say what he can for the iustifiing of his right to this land before he so conveied it The third man commeth not wherevpon the land is recouered by him that brought the writ and the tenent of the land is left for his remedie to the third man that was called and came not in to defend the tenent And by this meanes the entayle which was made by the tenent or his auncester is cut of by iudgement herevpon giuen for that he is pretended to haue no power to entaile that land wherevnto he had no iust title as now it appeareth because it is evicted or recouered from him This kinde of recouery is by good opinion but a snare to deceiue the people Doctor Stud. ca. 32. dial pri fol. 56. a. This feigned Recouery is also called a common Recouery And the reason of that Epitheton is because it is a beaten and common path to that end for which it is ordeined viz. to cut of the estates aboue specified See the new booke of Entries verbo Recouery I saide before that a true recouery is as well of the value as of the thing for the beter vnderstanding whereof know that In valew signifieth as much as Illud quod interest with the Ciuilians For example if a man buy land of an other with warranty which land a third person afterward by suite of lawe recouereth against me I haue my remedie against him that sould it me to recouer in value that is to recouer so much in mony as the land is worth or so much other land by way of exchaunge Fitzh nat br fol. 134. K. To recouer a warranty old nat br fol. 146. is to proue by iudgement that a man was his warrant against all men for such a thing Recto is a writ called in English a writ of Right which is of so high a nature that whereas other writs in reall actions be onely to recouer the possession of the land or tenements in question which haue beene lost by our auncester or our selues this aimeth to recouer both the seisin which some of our Auncesters or wee had and also the propertie of the thing whereof our Auncester died not seised as of fee and whereby are pleaded and tried both the rights togither viz. as well of possession as property Insomuch as if a man once loose his cause vpon this writ either by Iudgement by Assise or batell he is without all remedie and shall be excluded per exceptionem Rei iudicatae Bracton lib. 5. tract 1. cap. 1. seqq where you may reade your fille of this writ It is diuided into two species Rectumpatens a writ of right patent and Rectum clausum a writ of right close This the Ciuilians call Iudicium petitorium The writ of right patent is so called because it is sent open and is in nature the highest writ of all other lying alwaies for him that hath fee simple in the lands or tenements siewed for and not for any other And when it lieth for him that chalengeth fee simple or in what cases See Fitzh nat br fol. pri C. whome see also fol. 6. of a speciall writ of right in London otherwise called a writ of right according to the Custome of London This writ is also called Breue magnum de Recto Register originall fol. 9 A. B. and Fleta li. 5. cap. 32. § 1. A writ of right close is a writ directed to a Lord of auncient Demesn and lieth for those which hould their lands and tenements by charter in fee simple or in fee taile or for terme of life or in dower if they be eiected out of such lands c. or disseised In this case a man or his heire may siew out this writ of Right close directed to the L. of the Auncient Demesn commanding him to doe him right c. in his court This is also called a small writ of right Breve parvum Register originall fol. 9. a. b. and Britton cap. 120. in fine Of this see Fitzh likewise at large nat br fol. 11. seqq Yet note that the writ of right patent seemeth farder to be extended in vse then the originall inuention serued for a writ of Right of Dower which lieth for the tenent in Dower and onely for terme of life is patent as appeareth by Fitzh nat br fol. 7. E. The like may be said of diuers others that doe hereafter followe Of these see also the table of the originall Register verbo Recto This writ is properly tried in the Lords court betweene kindsmen that claime by one title from their Auncester But how it may be thence remoued and brought either to the Countie or to the kings court see Fleta lib. 6. cap. 3. 4. 5. Glanvile seemeth to make euery writ whereby a man sieweth for any thing due vnto him a writ of right lib. 10. ca. 1 lib. 11. cap. 1. lib. 12. cap. 1. Recto de dote is a writ of Right of Dower which lieth for a woman that hath receiued part of her Dower and purposeth to demaund the Remanent in the same towne against the heire or his Gardian if he be ward Of this see more in the old nat br fol. 5. and Fitzh fol. 7. E. and the Register originall fol. 3. and the newe booke of Entries verbo Droyt Recto de dote vnde nihil habet is a writ of right which lieth in case where the husband hauing diuers lands or tenements hath assured no dower to his wife and she thereby is driuen to siew for her thirds against the heire or his Gardian old nat by folio 6. Register originall fol. 170. Recto de rationabili parte is a writ that lieth alway beweene priuies of bloud as brothers in Gauel-kind or sisters or other Coparceners as Nephewes or Neeces and for land in Fee simple For example if a man lease his land for tearme of life and afterward dyeth leauing issue two daughters and after that the tenent for terme of life likewise dyeth the one sister entring vpon all the land and so deforcing the other the sister so deforced shall haue this writ to recouer her part Fitz. nat br fo 9. Register origin fol. 3. Recto quando Dominus remisit is a writ of right which lyeth in case where lands or tenements that be in the Seigneurie of any Lord are in demaund by a writ of right For if the Lord hold no Court or otherwise at the prayer of the Demandant or Tenent shall send to the Court of the King his writ to put the cause thither for that time sauing to him another time the right of his Seigneurie then this writ issueth out for the other partie and hath this name from the words therein comprised being the true occasion thereof This writ is close and must be returned before the Iustices of the common Bancke old nat br fol. 16. Regist orig fol. 4. Recto de Advocatia Ecclesiae is a writ of right lying where a man hath right of Advouzen and
assignatos suos eorum haeredes omnes alios secundum quod supradictum est si fortè tenementum datum petatur ab antiquo in Dominico Per hoc autem quòd dicit acquiet abimus obligat se haeredes suos ad acquietandum si quis plus petierit seruitis vel aliud seruitium quam in charta donationis continetur per hoc autem quòd dicit Defendemus obligat se haeredes suos ad Defendendum si quis velit seruitutem ponere rei datae contra formam suae donationis c. But the new expounder of law terms saith that this warranty beginneth two waies one by deede of law as if one and his auncesters haue held land of another and his auncesters time out of minde byhomage which is called Homage auncestrell for in this case the homage cōtinually performed by the tenent is sufficient to bind the Lord to warrant his estate The other is by deede of the party which by deede or fine tyeth himselfe to warrant the land or tenement to the tenent And Sir Ed Cooke in the fourth booke of his reports mentioneth the same distinction Nokes case fo 81. a. calling the one a warranty in law the other an expresse warranty Ciuilians would call these species tacitam expressam Warranty as the said author of the terms of law saith is in two maners warranty lineall and warranty collaterall But Litleton saith vbi supra it is threefold warranty lineall warranty collaterall and warranty that beginneth by disseisin Warranty by disseisin what it is is partly declared in Sir Ed. Cookes reports li. 3. Fermors case fol. 78. a. Whether of them deuideth more aptly let the learned iudge For my part I thinke that lineall and collaterall be no essentiall disserences of warranty as it is originally considered in the first warranter For he bindeth himselfe and his heires in generall And such be bound be they lineall or collaterall vnto him Therefore this diuision riseth rather from the euent of the originall warranty videlicet because it so falleth out that the tenent to whom the warranty was made or his heires when he or they be called into question for the land warranted formerly by the first feoffour is driuen by the meanes of the first warranters death to cal or vouch him to waranty that is his heire and now presently liuing be he descending or collaterall as it falleth out For example A. infeoffeth B. in twenty acres land with clause of warranty against all men So long as A. himselfe liueth he is liable to this couenant and none els after his discease his heire is subiect vnto it be he his sonne brother vncle or what els And whether of these or neither of these it will be none knoweth vntill he be dead Wherefore I conclude that this distinction of lineall or collaterall hath no vse originally in this contract For as the author of the terms of law saith the burden of this warranty after the death of the first warranter falleth vpon him vpon whom the land should haue descended if the warranty had not bene made And that is the next of blood to the warranter be he in the defcending or collaterall line And therefore I resolue that this distinction groweth from an euent after the death of him that couenanteth to warrant But to make this plaine I finde warranty to be vsed equiuocally signifiing in one sort the contract or couenant of warranty first made as appeareth by Bracton in the place formerly noted and in another sort the very effect and performance of this contract either by the warranter or his heires when he or they be by the tenent thereunto vouched or called As also I shew out of Bracton lib. 5. tract 4. ca. pri nu 2. in these words Imprimis videndum est quid sit warrantizatio Et sciendum quod warrantizare nihil aliud est quà m defendere acquietare tenentem qui warrantum vocabit in seisina sua c. With whom agreeth Fleta saying that warrantiz are nihil aliud est quam possidentem defendere li. 5. ca. 15. § 1. lib. 6. ca. 23. quod lege per totum And the former diuision of lineall and collaterall warranty rather belongeth to warranty in this second signification then the former And that this way it is imperfect or at the least obscure I thinke it not hard to declare First to shew this I note out of Bracton who may be called to warrantie And he lib. 5. tractat 4. cap. pri num 5. saith thus Videndum est quis vocari possit ad warrantum sciendum quod tam masculus quam foemina tam minor quà m maior dum tamen si minor vocetur remane at placitum de warantia in suspenso vsque ad aetatem nisi causa fuerit ita fauorabilis quòd aetas expectari non debeat sicut ex causa Dotis Item non solum vocandus est ad warantum ille qui dedit vel venddit verùm etiam vocandi sunt eorum haeredes descendentes in infinitum propter verba in Chartis contenta Ego haeredes mei warantizabimus tali haeredibus suis c. Et in quo casu tenentur haeredes warantizare sive sint propinqui sive remoti remotiores vel remotissimi Et quod de haeredibus dicitur idem dici poterit de assignatis de illis qui sunt loco illorum haeredū sicut sunt capitales Domini qui tenentibus suis quasi succedunt vel propter aliquem defectum vel propter aliquod delictum sicut de eschaetis Dominorum By which words we perceiue that the burden of this warrantie is not tyed to heires only be they in the descending or collaterall line but that vnder this word Haeredes are comprised all such as the first warranters lands afterward come vnto either by discent or otherwise ex causa lucratiua So that if a man haue 20 children yet if he will and may giue his land to a straūger leauing his childrē no land that straunger in this case is his assigne is conteined vnder this word heire So if he commit felonie after such warrantie covenanted and forfeit his lands to his Lord by escheate the Lord is quasi haeres in this case and lyable to the warrantie formerly passed And in these two later cases warranty in the secōd signification seemeth to be neither lineall nor collaterall at the least as Litleton and the other author haue defined or by examples expressed them But yet let vs define these two species as they be wherefore lineall warranty is that which he is called vnto by the tenent vpon whome the land warranted had descended if the warranty had not beene couenanted For example A selleth to B. 20. acres land with clause of warranty and afterward dieth leauing issue C. soone after B. is impleaded for this land by D. and voucheth C. This is called a lineall warranty because but for it the land had descended
