some time for the place or circuit within the which the king or other Lord hath escheates of his tenents Bracton li. 3. tract 2. cap. 2. pupilla oculi parte 5. ca. 22. Escheate thirdly is vsed for a writ which lieth where the tenent hauing estate of see simple in any lands or tenements holden of a superiour lord dieth seised without heire generall or especiall For in this case the Lord bringeth this writ against him that possesseth these lands after the death of his tenent and shall thereby recouer the same in liew of his seruices Fitzh nat br fol. 144. These that we call Escheats are in the kingdome of Naples called Excadentiae or bona excadentialia as Baro locat excadentias eo modo quo locatae fuerūt ab antiquo it a quod in nullo debit a servitia minuantur non remittit gallinam debitam Iacobutius de Franchis in praeludiis ad feudorum vsum tit 1. nu 29. nu 23. v. Maranta singularia verbo Excadentia And in the same signification as we say the fee is escheated the Feudists vse feudum aperitur li. 1. feud titulo 18. § 2. ti 15. ti 26. § 4. Escheatour Escaetor commeth of Escheate and signifieth an officer that obserueth the Escheates of the king in the countie whereof he is Escheatour and certifieth them into the Eschequer This officer is appointed by the L. treasurer and by leters patents from him and continueth in his office but one yeare neither can any be Escheatour aboue once in 3. yeares anno 1. H. 8. cap. 8. anno 3. eiusd ca. 2. See more of this officer and his authoritie in Cromptons Iustice of peace See an 29. Ed. 1. The forme of the Escheatours oath see in the Register original fol. 201. b. Fitzh calleth him an officer of record nat br fol. 100. C. because that which he certifieth by vertue of his office hath the credit of a record Officium escaetriae is the escheatourship Register orig fo 259. b. Escuage Scutagiū commeth of the French Escu i. clypeus a bucler or sneild In our common lawe it signifieth a kinde of knights seruice called seruice of the shield whereby the tenent holding is bound to follow his Lord into the Scottish or Welsh warres at his owne charge for the which see Chyvalrie But note that Escuage is either vncertaine or certaine Escuage vncertaine is properly Escuage and knights seruice being subiect to homage fealtie ward and mariage so called because it is vncertaine how often a man shal be called to followe his lord into those wars and againe what his charge wil be in each iourney Escuage certaine is that which yearely payeth a certaine rent in lieu of all seruices being no further bound then to pay his rent called a knights fee or halfe a knights fee or the fourth part of a knights fee according to his land this leeseth the nature of knights seruice though it hold the name of Escuage being in in effect Soccage Fitzh nat br fol. 84. C. Esnecy Aesnecia is a prerogatiue giuen to the eldest coparcener to choose first after the inheritance is diuided Fleta li. 5. ca. 10. § in diuisionem Esplees Expletia seeme to be the full profits that the ground or land yeldeth as the hay of the medowes the feede of the pasture the corne of the earable the rents seruices and such like issues Ingham It seemeth to proceede from the latine expleo The profits comprised vnder this word the Romans call properly accessiones Nam accessionum nomine intelligūtur ea generaliter omnia quae ex re de qua agitur orta sunt veluti fructus partus omnis causa rei quaecunque ex re procedunt l. 2. Π. De in diem adiectio li. 50. Π. Ad Trebel l. 61. § hiis etiam Π. de furt See the new Terms of law Esquier Armiger is in leters little altered from the french Escuier i. scutiger It signifieth with vs a gentleman or one that beareth armes as a testimony of his nobilitie or gentrie S. Thomas Smith is of opinion that at the first these were bearers of armes to Lords and Knights and by that had their name and dignity Indeede the french word is sometime translated Agaso that is a boy to attend or keepe a horse and in ould English writers it is vsed for a lackey or one that carieth the shield or speare of a knight Mast Camden in his Britannia pag 111. hath these words of them hauing spoken of Knights Hiis proximi fuere Armigers qui scutiseri hominesque ad arma dicti qui vel a clypeis gentilitiis qua in nobilitatis insignia gestant vel quia principibus matoribus illis nobilibus ab armis erant nomen traxerunt Olim enim ex hiis duo vnicuique militi seruiebant galeam clypeumque gestabant c. Hotoman in the sixth chapter of his disputatiōs vpon the feods saith that these which the French men call Escuiers were a militarie kinde of vassall haueing ius scuti which is as much to say he there interpreteth him selfe as that they bare a shield and in it the ensignes of their family in token of their gentility or dignity Essendi quietum de telonio is a writ that lieth for Citizens or burgesses of any city or towne that haue a charter or prescription to exempt them from tolle through the whole realme if it chaunce they be any where exacted the same Fitzh nat br fol. 226. Register fol. 258. Essoine Essonium commeth of the French Essoniè or exonniè i. causarius miles he that hath his presence forborne or excused vpon any iust cause as sicknesse or other incumbrance It signifieth in our common lawe an alledgement of an excuse for him that is summoned or sought for to appeare and answer to an action reall or to performe suite to a court baron vpon iust cause of absence It is as much as excusatio with the Ciuilians The causes that serue to Essoine any man summoned be diuers infinite yet drawne to fiue heads whereof the first is vltra mare the second de terra sancta the third de malo vemendi which is also called the common Essoine the fourth is de malo lecti the fifth de seruitio Regis For further knowledge of these I referre you to Glanvile in his whole first booke and Bracton li. 5. tractat 2. per totum and Brittan ca. 122. 123. 124. 125. and to Horns mirrour of Iustices li. 1. ca. des Essoinis who maketh mention of some more Essoines touching the seruice of the king celestiall then the rest doe and of some other points not vnworthie to be knowne Of these essoines you may reade farder in Fleta l. 6. c. 8. seqq that these came to vs frō the Normans is well shewed by the Grand Custumarie where you may find in a maner all said that our lawyers haue of this mater cap. 39. 40. 41. 42. 43. 44.
Frauk almoine libera Eleemozyna in french frank Ausmone signifieth in our common lawe a tenure or title of lands Britton cap. 66. nu 5. saith thus of it Franke almoyne is lands or tenements bestowed vpon God that is giuen to such people as bestow themselues in the seruice of God for pure and perpetuall almes whence the feoffours or giuers cannot demaund any terrestriall seruice so long as the lands c. remaine in the handes of the feoffees With this agreeth the grand custumary of Normandie cap. 32. Of this you may reade Bracton at large lib. 2. cap. 5. 10. See Fitzh nat br fol. 211. See the new booke of Entries verbo Franke Almoine But Britton maketh another kind of this land c. which is giuen in almes but not free almes because the tenents in this are tyed in certain seruices to the feoffor Pritton vbisupra Frank bank francus bancus in true french franc banc signifieth word for word a free bench or seate and among our lawe writers it seemeth to be vsed for copyhold lands that the wife being espoused a virgin hath after the decease of her husband for her dower Kitchin fol. 102. Bracton lib. 4. tract 6. cap. 13. nu 2. hath these wordes Consuetudo est in partibus illis quòd vxores maritorum defunctorum habeant francum bancum suum de terris sockmannorum tenent nomine dotis Fitzher calleth it a custome whereby in certaine cities the wise shall haue her husbands whole lands c. for her dower Nat. br fol. 150. P. See Plowden casu Newis fol. 411. Frank chase Libera chasea is a libertie of free chase whereby all men hauing ground within that compasse are prohibited to cut downe wood or discouer c. without the view of the forester though it be his owne demesne Cromptons Iurisdictions fol. 187. Frank fee feudum francum seu liberum is by Brooke tit Dimesn num 32. thus expressed That which is in the hand of the King or Lord of any maner being auncient demesn of the Crowne viz. the Demesnes is called frank fee and that which is in the hands of the tenents is auncient demesn onely see the Register original fol. 12. a. Whereby it seemeth that that is frank see which a man holdeth at the common lawe to himselfe and his heires and not by such seruice as is required in auncient demesn according to the custome of the maner And again I find in the same booke fol. 14. b. a note to this effect that the lands which were in the handes of king Edward the Saint at the making of the booke called Doomesday is auncient demesn and that all the rest in the realme is called frank fee with the which note Fitzherb agreeth na br fol. 161. E. So that all the land in the realme by this reason is either auncient demesn or frank fee. The new expounder of the lawe termes defineth frank fee to be a tanure in fee simple of lands pleadable at the common lawe and not in auncient demesn See Fachineus lib. 7. cap. 39. who defineth feudum francum esse pro quo nullum seruitium praestatur Domino with whom agreeth Zasius de fendis parte 12. saying that therefore it is feudum improprium quia ab omni seruitio liberum Frank ferme Firma libera is land or tenement wherein the nature of fee is chaunged by feofment out of knights seruice for certaine yearely seruices and whence neither homage wardship mariage nor releife may be demaunded nor any other seruice not contained in the feofment Britton ca. 66. nu 3. see Fee ferme Frank law libera lex See Cromptons Iustice of peace fol. 156. b. where you shall finde what it is by the contrary For he that for an offence as conspiracy c. leeseth his franke lawe is said to fall into these mischiefs first that he may neuer be impaneled vppon any iury or assise or otherwise vsed in testifiing any truth Next if he haue any thing to doe in the kings court he must not approch thither in person but must appoint his attourney Thirdly his lands goods and chatelsmust be seised into the kings hands and his lands must be estreaped his trees rooted vp and his body committed to prison For this the said authour citeth the booke of Assises fo 59. Conspiracy F. 11. 24. Ed. 3. fo 34. See Conspiracy Frank mariage liberū maritagiū is a tenurein taile speciall growing from these words in the gift comprised Sciant c. me M. H de W. dedrsse concessisse praesenti charta mea confirmasse I. A. filio meo Margeriae vxori eius filiae verae T. N. in liberū marit agium vnum messuagium c. West parte i. Symbol li. 2. sect 303. The effect of which words is that they shall haue the land to them and the heires of their bodies and shall doe no fealty to the donour vntill the fourth degree See new Terms of law Glanuile li. 7. ca. 18. Bracton li. 2. ca. 7. nu 4. where he diuideth maritagium in liberum seruitio obligatum See Mariage Fleta giueth this reason why the heires doe no seruice vntill the fourth discent ne donatores vel eorum haeredes per homagii receptionem a reuersione repellantur And why in the fourth discent and downeward they shall doe seruice to the donour quia in quarto gradu vehementer praesumitur quòd terra non est pro defectu haeredum donatariorum reversura libro tertio ca. 11. in princ Frankpledge Franoiplegium is compounded of Franc. i. liber and pleige i. fideiussor and signifieth in our common law a pledge or surety for free men For the auncient custome of England for the preseruation of the publique peace was that euery free borne man at fourteene yeares of age after Bracton religious persons clerks knights and their eldest sonnes excepted should finde suerty for his truth toward the King and his subiects or else be kept in prison whereupon a certaine number of neighbours became customably bound one for another to see each man of their pledge forthcomming at all times or to answere the transgression committed by any broken away So that whosoeuer offended it was forthwith inquired in what pledge he was and then they of that pledge either brought him forth within 31. daies to his aunswere or satisfied for his offence This was called Frank pledge causa qua supra and the circuit thereof was called Decenna because it commonly consisted of 10. houshouldes And euery particular person thus mutually bound for himselfe and his neighbours was called Decennier because he was of one Decenna or another This custome was so kept that the shyreeues at euery county court did from time to time take the oaths of yonge ones as they grew to the age of 14. yeares and see that he were combined in one dozen or another whereupon this braunch of the shyreeues authority was called visus Franciplegu view of frankpledge See
the king as of the person of the king and yet houldeth not in caepite but as he held before So that by this booke tenuere houlding of the person of the king and tenure in capite are two diuers tenures To take away this difficulty I thinke M. Kitchin is in that place to be taken as if he saide not in capite by Knights seruice but by socage folowing the vsuall speech because most commonly where we talke of tenure in capite we meane tenure by Knights seruice Carno Cromptons iurisd fol. 191. is an imunity Carke seemeth to be a quantititie of wolle whereof thirtie make a Sarpler anno 27. H. 6. ca. 2. See Sarpler Carrack aliàs Carrick seemeth to be a shippe of burden so called of this Italian carrico or carco a burden or charge or of the spanish cargo you haue this word anno 2. R. 2. ca. 4. anno 1. Iaco. ca. 33. Carroway seedes aliàs Carruway seedes semen cari vel carei is a seed springing of the herbe so called of whose operation you may read in Gerards herball li. 2. ca. 396. It is reckoned among the merchandize that ought to be garbled anno i. Iaco. ca. 19. Carue of land carucata terrae commeth of the French charue i. aratrum and with vs is a certaine quantitie of land by the which the subiects haue some time bene taxed wherevpon the tribute soe leuied is called Carvage Caruagium Bracton li. 2. ca. 16. nu 8. It is all one with that which the same author lib. 2. ca. 17. calleth carucatam terrae For Litleton ca Tenure in socage saith that haec soca socae idem est quod caruca sc one sok or one plow land Yet one place I finde in Stowes annals that maketh me doubt pag. 271. where he hath these words The same time king Henry tooke carvage that is to say two merks of siluer of euery knights fee toward the mariage of his sister Izabell to the Emperor where caryage cannot be taken for a plow land except there were some other farder division whereby to raise of euery plowe land so much and so consequently of euery Knights fee that is of euery 680. acres two merkes of siluer Rastall in his Exposition of words saith that caruage is to be quite if the lord the King shall taxe all the land by carues that is a priuiledge whereby a man is exempted frō carvage Skene de verb. signif ver Carucata terrae deriueth it from the French charon i. a plough and saith that it containes as great a portion of land as may be tilled and laboured in a yere and day with one plough which also is called hilda or hida terrae a word vsed in the old Britaine lawes M. Lamberd among his precedents in the end of his Eirenarcha translateth carucatū terrae a plough land Caruage caruagium see Carue Cassia Fistula is a tree that beareth certaine blacke round and long cods wherein is contained a pulpe soft pleasantly sweet seruing for many vses in Phisick This tree with her vertues you may find described in Gerards Herball lib. 3. cap. 77. The fruite is mentioned in the statute anno 1. Iacob cap. 19. among drugges and spices that be to be garbled Cassia lignea is a sweet wood not vnlike to Cynamom and sometime vsed in steede of Cynamom Whereof you may read in Gerards Herball lib 1. ca. 141. This is called Cassia lignum in the Statute anno 1. Iacob cap. 19 and is comprised among merchandize that are to be garbled Castellain castellanus is a keeper or a Captaine sometime called a Constable of a castell Bracton lib. 5. tractat 2. cap. 16. lib. 2. cap. 32. num 2. īn like maner is it vsed anno 3. Ed. 1. cap. 7. In the bookes de feudis you shall find guastaldus to be almost of the same signification but something more large because it is also extended to those that haue the custodie of the Kings mansion houses called of the Lumbards curtes in England Courts though they be not places of defence or strength M. Manwood part 1. of his Forest lawes pag. 113. saith that there is an officer of the Forest called Castellanus Castelward castelgardum vel wardum castri is an imposition laide vpon such of the kings subiects as dwell within a certaine compasse of any castell toward the maintenance of such as doe watch and ward the castell Magna charta cap. 20. anno 32. H. 8. cap. 48. It is vsed sometime for the very circuit it selfe which is inhabited by such as are subiect to this seruice as in Stowes annals pag. 632. Casu consimili is a writ of entrie graunted where the tenent by courtesie or tenent for terme of life or for the life of another doth alien in fee or in tayle or for tearme of anothers life And it hath the name of this for that the Clerkes of the Chauncerie did by their common consent frame it to the likenesse of the writ called In casu prouiso according to their authoritie giuen them by the Statute Westm 2. cap. 24. which as often as there chanceth any new case in Chancerie something like to a former case and yet not especially fitted by any writ licenceth them to lay their heads together and to frame a new forme aunswerable to the new case and as like some former case as they may And this writ is graunted to him in the reuersion against the party to whom the said tenent so alienateth to his preiudice and in the life time of the said tenent The forme and effect whereof reade more at large in Fitz. nat br fol. 206. Casu proviso is a writ of entry giuen by the Statute of Glocecester cap. 7. in case where a tenent in dower alieneth in fee or for tearme of life or in taile and lyeth for him in reuersion against the alienee Whereof reade F 〈…〉 cat br more at large fol. 205. Catals catalla aliâs chatels cōmeth of the Normans For in the 87. chapter of the grand Custumarie you shal find that al moueable goods with them are called chatels the contrary whereof is fief ibid. which we do call fee. But as it is vsed in our common law it comprehendeth all goods moueable and immoueable but such as are in the nature of free hould or parcell thereof as may be gathered out of Sawnf praero ca. 16. and anno Eliza. 1. ca. 2. How be it Kitchin in the chapter catalla fo 32. saith that ready mony is not accompted any goods or catels nor haukes nor houndes The reason why hawks and hounds be not he giueth because they be ferae naturae why money is not though he set not downe the cause yet it may be gathered to be for that money of it selfe is not of worth but as by cōsent of men for their easier traficke or permutation of things necessary for common life it is reckoned a thing rather consisting in imagination then in deede Catals be either personall
