2. See Approvours Province Provincia was used among the Romans for a Country without the compasse of Italy gained to their subjection by the sword whereupon the part of France next the Alpes was so called of them when it was in their dominion and of that carrieth the same name at this present But with us a Province is most usually taken for the circuit of an Archbishops Iurisdiction as the Province of Canterbury and the Province of York anno 32 H. 8. ca. 23. anno 33 ejusdem cap. 31. yet it is used divers times in our statutes for several parts of the Realm Provincial provincialis is a chief goververnor of an order of Friers anno quar Hen. quar cap. 17. Protoforestaâ—ius was he whom the antient Kings of this Realm made chief of Wind for Forest to hear all causes of death or mayhem or of slaughter or of the Kings Deer within the Forest Camden Brit. pag. 213. See Justice of the Forest Prove See Profe Provision proviso is used with us as it is used in the Canon law for the providing of a Bishop or any other person of an Ecclesiastical living by the Pope before the Incumbent be dead It is also called gratia expectativa or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenns de sacris ecclesiae ministeriis beneficiis l. 3. cap. 2. but also for England particularly in divers statutes of the Realm viz. anno 35 Ed. 3. cap. 22. stat 4. statu 5. commonly called the statute de provisionibus anno 27 ejusdem cap. 1. anno 38 ejusdem stat 2. cap. pri 2 3 4. anno 38 ejusdem anno 2 Rich. 2. cap. 7. anno 3 ejusdem cap. 3. anno 7 ejusdem cap. 12. anno 12 ejusdem cap 15. anno 13 ejusdem stat 2. cap. 2 3. anno 16 ejusdem cap. 5. anno 2 Henr. 4. cap. 3 et 4. et anno 5 ejusdem cap. prim et anno 7 ejusdem cap. 6 et 8. et anno 9 ejusdem cap. 8. anno 3 Henr. 5. cap. quar See Praemunire Provisour Provisor is he that sueth to the court of Rome for a provision Old nat br fol. 143. See Provision Proviso is a condition inserted into any deed upon the observance whereof the validity of the deed consisteth which form of condition seemeth to be borrowed from France for Pourvieu Gallicum semper conditionem inducit Tiraquel tome 3. pag. 316. Our common Lawyers say that it sometime signifieth but a covenant whereof you have a large dispute in the second Book of Sir Edward Cooks Reports in the Lord Cromwels case It hath also another signification in matters Iudicial as if the Plaintiff or demandant desist in prosecuting an action by bringing it to a tryal the defendant or tenent may take out the venire factas to the Shyreeve which hath in it these words Proviso quòd c. to this end that if the Plaintiff take out any writ to that purpose the Sheriff shall summon but one Iury upon them both See Old natura brev in the writ Nisi prius fo 159. PU Purchas See Pourchas Purfles of a womans gown anno 33 H. 8 cap. 5. Purgation purgatio is a clearing of a mans self from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great use in England touching matter of Felony imputed to Clerks in former time as appeareth by Stawnf pl. cor li. 2. cap. 48. See Clergy It is still observed for matter pertaining to the Ecclesiastical court as suspicion or common fame of incontinency or such like Purgation is either Canonical canonica or vulgar vulgaris Canonical is that which as prescribed by the Canon law The form whereof is usually in the Spiritual court the man suspected taking his oath that he is clear of the fault objected and bringing so many of his honest Neighbours being not above twelve as the court shall assign him to swear upon their consciences and credulity that he sweareth truly or hath taken a true oath Vulgar purgation was by fire or water or by combat used by infidels and Christians also untill by the Canon law it was abolished tit 15. depurgatione Canon et vulga in Decretalibus Combat though it be lesse in use than it was yet it is and may be still practised by the Laws of the Realm in cases doubtfull if the defendant chuâ—e rather the combat than other tryal See Ordell See Combat Purlue is all that ground near any Forest which being made Forest by Henry the second Richard the first or King John were by perambulation granted by Henry the third severed again from the same Manwood parte 2. of his Forest laws cap. 20. And he calleth this ground either pouralce i. perambulationem or purliu purluy which he saith be but abusively taken for pourallee ubi supra num 3. But with the licence of that industrious and learned Gentleman I am bold to say that this word may be no less fitly made of two French words pur i. purus and lieu i. locus and my reason is because that such grounds as were by those Kings subjected to the Laws and Ordinances of the Forest are now cleared and freed from the same for as the Civilians call that purum locum qui sepulchrorum reliâ—ioni non est obstrictus sect 9. de reruus divisin institution so no doubt in imitation of that very point our auncestors called this purlieu i. purum locum because it was exempted from that servitude or thraldome that was formerly layd upon it So ager purus est qui neque sacer neque sanctus neque religiosus sed ab omnibus hujusmodi nominibus vacare videtur lib. 2. sect 4. Ï€. de religio et sumptibus funerum And therefore Master Crompton Purraile is not much amisse fol 153. of his Iurisdict because we may also derive it from the French words pur and allee that is as much as to say as a clear or a free walk or passage And where it is sometime called Pouralee that may and doth come from pur and alee i. itio profectio ambulatio because he that walketh or courseth within that compasse is clear enough from the laws or penalties incurred by them which hunt within the precincts of the Forest See the statute anno 33 Edw. prim stat 5. Pourlie man is he that hath ground within the purlieu and being able to dispend forty shillings by the year of Freehhold is upon these two points licensed to hant in his own purlieu Manwooâ— parte 1 of his Forest laws pag. 151 and 157.
