signifieth one vsed to call or cite a man to any court These by the common lawe ought to be boni that is by Fleta his Iudgement liberi homines ideo boni quia terras tenentes quod sint coram talibus Iusticiariis ad ce â—tos diem locum secundum mandatum Iusticiariorum vicecomiti directum parati inde facere recognitionemilib 4. cap. 5. § Etcum Summons Summonitio see Sommons Common Summons Marlb cap. 18. anno 52. Henric. 3. is l. Summons in terra petita Kitch fol. 286. is that summons which is made vpon the land which the party at whose suite the summons is sent forth seeketh to haue Summons ad Warrantizandum Dyer fol. 69. nn 35. Sumage Sumagium seemeth to be tolle for cariage on horseback Crompton Iurisd fol. 191. Forwhere the Charter of the Forest cap. 14. hath these words for a horse that beareth loades euery halfe yeare a halfe penny the booke called Pupilla ocult vseth these wordes pro vno equo portante summagium per dimidium annum obolum It is otherwise called a Seame And a Seame in the Westerne parts is a horse loade Superoneratione pasturae is a writ Iudiciall that lyeth against him who is impleaded in the County for the overburdening of a common with his catell in case where he is formerly impleaded for it in the countie and the cause is remooued into the Kings court at Westm Supersedeas is a writ which lieth in diuers and sundry cafes as appeareth by the table of the Register originall and the Iudiciall also and by Fitzh nat br fol. 236. and many other places noted in the Index of his booke verbo Supersedeas But it signifieth in them all a command or request to stay or forbeare the doing of that which in apparence of law were to be done were it not for the cause wherevpon the writ is graunted For example a man regularly is to haue surety of peace against him of whome he will sweare that he is afraide and the Iustice required herevnto cannot denie him Yet if the party be formerly bound to the peace either in Chauncerie or else where this writ lyeth to stay the Iustice from doing that which otherwise he might not denie Superstatutum Ed. 3. vers servants and labourers is a writ that lyeth against him who keepeth my seruant departed out of my seruice against lawe Fitzh nat fo 167. Super statuto de York quo nul sera viteller c. is a writ lying against him that occupieth vitteling either in grosse or by retaile in a Citie or Borough towne during the time he is Maior c. Fitzh natur bre fol. 172. Super statuto anno pri Ed. 3. cap. 12 13. is a writ that lyeth against the Kings Tenent holding in cheife which alienateth the kings land witout the Kings license Fitzh nat br fol. 175. Super statuto facto pour seneshall Marshall de Roy c. is a writ lying against the Steward or Marshall for holding plee in his court of freehould ot for trespasse or contracts not made within the Kings houshold Fitzherbert nat breu fol. 241. Super statuto de Articulis Cleri cap. 6 is a writ against the Shyteeue or other officer that distreineth in the Kings high way or in the glebe land aunciently giuen to Rectories Fitzh nat br fol. 173. Super praerogatiuae Regis cap. 3. is a writ lying against the kings widow for marying without his licence Fitzherbert nat br fol 174. Supplicauit is a writ issuing out the Chauncerie for taking the surety of peace against a man It is directed to the Iustices of peace of the county and the Shyreeue and is grounded vpon the statute anno pri Ed. 3. cap. 16. which ordeineth that certaine persons in chauncerie shall be assigned to take care of the peace See Fitzh nat br fol. 80. This writ was of old called Breve de minis as M. Lamberd in his Emenarcha noteth out of the Register originall fol. 88. Sur cui in vita is a writ that lyeth fot the heire of that woman whose husband hauing alienated her land in fee shee bringeth not the writ Cui in vita for the recouery of her owne land for in this case her heire may take this writ against the tenent after her decease Fitzh nat br fol. 193. B. Surgeon commeth of the French Chirurgien i. Chirurgus vulnerarius signifiing him that dealeth in the mechanicall parte of phisicke and the outward cures performed with the hand The French word is compounded of two greeke words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. manus and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. opus And therefore are they not alowed to minister inward medicine See the statut 32. H. 8. ca. 4. and M. Powltons new abridgement titule Surgeons Surcharger of the forest is he that doeth common with more beasts in the forest then he hath right to common withall Manwood parte 2. of his forest lawes 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 then needeth which sometime is a cause that a writ abateth Brooke titulo Nugation Superfluity fol. 100. Plowden casu Dine contra Maningham fol. 63. b. It is sometime also applied to mater of accoumpt and signifieth a greater disbursement then the charge of the accoumptant amounteth vnto Surreioynder is thus defined by West parte 2. symb titulo Supplications sect 57. A Surreioynder is a second defence of the plaintifes actioÌ„ opposite to the Defendants Reioynder And therefore as he saith Hotoman call eth it Triplicationem quaeest secunda actoris defensio contra Rei duplicationem opposita Not Hotoman onely calleth this triplicationem but the Emperour himselfe De Replicationibus libro 4. Institut titulo 14. Surrender sur sum redditio is an Instrument testifiing with apt words that the particular tenent of lands or tenements for life or yeares doth sufficiently consent and agree that he which hath the next or immediate Remainder or Reuetsion thereof shall also haue the particular estate of the same in possession and that he yeeldeth and giueth vp the same vnto him For euery surrender ought forthwith to giue a possession of the things surrendred West parte pri lib. 2. sectio 503. where you may see diuers presidents But there may be a surrender without writing And therefore there is said to be a surrender in deede and a surrender in law A surrender in deede is that which is really and sensibly performed Surrender in law is in intendment of law by way of consequent and not acutall Perkins Surrender 606. seqq as if a man haue a lease of a serm during the terme he accept of a new lease this act is in law a surrender of the former Coke vol. 6. fo 11. b. Sursise supersisae anno 32. H. 8. ca. 48. seemeth to be an especiall name vsed in the Castle of Douer for such penalties and
by misprision of Clerks no processe shal be admitted Misprision of treason is the concealement or not disclosing of knowne treason for the which the offendours are to suffer imprisonment during the Kings pleasure loose their goods and the profits of their lands during their liues Crompton in his Iustice of peace cap. Misprision of felony fol. 40. West parte 2. symbol titulo Inditements sect 63. in siue Misprision of felonie seemeth only finable by the Iustices before whome the party is attainted Crompton Iustice of peace vbisupra The Iustices of the common place haue power to assesse fines and amerciaments vpon persons offending for misprisions contempts or negligences for not doing or misdoing any thing in or concerning fines West parte 2. symbol titulo Fines sect 133. Iustices of Assise shall amend the defaults of Clerks misprising of a sillable or leter in writing Cromptons Iurisd fol. 208. But it is to be noted that other faults may be accompted misprisions of treasons or felonie because certaine later statutes doe inflict that punishment vpon them that of old hath beene inflicted vpon misprisions whereof you haue an example anno 14. El. ca. 3. of such as coine foreine coines not current in this Realme and of their procurers aiders and abetters And see the newe exposition of lawe Termes Misprision signifieth also a mistaking anno 14. Ed. 3. stat pri ca. 6. Misses See Mise Misuser is an abuse of libertie or benefite As he shall make fine for his misuser old nat br fol. 149. Mistery mysterium commeth of the latine Mysterium or rather from the French Mestier i. ars artificium an art or occupation Mittendo manuscriptum pedis finis is a writ Iudiciall directed to the Treasurer and Chamberlaines of the Exchequer to search and transmit the foote of a fine acknowledged before Iustices in Eyre into the common plees c. Register fol. 14. a. b. Mittimus signifieth a precept sent by the King out of his Bench to those that haue the custodie of fines levied that they send them by a day assigned to his Bench West parte 2. symbol titulo Eynes sect 138. F. 154. B. and also to the Exchequer for certificate that Iudgment is giuen for the liuerie of lands to such or such a one out of the Kings hands whervpō he is dismissed also out of the exchequer a. 5. R. 2. c. 15. of diuers other vses and applicatiōs of this Mittimus see the Register originall in the table of the booke Moderata misericordia is a writ that lieth for him that is amersed in court Baron or other being not of Record for any transgression or offence beyond the qualitie of a fault It is directed to the Lord of the court or his Bayliffe commanding them to take a moderate amerciament of the party and is founded vpon Magna charta ca. 14. Quòd nullus liber homo amercietur nisi secundùm qualitatem delicti c. The rest touching this writ see in Fitzh nat br fol. 75. See Misericordia Modo forma are words of art in a processe and namely in the answer of the defendant wherby he denieth himselfe to haue done the thing layde to his charge modo forma declarata Kitch fol. 232. It signifieth as much as that clause in the ciuile lawe Negat allegata prout allegantur esse vera Moitye commeth of the French Moitiè id est coaequa vel mediapars and signifieth the halfe of any thing Litleton fol. 125. Monks clothes anno 20. Hen. 6. cap. 10. Moniers Monetari◠Register original fol. 262. b. anno 1. Ed. 6. ca. 15. be ministers of the Mint which make and coine the Kings mony It appeareth by some antiquity which I haue seen that in auncient times our kings of England had mints in most of the countries of this Realme And in the tractate of the Exchequer writen by Ockham I finde that whereas the Shyreeues ordinarily were tyed to pay into the Exchequer the kings sterling for such debts as they were to answer they of Northumberland and Cumberland were at libertie to pay in any sort of mony so it were siluer And the reason is there giuen because those two shires monetarios de antiqua institutione non habent Monstrance de droyt is as much to say as shewing of his right It signifieth in our cōmmon lawe a sulte in Chancerie to be restored to lands or tenements that indeede be mine in right though they were by some office found to be in possessiō of another lately dead See Stawnf praerog ca. 21. at large and Brooke titulo Petition of this also reade Sir Edward Cookes reports lib. 4. fol. 54. b. c. the Wardens of the Sadlers case Monstrauerunt is a writ that lieth for tenents that hold freely by charter in auncient Demeane being distreined for the payment of any tolle or imposition contrary to their libertie which they do or should enioy which see in Fitzh nat br fol. 14. Morian is all one in significatiō with the french Morion i. cassis a head peece which word the french man boroweth from the Italian morione anno 4. 5. Phi. Ma. ca. 2. Morlinge aliâs Mortling seemeth to be that wolle which is taken from the skinne of a dead sheep whether dying of the rotte or being killed anno 27. H. 6. ca. 2 This is writen Morki◠anno 3. Iaco. ca. 8. Mort d'auncester See Assise Mortgage Mortuum vadium vel Morgagium is compounded of 2. French words Mort id est mors and Gage id est pignus merces It signifieth in our common lawe a pawne of land or tenement or anything moueable laid or bound for mony borowed peremptorily to be the creditours for euer if the mony be not paide at the day agreed vpon And the creditour holding land or tenement vpon this bargaine is in the meane time called Tenēt in mortgage Of this we reade in the grand Custumarie of Normandie cap. 113. in these wordes Notandum insuper est quod vadiorum quoddam viuum quoddam mortuum nuncupatur Mortuum autem dicitur vadium quod se de nihilo redimit acquietat vt terra tradita in vadium pro centum solidis quam cum obligator retrahere voluerit acceptam pecuniam restituet in solidum Vivum autem dicitur vadium quod ex suis prouentibus acquir atur Vt terra tradita in vadium pro centum solidis vsque ad tres annos quae elapso tertio anno reddenda est obligatori vel tradita in vadium quousque pecunia recepta de eiusdem proventibus fuerit persoluta Glanvile likewise lib. 10. cap. 6. defineth it thus mortuum vadium dicitur illud cuius fructus vel reditus interim percepti in nullo se acquietant Soe you see by both these bookes that it is called a dead gage because whatsoeuer profit it yeeldeth yet it redeemeth not it selfe by yelding such profit except the whole somme borowed be likewise paid at the day See M. Skene de
