be it by Knights Service or Soccage and not of any Honor Castle or Mannor and for this it is also called a Tenure which holds meerly of the King For as the Crown is a Corporation a Seignory in gross so the King who possesses the Crown is in the eye of the Law perpetually King never in his Minority and dies no more than Populus doth whose authority he bears See Fitz N. BreÌ„ fol. 5. Yet note That a man may hold of the King and yet not in Capite that is not immediately of the Crown in gross but by means of some Honor Castle or Manor belonging to the Crown whereof he holds his Land Of this Kitchin saith well That a man may hold of the King by Knight's service and yet not in Capite because it may be he holds of some honour by Knights service that is in the Kings hands by descent from his Ancestors and not immediately of the King as of his Crown fol. 129. With which agrees Fitzh Nat. BreÌ„ fol. 5. k. whose words are to this effect It plainly appears that Lands which are held of the King as of an Honor Castle or Manor are not held in Capite of the King because a Writ of right iu this case shall be directed to the Bailiff of the Honor Castle or Manor c. But when the lands are held of the King as of his Crown then they are not held of an Honor Castle or Manor but meerly of the King as King as of his Crown as of a Seignory of it self in gross and the chief of all other Seigniories And this Tenure in Capite is otherwise called Tenure holding of the person of the King Dyer fol. 44. Brook titulo Tenures num 65 99. And yet Ki â— chen fol. 208. saith That a man may hold of the person of the King and yet not in Capite His Case is this If the King purchase a Manor that J. S. holds the Tenant shall hold as he did before and he shall not render Livery nor primer Seisin nor hold in Capite And if the King grants his Manor to W. N. in fee excepting the services of J. S. then J. S. holds as of the person of the King and yet holds not in Capite but as he held before By which it seems that Tenure holding of the person of the King and Tenure in Capite are two divers Tenures To take away which difference it may be said That this place of Kitchen is to be taken as if he had said Not in Capite by Knights service but by Socage following the usual speech because most commonly where we speak of Tenure in Capite we intend Tenure by Knight's service See the Stat. 12 Car. 2. c. 24. by which all Tenures are now turned into free and common Socage Cark CArk seems to be a quantity of Wooll whereof 30 make a Sarplar 27 H. 6. cap. 2. See Sarplar Carno CArno is an Immunity as appears in Cromp. Jurisd f. 191. where it is said That the Prior of Malton made claim for him and his men to be quit of all Amerciaments within the Forest and also to be quit of Escapes and of all manner of Gelds and of Foot-gelds Buckstall Trites Carno and Summage c. Carrack or Carrick CArrack alias Carrick is a Ship of burthen and is so called of the Italian word Carico or Carco which signifies a Burthen This word is mentioned in the Statute 1 Jac. c. 33. Carue of Land CArue or Carucate of land is a certain quantity of land by which the Subjects have been heretofore taxed whereupon the Tribute so levied is called Caruage Bract. l. 2. c. 16. num 8. Lit. Sect. 119. saith that Soca is the same with Caruca sc a Soke or Plow Stow in his Annals p. 251. hath these words The same time H. the King took Caruage that is to say two Marks of Silver for every Knight's Fee to the marriage of his sister Isabel to the Empereur By which it seems there was raised of every Plow-land so much and so consequently of every Knight's free two Marks of Silver Rastal in his Exposition of words saith that Caruage is to be quit if the King shall tax all the Land by Plows that is a Priviledge by which a man is freed from Caruage Skene saith that it contains as great a portion of land as may be eyred or tilled in a year and a day with one Plow which also is called a Hild or Hide of land Castellain CAstellain is a Keeper or Captain sometimes called a Constable of a Castle Bracton l. 5. c. 2. cap. 16. In the same manner it is used anÌ„ 3 E. 1. c. 7. In the book of Feudis you shall find Guastaldus to be of like signification but more large because it is also extended to those that have the custody of the King's Mansion-houses called Courts notwithstanding they are not places of defence or force Manwood part 1. of the Laws of the Forest p. 113. saith That there is an Officer of the Forest called Castellanus Castle-guard CAstle-guard is an Imposition laid upon such of the Kings subjects as dwell within