both in his commentaries and disputations And no man may graunt that our king or Crowne oweth fealty to any superior but God onely Yet it may be said that land c. with vs is termed fee in two respects one as it belongeth to vs and our heires for ever and so may the Crowne land be called Fee the other as it holdeth of another which is and must be farre from our Crowne Britton ca. 32. defineth fee to this effect Fee is a right consisting in the person of the true heire or of some other that by iust title hath purchased it Fleta saith that Feudum est quod quis tenet ex quacunque causa sibi haeredibus suis siue sit tenementum siue reditus qui non proveniunt ex camera alio modo dicitur feudum sicut eius quifeoffat quod quis tenet ab alio sicut dicitur talis tenet de tali tot feuda per servitium militare li. 5. ca. 5. § Feudum autem And all that write de feudis doe hold that Feudatarius hath not an entire propertie in his fee Nay it is held by right learned men that these fees were at the first invention or creation of them either all or some of them temporarie and not perpetuall and hereditarie Iacobutius de Franchis in praeludio fend ca. 2. nu 133. The diuisions of fee in diuers respects are many and those though little knowne to vs in England yet better worthie to known then we commonly thinke But for our present purpose it is sufficient to diuide Fee into two sorts Fee absolute otherwise called simple and Fee conditionall otherwise termed fee tayle Fee simple Feudum simplex is that whereof we are seised in these generall words to vs and our heires for ever Fee tayle Feudum talliatum is that whereof we are seized to vs and our heires with limitation that is the heires of our body c. And fee taile is either generall or speciall Generall is where land is giuen to a man and the heires of his body The reason whereof is giuen by Litleton ca. 2. li. 1. because a man seised of land by such a gift if he marie one or more wiues and haue no issue by them and at the length marie another by whome he hath issue this issue shall inherit the land Fee taile speciall is that where a man and his wife be seised of lands to them and the heires of their two bodies The reason is likewise giuen by Litleton in the same place because in this case the wife dying without issue and he marying another by whome he hath issue this issue cannot inherit the land being specially giuen to such heires c. this Fee taile hath the originall from the statute of Westm 2. cap. 1. which was made anno 13. Ed. 1. yet see Bracton li. 2. ca. 5. nu 3. hiis verbis Item quaedam absoluta larga quaedam stricta coarctata sicut certis haeredibus to whome adde Plowden casu Willion fo 235. a. b. seqq for before that statute all land giuen to a man and his heires either generall or speciall was accompted in the nature of fee and therefore held to be so firmely in him to whome it was giuen that any limitation notwithstanding he might alienate and fell it at his pleasure much like that which the Civilians call Nudum praeceptum binding rather by way of counsell and aduice then compulsion or restrainte And this thing seeming vnreasonable to the wisedome of our realme because so a man meaning well to this or that posterity of himselfe or his freinds might be forthwith deceiued of his intention the said statute was made for redresse of this inconvenience wereby it is ordained that if a man giue lands in fee limiting the heires to whome it shall descend with a reversion to himselfe or his heires for default c. that the forme and true meaning of his gift shal be obserued Wherefore in what conscience our lawyers haue invented meanes so easily to cut off this forme of gift it is to be considered He that hath fee then holdeth of another by some dutie or other which is called seruice and of this seruice and the diuersitie thereof See Chivalrie and Seruice He that will learne from what fountaine these feuds or fees did first spring let him read Antonius Contius his first chapter de methodo feudorum where he shal receiue great light for his guide into so obscure a dungeon See Liege This word Fee is sometime vsed with vs for the compas or circuit of a Lordship or maner Bracton lib. 2. cap. 5. in these words In eadem villa de eodem feodo Thirdly it is vsed for a perpetuall right incorporeall as to haue the keeping of prisons in fee. old nat br fol. 41. Foster in fee eod fol 6. Rent granted in fee. eod fo 8 Shyreeue in fee. ann 28. Ed pri stat 3. ca. 8. Lastly fee signifieth a reward or ordinarie dutie that a man hath giuen him for the execution of his office or the performance of his industrie in his art or science as the lawyer or the phisitian is said to haue his fee when he hath the consideration of his paines taken the one with his client the other with his patient Fee expectant is by the feudists termed feudum expectativum or expectatiua substantiuely vsed Mathaeus de Afflictis decis 292. nu 2. pag. 417. See expectant Fee fcrm feudi firma is a compound of Fee whereof see Fee and ferm i. coloma villa praedium rusticum of Ferme commeth Fermier du prince i. manceps redemptor publicorum vectigalium Publicanus Feeferm signifieth in our common lawe land held of another in fee that is in perpetuitie to himselfe and his heires for so much yearely rent as it is reasonably worth more or lesse so it be the fourth part of the worth old tenurcs See exposition of the statute of Glocester anno 6. Ed. pri without homage fealtie or other seruices other then be especially comprised in the feofment but by Fitzh it seemeth that the third part of the value may be appointed for the rent or the finding of a chaplaine to sing diuine seruice c. nat br fol. 210. C. And the nature of it is this that if the rent be behind and vnpaid for the space of two yeares then the feoffour or his heires haue action to recouer the lands as their demesnes Britton ca. 66. nu 4. but obserue out of West symbol parte 1. lib. 2. sect 463. that the feofment may containe seruices and suite of court as well as rent and the author of the new terms of law saith that Feeferm oweth fealtie though not expressed in the feofment for that fealtie belongeth to all kind of tenures This is neere the nature of that which among the Civilians is called ager vectigalis qui in perpetuum licetur i. hac lege vt quam diu pro eo
sale conduct them back againe And therfore in those forests that haue no pouralleeses there be no Rawngers but Foristers serue the turne This Raunger is made and appointed by the King his leters patents vnder the great seale and for his beter incouragement in his dutie he hath a yearely fee of 20. pound or 30. pound paid out of the Exchequer and certaine fee Deere both redde and falow His office consisteth cheifely in these three points ad perambulandum quotidie per terras deafforestatas ad videndum audiendum inquirendum tam de malefactis quà m de malefactoribus in Balliua sua ad refugandum feras Forestae tam veneris quà m chaseae de terris deafforestatis in terras afforestatas and ad praesentandū omnes transgressiones Forestae in terris deafforestatis factas ad proximas curias illius Forestae tentas Rawnsom See Ransom Ray seemeth to be a word attributed to cloth neuer coloured or died v. anno 11. H. 4. cap. 6. Realtie See Royaltie Reasonable ayde Rationabile auxilium is a duty that the Lord of the fee claimeth holding by Knights seruice or in soccage to marie his daughter or to make his sonne Knight Westm 1. cap. 39. See Ayde See Brooke titulo Reasonable aide Reattachement Reattachiamentum is a second attachement of him that was formerly attached and dismissed the court without day as by the not cōming of the Iustices or some such like casualtie Brooke tit Reattachment where he maketh a Reattachment generall and a Reattachment speciall Reattachment general seemeth to be where a man is reattached for his appearance vpon all writs of Assise lying against him Brooke eodem nu 14. Then speciall must be for one or more certaine Register Iudiciall fol. 35. See the newe booke of Entrise verbo Reattachment Rebellion Rebellio is a French word signifiing the taking vp of armes against the King or present estate This French commeth from the Latine Rebellio which signifieth a second resistance of such as being formerly ouercome in battaile by the Romanes yeelded themselues to their subiection The French men and we vse it generally for the traiterous taking vp of armes against the estate be it by naturall subiects or by others formerly subdued Reade more of this lib. 3. feudorum cap. 61. and Hotoman vpon the same chapter See the writ of Rebellion Rebell is sometime attributed to him that wilfully breaketh a lawe anno 25. Ed. 3. cap. 6. anno 31. eiusdem stat 3. c. 2. sometime to a villein disobeying his Lord a. 1. R. 2. c. 6. Rebellious Assembly is a gathering together of 12. persons or more intending or going about practising or putting in vre vnlawfully of their owne authoritie to chaunge any lawes or statutes of this Realme or to destroy the inclosure of any park or ground inclosed or bankes of any fisheponds pale or conduict to the intent the same shall remaine voide or to the intent vnlawfully to haue common or way in any of the said grounds or to destroy the Deere in any Park or any warrē of conies or deuehouses or fish in any pondes or any house barnes mils or bayes or to burne stacks of corne or to abate rents or prices of victuals an pri Mar. c. 12. an 1. Eliza. cap. 17. See West parte 2. symbol titulo Inditem 〈…〉 s. Sectio 65. And Cromptons Iustice of peace f. 41. b. Rebutter commeth of the French Bouter i. pellere impellere propellere intrudere and signifieth in our common lawe the same thing For example a man giueth land to him and the issue of his body to antoher in fee with warranty And the Donnee leaseth out this land to a third for yeares The heire of the Donour impleadeth the tenent alleadging that the land was intailed to him The Donee commeth in and by vertue of the warrantie made by the Donour repelleth the heire because though the land were intailed to him ye◠he is heire to the warranty likewise and this is called a Rebutter See Brooke titulo Barre nu 13. And againe if I graunt to my tenent to hould sine impetitione vasti and afterward I implede him for waste made he may debarre me of this action by shewing my graunt and this is likewise a Rebutter Idem eodem nu 25. See the newe booke of Entries verbo Rebutter Renant anno 32. H. 8. ca. 2. Recaption Recaptio signifieth a second distresse of one formerly distreined for the selfe same cause and also during the plee grounded vpon the former distresse It likewise signifieth a writ lying for the party thus destreined the forme and farder vse whereof you may see in Fitzh nat br fol. 71. and the Register orig fol. 86. and the Register Iudiciall fol. 69. and the new booke of Entries verbo Recaption Receyver Receptor or Receptator generally and indefinitely vsed is as with the Ciuilians so also with vs vsed commonly in the euill part for such as receiue stollen goods from theeues and conceale them l. 1. Π. de receptatoribus but annexed to other words as the receiuer of rents c. it signifieth many times an officer of great accoumpte belonging to the king or other great personage Cromptons Iurisdict fol. 18. There is also an officer called the Reiceiuer of Fynes who receiueth the mony of all such as compound with the King in the office of the finances for the buying of any lands or tenements houlden in Capite West parte 2. symbol titulo Fines sect 106. Receiuer of all offices accounptable anno 1. Ed. 4. ca. 1. Receiuer generall of the Duchy of Lancaster is an officer belonging to the Duchy court that gathereth in all the reuenewes and fines of the lands of the said Duchy and of all forfeitures and assesments or what else is thence to be receiued Receiuer generall of the court of Wards and liueries is an officer belonging to that court that is to receiue all rents revenewes and fines of the lands belonging to his maiesties wards as also the fines for licences to the Kings widowes to mary of ouster le main sued out and for idiots and lunatikes land and finally all other profits whatsoeuer in mony arising to his maiestie out of or by reason of the court of wards and lyveries Receiuer generall of the Muster rolles anno 35. El. ca. 4. Receiuer generall of the Duchie of Lancaster of the wards and liveries anno 39. Elizab. cap. 7. Receyt See Resceit Recluse Reclusus is he that by reason of his order in religion may not stirre out of his house or cloyster Litleton fol. 92. Recognisance Recognitio commeth of the French Recognoisance i. agnitio recognitio and in our common lawe is thus defined A Recognisance is a bond of record testifing the recognizour to owe vnto the recognizee a certaine summe of money and is knowledged in some court of record or before some Iudge or other officer of such court hauing authoritie to take the same as the Masters of the Chancerie the Iudges of
is vsed anno 20. Ed 1. anno 11. H. 6. cap. 2. in these words Iustices assigned to take assises And the Substantiue assignement hath the same signification Wests symb parte 1. lib. 2. sect 496. seq In which maner is also vsed the adiectiue assignee assignatus viz. for him that is appointed or deputed by another to do any act or performe any businesse or enioy any commoditie And an assignee may be either in deed or in law Assignee in deed is he that is appointed by a person an assignee in lawe is he whom the lawe so maketh without any appointment of the person v. Dyer fol. 6. num 5. Perkins in Grauntes saith that an assignee is he that occupieth a thing in his owne right and deputè he that doth it in the right of another Assise assisa commeth of the French assise which in the grand custumarie of Normandy cap. 24. is defined to this effect Assise is an assembly of Knights and other substantiall men with the Bailiffe or Iustice in a certain place and at a certaine time appointed And againe cap. 55. Assise is a court in the which whatsoeuer is done ought to haue perpetuall strength This Normane word assise commeth of the French asseoir â— collocare to settle or bestow in some place certaine as sâ—asseoir is to sit downe by another And metaphorically it is vsed of things incorporeall as asseoir son iugement sur quelque lieu is interponere iudicium suum Of this verbe commeth the participle assis as estre assis i. sedere And this Participle in the grand custumarie of Normandie cap. 68. is vsed as we would say appointed limited or determined viz. au iour qui est assis à faire la battaille se doibuent les champions offrir á la iustice that is at the day which is appointed for the combat the champions ought to offer themselues to the Iustice So that by all these places compared together it is euident whence the original of this word assise floweth How diuersly it is vsed in our common lawe it followeth that we declare First Litleton in the chapter Rents saith that it is aequivocum where he setteth downe three seuerall significations of it one as it is taken for a writ another as it is vsed for a Iurie the third as for an ordinance And him he that listeth may reade more at large My collections haue serued me thus first assise is taken for a writ directed to the Shyreeue for the recouerie of possession of things immoueable whereof your selfe or your auncestor haue bene disseised And this is as well of things corporall as incorporeall rights being of foure sorts as here they follow in their order Assise of novel disseisin assisa nova disseisina lyeth where a tenent in Fee-simple Fee-taile or for tearme of life is lately disseised of his lands or tenements or else of a rent seruice rent seck or rent charge of common of pasture of an office of tolle tronage passage pownage or for a nusance leuied and diuers other such like For confirmation whereof you may reade Glanvile lib. 10. cap. 2. Bracton lib. 4. tract 1. per totum Britton cap. 70. seqq Register orig fol. 197. Fitz. nat br fol. 177. 