Mons à mouendo Patronum faciunt dos aedificatio fundus saith the old verse Of lay patrons one writeth thus Quod autem a supremis pontisicibus proditum est ca. cùm dilectus extra de iure patronatus laicos ius habere presaentaÌ„di clericos Ordinarois hoc singulari favore sustinetur vt allecteÌ„tur laici inviteÌ„tur inducantur ad constructioneÌ„ ecclesiaruÌ„ c. quoniam eodem Nec omni ex parte ius patronatus spirituale censeri debet sed temporale potius spirituali annexum glos in c. piae mentis 16. qu. 7. These be Corasius words in his paraphrase ad sacerdotiorum materium parte pri cap. 2. and parte 4. cap. 6. in principio he thus writeth of the same mater Patroni in iure Pontificio dicuntur qui alicuius ecclesiae extruendae aut alterius cuiuscunque fundationis ecclesiasticae authores fuerunt ideoque praesentandi offerendi clericum ius habent quem ecclesiae vacanti praeesse in ea collatis reditibus frui velint Acquirunt autem hoc ius qui de Episcopi consensu vel fundant ecclesiam hoc est locum in quo templum extruitur assignant vel ecclesiam aedificant vel etiam constructas ecclesias ante consecrationem dotant vt non valde sit obscurum ius patronatus quo de agimus finire ius esse praesentandi clericum ad ecclesiam vacantem ex gratia ei concessum qui consentiente Episcopo vel constâ—uxiâ— vel dot avit ecclesiam Pannage Pannagium aliâs pasnagium or pennagium as it is latined in pupilla oculi may be probably thought to come of the French panez or panets which is a roote something like a parsnep but somewhat lesse and ranker in taste which hogs in Fraunce feede vpon though it be eaten by men also and the French may seeme to come of the latine pamcium i. that which men vse in the steede of bread Isodorus or panicium of the French It signifieth in our common law the mony taken by the Agistors for the feede of hogs with the mast of the kings forest Crompton Iurisd fol. 165. Westm 2. cap. 25. anno 13. Ed. pri with whom M. Manwood parte pri of his forest lawes agreeth in these words Agistment is properly the common of herbage of any kinde of ground or land or woods or the money due for the same and pawnage is most properly the mast of the woods or lands or hedge-rowes or the money due to the owner of the same for it But this learned man in his second part cap. 12. where he writeth at large of this driueth the word from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 at the which I thinke he smiled himselfe when he set it downe Lindwood defineth it thus Panagium est pastus pecorum in nemoribus in syluis vtpote de glandibus aliis fructibus arborum syluestrium quarum fructus aliter non solent colligi titulo de decimis ca. sancta verb Pannagiis M. Skene de verborum signf calleth it pannagium and defineth it to be the duty giuen to the king for the pasturage of swine in his forest The French word for the same thing is panage or glandee i. glandatio vel glandium collectio pastio suum ex glandibus And we surely take it from the French whence they had it or what etimologie they make of it let themselues looke Peace pax in the generall signification is opposite to warre or strife But particularly it signifieth with vs a quiet and harmlesse cariage or behauiovr toward the king and his people Lamb. eirenarcha li. 1. ca. 2. pag. 7. And this is one way prouided for all men by oath as you may read in Frank pledge but more especially in case where one particular man or some few goe in daunger of harme from some other For vpon his oath made thereof before a Iustice of peace he must be secured by good bond See Lamb. eirenarcha lib. 2. c. 2. p. 77. See also Cromptons Iustice of peace fol. 118. b. c. vsque f. 129. This amoÌ„g the CiuiliaÌ„s is called cautio de non offendedo Gail de pace publ lib. pri c. 2. nu 〈◊〉 Peace of God and the church pax Dei ecclesiae is aunciently vsed for that rest which the kings subiects had from trouble and suite of law betweene the termes See Vacation Peace of the King anno 6. R. 2. stat pri ca. 13. is that peace and securitie both for life and goods which the King promiseth to all his subiects or others taken to his protection See Suite of the kings peace This pointe of policie seemeth to haue beene borowed by vs from the Feudists for in the second booke of the seuds there is a chapter viz. the 53. chapter intituled thus De pace tenenda inter subditos iuramento firmanda vindicanda de poena iudicibus apposita qui cum vindicare Iustitiam facere neglexerint the contents of which chapter is a Constitution of Fredericke the first as Hotoman there proueth expounding it very learnedly and like himselfe Of this kings peace Roger Houeden setteth downe diuers branches parte poster suorum annalium in Henr. 2. fol. 344. a. b. and fol. 430. b. he mentioneth a sorme of an oth which Hubert Archbishop of Canterburie and chiefe Iustice of EnglaÌ„d in R. the first his daies sent through the whole realme to be taken by the kings subiects See Deciners See Suertie of peace There is also the peace of the Church for which see Sanctuarie And the peace of the kings high way which is the immunitie that the kings high way hath from all annoyance or molestation See Watling street The peace of the plowe whereby the plow and plow catell are secured from distresses For which see Fitz. nat br fol. 90. A. B. So Fayres may be said to haue their peace because noe man may in them be troubled for any debt elsewhere contracted See Fayre Pedage pedagium signifieth money giuen for the passing by foote or horse through any countrey extra de Censibus ca. Innovamus I reade not this word in any English writer but onely the author of the booke called pupilla oculi parte 9. cap. 7. A. D. I thinke we rather vse passage for it Pedagia dicuntur quae dantur â transeuntibus in locum constitutum à principe Et capiens pedagium debet dare saluum conductum territorium eius tenere securum Baldus in vsibus Feudorum de pa. iura fir § Conventionales Cassan de consuetud Burg. pag. 118. hath these wordes Pedagium a 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 securitie of ships that lye at harbour in any hauen So is the peere of Douer described in M. Camd. Brit. p. 259. in meo Peeres pares commeth of the French per. i. par it signifieth in
kings house whose function is fragmenta diligenter colligere ea distribuere singulis diebus egenis agrotos leprosos incarceratos pauperesque viduas alios egenos vagosque in patria commorantes charitative visitare item equos relictos robas pecuniam alia ad eleemosynae largita recipere fideliter distribuere Debet etiam regem super eleemosynae largitione crebris summonitionibus stimulare praecipuè diebus Sanctorum rogare ne robas suas quae magni sunt pretii histrionibus blanditoribus adulatoribus accusatoribus vel menestrallis sed and eleemosinae suae incrementum iubeat largiri Fleta lib. 2. cap. 2. Almoine eleemosina See Frank almoyne Almond amygdalum is well knowne to euery mans sight it is the kirnell of a nut or stone which the tree in Latine called amygdalus doth beare within a huske in maner of a wal nut of whose nature and diuersities you may reade Gerards Herball lib. 3. cap. 87. This is noted among merchandize that are to be garbled anno 1. Iaco. ca. 19. Alnegeor aliâs aulnegeor vlniger vel vlnator cometh from the French aulne an elle or elwand and signifieth an officer of the Kings who by himselfe or his deputie in places conuenient looketh to the assise of wollen cloth made through the land and to seals for that purpose ordained vnto them an 25. Ed. 3. Stat. 4. cap. 1. anno 3. R. 2. cap. 2. who is accomptable to the king for euery cloth so sealed in a fee or custome therunto belonging anno 17. R. 2. cap. 2. Reade of this more anno 27. Ed. 3 cap. 4. anno 17. R. 2. cap. 2. 5. anno 1. H. 4. cap. 13. anno 7. eiusdem cap. 10. anno 11 eiusd cap. 6. anno 13. eiusd cap. 4. anno 11. H. 6. cap. 9. anno 31. eiusdem cap. 5. anno 4. Ed. 4. ca. 1. anno 8. eiusdem cap. 1. an 1. R. 3. cap. 8. Ambidexter is that iurour or embraceour that taketh of both parties for the giuing of his verdict He forfeiteth ten times so much as he taketh anno 38. Ed. 3. cap. 12. Cromptons iustice of peace fol. 156. b. Amendment emendatio commeth of the French amendement and signifieth in our common lawe a correction of an error committed in a processe and espyed before iudgment Terms of the lawe Broke titulo Amendement per totum But if the fault be found after iudgment giuen then is the party that wil redresse it driuen to his writ of errour Tearmes of the lawe Broke 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 haue offended and to stand at the mercie of the King or Lord. There seemeth to be a difference betweene amerciaments and fines Kitchin fol. 214. And I haue heard coÌ„mon Lawyers say that fines as they are taken for punishments be punishments certaine which grow expresly from some statute and that amerciaments be such as be arbitrably imposed by affeerors This is in some sort confirmed by Kitchin fol. 78. in these words l'amerciameÌ„t 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 amerciameÌ„t to be a more easie or more mercifull penaltie and a fine more sharpe and grieuous Take his wordes If the pledges for such a trespasse saith he do appeare by common summons but not the defendant himselfe then the pledges shall be imprisoned for that default of the defendant but otherwise it is if the defendant himselfe do appeare and be ready in Court before the Lord Iustice in eyre to receiue his iudgment and to pay his fine But if such pledges do make default in that ease the pledges shall be amerced but not fined c. The author of the new tearmes of lawe saith that amerciament is most properly a penalty assessed by the peeres or equals of the partie amercied for an offence done for the which he putteth himselfe vpon the mercie of the Lord. Who also maketh mentioÌ„ of an amerciament royal and defineth it to be a pecuniarie punishment laid vpon a Sheriffe Coroner or such like Officer of the kings amercied by Iustices for his offence See Misericordia Amoveas manum Looke ouster le râ—aiue An tour waste annus dies vastum Looke yeare day and waste Ancaling of tile anno 17. Ed. 4. ca 4. Annats Annates seemeth to be all one with first fruites anno 25. H. 8. ca. 20. looke First fruites The reason is because the rate of first fruites payed of spirituall liuings is after one yeares profite Of which Folydore Virgil de inueÌ„tione rerum lib. 8. cap. 2. saith thus Nullum inuentum mâ—iores Romano Pontifici cumulavit opes quà m annatum quas vocant vsus qui omnino multò antiquior est quà m receÌ„tiores quidam scriptores suspicantur Et annates more suo appellant primos fructus vnius anni sacerdatii vacantis aut danidiam eorum partem Sanè hoc vectigal iam pride cùm Romanus Pontifex non habuerit tot possessiones quot nunc habet eum oportuerit pro dignitate pro officio multos magnosque facere sumptus paulatim impositum fuit sacerdotiis vacantibus quae ille conferret de qua quidem re vt gravi saepe reclamatum fuisse testatur Henricus Hostiensis qui cum Alexandro 4. Pontifice vixit sic vt Franciscus Zabarellus tradat post hac in concilio Viennensi quod Clemens quintus indixit qui factus est Pontifex anno salutis humanae 135. agitatum fuisse vt eo deposito annatum onere vigesima pars vectigalium sacerdotalium penderetur quotannis Romano Pontifici id quidem frustrà Quare Pontifex annatas in sua nassa retinuit vt ne indidem exire possent lege caetera Anniented commeth of the French aneantir i. se abiicere atque prosternere It signifieth with ourlawyers as much as frustrated or brought to nothing Litletâ—n lib. 3. cap. warrantie Annua pensione is a writte wherby the king hauing due vnto him an annuall pension from any Abbot or Prior for any of his Chaplaines whom he shal think good to name vnto him being as yet vnprouided of sufficient liuing doth demaund the same of the said Abbot or Prior for one whose name is comprised in the same writ vntill c. and also willeth him for his Chaplaines better assurance to giue him his leters patents for the same Register orig fol. 265. 307. Fitzh nat br fol. 231. where you may see the names of al the Abbeyes and Priories bound vnto this in respect of their foundatioÌ„ or creation as also the forme of the leters patents vsually graunted vpon this writ Annuitie annuus reditus signifieth a yearely rent to be paide for tearme of life or yeres or in fee and is also vsed for the writ that lyeth against a man for