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.
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
Reg. orig f. 206 207. Reddioion is a judicial confession and acknowledgement that the land or thing in demand belongeth to the demandant or at the least not to himself a. 34 35 H. 8. ca. 24. Perkins Dower 379 380. Redubhours be those that buy cloath which they know to be stollen and turn it into some other form or fashion Briton cap. 29. Cromptons Viconat fol. 193. a Reentry commeth of the French rentrer i. rursus intrare and signifieth in our Common law the resuming or taking again of possession which we had earst foregone For example If I make a Lease of land or tenement I do thereby forego the possession and if I do condition with the Leassee that for non payment of the rent at the day it shall be lawfull for me to reenter this is as much as if I conditioned to take again the lands c. into mine own hands and to recover the possession by my own fact without the assistance of Iudge or proces Reere County See Rier County Reextent is a second extent made upon lands or tenements upon complaint made that the former extent was partially performed Brook titule Extents fol. 313. Regard regardum is borrowed of the French Regard or regardere i. aspectus conspectus respectus and though it have a general signification of any care or diligence yet it hath also a special acceptance and therein is used only in matters of the Forest and there two waies one for the office of the Regarder the other for the compasse of ground belonging to the regarders office or charge Cromptons jurisd fol. 175.199 Toaching the former thus saith M. Manwood parte pri of his Forest laws pag. 198. The Eire general Sessions of the Forest or Justices seat is to be holden and kept every third year and of necessity before that any such sessions or Iustices seat can be holden the Regarders of the Forest must make their Regard And this making of the regard must be done by the Kings writ And the regard is as he afterward there saith to go through the whole horest and every Bayliwick of the same to see and enquire of the trespasses of the Forest which he compriseth in these four viz. ad videndum ad inquirendum ad imbreviandum ad certificandum Of every of which branches you may read there his exposition Touching the second signification the compasse of the Regarders obarge is the whole Forest that is all that ground which is parcel of the Forest For there may be Woods within the limits of the Forest that be no parcel thereof and those be without the Regard as the same Author plainly declareth parte pri pag. 194. and again parte 2. cap. 7. nu 4. where he sheweth the difference between these words Infra regardum or Rewardum infra Forestam Regarder regardator commeth of the French Regardeur id est Spectator and signifieth an Officer of the Forest Cromptons jurisdict 153. where it is thus defined A Regarder is an Officer of the Forest appointed to surview all other officers He saith there also that this officer was ordained in the beginning of King Henry the seconds daies M. Manwood in his first part of Forest lawes pag 188. thus defineth him A Regarder is an Officer of the Kings forest that is sworn to make the regard of the Forest as the same hath been used to be made in antient time And also to view and enquire of all offences of the Forest as well of vert as of venison and of all concealments of any offences or defaults of the Foresters and of all other officers of the Kings forest concerning the execution of their offices He saith there also that a Regarder may be made either by the Kings letters patents or by any one of the Kings Iustices of the forest at his discretion in the general Eyr or at such time as the regard is to be made by vertue of the Kings writ directed to the Shyreeve of the County for that purpose The form of which writ he there setteth down After that pag. 192. he setteth down his Oath in these words You shall truly serve our Soveraign Lord the King in the office of a Regarder in the Forest of Waltham You shall make the Regard of the same in such manner as the same hath been accustomed to be made You shall raunge through the whole Forest and through every Bayliwick of the same as the Foresters there shall lead you to view the said Forest. And if the Foresters will not or do not know how to lead you to make the regard or raunge of the Forest that they will conceal from you any thing that is forfeited to the King you your selves shall not let for any thing but you shall see the same forfeiture and cause the same to be enrolled in your roll You shall enquire of all wastes pourprestures and