178. 179. new booke of entries fol. 74. col 3. West 2. cap. 25. anno 13. Ed. 1. And to this may aptly be added the Bill of fresh force friscae fortiae which is directed to the officers or magistrates of Cities or Townes corporate being a kinde of assise for recovery of possession in such places within 40. daies after the force as the ordinarie assise is in the countie Fitzh nat br fo 7. c. This the Civilians call iudicium possessorium recuperandi Assise of mort d' auncester assisa mortis antecessoris lyeth where my father mother brother sister vncle aunte c. died seised of lands tenements rents c. that he had in see simple and after his death a straunger abateth an it is good as well against the abatour as any other in possession How likewise this is extended see Bracton li. 4. tract 3. per totum Britton ca. 70. cum multis sequent Fitzh nat br fo 114. Register orig fo 223. This the Civilians call Iudicium possessorium adipiscendi Assise of darrein presentment assisa vltima praesentationis lieth where I or mine auncestor haue presented a Clerke to a Church and after the Church being voide by the death of the said Clerke or otherwise a strauÌ„ger presenteth his Clerke to the same Church in disturbance of me And how otherwise this writ is vsed See Bracton li. 4. tract 2. Register orig fo 30. Fitzh nat br fo 195. Assise de vtrum assisa vtrum lieth either for a parson against a lay man or a lay man against a parson for land or tenement doubtfull whether it be lay see or free almes And of this see Bracton li. 4. tract 5. cap. 1. seqq Brit. ca. 95. The reason why these writs be called assises may be diuers First because they settle the possession and so an outward right in him that obteineth by them Secondly they were originally spedde and executed at a certaine time and place formerly appointed For by the Norman law the time and place must be knowne 40. daies before the Iustices sate of them and by our lawe there must be likewise 15. daies of preparation except they be tried in those standing courts of the king in Westminster as appeareth by Fitzh nat br fo 177. D. E. Lastly they may be called assises because they are tried most commonly by especial courts set appointed for the purpose as may be well proved not onely out of the custumarie of Normandie but our bookes also which shew that in auncient times Iustices were apointed by especiall commission to dispatch controversies of possession one or more in this or that onely countie as accasion fell out or disseisins were offered that as well in terme time as out of terme whereas of later daies wee see that all these commissions of asseses of eyre of oyer terminer of gaol deliuerie and of nisi prius are dispatched all at one time by two severall circuits in the yeare out of terme and by such as haue the greatest sway of Iustice being al of them either the Kings ordinarie Iustices of his benches Sergeants at the lawe or such like Assise in the second signification according to Litleton is vsed for a Iurie For to vse his owne example it is set downe in the beginning of the record of an assise of novel disseisin Assissa venit recognitura which is as much to say as Iuratores veniunt recognituri The reason why the Iurie is called an assise he giueth to be this because by the writte of assise the Shyreeue is commaunded quòd faciat duodecim liberos legales homines de viceneto c. videre tenementum illud nomina eorum imbreviari quod summoneat eos per bonas
Which maketh me to thinke that it rather coÌ„meth from attaindre as we would say in english catched ouertaken or playnly deprehended And Britton ca. 75. vseth the participle attaint in the sence that we say attained vnto A man is attainted by two meanes by appearance or by proces Stawnf pl. cor fo 44. Attaynder by by apparence is by confession by battelll or by verdict idem fo 122. Confession whereof attaynt groweth is double one at the barre before the iudges when the prisoner vpon his endictment read being asked guilty or not guilty answeareth guilty neuer putting himselfe vpon the verdict of the Iurie the other is before the coroner in sanctuarie where he vpon his confession was in former times constreyned to abiure the Realme which kinde also of the effect is called attaynder by abiuration Idem fo 182. Attaynder by battel is when the party appealed by another and chusing to trie the the truth by combat rather then by Iurie is vanquished Idem fo 44. Attaynder by verdict is when the prisoner at the barre answering to the endictment not guilty hath an enquest 〈◊〉 life and death passing vpon him and is by their verdict or doomâ— pronounced guiltie Idem fo 108. 192. Attainder by processe otherwise called attainder by default or attainder by outlagarie is where a partie flieth and is not found vntill he haue bene fiue times called publikely in the countie and at the last out-lawed vpon his default Idem fol. 44. I find by the same author fol. 108. that he maketh a difference between attainder and conuiction in these words And note the diuersitie betweene attainder and conuiction c. And with this agreeth the Statute anno 34. 35. H. 8. cap. 14. in ipso principio and anno 1. Ed. 6. cap. 12. in these words that then euery such offender being duly thereof convicted or attainted by the lawes of this realme c. And againe in these words Euery woman that is or shall fortune to be wife of the person so attainted convicted or outlawed c. To this you may likewise adde the flat anno 2. 3. Edw. 6. cap. 33. And I find by Stawnf pl. cor fol. 66. that a man by our ancient lawes was said to be conuicted presently vpon the verdict guiltie but not to be attainted vntill it appeared that he was no clerke or being a clerke and demanded of his ordinarie could not purge himselfe So that a man was not attainted vpon conuiction except he were no Clerke and in one word it appeareth that attainder is larger then conuiction conuiction being onely by the Iurie And attainder is not before iudgement Perkins Graunti num 27. 29. Yet it appeareth by Stawnf fol. 9. that conuiction is called attainder sometime For there he saith that the verdict of the Iurie doth either acquit or attaint a man and so it is Westm pr. cap. 14. anno 3. Ed. 1. This auncient lawe touching the conuiction and purgation of Clerkes is altered by anno 23. Eliz. cap. 2. as you may farder reade in Clergie Attainder Attinctus though it be most vsed in matters of felonie and treason yet is it likewise applied to inferior transgressions as to disseisin Westm 1. cap. 36. anno 3. Ed. 1. and Britton cap. 26. See Attaint and Attainted Attendant attendens coÌ„meth of the French attendre i. demorari opperiri expectare praestolari it signifieth in our common law one that oweth a dutie or seruice to another or after a sort dependeth of another For example there is Lord mesn and tenent the tenent holdeth of the mesn by a peny the mesn holdeth ouer by two pence The meane releaseth to the tenent all the right he hath in the land and the tenent dyeth His wife shall be endowed of the land and she shall be attendent to the heire of the third part of the peny and not of the third part of the two pence For she shall be endowed of the best possession of her husband Another hath Kitchin fol. 209. in these words where the wife is endowed by the gardian she shal be attendant to the gardian and to the heire at his full age with whome agreeth Perkins also in Dower 424. Atturney atturnatus coÌ„meth of the French tourner i. vertere as tourner son esprit à faire quelque chose i. animum ad rem aliquam inclinare Thence commeth the participle tournè i. versus conversus and the Substantiue tour i. vices vicissitudo as chacun à son tour i. quilibet sua vice It signifieth in our common lawe one appointed by another man to do any thing in his steade as much as procurator or fyndicus in the ciuill lawe West parte 1. Symbolayogr lib. 2. sect 559. defineth it thus Atturneys be such persons as by the consent commandement or request do take heed fee to and take vpon them the charge of other mens busines in their absence by whome they are commaunded or requested And where it seemeth that in auncient time those of authoritie in Courts had it in their arbitriment whether they would suffer men to appeare or sue by any other then themselues as is euident by Fitz. nat br fol. 25. in the writ Dedimus potest atem de atturnato facundo where it is shewed that men were driuen to procure the kings writs or letters parents to appoint Atturneys for them it is sithence prouided by Statutes that it should be lawfull so to do without any such circuit as by the Statute anno 20. H. 3. cap. 10. anno 6. Ed. 1. cap. 8. anno 27. eiusdem stat 2. an 12. Ed. 2. 1. anno 15. eiusdem cap. vnico anno 7. Ric. 2. cap. 14. anno 7. H. 4. cap. 13. anno 3. H. 5. cap. 2. anno 15. H. 6. cap. 7. anno 17. H. 7. cap. 2. is to be proued And you may see great diuersitie of writs in the table of the Regi origin wherein the king by his writ commaundeth the Iudges to admit of Atturneys Wherby there grew at the last so many vnskilfull Atturneys and so many mischiefes by them that prouision for restraining them was requisite Wherefore anno 4. H. 4. cap. 18. it was ordained that the Iustices should examine them and displace the vnskilfull And againe anno 33. H. 6. cap. 7. that there should be but a certaine number of them in Northfo 〈…〉 and Southfolke In what cases a man at this day may haue an Atturney and in what not see Fâ—â— vbisupra Atturney is either generall or speciall Atturney generall is he that by generall authoritie is appointed to all our affaires or suites as the Atturney generall of the king pl. cor fol. 152. which is as much as Procurater Caesaris was in the Romane Empire Atturney general of the Duke Cromptons Iurisd fol. 105. Atturney speciall or particular is he that is employed in one or more causes particularly specified Atturneys generall be made after two sorts either by the kings leters patents before him or
pr. cap. 18. which reade See Fine Common plees communia placita is the kings Court now held in Westminster hall but in auncient time moueable as appeareth by the statute called Magna charta cap. 11. as also anno 2. Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his readings saith that vntill the time that Henry the third granted the great charter there were but two courts in all called the Kings courts whereof one was the Exchequer and the other the kings bench which was then called curia Domini regis and aula regia because it followed the court or king and that vpon the grant of that charter the court of common plees was erected and setled in one place certaine viz. at Westminster And because this court was setled at Westminster wheresoeuer the king lay thereupon M. Gwin vbi supra saith that after that all the writs ranne Quòd sit coram Iusticiariis meis apud Westmonasterium whereas before the partie was cōmanded by thē to appeare coram me vel Iusticiariis meis simply without addition of place as he well obserueth out of Glanvile and Bracton the one writing in Henry the seconds time before this court was erected the other in the later end of Henry the thirds time who erected this court All ciuill causes both reall and personall are or were in former times tryed in this court according to the strict lawe of the realme and by Fortescue cap. 50. it seemeth to haue bene the onely court for reall causes The chiefe Iudge thereof is called the Lord chiefe Iustice of the common plees accompanied with 3. or 4. assistants or associates which are created by leters patents from the king and as it were enstalled or placed vpon the bench by the Lord Chaunceler and lord chiefe Iustice of the court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the officers belonging to this court are these the custos breuium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerke of the warrants Clerke of the Iuries or iurata writs Clerke of the Treasurie Clerke of the kings siluer Clerke of the essoins Clerke of the outlawries Whose distinct functions looke in their places See Common bench Common day in plee of land an 13. R. 2. stat 1. cap. 17. signifieth an ordinarie day in the court as Octavis Michaelis quindena pascae c. as you may see in the statute made anno 51. H. 3. concerning generall dayes in the bench Common house of parlament is vsed for the nether house because the commōs of the realme that is the knights of the shires and burgeses possesse that house Crompton iurisd 9. Commotes seemeth to be compounded of the prepositiō con and mot i. dictio verbum and signifieth in Wales a part of a shire as a hundred anno 28. H. 8. ca. 3. It is written commoithes anno 4. H. 4. ca. 17. and is vsed for a gathering made vpon the people as it seemeth of this or that hundred by welsh minstrels Common law comunis lex hath three diuers significatiōs which see in the author of new termes of law verbo Common law Communi custodia is a writ that lyeth for that lord whose tenent houlding by knights seruice dyeth and leaueth his eldest sonne vnder age against a straunger that entreth the land and obtaineth the ward of the body It may seeme to take the name from the common custom or right in this case which is that the lord haue the wardship of his tenent vntill his full age or because it is common for the recouery both of land and tenent as appeareth by the forme thereof Old nat br fo 89. See also the Register orig fo 161. a. Communi placito non tenendo in scaccario is a writ directed to the treasurer and barons of the exchequer forbidding them to hould plee betweene two common persons in that court neither of them belonging toward the said court Register orig fo 187. b. Companion of the garter is one of the knights of that most noble and honourable order anno 24. H. 8. ca. 13. See Garter Compromis compromissum is a mutuall promise of two or more parties at difference to referre the ending of their controuersies to the arbitriment and equitie of one or more arbitratours West defineth is thus parte 2. Symbol titulo Compromise sect pri A compromise or submission arbitrium compromissum submissio is the faculty or power of pronouncing sentence betweene persons at controuersie giuen to arbitratours by the parties mutuall priuate consent without publique authority Computo is a writ so called of the effect because it compelleth a baylife chamberlaine or receiuer to yeld his accoumpt Old nat br fo 58. It is founded vpon the statut of Westm 2. ca. 2. anno 13. Ed. i. which for your beter vnderstanding you may read And it lyeth also for executours of executours anno 15. Ed. 3. statut de prouis victuall ca. 5. Thirdly against the garden in socage for waste made in the minority of the heire Marlb ca. 17. And see farder in what other cases it lyeth Register orig fo 135. old nat br vbi supra Fitzh nat br fo 116. Concealers be such as finde out concealed lands that is such lands as priuily are kept from the king by common persons hauing nothing to shew for them anno 39. Eliza. ca. 22. They be so called a concelando as mons a mouendo per antiphrasin Concord concordia is in the common law by a peculiar signification defined to be the very agreement betweene parties that intend the leuying of a fine of lands one to the other how and in what maner the land shall passe For in the forme thereof many things are to be considered West parte 2. Symbol titulo Fines and concords sect 30. whome read at large Concord is also an agreement made vpon any trespas cōmitted betweene two or more and is diuided into a concord executory and a concord executed See Plowden casu Reniger Fogassa fo 5. 