a certain compass of any Castle to the maintenance of such as watch and ward it Mag. Chart. cap. 2. an 32 H. 8. ca. 48. It is sometimes used for the Circuit it self which is inhabited by such as arc subject to this Service See Chivalry Casu consimili CAsu consimili is Writ of Entry granted where the Tenant by courtesie or Tenant for term of life or for the life of another aliens in Fee or in tail or for the life of another And it hath this name because the Clerks of the Chaucery have framed it by their common consent like the Writ called in casu ê“viso according to the authority given them by the Stat. of West 2. cap. 24. which wills That as often as it shall happen in Chancery that in one case a Writ is found and in the like case a remedy is wanting the Clerks of the Chancery should agree to make a Writ c. And this Writ is granted to him in reversion against the party to whom the said Tenant so aliened to his prejudice and in the life of the Tenant See more of this F. N. B. fol. 206. Casu proviso CAsu proviso is given by the Stat of Gloucester cap. 7. This Writ lies where Tenant in Dower aliens in Fee or for life or in tail the Land which she holds in Dower there he that hath the Reversion Fee or in Tail or for term of life shall presently have this Writ against the Alienee or him that is Tenant of the Free-hold of the Land and that during the life of the Tenant in Dower F. N. B. 205. n. Catals CAtals or Chatels comprehend all Goods movable and immovable except such as are in nature of Free-hold or parcel of it as may be collected out of Stamf. Praer cap. 16. and anno 1 Eliz. cap. 2. Yet Kitch fol. 32. saith that
Lessee pays the Rent to the Lessor and he receives it and puts it in his purse and afterwards upon review of it at the same time he finds that he hath received some counterfeit pieces aud thereupon refuses to take away the Money but re-enters for the Condition broken there his Entry is not lawful for when he hath accepted the Money this was at his peril and after this allowance he shall not take exception to any of it Collateral COllateral is that which comes in or adheres to the side of any thing as Collateral Assurance is that which is made over and beside the Deed it self For example if a man covenants with another and enters Bond for the performance the Bond is called Collateral Assurance because it is external and without the nature and essence of the Covenant And Crompton fol. 185. saith that to be subject to feeding the Kings Deer is collateral to the soil within the Forest In like manner we may say that the liberty to pitch Sheds or Standing for a Fair in the soil of another man is collateral to the land The private Woods of a common person within the Forest cannot be cut down without the Kings license for it is a Prerogative collateral to the soil Man part 1. pag. 66. Collateral Warranty See tit Warrantie Collation COllation is properly the bestowing of a Benefice by the Bishop that hath it in his own Gift or Patronage and differs from Institution in this for that Institution into a Benefice is performed by the Bishop at the motion and Presentation of another who is Patron of the same Church or hath the Patrons right for that time Yet Collation is used for Presentation in 25 E. 3. Stat. 6. and there is a Writ in the Regist 31. b. called De Collatione facta uni post mortem alterius c. directed by the Iustices of the Common Pleas commanding them to direct their Writ to the Bishop for the admitting a Clerk in the place of another presented by the King who during the Suit between the King and the Bishops Clerk deceased for judgment once passed for the Kings Clerk and he dying before he be admitted the King may give his Presentation to another Collusion COllusion is where an action is brought against another by his own agreement if the Plaintiff recover then such Recovery is called by Collusion And in some cases the Collusion shall be enquired of as in Quare impedit and Assise and such like which any Corporation or Body politick brings against another to the intent to have the Land or Advowson whereof the Writ is brought in Mortmain But in Avowry nor in any Action personal the Collusion shall not be inquired See the Stat. of Westm 2. c. 32. which gives the Quale jus and enquiry in such cases Colour COlour is feigned matter which the Defendant or Tenant uses in his barre when an Action of Trespass or an Assise is brought against him in which he gives the Demandant or Plaintiff a Shew at first sight that he hath good cause of Action where in truth it is no just cause but only a Colour and