called the foote of the fine The Chirographer also or his debuty doth proclaime all the fines in the court euery tearme according to the Statute and then repayring to the office of the custos breuium there indorseth the proclamations vpō the backside of the foot thereof and alwaie keepeth the writ of couenant as also the note of the fine Chivage See Chevage Chivalrie servitium militare commeth of the French chevalier i. eques and signifieth in our common lawe a tenure of land by knights seruice For the better vnderstanding whereof it is to be knowne that there is noe land but is holden mediatly or immediatly of the Crowne by some seruice or other and therfore are all our free-houlds that are to vs and our heires called feuda feese as proceeding frō the benefit of the King for some small yearely rent and the performance of such seruices as originally were laid vpon the land at the donation thereof For as the king gaue to the great Nobles his immediat tenents large possessions for euer to hold of him for this or that rent and seruice so they againe in time parcelled out to such as they liked their lands so receiued of the kings bountie for rents and seruices as they thought good And these seruices are all by Litleton diuided into two sorts chivalry and socage The one is martiall and military the other clownish and rusticall Chivalrie therefore is a tenure or seruice whereby the tenent is bound to performe some noble or military office vnto his Lord and is of two sorts either regall that is such as may hold onely of the king or such as may also hold of a common person as well as of the king That which may hold onely of the King is properly called servitium or sergeantia and is againe diuided into grand or petit i. great or small Great commonly called grand sergeantie is that where one holdeth lands of the King by seruice which hee ought to doe in his own person vnto him as to beare the kings baner or his speare or to leade his hoast or to be his Marshall or to blow a horne when he seeth his enemies inuade the land or to find a man at armes to fight within the foure Sease or else to do it himselfe or to beare the kings sword before him at his coronation or at that day to be his sewer caruer butler or chamberlaine Litleton tit Sergeantie Petit Sergeantie is where a man holdeth land of the king to yeeld him yearely some small thing toward his warres as a sword dagger bowe knife speare paire of gloues of maile a paire of spurs or such like Litleton titulo petit Sergeanty Chivalry that may hould of a common person as well as of the king is called scutagium escuage that is seruice of the shield And this is either vncertaine or certaine Escuage vncertaine is likewise two-fold first where the tenent by his tenure is bounde to follow his lord going in person to the kings wars against his enemies either him selfe or to send a sufficient man in his place there to be maintained at his cost so many daies as were agreed vpon betweene the lord and his first tenent at the graunting of the see And the daies of such seruice seeme to haue bene rated by the quantity of the land so houlden as if it extend to a whole knights fee then the tenent was bounde thus to follow his lord fourty dayes And a knights fee was so much land as in those dayes was accoumpted a sufficient liuing for a knight and that was 680 acres as some opinion is or 800 as others thinke or 15 pounds per annum Camdens Brittan pa. 110. in meo S. Thomas Smyth sayeth that census equestris is 40. poundes reuenew in free lands If the law extend but to halfe a knights fee then the tenent is bounde to follow his lord as aboue is said but twenty dayes If to a fourth part then ten daies Fitzh nat br fo 83. C. 84. C. E. The other kinde of this escuage vncertaine is called castelward where the tenent by his land is bound either by him selfe or by some other to defend a castell as often as it shall come to his course Escuage certaine is where the tenent is set at a certaine summe of money to be paide in lieu of such vncertaine seruice as that a man shall yerely pay for a Knights Fee 20. shillings Stow annal pag. 238. for halfe a Knights Fee tenne shillings or some like rate And this seruice because it is drawne to a certaine rent groweth to be of a mixt nature not meerely socage for that it smelleth not of the plough and yet so cage in effect being now neither personall seruice nor vncertaine Litleton titulo Secage This tenure called chiualry hath other conditions annexed vnto it as homage fealty wardship reliefe and mariage Bracton li. 2. ca. 35. which what they signifie looke in their places Chilualry is either generall or especiall Dier fo 161. nu 47. Generall seemeth to be where only it is said in the feofment that the tenent houldeth per seruitium militare without any specification of sergeanty escuage c. Speciall that which is declared particularly what kinde of knights seruice he houldeth by Chorall choralis seemeth to be any that by vertue of any of the orders of Clergie was in auncient time admitted to sit and serue God in the Quier which in Latine is tearmed Chorus Chose res is the French word as generall as thing is with vs. It is in the common lawe vsed with diuers epithites worthie the interpretation as chose locall is such a thing as is annexed to a place For example a mill is chose locall Kitchin fol. 18. Chose transitorie in the same place seemeth to bee that thing which is moueable and may be taken away or caried from place to place Chose in action is a thing incorporeall and onely a right as an annuitie an obligation of debt a couenant or vowcher by warrantie Broke titulo Chose in action And it seemeth that chose in action may be also called chose in suspence because it hath no reall existence or being neither can be properly sayde to bee in our possession Broke ibid. Churchwardens Ecclesiarum gardiani be Officers yearely chosen by the consent of the Minister and parishioners according to the custome of euery seuerall place to looke to the church church-yard and such things as belong to both and to obserue the behauiours of their parishioners for such faults as appertaine to the iurisdiction or censure of the court ecclesiasticall These be a kind of corporation inabled by lawe to sue for any thing belonging to their church or poore of their parish See Lamberd in his pamphlet of the duty of Church-wardens Churchesset is a word that I find in Fleta lib. 1. cap. 47 in fine whereof he thus writeth Certam mensuram bladi tritici significat quam quilibet olim sanctae Ecclesiae die
cap. 11. is the sorting or culling out the good from the bad As garbling of spice is nothing but to purifie it from the drosse and dust that is mixed with it It may seeme to proceed from the Italian garbo that is finenesse neatnesse Gard Custodia commeth of the French garde being all of one signification It signifieth in our common lawe a custodie or care of defence but hath diuers applications sometimes to those that attend vpon the safetie of the Prince called Yeomen of the Guard somtime to such as haue the education of children vnder age or of an Idiot sometime to a writte touching wardshippe Which writs are of three sorts one called a right of guard or ward in French droit de gard Fitzh nat br fol. 139. the second is eiectment de gard Idem fol. 139. L. the third is rauishment de gard Idem fol. 140. F. G. See Gardem see Ward Gardein Custos commeth of the French gardien and yet the German Warden is neare vnto it It signifieth generally him that hath the charge or custodie of any person or thing but most notoriously him that hath the education or protection of such people as are not of sufficient discretion to guide themselues and their owne affaires as children and Idiots being indeede as largely extended as both Tutor and Curator among the Civilians For whereas Tutor is he that hath the gouernment of a youth vntill he come to 14. yeares of age and Curator he that hath the disposition and ordering of his substance afterward vntil he attaine to 25. yeares or that hath the charge of a franticke person during his lunacie the common Lawyers vse but onely Gardien or Gardian for both these And for the better vnderstanding of our English lawe in this thing you must know that as tutor is either testamentarius or à Praetore datus ex lege Atilia or lastly legitimus so we haue three sortes of Gardeines in England one ordained by the father in his last will another appointed by the Iudge afterward the third cast vpon the Minor by the lawe and custome of the land Touching the first a man hauing goods and chatels neuer so many may appoint a gardein to the bodie or person of his child by his last will and testament vntill he come to the age of fourteene yeares and so the disposing or ordering of his substance vntill what time he thinketh meet and that is most commonly to the age of 21. yeares The same may he do if he haue lands to neuer so great a valew so they hold not in capite of the king nor of any other Lord by knights seruice And in the former case if the father appoint no Gardein to his child the Ordinarie may appoint one to order his moueables and chatels vntill the age of 14. yeares at which time he may chuse his guardian accordingly as by the the ciuill lawe he may his Curator For we hold all one rule with the Civilians in this case and that is Invito curator non datur And for his lands if he hold any by copie of court rolle commonly the Lord of the fee appointeth him a guardian vntill he come to the age of 14. yeres and that is one next of kind to the Minor of that side that can hope for least profitby his death If he hold by charter in socage then the next of kind on that side by which the land commeth not is the guardian and hereupon called guardian in socage And that which is said here of socage seemeth to be true likewise in petit sergeantie anno vicesimo octauo Edvardi primi statuto primo And the reason of this Fortescue giueth in his booke intituled A commendation of the politique lawes of England cap. 44. viz. because there might be suspition if the next kinsman on that side by which the land descendeth should haue the custody and education of the child that for desire of his land he might be entised to worke him some mischiefe Lastly if a man dye seised of lands holding by knights seruice leauing his heire in minoritie that is vnder 21. yeares the Lord of the fee hath by law the custodie both of the heire and his land vntill he come to age See the statute anno 28. Ed. prim statut prim And the reason of this Fortescue likewise giueth for that hee to whom by his tenure he oweth knights seruice when he can performe it is likeliest to traine him vp in martiall and ingenious discipline vntill he be of abilitie But Polidore Virgil in his Chronicle lib. 16. saith that this was Movum vectigalis genus excogitatum to helpe Henry the third being oppressed much with pouertie by reason he receiued the kingdome much wasted by the wars of his aun cestours and therefore needing extraordinarie helpe to vphold his estate yet the 33. chapter of the Grand Custumary maketh mention of this to haue bene vsed by the Normans and I thinke this the truer opinion Here it is to be obserued whether land in knights seruice hold in capite or of another Lord or some of the King and some of another If of the king whether of the king alone or not all is one For the king in this case is guardian to the heires both person and land by his prerogatiue Stawnf praerog cap. 1. If he hould of a common Lord it is either of one alone or more if of one onely then is he guardian of both person and lands if of more then the Lord of whome he houldeth by the elder tenure is guardian of the person and euery one of the rest hath the custodie of the land holden of him selfe If the prioritie of the tenure cannot be discerned then is he guardian of the person that first happeth him Termes of the lawe Stawnf vbi supra whom you may reade more at large which Author fol. 19. maketh mention of gardeyn in feit and Gardeyn in droit that is in deed and in lawe I take the first to be him that hath purchased or otherwise obtained the ward of the Lord of whom the land holdeth the second him that hath the right by his inheritance and seignorie old nat br fol. 94 Then is there gardein per cause de gard which is he that hath the wardship of a Minor because he is guardian of his Lord being likewise in minoritie Stawnf vbi supra fol. 15. Of this you may reade Skene de verb. signif verbo Varda by whom you may learn great affinitie and yet some difference betweene the lawe of Scotland and ours in this point Guardia is a word vsed among the Feudists for the Latine custodia and guardianus seu guardio dicitur ille cui custodia commissa est lib. Feudo 1. titulo 2. tit 11. Gardeyn of the spiritualties Custos spiritualium vel spiritualitatis is he to whom the spirituall iurisdiction of any Diocesse is committed during the vacancy of the see anno 25. H. 8. cap. 21. And I take that the
sorts of homage vsed by them straunge vnto vs. whereunto ioyne Hotoman disputat de feudis in diuers places namely columna 860. C. hiis verbis Deinceps de nota hominii feudalitiae subiectionis videamus Omnium quidem video esse commune vt dexteras tanquam in foederibus iungerent plerumque etiam vt dexteris aversis osculum praeberent interdum vt ambas manus iunctas patrono contrectandas praeberent supplicum dedititiorum nomine qui velatas manus porrigebant and pag. 861. hiis verbis Multis Galliae atque etiam Angliae moribus constitutum est Quod ex Anglico Litletonio intelleximus vt hominium seruili supplici veneratione ac plane tanquam a dedititiis praestetur Nam vasallus discinctus nudo capite ad pedet sedentis patroni proiectus ambas manus iunctas porrigit quas dum Dominus suis manibus amplectitur haec verba pronunciat Here venio in tuum hominium fidem homo tuus fio ore manibus tibique iuro ac spondeo fidelem me tibi futurum eorum feudorum nomine quae tuo beneficio accepi c. Whereunto you may adde him colum 819. G. 822. F. 857. B. D. F. Of homage in Scotland reade M. Skene de verb. signif verbo Homagium to whome you may also ioyne a plentifull discourse in speculo Durandi commonly called speculator among the Civilians titulo De Feudis Homagio respectuando is a writ to the Escheatour commaunding him to deliuer seisin of lands to the heire that is at full age notwithstanding his homage not done which ought to be performed before the heire haue liuerie of his lands except there fall out some reasonable cause to hinder it Fitzh nat br fol. 269. Homine eligendo ad custodiendam peciam sigillipro Mereatoribus aediti is a writ directed to a corporation for the choice of a new man to keepe the one part of the seale appointed for statutes Merchant when the other is dead according to the statute of Acton Burnel Register orig fol. 178. a. Homine replegiando is a writ for the bayle of a man out of prison which in what cases it lyeth and what not See Fitz. nat br fol. 66. See also the Register orig fol. 77. See the new booke of Entries verb. Homine replegiando Homine capto in Withernamium is a writ to take him that hath taken any bondman or woman and led him or her out of the countie so that he or shee cannot be repleuied according to lawe Register orig fol. 79. a. See Withernam Homicide homicidium is the slaying of a man and it is diuided into voluntarie or casuall homicide voluntarie is that which is deliberated and committed of a set mind and purpose to kill homicide volūtary is either with precedent malice or without The former is murder and is the felonious killing through malice prepensed of any person liuing in this realme vnder the Kings protection West part 2. simbol tit Inditment sect 37. c. vsque ad 51. where you may see diuers subdiuisions of this mater See also Glanuile lib 14. cap 3. Bract. l 3. tra 2. c. 4. 15. 17. Brit. c. 5. 6. 7. See Muder Mans slaughter Chaūce medley Homesoken aliâs Hamsoken Hamsoca is compounded of Ham. i. habitatio and Soken i. quaerere It is by Bracton lib. 3. tract 2. c 23. thus defined Homesoken dicitur inuasio domus contra pacem Domini Regis It appeareth by Rastall in the title Expositiō of of words that in auntient times some men had an immunitie to doe this for he defineth Homesoken to be an immunitie from amercements for entring into houses violently and without licence which thing seemeth so vnreasonable that me thinketh he should be deceiued in that his exposition I would rather thinke it should be a libertie or power graunted by the king to some common person for the cognisance or punishment of such a trangression for so I haue seene it interpreted in an old note that I haue giuen me by a freind which he had of an expert man toward the Exchequer but of what authoritie I know not See Hamsoken Hondhabend is compounded of two Saxon words Hond i. hand and habend i. hauing and signifieth a circumstance of manifest theft when one is deprehended with the thing stollen in his hand Bracton lib. 3. tract 2. ca. 31. 54. who also vse the handberend for the same eodem cap. 8. Honour honor is beside the generall signification vsed specially for the more noble sort of seigneuries whereof other inferiour Lordships or maners doe depend by performance of customes and seruices some or other to those that are Lords of them And I haue reason to think that none are honours originally but such as are belonging to the King How be it they may afterward be bestowed in fee vpon other nobles The maner of creating these honours may in part be gathered out of the statutes anno 31. H. 8. cap. 5. where Hampton court is made an honour and anno 33. eiusdem cap. 37. 38. whereby Amptill and Grafton be likewise made honours and anno 37. eiusdem ca. 18. whereby the King hath power giuen by his leters patents to erect foure seuerall honours Of Westminster of Kingston vpon Hull Saint Osithes in Essex and Dodington in Berkshire This word is also vsed in the selfe same signification in other nations See ca. licet causam extra de probationibus and Minsinger vpon it nu 4. In reading I haue obserued thus many honours in England The honour of Aquila Camden Britan. pag. 231. of Clare pag. 351. of Lancaster pag. 581. of Tickhill pag. 531. of Wallingford Notingham Boloine Magna charta cap 31. of West Greenewish Camd pag. 239. of Bedford pupil oculi parte 5. cap. 22. of Barhimsted Brooke titulo Tenure nu 16. of Hwittam Camd pag. 333. of Plimpton Cromptons Iurisd fol. 115. of Creuecure and Hagenet Febert anno 32. H. 8. cap. 48. of East Greenewish of Windsour in Berk shire and of Bealew in Essex anno 37. H. 8. ca. 18. of Peverell in the county of Lincolne Register orig fol. 1. Horngeld is compounded of Horn and Gildan or Gelder i. Soluere It signifieth a taxe within the forest to be paid for horned beasts Cromptons Iurisd fol. 197. And to be free thereof is a priuiledge graunted by the king vnto such as he think eth good Idem ibidem and Rastall in his exposition of words Hors de sonfee is an exception to auoide an action brought for rent issuing out of certaine land by him that pretendeth to be the Lord or for some customes and seruices for if he can iustifie that the land is without the compas of his fee the action falleth v. Brooke hoc titulo Hospitallers Hospitalarii were certaine knights of an order so called because they had the care of hospitals wherein Pilgrims were receiued to these Pope Clement the fift transferred the Templers which order by a