Asserts of the Forest and also of concealments of any offence or trespasse in the Forest and all these things you shall to the uttermost of your power dâ— So help you GOD. Then you may read farther the particulars of his office eadem pag. 195. And pag. 207. he saith that their presentments must be upon their view and so recorded and that the Regarders of themselves have power to hear and determine the fine or amerciament for expeditating of dogs See Regard Regio assensis is a writ whereby the King giveth his Royal assent to the election of a Bishop or Abbot Register origin fol. 294. b. Registrie registrum commmeth of the French Registre i. liber librarium codex ratiocinarius ephemeris commentarius it signifieth with us the office or books or rolls wherein are recorded the proceedings of the Chancery or any Spiritual Court. The writer and the keeper whereof is called the Register in Latine Registrarins Register is also the name of a book wherein are expressed all the forms of writs used at the Common law called the Register of the Chancery Anno 13 Ed. pri cap. 24. Some say it is termed Registrum quasi regestum Prataeus Regrator regratator commeth of the French regratter i. desquamare Regratter quelque vielle robe la faire neufue is to scoure or furbish an old garment and to make it new again Also regratteur signifieth as much as Mango in Latine which kind of men sold children and to sell them the better mentiendi coloris artem optime callebant Martialis Plinius This word in our Common law did antiently signifie such as bought by the great and sold by the retayl Anno 27 Ed. 3. stat prim cap. 3. but now it signifieth him that buyeth and selleth any wares or victuals in the same market or fair or within five miles thereof Anno 5 Ed. 6. cap. 14. anno 5 Eliz. ab cap. 12. anno 13 Eliza. cap. 25. See Forestallers and Engrossers Rehabere facias seifinam quando Vicecomes liberavit seifinam de majore parte quam deberet is a writ judicial Register
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
fol 173. Super praerogativa Regis cap. 3. is a writ lying against the Kings widow for marying without his license Fitzherbert nat brev fol. 174. Supplicavit is a writ issuing out of the Chancery for taking the surety of peace against a man It is directed to the Iustices of peace of the County and the Sheriff and is grounded upon the Statue anno pri Edw. 3. cap. 16. which ordaineth that certain persons in Chancery shall be assigned to take care of the peace See Fitzh nat bre fol. 80. This writ was of old called Breve de minis as Master Lamberd in his Eirenarcha noteth out of the Regist orig fol. 88. Sur cui in vita is a writ that lyeth for the heir of that woman whose fiusband having alienated her Land in fee she bringeth not the writ Cui in vita for the recovery of her own Land for in this case her heir may take this writ against the Tenent after her decease Fitzherbert natura brev folio 193. B. Surgeon commeth of the French Chirurgeon i. Chirurgus vulnerarius signifying him that dealeth in the mechanical part of Physick and the outward cures performed with the hand The French word is compounded of two Greek words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. manus and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. opus And therefore are they not allowed to minister inward medicine See Statute 32 Hen. 8. cap. 4. and Master Powltons new Abridgement titulo Surgeons Surcharger of the Forest is he that doth common with more Beasts in the Forest than he hath right to common withall Manwood parte 2. of his Forest Laws cap. 14. nu 7. Surplusage surplusagium commeth of the French surplus i. corollarium additamentum It signifieth in the Common law a superfluity or addition more than needeth which sometime is a cause that a Writ abateth Brook titulo Nugation and Supersluity fol. 100 Plowdens casu Dives contra Maningham fol. 63. b. It is sometime also applyed to matter of account and signifieth a greater disbursement than the charge of the Accomptant amounteth unto Surrcjoynder is thus defined by West parte 2. symb titulo Supplications sect 57. A Surrejoynder is a second defence of the Plaintiff action opposite to the Defendants Rejoynder And therefore as he saith Hotoman calleth it Triplicationem quae est secunda actoris defensio contra Rei duplicationem opposita Not Hotoman only calleth this triplicationem but the Emperor himsel De Replicationibus libro 4. Institut titulo 14. Surrender sursum redditio is an Instrument testifying with apt words that the particular Tenent of Lands or Tenements for life or years doth sufficiently consent and agree that he which hath the next or