Face of a cause and it is used to the intent that the determination of the Action should be by the Iudges and not by an ignorant Iury of twelve men And therefore a Colour ought to be a matter in Law doubtfull to the common people As for example A. brings and Assise of land against B. and B. saith he himself did let the same land to one C. for term of life and afterward did grant the Reversion to A. the Demandant and after C. the Tenant for term of life died after whose decease A. the Demandant claiming the Reversion by force of the Grant whereto C. the Tenant for life did never atturn entred upon whom B. entred against whom A. for that Entry brings this Assise c. This is a good Colour because the common people think the land will pass by the Grant without Atturnment where indeed it will not pass c. Also in an Action of Trespass Colour must be given of which there are an infinite number one forexample In an Action of Trespass for taking away the Plaintiffs Beasts the Defendant saith that before the Plaintiff had any thing in them he himself was possessed of them as of his proper goods and delivered them to A. B. to deliver them to him again when c. and A. B. gave them unto the Plaintiff and the Plaintiff supposing the property to be in A. B. at the time of the gift took them and and the Defendant took them from the Plaintiff whereupon the Plaintiff brings an Action that is a good Colour and a good Plea See more hereof in Doctor and Student l. 2. c. 13. Colour is for this cause viz. where the Defendant justifies by title in trespass or Assize if he do not give the Plaintiff Colour his plea amounteth only to not guilty for if the Defendant hath title he is not guilty 1 Co. 79. 108. Colour of Office COlour of Office is always taken in the worst part and signifies an act evilly done by the countenance of an Office and it bears a dissembling face of the right of the Office whereas the Office is but a vail to the falshood and the thing is grounded upon vice and the Office is as a shadow to it But by reason of the Office and by virtute of the Office are taken always in the best part and where the Office is the just cause of the thing and the thing is pursuing the Office Plo. in Dive Man case sol 64. a. Combat COmbat in our ancient Law was a formal Trial of a doubtful Cause or quarrel by the Sword or Bastons of two Champions See Glanvile l. 14. c. 1. Britton c. 22. and Dyer fol. 301. num 41. Commandment COmmandment is taken in divers significations sometimes for the Commandment of the King when by his mere motion and from his own mouth he casts any man into prison Stamf. Plac. Coron fol. 72. or of the Iustices And this Commandment of the Iustices is either absolute or ordinary Absolute as when upon their own authority or wisdom and discretion they commit any man to prison for a punishment Ordinary is when they commit one rather to be safely kept then for punishmenr and a man committed by such ordinary Commandment is bailable Placit Cor. fol. 73. Commandment is again used for the offence of him that wills another man to transgresse the Law or to do any such thing as is contrary to the Law as Murther Theft or such like Bract. l. 3. tract 2. c. 19. The Civilians call this Commandment Angelus de maleficiis Commendrie COmmandrie was the name of a Manor or chief Messuage with which Lands or Tenements were used belonging to the late Priory of S. John of Jerusalem untill they were given to King Henry the eighth by Statute made in the 32 year of his reign And he who
Registry of Proceedings are not properly called Records But Courts of Law held by the Kings Grant are Courts of Record Recovery REcovery is commonly intended a common recovery by assent of parties to dock an Intail and is founded upon a Writ of Entry Also every Iudgment is a Recovery by the words Ideo consideratum est quod recuperet Recusants REcusants are all those who separate from the Church and Congregation by the Laws and Statutes established in this Realm of what opinion or Sect they are of As all the Iudges have expounded the Statute 35 Eliz. cap. 1. and divers other Stat. Redisseisin REdisseisin Look of that before in the Title Assise Reextent REextent is a second Extent made upon Lands or Tenements open complaint made that the Former Extent was partially performed Broke tit Extent fol. 313. Regarder REgarder comes of the French Regardeur id est Spectator and signifies an Officer of the Kings Forest sworn to take care of the Verr and Venison and to view and inquire of all the Offences committed within the Forrest and of all the concealments of