words Telonis autem dicuntur public anorum stationes in quibus vectigalia recipiunt sed apud istius generis scriptores Telonium dicitur vectigal quod pro pontium aut riparum munitione penditur plerumque á principibus solius exactionis causa imperatur Team aliás Theam is an ould Saxon word signifiing a Royalty granted by the Kings charter to a Lord of a maner Bracton li. 3. tracta 2. ca. 8. of this Saint Edwards lawes nu 25. say thus Quod si quisquam aliquid interciet id est penes alium defendat super aliquem intercitatus non poterit warantum suum habere erit forisfactura sua Iusticia similiter de calumniatore si defecerit M. Skene de verborum significatione verbo Theme saith that it is a power to haue seruants and slaues which are called natiui bondi villani and all Baronies insoffed with Theme haue the same power For vnto them all their bondmen their children goods and cattels properly appertaine so that they may dispose of them at their pleasure And in some ould authentike bookes it is writen Theme est potestas habends natinos it a quòd generationes villanorum vestrorum cum eorum catallis vbicunque inueniantur ad vos pertineant Theme commeth from Than i. servus and therefore some time signifieth the bondmen and slaues according to an ould statute and law De curia de Theme Quod si quis teneat curiam de Theme illa querela in illa curia mouetur ad quam Theme vocatur non debet illa curia elongari sed ibidem determinari omnes Theme ibi compareant Which is vnderstoode of the question of liberty when it is in doubt whether any person be a bondman or free man Which kinde of proces should not be delayed but summarily discided And the new expositour of law terms speaketh to the like effect verbo Them I read it also in an ould paper writen by an exchequer man thus translated Theam i. propago villanorum Teller is an officer in the Eschequer of which sort their be foure in number And their office is to receiue all monies due to the King and to giue to the clerk of the Pel a bill to charge him therewith They also pay to all persons any money paiable vnto them by the King by warrant from the auditour of the receipt They also make weekely and yearely bookes both of their receipts payments which they deliuer to the L. Treasurer Templers Templarii See Knights of the Temple These whil lest they florished here in England which seemeth to be all that time betweene Henry the seconds daies vntill they were suppressed had in euery nation a particular gouernour whom Brac. calleth Magistrū militiae Tēpli l. 1. c. 10. Of these read M. Cam. in his Br. p. 320. See Hospitalers Temporalties of Bishops Temporalia Episcoporum be such reuenewes lands and tenements as Bishops haue had laid to their Sees by the Kings and other great personages of this land from time to time as they are Barons and Lords of the Parlament See Spiritualties of Bishops Tend seemeth to signifie as much as to indeuour or offer or shew forth to tend the estate of the party of the Demaundant old n. br f. 123. b. to tend to trauers Stawnf prarog fol. 96. to tend an auertment Britton cap. 76. Tender seemeth to come of the French Tendre i. tener delicatus and being vsed adiectiuely signifieth in english speech as much as it doth in French But in our common law it is vsed as a verb and betokeneth as much as carefully to offer or circumspectly to indeuour the performance of any thing belonging vnto vs as to tender rent is to offer it at the time and place where and when it ought to be paid To tender his law of non Summons Kitch fo 197. is to offer himselfe ready to make his law whereby to prooue that he was not summoned See law See make Tenementis legatis is a writ that lyeth to London or other corporation where the custome is that men may demise tenements by their last will as well as their goods and catels to whome they list for the hearing of any controuersie touching this mater and for the rectifying of the wrong Regist orig fol. 244. b. Tenant aliâs tenent tenens commeth either of the Latine tenere or of the French tenir and signifieth in our common lawe him that possesseth lands or tenements by any kind of right be it in fee for life or for yeares This word is vsed with great diuersitie of Epithits in the lawe sometime signifying or importing the efficient cause of possession as tenent in Dower which is shee that possesseth land c. by vertue of her Dower Kitchin fol. 160. Tenent per statute Merchant Idem fol. 172. that is he that holdeth land by vertue of a statute forfeited vnto him Tenent in franck mariage Kitchin fol. 158. viz. he that holdeth land or tenement by reason of a gift thereof made vnto him vpon mariage betweene him and his wife Tenent by the courtesie Idem fol. 159 i. he that holdeth for his life by reason of a child begotten by him of his wife being an inheritrix and borne aliue Tenent per elegit Idem fol. 172. i. he that holdeth by vertue of the writ termed Elegit Tenent in mortgage idem fol. 38. is he that holdeth by vertue of a mortgage or vpon condition that if the lessour pay so much money at such a day that he may enter and if not that the leassee shall haue a fee simple fee tayle or free hould Sometime these Epithites import the maner of admittance as tenent by the verge in auncient demesn Idem fol. 81. is he that is admitted by the rod in a court of auncient demesne Sometime the euidence that he hath to shew for his estate as Tenent by copy of court rolle which is one admitted Tenent of any lands c. within a maner that time out of the memorie of man by the vse and custome of the said maner haue bene demisable and demised to such as will take the same in see fee-tayle for life yeares or at will according to the custome of the said maner West parte prim sym lib. 2. se 646. whom reade more at large Againe Tenent by charter is he that holdeth by feofment in writing or other deede Kitchin fol. 57. Sometime these Epithites signifie that dutie which the tenent is to performe by reason of his tenure As Tenent by Knights seruice Tenent in socage Tenent in burgage Tenent in frank fee Tenent in villenage Sometime they import the estate of the tenent or his continuance in the land as Tenent in fee simple Kitchin fol. 150. Tenent in fee taile Idem fol. 153. Tenent for life and tenent for yeares Idem fol. 163. Tenent at the will of the Lord according to the custome of the maner Idem fol. 132. 165. Tenent at will by the common law
of pasture turbarie and piscary to be things corporal looke Common Apporcuâ—â—ent Apportion 〈…〉 tuÌ„ is a dividing of a rent into parts according as the land whence the whole rent issueth is divided among two or more See the new termes of lawe Apprentice Apprenticius commeth of the French aprenti i. tyro rudis discipulus or of the verb apprendre i. addiscere discere and signifieth with vs one that is bound by couenant in word or writing to serue another man of trade for certaine yeares vpon condition that the artificer or man of trade shall in the meane time endeavour to instruct him in his art or misterie S. Thomas Smith in his booke de rep Ang. li. 3. ca. 8. saith that they are a kinde of bond men differing onely in that they be seruants by couenant and for a time Of these you may reade divers statutes made by the wisedome of our realme which I thinke superfluous heere to mention Appropriation appropriatio proceedeth from the French approprior i. apeare acc 〈…〉 re and properly signifieth in the lawe of England a severing of a benefice ecclesiasticall which originally and in nature is iuris diuini in p 〈…〉 nullius to the proper and perpetuall vse of some Religious house or Deane c. and Chapter Bishop rick or Colledge And the reason of the name I take to be this because that whereas persons ordinarily be not accounted domini but vsufructuarij hauing no right of fee simple Littleton titulo Discontinuance these by reason of their perpetuitie are accounted owners of the fee simple and therefore are called proprietarij And before the time of Richard the second it was lawfull as it seemeeth simply at the least by mans lawe to appropriate the whole fruites of a benefice to an abbey or priory they finding one to serue the cure But that King made so euill a thing more tolerable by a lawe whereby he ordeined that in euery licence of appropriation made in chauncerie it should expresly be contained that the diocesan of the place should prouide a conuenient summe of money yearely to be paide out of the fruites toward the sustenance of the poore in that parish and that the Vicar should be well and sufficiently endowed anno 15. Rich. 2. ca. 6. Touching the first institution other things worth the learning about appropriations reade Plowden in Grendons case fo 496. b. seqq as also the new termes of lawe verbo Appropriation To an appropriation after the licence obteined of the King in chauncerle the consent of the Diocesan Patron and incumbent are necessarie if the Church be full but if the Church be voide the Diocesan and the Patron vpon the Kings licence may conclude it Plowden vbi supra To dissolue an appropriation it is enough to present a Clerke to the Bishop For that once done the benefice returneth to the former nature Fitzh nat br fo 35. 〈◊〉 Approvour approbator commeth of the French approuver i. approbare comprobare calculum albo adijcere It signifieth in our common law one that coÌ„fessing felony of him self appealeth or accuseth another one or more to be guilty of the same he is called so because he must prooue that which he hath alleadged in his appeale Stawnf pl. cor fo 142. And that proofe is by battell or by the countrey at his election that appealed The forme of this accusation you may in part gather by M. Cromptons Iustice of peace fo 250. 251. that it is done before the coroner either assigned vnto the selon by the court to take and record what he saith or els called by the felon himselfe and required for the good of the Prince common wealth to record that which he saith c. The oath of the approuer when he beginneth the combate see also in Crompton in the very last page of his booke as also the proclamation by the Herald Of the antiquity of this law you may reade something in Horns myrror of Iustices l. 1. in fine cap. del office del coroner Of this also see Bracton more at large lib. 3. tract 2. cap. 21. 34. and Stawnf pl. cor lib. 2. cap. 52. cum seq Approuers of the king Appruatores regis be such as haue the setting of the kings demeasneâ— in smal Manors to the kings best aduantage anno 51. H. 3. stat 5. See Approue Approue appruare commeth of the French approuer i. approbare comprobare calculum albo adiicere it signifieth in the common lawe to augment or as it were to examine to the vttermost For example to approue land is to make the best benefite thereof by increasing the rent c. So is the Substantiue approuement vsed in Cromptons iurisd fol. 153. for the profits them selues So is it likewise in the statute of Merton cap. 4. anno 2. H. 3 land newly approued Old nat br fol. 79. So the Sheriffes called themselues the kings approuers anno 1. Ed. 3. cap. 8. which is as much in mine opinion as the gatherers or exactors of the kings profits And anno 9. H. 6. cap. 10. Bailiffes of Lords in their franchises be called their approuers But anno 2. Ed. 3. cap. 12. Approuers be certaine men especially sent into seuerall counties of the Realme to increase the Fermes of hundreds and wapentakes which formerly were set at a certaine rate to the Sheriffes who likewise dimised them to others the countie Court excepted Approuement appruamentum see Approue See the Register iudiciall fol. 8. br 9. a. See the new tearmes of lawe verbo Approuement Arbitratour arbiter may be taken to proceede from either the Latine arbitrator or the French arbitre it signifieth an extraordinarie iudge in one or moe causes betweene party and partie chosen by their mutuall consents West parte 2. Symb. titulo Compromise Sect. 21. who likewise diuideth arbitrement into generall that is including all actions quarels executions and demands and special which is of one or moe matters facts or things specified eodem sect 2. 3. 4. T 〈…〉 vilians make a difference betweene arbitrum arbitratorem l. 76. Î . pro socio For though they both ground their power vpon the compromise of the parties yet their libertie is diuers For arbiter is tyed to proceede and iudge according to lawe with equitie mingled arbitrator is permitted wholy to his owne discretion without solemnitie of processe or course of iudgement to heare or determine the controuersie committed vnto him so it be iuxta arbitrium boniviri Arches court Curia de arcubus is the chiefe and auncientest CoÌ„sistorie that belongeth to the Archbishop of Canterburie for the debating of spiritual causes and is so called of the Church in London dedicated to the blessed Virgin commonly called Bow church where it is kept And the Church is called Bow church of the fashion of the Steeple or clocher thereof whose toppe is raised of stone pillars builded arch-wise like so many bent bowes The Iudge of this Court is
impleaded of certaine lands and I vouch to warrant another against whom the summons ad warrantizandum hath bene awarded and the Shyreeue commeth not at the day giuen then if the demandant recouer against me I shall haue this writ against the vouchee and shall recouer so much in value of the land of the vowchee if he haue so much and if he haue not so much then I shall haue execution of such lands and tenements as descend vnto him in fee-simple or if he purchase afterward I shall haue against him a resummons and if he can nothing say I shall recouer the value And note ye that this writ lyeth before apparence Thus farre goeth the booke Of these and the diuers vses of them see the Table of the Register iudiciall verbo Cape Capias is a writ of two sortes one before iudgement called Capias ad respondendum in an action personall if the Shyreeue vpon the first writ of distresse returne nihil habet in baliua nostra and the other is a writ of execution after iudgement being also of diuers kindes viz. Capias ad satisfaciendum Capias pro fine Capias vtlagatum Capias vtlaga 〈…〉 inquiras de bonis catallis Capias ad satisfaciendum is a writ of execution after iudgement lying where a man recouereth in an action personall as debt or dammages or detinew in the kings court and he against whome the debt is recouered and hath no lands nor tenemēts nor sufficient goods wherof the debt may be leuied For in this case he that recouereth shal haue this writ to the shreue commanding him that he take the body of him against whome the debt is recouered and he shal be put in prison vntill satisfaction be made vnto him that recouered Capias pro fine is where one being by iudgement fined vnto the king vpon some offence committed against a statut doth not discharge it according to the iudgement For by this is his body taken and committed to prison vntill he content the king for his fine Coke li. 3. fo 12. a. Capias vtlagatum is a word of execution or after iudgement which lyeth against him that is outlawed vpon any suite by the which the shyreue vpon the receite thereof apprehendeth the party outlawed for not appearring vpon the exegend and keepeth him in safe custodie vntill the day of returne assigned in the writ and then presenteth him vnto the court there farder to be ordered for his contempt Capias vtlagatum inquiras de bonis catallis is a writ al one with the former but that it giueth a farder power to the shyreeue ouer and beside the apprehension of the body to inquire of his goods and cattels The forme of all these writs see in the ould nat br fo 154. and see the Termes of law verbo Proces Lastly you may finde great variety of this kinde in the table of the Register iudiciall verbo Capias Capias in Withernamium de averijs is a writ lying for catell in Withernam Register orig fo 82. 83. see Withernam Capias in Withernamium de homine is a writ that lyeth for a seruant in Withernam Regist or fo 79. 80. see Withernam Capias conductos ad proficiscendum is a writ that lieth for the taking vp of such as hauing receiued prest mony to serue the king slink away and come not in at their time assigned Register orig fo 191. Captaine aliàs capitayne capitaneus commeth of the French capitaine and signifieth with vs him that leadeth or hath charge of a companie of souldiers and is either generall as he that hath the gouernance of the whole host or speciall as he that leadeth one only band The word capitanei in others nations signifieth more generally those that are in latine called principes or proceres because as Hottoman saith in verbis feudalibus tanquā caput reliquo corpori sic hij reliquis civibus praesunt He divideth them into two sorts and to vse his words alii sunt capitanei regni quo verbo Duces Comites Marchiones intelligūtur li. 1. feudo tit 1. § 1. ti 7. Alii impropriè qui vrbiū praefecti sunt quibus plebs ab aliquo superiorum gubernanda committitur qui vallasores regit maiores appellantur l. 1. feud tit 1. § 1. tit 7. tit 17. So we haue captaines of castels heere in England and other places as of the Isles of Gearsey and Gearnsey of the Isle of Weight c. Capite is a tenure which holdeth immediately of the king as of his crown be it by knights seruice or socage Broke tit Tenures 46. 94. Dyer fo 123. nu 38. fo 363. nu 18. not as of any Honour castell or maner and therefore it is otherwise called a tenure that holdeth meerely of the king because as the crowne is a corporation and seigneury in grosse as the common lawyers terme it so the King that possesseth the crowe is in accōpt of lawe perpetually King and neuer in his minoritie nor neuer dieth no more then populus doth whose authoritie he beareth See Fitzh nat br fo 5. F. Note by the way that a man may hold of the king and not in Capite that is not immediately of the crowne in grosse but by meanes of some Honour castel or maner belonging to the Crowne wherof I hold my land Whereof Kitchin saith well that a man may hold of the King by Knight seruice and yet not in capite because he holdeth happily of some honour by Knights seruice which is in the kings hands as by descent from his auncesters and not immediately of the king as of his crowne fo 129. with whome agreeth Fitzh nat br f. 5. K. whose words are to this effect So that it plainely appeareth that lands which be held of the king as of an honour castell or maner are not held in capite of the King because that a writ of right in that case shall be directed to the bayliffe of the honour castell or maner c. but when the lande be held of the King as of his crowne then they be not held of honour castell or maner but meerely of the King as King and of the Kings crowne as of a seigneury of it selse in grosse and the cheife aboue all other seigneuries c. And this tenure in capite is otherwise called tenure holding of the person of the King Dyer fo 44. n. 37. Author of the new termes verb. Tenure in capite Broke titulo Tenures nu 65. 99. And yet M. Kitchin fo 208. saith that a man may hould of the person of the King and not in capite His example is this if the King purchas a maner that I. S. houldeth the tenent shall hould as he held before and shall not render liuery or primier seisin nor hould in capite And if the king graunt that maner to W. N. in fee excepting the seruices of I. S. then I. S. holdeth of