immediate Remainder or Reversion thereof shall also have the particular estate of the same in possession and that he yeeldeth and giveth up the same unto him For every surrender ought forhwith to give a possession of the things surrendred West parte 1. lib. 2. Sect. 503. where you may see divers presidents But there may be a surrender without writing And therefore there is said to be a surrender in deed and a suâ—render in Law A surrender in deed is that which is really and sensibly performed Surrender in Law is in intendment of Law by way of consequent and not actual Perkins Surrender fol. 606. seq as if a man have a lease of a farm and during the term he accept of a new lease this act is in Law a surrender of the former Coke vol. 6. fol. 11. b. Sursise supersisae anno 32 H. 8. cap. 48. seemeth to be an especial name used in the Castle of Daver for such penalties and forfeitures as are laid upon those that pay not their duties or rent for Castleward at their dayes an 32 H. 8. cap. 48. Bracton hath it in a general signification lib. 5. tract 3. cap. 1. nu 8. and Fleta lib. 6. c. 3. in prin Surveiour supervisor is compounded of two French words sur i. super and veior i. cernere intueri despicere prospicere videre It signifieth in our Common law one that hath the overseeing or care of some great personages lands or works As the Surveiour general of the Kings mannors Cromptons Jurisd fol. 106. And in this signification it is taken anno 33 H. 8. cap. 39. where there is a Court of Surveyours crected And the Surveyour of the Wards and Liveries West parte 2. symbologr titulo Chancerie Sect. 136. which Officer is erected anno 33 H. 8. cap. 22. who is the second Officer by his place in the Court of Wards and Liveries assigned and appointed by the King His Office seemeth especially to consist in the true examination of the Lands belonging to the Kings wards that the King be not deceived At the entrance into his Office he taketh an Oath ministred unto him by the Master of that Court which see anno 33 H. 8. ca. 39. Surveior of the Kings Exchange anno 9 H. 5. stat 2. cap. 4. was an Officer whose name seemeth in these daies to be changed into some other For I cannot learn that there is any such now Survivour is compounded of two French words sur i. super and viure i. aetatem agere vivere whence also commeth the compound surviure i. superesse It signifieth in our Common law the longer liver of two joynt Tenents See Brook titulo Joynt-tenents fol. 33. or of any two joyned in the right of any thing Suspension suspensio is used for a temporal stop of a mans right and differeth from extinguishment in this that a right of estate suspended reviveth again but extinguished it dyeth for ever Boook titulo Extinguishment and Suspension fol. 314. Suspension is also used in our Common law sometimes as it is used in the Canon law pro minori Excommunicatione As anno 24 H. 8. ca. 12. See Excommunication Suspirall seemeth to be a Spring of water passing under the ground toward a Conduit or Cestern anno 35 H. 8. cap. 10. and to be derived from the Latin suspirare or the French souspirer i. ducere suspiria And indeed the word it self is French for suspiral in that Tongue signifieth spiramentum cavernae the mouth of a Cave or Den or the tunnel of a Chimney Swainmot aliâs Swainmote Swainmotum signifieth a Court touching matters of the Forest kept by the Charter of the Forest thrice in the year anno 3 Hen. octav cap. 18. it is called also a Swainmote what things be inquirable in the same you may read in Cromptons Iurisdict fol. 180. who saith that this Court of Swainmote is as incident to a Forest as the Court of a Pie-powder to a Fair with whom agreeeth M. Manwood parte pri of his Forest-laws pag. 144. The word seemeth to be compounded of Swain and mot or Gemot For Swain as M. Manwood saith ubisupra pag. 111. in the Saxons tongue signifieth a Bookland man which at this day is taken for a Charterer or Freeholder and Gemot as Mr. Lamberd