them and if all the Officers of the Forrest do well execute their Offices or no. See Manwood's Forrest Laws cap. 21. fol. 191. b. Regrator REgrator is he that hath Corn Victuals or other things sufficient for his own necessary use or spending and doth nevertheless ingross and buy up into his hands more Corn Victuals or other such things to the intent to sell the same again at a higher and dearer price in Fairs Markets or other such like places whereof see the Statute 5 E. 6. cap. 14. He shall be punished as a Forestaller Rejoynder REjoynder is when the Desendant makes answer to the Replication of the Plaintiff And every Rejoynder ought to have these two properties specially that is it ought to be a sufficient Answer to the Replication and to follow and enforce the matter of the Barre Relation RElation is where in consideration of Law two times or other things are considered so as if they were all one and by this the thing subsequent is said to take his effect by relation at the time preceding As if one deliver a writing to another to be delivered to a third person as the Deed of him who delivered it when the other to whom it should be delivered hath paid a summ of mony now when the money is paid and the Writing delivered this shall be taken as the Deed of him who delivered it at the time when it was first delivered So Petitions of Parliament to which the King assents on the last day of Parliament shall relate and be of force from the first day of the beginning of the Parliament And so it is of divers other like things Release RElease is the Giving or Discharging of the Right or Action which any hath or claims against another or his Land And a Release of Right is commonly made when one makes a Deed to another by these or the like words Remised released and utterly for me and my Heirs quite claimed to A. B. all my right that I had have or by any means may have hereafter in one Messuage c. But these words whatsoever I may have hereafter are void For if the Father be disseised and the Son release by his Deed without Warranty all his right by those words whatsoever I may have hereafter c. and the Father dies the Son may lawfully enter in the possession of the Disseisor Also in a Release of Right it is needful that he to whom the Release is made have a Freehold or a Possession in the Lands in Deed or in a Law or a reverston at the time of the release made for if he have nothing in the Land at the time of the release made the Release shall not be to him available See more hereof in Littl. lib. 3. cap. 8. Relicta verificatione RElicta Verificatione is when a Defendant hath pleaded and the issue is entred of Record And after that the Defendant relicta verificatione que est son Plea acknowledges the Action and thereupon Iudgment is entred for the Plaintiff Relief RElief is sometimes a certain summ of mony that the Heir shall pay to the Lord of whom his Lands are holden which after the decease of his Ancestor are to him descended as next Heir Sometimes it is the Payment of another thing and not mony And therefore Relief is not certain and alike for all Tenures but every several Tenure hath for the most part his special Relief certain in it self Neither is it to be paid always at a certain age but varies according to the Tenure As if the Tenant have Lands holden by Knights Service except grand Serjeanty and dies his Heir being at full age and holding his Lands by the Service of a whole Knights Fee the Lord of whom these Lands are so holden shall have of the Heir an hundred shillings in the name of the Relief and if he held by less than a Knights Fee he shall pay less and if more then more having respect always to the rate for every Knights Fee Cs. And if he held by grand Serjeanty which is always of the King and is also Knights Service then the Relief shall be the value of the Land by the year besides all charges issuing out of the same And if the Land be holden in Petit Serjeantie or in Socage then for the Relief the Heir shall pay at one time as much as he ought to pay yearly for his Service which is commonly called the Doubling of the Rent And if a man hold of the King in chief and of other Lords the King shall have the Ward of all the Lands and the Heir shall pay Relief to all the Lords at his full age but the Lords shall sue to the King by petition and shall have the Rent for the time that the Infant was in Ward But see now that by the Statute of 2 E. 6. cap. 8. the mesne Lords are not put unto their Petition but shall have all the Rents paid them by the Kings Officers upon request yearly during the Kings