6. where it appeareth by some opinion that the one bindeth not as being imperfect the other absolute and tyeth the parties and yet by some other opinion in the same case it is affirmed that agreements executory be perfect and doe noe lesse binde then agreements executed fo 8. b. Concubinage concubinatus is an exception against her that sieweth for her dower whereby it is alleadged that shee was not a wife lawefully maried to the party in whose lands shee seeketh to be endowed but his concubine Britton ca. 107. Bract. li. 4. tract 6. ca. 8. Condition conditio is a rate maner or lawe annexed to mens acts staying or suspending the same and making them vncertaine whether they shall take effect or no West parte 1. symb li. 2. Sect. 156. In a lease there may be two sorts of conditions condition collaterall or condition annexed to
his lords court For the steward as he inrolleth and maketh remembrances of all other things done in the lords court so he doth also of such tenents as be admitted in the court to any parcell of land or tenement belonging to the maner and the transcript of this is called the court rowle the copie whereof the tenent taketh from him and keepeth as his onely euidence Coke li. 4. fo 25. b. This tenure is called a base tenure because it houldeth at the wil of the lord Kitchin fo 80. chap copihoulds Fitzh nat br fo 12. B. C. who there saieth that it was wont to be called tenure in villenage and that this copihould is but a new name Yet is it not simply at the will of the lord but according to the custome of the maner So that if a copiehoulder breake not the custome of the maner and thereby forfeit his tenure he seemeth not so much to stand at the lords courtesie for his right that he may be displaced hand ouer head at his pleasure These customes of maner be infinit varying in one point or other almost in euery seuerall maner First some copiehould is fineable and some certaine that which is fineable the lord rateth at what fine or incom he pleaseth when the tenent is admmitted vnto it that which is certaine is a kinde of inheritance and called in many places custumary because the tenent dying and the hould being void the next of the blood paying the custumarie fine as two shillngs for an acre or such like may not be denied his admission Secondly some copihoulders haue by custome the wood growing vpon their owne land which by law they could not haue Kitchin vbisupra Thirdly copi-holders some be such as hold by the verge in ancient demesn although they hold by copy yet are they in accompt a kind of Free-holders For if such a one commit felonie the king hath annum diem vastum as in case of Freehold Some other hold by common tenure called meere copy hold and they committing felonie their land escheateth to the Lord of the maner foorthwith Kitchin fol. 81. chap. Tenents per verge in auncient demesn What auncient demesn is see in the right place See Tenent by copie of court rolle This is the land that in the Saxons time was called Folk land Lamberd explicat of Saxon words verbo Terra ex scripto West parte prim symbol lib. 2. Sect. 646. defineth a copi-holder thus Tenent by copie of court rolle is he which is admitted tenent of any lands or tenements within a maner that time out of the memory of man by vse and custome of the said maner haue bene dimisable and dimised to such as will take the same in fee in fee-taile for life yeares or at will according to the custome of the said maner by copie of courtrolle of the same maner where you may read more of these things Coraage coraagium is a kinde of imposition extraordinarie growing vpon some vnusuall occasion and it seemeth to be of certaine measures of corne For corus tritici is a certaine measure of corne Bracton libro 2. ca. 16. nu 6. who in the same chapter nu 8. hath of this mater these words Sunt etiam quaedam communes praestationes quae seruitia non dicuntur nec de consuetudine veniunt nisi cùm necessitas interuenerit vel cùm rex venerit sicut sunt hidagia coraagia caruagia alia plura de necessitate ex consensu communitotius regni introducta quae ad dominum feudi non pertinent de quibus nullus tenetur tenentē suū acquietare nisi se adhoc specialiter obligauerit in charta sua c. Cordiner commeth of the French cordoüannier i. sutor calcearius a shoomaker and is so vsed in diuers statutes as anno 3. H. 8. ca. 10 anno 5. eiusdem ca. 7. and others Cornage cornagium commeth of the French cor i. cornu and in our common law signifieth a kinde of grand sergeantie the seruice of which tenure is to blow a horne when any invasion of the northern enemie is perceiued And by this many men hold their land northward about the wall commonly called the Picts walle Camd. Britan p. 609. hence commeth the word cornuare to blow a horn pupil oculi parte 5. ca. 22. in charta de Foresta This seruice seemeth to haue proceeded from the Romanes For I finde cornicularios mentioned in the ciuile lawe viz. li. 1. Cod. de officio diuerso Iud. 48. lege 3. lib. 12. titulo de apparitoribus praefectorum praetorio 53. lege 1. 3. where Lucas de Penna defineth them eos qui cornu faciunt excubias militares And Brissonius libro 3. de verbo significat saith thus of them hi militum quoddam genus fuere qui corniculo merebant vnde nomen habent Where it appeareth by him out of Suetonius Plinie and Livie that the horne was an honour reward giuen for seruice in war Corner tile See Gutter tile Corodye corodium commeth of the Latine verb corrodo and signifieth in our common lawe a summe of mony or allowance of meate and drinke due to the king from an abbey or other house of religion whereof he is the founder toward the reasonable sustenāce of such a one of his seruants being put to his pension as he thinketh good to bestowe it on And the difference betweene a corodie and a pension seemeth to be that a corodie is allowed toward the maintenance of any the kings seruants that liueth in the abbey a pension is giuen to one of the kings chaplaines for his better maintenance in the kings seruice vntill he may be prouided of a benefice Of both these read Fitzh nat br fo 230. 231. 233. who there setteth downe all the corodies and pensions certaine that any abbey when they stoode was bound to performe vnto the king There is mention also of a corodie in Stawnf praerogatiue fo 44. And this seemeth to be awncient lawe For in Westm 2. ca. 25. it is ordeined that an assise shall lie for a corodie It is also apparent by the statute anno 34. 35. H. 8. ca. 16. that corodies belonged some time to Bishops from monasteries by the new termes of lawe that a corodie may be due to a common person by graunt from one to another or of common right to him that is founder of a religious house not holden in frank almoyn For that tenure was a discharge of all corodies in it selfe By which booke it appeareth also that a corodie is either certaine or vncertaine and that it may be for life yeares in taile or in fee. Corodio habendo is a writ whereby to exact a corodie of any abbey or religious house See Corodie See the Register originall fo 264. Coronatore eligendo is a writte which after the death or discharge of any coroner is directed to the shyreeue out of the Chācery to call togither the free
petitioners as in conscionable cases deale by supplication with his Maiestie This court as M. Gwin saith in the preface to his readings had beginning from commission first graunted by Henry the 8. to the masters of Requests whereas before that time by his opinion they had no warrant of ordinary iurisdiction but trauelled betweene the king and the petitioner by direction from the kings mouth But Sir Iulius Caesar in a Tractate of his painefully and very iudiciously gathered from the records of the same court plainely sheweth that this court was 9. Henrici septimi though then following the king and not setled in any certaine place neither swayed particularly by the Masters of requests as now it is but more at large by others of the kings most Honourable Councell whom he pleased to employ in this seruice For pag. 148. of the said Tractate you haue the forme of the oath then ministred to those that were Iudges in this court and à pag. prim vsque ad pag. 46. causes of diuers natures which in the said kings dayes were there handled and adiudged This court as that right Honorable and learned Knight in a briefe of his vpon the same court plainely proueth was and is parcell of the kings most Honorable Councell and so alwaies called and esteemed The Iudges thereof were alwaies of the kings most Honourable Councell appointed by the king to keepe his Councell board The keeping of this court was neuer tyed to any place certaine but onely where the Councell sate the suyters were to attend But now of late for the ease of suiters it hath bene kept in the White hall at Westminster and onely in the Tearme time It is a court of Record wherein recognizances are also taken by the kings Councell The forme of proceeding in this court was altogether according to the processe of summarie causes in the ciuile lawe The persons plaintiffes and defendants were alwaies either priviledged as officers of the court or their servants or as the kings seruants or as necessarie attendants of them or else where the plaintiffes pouertie or meane estate was not matchable with the wealth or greatnesse of the defendant or where the cause meerely contained mater of equitie and had no proper remedie at the common law or where it was specially recommended from the king to the examination of his Councell or concerned Vniuersities Colledges Hospitals and the like The causes wherwith they deale and wherof they iudge are of all sortes as maritime vltra marine ecclesiasticall temporall but properly temporall causes and onely of the other sort as they are mixt with temporal The maner of proceeding in the said court is first by privie seale leters missiue or Iniunction or messenger or bond Secondly by attachement Thirdly by proclamation of rebellion Fourthly by commission of rebellion fiftly by Sergeant at armes The effect of the defendants apparence is that he attend de die in diem on the councell till he haue made his answer to the plaintiffes bill and be licenced to depart vpon caution de iudicio sisti indicato solvendo and constitution of his Atturney and councell by name The authoritie of this court is such as vppon cause to graunt iniunctions for barring the defendant from syewing the plaintiffe at the common lawe and to stay the suyte at the common lawe before commencement and not to arrest the bodie of the plaintiffe till furder order be taken by the Kings councell and the execution of a decree in this court may be done either by imprisonment of the person disobeying being partie or claiming vnder the partie or by levie of the summe adiudged vppon his lands Courtesie of England lex Angliae commeth of the french Courtesie i. benignitas humanitas but with vs hath a proper signification being vsed for a tenure For if a man marie an inheretrice that is a woman seised of land in fee simple or fee taile generall or seised as heire of the taile speciall and getteth a childe of her that commeth aliue into the world though both it and his wife die forthwith yet if she were in possession shall he keepe the land during his life and is called tenent per legem Angliae or by the courtesie of England Glanvil li. 7. ca. 18. Bracton li. 5. tracta 5. ca. 30. nu 7. 8. 9. Britton ca. 51. fo 132. Fleta li. 6. ca. 56. § lex quaedam Fitzh nat br fo 149. D. Litleton li. 1. ca. 4. It is called the law of England Westm 2. ca. 3. This is in Scotland called curialitas Scotiae Skene de verbo sign verbo Curialitas who there saith that this is vsed in these two realmes onely and maketh a large discourse of the custome Coutheutlaughe is he that wittingly receiueth a man outlawed and cheriseth or hideth him In which case he was in auncient times subiect to the same punishment that the outlawe himselfe was Bracton li. 3. tracta 2. ca. 13. nu 2. It is compounded of couthe i. knowne acquainted familiar and vtlaughe an outlaw as we now call him Courtilage aliâs curtilage curtilagium aliâs curtilegium signifieth a garden a yard or a feeld or peece of voide ground lying ne ere and belonging to a mesuage West parte 2. Symbolaeo titulo fines sect 26. And so is it vsed anno 4. Ed. i. ca. vnico anno 35. H. 8. ca. 4. anno 39. Eliza ca. 2. and Coke vol. 6. fo 64. a. Of this also Lindwood thus writeth Curtilegium vulgare nomen est non omnium patriarum sed certarum Est enim curtis mansio vel manerium ad habitandum cum terris possessionibus aliis emolumentis ad tale manerium pertimentibus prove satis colligitur in libro feudorum titulo de controuersia investiturae § si quis de manso Coll. 10. Vnde curtilegium dicitur locus adiunctus tali curti vbi leguntur herbae vel olera sic dictus a curtis lego legis pro collig ere Thus farre Linwood titulo de decimis ca. Sancta § omnibus verbo Curtelegiorum So that in effect it is a yard or a garden adioyning to a house Creansour creditor commeth of the french croyance i. persuasio and signifieth him that trusteth another with any debt be it in mony or wares Old nat br fo 67. Cranage cranagium is a liberty to vsea crane for the drawing vp of wares from the vessels at any creek of the sea or wharfe vnto the land and to make profit of it It signifieth also the mony paide and taken for the same New booke of Entries 〈◊〉 3. col 3. Creeke creca crecca vel crecum seemeth to be a part of a hauen where any thing is landed or disburdened out of the sea So that when you are out of the mayne sea within the hauen looke how many landing places you haue so many creeks may be said to belong to that hauen See Cromptons iurisdictions fo 110. a. This word is mencioned in the statute as anno