termed the Deane of the Arches or the officiall of the Arches court Deane of the Arches because with this officialtie is commonly ioyned a peculiar iurisdiction of thirteene parishes in London tearmed a Deantie being exempted from the authoritie of the Bishop of London and belonging to the Archbishop of Canterburie of which the parish of Bow is one the chiefe because the Court is there kept Some others say that he was first called Deane of the arches because the officiall to the Archbishop being many times employed abroad in ambassages for the king and realme the Deane of the Arches was his substitute in his court and by that meanes the names became confounded The iurisdiction of this Iudge is ordinarie and extendeth it selfe through the whole Prouince of Canterburie So that vpon any appeale made he foorthwith and without any farder examinatiō of the cause sendeth out his citation to the party appealed and his inhibition to the Iudge from whome the appeale is made Of this he that will may reade more in the booke intituled De antiquitate Eccelesiae Britānicaehistoria Arma moluta seeme to be sharpe weapons that doe cut not blunt that doe onely breake or bruise Bracton li. 3. tract 2. ca. 23. Stawnf pl. cor fo 78. 79. whereof Bracton hath these words arma moluta plagam faciunt sicut gladius bisacuta huiusmodi ligna verò lapides brusuras 〈…〉 bes ictus qui iudicari non possunt ad plagam ad hoc vt inde veniri possit ad duellum Armour arma in the vnderstanding of our common lawe is extended to any thing that a man in his anger or furie taketh into his hand to cast at or strike another Cromptons Iustice of peace fo 65. a. So armorum appellatio non vtique scuta gladios galeas significat sed fustes lapides l. 42. Π. de verbo significatione Array arraia aliàs arraiamentum commeth of the French array i. ordo which is an old word out of vse or it may be well deduced from raye i. linea It signifieth in our commō lawe the ranking or setting forth of a iurie or enquest of men impaneled vpō a cause a. 18. H. 6 c. 14. Thence is the verb to array a panel owld nat br fo 157. that is to set forth one by another the men empaneled The array shal be quashed owld nat br fo 157. By statute every array in assise ought to be made foure daies before Broke titulo Panel nu 10. to chalenge the array Kitchin fo 92. Arreyers seemeth to be vsed in the statut anno 12. Rich. 2. ca. 6. for such officers as had care of the souldiers armour to see them duly appointed in ther kindes Arraine arraniare commeth of the French arranger i. astituere ordinare that is to set a thing in order or in his place and the same signification it hath in our common law For example he is saide to arraine a writ of novel disseisin in a countie that fitteth it for triall before the Iustices of that circuit owld nat br fo 109. Litleton fo 78. vseth the same word in the same sence viz. the lease arraineth an assise of nouel disseisin Also a prisoner is said to be arrained where he is indighted and brought forth to his triall Arrained within the verge vpon murder Stawnf pl. cor fo 150. The course of this arrainment you may read in S. Thomas Smith de repub Anglo li. 2. ca. 23. Arrearages arreragia commeth of the French arrierages 1. reliqua It signifieth the remaine of an account or a summe of mony remaining in the hands of an accoūtant It is vsed sometime more generally for any mony vnpaide at the due time as arrearages of rent That this word is borowed from France it appeareth by Tiraquel de vtroque retractu tomo 3. pa. 32. nu 10. Arrest arestum commeth of the French arrester i. retinere retare subsistere or rather it is a French word in it selfe signifying a setling stop or stay and is metaphorically vsed for a decree or determinatiō of a cause debated or disputed to and fro as arrest du Senat. i. placitum curiae In our comon law it is taken most of all for a stay or stoppe as a man apprehended for debt c. is said to be arrested To pleade in arrest of iudgment is to shew cause why iudgment should be stayed though the verdict of the 12. be passed To plead in arrest of taking the enquest vpon the former issue is to shew cause why an enquest should not be taken c. Broke tit Repleder Take this of learned M. Lambard in his eirenarch li. 2. ca. 2. pa. 94. Budae saith he in his greeke commentaries is of opinion that the French word arrest which with them signifieth a decree or iudgment of court tooke beginning of the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. placitum and as we might say the pleasure and will of a court And albeit it were not out of the way to think that it is called an arrest because it stayeth or arresteth the partie yet I beleeue rather that we receiued the same from the Normane lawes because we vse it in the same sence with thē For commonly with vs au arrest is taken for the execution of the commaundement of some court or of some officer in iustice But howsoeuer the name began an arrest is a certaine restraint of a mans person depriuing him of his owne will and libertie and binding it to become obedient to the will of the lawe And it may be called the beginning of imprisonment Precepts writs of the higher courts of lawe do vse to expresse it by two sundry words as capias and attachies which signifie to take or catch hold of a man But this our precept noteth it by the words duci facias that is cause him to be conueyed c. For that the officer hath after a sort taken him before in that he commeth vnto him and requireth him to go to some Iustice of the peace Thus farre M. Lamberd And by like this word is spred farder then France For Gaile a Germaine writer sheweth by his Tractate de arrestis imperii that it is vsed also in the imperiall territories in the same significatiō c. 1. n. 1. Arrestandis bonis ne dissipentur is a writ which lyeth for him whose catell or goods are taken by another that during the controuersie doth or is like to make them away and will be hardly able to make satisfaction for thē afterward Reg. orig fol. 126. b. Arrestando ipsum qui pecuniam recepit ad proficiscendum in obsequium Regis c. is a writ that lieth for the apprehension of him that hath taken prest money towards the kings warres and lieth hidden when he should goe Register orig 24. b. Arresto facto super bonis mercatorum alienigenorum c. is a writ that lyeth for a denizen against the goods of strangers
contrarie to the writ no wrong no disseisin The third manner is assise out of the point of assise assisa extra assisam vel in modum iuratae viz. when the tenent alledgeth some by exception that must be tried by a Iurie before the principall cause can proceed as if he pleade a foreine release or foreine mater tryable in another countie For in this case the Iustices referre the record to the Court of common plees for the triall of the foreine plee before the disseisin can come to be discussed Of this sort reade diuers other examples in Bracton lib. 4. part 1. cap. 34. For there be of them as he saith and Britton also cap. 52. both dilatorie and peremptorie 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 demurter in lawe whether it were rightly done or not is adiudged to haue done wrong For then shall the demandant haue a writ to recouer dammages which is called assise to recouer dammages as also the whole processe Assise is further taken for the court place or time where and when the writs and processes of assise be handled or taken And in this signification assise is generall as when the Iustices passe their seuerall circuits euery couple with their commission to take all assises twice in the yeare For he that speaketh of any thing done at that time and in that place will commonly say that it was done at the generall assise It may likewise be speciall in this signification as if an especiall commission should be granted to certaine as in ancient times they often were Bracton lib. 3. cap. 11. in fine for the taking of an assise vpon one disseisin or two any thing done in the court before them a man would say it was done at such an especiall assise And in this very signification doth Glanvil vse it lib. 9. cap. 12. in these words Si contra dominum suum non infra assisam tunc distringitur ipse occupator c. and lib. 13. cap. 32. in these words cum quis itaque infra assisam domini regis i. infra tempus à domino rege de consilio procarum ad hoc constitutum quod quandoque maius quandoque minus censetur alium iniustè sine iudicio disseisiver 〈…〉 c. Of this word assise you may reade in M. Skene de verbo signif verbo Assise and by him vnderstand that in Scotland also it is diuersely vsed viz. in 5. seuerall significations And touching the fifth signification he hath these words An assise is called a certaine number of men lawfully summoned receiued sworne and admitted to iudge and discerne in sundrie civil causes syke as perambulations cognitions molestations pourpresture division of lands seruing of brieues and in all and sundrie criminall causes decided and tried by an assise whereof there are two kinds one ordinarily in vse which may be called a litle 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 worthe the reading Assisa continuanda is a writte directed to the Iustices assigned to take an assise for the continuance of the cause in case where certaine records alleaged cannot in time be procured by the party that would vse it Reg. orig f. 217. Assisa proroganda is a writ directed to the Iustices of assise for the stay of proceeding by reason of the Kings buisnes wherein the partie is imploied Register orig fo 208. and fo 221. Association associatio is a patent sent by the King either of his owne motion or at the suite of the plaintife to Iustices appointed to take assises of novel disseisin or of oyer and terminer c. to take others vnto them as felowes and collegues in that busines The dirivation is plaine the examples and sundrie vses hereof you may finde in Fitz◠nat br fo 185. E. fo 111. B. but more particularly in the Reg. orig f. 201. 202. 205. 206. 207. 223. 224. Assoile absolvere commeth of the French absouldre and signifieth to deliuer or set free from an excommunication Stawnf pl. cor fo 72. in words to this effect Otherwise the defendāt should remaine in prison vntill the plaintiffe were assoyled that is deliuered from his excommunication Assumpsit is a voluntarie promise made by word whereby a man assumeth or taketh vpon him to performe or pay any thing vnto another This word containeth any verball promise made vpon consideration which the Civilians expresse by divers words according to the nature of the promise calling it sometime pactum sometime sponsionē sometime promissionem pollicitationem or constitutum the word seemeth to be drawne from the latine assumptio quae significat professionem l. Π. ad municipalem Attache attachiare cōmeth of the French attacher i. figere nectere illigare defigere alligare In our common lawe it signifieth to take or apprehend by commaundement or writte And M. Lamberd in his eirenarch li. 1. cap. 16. maketh this difference betweene an arrest and an attachement 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 formall words duci facius c and a writ of attachment these words praecipimus tibi quòd attachies talem habeas eum coram nobis c. whereby it appeareth that he which arresteth carieth the party arrested to another higher person to be disposed of forth with he that attacheth keepeth the party attached and presenteth him in court at the day assigned in attachement yet I obserue out of Master Kitchin that an attachement issueth out of a court baron which is a lowe court cap Attachment in court baron fo 79. Another difference there is that an arrest lieth onely vpon the body of a man and an attachement some time vpon his good as shal be shewed in the sequele It may be likewise asked how an attachement and a capias doe differ how an attachement and a cape and an attachement and a distresse First that an attachement differeth from a capias it appeareth by Kitchin in these words fo 79. Note that in a court Baron a man shal be attached by his goods and a capias shall not goe out thence wherby I gather that an attachement is more generall taking hold of a mans goods and a capias of his body onely Then an attachement 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 reall as you may gather out of their formes in Fitzh nat br whereas attachemēt hath rather place in actions personall as Bracton plainly setteth downe li. 4. tracta 4. ca. 5. nu 3. Where neuerthelesse it appeareth that a cape may be likewise vsed in an action personall An attachement as it