possession And note that always when the Relief is due it must be paid at one whole payment and not by parts although the Rent be to be paid at several Feasts See the Statute 12 Car. 2. cap. 24. Remainder REmainder of Land is the Land that shall remain after the particular Estate determined As if one grant Land for term of years or for life the Reinainder to J. S. that is to say when the Lease for years is determined or the Lessee for life is dead then the Land shall remain or abide with to or in J. S. See Reversion Remembrancer del Eschequer REmembrancer del Eschequer there are three Officers or Clerks there called by that name one is called the Remembrancer of the King the other of the Lord Treasurer and the third of the First fruits The Kings Remembrancer enters in his Office all Recognisances for
Fieri facias If a man recover by a Writ of Debt and sue a Fieri facias and the Sheriff return that the Defendant hath nothing whereof he may satisfie the Debt to the party then the Plaintiff shall have Elegit or Capias sicut alias and a Pluries And if the Sheriff return at the Caplas Mitto vobis corpus and he have nothing whereof he may make satisfaction to the party he shall be sent to the prison of the Fleet and there abide untill he have made Agreement with the party and if the Sheriff return Non est inventus then there shall go forth an Exigent against him Note well That in a Writ of Debt brought against a Parson who hath nothing of Lay-Fee and the Sheriff returns that he may not be summoned then shall the Plaintiff sue a Writ to the Bishop to cause his Clerk to come and the Bishop shall make him come by Sequestration of the Church And if a man bring a Writ of Debt and recover and make his Executors and die they shall not have Execution notwithstanding it be within the year be a Fieri facias There is another sort of Elegit upon adjudging execution against Terr-tenants which Elegits recite the lands against which Execution is adjudged and commands the Sheriff to deliver to the Creditor a moyty of those Lands and nothing is therein mentioned of any Goods or Chattels as in the other Elegits Elopement ELopement is when a married woman departs from her husband and dwells with an Adulterer for which without voluntary reconcilement to her husband she shall lose her Dower by the Statute of West 2. cap. 34. Whereupon is this old Verse The woman that her husband leaves And with Adult'ry is defil'd Her Dower she shall want unless She first to him be reconcil'd Embleaments EMbleaments are the Profits of the Land which have been sowed and in some cases he who sowed them shall have them and in some not as if Tenant for life sow the Land and afterwards die the Executors of the Tenant for life shall have the Embleaments and not he in Reversion But if Tenant for years sow the Land and before that he hath reap'd his term expires there the Lessor or he in Reversion shall have the Embleaments If one desseises me and cuts the Embleaments growing upon the Land and afterwards I re-enter I shall have an Action of Trespasse against him for the Embleaments but if my Disseisor makes a Feoffment in fee or leases the Land whereof he disseised me and the Feoffee or Lessee takes the Embleaments and after I re-enter I shall not have Trespass Vi armis against them who come in by Title but against my Disseisor Cok. lib. 11. f. 51. If a woman Copiholder during her Widowhood according to the Custome of the Mannor sows the Land and before severance of the Embleaments she takes a husband the Lord shall have the Embleaments So if a woman seised of Land during her Widowhood makes a Lease for years and the Lessee sows the Land and the woman takes a husband there the Lessee shall not have the Embleaments although his Estate be determined by the act of a stranger And although it is commonly held in our Books That if a man leases Lands at will and after the Lessee sows the Land and then the Will is determined that the Lessee shall have the Embleaments yet if the Lessee himself determines the Will before the severance of the Corn. he shall not have the Embleaments See Cok. lib. 5. fol. 116. Embrasour or Embraceour EMbrasour or Embraceour is he that when a matter is in trial between party and party comes to the Barrs with one of the parties having received some reward so to do and speaks in the case or privily labours the Iury or stands there to survey or overlook them thereby to put them in fear and doubt of the matter But persons learned in the Law may speak in the case for their clients Emparlance EMparlance is when a man being to answer to a