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
i. sectura or tailler i. scindere secare And the reason is manifest because fee-tayle in the law is nothing but fee abridged scanted or curtelled as you would say or limited and tyed to certaine conditions Taille in Fraunce is metaphorically taken for a tribute or subsidie v. Lupanum de Magistratibus Francorū lib. 3. cap. Talea See Fee See Tayle Enterpleder Interplacitare is compounded of two french words entre i. inter and pleder i. disputare and it signifieth in our common law as much as cognitio praeiudicialis in the ciuile law that is the discussing of a point incidently falling out before the principall cause can take end For example two seuerall persons being found heires to land by two seuerall offices in one countie the king is brought in doubt to whether liuery ought to be made and therefore before liuery be made to either they must enterpleade that is formerly try betweene themselues who is the right heire Stawnf praeroga chap. 19. See more examples in Brooke titulo Enterpleder Entiere tenancie is contrary to seuerall Tenency signifiing a sole possession in one man wheras the other signifieth ioynt or common in more See Brooke seuerall tenancy See the new booke of Entries verbo Entier tenancy Entry Ingressus commeth of the french Entree i. introitus ingressus aditus and properly signifieth in our common lawe the taking possession of lands or tenements See Plowden Afsise of fresh force in London fo 93. b. It is also vsed for a writ of possession for the which See Ingressu And read West also parte 2. Symbol titulo Recoueries sect 2. 3. Who there sheweth for what things it lyeth and for what it lyeth not Of this Britton in his 114. chapter writeth to this effect The writs of entrie sauour much of the right of propertie As for example some be to recouer customes and seruices in the which are contained these twoe words solet debet as the writs Quo iure Rationabilibus diuisis rationabili estoverio with such like And in this plee of entrie there be three degrees The first is where a man demandeth landes or tenements of his owne seisin after the terme is expired The second is where one demaundeth lands or tenements let by another after the terme expired The third where one demaundeth lands or tenements of that tenent that had entry by one to whom some auncestor of the plaintife did let it for a term now expired According to which degrees the writs for more fit remedie are varied And there is yet a fourth forme which is without the degrees and in case of a more remote seisin whereunto the other three degrees do not extend The writ in the second degree is called a writ of entrie in le per and a writ in the third degree is called a writ of entrie in le per cui and the fourth forme without these degrees is called a writ of entry in le post that is to say after the disseisin which such a one made to such a one And if any writ of entry be conceiued out of the right case so that one forme be brought for another it is abatable The form of the first degree is such Praecipe Willielmo quod reddat Petro manerium de B. cum pertinentiis quod ille dimisit pro termino qui est elapsus The second is such Praecipe Petro quod reddat Willielmo manerium c. in quod ille non habuit ingressum nisi per patrem a 〈…〉 matrem avunculum vel amitam vel cognatum avum vel proavum dicti Petri qui dictum manerium danifit pro termino qui est elapsus The third forme is such Praecipe Iohanni quod reddat Petro manerium de S. in quod ille non habuit ingressum nisi per T. cui talis pater vel mater vel alius antecessor aut cognatus idem dimisit cuius haeres est ipse Petrus pro termino qui est elapsus And the forme without the degrees is such In quod non habuit ingressum nisi post lessam quam talis pater aut mater sic vt supra cuius haeres ille est inde fecit pro termino qui est elapsus And in those foure degrees be comprehended all maner writs of entry which be without certaintie and number Thus farre Britton by whome you may perceiue that those words solet debet and also those other words in le per in le per cut and in le post which we meete with many times in bookes shortly and obscurely mentioned do signifie nothing else but diuers formes of this writ applyed to the case whereupon it is brought and each forme taking his name from the said words contained in the writ And of this reade Fitz. in his nat br fol. 193. 194. This writ of entry differeth from an assise because it lyeth for the most part against him who entred lawfully but houldeth against lawe whereas an assise lyeth against him that vnlawfully disseised yet sometime a writ of entrie lyeth vpon an intrusion Regist orig fol. 233. b. See the new booke of Entries verbo Entre Brevis fol. 254. colum 3. I reade of a writ of entry in the nature of an assise Of this writ in all his degrees reade Fleta lib. 5. cap. 34. seqq 5. Entrusion Intrusio in our cōmon lawe signifieth a violent or vnlawfull entrance into lands or tenements being vtterly voide of a possessour by him that hath no right nor sparke of right vnto them Bracton lib. 4. cap. 2. For example if a man steppe in vpon any lands the owner whereof lately died and the right heire neither by himselfe nor others as yet hath taken possession of them What the difference is betweene Abator and Intrudor I do not well perceiue except an Abatour be he that steppeth into land voide by the death of a tenent in fee and an Entrudour that doth the like into lands c. voide by the death of the tenent for termes of life or yeares See Fitz. nat br fol. 203. F. The authour of the new Termes of law would haue abatement latined Interpositionem aut Introitionem per interpositionem and to be restrained to him that entreth before the heyre after the decease of a tenent for life though the new booke of Entries fol. 63. C. 205. D. 519. C. by his confession doth Latine Abatement by this word Intrusionem See Abatement See Disseisin See Britton cap. 65. Entrusion is also taken for the writ brought against an Intrudour which see in Fitzh nat br fol. 203. Entrusion de gard is a writ that lyeth where the Infant within age entred into his lands and houldeth his Lord out for in this case the Lord shall not haue the writ De communi custodia But this Old nat br fol. 90. Envre signifieth to take place or effect to be avaylable Example A Release shall envure by way of extinguishment Litleton cap Release And a release made
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.
Evidentia is vsed in our lawe generally for any proofe be it testimonie of men or instrument Sir Thomas Smith vseth it in both sortes lib. 2. cap. 17. in these words Evidence in this signification is authenticall writings of contracts after the maner of England that is to say written sealed and deliuered And lib. 2. cap. 23. speaking of the prisoner that standeth at the barre to pleade for his life and of those that charge him with felonie he saith thus then he telleth what he can say after him likewise all those who were at the apprehension of the prisoner or who can giue any Indices or tokens which we call in our language Evidence against the malefactour Examiner in the Chauncerie or Starre-chamber examinator is an Officer in either Court that examineth the parties to any suite vpon their oathes or witnesses producted of either side whereof there be in the Chauncerie two Exception exceptio is a stoppe or stay to an action being vsed in the ciuill and common lawe both alike and in both diuided into dilatorie and peremptorie Of these see Bract. lib. 5. tract 5. per totum and Britton cap. 91. 92. Exchaunge excambium vel cambium hath a peculiar signification in our common lawe and is vsed for that compensation which the warrantor must make to the warrantee valewe for value if the land warranted be recouered from the warrantee Bracton lib. 2. cap. 16. li. 1. cap. 19. It signifieth also generally as much as Permutatio with the Civilians as the Kings Exchaunge anno 1. H. 6. cap. 1. 4. anno 9. Ed. 3. stat 2. cap. 7. which is nothing else but the place appointed by the king for the exchaunge of bullion be it gold or siluer or plate c. with the Kings coine These places haue bene diuers heretofore as appeareth by the saide statutes But now is there only one viz. the tower of London conjoyned with the mint Which in time past might not be as appeareth by anno 1. Henrici 6. ca. 4. Exchequer see Eschequer Excheatour see Escheatour Excommunication excommunicatio is thus defined by Panormitan Excommunicatio est nihil aliud quà m censura à Canone vel Iudice ecclesiastico prolata insticta privans legitima communione sacramentorum quandoque hominum And it is diuided in maiorem minorem Minor est per quam quis à Sacramentorum participatione conscientia vel sententia arcetur Maior est quae non solùm à Sacramentorum verùm etiam fidelium communione excludit ab omniactu legitimo separat di vidit Venatorius de sentent excom Excommunicato capiendo is a writ directed to the Shyreeue for the apprehension of him that standeth obstinately excommunicated for fortie dayes for such a one not seeking absolution hath or may haue his contempt certified or signified into the Chauncerie whence issueth this writ for the laying of him vp without baile or mainprise vntill he conforme himselfe See Fitz. nat br fol. 62. anno 5. Eliz cap. 23. and the Regist orig fol. 65. 67. 70. Excōmunicato deliberando is a writ to the vnder shyreeue for the deliuery of an excōmunicate person out of prison vpon certificate from the Ordinary of his conformitie to the iurisdiction ecclesiasticall See Fitzh nat br fol. 63. A. and the Register fol. 65. 67. Excommunicato recipiendo is a writ whereby persons excommunicate being for their obstinacie committed to prison and vnlawfully deliuered thence before they haue giuen caution to obey the authority of the church are commaunded to be sought for and laide vp againe Register orig fo 67. a. Executione facienda is a writ commaunding execution of a iudgement the diuers vses wherof see in the table of the register iudiciall verbo Executione facienda Executione facienda in Withernamium is a writ that lyeth for the taking of his catell that formerly hath conueyed out of the county the catell of another so that the bayliffe hauing authority from the shyreeue to repleuy the cattell so conueighed away could not execute his charge Register originall fol. 82. b. Execution Executio in the common law signifieth the last performance of an act as of a fine or of a iudgement And the execution of a fine is the obtaining of actuall possession of the things contained in the same by vertue thereof which is either by entry into the lands or by writ whereof see West at large parte 2. Symbol titulo Fines sect 136. 137. 138. Executing of iudgements and statutes and such like see in Fitzh nat br in Indice 2. Verbo Execution S. Ed. Coke vol 6. casu Blumfield fo 87. a. maketh two sorts of executions one finall another with a quousque tending to an end An execution finall is that which maketh mony of the defendants goods or extendeth his lands and deliuereth them to the plaintife For this the party accepteth in satisfaction and this is the end of the suite and all that the kings writ commaundeth to be done The other sort with a Quousque is tending to an end and not finall as in the case of capias ad satisfaciendum c. this is not finall but the body of the party is to be taken to the intent and purpose to satisfie the demaundant and his imprisonment is not absolute but vntill the defendant doe satisfie Idem ibidem Executour Executor is he that is appointed by any man in his last will and testament to haue the disposing of all his substance according to the content of the said will This Executor is either particular or vniuersall Particular as if this or that thing onely be committed to his charge Vniuersall if all And this is in the place of him whom the Ciuilians call haeredem and the law accounteth one person with the party whose executor he is as hauing all aduantage of action against all men that he had so likewise being subiect to euery mans action as farre as himselfe was This executor had his beginning in the ciuill lawe by the constitutions of the Emperours who first permitted those that thought good by their wils to bestowe any thing vpon good and godly vses to appoint whome they pleased to see the same performed and if they appointed none then they ordained that the bishop of the place should haue authoritie of course to effect it l. 28. C. de Episcopis clericis And from this in mine opinion time and experience hath wrought out the vse of these vniuersall executors as also brought the administration of their goods that die without will vnto the Bishop Exemplificatione is a writ granted for the exemplification of an originall see the Register original fol. 290. Ex gravi querela is a writ that lieth for him vnto whome any lands or tenements in fee within a city towne or borough being devisable are deuised by will and the heire of the deuisour entreth into them and detaineth them from him Register originall fol. 244. Old nat br fol. 87.