crescente numero peregrinorum iuxta Tēplum Hierosolymitanum Xenodo chium aedificatum tit Diui Iohannis quo exciperentur peregrini quos coenobia capere non possent Huius ergo ministerio quoque viri pij nobiles se devoverunt qui peregrinos tutarentur à latronum seu Agarenorum incursu defenderent Horum professio est votum solenne paupertatis abdicationis propriorum castitatis obedientiae Proinde propter primum votum nihil proprii habent vel habere debent sed accipiunt annonam quà m diu vivunt vel praeceptorias quas vocant Commanderies administrant quà m diueas possident optione mutant vel ex magistri licentia permutant reddituri morientes quae apud eos reperiētur societati Of these Corasius in his paraphrase Ad sacerd mat parte prim cap. 3. saith thus Praeceptoriae Rhodienses cùm non nisi fratribus Hierosolymitanis atque it a personis ecclesiasticis conferantur beneficiis ecclesiasticis annumerari meritò debent Commaundement praeceptum is vsed diuersely in the common lawe some time for the commaundement of the king when vpon his meere motion and from his owne mouth he casteth any man into prison Stawnf pl. cor fo 72. or of the Iustices And this commādement of the Iustices is either absolute or ordinary absolute as when vpon their owne authority in their wisedome and discretion they commit a man to prison for a punishment Ordinary is when they commit one rather for safe custody then punishment And a man committed vpon an ordinary commandemēt is repleuisable pl. cor fo 73. Cōmandement is againe vsed for the offence of him that willeth another man to transgresse the lawe or to doe any such thing as is contrary to the lawe as murder theft or such like Bract. li. 3. tra 2. ca. 19 And this the ciuilians call mandatum Angelus de maleficiis Commen communia commeth from the french commun i. quod ad omnes pertinet and signifieth in our common lawe that soile or water whereof the vse is common to this or that towne or lordship as common of pasture communia pesturae Bract. ls 4. ca. 19. 40. commen of fishing communia piscariae Idem li. 2. ca. 34. commen of turbary i. of digging turues communia turbariae Idem li. 4. ca. 41. cōmen of estouers communia estoueriorum Kitchin fo 94. Comen is deuided into commen in grosse commen appendant commen dppertinent and commen per cause de vicinage i. by reason of neighbourhood Cōmen in grosse is a liberty to haue cōmen alone that is without any land or tenement in another mans land to him selfe for life or to him and his heires And this is commonly passed by deede of graunt or specialty Old nat br fo 31. 37. Commen appendant and common appertinent be in a maner confounded as appeareth by Fitzh nat br fo 180. and be defined to be a liberty of common appertaining to or depending of such or such a freehould Onely Kitchin fo 94. seemeth to make this difference that he which hath commen appertinēt hath it without limitation of this or that kinde of beastes but that is controlled by Dyer fo 70. b. nu 19. He that hath commen appendant hath it but for beastes commenable as horses oxen kine and sheepe being acompted fittest for the plowman and not of goates geese and hogs whereunto the author of the new teaams of law addeth another difference which is that common appertinent may be seuered from the land wherunto it is appertinent but not common appendant The originall of common appendant S. Ed Coke li. 4. fo 37. thus expresseth Common appendant by the auncient lawe had beginning in this maner when a lord infeoffed another in erable lands to hould of him in socage idest per seruicium socae as all tenure in the beginning according to Litleton was the feoffee to mamtaine the seruice of his plough had commō in the wasts of his Iord for his necessary beasts to gaine and compas his land that for two causes one for that as then it was taken it was tacitè implyed in the feofment by reason the feoffee could not gaine or compas his land without catell and catell could not be sustained without pasture anb so by consequent the feoffec had as a thing necessary and incident common in the wastes and land of the lord And this appeareth by aunciēt books tempore Ed. i. tit common 24. 17. E. 2. tit common 23. 20. Ed. 3. tit Admesurement 8 18. Ed. 3. and by the rehersall of the statute of Merton ca. 4. The second reason was for maintenance and aduancement of tillage which is much regarded and fauoured in the lawe Thus farre S. Edward Commen per cause de vicinage is a libertie that the tenents of one lord in one towne haue to common with the tenents of another lord in another towne which kinde of common they that chalenge may not put their catell into the common of the other towne For then they be distremable But turning them into their owne fields if they strey into the neighbours commen they must be suffered See the termes of lawe Common of pasture the Civilians call ius compascendi cum sc plures ex municipipibus qui diversa praedia possiáebant saltum communem vt ius compascendi haberent mercarentur l. penul Π. si servit vendicetur It is also called ius compascuum ibidem Commendam commenda is a benefice that being voide is cōmended to the charge care of some sufficient clerk to be supplied vntill it may be conveniently provided of a pastor And that this was the true originall of this practise you may read at large in Duarenus de sacris ecclesiae ministeriis beneficiis li. 5. ca. 7. And whereas the glosse in verbo commendare in ca. Nemo deinceps de electione in sexto defineth commendam esse ecclesiae custodiam al icui commissam Iohannes Andraeas therevpon saith thus huic definitioni necessariò haec aditcienda putem in tempus gratiâ evidentis necessitatis vtilitatis Idque docuit textus in dicto capite Nemo Corrasius in his paraphrase de sacerdotiorum materia parte prima ca. 6. nu 3. seqq thus describeth the mater In commendam conceditur beneficium cùm Romanus Pontifex Legatus aut Episcopus Neque enim inferioribus qui ex privelegio aut alio iure spirituals conferunt concessum est ca. cum omnes basilicae 16. quaest 7. ecclesiae vacantis custodiam alicui committit administratorem generalem eius templi eum constituens ca. nemo de electio in sexto Commendare enim aliud est nihil quà m deponere l. publius Π. depositi l. cōmēdare Π. de verb signif Hoc autē ad tempus sex mensium pro evidenti necessitate aut vtilitate ecclesiae lex permittit d. ca. Nemo Quaere commendatarius qui ecclesiae vacantis fructuum ad tempus duntaxat custodiā habet nec tenere
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
these words saluis omnibus aduantagiis tam ad iurisdictionem Curia quà m ad breue narrationem or such like Britton vseth it for the conference of a Iury vpon the cause committed vnto them ca. 53. See Imparlance Emprouement See Improuement Encheson A. 50. Ed. 3. ca. 3. is a french word signifiing as much as occasión cause or reason wherefore any thing is done See Skene de verbo significa verbo Encheson Encrochement or Accrochemēt commeth of the french Accrocher 1. apprehendere inuncare harpagare and that commeth of Crochure 1. aduncitas or crochu 1. aduncus Encrochement in our common law signifieth an vnlawfull gathering in vpon another man For Example if two mens grounds lying togither the one presseth too farre vpon the other or if a tenent owe two shillings rent seruice to the Lord the Lord taketh three So Hugh and Hugh Spencer encroched vnto them royall power and authoritie annoprim Ed. 3. in prooem Enditement Indictamentum commeth of the French Enditer i. deferre nomen alicuius indicare or from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because M. Lamberd will haue it so Eirenar lib. 4. cap. 5. pag. 468. It signifieth in our common lawe as much as Accusatio in the ciuile lawe though it haue not in all points the like effect West parte 2. symb titulo Inditements defineth it thus An Inditement is a Bill or declaration made in forme of lawe for the benefite of the common wealth of an accusation for some offence either criminall or penall exhibited vnto Iurours and by their verdict found and presented to be true before an Officer hauing power to punish the same offence It is an accusation because the Iury that inquireth of the offence doth not receiue it vntill the party that offereth the Bill appeare so farre in it as to subscribe his name and offer his oth for the truth thereof It differeth from an Accusation in this that the preferrer of the Bill is no way tyed to the proofe thereof vpon any penalty if it be not proued except there appeare conspiracy Wherefore though moued by M. Wests authority I call it an Accusation yet I take it to be rather Denuntiatio because it is of office done by the great enquest rather then of a free intent to accuse Of this you may reade S. Tho. Smith de Repub. Anglor lib. 2. cap. 19. and Stawnf pl. cor lib. 2. cap. 23. 24. 25. 26. c. Vsque 34. and M. Lamberds Eirenarcha li. 4. ca. 5. whence you may receiue good satisfaction in this mater Endowment Dotatio commeth of the french Doüare and signifieth the bestowing or assuring of a Dower See Dower But it is sometime vsed metaphorically for the setting forth or seuering of a sufficient portion for a vickar toward his perpetuall maintenance when the benefice is appropriated See Appropriation And the statute A. 15. R. 2. cap. 6. Endowment de la plus Belle part is where a man dying seised of some lands houlding in knights seruice and other some in socage the widow is sped of her dower rather in the lands houlding in socage then knights seruice Of this reade Litleton more at large li. 1. ca. 5. Enfranchisement cōmeth of the french Franchise 1. libertas and is in a maner a french word of it selfe It signifieth in our common law the incorporating of a man into any societie or body politicke For example he that by charter is made Denizen of England is said to be enfranchised and so is he that is made a citizen of London or other city or Burges of any towne corporate because he is made partaker of those liberties that appertaine to the corporation whereinto he is enfranchised So a villaine is enfranchised when he is made free by his Lord and made capable of the benefites belonging to freemen Englecerie engleceria is an old abstract word signifying nothing else but to be an English man For example if a man bee priuily slaine or murthered he was in old time accompted Francigena which word comprehendeth euery alien vntil Englecerie was proued that is vntill it were made manifest that he was an Englishman A man may maruell what meaning there might be in this but Bracton cleareth the doubt who in his third booke tract 2. cap. 15. num 3. telleth vs that when Canutus the Danish king hauing setled his estate here in peace did at the request of our Barons disburden the land of his armie wherein he accompted his greatest safetie and conditioned with them that his countrimen which remained here should continue in peace and the more to secure that that for euery Francigena vnder which word as is aboue said he comprehended all outlandish men and women and especially Danes that was secretly murthered there should be leauied to his Treasurie 66. merkes out of the village where the murder was cōmitted or out of the hundred if the village were not able to pay it and further that euery man murdered should be accompted Francigena except Englecery were proued which how it was to be proued looke the 7. number in the same chapter And see also Horns myrror of Iustices lib. 1. cap. del office del coroner and Fleta lib. 1. cap. 30. This Englecerie for the abuses and troubles that afterwarde were perceiued to grow by it was cleane taken away by a statute made anno 14. Ed. 3. capite quarto Enheritance See Inheritance Enquest Inquisitio is all one in writing with the french word and all one in signification both with the French and Latine Howbeit it is especially taken for that Inquisition that neither the Romanes nor French men euer had vse of that I can learne And that is the Enquest of Iurors or by Iurie which is the most vsuall triall of all causes both ciuile and criminall in our realme For in causes ciuill after proofe is made of either side so much as each partie thinketh good for himselfe if the doubt be in the fact it is referred to the discretion of twelue indifferent men empaneled by the Shyreeue for the purpose and as they bring in their verdict so iudgement passeth For the Iudge saith the Iurie findeth the fact thus then is the law thus and so we iudge For the enquest in causes criminall see Iurie and see Sir Thomas Smith de Repub. Anglor lib. 2. cap. 19. An enquest is either of office or at the mise of the partie Stawnf pl. cor lib. 3. cap. 12. Entendment commeth of the French entendement i. intellectus ingenium It signifieth in our common lawe so much as the true meaning or signification of a word or sentence See of this Kitchin fol. 224. Entayle feudum talliatum commeth of the French entaille i. inscisus and in our cōmon lawe is a substantiue abstract signifying Fee-tayle or Fee-intayled Litleton in the second chapter of his book draweth Fee-tayle from the verbe Talliare which whence it commeth or whether it will I know not whereas in truth it must come from the French taille
quietantiam murdri in exercitu Fleta libr. prim cap. 47. Ferm firma commeth of the French Ferme i. colonia villa praedium and signifieth with vs house or land or both taken by Indenture of lease or lease parol It may likewise not vnaptly be coniectured that both the French and English word came from the Latine firmus for locare ad firmum I find somtime to signifie with others as much as to set or let to farme with vs. The reason whereof may be in respect of the sure hould they haue aboue tenents at will v. vocabul vtriusque iuris verbo Afflictus The authour of the new Termes of lawe deriueth this word from the Saxon feormian which signifieth to feed or yeeld victuall For in auncient time the reseruations were as well in victuals as money which I leaue to the iudgemet of the Reader How many wayes ferme is takē see Plowden casu Wrothesley fol. 195. a. b. Feudarie See Feodarie Fieri facias is a writ iudiciall that lyeth at all times within the yeare and day for him that hath recouered in an action of debt or dammages to the Shyreeue to commaund him to leuie the debt or the dammages of his goods against whome the recouerie was had This writ hath beginning from Westm 2. cap. 18 anno 13. Ed. 1. See old nat br fol. 152. See great diuersitie thereof in the Table of the Register iudiciall verbo Fieri facias Fifteenth Decimaquinta is a tribute or imposition of mony laide vpon euery city borough and other towne through the realme not by the polle or vpon this or that man but in general vpon the whole city or towne so called because it amounteth to one fifteenth parte of that which the city or towne hath bene valued at of ould This is now a dayes imposed by parlament and euery towne through the realme great or lesse knoweth what a fiftenth for themselues doth amount vnto because it is perpetuall whereas the subsidie which is raised of euery particular mans lands or goods must needs be vncertaine because the estate of euery seuerall man is so ticklish and vncertaine And in that regard am I driuen to thinke that this fifteenth is a rate aunciently laide vpon euery towne according to the land or circuit belonging vnto it whereof M. Camden hath many mentions in his Britannia In stead of the rest take a fewe page 168. of Wels in Somerset shire he writeth thus Quo tempore vt testatur ceasualis Angliae liber Episcopus ipsum oppidum tenuit quod pro quinquiginta hidis geldauit And pag. 171. of Bathe Geldabat pro viginti hidis quando Schira geldabat thirdly pa. 181. of ould Sarisbury thus pro quinquaginta hidis geldabat and these rates were taken out of Domes day in the Eschequer so that this seemed in ould time to be a yearely tribute in certainty whereas now though the rate be certaine yet it is not leuied but by Parlament See Taske see Quinsie me Filazer Filazarius commeth of the french Filace i. filum filacium it is an officer in the common plees whereof there be 14. in number they make out all originall proces as well reall as personall and mixt and in actions meerely personall where the defendants be returned or sommoned there goeth out the distresse infinite vntill apparence If he be returned Nihil then proces of Capias infinite if the plaintife will or after the third Capias the plaintife may goe to the Exigenter of the Shire where his originall is grounded and haue an Exigent and proclamation made And also the Filazer maketh foorth all writs of viewe in causes where the view is prayed he is also allowed to enter the imparlance or the generall issue in common actions where apparence is made with him and also iudgement by confession in any of them before issue be ioyned and to make out writs of execution thereupon But although they entred the issue yet the protonotarie must enter the iudgement if it be after verdict They also make writs of Supersedeas in case where the defendant appeareth in their offices after the Capias awarded Filctale See Sothale File filacium is a threed or wyer whereon writs or other exhibits in courts are fastened for the more safe keeping of them Finders anno 18. Ed. 3. stat 1. cap. vnico anno 14. R. 2. cap. 10. seeme to be all one with those which in these dayes we call searchers Fine finis commeth of the French fin i. finis and hath diuers applications in our commō lawe sometime being vsed for a formall or ceremonious conueyance of lands or tenements or as West saith titulo Fines sect 25. of any thing inheritable being in esse tempore finis to the end to cut off all controuersies West parte 2. symb sect 1. defineth a fine in this signification couenants made before Iustices and entred of Record And out of Glanvile thus lib. 8. cap. 1. Finis est amicabilis compositio finalis concordia ex consensu licentia Domini Regis vel eius Iusticiariorum And lib. 9. cap. 3. Talis concordia finalis dicitur eo quod finem imponit negotio adeò vt neutra pars litigantium ab eo de caetero poterit recedere And out of Bracton lib. 5. tract 5. cap. 28. num 7. thus Finis ideò dicitur finalis concordia quia imponit finem litibus est exceptio peremptoria The authour of the new termes of lawe defineth it to be a finall agreement had betweene persons concerning any land or rent or other thing whereof any suite or writ is betweene them hanging in any court See the new booke of Entries verbo Fines This fine is of so high a nature that Bracton lib. 3. cap. 7. num 3. hath these words of it Item immediate pertinet ad Regem querela finis factae in curia Domini Regis non observatae Et est ratio quia nemo potest finem interpretari nisi ipse Rex in cuius curia fines fiunt See also anno 27. Ed. prim stat prim cap. prim The Civilians would call this solemne contract transactionem iudicialem de re immobili because it hath all the properties of a transaction if it be considered in his originall vse v. Wesemb parat titulo de transact For it appeareth by the writers of the common lawe aboue named that it is nothing but a composition or concord acknowledged and recorded before a competent Iudge touching some hereditament or thing immoueable that earst was in controuersie betweene those that be parties to the same concord and that for the better credit of the transaction being by imputation made in the presence of the king because it is leuied in his Court and therefore doth it bind women couert being parties and others whom ordinarily the lawe disableth to transact onely for this reason that all presumption of deceipt or euill meaning is excluded where the king is priuy to the acte But discourse of wit and reason
hath in time wrought other vses of this concord which in the beginning was but one as namely to secure the title that any man hath in his possession against all men to cut off intayles and with more certaintie to passe the interest or the title of any land or tenement though not controuerted to whome we thinke good either for yeares or in fee. In so much that the passing of a fine in most cases now is it but mera fictio iuris alluding to the vse for the which it was invented and supposing a doubt or controuersie where in truth none is and so not onely to worke a present prescription against the parties to the concord or fine and their heires but within fiue yeares against all others not expresly excepted if it be leuied vpon good consideration and without Couin as women couert persons vnder 21. yeares or prisoners or such as be out of the realme at the time when it was acknowledged Touching this mater see the statutes anno 1. Rich. 3. cap. 7 anno 4. H. 7. cap. 24. anno 32. H. 8. cap. 36. anno 31. Elizab. ca. 2. This fine hath in it fiue essentiall parts the originall writ taken out against the conizour the kings licence giuing the parties libertie to accord for the which he hath a fine called the Kings siluer being accompted a part of the Crownes reuenew Thirdly the concord it selfe which thus beginneth Et est concordia talis c. Fourthly the note of the fine which is an abstract of the original concord and beginneth in this maner Sc. Inter R. querentem S. E. vxorem eius deforciantes c. Fifthly the foot of the fine which beginneth thus Hac est finalis concordia facta in Curia domini Regis apud Westm à die Paschae in quindecim dies anno c. So as the foote of the fine includeth all containing the day yeare and place and before what Iustice the concord was made Coke vo 6. casu Teye fol. 38. 