anno 4. Ed. 3. cap. 3. And bestiall is generally vsed for all kind of catell anno 1. Iacobi cap. 33. Bidding of the bedes was a charge or warning that the parish Priest gaue to his parishioners at certaine especiall times to say so many Pater nosters c. vpon their beades anno 27. H. 8. cap. 26. Bigamie bigamia signifieth a double mariage It is vsed in the common lawe for an impediment that hindreth a man to be a Clerke by reason that he hath bene twice maried For vpon those words of S. Paule to Timothie the first cap. 3. vers 2. Opertet ergo Episcopum irreprehensibilem esse vnius vxoris virum the Canonists haue founded their doctrine that he that hath bene twice maried may not be a Clerke And also him that hath maried a widow they by interpretation take to haue bene twice maried And both these they do not onely exclude from holy orders but also deny them all priuiledges that belong vnto Clerkes But the author of the new termes of lawe well saith that this lawe is abolished by anno 1. Ed. 6. cap. 12. And to that may be added the statute anno 18. Elizab. cap. 7. which alloweth to all men that can read as Clerkes though not within orders the benefite of Clergie in case of felonie not especially excepted by some other statute Bilanciis deferendis is a writ directed to a corporation for the carying of weights to such or such a hauen there to weigh the wools that such a man is licenced to trāsport Reg. orig f. 270. a. Bilawes are orders made in court leets or court Barons by common assent for the good of those that make them farder then the publique lawe doth binde Coke vol. 6. fo 63. a. Kitchin fo 45. 79. These in Scotland are called burlawe or birlawe Skene de verbo sign verbo Burlawe where he saith thus Lawes of burlawe are made and determined by consent of neighbours elected and chosen by common consent in the courts called birlawe courts In the which cognition is taken of compleints betwixt neighbour and neighbour which men so chosen are iudges and arbitratours to the effect aforesaide and are called birlawe men For bawr or bawrsman in Dutch is rusticus and so birlaw or burlaw leges rusticorum Hetherto M. Skene Bilinguis though it signifie in generality a double tounged man yet in our common lawe it is vsed for that Iury that passeth betweene an english man and an alien Wherof part must bee Englishmen and part straungers anno 28. Ed. 3. ca. 13. Bille billa is diuersly vsed among our cōmon lawyers First as West saith pa. 1. symb li. 2. sect 146. it is al one with an obligation sauing that whē it is in ēglish it is commonly called a bill and when it is in latine an obligation But I heare other good lawyers say that a bill though it be obligatorie yet is without condition or forfeiture for non payment and that the obligation hath both Bille secondly is a declaration in writing that expresseth either the griefe and the wrong that the complaynant hath suffered by the party complained of or els some fault that the party complayned of hath committed against some lawe or statute of the common wealth This bille is sometime offered vp to Iustices errants in the generall assises sometime and most of all to the Lord Chanceler of England especially for vnconscionable wrongs done sometime to others hauing iurisdiction accordingly as the law wheruppon they are grounded doeth direct It containeth the fact complained of the dammages thereby suffered and petition of processe against the defendant for redresse West parte 2. Simbol titulo supplications sect 52. whom you may reade at large touching this mater Billa vera is as it were a word of arte in our common lawe For the grand enquest empaneled and sworne before the Iustices in eare c. indorsing a bill whereby any crime punishable in that court is presented vnto them with these two words do signifie thereby that the presentor hath furnished his presentment or denunciation with probable euidence and worthy of farder consideration And thereuppon the party presented by the same bill is said to stand indicted of the crime and so tyed to make answer vnto it either by confessing or trauersing the indictment And if the crime touch the life of the party indicted it is yet referred to another enquest called the enquest of life and death who if they finde him guilty then he standeth conuicted of the crime and is by the Iudge to be cōdemned to death See Ignoramus see Indictment Billets of gold commeth of the french billot 1. massa auri anno 27. Ed 3. stat 2. ca. 14. Bynny peper anno 1. Iaco. ca. 19. Blacke maile is halfe english halfe french For in french maille signifieth a smal peece of mony which we cal a halfepeny It signifieth in the counties of Comberlād Northumberland Westmerland and the bishopricke of Durisme a certaine rate of mony corne catell or other consideration paide vnto some inhabiting vpon or neare the borders being men of name and power allied with certaine knowne to be great robbers and spoile-takers within the saide counties to the end thereby to be by them freed protected and kept in safty from the daunger of such as doe vsually robbe and steale in those partes an 43. Eliza. ca. 13. Blacke rodde is the huiffier belonging to the order of the Garter so called of his blacke rodde that he carrieth in his hand He is of the kings chamber and also huissier of the parlament Blanks cōmeth of the french blanc 1. candidus albus It signifieth a kind of coine that was coined in the parts of Frāce 5. by K. H. that were subiect to England the valew whereof was eight pence Stowes annals pa. 586. These were forbidden to be current within this realme a. 2. H. 6. ca. 9. The reason why they were called blankes may be because at the time these were coyned in France there was also a peece of gold coyned which was called a Salus of the value of 22. shillings from which this siluer was in name distinguished by the colour Bloody hand See Backberend Blomary is one of the forges belonging to an iron mill which also seemeth otherwise to be tearmed a Finary The vse wherof if you will vnderstand you must knowe that first there is a fornace wherin the mine-stones are melted and cast into a raw iron fashioned into long wedges three square that be called sows Then be there two forges like vnto smithes forges but much bigger the one whereof is called the blomary or as it seemeth the finary into the which being maintained with a charcole fire blowne with bellowes made to goe by water are cast the saide sowes of raw iron and melted againe and by a workman called the finary man are wounde and wrought rounde and afterwarde beaten by a hammer into little wedges about a yarde long which are called bloomes Then
or reall Personall may be so called in two respects one because they belong immediatly to the person of a man as a bowe horse c. the other for that being any way withheld iniuriously from vs we haue no meanes to recouer them but by personall action Chatels reall be such as either appertain not immediatly to the person but to some other thing by way of dependencie as a boxe with charters of land the body of a ward apples vpon a tree or a tree it selfe growing on the ground Cromptons Iustice of peace fo 33. B or els such as are necessary issuing out of some immoveable thing to a person as a lease or rent for tearme of yeares Also to hould at will is a chatell reall New tearmes verbo Chatell The ciuilians comprehend these things as also lands of what kin de or hould so euer vnder bona bona autē diuiduntur in mobilia immobilia mobilia verò in ea quae se movent vel ab aliis moventur v. legem 49. l. 208 〈◊〉 de verb. significa interpretes ibidem Bract. also ca. 3. li. 3. nu 3. 4. seemeth to be of the same iudgement Catallis captis nomine districtionis is a writ which lyeth within a borowe or within a house for rent going out of the same and warranteth a man to take the doores windowes or gates by way of distresse for the rent Old nat br fo 66. Catallis reddendis is a writ which lyeth where goods being deliuered to any man to keepe vntill a certaine day and be not vpon demande deliuered at the day And it may be otherwise called a writ of detinew See more of it in the Register orig fo 139. and in the ould nat br fo 63. This is answerable to actio depositi in the ciuile lawe Catchepolle though it now be vsed as a word of contempt yet in auncient times it seemeth to haue bene vsed without reproch for such as we now call sergeants of the mace or any other that vse to arrest men vpon any cause anno 25. Ed. 3. stat 4. ca. 2. Cathedrall See church Casu matrimonii praelocuti is a writ which lyeth in case where a woman giueth lands to a man in fee simple to the intent he shall mary her and refuseth so to doe in reasonable time being required thereunto by the woman The forme and farder vse hereof learne in the Register orig fol. 233. and in Fitzh nat br fo 205. Causam nobis significes is a writ which lyeth to a Mayer of a towne or city c. that formerly by the kings writ being commaunded to giue seisin vnto the kings grantee of any land or tenements doth delay so to do willing him to shew cause why he so delayeth the performance of his charge Coke li. 4. casu communalty des Sadlers fo 55 b. Cautione admittenda is a writ that lyeth against the Bishop houlding an excommunicate person in prison for his contempt notwithstanding that he offereth sufficient caution or assurance to obey the commandments and orders of holy church from thence forth The forme and farder effect whereof take out of the Regist orig pa. 66. and Fitzh nat br fol. 63. Century centuria See Hundred Cepi corpus is a returne made by the Shyreue that vpō an exigēd he hath taken the bodie of the partie Fitzh nat br fo 26. Certiorari is a writ issuing out the chauncerie to an inferiour courte to call vp the records of a cause therein depending that conscionable iustice therein may be ministred vpon complaint made by bill that the partie which seeketh the said writ hath receiued hard dealing in the said court Termes of the lawe See the diuers formes and vses of this in Fitzh nat br fo 242. as also the Register both originall and iudiciall in the tables verbo Certiorari Cromptō in his Iustice of peace fo 117. saith that this writ is either returnable in the Kings bench and then hath these wordes nobis mittatis or in the chauncerie and then hath in cancellaria nostra or in the common bench and then hath Iusticiariis nostris de banco The word certiorare is vsed diuers times in the digest of the ciuile lawe but our later Kritiques think it soe barbarouse that they suspect it rather to be foisted in by Tribonian thē to be originally vsed by those men of whose workes the saide digest is compiled Prataeus in suo lexico Certificat certificatoriū is vsed for a wirting made in any courte to giue notice to another courte of any thing done therein As for example a certificate of the cause of attainte is a transcript made briefely and in few words by the clerke of the Crowne clerke of the peace or clerke of assise to the courte of the Kings benche conteying the tenure and effect of everie endictment outlawrie or conviction and clerke attained made or pronounced in any other court an 34. H. 8. c. 14. Of this see more in Certificat d'evesque Broke f. 119. Certification of assise of novel dissessin c. Certificatio assisae novae disseisinae c. is a writ graunted for there examining or reuew of a mater passed by assise before any Iustices and is called certificatione novae disseisine Old nat br fo 181. Of this see also the Register Original fo 200. and the newe booke of entrise verbo Certificat of assise This word hath vse where a man appearing by his bayliffe to an assise brought by another hath lost the day and hauing something more to pleade for himselfe as a deede of release c. which the bayliffe did not or might not pleade for him desireth a farder examination of the cause either before the same Iustices or others and obteineth leters patents vnto them to that effect The forme of these leters patents you may see in Fitzh nat br fo 181. and that done bringeth a writ to the Shyreeue to call both the party for whome the assise passed and the Iurie that was empaneled vpon the same before the said Iustices at a certaine day and place And it is called a certificate because in it there is mention made to the Shyreeue that vpon the parties complainte of the defectiue examination or doubts yet remaining vpon the assise passed the King hath directed his leters patēts to the Iustices for the beter certifiing of themselues whether all points of the said assise were duly examined yea or not See farder old nat br and Fitzh vbi supra Of this also you may reade Bracton li. 4. ca. 19. nu 4. in fine 5. 6. where he discusseth the reason of this pointe very learnedly and lastly Horn in his Myrrour of Iustices li. 3. ea finali § en eyde des memoyres c. Certificando de recognitions Stapulae is a writte directed to the Mayor of the staple c. cōmaunding him to certifie the chaunceler of a statute of the staple taken before him betweene such and such in case where