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
enabled to hould certaine plees of land within their owne precincts This word Gildes or Guildes is so vsed anno 37. Ed. 3. ca. 51. anno 15. R. 2. cap. 5. And Gildhalda Teutonicorum is vsed for the fraternity of easterling merchaunts in London called the stilyard anno 22. H. 8. cap. octauo Ginger Zinziber is a spice well knowne being the roote of a plant that groweth in hot countries as Spaine Barbary c. The true forme whereof you haue expressed in Gerards herball li. 1. ca. 38. This is a spice whose roote is to be garbled anno 1. Iaco. ca. 19. Ginny peper piper de Ginnea is otherwise called Indian peper of the place whence it commeth The nature and farder description whereof you haue in Gerards herball lib. 2. ca. 66. This you haue mentioned among drugs and spices to be garbled in the statute i. Iaco. ca. 19. Gisarms anno 13. Ed. 1. stat 3. cap. 6. is a kinde of weapon Flet a writeth it Sisarmes lib. 1. ca. 24 § item quod quilibet Glaunce Ore Plowden casu Mines fo 320. b. Glanuill was a learned lawyer that was Chiefe Iustice in Henry the seconds dayes and writte a booke of the common lawes of England which is the auncientest of any extant touching that subiect Stawnf praerog cap. prim fol. 5. He was then called in Latine Ranulphus de Glanvilla He died in Richard the first his daies at the citie of Acres in the coast of Iury being with him in his voyage to the holy land Plowden casu Stowel fol. 368. b. Goe is vsed sometime in a speciall signification in our cōmon lawe as to go to God is to be dismissed the court Broke titulo Fayler de records num 1. Goe forward seemeth also to be a signe giuen by a Iudge to the Sergeant or Counceler pleading the cause of his client that his cause is not good For when he standeth vpon a point of lawe and heareth those words of the Iudges mouth he taketh vnderstanding that he looseth the action Smith de Repub. Anglo lib. 2. cap. 13. To go without day is as much as to be dismissed the court Kitchin fol. 193. Good behauiour See Good abearing Good abearing Bonus gestus is by an especiall signification an exact cariage or behauiour of a subiect toward the king and his liege people whereunto men vpon their euill course of life or loose demeanure are sometimes bound For as M. Lamberd in his Eirenarcha lib. 2. cap. 2. saith he that is bound to this is more strictly bound then to the peace because where the peace is not broken without an affray or batterie or such like this suretie de bono gestu may be forfeited by the number of a mans company or by his or their weapons or harnesse Where of see more in that learned Writer in the same chapter as also in M. Cromptons Iustice of peace fol. 119. b. 120. 121. 122. 123. 124. 125. 126. 127. Good country Bona patria is an Assise or Iury of country men or good neighbours Skene de verbo signif verbo Bona patria Graffer grafarius signifieth as much as a notarie or scriuener It commeth of the French greffier i. scriba actuarius This word is vsed in the statute anno 5. H. 8. c. 1. Graines grana paradisi aliâs Cardamomum is a spice medicinable and wholesome whereof you may see diuers kindes in Gerards herball l. 3. ca. 148. These are cōprised among merchādise that be to be garbled an◠I. c. 19. Grand assise See Assise and Magna assisa Grand Cape see Cape and Attachment Grand Sergeanty See Chyvalrie Seargeantye Grand distresse Magna destrictio is a distresse taken of all the lands and goods that a man hath within the county or bayliwicke whence he is to be distrained Fleta li. 2. ca. 69. § penult See Distresse This word is vsed anno 51. H. 3. ca. 9. This falleth out when the defendant hath been attached and yet appeareth not vpō his attachment or whē he appeareth afterward makes default For then the Shyreeue is commanded to distreine the Defendant by all his goods and chatels and to answer the king the issues of his lands Grange grangia is a house or building not onely where corne is laide vp as barns be but also where there be stables for horses stalles for oxen and other catell sties for hogs and other things necessary for husbandry Lindwood ca. item omnes de iudiciis verbo Graungus in glossa Graunt Concessio grantum Glanvile signifieth specially in our common law a gift in writing of such a thing as cannot aptly be passed or conueyed by word only as rent reversions seruices advowsens in grosse common in grosse villein in grosse tythes c. or made by such persons as cannot giue but by deede as the king and all bodies politique which differences be often in speech neglected and then is it taken generally for euerry gift whatsoeuer made of any thing by any person and he that graunteth it is named the grauntour and he to whome it is made the Grauntee West parte i. symbol lib. 2. sect 334. A thing is said to lie in graunte which cannot be assigned with out deede Coke l. 3. Lincolnes Coll. case f. 63. a. Greate men are sometimes vnderstood of the laity of the higher house of parlament as anno 43. Ed. 3. ca. 2. anno 8. R. 2. in prooem and sometime of the knights c. of the lower house as anno 2. R. 2. stat 2. in princip Gree commeth of the French Grè i. sententia beneplaecitum It signifieth in our common law contentment or good liking as to make gree to the parties is to satisfie them for an offence done anno 1. Rich. 2. cap. 15. Greachbreach is breaking of the peace Saxon in the descriptiion of England ca. 11. v. Rastal titulo exposition of words The new expounder of lawe termes writeth it Grichbreach and giueth it the same signification See Greve Greene hewe is all one with vert Manwood parte 2. of his forest lawes cap. 6. nu 5. See Vert. Greene waxe seemeth to be vsed for estretes deliuered to Shyreeues out of the exchequer vnder the seale of that court to be levied in the county anno 42. Ed. 3. ca. 9. anno 7. H. 4. cap. 3. See Forein apposer Greue praepositus is a word of power and authoritie signifiing as much as Dominus or praefectus Lamberd in his exposi of Saxon words verbo Praefectus Where he seemeth to make it all one with Reve as I thinke vndoubtedly it is The Saxon word is Gerefa whereof we haue diuers words compounded as Shyreeue Portgreave c. which were wont of the Saxons to be written Scyrgerefa Portgerefa See Shyreeue and Portgreve See Roger Hoveden parte poster suorum annal fo 346. b. where he saith thus Greue dicitur ideo quod iure debeat grithe i. pacem ex illis facere qui patriae inferunt Vae i. miseriam vel malum Grithbreach
register fol. 234. which lyeth where the tenent for terme of life or of anothers life tenent by curtesie or tenent in Dower maketh a feofment in fee dyeth he in the reuersion shall haue the foresaid writagainst whomsoeuer that is in the land after such feofment made Ingrossing of a fine is making the indentures by the chirographer and the deliuery of them to the party vnto whom the cognisance is made Fitzh nat br fol. 147. A. Ingrosser ingrossator commeth of the frence Grosseur i. crassiiudo or Grosier i. Solidarius venditor it signifieth in the common law one that buieth corne growing or dead victuall to sell againe except barly for mault oats for oatemeale or victuals to retaile badging by licence and buying of oiles spices and victualls other then fish or salte anno 5. Edward 6. cap 14. anno 5. Elizab cap 14. anno 13. Elizab. cap 25. these be M. Wests words parte 2. simbol titulo Inditements sect 64. howbeit this definition rather doth belong to vnlawfull ingrossing then to the word in generall see Forstaller Inheritance hareditas is a perpetuity in lands or tenements to a man and his heirs For Litleton cap i. lib i hath these words and it is to be vnderstand that this word inheritance is not onely vnderstand where a man hath inheritance of lands and tenements by discent of heritage but also euery fee simple or fee taile that a man hath by his purchase may be said inheritance for that that his heires may inherit him Seuerall inheritance is that which two or moe hould seuerally as if two men haue land giuen them to them and the heires of their two bodies these haue ioynt estate during their liues but their heires haue seuerall inheritance Kitchin fol 155. See the new terms of law verbo Enheritance Inhibition Inhibitio is a writt to inhibit or forbid a Iudge from farder proceding in the cause depēding before him See Fitzh nat br fol 39. where he putteth prohibition and inhibition together inhibition is most commonly a writ issuing out of a higher courte Christian to a lower and inferiour vpon an Appeale anno 24. H. 8. cap 12. and prohibition out of the kings courte to a court Christian or to an inferiour temporall court Iniunction iniunctio is an interlocutory decree out of the Chācerie sometimes to giue possession vnto the plaintife for want of apparence in the defendant sometime to the Kings ordinary court and somtime to the court Christian to stay proceeding in a cause vpon suggestion made that the regour of the law if it take place is against equitie and conscience in that Case see West parte 2. simb titulo Proceeding in Chauncery sect 25. Inlawgh Inlagatus vel homo sub lege signifieth him that is in some frank pledge of whome take Bractons words l. 3. tracta 2. cap. H. nu 5. Minor verò qui infra aetatem duodecim annorū fuerit vtlagari non potest nec extra legem poni quia ante talem aetatem non est sub lege aliqua nec in decenna non magis quam foemina quae vtlagari non potest quia ipsa non est sub lege i. Inlowghe anglicè sc in franco plegio siue decenna sicut masculus duodecim annorum vlteriūs c. Inlaughe significat hominem subiectum leg i Fleta li. i. cap. 47. Inlagary Inlagatio is a restitution of one outlawed to the kings protection and to the benifite or estate of a subiect Bracton lib. 3 tracta 2 cap. 14. nu 6. 7. 8. Britton cap 13. Inmates are those that be admitted to dwell for their mony iointly with another mā though in seuerall roomes of his mantiō house passing in and out by one doore and not being able to maintaine themselues which are inquiralle in a leete Kitchin fol 45 where you may reade him at large who be properly Inmates in intendment of law and whoe not Imprision anno 18 Ed 3 statu 4 cap. vnico seemeth to signifie so much as an attempt comming of the french empris which is all one with enterpris an enterprise Inquirendo is an authoritie giuen to a person or persons to inquire into some thing for the kings aduantage which in what cases it lieth see the Register originall fol. 72. 85. 124. 265. 266. 179. 267. Inquisition Inquisitio is a maner of proceeding in maters criminall by the office of the Iudge which Hostiensis defineth thus Inquisitio nihil aliud est quà m alicuius criminis manifesti ex bono aquo Iudicis compeientis canonicè facta investigatio ca. qualiter de accusatio In the Decretales this course we take here in England by the great Enquest before Iustices in Eyre See Eyre and the places in Bracton and Britton there noted Inquisition is also with vs vsed for the King in temporall causes and profits in which kinde it is confounded with Office Stawnf praerog fo 51. See Office Inrolement Irrotulatio is the registring recording or entring of any lawful act in the rowles of the chauncerie as recognisance acknowledged or a statute or a fine leuied See West parte 2. symbol titulo Fines sect 133. Insimul tenuit is one species of the writ called a Formdon See Formdon Intakers be a kinde of theeues in Ridesdall anno 9. H. 5. ca. 8. so called as it seemeth because they dwelling within that libertie did receiue in such booties of catell or other things as the out parters brought in vnto them See Out parters Interdiction Interdictio is vsed in the common lawe in the same signification that it hath in the canon lawe where it is thus defined interdictio est censura ecclesiastica prohibens administrationem diuinorum c. quod in te de paenitent remiss in the Decretals and thus is it vsed anno 24. H. 8. cap. 12. Interpleder See Enterpleder Intrusion Intrusio by Bracton lib. 4. cap. 2. is thus defined Intrusio est vbi quis cui nullum ius competit in re nec scintilla Iuris possessionem vacuam ingreditur quae nec corpore nec animo possidetur sicut haereditatem iacentem antequam adita fuerit ab harede vel saltem a domino capitals ratione custodiae vel ratione eschaeta si forte heredes non existant vel si post mortem alicuius per finem factum vel per modum donationis vbi successio sibi locum vendicare non possit vel si post mortem alicuius qui tenuit ad vitam debeat tenementum reverti ad proprietariū ponat quis se in seisinā antequā tenemētū illud veniat ad illū ad quem pertinere deberet ex praedictis causis with whome agreeth Fleta lib. 4. cap. 30. § 1. 2. See Britton cap. 65. to the same effect See the newe booke of Entries verbo Entrusion See Entrusion See disseisin the author of new Terms of lawe would haue intrusion especially after the tenent for life is deceased verbo Abatement and abatement in all other cases But I finde