39. This fine is either single or double A single fine is that by which nothing is graunted or rendred backe againe by the Cognizeese to the Cognizours or any of them A double fine containeth a graunt and render backe againe either of some rent common or other thing out of the land or of the land it selfe to all or some of the Cognizours for some estate limiting thereby many times Remainders to straungers which be not named in the writ of couenant West vbi supra sect 21. Againe a fine is of the effect deuided into a fine executed and a fine executory A fine executed is such a fine as of his owne force giueth a present possession at the least in law vnto the Cognizee so that he needeth no writ of Habere facias seisinam for the execution of the same but may enter of which sort is a fine sur cognizance de droit come ceo que il ad de son done that is vpon acknowledgement that the thing mentioned in the concord be ius ipsius cognizati vt illa quae idem habet de dono Cognitoris West sect 51. K. and the reason of this seemeth to be because this fine passeth by way of release of that thing which the cognizee hath already at the least by supposition by vertue of a former gift of the cognizour Cokes reports li. 3. the case of fines fo 89. b. which is in very deed the surest fine of all Fines executorie be such as of their owne force doe not execute the possession in the Cognizeese as fines sur cognizance de droit tantùm fines sur done graunt release confirmation or render For if such fines be not leuied or such render made vnto them that be in possession at the time of the fines leuied the cognizees must needs siew writs of Habere facias seisinam according to their seuerall cases for the obtaining of their possessions except at the leuying of such executory fines the parties vnto whom the estate is by them limited be in possession of the lands passed thereby for in this case such fines doe inure by way of extinguishment of right not altering the estate or possession of the Cognizee but perchaunce bettring it West vbi supra sect 20. Touching the forme of these fines it is to be considered vpon what writ or action the concord is to be made and that is most commonly vpon a writ of couenant and then first there must passe a paire of indentures betweene the Cognizour and Cognizee whereby the Cognizour couenanteth with the cognizee to passe a fine vnto him of such or such things by a day set down And these indentures as they are first in this proceeding so are they saide to lead the fine vpon this couenant the writ of couenant is brought by the Cognizee against the cognizour who therevpon yeeldeth to passe the fine before the Iudge and so the acknowledgement being recorded the cognizout and his heires are presently concluded and all straungers not excepted after fiue yeares once passed If the writ wherevpon the fine is grounded be not a writ of couenaunt but of warrantia chartae or a writ of right or a writ of mesn or a writ of custome and seruices for of all these fines may also be founded West vbi supra sect 23. then this forme is obserued the writ is serued vpon the party that is to acknowledge the fine and then he appearing doth accordingly See Dier fo 179. nu 46. This word fine sometime signifieth a summe of money paide for an Income to lands or tenements let by lease sometime an amends pecuniarie punishment or recompence vpon an offence committed against the king and his lawes or a Lord of a maner In which case a man is said facere finem de transgressione cum Rege c. Regist Iud. fol. 25. a. and of the diuersity of these fines with other mater worth the learning see Cromptons Iustice of peace fol. 141. b. 143. 144. and Lamberds Eirenarcha libro 4. ca 16. pa. 555. But in all these diuersities of vses it hath but one signification and that is a finall conclusion or ende of differences betweene parties And in this last sence wherein it is vsed for the ending and remission of an offence Bracton hath it li. 2. ca. 15. nu 8. speaking of a common fine that the Countie payeth to the king for false iudgemēts or other trespasses which is to be assessed by the Iustices in Eyre before their departure by the oath of knights and other good men vpon such as ought to pay it with whome agreeth the statute anno 3. Ed. pri ca. 18. There is also a common fine in leetes See Kitchin fo 13. a. v. common fine See Fleta l. 1. ca. 48. Fines pro licentia concordandi anno 21. H. 8. c. 1. See Fine Fine force seemeth to come of the french adiectiue fin and the substantiue force i. vis The adiectiue fin signifieth sometime as much as
i. hospitio excipere It signifieth with vs an officer of the princes court that allotteth the noble men and those of the household their lodgings It signifieth also in Kitchin an Inkeeper fol. 176. Hereditaments hereditamenta seeme to signifie all such things immoueable be they corporeall or incorporeall as a man may haue to himselfe and his heires by way of inheritance v. anno 32. H. 8. ca. 2. or not being otherwise bequeathed doe naturally and of course descend to him which is our next heire of blood and fall not within the compas of an executour or administratour as chatels doe Heriot See Hariot Hide of land Hida terrae Saxonicè Hidelandes is a certaine measure or quantitie of land by some mens opinion that may be plowed with one plowe in a yeare as the author of the newe Termes saith verbo Hidage by other men it is an hundred acres By Beda who calleth it familiā it is as much as will maintaine a familie Crompton in his Iurisdict fol. 220. saith that it consisteth of an hundred acres euery acre in length 40. perches and in breadth 4. perches everie perch 16. foote and a halfe and againe fol. 222. A hide of land conteineth an hundred acres 8. hides or 800. acres conteine a knights fee. Of this reade more in M. Lamberds Explica of Saxon wordes verbo Hyda terrae See Carue Hide and gaine old nat br fol. 71. Coke lib. 4. Tirringhams case signifieth carable land See Gainage Hidage Hidagium is an extraordinarie taxe to be paide for euery hide of land Bracton li. 2. c. 6. writeth thus of it Sunt etiam quaedam communes praestationes quae seruitia non dicuntur nec de consuetudine veniunt nisi cum necessitas intervenerit vel cum Rex venerit sicut sunt Hidagia Coragia Carvagia alia plura de necessitate ex consensu communi totius Regni introducta quae ad Dominum feudi non pertinent c. of this reade the new expounder of lawe termes who saith that hidage is to be quit if the king shall taxe all the lands by hides and yet also graunteth it to be the taxe it selfe saying that it was wont to be an vsuall kind of taxing as well for prouision of armour as payments of money Hinefare See Heinfare Hidel i. H. 7. ca. 6. seeemeth to signifie a place of protection as a Sanctuarie Hierlome See Heirlome Hine seemeth to be vsed for a Seruant at husbandrie and the master hine a seruant that ouerseeth the rest anno 12. R. 2. ca. quarto Hoblers Hobellarii are certaine men that by their tenure are tyed to maintaine a little light nagge for the certifiing of any inuasion made by enemies or such like perill toward the Sea side as Porchmouth c. of these you shall reade anno 18. Ed. 3. stat 2. cap. 7. anno 25. eiusdem stat 5. ca. 8. Hoghenhine is he that commeth guestwise to a house and lieth there the third night After which time he is accounted of his familie in whose house he lieth and if he offend the kings peace his host must be answerable for him Bracton lib. 3. tract 2. cap. 10. In the lawes of King Edward set forth by M. Lamberd he is called agenhine wheare you may reade more of this mater Hithe Hitha is a petit hauen to land wares out of vessels or boates new booke of Entrise fol. 3. colum 3. Hoggeshead is a measure of wine or oyle containing the fourth parte of a tunne that is 63. gallons anno i. R. 3. ca. 13. Hoistings See Hustings Homage Homagium is a french word signifiing fidem clientularem for in the originall grants of land and tenements by way of fee the lord did not onely tie his tenents or feed men to certaine seruices but also tooke a submission with promis and oathe to be true and loyall to him as there lord benefactour This submission was and is called homage the forme wherof you haue in the second statute anni 17. Ed 2. in these words when a free man shall doe homage to his Lord of whome he holdeth in chiefe he shall hold his hands together betweene the hands of his lord and shall say thus I become your man from this day forthe for life for member for wordly honour and shall owe you my faith for the land I hold of you sauing the faith that I doe owe vnto our Soueraigne Lord the king and to mine other Lords And in this maner the Lord of the fee for which homage is due taketh homage of euery tenent as he commeth to the land or fee. Glanvile lib. 9. ca. 1. except they be women who performe not homage but by their husbands yet see Fitzherbert that saith the contrary in his natura br fol. 157. F. Reade Glanuile more at large in the said first chapter with the second third fourth The reason of this M. Skene giueth de verbo significatione verbo Homagium viz. because Homage especially concerneth seruice in warre He saith also that consecrated Bishops doe no homage but onely fidelitie the reason may be all one And yet I find in the Register orig fol. 296. a. that a woman taking liuerie of lands holden by knights seruice must doe homage but not being ioyntly infeoffed for then shee doth only fealtie And see Glanuile in the ende of the first chapter of his nineth booke touching Bishops consecrated whome he denieth to performe homage to the king for their Baronie but onely fealty Fulbeck reconeileth this fol. 20. a. in these words By our lawe a religious man may doe homage but may not say to his Lord. Egodevenio homo vester because he hath professed himselfe to be onely Gods man but he may say I doe vnto you homage and to you shall be faithfull loyall See of this Britton cap. 68. Homage is either new with the fee or auncestrell that is wheare a man and his auncesters time out of minde haue held their lands by homage to their Lord whereby the Lord is tied to warrant the land vnto his tenent newe Termes of the lawe This homage is vsed in other countries as well as ours was wont to be called Hominium See Hotom de verbis feudalibus verbo Homo Skene diuideth it into liegium non liegium de verb. signifi verbo Homage for the which see Leige and Hotoman disputatione de feudis tertia Homage is sometime vsed for the Iurie in the Courte Baron Smith de Repub. Anglo lib. 2. cap. 27. The reason is because it consisteth most commonly of such as owe homage vnto the Lord of the fee. And these of the Feudists are called pares curiae sive ourtis siue domus sic dicuntur enim conuassalli siue compares qui ab eodem patrono feudum receperunt vel qui in eodom territorio feudum habent Hotoman Of this homage you may read in the 29. c. of the Grand Custumarie of Normandie where you shall vnderstand of other
Bracton lib. 2. cap. 16. num 3. and Britton cap. 39. For hee pardoneth life and limme to offendours against his crowne and dignitie except such as he bindeth himself by oath not to forgiue Stawnf pl. cor lib. 2. cap. 35. And Habet omnia iura in manu sua Bracton lib. 2. cap. 24. num prim And though at his coronation he take an oath not to alter the lawes of the land Yet this oath notwithstanding hee may alter or suspend any particular lawe that seemeth hurtfull to the publike estate Blackwood in Apologia Regum c. 11. See Oath of the king Thus much in short because I haue heard some to be of opiniō that the lawes be aboue the king But the kings oath of old you may see in Bracton lib. 3. cap. 9. nu 2. for the which looke in Oath of the King The kings oath in English you may see in the old abridgement of Statutes titulo Sacram. Regis Fourthly the kings only testimonie of any thing done in his presence is of as high nature and credit as any Record Whence it cōmeth that in all writs or precepts sent out for the dispatch of Iustice he vseth none other witnesse but himselfe alwaies vsing these words vnder it Teste me ipso Lastly he hath in the right of his crowne many prerogatiues aboue any common person be he neuer so potent or honourable whereof you may reade your fill in Stawnf tractate vpon the Statute thereof made anno 17. Ed. 2. though that containe not all by a great number What the kings power is reade in Bracton lib. 2. cap. 24. nu prim 2. King of Heradls Rex Heraldorū is an officer at Armes that hath the preeminence of this Society See Herald This officer of the Romans was called Pater Patratus Kings Bench Bancus Regius is the Court or Iudgment seate where the Kinge of England was wont to sitte in his owne person and therefore was it moueable with the court or kings Houshould And called Curia domini Regis or Aula Regia as M. Gwine reporteth in the preface to his readings and that in that and the Exchequer which were the only courts of the king vntill Henry the thirds daies were handled all maters of Iustice as well Ciuill as Criminall whereas the court of common plees might not be so by the statute anno 9. H. 3. cap. 11. or rather by M. Gwins opinion was presently vpon the graunt of the great charter seuerally erected This court of the Kings bench was wont in auncient times to be especially exercised in all Criminall maters plees of the crowne leauing the handling of priuate contracts to the cownty court Glanuil lib. 1. cap. 2. 3. 4. li. 10. cap. 18. Smith de Repub Anglicana lib. 2. cap. 11. and hath president of it the Lord Cheife Iustice of England with three or foure Iustices assistaunts four or fiue as Fortescu saith cap. 51. and officers thereunto belonging the clearke of the crowne a Praenatory or Protonotari and other sixe inferior ministers or Atturnies Camd Britan pag. 112. See Latitat How long this court was moueable I finde not in any wrighter But in Brittons time who wrot In K. Ed the 1. his daies it appeareth it followed the court as M. Gwin in his said preface wel obseruethout of him See Iustice of the Kings Bench. Kings siluer is properly that mony which is due to the king in the court of common plees in respect of a licence there graunted to any man for passing a fine Coke vol. 6. fo 39. a. 43. b. Kintall of woad iron c. is a certaine waight of merchandize to the valew of a hundred or something vnder or ouer according to the diuers vses of sundry nations This word is mentioned by Plowden in the case of Reniger and Fagossa Knaue is vsed for a man seruant a. 14. Ed. 3. stat 1. ca. 3. And by M. Verstigans iudgemēt in his Restitutiō of decaied intelligence ca. 10. it is borowed of the dutch cnapa cnaue or knaue which signifie all one thing and that is some kinde of officer or seruant as scild-cnapa was he that bore the weapon or shield of his superior whom the latines call armigerum and the French men escuyer Knight Miles is almost one with the Saxon Cnight i. Administer and by M. Camdens iudgment pag. 110. deriued from the same with vs it signifieth a gentleman or one that beareth Armes that for his vertue and especially Martiall prowes is by the King or one hauing the Kings authority singled as it were from the ordinary sort of gentlemen and raised to a higher accompt or steppe of dignity This among all other nations hath his name from the Horse Because they were wont in auncient time to serue in warrs one horsbacke The Romans called them Equites the Italians at these daies terme them Cauallieri The French men Cheualliers The German Reiters The Spaniard Caualleros or Varoncs a Cauallo It appeareth by the statute anno 1. Ed. 2. cap. 1. that in auncient times gentlemen hauing a full knights fee and houlding their land by knights seruice of the king or other great person might be vrged by distresse to procure himselfe to be made knight when he came to mans estate for the answerable seruice of his Lorde in the Kings warres To which point you may also reade M. Camden in his Britannia pag. 111 But these customes be not nowe much vrged this dignity in these dayes being rather of fauour bestowed by the Prince vpon the worthier sort of gentlemen then vrged by constraint The maner of making knights for the dignitie is not hereditarie M. Camden in his Britan. pag. 111. shortly expresseth in these words Nostris verò temporibus qui Equestrem dignitatem suscipit flexis genibus educto gladio leuiter in humero percutitur Princeps his verbis Gallicè affatur Sus vel sois Cheualier au nom de Dieu id est Surge aut Sis Eques in nomine Dei The solemnitie of making Knights among the Saxons M. Stow mentioneth in his Annals pag. 159. See the priuiledges belonging to a knight in Fernes Glorie of Generositie pag. 116. Of these knights there be two sorts one spirituall another temporall Cassanaeus in gloria mundi parte 9. Considerat 2. of both those sorts and of many subdiuisions reade him in that whole part The temporall or second sort of knights M. Ferne in his Glorie of generositie pag. 103. maketh threefold here with vs. Knights of the sword Knights of the Bath and Knights of the soueraigne Order that is of the Garter of all which you may reade what he saith I must remember that mine intent is but to explain the termes especially of our common lawe Wherefore such as I find mentioned in Statutes I will define as I can M Skene de verb. significat verbo Milites saith that in the auncient lawes of Scotland Freeholders were called Milites Which may seem to haue bene a custome with vs
space of 200. yeares was farre spred in Christendome and namely here in England But at the last the cheife of them at Hierusalem being as some men say found to fall away to the Sazarens from Christianity and to abound in many vices the whole Order was suppressed by Clemens quintus which was about King Ed. the 1. daies and their substance giuen partly to the Knights of the Rhodes and partly to other Religious Cassan de gloria mnndi parte 9. Consid 5. and See anno prim Ed. 1. cap. 42. Others wright that in truth their destruction grewe from leaning to the Emperour against the Pope of Rome what soeuer was pretended Ioach. Stephanus De iurisdictione lib. 4. cap. 10. nu 18. See Templers Knights of the Shire Milites Comitatus otherwise be called Knights of the Parlament and be two Knights or other gentlemen of worth that are chosen in pleno Comitatu by the free holders of euery Countie that can dispend 40. shillings per annum and be Resient in the shire anno 10. H 6. cap. 2. anno 1. H. 5. cap. 1. vpon the Kings writ to be sent to the Parlament and there by their counsell to assist the common proceedings of the whole Realme These when euery man that had a Knights fee were custumarily constreined to be a Knight were of necessity to be milites gladio cincti for so runneth the tenour of the writ at this day Cromptons Iurisdict fol. pri But nowe there being but fewe Knights in comparison of former times many men of great liuing in euery county Custome beareth that Esquiers may be chosen to this office anno 23. H. 6. ca. 6. so that they be resient within the countie anno H. 6. cap. 7. anno 1. H. 5. cap. prim For the obseruations in choice of these knights see the statutes anno 7. H. 4. cap. 15. anno 11. eiusdem cap. 1. anno 6. H. 6. cap. 4. anno 23. H. 6. cap. 15. and the new booke of Entries verbo Parlament nu 1. Their expences during the Parlament are borne by the County anno 35. H. 8. cap. 11. Knight Marshiall Marescallus hospitii Regii is an officer in the kings house hauing iurisdiction and cognisance of any transgression within the kings house and verge as also of contracts made within the same house whereunto one of the house is a partie Register orig fo 185. a. b. fo 191. b. whereof you may there reade more at large Knights fee Feudum militare is so much inheritaunce as is sufficient yearely to maintaine a knight with conuenient reuenew which in Henry the. 3. daies was fifteene pounds Camdeni Britan. pag. â—11 or 680. acres of land or 800. acres eodem But S. Thomas Smith in his Repub. Angl. lib. pri cap. 18. rateth it at fourtie pound And I finde in the statute for knights anno pri Ed. 2. cap pri that such as had 20. pound in fee or for terme of life per annum might be compelled to be knights M. Stowe in his annals pag. 285. saith that there were found in England at the time of the Conqueror 60211. Knights fees others say 60215. whereof the religious houses before their suppression were possessed of 28015. Knights fee is sometime vsed for the rent that a knight payeth for his fee to his Lord of whom he houldeth And this is an vncertaine summe some houlding by fortie shillings the sheild some by twenty shillings as appeareth by Bracton lib. 5. tract pri cap. 2. Knighten Gylde was a Gylde in London consisting of 19. knights which king Edgar founded giuing vnto them a portion of void ground lying without the walls of the city now called Portesoken ward Stow. in his Annals pag. 151. L LAborariis is a writ that lieth against such as hauing not whereof to liue doe refuse to serue or for him that refuseth to serue in summer where he serued in winter orig Register fol. 189. b. Laches commeth of the French lascher i. laxare or lusche i. frigidus ignavus flaccidus it signifieth in our common law negligence as no laches shal be adiudged in the heire within age Litleton fol. 136. and old nat br fol. 110. where a man ought to make a thing and makes it not I of his laches cannot haue an Assise but I must take mine action vpon the case Lagon See Flotzon Laised listes anno i. R. 3. cap. 8. Land tenent anno 14. Ed. 〈◊〉 stat 1. cap. 3. anno 23. eiusdem cap. 1. 26. eiusdem stat 5. cap. 2. See Terre-tenent anno 12. R. 2. cap. 4. anno 4. H. 4. cap. 8. it is ioyned with this word Possessor as Synonymon v. anno 1. H. 6. cap. 5. See Terretenent Lanis de crescentia Walliae traducendis abque custuma c. is a writ that lyeth to the customer of a porte for the permitting one to passe ouer wolles without custome because he hath paid custome in Wales before Register fol. 279. Lapse Lapsus is a slippe or departure of a right of preseÌ„ting to avoide benefice from the originall patron neglecting to present within six monethes vnto the Ordinary For we say that benefice is in lapse or lapsed wherevnto he that ought to present hath omitted or slipped his oportunitie anno 13. Eliz. cap. 12. This lapse groweth as well the Patron being ignorant of the auoydance as priuie except onely vpon the resignation of the former Incumbent or the depriuation vpon any cause comprehended in the statute anno 13. Eliz. cap. 12. Panor in cap. quia diuersitatem nu 7. de concess praebend Rebuffus de devolut in praxi beneficiorum Lancelotus de collation lib. 1. Institut canon § Tempus autem In which cases the Bishop ought to giue notice to the Patron Larceny Laricinium commeth of the French Larcen i. furtum detractio alicui It is defined by West parte 2. Symbol titulo Inditements to be theft of personall goods or chatels in the owners absence and in respect of the things stollen it is either great or small Great Larceny is wherin the things stolne though seuerally exceede the value of 12. pence and petit Larceny is when the goods stolne exceede not the value of 12. pence hitherto M. West But he differeth from Bracton lib. 3. tract 2. c. 32. n. 1. Of this see more in Stawnf pl. cor l. 1. cap. 15. 16. 17. 18. 19. Laghslite is compounded of lah. i. lex and slite i. ruptum and signifieth mulctam ruptae vel violatae legis Lamb explicat of Saxon words verbo Mulcta Last is a Saxon word signifiing a burden in generall as also particularly a certaine weight for as we say a last of hering so they say Ein last corns last wines c. thence commeth lastage which see in Lestage A last of hering conteineth 10. thousand an 31. Ed. 3. stat 2. cap. 2. a last of pitch and tarre or of ashes conteineth 14. barrels anno 32. H. 8. cap. 14. a last of hides