and in euery action reall as also euery action personall where the debt or dammages amount to 40. merks it is a good chalenge to any man that he cannot dispend 40. shillings by the yeare of Free-hold anno 11. H. 7. cap. 21. and Termes of the lawe verbo Chalenge The ground of this chalenge you may see farder in Fleta lib. 4. cap. 8. Chalenge vpon reason or cause is when the partie doth alledge some such exception against one or more of the Iurors as is not forthwith sufficient vpon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Iurors as for example if the sonne of the Iuror haue maried or espoused the daughter of the aduerse partie Termes of lawe vbi supra This chalenge per cause seemeth to be tearmed by Kitchin chalenge for fauour fol. 92. or rather Chalenge for fauour is said there to be one species of chalenge per cause where you may read what chalenges be commonly accounted principall and what not See the new booke of Entries 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. li. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will neuer forgiue him that first strooke this blowe at him Of chalenge you may farder read Fleta lib. 1. cap. 32. § Ad quem diem seqq Chamberdekins are Irish beggers anno 1. H. 5. cap. 8. Chamberer is vsed for a chamber maide anno 33. H. 8. cap. 21. Chamberlaine camerarius vel camberlingus commeth of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly vsed in our Chronicles Lawes and Statutes as Lord great Chamberlaine of England Lord Chamberlain of the kings house the kings Chamberlaine anno 13. Ed. 1. cap. 41. anno 17. R. 2. cap. 6. to whose office it especially appertaineth to looke to the kings chambers and wardrobe and to gouerne the vnder ministers belonging vnto the same Fleta lib. 2. cap. 6. 7. Chamberlaine of any of the kings courts anno 7. Ed. 6. cap. 1. Chamberlaine of the Exchequer anno 51. H. 3. stat 5. anno 10. Ed. 3. cap. 11. anno 14. eiusdem cap. 14. anno 26. H. 8. cap. 2. Chamberlaine of north Wales Stow. pag. 641. Chamberlaine of Chester Cromptons iurisd fol. 7. This Officer is commonly the receiuer of all rents and reuenues belonging to that person or citie whereunto he is chamberlaine v. Fletam li. 2. cap. 70. § Si autem The Latine word seemeth to expresse the function of this officer For camerarius dicitur à camera i. testudine sive fornice quia custodit pecunias quae in cameris praecipuè reservantur Onyphrius de interpret vooum 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 iure fisci lib. 6. tit 3. saith that camerarius vel camberlingus quē quaestorem antiqui appellârunt in rebus fisci primum locum tenet quia thesauraruis custos est publicae pecuniae Sane officium hoc primipilatus fuisse nonnulli senserunt There be two officers of this name in the kings Exchequer who were wont to keepe a controlment of the pels of receipt and exitus kept certaine keyes of the treasure cofers which is not now in vse They keepe the keyes of the Treasurie where the leagues of the Kings predecessors and diuers auncient bookes doe remaine There is mention of this officer in the Statute anno 34. 35. H. 8. cap. 16. There be also vnder-chamberlaines of the Exchequer which see in Vnder-chamberlaine Champartie cambipartita aliàs champertie seemeth to come from the french champart 1. vectigal and signifieth in our common lawe a maintenance of any man in his suit depending vpon condition to haue part of the thing be it lands or goods when it is recouered Fitzh nat br fo 171. and champertours be they that moue plees or suites or cause to be moued either by their owne procurement or by other and persyew at their proper costs for to haue part of the land in variance or part of the gaines anno 33. Ed. 1. stat 2. in fine Whereunto adde the third statut made the same yeare This seemeth to haue bene an auncient fault in our realme For notwithstanding these former statutes and a forme of writ framed vnto them yet anno 4. Ed. 3. ca. 11. it was againe inacted that whereas the former statute prouided redresse for this in the kings bench onely which in those dayes folowed the court from thence forth it should be lawfull for Iustices of the common plees likewise and Iustices of assises in their circuits to inquire heare and determine this and such like cases as well at the suite of the king as of the party How farre this writ extendeth and the diuers formes therof applied to seuerall cases see Fitzh nat br fo 171. and the Register orig fo 183. and the new booke of entrise verbo Champertie Euery champertie employeth maintenance Cromptons iurisd fo 39. See also his Iustice of peace fo 155. b. c. These with the Romans were called redemptores litium qui sc quotidianas lites mercantur aut quipartem litis paciscuntur l. si remunerandi § Maurus Π. Mandati l. si contra l. per diuersas Co. eodem 13. Champion campio is thus defined by Hotoman in verbis feudalibus Campio est certator pro alio datus in duello a campo dictus qui circus erat decertantibus definitus In our common lawe it is taken no lesse for him that trieth the combat in his owne case then for him that fighteth in the place or quarell of another Bracton li. 3. tracta 2. ca. 21. nu 4. who also seemeth to vse this word for such as hould by sergeanty or some service of another as cāpiones faciunt homagium domino suo li. 2. ca. 35. Of this reade more in Battell and Combat 30. Chanceler cancellarius commeth of the french chaneelier Vincentius Lupanus de magistratibus Francorum saith that cancellarius is no latine word how be it he citeth diuers latine writers that doe vse it With him agreeth that excellent man Petrus Pithaeus libro 2. aduersariorum ca. 12. and whereas Lupanus would deriue it from the verb cancello Pithaeus confesseth he hath good colour for his opinion though he thinke it not sound and therefore rather deduceth it a cancellis Cancellare is literas vel scriptum linea per medium ducta damnare and seemeth of it selfe likewise to be deriued a cancellis which signifie all one with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in greeke which we in our tong call a letis that is a thing made of woode or iron
other thing that may be tried by the lawe of the land And reade Fortescue ca. 32. This office was belonging heeretofore to the lords of certaine maners iure feudi and why it is discontinued see Dyer fo 258. nu 39. Out of this high magistracie saith M. Lamberd were drawen these lower constables which we call constables of hundreds franchises and first ordeined by the statute of Winchester anno 13. Ed. 1. which appointeth for the conseruation of the peace and view of armour two constables in euerie hundred and franchise which in latine are called constabularii capitales And these be nowe a daies called high constables because continuance of time and increase both of people and offenfes hath againe vnder these made others in euery towne called petit constables in latine subconstabularios which are of like nature but of inferiour authoritie to the other as you may read at large in that learned mans treatise before named Of these also read S. Thomas Smith li. 2. ca. 22. Beside these there be officers of particular places called by this name as constable of the tower Ssawnf pl. cor fol. 152. anno 1. H. 4. ca. 13. Stowes annals pa. 812. iurisdict fo 132. constable of the exchequer anno 51. H. 3. statute 5. Constable of Douer castel Camdeni Britan. pa. 239. Fitzh nat br fo 240. otherwise called castellane Westm i. ca. 7. anno 3. Ed. i. But these be castellani properly as M. Lamberd noteth though conioined in name with the others See the statute anno 32. H. 8. ca. 38. M. Manwood parte prima ca. 13. of his forest lawes maketh mention of a constable of the forest Consuetudinibus seruities is a writ of right close which lyeth against the tenent that deforceth his lord of the rent or seruice dew vnto him Of this see more at large the Old nat br fo 77. Fitzh eodem fo 151. and the Register orig fo 159. Consultation consultatio is a writ whereby a cause being formerly remoued by prohibition from the ecclesiasticall court or court christian to the kings court is returned thither againe For the Iudges of the kings court if vpon comparing the libell with the suggestion of the party they do find the suggestion false or not proued and therefore the cause to be wrongfully called from the court christian then vpon this consultation or deliberation they decree it to be returned againe wherevpon the writ in this case obtained is called a consultation Of this you may reade the Register orig fo 44. 45. c. vsque fol. 58. Old nat br fo 32. Fitzh eodem fo 50. Contenement contenementum seemeth to be the free hould land which lyeth to a mans tenement or dwelling house that is in his owne occupation For in magna charta ca. 14. you haue these words A free man shall not be amerced for a small fault but after the quantity of the fault and for a great fault after the maner thereof sauing to him his contenement or free hould And a merchant likewise shal be amerced sauing to him his merchandies and any other villaine then owers shal be amerced sauing his wainage if he take him to our mercy And Bracton li. 3. tracta 2. ca. 1 nu 3. hath these words sciendum quòd miles liber homo non amerciabitur nisi secundùm modum delicti seoundùm quod delictum fuit magnum vel parvum saluo contenemento suo mercator verò non nisi salua merchandiza sua villanus nisi saluo Waniagio suo which mercy seemeth to haue bene learned from the ciuile lawe whereby executio non potest fieri in boues aratra aliaue instrumenta rusticorum l. executores Authen Agricultores Co quae res pign obliga nec in stipendia arma equos militum l. stipendia Co. de executio rei indica ibi doctores nec in libros scholarium glos in l. Nepos Proculo verbo dignitate Π. de verbo significa Quae tamen rusticorum militum scholarium priuilegia circa executionem vera esse eatenus obtinere intelligenda sunt quatenus alia bona habent Iohan. Eimericus in processu indiciario cap. de Executione senten 79. num 11. Continuance seemeth to bee vsed in the common law as prorogatio is in the ciuile lawe For example Continuance vntil the next assise Eitz nat br fol. 154. F. and 244. D. in both which places it is sayde that if a record in the treasurie be alledged by the one partie and denyed by the other a certiorari shall be siewed to the Treasurer and the chamberlaine of the Exchequer who if they certifie not in the Chauncerie that such a record is there or that it is likely to be in the Tower the king shall send to the Iustices repeating the certificate and will them to continue the assise In this signification it is likewise vsed by Kitchin fol. 202. 199. and also anno 11. H. 6. cap. 4. Continuall claime continuum clameum is a claime made from time to time Within euery yere and day to land or other thing which in some respect we cannot attaine without daunger For example if I be disseised of land into which though I haue right vnto it I dare not enter for feare of beating it behooueth me to hold on my right of entry to the best oportunitie of me mine heyre by approching as neare it as I can once euery yere as long as I liue and so I saue the right of entry to mine heire Termes of law Againe if I haue a slave or villein broken from me and remaining any where within the auncient demesn of the king being in the handes of the king I cannot maintaine the writ de nativo habendo as long as he continueth there but if I claime him within the yeare and the day and so continue my claime vntill I can find him within that compasse I may lawfully lay hold of him as mine owne Fitz. nat br fol. 79. See more in Litleton verbo Continuall claime And the new booke of Entries Ibid. and Fleta lib. 6. cap. 53. Contract contractus is a covenant or agreement with a lawfull consideration or cause West parte prim symbol lib. 1. Sect. 10. and lib. 19. Π. de verbo Significa with other places it is thus defined Contractus est negotium inter duos pluresve data opera gestum vt vel vterque invicem vel alteruter obligetur Who so will throughly examine the difference betweene this and pactū and such other words something like in signification let him search the civilians and he shall find worke both pleasant and profitable and well fitting the common lawe also Contra formam collationis is a writ that lyeth against an abbot or his successor for him or his heire that hath giuen land to an Abbey to certaine good vses and findeth that the Abbot or his successour hath made a feofment thereof with the assent of the tenents to