facere Atturnatos generales f. 21. Literae procuratoriae fol. 205. 306. Literae Regia deprecatoriae pro annua pensione fol. 307. All these you may see in their places vnderstand the meaning of them as occasion shall require Liverie Liberatura is drawne from the French â—â—vree i. insigne gestamen Centuriale discrimen nota centurialis turmalis or els from livrer i. tradere and accordingly hath 3. significations In one it is vsed for a suite of cloth or other stuffe that a gentleman giueth in coates cloakes hats or gownes with cognisaunce or without to his seruants or followers anno 1. Rich. 2. cap. 7. anno 20. eiusdem cap. 1. 〈◊〉 anno 7. H. 4. ca. 14. anno 8. Ed. 4. ca. 2. anno 7. eiusdem ca. 14. anno 13. eiusdem ca. 3. a. 8. H. 6. ca. 4. anno 8. Ed. 4. ca. 3. anno 3. H. 7. ca. 1. 12. anno 11. eiusdem ca. 3. anno 19. eiusdem cap. 14. In the other signification it betokeneth a deliuery of possession vnto those tenents which hould of the king in capite or in knights seruice for the king by his prerogatiue hath primier seysini or the first possession of all lands and tenements so houlden of him anno 52. H. 3. cap. 16. an 17. Ed. 2. cap. 3. that is when any such tenent dyeth the king foorthwith entreth and holdeth it vntill the heire do his homage and so pray his land to be deliuered vnto him Which act in the king is called Liuerie and liuerie in this signification is either generall or speciall Stawn praerog fol. 12. cap. 3. Liuerie generall seemeth to be that which is made in general words and therefore may easily be missued Liuerie speciall is that which containeth in it a pardon of ouersights committed by the tenent in siewing out his liuerie by which pardon the missuing is dispensed with Stawnf pag. 67 cap. Trauers 20. See the Institutes and grounds of the common lawe cap. 30. of generall and speciall liueries Liuerie in the third signification is the writte which lyeth for the heire to obtaine the possession or seisin of his lands at the kings handes which see in Fitz. nat br fol. 155. Liuerie of seisin deliberatio seisinae is a deliuerie of possession of land or tenement or other things corporeall for of things incorporeall no liuerie of seisin may be vnto one that hath right or a probabilitie of right vnto them For as Bracton saith Traditio debet esse vestita non nuda sc quòd traditione praecedat vera causa vel putatiua qua transeat Dominicum lib. 2. cap. 18. num 3. West parte prim symbol li. 2. sect 196. calleth this a ceremonie in the common lawe vsed in the conueyance of lands or tenements c. where you may see the vsuall forme hereof particularly set downe whereunto ioyne the new exposition of law tearmes Lieutenent See Lieftenent Lieutenent of the tower seemeth to haue bene an officer vnder the Constable anno Henr. 4. cap. 15. Locus partitus signifieth a diuision made betweene 2. townes or counties to make triall in whether the land or place in question lieth Fleta lib. 4. cap. 15. num 1. Locall localis signifieth in our common lawe as much as tyed or annexed to a place certaine Example the thing is locall and annexed to the Free-hold Kitchin fol. 180. and againe in the same place An action of trespasse for battery c. is transitorie and not locall that is not needfull that the place of the batterie should bee set downe as materiall in the declaration or if it be set downe that the defendant should trauerse the place set downe by saying he did not commit the batterie in the place mentioned in the declaration and so auoide the action And againe fol. 230. the place is not locall that is not materiall to be set down in certaintie And the gard of the person and of the landes differeth in this because the person being transitorie the lord may haue his rauishment de garde before he be seised of him but not of the land because it is locall Perkins Graunts 30. Lobbe is a great kinde of north sea fish anno 31. Ed. 3. stat 3. cap. 2. Lodemanage is the hire of a Pilot for conducting of a ship from one place to another Loichfish as Lob. Ling. Cod. anno 31. Ed. 3. stat 3. cap. 2. Lode works is one of the works belonging to the Stannaries in Cornwall for the which reade M. Camdens Britan in his title of Cornwal pa. 119. See Streme work Lollards Lollards were in accompt and reputation of those times Heretiks that abounded heere in England in the daies of Edward the third and Henry the fifth anno 2. H. 5. cap. 7. whereof Weekleife was the cheife as Stowe saith in his Annalls pag. 425. who by his report went barefooted and baslely clothed to wit in base russet garments downe to the heeles they preached and especially against Monks and other religious men Of these reade more in him and others that writ of those times The name Lindwood deriueth a lolio quia sicut lolium inficit segetes sic Lollardi multociens inficiunt fideles simplices inter quos conuersantur in ca. finali de Haereticis verbo Lollardiae But Tritemius in his chronicle deduceth the name from one Gualter Lolhard a German as the first author of that sect liuing about the yeare of our redemption 1315. Lord Dominus by M. Camdens opinion is a contract of Lafford which is the Danish word for Dominus It is a word of honour with vs and is vsed diuersly Sometime being attributed to a man that is noble by birth or creation which sort are otherwise called Lords of the Parlament Sometime to those that be so called by the courtesie of England as all the sonnes of a Duke or the eldest sonne of an Earle Sometime to men honorable by office as lord chiefe Iustice c. and sometime to a meane man that hath fee and so consequently the homage of tenents within his maner For by his tenents he is called Lord and by none other and in some places for distinction sake he is called Landlord It is vsed neuerthelesse by the Writers of the common lawe most vsually in this signification And so is it diuided into lord aboue and lord mesn lord mesn is he that is owner of a maner and by vertue thereof hath tenents holding of him in fee and by copy of court rolle and yet holdeth himselfe ouer of a superiour Lord who is called lord aboue or lord Paramount old nat br fol. 79. Although I thinke none simply to be accounted lord Paramount but the Prince because all hold either mediately or immediatly of him and he of none In this signification I likewise reade Very lord and Very tenent eod fol. 42. Broke titulo Heriot num 1. where I thinke very lord is he which is immediate Lord to his tenent and him
exception alledging that he was not tenent the day whereon the writ was purchased Non-tenure generall is then by likelyhood where one denyeth himselfe euer to haue bene tenent to the land in question Non sum informatus See Informatus non sum Non sane memorie Non sane memoriae is an exception taken to any act declared by the plaintife or demaundant to be done by another wherupon he groundeth his plaint or demaund And the contents of this exceptioÌ„ be that the party that did that act being himselfe or any other was not well in his wits or madde when he did it See the new booke of Entries titulo Non sane memory and Dum non fuit compos mentis See also supra Non compos mentis Non terme non terminus is the time of vacation between Terme and Terme It was wont to bee called the times or dayes of the kings peace Lamb. Archaiono fol 126. and what these were in the time of King Edward the Confessour see there This time was called Iusticium or Feriae among the Romanes or dies nefasti Ferias appellari notum est tempus illud quod forensibus negotus iure dicendo vacabat Earum autem aliae solennes erant aliae repentinae Brisson de verb. signif lib. 6. vide Wesenbec paratit De Ferits num 6. Note of a fine nota finis is a briefe of a fine made by the Chirographer before it be engrossed The forme whereof see in West part 2. symbol titulo Fines sect 117. Novell assignement noua assignatio is an assignement of time or place or such like otherwise then as before it was assigned In Brocke you may find these wordes in effect titulo Deputie num 12. See novell assignement of trespasse in a new place after Barre pleaded Broke titulo Trespasse 122. and novel assignement in a writ de eâ—ectione custodiae titulo Eiectione custodiae num 7. See Assignement Nude mater See Mater Nunne Nonna is the French word nonnain or nonne something altered which signifieth a holy or consecrated virgin or a woman that hath by vowe bound her selfe to a single and chast life in some place and company of other women separated from the world and addicted to an especiall seruice of God by prayer fasting and such like holy exercises If we wold know whence this word came into Fraunce S. Hierome maketh it an Egyptian word as Hospinian recordeth of him in his booke De origine progressumonachatus fol. 3. Nuper obtit is a writ that lyeth for a coheire being deforced by her coheire of lands or tenements whereof the graundfather father vncle or brother to them both or any other their common auncesters dyed seised of an estate in fee simple See the forme of the writ origin Regist fol. 226. c. Fitz. nat br fol. 197. If the auncestour dyed seised in fee tayle then the coheire deforced shall haue a Formdon Idem ibid. Nusance nocumentum commeth of the French nuire i. nocere It signifieth in our common lawe not onely a thing done whereby another man is annoyed in his free lands or tenements but especially the Assise or writ lying for the same Fitz. nat br fol. 183. And this writ de Nocumento or of Nusance is either simply De nocumento or de paruo nocumento and then it is Vicountiel old nat br f. 108. 109. Fitzh nat br vbi supra fol. 184. Britton calleth it Nosance whome also reade ca. 61. 62. M. Manwood parte 2 of his forest lawes ca. 17. maketh three sorts of Nusance in the forest the first is Nocumentum commune the second Nocumentum speciale the third Nocumentum generale which reade with the rest of that whole chapter See the Register originall fol. 197. 199. Nutmegs nux myristica vel nux muscata is a spice well knowne to all It groweth of a tree like a peach tree and is inclosed in two huskes whereof the inner huske is that spice which we call mace Of this who will may reade more in Gerards herball lib. 3. ca. 145. It is mentioned among spices that are to be garbled anno 1. Iaco. ca. 19. O OBedientiae was a rent as appeareth by Roger Hoveden parte poster suorum annalium fol. 430. in these words vt ergo eis sc regularibus adimatur oportunitas evagandi prohibe 〈…〉 ne reditus quos obedientias vocant ad firmam teneant c. Obedientia in the canon lawe is vsed for an office or the administration of an office ca. cùm ad monasterium 6. extra de statu monacho cano regula And therevpon the word obedientiales is vsed in the provinciall constitutions for those which haue the execution of any office vnder their superiors cap. pri de statu regula For thus saith Lyndwood in his glosse vpon that word Hii sunt qui sub obedientia suorum praelatorum sunt habent certa officia administranda interiùs vel exterius It may be that some of these offices called obedientiâ— consisted in the collection of rents or pensions and that therefore those rents were by a metonymie called obedientiae quia colligebantur ab obedientialibus Oblations oblationes are thus defined in the canon lawe Oblationes dicuntur quaecunque a piâ—s fidelibusque Christianis offeruntur Deo ecclesiae siue res soli siue mobiles sint Nec refert an legentur testamento an aliter donentur cap. clerici 13. quaest 2. Reade more of these in Duarenus De sacr eccl minister ac benefi cap. tertio Obligation Obligatio and Bill be all one sauing that when it is in English it is commonly called a Bill and when it is in Latine an Obligation West parte 1. symbol lib. 2. sect 146. True it is that a Bill is obligatorie but we commonly call that an obligation which hath a condition annexed The former author in the same place saith thus farder An obligation is a deede whereby the obligour doth knowledge himselfe to owe vnto the Obligee a certaine summe of money or other thing In which besides the parties names are to be considered the thing due and the time place and maner of payment or deliuerie Obligations be either by mater in deede or of record An obligation by mater in deede is euery obligation not acknowledged made in some court of record Hitherto M. West Occupauit is a writ that lieth for him which is eiected out of his land or tenement in time of warre as a writ of Novel disseisin lieth for one eiected in time of peace Ingham § Bref de novel disseisin Octo tales See Tales See Brooke tit Octo tales Odio atia anno 3. Ed. 1. ca. 11 is a writ sent to the vndershyreeue to inquire whither a man being committed to prison vpon suspition of murder be committed vpon malice or euill will or vpon iust suspition Register originall fol. 133. b. See Bracton li. 3. parte 2. ca. 20. Office Officium doth signifie not onely that function by