72. the office is as Crompton saith loco allegato properly to look to the vert and to see that it be well maintained Also when any forfeiture is taken in the Forest before the Foresters or other Ministers the price thereof shall be delivered to the Verdour who is to answer for it before the Iustices in Eyr And if he die his heir is chargeable therewith Crompton ibidem The form of his oath at his admittance you may see in Manwoods first part of his Forest laws pag. 51. who there calleth him verderour alià s verdictor You shall truly serve our Soveraign Lord the King in the office of a verderor of the Forest W. you shall to the uttermost of your power and knowledge do for the profit of the King so far as it doth appertain unto you to do You shall preserve and maintain the antient rights and franchises of his Crown you shall not conceal from his Majesty any rights or privileges nor any offence either in vert or venison or any other thing You shall not withdraw nor abridge any defaults but shall indeavour your self to manifest and redresse the same and if you cannot do that of your self you shall give knowledge thereof unto the King or unto his Iustice of the Forest You shall deal indifferently with all the Kings liege people you shall execute the laws of the Forest and do equal right and justice as well unto the poor as unto the rich in that appertaineth unto your office you shall not oppress any person by colour thereof for any reward favour or malice All these things you shall to the uttermost of your power observe and keep Their Office is farther expressed eodem pag. 93. which is to sit in the Court of Attachment to see the Attachments of the Forest to receive the same of the Foresters and Woodwards that do present them and then to enter these attachments into their Roles Verdict veredictum is the answer of a Jury or Enquest made upon any cause civil or criminal committed by the Court to their consideration or tryal And this verdict is two-fold either general or especial Stawnf pl. cor lib. 3. cap. 9. A general verdict is that which is given or brought into the Court in like general terms to the general issue as in an action of disseisin the Defendant pleadeth No wrong no disseisin Then the issue is this in general whether the fact in question be a wrong or not And this committed to the Iury they upon consideration of their evidence come in and say either for the Plaintiff that it is wrong and disseisin or for the Defendant that it is no wrong no disseisin And again the prisoner at the bar pleading Not guilty the Enquest in like general terms bring in their verdict either for the King Guilty or for the prisoner Not guilty A special verdict is that whereby they say at large that such a thing and such they find to be done by the Defendant or Tenent so declaring the course of the fact as in their opinion it is proved and for the quality of the fact they pray the discretion of the Court. And this special verdict if it contain any ample declaration of the cause from the beginning to the end is also called a verdict at large Whereof read divers examples in Stawnf pl. cor lib. 3. cap. 9. and one or two in Littleton fol. 78. 79. See the new book of Entries verb. Verdict Verge virgata may seem to come from the French verger i. viridarium hortus It is used here in England for the compass about the Kings Court that boundeth the jurisdiction of the Lord Steward of the Kings houshold and of the Coroner of the Kings house and that seemeth to have been twelve miles compass anno 13 Richard 2. Stat. prim cap. 3. Fitzh nat br fol. 24. B. and Briton fol. 68. b. 69. a. and Fletae lib. 2. cap. 2. and Sir Edward Cooks Reports lib. 4. fol. 47. a. For this see the Statute anno 33 Hen. 8. cap. 12. toward the end But Fleta saith that this compass about the Court is called virgatä à virga quam Marishalus portat ut signism suae potestatis lib. 2. cap. 4. sect prim Verge hath also another signification and is used for a stick or rod whereby one is admitted Tenent and holding it in his hand sweareth fealty unto the Lord of a manor who for that cause is called Tenent by the Verge Old nat br fol. 17. Vergers virgatores be such as cary white wands before the Iustices of either bank c. Fleta lib. 2. cap. 38. otherwise called Porters of the Verge Very Lord and very Tenent verus Dominus et verus Tenens are they that be immediate Lord and Tenent one to the other Brook titulo Hariot fol. 23. In the Old nat br and in the writ Replegiari de averiis fol. 42. I find these words And know ye that in taking of Leases six things are necessary that is to say very Lord and very Tenent Service behind the day of the taking seisin of the services and within his Fee And know yee that a man is not very tenent untill he have atturned to the Lord by some services So that by Brook the very Lord and the very Tenent must be immediate and by this Book there must be an acknowledgement See anno 19 Hen. 7. cap. 15. See Tenent Vert viride is made of the French verd i. viridis and significth with us in the laws of the Forest every thing that doth grow and bear green leaf within the Forest that may cover and hide a Dâ—er Manwood in the second part of his Forest laws fol. 6. a. and fol. 33. b. with whom also Crompton agreeth fol. 170. of his Iurisd And vert as the same Author saith eodem fol. 34. is divided