day of his appearance by reason of the said common summons or otherwise But otherwise it is where a man is let to bayle to foure or two men by the lord Iustice in eyre of the Forest vntill a certaine day For there he is alwayes accounted by the lawe to be in their ward and custody for the time And they may if they will keepe him in ward or in prison all that time or otherwise at their will So that he that is so bayled shall not be said by the lawe to be at large or at his owne libertie Thus farre M. Manwood The myrror of Iustices maketh a difference also betweene pledges and mainpernours saying that pledges are more generall that mainpernours are bodie for bodie lib. 2. cap. de trespasse venial and lib. 3. cap. des pledges mainpernours When mainprises may be granted and when not see Cromptons Iustice of peace fol. 136. c. vsque 141. and Lamberd Eiren. lib. 3. cap. 2. pag. 336. 337. 338. 339. 340. See also Britton fol. 73. a. cap. Des pledges mainpernours the author of the Myrror of Iustices saith that pledges bee those that bayle or redeeme any thing but the body of a man and that mainpernours be those that free the body of a man And that pledges therefore belong properly to reall and mixt actions and mainpernours to personall Maintenance manutentio vel manutenentia is a French word and signifieth an vpholding of a cause or person metaphorically drawne from the succouring of a young child that learneth to goe by ones hand In our common lawe it is vsed in the euill part for him that secondeth a cause depending in suite betweene others either by lending of mony or making friends for either partie toward his help anno 32. Henr. 8. cap. 9. And when a mans act in this kinde is by lawe accounted Maintenance and when not see Broke titulo Maintenance and Kitchin fol. 202. seqq and Fitz. nat br fol. 172. and Cromptons Iurisdict fol. 38. The writ that lyeth against a man for this offence is likewise called Maintenance Termes of the lawe verb. Maintenance Speciall maintenance Kitchin fol. 204. seemeth to bee maintenance most properly so tearmed Of this see Cromptons Iustice of peace fol. 155. b. and the new booke of Entries verbo Maintenance Maintenance vid. Nouos terminos Iuris Make facere signifieth in the common lawe to performe or execute as to make his lawe is to performe that lawe which he hath formerly bound himselfe vnto that is to cleare himselfe of an action commenced against him by his oath and the oathes of his neighbours Old nat br fol. 161. Kitchin fol. 192. which lawe seemeth to be borowed of the Feudists who call these men that come to sweare for another in this case Sacramentales Of whom thus saith Hotoman in verbis foundal Sacramentales a sacramento i. iuramento diccbantur â—i qui quamuis res de qua ambigebatur testes non fuissent tamen ex eius cuius res agebatur animi sententia in eadem quae ille verba iurabant illius vide licet probitate innocentia confisi Nam tum demum adhibebantur cùm testes nulli extarent See the rest The formall words vsed by him that maketh his lawe are commonly these Heare O ye Iustices that I doe not owe this summe of money demaunded neither all nor any part thereof in maner and forme declared so helpe me God and the contents of this booke To make seruices or custome is nothing else but to performe them Old nat br fol. 14. To make oath is to take an oath Maletent in the Statute called the Confirmation of the liberties of c. anno 29. Ed. prim cap. 7. is interpreteted to be a tolle of 40. shillings for euery sacke of wooll Stow in his Annals calleth it a Maletot pag. 461 See also the Statute de tallagio non concedendo an 34. eius stat 5. Malin See Marle Manbote signifieth a pecuniary compensation for killing of a man Lambard in his exposition of Saxon words verbo Aestimatio Of which reade Roger Houeden also in parte poster suorum annal fol. 344. a. b. Mandamus is a writ that lyeth after the yere and day wheras in the meane time the writ called diem clausit extremum hath not bene sent out to the Excheatour for the same purpose for the which it should formerly haue bene sent forth Fitzh nat br fol. 253. B. See Diem clausit extremum Mandamus is also a charge to the shyreeue to take into the kings hands all the lands and tenements of the kings widowe that against her oath formerly giuen marieth without the kings consent Register fol. 295. b. See Widow Mandatum is a commaundment iudiciall of the king or his Iustices to haue any thing done for the dispatch of iustice wherof you shall see diuersity in the table of the Register iudiciall verbo Mandatum Maner Manerium seemeth to come of the French manoir i. domicilium habitatio M. Skene de verbo significatione verbo Manerium saith it is called Manerium quasi Manurium because it is laboured with handy worke by the Lord himselfe It signifieth in our common law a rule or gouernmeÌ„t which a man hath ouer such as hould land within his fee. Touching the originall of these maners it seemeth that in the beginning there was a certaine compasse or circunt of ground graunted by the king vnto some man of worth as a Baron or such like for him and his heires to dwell vpon and to exercise some iurisdiction more or lesse within that compasse as he thought good to graunt performing him such seruices and paying such yearely rent for the same as he by his graunt required and that afterward this great man parcelled his land to other meaner men inioyning them againe such seruices and rents as he thought good and by that meanes as he became tenent to the king so the inferiours became tenents vnto him See Perkins Reseruations 670. and Andrew Horns booke intituled the mirrour of Iustices li. 1. ca. du Roy Alfred See the definition of a Maner Fulb. fol. 18. And this course of benefiting or rewarding their nobles for good seruice haue our kings borowed from the Emperours of Rome or the Lombard kings after they had setled themselues in Italy as may well appeare by Antonius Contius in methodo feudorum c. i. de origine libris Feudorum And I finde that according to this our custome all lands houlden in fee throughout Fraunce are diuided into Fiefz and arrierfiefz whereof the former are such as are immediatly graunted by the king the secoÌ„d such as the kings feudataries doe againe graunt to others Gregorii Syntagm lib. 6. an 5. nu 3. But the inconstancy of mans estate and the mutability of time hath brought to passe that those great men or their posterity haue alienated these Mansions and lands so giuen them by their Prince and others that had none haue by ther welth
to the pound weight The third is the Controller who is to see that the mony be made to the iust assise to ouersee the officers and controll them if the money be not as it ought to be his fee is 100. merkes per annum Then is the Master of the Assaye who weigheth the siluer and seeth whether it be according to standard his yerely fee is also an hundred merkes Then is the Auditour to take the accompts and make them vp Auditor-like Then is the Surueyor of the melting who is to see the siluer cast out and not to be altered after it is deliuered to the melter which is after the Assay-master hath made triall of it Then is the Clerke of the Irons who seeth that the Irons be cleane and fit to worke with Then the Grauer who graueth the stampes for the monies Then the Smyters of Irons who after they be grauen smiteth them vpon the money Then the Melters that melt the Bullion before it come to the coyning TheÌ„ the Blanchers who do aneale boyle and cleanse the money The Porter who keepeth the gate of the mint The Prouost of the mint who is to prouide for all the monyers and to ouersee them Lastly the monyers who are some to sheere the money some to forge it some to beate it abroade some to rouÌ„nd it some to stampe or coyn it Their wages is not by the day or yeare but vncertaine according to the waight of the money coyned by them Other officers that haue benein former time are said nowe to bee out of vse Misauenture or misaduenture commeth neere the French mesaduenture i. infortunium In our common law it hath an especiall signification for the killing of a man partly by negligence and partly by chaunce As if one thinking no harme dissolutely throweth a stone where with he killeth another or shooteth an arrow c. For in this case he committeth not felony but onely looseth his goods and hath pardon of course for his life Stawn pl. cor li. 1. ca. 8. Britton ca. 7. distinguisheth betweene Auenture and misauenture Auenture he maketh to be meere chaunce as if a man being vpon or neere the water be taken with some sodaine sicknes and so fall in and is drowned or into the fire and be burned to death Misauenture he maketh where a man commeth to his death by some outward violence as the fall of a tree or of a gate the running of a cartwheele the stroke of a horse or such like So that misauenture in Stawnfords opinione is construed somewhat more largely then Britton vnderstandeth it West parte 2. Symbol titulo Inditement sect 48. maketh homicide casuall to be meerely casuall or mixt Homicide by meere chaunce he defineth sect 49. to be when a man is slaine by meere fortune against the minde of the killer as if one hewing the axe flieth of the haste and killeth a man And this is all one with Brutons misauenture Homicide by chaunce mixed he defineth sect 50. to be when the killers ignorance or negligence is ioyned with the chaunce as if a man loppe trees by an high way side by which many vsually trauell and cast downe a bowgh not giuing warning c. by which bowgh a man passing by is slaine Miscontinuance Kitchin fol. 231. See Discontinuance Mise misa is a French word signifing as much as expensum in latine and the latine word Misa is so vsed in Kitchin fol. 144. and in West parte 2. Simbol titulo Proceedings in chauncery sect 21. F. It is vsed anno 2. 3. Ed. 6. ca. 36. for a somme of mony paid by the Kings tenents in certaine counties in Wales according to their seuerall customes In the statute 33. H. 8. ca. 13. it is vsed plurally for certaine custumary gratuities sent to to the Lord Marchers of Wales by their tenents at their first comming to their lands And anno 4. 5. Phil. Mar. ca. 11. mise is vsed in an action of right or property for the point whereupon the parties proceede to triall either by Assise or battaile as issue is in an action personall if the Mise be vpon battell Litleton fol. 102. and in the old nat br fol. 〈◊〉 you haue these words Know yea that this writ hath but two issues that is to say ioyning the mise vpon the meere and that is to put himselfe into the great Assise of our soueraigne Lord the King or to ioyne battaile See anno 37. Ed. 3. ca. 16. To ioyne the mise vpon the meere is as much to say as to ioyne the mise vpon the cleare right and that in more plaine terms is nothing else but to ioyne vpon this point whether hath the more right the tenent or demaundant Litleton li. 3. ca. 8. foll 101. b. This word in some other place is vsed for a participle signifiing as much as cast or put vpon in english which appeareth by S. Ed. Cokes report in Saffins case vol. 6. fo 124. a. Misericordia is vsed in the common law for an arbitrary punishment Bracton li. 4. tracta 5. ca. 6. in these words Item siquis in misericordiam inciderit pro disseisina non remanebit misericordia exigenda si ille qui â—miserit quaesiuerit conuictionem Kitchin fol. 78. out of Glanuile saith thus Est autem misericordia quia quis per iuramentum legalium hominum amerciatus est ne aliquid de suo honorabili contenemento amittaâ— which saying you haue in a maner word forword in Glanvile lib. 9. cap. 11. Fitzherbert saith that it is called misericordia because it ought to be very moderate and rather lesse then the offence according to the tenure of the great charter cap. 14. This saith Fitz. in his nat br in the writ De moderata misericordia fol. 75. A. I. Misericordia is to be quit of Misericors that is to be discharged of all maner of amercements that a man may fall into within the Forest Crompton Iurisd fol. 196. See Amerciament See Mercy and Moderata misericordia Miskeâ—ning i. chaunging of speech in court Saxon in the description of Engl. cap. 11. Misnomer is compounded of the French mes which in composition alwaies signifieth as much as amisse and nomer i. nominare It signifieth in our common lawe the vsing of one name for another or mis-tearming Broke titulo Misnomer Misprision Misprisio commeth of the French Mespris i. fastidiuÌ„ contemptus it signifieth in our common lawe neglect or negligence or ouersight As for example Misprision of treason or of felony is a neglect or light accompt shewed of treason or felony commited by not reuealing it when we know it to be committed Stawnf pl. cor li. 1. ca. 19. which read at large or by letting any person committed for treason or felony or suspitioÌ„ of either to goe before he be indited Also Misprision of Clerks anno 8. He. 6. ca. 15. is a neglect of Clerks in wrighting or keeping records Thirdly anno 14. Ed. 3. ca. 6. statu pri
vertue whereof a man hath some imploiment in the affaires of another as of the King or other common person but also an Inquisition made to the Kings vse of any thing by vertue of his office who inquireth And therefore wee oftentimes reade of an office found which is nothing but such a thing found by Inquisition made ex officio In this signification it is vsed anno 33. H. 8. cap. 20. and in Stawnfords praerog fol. 60. 61. where to trauers an office is to trauers the inquisition taken of office And in Kitchin fol. 177. to returne an office is to returne that which is found by vertue of the office see also the newe booke of Entries verbo Office pur le Roy. And this is by a metonymie of the effect And there be two sorts of offices in this signification issuing out the exchequer by commission viz. an office to intitle the King in the thing inquired of and an office of instruction which reade in Sir Edw. Cokes reports vol. 6. Pages case fol. 52. a. b. Office in fee is that which a man hath to himselfe and his heires anno 13. Ed. 1. ca. 25. Kitchin fol. 152. See Clerk Official officialis is a word very diversly vsed For by sundry Ciuilians of other countries that write in these daies it appeareth to be applyed in many places to such as haue the sway of temporall iustice Aegidius Bossius in pract crim tit De officialibus corruptis c. But by the auncienter ciuile lawe it signifieth him that is the minister or appparitor of a magistrate or Iudge l. 1. § si quis vltro Π. de quaestio Co. de filiis officialium c. li. 12. In the Canon lawe it is especially taken for him to whome any Bishop doth generally commit the charge of his spirituall iurisdiction And in this sence one in euery Dioces is officialis principalis whome the statutes and lawes of this Kingdome call chanceler anno 32. H. 8. cap. 15. The rest if there be more are by the canō law called officiales foranei glos in clem 2. de Rescriptis but with vs termed Cōmissaries Commissarii as in the statute of H. 8. or some times Commissarii foranei The difference of these 2. powers you may reade in Lyndwood titulo de sequestra posses ca. 1. verbo Officialis But this word officiall in our statutes and common lawe signifieth him whom the Archdeacon substituteth in the executing of his iurisdiction as appeareth by the statute aboue mentioned and many other places Officiariis non faciendis vel amovendis is a writ directed to the magistrates of a corporatiō willing them not to make such a man an officer and to put him out of the office he hath vntill enquirie be made of his maners according to an inquisition formerly ordeined Register originall fol. 126. b. Onerando pro rata portionis is a writ that lieth for a ioint tenent or tenent in common that is distreined for more rent then the proportion of his land cōmeth vnto Reg orig f. 182. a. Open Lawe Lex manifesta Lex apparens is making of Lawe which by Magna charta ca. 28. Bayliffes may not put men vnto vpon their owne bare assertions except they haue witnesses to proue their imputation Orchel anno 1. R. 3. ca. 8 Orchall anno 24. H. 8. ca. 2. anno 3. 4. Ed. 6. ca. 2. seemeth to be all one with cork Ordinance of the forest Ordinatio Forestae is a statute made touching forest causes in the 34. yeare of Edward 1. See Assise Ordinarie Ordinarius though in the ciuil lawe whence the word is taken it doth signifie any iudge that hath authoritie to take knowledge of causes in his owne right as he is a magistrate and not by deputation yet in our common lawe it is most commonly and for ought I remember alway taken for him that hath ordinarie Iurisdiction in causes ecclesiasticall See Brooke hoc titulo Lindwood in cap. exterior titulo de Constitutionibus verbo Ordinarii saith quòd Ordinarius habet locum principaliter in Episcopo aliis superioribus qui soli sunt vniuersales in suis iurisdictionibus sed sunt sub eo alii ordinarii hii viz. quibus competit Iurisdictio ordinaria de iure privilegio vel consuetudine c. v. c. Ordinatione contra seruientes is a writ that lieth against a servant for leauing his master against the statute Register originall fol. 189. Ordael Ordalium is a Saxon word signifiing as much as Iudgement in some mens opinions compounded of two Saxon words or a priuatiue as α in greeke and dael i. pars It signifieth as much as expers but it is artificially vsed for a kind of purgation practized in auncient times whereby the party purged was iudged expers criminis called in the canon lawe purgatio vulgaris and vtterly condemned There were of this two sorts one by fire another by water Of these see M. Lamberd in his explication of Saxon words verbo Ordalium where he expresseth it at large with such superstitions as were vsed in it Of this you may likewise read Holinshed in his description of Britanie fol. 98. and also M. Manwood parte pri of his forest lawes pag. 15. But of all the rest Hotoman especially disput de feud ca. 41. where of fiue kinde of proofes which he calleth feudales probationes he maketh this the fourth calling it explorationem huius furiosae probationis 6. genera fuisse animadvertit per flammam per aquam per ferrum candens per aquam vel gelidam vel feruentem per sortes per corpus Domini of all which he alledgeth seuerall examples out of historie very worthie the reading See M. Skene also de verbor significatione verbo Machamiū This seemeth to haue bene in vse here with vs in Henry the seconds dayes as appeareth by Glanvile lib. 14. cap. 1. 2. Reade also of this in M. Verstegans Restitution of decayed intelligence cap. 3. pag. 63. seqq Orfgild aliâs Cheapegild is a restitution made by the Hundred or Countie of any wrong done by one that was in plegio Lamberd Archaion pag. 125. 126. Orgeis anno 31. Ed. 3. stat 3. cap. 2. is the greatest sort of North sea-fish now adaies called Organ ling. Oredelfe is a liberty whereby a man claimeth the Ore found in his soyle New exposition of Termes Ortelli is a word vsed in the booke termed pupilla oculi in the chapter containing the charter of the Forest parte 5. cap. 22. and signifieth the clawes of a dogges foote being taken from the French orteils des pieds i. digiti pedum the toes Osmonds anno 32. Henr. 8. cap. 14. Oath of the King Iuramentum Regis is that which the King taketh at his Coronation which in Bracton is set downe in these words Debet Rex in coronatione sua in nomine Iesu Christi praestito sacramento haec tria promittere populo sibi subdito Inprimis se esse