Suit or Action desires some time of Respite to advise himself the better what he shall answer and it is nothing else but a Continuance of the Cause untill a fatther day And though the Plaintiff in the Kings Bench after the Barre pleaded hath time to reply two or three Terms after yet no mention shall be made in the Roll of any Emparlance or Continuance but the Entry shall be general and so intended to be the same Term. But it is otherwise with a Barre for it contains the Emparlance or Continuance and is in this manner And now at this day that is Friday c in the same Term untill which day the aforesaid A had licence to imparle c. But there is no such Entry upon any Replication or Rejoynder See Coke lib. 5. fol. 75. Brit. cap. 53. uses this word for the Conference of a Iury upon the business to them committed There is a special Imparlance also for a Defendant salvis sibi omnibus omnimodis exceptionibus ad breve narrationem or ad billam which is of use where the Defendant is to plead some matters which cannot be pleaded after a general imparlance Encheson ENcheson is a French word much used in our Law Books as in the Statute of 50 E. 3. cap. 3 and it signifies as much as the Occasion cause or reason for which any thing is done So it is used by Stamford lib. 1. cap. 12. in his description of a Deodand Encrochment ENcrochment comes from the French word Acrocher that is to Pull or draw to And it signifies an Vnlawfull gaining upon the right or possession of another And so a Rent is said to be encroched when the Lord by Distresse or otherwise compells the Tenant to pay more Rent then he ought or then he need See Bucknal's Case 9 Rep ' fol. 33. So when a man sees his Hedge or his Wall too far into the land or ground of his neighbour that lies next him he is said to incroach upon him Enditement or Indictment INdictment comes of the French Enditer that is to set a man out as he is And it is a Bill or Declaration in form of Law exhibited by way of Accusation against one for some offence either criminal or penal and preferred to Iurors and by their Verdict found and presented to be true before a Iudge or Officer that hath power to punish or certifie the Offence Endowment ENdowment Dotatio signifies properly the Giving or assuring of Dower to a woman But it is sometimes by a Metaphor used for the Setting out or severing of a sufficient part or portion to a Vicar for his perpetual maintenance when the Benefice is appropriated And so it is used in the Statutes of 15 R. 2. cap. 6. and 4 H. 4. cap. 12. Endowment de la pluis belle part ENdowment de la c. is when a man dies seeised of some Lands held in Knights-service and others in
satisfied but with the death of the enemy such is that amongst the people in Scotland and in the Northern parts of England which is a Combination of all the Kindred to revenge the death of any of the Blood upon the Slayer and all his race And this word is mentioned in the Stat. of 43 Eliz. c. 13. Fieri facias FIeri facias is a Writ judicial and lies where a â—â— an recovers Debt or Da â—â— nages in the Kings Court 〈◊〉 a he shall have this Writ to the Sheriff commanding him that he levy the Debt and Dammages of the goods of him against whom the Recovery is had and it lies only within a year and a day and after the year he must sue a Scire facias and if the party be warned and doth not come at the day c. or if he come and can say nothing then he who recovers shall have a Writ of Fieri facias directed to the Sheriff that he make Execution of Iudgment But if a man recover against a woman and she takes a husband within the year and the day then he that recovers must have a Scire facias against the husband So it is if an Abbot or Prior recover and die his Successor within the year shall have a Scire facias See thereof more in the Title Scire facias and Title Execution There is also another manner of Fieri facias against a Rector where upon a general Fieri facias the Sheriff returns quod nulla habet bona seu catalla and thereupon a Writ is directed to the Bishop of the Diocess where he is Rector and thereupon the Bishop levies the Debt of the Profits of the Gleab Tithes of the Rectory Fifteenth FIfteent â— See Quinzisme F â— lazer FIlazer of the French word Filace id est a Thread is the name of an Officer in the Common Pleas of which there are 14. They make dut all the Original Process there and the Distress infinite upon Summons returned in personal Actions and the Capias upon the return of Nihil and all Writs of View in cases where the View is prayed And where the Appearance is with them they enter the Impariance and the general Issue in common Actions and Iudgments by Confession before Issue joyned and make out Writs of Execution upon them And they make Writs of Supersedeas after a Capias awarded when the Defendant appears in their Office And this Officer is mentioned in the Statutes of 10 H 6. c. 4. 