nat br fol. 138. To this is answerable in some sort actio depositi in the ciuile lawe And hee taketh his action of ditinew that intendeth to recouer the thing deliuered and not the dammages sustained by the detinew Kitchin fol. 176. See the new booke of Entries verbo Detinew Devastaverunt bona testatoris is a writ lying against executors for paying Legacies and debts without specialties to the preiudice of the creditours that haue specialties before the debt vpon the said specialties be due For in this case the executors are as lyable to action as if they had wasted the goods of the testatourriotously or without cause New termes of lawe Devest devestire is contrarie to Invest For as Investire signifieth possessionem tradere So devestire is possessionem auferrâ— feud libro primo cap. 7. Devise aliâs divise commeth of the French diviser i. disperâ—iri discernere separare distinguere as diviser par ci par la distribuere This word is properly attributed in our common lawe to him that bequeathes his goods by his last will or testament in writing and the reason is because those that now appertain onely to the Devisour by this act are distributed into many parts Wherefore I thinke it better written divise theÌ„ deuise howbeit it were not absurd to deriue this word from the French deuiser i. sermocinari fabulari consilium conferre For in this sence it agreeth in some sort with the nature of the act of the testator and with the Etymologie of a testament set downe by Iustinian who saith that testamentum is quaesi mentis testatio titulo de Testa ordinan in Institut and testatio mentis cannot be so well as by talke and conference with our wise and skilfull friends Devoires of Cales anno 2. R. 2. Stat. 1. cap. 3. anno 5. eiusdem stat 2. cap. 2. were the customes due to the king for merchandize brought to or caried out from Caleis when our Staple was there The word is French signifying as much as officium dutie Devorce aliâs divorce divortium is with our common Lawyers accompted that separation betweene two de facto maried together which is à vinculo matrimonii non solùm à mensa thoro And therefore the woman so divorced receiueth al againe that shee brought with her This is not but onely vpon a nullitie of the mariage through some essentiall impediment as consanguinitie or affinity within the degrees forbidden precontract impotencie or such like See the new Tearmes of lawe Diem clausit extremum is a writ that lyeth for the heyre of him that holdeth land of the Crowne either by Knights seruice or in soccage and dyeth be he vnder or at full age directed to the escheatour of the county for inquirie to bee made by him of what estate the partie deceased was seised and who is next heyre vnto him and of what valew the land is The forme thereof and other circumstances you may learne in Fitzh nat br fol. 251. Dyer was a learned Lawyer and Lord chiefe Iustice of the Common plees in the dayes of Queene Elizabeth who writ a booke of great accompt called his Commentaries or Reports Dies datus is a respight giuen to the tenent or defendant before the court Brooke titulo Continuance Dicker of lether is a quantitie consisting of tenne hides The name may seeme to come from the Greeke decas which is also a Latine word signifying tenne in number Dignitie ecclesiasticall dignitas ecclesiastica is mentioned in the statute anno 26. H. 8. cap. 3. and is by the Canonists defined to be administratio cum iurisdictione potestate aliqua coniuncta Glos in cap. 1. de consuet iu sexto whereof you may reade diuers examples in Duarenus de sacris eccles minist benefic lib. 2. cap. 6. Dioces dioecesis is a Greeke word compounded of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and signifieth with vs the circuit of euery Bishops iurisdiction For this realme hath two sorts of diuisions one into Shyres or Counties in respect of temporall policie another into Diocesses in respect of iurisdictioÌ„ ecclesiasticall Dieta rationabilis is in Bracton vsed for a reasonable daies iourney lib. 3. parte 2. chap. 16. It hath in the ciuile law diuers other significations not needfull heere to be set downe v. vocab vtirusque iuris Dimy haque See Haque Disalt signifieth as much as to disable Litleton in his chapter of Discontinance Disceite See deceite and deceptione See the new booke of Entry verbo Disceit Discent Discensus in the french Descente signifieth in the common law an order or means whereby lands or tenements are deriued vnto any man from his auncestours as to make his discent from his Auncestours Old nat br fol. 101. is to shew how and by what degrees the land in question cam to him from his auncestours as first from his great grandfather to his grandfather from his grandfather to his father and so to him Or in such other like sort This discent is either lineall or collaterall Lineall discent is conueied downeward in a right line from the Grandfather to the father and from the father to the sonne and from the sonne to the Nephew c. Collaterall discent is springing out of the side of the whole blood as Grandfathers brother fathers brother c. See the new Tearmes of law Disclamer Disclamium is a plee containing an expresse deniall or refusall as if the tenent siew a replevin vpon a distresse taken by the lord and the lord avow the taking of the distresse saying that he houldeth of him as of his Lord and that he distreined for rent not paid or seruice not perfourmed then the tenent denying himselfe to hould of such Lord is said to disclaime and the Lord prouing the tenent to hould of him the tenant leeseth his land Tearmes of law Of this see Skene de verb signif verbo Disclamation Also if a man deny himselfe to be of the blood or kindred of another in his plee he is said to disclaime his blood Eitzh nat br fol 197. G. See Brooke titulo Disclaimer If a man arraigned of felonie do disclaime goods being cleared he leeseth them Stawnf pl. cor fol. 186. See the new booke of Entries verbo Disclamer Discontinuance Discontinuatio commeth of the french Discontinuer i. cessare intermittere and signifieth in the common law nothing els but an interruption or breaking of as discontinuance of possession or discontinuance of proces And the large discourse that Litleton hath about this Discontinuance is rather to shew cases wherein it is or wherein it is not then to define the thing The effect of discontinuance of possession is this that a man may not enter vpon his owne land or tenement alienated whatsoeuer his right be vnto it of his owne selfe or by his owne authority but must bring his writ and seeke to recouer possession by law Examples you may haue store in his Terms of law verbo Discontinuance And in Litleton
councell held at Vienna in Fraunce he suppressed for their many and great offences as he pretended These Hospitallers be now the knights of Saint Iohn of Malta Cassan gloria mundi parte 9. considerat 5. This constitution was also obeyed in Ed. the 2. time here in England and confirmed by Parlament Tho. Walsing ham in historia Ed. 2. Stawes annals ibidem These are mentioned anno 13. Ed. 1. ca. 43. anno 9. H. 3. ca. 37. Hostelers Hostellarius commeth of the french Hosteler i. Hospes and signifieth with vs those that otherwise we call Inkeepers an 9. Ed. 3. stat 2. c. 11. Hotchepot in partem positio is a word that commeth out of the lowecountries where Hutspot signifieth flesh cut into pretie peeces and sodden with herbs or roots not vnlike that which the Romans called farraginem Festus Litleton saith that literally it signifieth a pudding mixed of diuers ingredients but metaphorically a commxtion or putting together of lands for the equall diuision of them being so put together Examples you haue diuers in him fo 55. and see Briton fol 119. There is in the Ciuile law collatio bonorum answerable vnto it whereby if a child aduaunced by the father in his life time doe after his father decease chalenge a childs part with the rest he must cast in all that formerly he had receiued and then take out an equall share with the others De collatio bonorum Î . lib 37. titulo 6. Housebote is compounded of House and Bote. i. compensatio It signifieth estovers out of the Lords woâ—de to vphould a tenement or house Houserobbing is the robbing of a man in some part of his house or his booth or teÌ„t in any faire or market and the owner or his wife children or seruants being within the same for this is felonie by anno 23. H 8. cap. i. and. anno 3. Ed. 6. cap 9. yea now it is felonie thoughe none be within the house anno 39. Eliz ca. 15. See Burglarie see West part 2. sym tit InditemeÌ„ts sect 67. Hudegeld significat quiet antiam transgressionis illatae in seruum transgredientem Fleta lib. i. ca 47. Quare whether it should not be Hindegeld Hue and Crie Hutesium Clamor come of 2. french words Huier and Crier both signifiing to shoute or cry a loude M. Manwood parte 2. of his forest lawes ca 19. nu 11. saith that Hew is latine meaning belike the Interiection but vnder reformation I think he is deceiued this signifieth a pursuite of one hauing committed felonie by the high way for if the party robbed or any in the companie of one murdered or robbed come to the Constable of the next towne and will him to raise Hiew and Crie or to make pursuite after the offeÌ„dour describing the partie and shewing as neere as he can which way he is gone the Constable ought forthwith to call vpon the parishe for aide in seeking the felon and if he be not found theare then to giue the next Constable warning and he the next vntill the offender be apprehended or at the least vntill he be thus persued to the sea side Of this reade Bracton lib 3. tracta 2. ca. 5. Smith de Repub Anglo lib 2. cap 20. and the statute anno 13. Ed. 1. statute of Winchest c. 3. a. 28. Ed 3. c 11. anno 27. El c 13. The Normans had such a persuite with a Crie after offenders as this is which they called Haro whereof you may reade the Grand Custumarie cap. 54. Some call it Harol the reason whereof they giue to be this that there was a Duke of Normandy called Rol a man of great iustice and seruerity against grieuous offenders and that thereupon when they follow any in this persuite they crie Ha-Rol as if they should say Ah Rol where art thou that wert wont to redresse this or what wouldst thou doe against these wretches if thou now wert liuing But in truth I thinke it commeth from Harier 〈◊〉 flagitare inquiet are vrgere Hue is vsed alone anno 4. Ed. pri Stat. 2. This the Scots call Huesium and M. Skene de verbo signif verb. Huesium saith that it commeth of the french Oyeâ— i. Audite making one etymologie of this and the crie vsed before a proclamation The maner of their hue and cry as he there describeth it is that if a robberie be done a horne is blowne and an out crie made after which if the partie flie away and not yeeld himselfe to the Kings Bayliffe he may be lawfully slaine and hanged vp vpon the next gallowes Of this Hue and crie see Cromptons Iustice of peace fol. 160. b. Huissers See Vshers Hundred Hundredum is a part of a shire so called originally because it conteined ten tithings called in latine Decennas These were first ordeined by king Alfred the 29. king of the West Saxons Stowes Annals pag. 105. of these thus speaketh M. Lamb. in his explica of Saxon words verbo Centuriaâ— Aluredus rex vbi cum Guthruno Daca foedus inierat prudentissimum illud â—lim a Ietrâ—â— Moysi datum secutus consilium Angliamprimus in satrapias Centurias Decurias partitus est Satrapiam shire a shyran quod partiâ— significat nominavit Centuriam Hundred DecuriaÌ„ Toothing siue Tienmantale i. Decemvirale collegium appellavit atque iisdem nominibus vel hodie vocantur c. And againe afterward Decrevit tum porro Aluredus liberae vt condicionis quisque in Centuriam ascriberitur aliquam atque in Decemviralt aliquod coniiceretur collegium De minoribus negotiis Decurionet vt tudicarent ac siâ—quae esset reâ— difficilior ad Centuriam deferrent diffiâ—illimas denique maximi moâ—â—enti lites Senator praepositus in frequenti illo ex omni satrapia conventu componerent Modus autem iudicandi quis fuerit Ethelredus Rex legum quas frequenti apud Vanatingum senatu sancivit capite 4. hiis fere verbis exponit In singulis centuriis comitia sunto atque liberae condicionis viri duodeni aetate superiores vnà cum praeposito sacra tenentes iur anto se adeo virum aliquem innocent em haud damnaturos sortemve absoluturos This forme of diuiding counties into Hundreds for beter gouernment howsoeuer it is attributed to King Alfred here with vs yet he had it from Germanie whence he and his came hither For there centa or centena is a iurisdiction ouer a hundred townes and conteineth the punishment of capitall crimes Andraeas Kitchin in his tractate de sublimi regio territorii iure ca. 4. pa. 123. where he also sheweth out of Tacitus de situ moribus Germa that this diuiuision was vsuall amongst the Germans before his daies By this you vnderstand the original and old vse of Hundreds which hold still in name and remaine in some sort of combination for their seuerall seruices in diuers respects but their iurisdiction is abolished and growne to the countie court some few excepted which haue beene by priuiledge annexed