to vs reliefe he shall haue inheritance by the old Reliefe that is to say the heire or heires of an Earle for one whole Earldome one hundred pound the heire or heires of a Baron for one whole Baronie one hundred merkes the heire or heires of a Knight for one whole Knights fee one hundred shillings at the most And he that hath lesse shall giue lesse according to the old custome of the fees Reade also Glanvile lib. 9. cap. 4. fol. 68. who saith that in his dayes the Reliefe of a Baronie was not certaine The heire in francke soccage when he commeth to his full age after the death of his auncester shall double the rent that he was wont to pay to the Lord and that shall be in place of reliefe old nat br fol. 94. Somewhat more hereof you may reade in anno 28. Ed. prim statut prim and Kitchin fol. 145. ca. Reliefe and Glanvile lib. 7. cap. 9. The Feudists also write of this at large Among others Vincentius de Franchis descis 121. saith that Relevii solutioest quaedam extrinseca praestatio à consuetudine introducta quae non inest feudo quodque soluitur proconsirmatione seu renouatione investiturae possessionis See Heriot This Leo the Emperour Novella 13. calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By the auncienter ciuile lawe it is termed introitus l. penult § Alumno Πde legatis Skene de verb. signif saith that Reliefe is a French word from the Latine relevare which is to releeue or take vp that which is falen For it is giuen by the tenent or vassall being of perfect age after the expiring of the wardeship to his Lord of whome he holds his land by Knights seruice that is by ward and reliefe and by payment thereof he relieues and as it were raiseth vp againe his lands after they were fallen downe into his superiours hands by reason of wardship c. Remainder remanentia signifieth in our common law a power or hope to inioy lands tenements or rents after the estate of another expired For example a man may let land to one for terme of his life and the Remainder to another for terme of his life Litleton cap. Atturnment fol 113. And this Remainder may be either for a certaine terme or in fee simple or fee taile as might be proued by many places in the law writers But in steed of the rest take Brooke titulo Done Remainder fol 245. Glanuile lib. 7. ca. pri in fine hath these words Not andum quod nec Episcopus nec Abbas quiaeorum Baroniae sunt de eleemozina Domini Regis antecessorum eius non possunt de Dominicis suis aliquam partem dare ad remanentiam sine assensu confirmatione Demini Regis Where it appeareth that Dare ad remanentiam is to giue away for euer To the same effect doth he vse it cap. 9. eiusdem libri in these words speaking of the Lords of mancrs during the minority of their wards Nihil tamen de haereditate de iure alienare possunt ad remanentiam In the like sort doth Bracton vse it lib. 2. cap. 23. in fine and also lib. 4. tracta 2. cap. 4. nu 4. See the new booke of Entries verbo Remainder Remembrancers of the Exchequer Rememoratores be three officers or clerks one called the Kings Remembrancer anno 35. El. cap. 5. The other the Lord Treasurers Remembrancer vpon whose charge it seemeth to lye that they put all Iustices of that court as the Lord Treasurer and the rest in remembrance of such things as are to be called on and delt in for the Princes behoofe The third is called the Remembrancer of the first fruites Of these you may read something anno 5. Rich. 2. stat pri cap. 14. 15. to the effect aboue specified These anno 37. Ed. 3. cap. 4. be called clerks of the Remembrance It seemeth that the name of this officer is borowed from the Ciuilians who haue their Memoriales qui sunt notarii Cancellariae in regno subiects officio Questoris Lucas de penna C. lib. 10. tit 12. nu 7. The kings Remembrancer entreth in his office all recognicances taken before the Barons for any the Kings debts for apparences or for obseruing of orders He taketh al bonds for any of the kings debts or for apparance or for obseruing of orders and maketh proces vpon them for the breach of them He writeth proces against the collectors of customes subsidies and fiueteenthes for their accompts All informations vpon penall statutes are entred in his office And all maters vp on English bils in the Exchequer chamber are remaining in his office He maketh the bils of compositions vpon penall lawes taketh the stalments of debts maketh a record of a certificate deliuered vnto him by the clerk of the Starre-chamber of the fines there set and sendeth them to the pipe He hath deliuered vnto his office all maner of indentures fines and other euidences whatsoeuer that concerne the assuring of any lands to the Crowne He yearely in crastino animarum readeth in open court the statute for the elections of Shyreeues and giueth those that chuse them their oath he readeth in open court the oath of all the officers of the court when they are admitted The treasurers remembrancer maketh proces against all Shyreeues escheators receiuers and bayliffs for their accoumpts He maketh proces of fieri facias and extent for any debts due to the King either in the pipe or with the auditors He maketh proces for all such reuenew as is due to the King by reason of his tenures He maketh a record whereby it appeareth whether Shyreeues and other accountants pay their profers dew at Easter and Michelmas He maketh another record whereby it appeareth whether Shyreeues and other accountants keepe their daies of prefixion All extreats of fines issues and amerciaments set in any courts of Westminster or at the assises or sessions are certified into his office and are by him deliuered to the clerk of extreats to write proces vpon them He hath also brought into his office all the accoumpts of customers controllers and other accoumptants to make thereof an entry of record The Remembrancer of the first fruites taketh all compositions for first fruites and tenthes and maketh proces against such as pay not the same Remittere commeth of the French remettre i. restituere reponere and signifieth in our common law a restitution of one that hath two titles to lands or tenements and is seised of them by his later title vnto his title that is more auncient in case where the later is defectiue Fitz. nat br fol. 149. F. Dyer fol. 68. nu 22. This in what case it may be graunted to any man see in Brooke titulo Remitter and the terms of law The Doctor and Student of this mater hath these words if land discend to him that hath right to that land before heshalbe remitted to his beter title if he will capite nono fol. 19. b.
in the reuersion commeth in and prayeth to be receiued to defend the land and to plead with the Demandant Many more you may haue in Brooke titulo Resceite fol. 205. See Perkins Dower 448. â—eceit is also applied to an admittance of plee though the controuersie be but betweene two onely Brooke estoppell in many places Resceyt of homage is a relatiue to doing homage for as the Tenent who oweth homage doth it at his admission to the land so the Lord receiueth it Kitchin fol. 148. See Homage Rescous Rescussus commeth of the French Rescourre se Rescourre du danger i. asserere se ab iniuria It signifieth in our common law a resistance against a lawfull authoritie as for example if a Baylife or other officer vpon a writ doe arrest a man and another one or more by violence doe take him away or procure his escape this act is called a Rescus Cassanaeus in his booke de consuetud Burg. hath the same word coupled with resistentia fol. 294. whereby it appeareth that other nations do vse this word in the same signification that we doe or the very like It is also vsed for a writ which lyeth for this act called in our lawyers latine Breue de rescussu whereof you may see both the forme and vse in Fitzh nat br fol. 101. and the register originall fol 125. See the new booke of Entries verbo rescous This rescous in some cases is treason and in some felony Crompton Iustice fol 54. b. Reseiser reseisire is a taking againe of lands into the Kings hands whereof a generall liuery or ouster le main was formerly missued by any person or persons and not according to forme and order of law Of this see Stawnf praeroga 26. where it is handled at large See resumption Resiance resiantia seemeth to come of the French rasseoir see Rasseoir i. residere and signifieth a mans aboad or continuance in a place Old nat br fo 85. whence also commeth the participle resiant that is continually dwelling or abiding in a place Kitchin fol. 33. It is all one in truth with Residence but that custome of speach tyeth that onely to persons ecclesiasticall Reseruation signifieth that rent or seruice which the graunter in any graunt tyeth the grauntee to performe vnto him or them or the Lord Paramonte Perkins reseruations per totum Residence residentia commeth of the Latine residere and is peculiarly vsed both in the Canon and Common lawe for the continuance or abode of a Parson or Vicar vpon his benefice The default whereof except the partie be qualified and dispenced with is the losse of tenne pounds for euery moneth anno 28. Henr. 8. cap. 13. Resignation resignatio is vsed particularly for the giuing vp of a Benefice into the hands of the Ordinarie otherwise called of the Canonists renunciatio And though it signifie all one in nature with the word Surrender yet it is by vse more restreined to the yeelding vp of a spirituall liuing into the hands of the Ordinarie and Surrender to the giuing vp of temporall lands into the handes of the Lord. And a resignation may now be made into the hands of the King as well as of the Diocesan because he hath supremam authoritatem Ecclesiasticam as the Pope had in time past Plowden casu Grendon fol. 498. a. Resort is a word vsed properly in a writ of ayle or cousenage as discent is in a writ of right Ingham Respectu computi Vice-comitis habendo is a writ for the respiting of a Shyreeues accompt vpon iust occasion directed to the Treasurer and Barons of the Exchequer Register fol. 139 279. Respight of homage respectus homagii is the forbearing of homage which ought first of all to be performed by the tenent that holdeth by homage Which respight may be occasioned vpon diuers good reasons but it hath the most frequent vse in such as hold by Knights seruice in capite who because the Prince cannot be at leasure to take their homage do pay into the Exchequer at certaine times in the yeare some small summe of money to be respighted vntill the Prince may be at leasure to take it in person Responsions responsiones seeme to be a word vsed properly and especially by the knights of S. Iohn of Ierusaiem for certaine accompts made vnto them by such as occupied their landes or stockes anno 32. H. 8. cap. 24. Responsalis is he that commeth for another at the day assigned for his appearance in Court Bracton Fleta seemeth to make a difference betweene atturn atum essoniatorem responsalem lib. 6. cap. 11. § Officium as if essoniator came onely to alledge the cause of the parties absence be he the demandant or tenent and responsalis came for the tenent not onely to excuse his absence but also to signifie what triall he meant to vndergoe viz. the combat or the countrie lib. 6. cap. 11. § Si autem A man in auncient time could not appoint an Atturney for him without warrant from the king Fleta eodem cap. 13. in fine See Atturney This word is vsed in the Canon lawe Et significat procuratorem vel eum qui absentem excusat cap. Cùm olim propter extra de rescript Restitution restitutio is a yeelding vp againe of any thing vnlawfully taken from another It is vsed in the common law most notoriously for the setting him in possession of lands or tenements that hath bene vnlawfully disseised of them which when it is to be done and when not see Cromptons Iustice of peace fol. 144. b. c. vsque 149. Restitutione extracti ab Ecclesia is a writ to restore a man to the Church which he had recouered for his sanctuarie being suspected of felonie Register ori fol. 69. a. Restitutione temporalium is a writ that lyeth in case where a man being elected and confirmed Bishop of any Diocesse and hath the Princes royall assent thereunto for the recouery of the temporalities or Baronie of the said Bishopricke with the appurtenances And it is directed from the King to the Escheatour of the Countie the forme whereof you haue in the Regist origin fol. 294. and in Fitz. nat br fol. 169. Where you may read also that it lyeth for those Abbots and Priors newly elected and confirmed that were of the kings foundation Resummons resummonitio is compounded twice that is of re sub and Moneo and signifieth a second summons and calling of a man to answer an action where the first summons is defeated by any occasion as the death of the partie or such like Brook tit See Resummons fol. 214. See of these foure sorts according to the foure diuers cases in the Table of the Register Iudiciall fol. 1. See also the new booke of Entries verbo Reattachement Resummons Resumption resumptio is particularly vsed for the taking again into the Kings hands such land or tenements as before vpon false suggestion or other error he had deliuered to the heire or graunted by leters
businesse See Association And Fitz. nat br fol. 185. 111. C. and Register origin fol. 202. 206. 124. Si recognoscant is a writ that lyeth for a Creditour against his depter for money numbred that hath before the shyreeue in the Countie court acknowledged himselfe to owe vnto his creditor such a summe receiued of him in numeratis pecunits The forme of the writ is this Rex Vicecomiti salutem Praec tibi quod si A. recognoscat se debere R. 40. solid fine vlteriori dilatione tunc ipsum distringas ad praedictum debitum eidem R. sine dilatione reddendum Teste c. Old nat br fol. 68. Skawe anno 4. Ed. 4. cap. 1. Skyvinage anno 27. H. 6. cap. 2. a proper name signifying the precincts of Caleis Sluse exclusa is a frame to keepe or let water out of a grounde Soc Soca is a word signifiing a power or libertie of Iurisdiction as appeareth by these words out of Bracton Sunt quidam Barones alii libertatem habentes sc soc sac Tol Thean Infangthefe Vtfangthefe isti possunt iudicare in Curia sua eum qui inuentus fuerit iufra libertatem suam seisitus de aliquo latrocinio manifesto li. 3. tractat 2. cap. 8. In the lawes of King Edward set out by M. Lamberd fol. 132. you haue these words Socha est quod si aliquis quarit aliquid in terra sua etiam furtum sua est Iusticia si inuentum fuerit an non Saxon in the description of Britany cap. 11. saith that Sock is a suite of Court and that thereof commeth Soken But the signification of the word as I haue bene credibly informed is as much as Inquisitio which we in moderne English terme seeking Of this Sok Skene de verborum signifie speaketh to this effect Sok is an ould word vsed in Charters and feofments which in sundry old bookes conteining the municipiall law of this Realme is called Secta de hominibus suis in curia secundum consuetudinem Regni So after my opinion he that is infeoffed with Sck. which now we call Soit but we in England Suite hath power to hould courts within his owne Baronie in which homines sui should giue Soyt Thus farre M. Skene Of this Fleta hath these words In huiusmodi verò maneriis speaking of the Kings maners erant olim liberi homines liberè tenentes quorum quidam cum per potentiores è tenementis suis eiecti fuerant eadem postmodum in villenagium tenenda resumpserūt quia huiusmodi tenentes cultores Regis esse dinoscuntur eis provisa fuit quies ne sectas facerent ad comitatus vel hundredōs vel ad aliquas inquisitiones assisas vel iuratas nisi in manerio tantùm dum tamen pro terra quorum congregationem tunc socam appellarunt hinc est quòd Socmanni hodie dicuntur esse A soco enim deriuantur quorum tonementa sunt villenagium domini privilegiatum ideo dicuntur glebae ascriptitii eo quòd ab huiusmodi glebis amoueri non deberent quam diu soluerent debitas pensiones nec compelli poterunt ad buiusmodi tenementa tenenda contra suas voluntates eo quòd corpora sua sunt libera Nec obstabit longa seruitutis possessio ad libertatē extinguendam quamuis ad merchetum sanguinis sui compulsus fuerit quis pro tenemento reddendo Nulla enim servitus ratione praescriptionis temporis potest liberum sanguinē in seruitute reducere non magis quam liberum tenementum potest servum in libertatem c. By whose words it appeareth that Soca is nothing else but the meeting or assembly of these kinde of tenents in any place within the maner or libertie wherefore he that hath soc may seeme to haue such a maner such tenents and such a libertie belonging to his maner and tenents as is here described Here you see diuersities of opinions touching this word one saying that it is a power or libertie to seeke after theeues stollen goods within a maner or fee and to doe iustice vpon such inquisition others that it is a libertie onely to haue suiters to his court other as Fleta that it conteineth both the former significations and furder that it is taken for the company of tenents which liue within such a liberty and are exempled from those common seruices of the Prince and country wherunto subiects are ordinarily tied This kinde of liberty is in diuers places at this day in England and commonly knowne by the name of soke or soken See Soke and Sockmans Soccage soccagium commeth of the French Soc. i. vomer a plowshare or coulter It signifieth in our common lawe a tenure of lands by or for certaine inferiour or husbandly seruices to be performed to the Lord of the fee. See Instituts of common lawe 31. As I haue shewed in Chivalrie all seruices due for land is either knights seruice or socage So then whatsoeuer is not knights seruice is soceage Bracton in his 2. booke cap. 35. num primo describeth it thus Dici poterit soccagium à Socco inde tenentes qui tenent in Sockagio Sockmanni dici poterunt eo quòd deputati sunt vt videtur tantummodo ad cultur am quorum custodia maritagia ad propinquiores parentes iure san guinis pertinebit Et si aliquando inde de facto capiatur homagium quòd pluries contingit non tamen habebit propter hoc Dominus capitalis custodiam maritagium Quia non semper sequitur homagium licet aliquando sequatur M. Skene de verborum significatione verb. Sockmanria saith that Sockage is a kinde of holding of lands when a man is infeoffed freely without any seruice ward reliefe or mariage and paieth to his Lord such dutie as is called petit sergeantie or when one holdeth land in the name of burgage or in libera elemozina or otherwise in blenche ferme siue nomine albae firmae opponitur militi qui tenet per seruitium militare Out of the place aboue named in Bracton you may finde a diuision of Soccage wherby it is termed either Soccagium liberum or villanum frank or free Soccage and base otherwise called villenage The former is there thus defined Soccagium liberum est vbi fit seruitium in denariis Dominis capitalibus nihil inde omnino datur ad scutum seruitium Regis Where I gather that to be free soccage which paieth a certaine summe of money to the chiefe Lord in regard of some tillage or such like and not of any Sergeantie or eschuage And to this effect he writeth also lib. 2. cap. 16. nu 9. c. vnde si tantum in denariis sine scut agio vel seriantiis vel si ad duo teneatur sub disiunctione sc ad certam rem dandam pro omni seruitio vel aliquam summam in denariis id tenementum potest dici Soccagium si autem superaddas