the Parson of the Church dying a straunger presenteth his Clerke to the Church he not hauing moued his action of Quare impedit nor darrein presentment within sixe monethes but suffered the straunger to vsurpe vpon him And this writ he only may haue that claimeth the Aduowzen to himselfe and to his heires in fee. And as it lyeth for the whole aduowzen so it lyeth also for the halfe the third the fourth part old nat br fol. 24. Register originall fol. 29. Recto de custodia terrae haeredis is a writ that lyeth for him whose Tenent houlding of him in Chiualry dyeth in his nonage against a straunger that entreth vpon the land and taketh the body of the heire The forme and farder vse whereof see in Fitzh nat br fol. 139. and the register originall fol. 161. Recto sur disclaimer is a writ that lyeth where the Lord in the kings court sc in the common plees doth avow vpon his tenent and the Tenent disclaimeth to hould of him vpon the disclaimer he shall haue this writ and if the Lord auerre and proue that the land is houlden of him he shall recouer the land for euer old nat br fo 150. which is grounded vpon the statute Westm 2. ca. 2. anno 13. Ed. pri which statute beginneth Quia Domini feudorum c. Rector is both Latine and English signifiing a Gouernour In the common law rector ecclesia parochialis is he that hath the charge or cure of a parish Church qui tantum ius in ecclesia parochiali habet quantum praelatus in ecclesia collegiata ca. vlt De locat Conduct in glos verbo Expelli potuissent In our common law I heare that it is lately ouer ruled that rector ecclesiae parochialis is he that hath a personage where there is a vicarage endowed and he that hath a personage without a vicarage is called persona But this distinction seemeth to be new and subtile praeter rationem I am sure Bracton vseth it otherwise lib 4. tracta 5. ca. pri in these words Et sciendum quod rectoribus ecclesiarum parochialium competit Assisa qui instituti sunt per Episcopos Ordinarios vt personae Where it is plaine that rector and persona be confounded Marke also these words there following Item dici possunt rectores Canonici de ecclesus praebendatis Item dici possunt rectores vel quasi Abbates Priores alii qui habent ecclesias ad proprios vsus Rectus in curia is he that standeth at the barre and hath no man to obiect any offence against him Smith de repub Angl li. 2. c. 3. see a. 6. R. 2. sta 1. c. 12. Reddendum is vsed many times substantiuely for the clause in a lease c. Whereby the rent is reserued to the leasour Coke lib. 2. Lord Cromwels case fol. 72. b. Redisseisin redisseisina is a disseisin made by him that once before was found and adiudged to haue disseised the same man of his lands or tenements For the which there lyeth a speciall writ called a writ of redisseisin old nat br fol. 106. Fitzh nat br fol. 188. See the new booke of Entries verb. Redisseisin Redisseisina is a writ lying for a redisseisin Reg. orig fo 206. 207. Reddicion is a iudiciall confession and acknowledgement that the land or thing in demauÌ„d belongeth to the demaundant or at the least not to himselfe a. 34. 35. H. 8. ca. 24. Perkins Dower 379. 380. Redubbours be those that buy cloth which they know to be stollen and turne it into some other forme or fashion Britton cap. 29. Cromptobs Vicount fol. 193. a. Reentry coÌ„meth of the French râ—â—trer i. rursus intrare and signifieth in our common law the resuming or taking againe of possession which we had â—â—â—st forgone For example if I make a lease of land or tenement I doe thereby forgoe the possession and if I doe condition with the Leassee that for non payment of the rent at the day it shal be lawfull for me to reenter this is as much as if I conditioned to take againe the lands c. into mine owne hands and to recouer the possession by mine owne fact without the assistance of Iudge or proces Reere countie See Rier Cowntye Re extent is a a second extent made vpon lands or tenements vpon complaint made that the former extent was partially performed Brooke titulo Extent fol. 313. Regard regardum is borowed of the French Regard or Regardure i. aspectus conspectus respectus and though it haue a generall signification of any care or diligence yet it hath also a speciall acceptance and therein is vsed onely in maters of the Forest and there two waies one for the office of the Regarder the other for the compasse of ground belonging tothe Regarders office or charge Cromptons Iurisd fol. 175. 199. Touching the former thus saith M. Manwod parte pri of his Forest lawes pag. 198. The Eire generall sessions of the Forest or Iustices seat is to be houlden and kepte euery third yeare and of necessity before that any such sessions or Iustices seate can be houlden the Regarders of the Forest must make their Regard And this making of the Regard must be done by the kings writ And the Regard is as he afterward there saith to goe through the whole Forest and euery Bayliwicke of the same to see and enquire of the trespasses of the Forest which he compriseth in these 4. viz. ad videndendum ad inquirendum ad imbreviandum ad certificandum Of euery of which braunches you may reade there his exposition Touching the second signification the compas of the Regarders charge is the whole Forest that is all that ground which is parcell of the Forest For there may be woods within the limits of the Forest that be no parcell thereof and those be without the Regard as the same author plainely declareth parte pri pag. 194. and againe parte 2. cap. 7. nu 4. where he sheweth the difference between these words Infra Regardum or Rewardum Infra Forestam Regarder Regardator commeth of the French Regardeur i. spectator signifieth an officer of the Forest Cromptons Iurisdict fol. 153. where it is thus defined A Regarder is an officer of the Forest appointed to survew all other officers He saith there also that this officer was ordeined in the beginning of King Henry the seconds daies M. Manwood in his first part of Forest lawes pag. 188. thus defineth him A Regarder is an officer of the Kings Forest that is sworne to make the Regard of the Forest as the same hath been vsed to be made in auncient time And also to view and inquire of all offences of the Forest as well of vert as of venison and of all concealements of any offences or defaults of the Foresters and of all other officers of the Kings Forest concerning the execution of their offices He saith there also that a Regarder may be made either by the Kings
in the receipt that the Lord Treasurer doth He nominateth the two Praysers of all goods seised as not customed and ordereth whether the partie shall haue them at the price or not He appointeth the Steward Cooke and Butler for the prouision of the Starre-chamber But this Officer in other mens iudgment is farre more auncient then Henry the seuenths dayes yet named Treasurer of the Exchequer in the Statutes vntill Queene Elizabeths time where he is tearmed Vnder-treasurer of England Neuerthelesse anno 35 Eliz. he is also written Treasurer of the Exchequer Read the Statutes anno 18. Ed. 3. stat 2. cap. 17. 27. eiusdem Stat. 2. cap. 18. 1. Rich. 2. cap. 5. 4. Hen. 4. cap. 18. 8. H. 6. cap. 17. 27. H. 8. cap. 11. with diuers other places that seeme to approue this to be true Vnion vnio is a combining or consolidation of two Churches in one which is done by the consent of the Bishop the Patron and the Incumbent And this is properly called an Vnion Howbeit that there be two other sortes as when one Church is made subiect to the other and when one man is made Prelate of both and when a conuentual is made Cathedrall as you may reade in the Glosse of the chapter Licet De locato conducto in Lyndwoods Prouincials § Et quia versu Appropriationis Touching Vnion in the first signification there was a statute an 37. H. 8. cap. 21. that it should be lawfull in two Churches wherof the value of the one is not aboue sixe pounds in the Kings bookes of the first fruites and not aboue one mile distant from the other Vnion in this signification is personall that is for the life of the Incumbent or reall that is perpetuall whosoeuer be Incumbent Vnitie of possession is called consolidatio vsus fructus proprietatis in the Ciuill lawe signifying a ioynt possession of two rights by seuerall titles For example I take a lease of land from one vpon a certaine rent afterward I buy the Fee-simple This is an vnitie of possession wherby the lease is extinguished by reason that I which had before the occupation only for my rent am become Lord of the same and am to pay my rent to none but my selfe Also an Abbot being seated within a certaine parish afterward obtaineth an appropriation of the tythes belonging to that Church for the vse of his house Here is an vnity of possession by reason that the tythes which before were to be paid to the Incumbēt are now to be paid to none but himselfe by vertue of the appropriation Vniversitie Vniuersitas is by the Ciuill lawe any bodie politicke or corporation but in our language it is at the least most ordinarily taken for those two bodies that are the Nourishes of learning and the liberall Sciences Cambridge and Oxford endowed with great fauours and priuiledges for their beter maintenance as appeareth not onely by an 2. 3. Ph. Mar. c. 15. a. 13. El. c. 21. a. 18. eius c. 6. but much more by their seuerall charters graunted vnto them by diuers godly and magnanimous Kings of this land Vnlawfull assembly Illicita congregatio illicita assemblata is the meeting of three or more persons together with force to commit some vnlawfull act and abiding stil not indeuouring the execution thereof as to assault or beate any person to enter into his house or land c. West parte 2. symb titulo Inditements sect 65. M. Lam. in his Eirenarcha cap. 19. saith thus An vnlawfull assembly is the companie of three persons or more gathered together to do such an vnlawfull act although they do it not indeed So saith Kitchin in effect fol. 20. Vnques prist is word for word alwaies readie And it signifieth a Plee whereby a man professeth himselfe alway ready to do or performe that which the Demaundant requireth therby to auoide charges For example a woman sieweth the tenent for her Dower and he cōming in at the first day offereth to auerre that he was alway ready and still is to performe it In this case except the Demaundant will auerre the contrarie he shall recouer no dammages When this Plee will serue to auoide Charges and when not see Kit. fol. 243. See Vncore prist Voydance vacatio is a want of an Incumbent vpon a benefice and this voydance is double either in law as when a man hath more benefices incōpetible or indeed as when the Incumbēt is dead or actually depriued Brooke titulo Quareimpedit n. 51. Voucher Aduocatio is a calling in of one into the Court at the petition of a party that hopeth to be helped thereby New booke of Entries verbo voucher voucher de garantie Brit. ca. 75. in latine Aduocatio ad war antizandum is a petition in court made by the Defendant to haue him called of whom he or his Auncester bought the land or tenement in question and receiued warranty for the secure inioying thereof against all men Britton of this writeth a long chapter vbi supra intituling it Garant voucher But Bracton writeth a large tractate of it lib. 5. tracta 4. per totum Litleton also handleth it not minsingly in the last chapter of all his Tenures Of this you may read Fitzh also in his nat br fol. 134. De warantia chartae All this law seemeth to haue bene brought into England out of Normandy For in the Grand Custumary you haue likewise a chapter intituled vouchement de garant cap. 50. id est vocamentum Garanti where it is set downe what time ought to be giuen for the appearance of the warrant called in this case how many warrants may be vouched one calling in another and diuers other points touching this doctrine All which and many more you may read in Bracton vbi supra A common voucher a double voucher Coke lib. 2. Sir Hughe Cholmleis case fol. 50. b. This is very aunswerable to the contract in the Ciuill lawe whereby the buyer bindeth the seller sometime in the simple value of the thing bought sometime in the double to warrant his secure enioying of the thing bought But this difference I find betweene the Ciuill lawe and ours that whereas the Ciuill lawe bindeth euery man to warrant the securitie of that which hee selleth ours doth not so except it be especially couenanted The party that voucheth in this case is called the Tenent the partie vouched is tearmed the Vouchee The writ whereby he is called is termed Summoneas ad warrantizandum And if the Shyreeue return vpō that writ that the party hath nothing whereby he may be summoned then goeth out another writ viz. Sequntur sub suo periculo See Termes of the lawe verbo Voucher And Lamb. in his Explication of Saxon wordes verbo Advocare See Warrantie I reade in the new booke of Entries of a forain voucher which hath place properly in some Franchise Countie Palatine or other where one voucheth to warrantie one not dwelling within the Franchise fol. 615.
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