in the number of the kings souldiours Master of the kings musters anno 2. Ed. 6. cap. 2. See Master Muster master general anno 35. Eliz. ca. 4. See Master of the kings musters N 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 moueable goods and is either lawfull or vnlawfull Lawfull naam is nothing els but a reasonable distresse proportionable to the valew of the thing distreined for And this naam was aunciently called either vif or mort quicke or dead accordingly as it was made of dead or quicke chatels Lawfull naam is so either by the common law or by a mans perticular fact by the common law as when one taketh another mans beasts dammage seisant in his grounds by a mans particular fact as by reason of some contract made that for default of payment of an annuity agreed vpon it shall be lawfull to distreine in such or such lands c. Horns mirrour of Iustices 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 daies and at what houres it ought to be made with other points worth the reading for the vnderstanding of our law antiquities See Withernam Nasse anno 4. H. 7. ca. 21. seemeth to be the proper name of Orford Hauen Whether it be so termed of the boates or water vessels that lye there or not let the reader iudge But nasselle is in French a kinde of small boat Natiuo habendo is a writ that lyeth to the Shyreeue for a Lord whose vilein claimed as his inheritance is runne from him for the apprehending and restoring of him to his Lord againe Register orig fol. 87. Fitzh nat br fol. 77. See Libertate probanda Naturalization See Denizen Ne admittas is a writ that lyeth for the plaintife 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 clerke of the defendant during the suite betweene them And this writ must be sued within sixe monethes after the avoydance Because after the sixe moneths the Bishop may present by lapse Register orig fol. 31. Fitzh nat br fol. 37. where see the rest Negatiue pregnant Negatiua praegnans is a negatiue implying also an affirmatiue As is a man being impleaded to haued one a thing vpon such a day or in such a place denyeth that he did it modo forma declarata which implyeth neuer the lesse that in some sort he did it Or if a man be said to haue 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 Brooke hoc titulo and Kitchin fol. 232. And see the new exposition of lawe terms And read also in some Ciuilians of Affirmatiua praegnans and that is quae habet in se inclusiuam negatiuam Et hoc importare videntur dictiones Solùm tantùm quae implicant negatiuam Pacianus De probationibus lib. 1. ca. 31. nu 16. fol. 93. Neif natiua commeth of the French Naif i. naturalis vel nativus it signifieth in our common law a bond woman anno 1 Ed. 6. ca. 3. the reason is because women become bond rather natiuitate than by any other means Ne in iuste vexes is a writ that lyeth for a Tenent which is distrained by his Lord for other seruices than he ought to make and is a prohibition to the Lord in it selfe commaunding him not to distreine The especial vse of it is where the tenent hath formerly preiudiced himselfe by performing more services or paying more rent without constraint than he needed For in this case by reason of the Lords seisin he cannot avoide him in avowry and therefore he is driuen to this writ as his next remedie Register orig fol. 4. Fitzh nat br fol 10. Ne vicecomes colore mandat◠Regis quenquam amoueat à possessione ecclesiae minus iustè Register orig fol. 61. Nient comprise is an exception taken to a petition as vniust bicause the thing desired is not conteined or comprehended in that act or deede wherevpon the petition is grounded For example one desireth of the court to be put in possession of a house formerly among other lands c. adiudged vnto him The adverse party pleadeth that his petitiō is not to be granted because thogh he had a iudgement for certaine lands and houses yet the house into the possession wherof he desireth to be put is not conteined among those for the which he had iudgement See the newe booke of Entries titulo Nient comprise This seemeth to be especially to hinder execution Nifle anno 3. Ed. 4. cap. 5. Nihil anno 5. R. 2. stat pri cap. 3. is a word set vpon a debt illeuiable by the foreine Apposer in the Exchequer Nohil dicit is a fayling to put in answer to the plee of the plaintiffe by the day assigned which if a man do commit iudgement passeth against him as saying nothing why it should not Nisi prius is a writ iudiciall which lyeth in case where the Enquest is paneled and returned before the Iustices of the Banke the one partie or the other making petition to haue this writ for the case of the contrie It is directed to the Shyreeue commaunding that hee cause the men impaneled to come before the Iustices in the same countie for the determination of the cause there except it be so difficult that it need great deliberation In which case it is sent againe to the Bank v. anno 14. Ed. 3. cap. 15. The forme of the writ see in old nat br fol. 159. and in the Regist indic fol. 7. 28. 75. See the new booke of Entries verbo Nisi prius And it is called Nisi prius of these words comprised in the same whereby the Shyreeue is willed to bring to Westminst the men impaneled at a certaine day or before the Iustices of the next Assises nisi die Lunae apud talem locum prius venerint c. whereby it appeareth that Iustices of Assises and Iustices of nisi prius are differing And Iustices of nisi prius must be one of them before whom the cause is depending in the Bench with some other good man of the Countie associated vnto him Fitz. nat br fol. 240. E. which he taketh from the Statute of Yorke ann 12. Ed. 2. See Westm 2. cap. 30. anno 13. Ed. prim anno 27. eiusdem cap. 4. anno 2. Ed. 3. cap. 17. anno 4. eiusdem cap. 11. anno 14. eiusdem cap. 16. anno 7. Rich. 2. cap. 7. anno 18. Eliz. cap. 12. Nobility nobilitas in England compriseth all dignities aboue a Knight So that a Baron is the lowest degree thereof Smith de Repub. Anglor lib. prim
say what he can for the iustifiing of his right to this land before he so conveied it The third man commeth not wherevpon the land is recouered by him that brought the writ and the tenent of the land is left for his remedie to the third man that was called and came not in to defend the tenent And by this meanes the entayle which was made by the tenent or his auncester is cut of by iudgement herevpon giuen for that he is pretended to haue no power to entaile that land wherevnto he had no iust title as now it appeareth because it is evicted or recouered from him This kinde of recouery is by good opinion but a snare to deceiue the people Doctor Stud. ca. 32. dial pri fol. 56. a. This feigned Recouery is also called a common Recouery And the reason of that Epitheton is because it is a beaten and common path to that end for which it is ordeined viz. to cut of the estates aboue specified See the new booke of Entries verbo Recouery I saide before that a true recouery is as well of the value as of the thing for the beter vnderstanding whereof know that In valew signifieth as much as Illud quod interest with the Ciuilians For example if a man buy land of an other with warranty which land a third person afterward by suite of lawe recouereth against me I haue my remedie against him that sould it me to recouer in value that is to recouer so much in mony as the land is worth or so much other land by way of exchaunge Fitzh nat br fol. 134. K. To recouer a warranty old nat br fol. 146. is to proue by iudgement 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 of so high a nature that whereas other writs in reall actions be onely to recouer the possession of the land or tenements in question which haue beene lost by our auncester or our selues this aimeth to recouer both the seisin which some of our Auncesters or wee had and also the propertie of the thing whereof our Auncester died not seised as of fee and whereby are pleaded and tried both the rights togither viz. as well of possession as property Insomuch as if a man once loose his cause vpon this writ either by Iudgement by Assise or batell he is without all remedie and shall be excluded per exceptionem Rei iudicatae Bracton lib. 5. tract 1. cap. 1. seqq where you may reade your fille of this writ It is diuided into two species Rectumpatens a writ of right patent and Rectum clausum a writ of right close This the Ciuilians call Iudicium petitorium 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 siewed for and not for any other And when it lieth for him that chalengeth fee simple or in what cases See Fitzh nat br fol. pri C. whome see also fol. 6. of a speciall writ of right in London otherwise called a writ of right according to the Custome of London This writ is also called Breue magnum de Recto Register originall fol. 9 A. B. and Fleta li. 5. cap. 32. § 1. A writ of right close is a writ directed to a Lord of auncient Demesn and lieth for those which hould their lands and tenements by charter in fee simple or in fee taile or for terme of life or in dower if they be eiected out of such lands c. or disseised In this case a man or his heire may siew out this writ of Right close directed to the L. of the Auncient Demesn commanding him to doe him right c. in his court This is also called a small writ of right Breve parvum Register originall fol. 9. a. b. and Britton cap. 120. in fine Of this see Fitzh likewise at large nat br fol. 11. seqq Yet note that the writ of right patent seemeth farder to be extended in vse then the originall inuention serued for a writ of Right of Dower which lieth for the tenent in Dower and onely for terme of life is patent as appeareth by Fitzh nat br fol. 7. E. The like may be said of diuers others that doe hereafter followe Of these see also the table of the originall Register verbo Recto This writ is properly tried in the Lords court betweene kindsmen that claime by one title from their Auncester But how it may be thence remoued and brought either to the Countie or to the kings court see Fleta lib. 6. cap. 3. 4. 5. Glanvile seemeth to make euery writ whereby a man sieweth for any thing due vnto him a writ of right lib. 10. ca. 1 lib. 11. cap. 1. lib. 12. cap. 1. Recto de dote is a writ of Right of Dower which lieth for a woman that hath receiued part of her Dower and purposeth to demaund the Remanent in the same towne against the heire or his Gardian if he be ward Of this see more in the old nat br fol. 5. and Fitzh fol. 7. E. and the Register originall fol. 3. and the newe booke of Entries verbo Droyt Recto de dote vnde nihil habet is a writ of right which lieth in case where the husband hauing diuers lands or tenements hath assured no dower to his wife and she thereby is driuen to siew for her thirds against the heire or his Gardian old nat by folio 6. Register originall fol. 170. Recto de rationabili parte is a writ that lieth alway beweene priuies of bloud as brothers in Gauel-kind or sisters or other Coparceners as Nephewes or Neeces and for land in Fee simple For example if a man lease his land for tearme of life and afterward dyeth leauing issue two daughters and after that the tenent for terme of life likewise dyeth the one sister entring vpon all the land and so deforcing the other the sister so deforced shall haue this writ to recouer her part Fitz. nat br fo 9. Register origin fol. 3. Recto quando Dominus remisit is a writ of right which lyeth in case where lands or tenements that be in the Seigneurie of any Lord are in demaund by a writ of right For if the Lord hold no Court or otherwise at the prayer of the Demandant or Tenent shall send to the Court of the King his writ to put the cause thither for that time sauing to him another time the right of his Seigneurie then this writ issueth out for the other partie and hath this name from the words therein comprised being the true occasion thereof This writ is close and must be returned before the Iustices of the common Bancke old nat br fol. 16. Regist orig fol. 4. Recto de Advocatia Ecclesiae is a writ of right lying where a man hath right of Advouzen and