into Over vert and Neather vert Over vert is that which our Lawyers call Hault bois and Neather vert is that which they call South boil And of this you may read him in his second part of Forest laws cap. 6. per totum Where you shall find that he divideth vert into general and special General is as it is above defined Vert special is every tree and bush within the Forest to feed the Deer withall as Pear trees Crab-trees Hauthorns Blackbush and such like And the reason of this name is because the offence of destroying of such vert is more highly punished than of any other according to the quantity thereof codem cap. 6. num 2. fol. 35. a. Vervise otherwise called Plonkets anno 1. R. 3. cap. 8. a kind of cloath Vesses anno 1 R. 3. cap. 8. anno 14 15 H. 8. cap. 11. otherwise called Set cloaths Vesture Vestura is a French word signifying a garment but in the use of our Common law turned metaphorically to betoken a possession or an admittance to a possession So it is taken Westm. 2. cap. 25. anno 13 Ed. prim And
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
domini si quem habuerit accedat c. And to help this probability I find that the Steward of a manner is termed serviens manerii Coke Vol. 4. Copihold cases fol. 21 a. Then is there a Sergeant at arms serviens ad arma whose Office is to attend the person of the King An. 7 H. 7. ca. 3. to arest Traitors or men of worth or reckning that do or are like to contemn Messengers of ordinary condition for other causes and to attend the Lord high Steward of England sitting in judgement upon any Traitor and such like pl. cor lib. 3. cap. pri Of these by the Statute anno 13 R. 2. cap. 6. there may not be above thirty in the Realm This sort is called del espee In the custumary of Nor. car 5. which read There be also some two of these Sergeants of the Parliament one for the upper another for the lower house whose Office seemeth to serve for the keeping of the Doors and the execution of such Commandements especially touching the apprehension of any offender as either house shall think good to enioyn them See Cromptons Jurisdictions fol. nono See also Vowels aliâs Hookers book of the order of the Parliament There is one of these that belongeth to the Chancery who is also called a Sergeant of the Mace as the rest may be because they carry Maces by their office He of the Chancery attendeth the Lord Chancellor or Keeper in that court for the means to call all men into that Court is either by this Officer or by sub poena West pa. 2. Symb. tit Chauncery Sect. 17. Then be there Sergeants that be the chief officers in their several functions within the Kings houshold which be chief in their places of which sort you may read many named in the statute anno 33 H. 8 cap. 12. There is also a more base kind of Sergeant of the Mace whereof there is a troop in the City of London and other Towns corporate that serve the Maior or other head Officer both for mesnial attendance and matter of Justice Kitchin fol. 143. And these are called Serviontes ad clavam New book of Entries ver scire facias in Mainperners fol. 538. cap. 3. Sergeantie Serriantia commeth of the French Sergeant i. satelles and signifieth in our Common law as service due to the King from his Tenent holding by such service For this service cannot be due to any L. from his Tenent but to the King only And this is either grand or petit as you shall find at large set down in Chivalry Of this also you may read Bra. l. 2. c. 16. c. 37. n. 5.4 et Brit. c. 66. n. 1. et 2. See Servies M. Skene de ver signif calleth this Sergeantery defining and dividing it as we do in England Servientihus as certain writs touching servants and their Masters violating the statutes made against their abuses which see in the Regist. orig fo 189. et 190 et 191. Service servitium though it have a general signification of duty toward them unto whom we owe the performance of any corporal labor of function yet more especially in our Common law it is used for that service which the Tenent by reason of his fee oweth unto his Lord. And so doth it signifie among the Feudists also For Hotoman thus defineth it Servitium est munus obsequit clientelaris verbo Servitium De verbis feudal or rather declareth it so to be defined lib. feud 2. titulo 51. Sect. 8. It is sometime called servage as anno 1 R. 2. cap. 6. This service is either military and noble commonly called Knights service or clownish and base commonly called Soccage of both which read Chiry as also scecage And Bracton lib. 2. ca. 16. Service is divided by Britton into personal and real cap. 66. where he maketh wards mariages homage Reliefs and such like to be real