for so as the partie who in equitie hath wrong can haue none ordinary remedie by the rules and course of the common lawe West part 2. symbol titulo Proceedings in Chauncerie sect 18. where you may reade many examples of such cases as sub poena lyeth in There is also a sub poena ad testificandum which lyeth for the calling in of witnesses to testifie in a cause as well in Chauncerie as in orher courts And the name of both these proceede from words in the writ which charge the partie called to appeare at the day and place assigned sub poena centum librarum c. I find mention of a common sub poena in Cromptons Iurisdict fol. 33. which signifieth nothing else but such a sub poena as euery common person is called by into the Chauncerie whereas any Lord of Parlament is called by the Lord Chauncelers leters giuing him notice of the suit intended against him and requiring him to appeare Crompton eodem Subsidie subsidium commeth of the French subside signifying a taxe or tribute assessed by Parlament and graunted by the commons to be leuied of euery subiect according to the value of his lands or goods after the rate of 4. shillings in the pound for land and 2. shillings 8. pence for goods as it is most commonly vsed at this day Some hold opinion that this subsidie is graunted by the subiect to the Prince in recompence or consideration that whereas the Prince of his absolute power might make lawes of himselfe he doth of fauour admit the consent of his subiects therein that all things in their owne confession may be done with the greater indifferencie The maner of assessing euery mans lands or goods is this first there issueth a Commission out of the Chauncerie to some men of honour or worship in euery Countie by vertue thereof to call vnto them the head Constables or Bayliffes of euery Hundred and by them the Constable and three or foure of the substantiallest housholders in euery towne within their hundred at a day certaine which men so called or so many of them as the Commissioners thinke good to vse do rate the inhabitants of their owne towne in such reasonable maner as they find meete yet by the discretion of the said Commissioners And then euery man after his value set downe must at his time pay to the Collectour appointed after the rate aforesaid Yet in auncient time these subsidies seeme to haue beene graunted both for other causes as in respect of the Kings great trauell and expences in warres or his great fauours toward his subiects as also in other maner then now they be as euery ninth Lambe euery ninth fleece and euery ninth sheafe anno 14. Ed. 3. stat prins cap. 20. And of these you may see great varietie in Rastals Abridgement tit Taxes Tenths Fifteenths Subsidies c. whence you may gather that there is no certaine rate but euen as the two houses shall thinke good to conclude Subsidie is in the statute of the land fometime confounded with custome anno 11. H. 4. cap. 7. See Beneuolence Suretie of peace securitas pacis is an acknowledging of a bond to the Prince taken by a competent Iudge of Record for the keeping of the peace Lamberds Eirenarcha li. 2. cap. 2. pag. 77. This peace may a Iustice of peace commaund either as a Minister when he is willed so to doe by a higher authoritie or as a Iudge when he doth it of his owne power deriued from his commission Of both these see Lamberd Eirenarcha lib. 2. ca. 2. pag. 77. see Peace see Supplicauit Suffragan Suffraganeus is a titular Bishop ordeined and assisted to aide the Bishop of the Dioces in his spirituall function c. Suffraganeus Extra de electione For the Etimology Suffraganes dicuntur quia eorum suffragiis causae ecclesiasticae iudicantur Ioach. Stephanus de Iurisd li. 4. ca. 16. nu 14. It was inacted anno 26. H. 8. ca. 14. that it should be lawfull to every Diocesan at his pleasure to elect two sufficient men within his Dioces and to present them to the King that he might giue the one of them such title stile name and dignity of sease in the saide statut specified as he should think conuenient Suyte Secta commeth of the French Suite i. affectatio consecutio sequela comitatus It signifieth in our common law a following of another but in diuers senses the first is a suite in lawe and is diuided into suite reall and personall Kitchin fol. 74. which is all one with action reall and personal Then is there suite of Court or suite seruice that is an attendance which a tenent oweth at the court of his Lord. Fitzh nat br in Indice verbo Suite suyte seruice and suyte reall anno 7. H. 7. cap. 2. The newe expositour of lawe Termes maketh mention of foure sorts of suites in this signification Suite couenant suite custom suite reall and suite seruice Suite couenant he defineth to be when your auncester hath couenanted with mine auncester to siew to the court of mine auncesters Suite custome when I and mine auncesters haue beene seised of your owne and your auncesters suite time out of minde c. Suite reall when men come to the Shyreeues Turne or Leete to which court all men are cōpelled to come to knowe the lawes so that they may not be ignorant of things declared there how they ought to be gouerned And it is called reall because of their allegance And this appeareth by common exeperience when one is sworne his oath is that he shall be a loyall and faithfull man to the King And this suite is not for the land that he holdeth within the Countie but by reason of his person and his aboade there and ought to be done twice a yeare for default whereof he shall be amerced and not distreined I thinke this should be called rather regall or royall because it is performed to the King for royall The French word in the vsuall pronuntiation commeth neere to reall the leter o being almost suppressed see Leete Suyte seruice is to siew to the Shyreeues Turn or Leete or to the Lords court from three weekes to three weekes by the whole yeare And for default thereof a man shall be distreined and not amercied And this suite seruice is by reason of the tenure of a mans land Then doth suite signifie the following of one in chace as fresh suite West 1. c. 46. a. 3. Ed. 1. Lastly it signifieth a petition made to the prince or great personage Suyte of the Kings peace secta pacis Regis anno 6. R. 2. stat 2. ca. pri anno 21. eiusdem cap. 15. anno 5. H. 4. cap. 15. is the persiewing of a man for breach of the K. peace by treasons insurrectiōs rebelliōs or trespasses Summoneas is a writ Iudiciall of great diuersitie according to the diuers cases wherein it is vsed which see in the table of the Register Iudiciall Summoner summonitor
Idem eodem Tenent vpon sufferance Idem fol. 165. Tenent of state of inheritance Stawnf praerog fol. 6. Sometime they containe a relation toward the Lord of whom he houldeth as Tenent in cheife i. he that houldeth of the King in the right of his crowne Fitz. nat br fol. 5. F. Tenent of the King as of the person of the King Idem eodem or as of some honour eodem Very tenent i. he that houldeth immediately of his Lord. Kitchin fol. 99. For if there be Lord Mesn and Tenent the Tenent is very Tenent to the mesn but not to the Lord aboue Tenent parauaile pl. cor fo 197. Fitzh nat br fol. 136. D. is the lowest tenent and fardest distant from the Lord Paramont It seemeth to be tenent per auaile See Diers commentaries fol. 25. nu 156. Noe tenent in right to the Lord but Tenent as for the avowrie to be made Litleton fol. 96. Sometime they haue a relation betweene Tenents and Tenents in seuerall kindes as ioynt tenents i. they that haue equall right in lands and tenements and all by vertue of one title Litleton li. 3. ca. 3. Tenents in common be they that haue equall right but hold by diuers titles as one or more by gift or descent and others by purchase Idem eod cap. 4. Particular tenent Stawnf praerog fol. 13. that is he which holdeth onely for his terme as tenent in dower tenent by the courtesie or otherwise for life West parte 2. symbol titulo Fines sect 13. G. See anno 32. H. 8. ca. 31. and Cooke in Sir William Pellams case lib. 5. fol. 15. a. they be termours for yeares or life See Plowden casu Colthirst fol. 23. b. Sole tenent Kitchin 134. i. he that hath none other ioyned with him If a man and his wife hold for both their liues and the man dyeth he dieth not sole tenent Idem eodem Seuerall tenent is opposite to ioynt tenents or tenents in common See Seuerall tenencie Tenent al praecipe is he against whom the writ Fraecipe is to be brought Cookes Reports lib. 3. the case of fines fol. 88. a. Tenent in demesn anno 13. Ed. 1. cap. 9. anno 32. H. 8. cap. 37. is he that holdeth the demeanes of a maner for a rent without seruice Tenent in feruice an 20. Ed. 1. stat pri is he that holdeth by seruice v. Britton cap. 79. in principie ca. 96. Car fealte c. vel quaere whether he may be termed tenent in demesne that holdeth some of the Demeanes howsoeuer and he tenent in seruice which is a freehoulder to a maner houlding by seruice for the free houlds of a manner are not accounted of the demesne but onely that which the Lord keepeth in his owne hand or letteth out by copie according to the custome of the maner Tenent by execution an 32. Henr. 8. cap. 5. is he that holdeth land by vertue of an exeution vpon any statute recognisance c. Tendeheved decanus vel caput decem familiarum of this see Roger Hoveden parte poster suorum annalium fol. 346. a. See Frank pledge Tenement Tenementum is diuersly vsed in the common lawe Most properly it signifieth a house or home stall but in a larger signification it is taken for either house or land that a man holdeth of another And ioyned with the adiectiue Frank in our lawyers French it conteineth generally lands or houses yea or offices wherein we haue estate for terme of life or in fee. And in this signification Kitchin fol. 41. maketh frank tenement and base estate opposite the one to the other In the same sort doth Britton vse it through his whole 27. chapter as also Bracton doeth the latine liberum tenentum lib. pri cap. 5. 6. and many other places Tenentibus in assisa non onerandis c. is a writ that lieth for him to whome a disseisour hath alienated the land whereof he disseised another that he be not molested for the dammages awarded if the Disseisour haue wherewith to satisfie them him selfe Register orig fol. 214. b. Tenths Decimae is that yearely portion or tribute which all liuings ecclesiasticall doe yeeld to the king For though the Bishop of Rome doe originally pretend right vnto this revenewe by example of the high preist among the Iewes who had tenths from the Levites Numb cap. 8. Hieronimus in Ezechielem yet Iread in our Chronicles that these were often graunted to the King by the Pope vpon diuers occasions sometime for one yeare sometime for more vntill by the statute anno 26. Hen. 8. cap. 3. they were annexed perpetually to the Crown See Disms It signifieth also a taske leuied of the temporalty Holinshed H. 2. f. 111. Tenore indictamenti mittendo is a writ whereby the Record of an indictment and the proces thereupon is called out of another court into the chauncerie Register orig fol. 169. a. Tenure Tenura commeth of the Norman Teneure as appeareth by the Grand Custumarie cap. 28. where it is defined to this effect Tenure is the maner whereby tenements are houlden of their Lords What may make a tenure and what not see Perkins Reseruations 70. And in that chapter shall you finde the most of those tenures recited that be now vsually in England In Scotland I finde that there be foure maner of tenures which they call halding of land the first is pura eleemozina which is proper to spirituall men paying nothing for it but deuot a animarum suffragia the second they call Few or few ferme which houldeth of the King Church Barons or others paying a certaine duty called Feudi firma The third is a hould in Blench as they terme it by payment of a peny rose paire of guilt spurs or some such like thing if it be asked in name of Blench id est nomine albae firmae The fourth is by seruice of ward and relieue where the heire being minor is in the gard or custody of his Lord togither with his lands c. And land houlden in this fourth maner is called there feudum de Hauberk or Haubert or feudum militare or feudum Hauberticum or feudum loricatum because it is giuen vpon condition that the vassall possessor therof shall come to the host with a lack or Haubert which is a coate of maile M. Skene de verb significa verbo Haubert Tenure in grosse is the Tenure in Capite For the Crowne is called a Seignory in grosse because it consisteth as a corporation of and by it selfe not tyed to any honour or maner See Cromptons Iurisd fol 206. See the new booke of Entries verbo Tenure Term Terminus signifieth with vs commonly the bounds and limitation of time as a lease for terme of life or terme of yeares Bracton lib. 2. cap. 6. nu 4. But most notoriously it is vsed for that time wherein the Tribunals or places of Iudgement are open to all that list to complaime of wrong or to seeke their right by course of law or
from A. to C. Warranty collaterall is that wherevnto he is called by the tenent vpon the couenant of him from whome the land could not descend to the party called For example B. the sonne pourchaseth tenements in fee whereof A. his father disseiseth him and selleth them to C. with a clause of warranty A being deade C. is impleaded for the tenements and calleth B. to warranty This warranty wherevnto B. is caled is collaterall by cause the tenements if the warrnty had not beene couenanted by A. could not haue descended from him to his father A. for they were his owne by Pourchase Many other exaÌ„ples there be of this in Litleton And this very case he maketh his example of warranty by disseisin as also of warranty collaterall which plainly argueth that warranty by disseisin and warranty collaterall are not distinct members of warranty but may be confounded though one warranty may cary both names in diuers respects For there is some warranty collaterall that beginneth not by disseisin For example A. tenent in taile alienateth to B. in fee and dieth leauing issue C. Afterward D. brother to A. and vncle to C. releaseth to B. with warranty and dying leaueth C. his heire being next of blood vnto him This warranty is collaterall because it descendeth vpon C. from his vncle D. and yet it beginneth not by desseisin of his said vncle Warranty hath a double effect one to debarre him vpoÌ„ whome it discendeth from the first warranter as his next of blood from claiming the land warranted and another to make it good to the tenent if by him he be vouched thereunto or els to giue him as much other land by exchange But as the former of these effects taketh place with all heires except those to whome the land warranted was intailed and that reape no equiualent benefit by the first warranter anno 6. Ed. pri ca. 3. soe the latter preiudiceth none that receiueth not sufficient land from the first warranter to make it good Bracton lib. 5. tractat 4. ca. 8. nu pri cap. 13. nu 2. In the custumaric of Norm ca. 5. you haue vouchement degarant which the Interpreter translateth Vocamentum Garanti a voucher or calling of the wartanter into the court to make good his sale or gift Warantiadiei is a writ lying in case where a man hauing a day assigned personally to appeare in court to any action wherein he is siewed is in the meane time by commaundement imployed in the Kings seruice so that he cannot come at the day assigned This writ is directed to the Iustices to this end that they neither take nor record him in defaulte for that day Register originall fol. 18. Of this you may read more in Fitzh nat br fol. 17. and see Glanuile lib. pri ca. 8. Warantia chartae is a writ that lieth properly for him who is infeoffed in land or tenements with clause of warranty and is impleaded in an Assise or writ of Entrie wherein he cannot vouche or call to warranty for in this case his remedy is to take out this writ against the seoffour or his heire Register orig fol. 157. Fitzh nat br fol. 134 Of this you may likewise reade Fleta lib. 6. ca. 35. and West parte 2. simb titulo Fines sect 156. Warrantia custodia is a writ Iudiciall that lyeth for him that is challenged to be ward vnto another in respect of land said to be houlden in Knights seruice which when it was bought by the auncesters of the ward was warranted to be free from such thraldome And it lieth against the warranter and his heires Register Iudiciall fol. 36. Warrant of Atturney See Leter of Atturney and Waranty Wardwite significat quietantiam misericordia in casu quo non invenerit quis hominem ad wardam faciendam in castra vel alibi Flet a lib. 1. cap. 47. Warren Warrenna aliâs varrenna commeth of the French Garrenne 1. vivarium vel locus in quo vel aves vel pisces vel ferae continentur quae ad victum diâ—ntaxat pertinent Calapine out of Aulus Gellius lib. 2. Noct. Attica cap. 20. A warren as we vse it is a prescription or graunte from the king to a man of hauing fesants partridges connies and hares within certaine of his lands Cromptons Iurisdict fol. 148. where he saith that none can haue warren but onely the King no more then Forest or chase Because it is a speciall priuiledge belonging to the King alone And a little after he hath words to this effect The king may graunt warren to me in mine owne lands for fesants and partridges onely And by this graunt no man may there chase them without my licence And so of Hares but not of Connies For their property is to destroy the 〈◊〉 of the 〈◊〉 as to eate corne and pille the barke of apple trees M. Manwood in his first part of Forest lawes saith thus of it A warren is a fraunchise or priuiledged place of pleasure onely for those beasts and foules that are beasts and foules of warren tantùm campestres non syluestres viz. For such beasts and foules as are altogether belonging to the feilds and not vnto the woods and for none other beasts or foules There are but two beasts of warren that is to say Hares and Connies and there are also but two foules of warren viz. Fesants and partridges And none other wild beasts or birds haue any firme peace priuiledge or protection within the warren If any person be found to be an offender in any such free warren he is to be punished for the same by the course of the common law and by the statute auno 21. Ed. 3. called the statute de male factoribus in parcis chaceis c. For the most parte there are not officers in a warren but the master of the game or the keeper A free warren is some time in closed and also the same some time doth lie open for there is no necessity of inclosing the same as there is of a park for if a park be suffered to lie open it ought to be seised into the kings 〈…〉 Manwood Warscot is the contribution that was wont to be made towards armour in the Saxons time In Canutus his charter of the Forest set out by M. Manwood in the first part of his Forest lawes num 9. you haue these wordes Sint omnes tam primarii quà m mediocres minuti immunes liberi quietiab omnibus prouincialibus summonitionibus popularibus placitis quae Hundred laghe Angli dicunt ab omnibus armorum oncribus quod Warscot Angli dicunt forinsecis querelis VVarwit aliâs VVardwit is to be quite of giuing money for keeping of watches New exposition of lawe termes VVaste vastum commeth of the French gaster i. populari It signifieth diuersly in our common lawe first a spoile made either in houses woods gardens orchards c. by the tenent for terme of life or for terme of anothers life