the Lord Chancelour or by our appointment before Iustices in eyre in open court Glanvile li. 11. cap. pri Britton cap. 126. whome of this thing you may reade more at large There be also in respect of the diuers courts Atturneys at large and Atturneys special belonging to this or that court onely The name is borrowed of the Normanes as appeareth by the custumarie cap. 65. And I find the word attornati or as some reade tornati in the same signification in the title de statu regularium ca. vnico § Perrò i. n sexto where the glosse saith that Atturnati dicuntur Procuratores apud acta constituti Our old Latine word for this seemeth to be responsalis Bract. lib. 4. cap. 31. lib. 5. parte 2. cap. 8. and so it is in Scotland at this day but especially for the Atturney of the defendant as prolocutor is for the persewer M. Skene de verb. significatione Responsalis as Sigâ—nius witnesseth in his first booke de regno Italie was in auncient time the title of the Popes ambassadour pag. 11. Atturney of the court of wards and Liueries Atturnatus regis in curia Wardorum LiberaturaruÌ„ is the third officer in that Court who must be a person learned in the lawes of the land being named and assigned by the king At his admission into the office he taketh an oath before the Master of the said court well and truly to serue the king as his Atturney in all courts for and concerning any mater or cause that toucheth the possessions and hereditaments limited to the suruey and gouernement of this court and to procure the kings profite thereof truly to councell the king and the Master of the Court in all things concerning the same to the best of his cunning witte and power and with all speed and diligence from time to time at the calling of the Master to endeuour himself for the hearing and determination indifferently of such matters causes as depend before the Master not to take any gift or reward in any mater or cause depending in the court or else where wherein the king shall be partie whereby the king shall be hurt hindred or disinherited to do to his power wit and cunning all and euery thing that appertaineth to his office Atturney of the Court of the Duchie of Lancaster Atturnatus curia Ducatus Lancastriae is the second officer in that Court and seemeth for his skill in law to be there placed as assessor to the Chanceler of that court being for the most part some honorable man and chosen rather for some especiall trust reposed in him to deale betweene the king and his tenents then for any great learning as was vsuall with the Emperors of Rome in the choice of their Magistrates Attournment attornamentum commeth of the French tourner i. vertero and in our common lawe is an yeelding of the tenent to a new Lord or acknowledgement of him to be his Lord. For otherwise he that buyeth or obtaineth any lands or tenements of another which are in the occupation of a third cannot get possession yet see the statute an 27. H. 8. cap. 16. The words vsed in atturnment are set downe in Litleton I agree me to the graunt made to you c. But the more common atturnment is to say Sir I attourn to you by force of the same graunt or I become your tenent c. or else deliuer vnto the grauntee a peny halfepeny or farding by way of attournment Litleton lib. 3. cap. Attournment 10. whome you may reade more at large and find that his definition proceedeth from more lawe then Logickeâ— because he setteth downe diuers other cases in the same chapter whereto attournment appertaineth as properly as vnto this But you may perceiue there that attournment is the transposing of those duties that the tenent ought to his former Lord vnto another as to his Lord and also that attournment is either by word or by act c. Also attournment is voluntarie or else compulsorie by the writ tearmed Per quaeseruitia Owld nat br fol. 155. or sometime by distresse Fitzh nat br fol. 147. Lastly attournment may be made to the Lord himselfe or to his Steward in Court Kitchin fol. 70. And there is attournment in deede and attournment in lawe Coke vol. 6. fo 113. a. Attournment in lawe is an act which though it be no expresse attournment yet in intendment of law is all one Atturnato faciendo vel vecipiendo is a writ which a man oweing suite to a countie hundred weapon take or other court and desiring to make an attourney to appeare for him at the same court whome he doubteth whether the Shyreeue or bailiffe will admit or not for his Attourney there purchaseth to commaund him to receiue such a man for his attourney and admit his appearance by him The forme and other circumstances whereof see in Fitzh nat br fo 156. Audiendo terminando is a writ but more properly tearmed a commission directed to certaine persons when as any great assembly insurrectioÌ„ or heinous demeanure or trespasse is committed in any place for the appeasing and punishment thereof which you may read at large in Fitzh nat br fo 110. See also oyer terminer Andience courte Curia audientiae Cantuariensis is a court belonging to the Archbishop of Canterburie of equall authoritie with the Arches court though inferior both in dignity and antiquitie The originall of this court was because the Archeb of Canterbury heard many causes extra iudicially at home in his owne palace in which before he would finally determine any thing he did vsually commit them to be discussed by certaine learned men in the ciuile canon lawes whome thereupon be termed his auditors And so in time it grew to one especiall man who at this day is called Causarum negotiorumque audientiae Cantuariensis auditor seu officialis And with this office hath heretofore commonly bene ioyned the Chancelership of the Archbishop who medleth not in any point of coÌ„tentious iurisdiction that is desciding of causes betweene party and party except such as are ventilated pro forma onely as the confirmation of bishops elections or such like but onely of office and especially such as are voluntariae iurisdictionis as the granting of the custody of the spiritualties during the vacation of Bishoprickes Institutions to benefices dispensing with banes of matrimonie and such like But this is now distinguished in person from the Audience Of this Audience court you may reade more in the booke intituled De antiquitate ecclasiae Brittannicae historia Audita querela is a writ that lieth against him who hauing taken the bond called statute Merchant of another and craving or hauing obteined execution of the same at the Maior Bayliffes hands before whome it was entred at the complaint of the partie who entred the same vpon suggestion of some iust cause why execution should not be graunted as a release or other exception This writ is
graunted by the Chaunceler of England vpon veiwe of the exception suggested to the Iustices of the common banke or of the Kings benche willing them to graunt summons to the Shyrecue of the countie where the creditour is for his appearance at a certain day before them See more in owld nat br fo 66. and Fitzh nat br fo 102. Auditour auditor commeth of the French auditeur and in our lawe signifieth an officer of the king or some other great personage which yearely by examining the accounts of all vnder officers accountable maketh vp a generall booke that sheweth the difference betweene their receipts or burden and their allowances commonly called allocations as namely the auditours of the exchequer take the accounts of those receiuers which receiue the revenewes of the augmentation as also of the Shyrceues escheatours collectours and customers and set them downe and perfect them Him that will read more of this I referre to the Statut. anno 33. H. 8. c. 33. Auditours of the Prests are also officers in the exchequer that doe take and make vp the great accounts of Ireland Berwick the mint of any mony imprested to any man Auditour of the receipts is an officer of the exchequer that fileth the Tellers bils and maketh an entrie of them and giueth to the Lord Treasurer a certificate of the mony receiued the weeke before He maketh also Debenturs to euery Teller before they pay any mony taketh their accounts He keepeth the blacke booke of the receipts and the Treasurers key of the treasurie and seeth euery Tellers monies locked vp in the new treasury Auenture is a mischance causing the death of a man without felony as when he is sodenly drowned or burnt by any soden disease falling into the water or fire Britton ca. 7. where you may see what it differeth from Misadventure See Misadventure Average averagium by M. Skenes opinion verbo arage de verborum significatione commeth of the word averia i. a beast and so consequently signifieth service which the tenent oweth to to the Lord by horse or cariage of horse I haue heard others probably deriue it from the French euvrage or euvre i. opus It seemeth with vs to haue two diuers significations for the first Rastall titulo Exposition of words maketh mention of the Kings averages which I take to be the kings cariages by horse or cart Then anno 32. H. 8. ca. 14. and anno 1. Iacobi ca. 32. it is vsed for a certaine contribution that merchants and others doe every man proportionably make toward their losses who haue their goods cast into the sea for the safegard of the shippe or of the goods and liues of them in the shippe in time of a tempest And this contribution seemeth to be so called because it is proportioned after the rate of euery mans average or goods caried Averijs captis in withernam is a writ for the taking of catell to his vse that hath his catell taken vnlawfully by another and driuen out of the countie where they weretaken that they cannot be repleuied Register originall fo 82. a. b. See Withernam Averment verificatio cōmeth from the French averer i. testari as averer quelque meschācete i. extrahere scelus aliquod in lucem ex occultis tenebris It signifieth according to the author of the termes of lawe an offer of the defendant to make good or to iustifie and exception pleaded in abatement or barre of the plaintifs actiō But me thinketh it should rather signifie the act thē the offer of iustifying the exception by diuers places where I finde it vsed For example an 34. Ed. 1 stat 2. And the demaundant will offer to averre by the assise or Iurie where to offer to averre and to averre must needes differ and againe in the same staint and the demaundaunt will offer to averre by the countrie c. thirdly in the english nat br fo 57. These errours shall be tried by averment c. Averpennie quasi Averago pennie is mony contributed toward the Kings averages Rastall exposition of words See Average Augmentation augmentatio was the name of a court erected the 27 yeare of H. 8. as appeareth by the 27. chapter of that yeares parlament And the end thereof was that the king might be iustly delt with touching the profits of such religious howses and their lands as weare giuen vnto him by an act of parlament the same yeare not printed For the dissolving of which courte there was authoritie giuen to Queene Mary by the parlament held the first yeare of her raigne ses 2. ca. 10. which shee afterward put in execution by her leters patents The name of the courte grewe from this that the revenewes of the crowne were augmented so much by the suppression of the said houses as the king reserved vnto the crowne and neither gaue nor sold away to others Aulne of Renish wine a. 1. Ed. 6. ca. 13. aliàs Awme of Renish wine 1. laco ca. 33. is a vessell that conteineth 40. gallons Aulnegeowr See Alneger Avo is the name of a writ for the which see Ayle Awncell weight as I haue beene informed is a kinde of weight with scoles hanging or hookes fastened at each end of a staffe which a man lifteth vp vpon his forefinger or hand and so discerneth the equalitie or difference betweene the weight and the thing weied In which because there may and was wont to be great deceipt it was forbidden anno 25. Ed. 3. stat 5. ca. 9. anno 34. eiusdem ca. 5. and the euen ballance onely commanded yet a man of good credit once certified me that it is still vsed in leaden hall at London among butchers c. In the deriuation of this word I dare not be ouer confident But it may probably be thought to be called awnsell weight quasi hand sale weight because it was and is performed by the hand as the otheris by the beame And if I should draw it from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. cubitus the parte of the arme from the elbowe to the fingers ends I might chalenge a good warrand of this from the Romaines whoe thence derived their ancile i. the luckie shield that was saide to be sent from heauen in a tempest to Numa Pompilius together with a voice that the citie of Rome stould be the mightiest of all others soe long as that shield remained in it Auncient d 〈…〉 antiquum dominicum is called more at large anncient demeasn of the king or of the crowne Fazb nat brifo 14. d. It cōmeth of 2. French words auncien 1. veter vetus veteranus antiquus and of demaine alias domaire i. publicum vectigal It signifieth in our common lawe a certaine tenure whereby all the maners belonging to the crowne in the daies of Saint Edward the Saxon king or of William the conquerour did hold The number names of which maners as all other belonging to common persons he caused to be written