services personal I imagine may those be called that are to be persormed by the person of the Tenent as to follow his Lord into war c. The Civilians divide munera in this sort either in personalia or patrimonalia Then Bracton ubi supra num 7. distributeth servitium in intrinsecum extrinsecum aliâs forinsecum medium Servitium intrinsecum is that which is due to the capital Lord of the Mannro Forinsecum is that which is due to the King and not to the capital Lord but when he goeth in his own person to serve or when he hath satisfied the King for all services whatsoever And again in the same place he saith it is called Fornisecum quia fit capitur foris sive extra servitium quod fit Domino capitali See Forein service Of this read him ubi supra more at large and Fleta lib. 2. cap. 14. § Continetur Servitia quae nec intrinseca necforinseca sunt Bract. handleth in the same Chapter nu 8. saying thus sunt etiam quaedam consuetudines quae nec dicuntur intriasecae nec forinsecae sed sunt quaed im servitia concomitantia sicut servitia regalia militaria etiambemagia adeo in cbartis non sunt exprimendae Quia si homagium praecesseris et regale servitium sequitur exinde quod ad capitalem Dominum pertinebit Relivium et custodia et maritagium sive servitium sit militare vel seriantia propter exerciâ—um c. Here then Relief Ward and Mariage be those services which he calleth nec intrinseca nec forinseca sed concomitantia Service is also divided into frank service and base or villeinous service the one Bracton calleth liberum servitium the other servitium villanum or villenagium lib. 2. cap. 8. num pri This villenagium is Soccage in base tenure as to dung the Lords ground to serve him so many daies in harvest to plash his hedges c. or else copyhold All other services seem to be frank Service consisteâ—h some in seisance some in render Perkins Reservations 696. Service seemeth also to be divided into continual otherwise annual and casual or accidental An example of the sormer is the seisin of rent and of the other seisin of Relief Sir Edward Cokes Reports lib. 4. Bevils case fol. 9. a. See Copy hold See Soccage See Ayd Service secular anno 1 Ed. 4. cap. 1. which may be contrary to spiritual viz. the service divine commanded to spiritual men by their founders Servitours of Bills seem to be such servants or messenger of the Marshal belong-to the Kings Bench as were sent abroad with Bills or Writs to summon men to that Court being now more ordinarily called Tipstaffs Servitiis acquietandis is a Writ judicial that lyeth for one distreined for services by Iohn which oweth and performeth to Robert for the acquital of such services Register judicial fol. 27. a. et 36. b. Sessions Sessiones signifieth in our Common law a sitting of Justices in Court upon their commission as the Sessions of oyer and terminer pl. cor fol. 67. Quarter Sessions
otherwise called general Sessions an 5 Elizabeth cap. 4. or open Sessions ibidem Opposite whereunto are especial otherwise called privy Sessions which are procured upon some special occasion for the more speedy expedition of Iustice in some cause Cromptons Iustice of peace fol. 110. what things be inquirable in general Sessions See Cromptons Iustice of peace fol. 109. Petit Sessions or Statute Sessions are kept by the high Constable of every Hundred for the placing of servants anno 5 Eliz. cap. 4. in fine Sessour an 25 Ed. 3. cap. 6. seemeth to signifie so much as assessing or rating of Wages at this day Set Cloathes anno 27 Hen. 8. cap. 13. Setwell Valeriana is a medicinal herb the nature and divers kinds whereof you have in Gerards herbal lib. 2. cap. 424. The root of this is mentioned among drugs to be garbled an 1 Iac. cap. 19. Severance is the singling of two or more that joyn in one Writ or are joyned in one Writ For example if two joyn in a VVrit de Libertate probanda and the one afterward be nonsute here severance is permitted so that notwithstanding the nonsute of the one the other may severally proceed Fitzherbert natura brevium fol. 78. l. K. Of this see Brook titulo Severance and Summons fol. 238. For it is harder to know in what cases severance is permitted than what it is There is also severance of the Tenents in an Assise when as one or two or more disseisours appeareth upon the VVrit and not the other New Book of Entries fol. 81. col 4. And severance in Attaints eod fo 95. col 2. And severance in Debt verbo debt fol. 220. col 1. see the said Book verbo Severance Seneral tayl tallium separatum is that whereby Land is given and entayled severally to two For example land is given to two men and their VVives and to the Heirs of their bodies begotten the Donees have joynt estate for their two lives and yet they have several Inheritance because the issue of the one shall have his moyetie and the issue of the other the other moyetie Kitchin ibid. Several tenancy tenura separalis is a Plee or exception taken to a writ that is laid against two as joynt which are several Brook titulo Severall tenancie fol. 273. Sevantly woven anno 35. Eliza. cap. 10. Sewer hath two significations with us one applyed to him that issueth or commeth in before the meat of the King or other great personage and placeth it upon the table the other to such passages or gutters as carry water into the sea or river in Lawyers Latine called Sewera an 6. H. 6. c. 5. which is also used in common speech for commissioners authorised under the broad seal to see drains and ditches well kept and maintained in the Marish and Fenne Countries for the better conveyance of the water into the Sea and the preserving of the grasse for seed of Cattel stat an 6. H. 6. cap. 5. It is probable to bring this word from the French issir or issue as if we should call them Issuers because they give issue or passage to the water c. And the Latine word suera some time used in these commissions for these drains is a competent reason of this conjecture See Fitz. nat brev in Oyer and Terminer Yet I find in an old French Book containing the Officers of the King of Englands Court as it was antiently governed that he whom in Court we now call Sewer was called Asseour which may seem to come from the French Asseour wherein his Office in setting down the meat upon the Table is well expressed And Sewer as it signifieth an Officer is by Fleta latined Assessor li. 2. c. 15. All which argueth that the descent of this word is from the French Asseoir as signifying a disposing or placing of any thing or as we say in English an assessing of any person toward the performance of a Duty Sexagesima See Septuagesima SH Shanck See Fur. Share See Flotzon Shewing is to be quit of Attachment in any Court and before whomsoever in plaints shewed and not avowed New exposition of law terms verbo Shewing See Scavage Shipper An. 1 Iac. ses 1. cap. 33. is is a Dutch word signifying the Master of the ship Shire Comitatus shyra is a Saxon word signifying Satrapian of the verb scyran 1. partiri Lamberd in his explication of Saxon words verbo Centuaria The word is in use so rife that every Child understandeth it Who first thus divided this land into shires appeareth by M. Cambdens Britan. pag. 102. in these words Nec dum tamen florente Hepterchia Anglia it a in Comitatus divisa sic enim vulgò vocant sed pestea cum solus aluredus rerum potiretur Vt enim Germani majores nostri teste Tacito jura per pagos vicosque reddebant et centeni ex plebe comites adrem admistrandam adjungebantur sic ille ut ingulfi Croulandenfis verbis utar pr mus Angliam in Comitatus divisit qued indiginae rapinas committerent exemplo et colore Danorum Comitatus porro in Centurias i. Hundreds et Decimas i. Tythings distribui fecit praecipitque ut omnis indigena in aliqua esset Centuria Decima Praefectos etiam provinciarum qui antea Vicedomini vocabantur in duo officia divtsit viz. Iudices nunc Iusticiarios Vicecomites qui adhue idem nomen retinent See the rest Shereeve Vicecomes is compounded of these Saxon words Scyre i. satrapia and Reeve i. praefectus and accordingly he is the chief Officer under the King of his Shire or County See Ferme in Lacies Nobility pag. 12. M. Cambden pag. 104. Thus describeth his Office Singulis verò annis nobilis aliquis ex incolis praeficitur quem Vicecomitem quasi vicarium comitis nostrâ linguâ Shyref i. Comitatus praepositum vocamus qui etiam comitatus vel provinciae Quaestor rectè dici potest Ejus enim est Publicas pecunias provinciae suae conquirere mulctas irrogatas vel pignoribus ablat is eolligere aerario inferrae Iudicibus praesto adesse eorum mandata exâ—qui duodecim viros cogere qui in causis de facto cognoscunt et ad Iudices referunt Iudices enim apud nos juris solum non facti sunt Iudices condemnatos ad supplicium ducere in minoribus litibus cognoscere in majoribus autcm jus dicunt justiciarii quos itinerantes ad Assisas vocant qui quotannis hos Comitatus bis adeunt ut de causis cognoscant et ad carceratis sententiam ferant Henricus secundus hos itinerantes instituit vel potius restituit Ille ut inquit Mathaeus Parisiensis consilio filii sui et Episcoporum constituit Iusticiarios per sex paertes regni in qualibet parts tres qui jurarent quod cuilibet jus suum conservarent illaesum Of the antiquity and authority of this Officer read Sir Edwards Cooks Reports lib. 4. Mittons Case The manner of appointing