18 H. 6. c. 9. File FIle Filacium is a Thread or Wire upon which Writs and other Exhibits in Courts are put for the safer keeping of them together Finders FInders is a word used in many Statutes as in 14 R. 2. c. 10. 17 R. 2. c. 5. 1 H. 4 c. 13. and 31 H. 6. c. 5. and seems to be all one with those Officers which we now call Searchers imployed for the discovery of Goods which are imported or exported without paying Custom Fine FIne sometimes is taken for a Sum of money which one is to pay to the King for any Contempt or Offence which Fine every one that commits any Trespass or is convict that he falsly denies his own Deed or did any thing in contempt of Law shall pay to the King which is called Fine to the King Sometime a Fine is taken for a Final Agreement which is had between any persons concerning any Land or Rent or other thing whereof any Suit or Writ is between them hanging in any Court which may be divers ways One is when any party acknowledges that to be the right of the other as that he hath of the Gift of him that made the Recognizance which always supposes a Feoffment going before and is called a Fine executed Or if he acknowledged that to be the right of another omitting these words coÌ„e ceo que il eit de son Done this being a Fine upon acknowledging of â— ight only if it be levied to him which hath the Freehold of the Land is a Fine upon a Release If he that acknowledged it is seised and he to whom it is levied hath not the Free-hold of the Land then it is called a Fine executory which he to whom the Land is acknowledged may execute by Entry or Scire facias Sometime such a Fine Sur conusance de droit only is to make a Surrender wherein is rehearsed that the Reconusor hath an Estate for life and the other a Reversion Sometime it is taken to pass a Reversion where a particular Estate is recited to be in another and that the Reconusor will that the other shall have the Reversion or that the Land shall remain to another after the particular Estate spent And sometime he to whom the right is acknowledged as that which he hath of the Gift of the Reconusor shall yield the Land or a Rent out thereof to the Conusor And that sometime for the whole Fee sometime for one particular Estate with Remainder or Remainders over and sometime with Reversion of Rents with Distress and Grant thereof over by the said Fine It is called a Fine because thereby the Suit is ended and if it be recorded with Proclamation according to the Statute 4 H. 7. it bars Strangers Fine force FIne force signifies an absolute Necessity as when a man is compelled to do that which he can no way avoid we say he doth it de Fine force So this word is used in Perk. sect 321. in Mantel and Woodlands Case in Plowden f. 94. b. and in Eatons Case cited in Foxly's Case in the 6 Rep. f. 111. a. Finors FInors are those that purifie Gold and Silver and part them by fire and water from courser Metals and therefore in the Statute of 4 H. 7. c. 2. they are also called Parters Fire-bote FIre-bote is necessary Wood to burn which by the Common Law Lessee for years or for life may take in his Ground although it be not expressed in his Lease and although it be a Lease by Word only without Writing But if he take more then is needful he shall be punished in Waste First-fruits FIrst-fruits Primitiae are the Profits of every Spiritual Living for a year which were anciently given to the Pope but by the Statute of 26 H. 8. â— 3. are now transferred to the King Fledwite FLedwite is to be quit from Amerciaments when an outlawed Fugitive comes to the Kings Peace of his own will or being licensed Flemeswite FLemeswite is that you may have the Cattel or Amerciaments of your Fugitive man Fletwit FLetwit or Flitwit is to be quit from Contention and Convicts and that you may have a Plea thereof in your Court and the Amerciaments for Flit in English is Treason in French Floatsam FLoatsam or Flotson is when a Ship is sunk or otherwise perished and the Goods float upon the Sea and they are given to the Lord Admiral by his Letters Patents See Cok. lib. 5. fol. 106. Fold Fould-course FOld Fould-course
the Kings Debts Apparances and for observing of Orders also he takes all Obligations for any of the Kings Debts for Apparances and observing of Orders and makes out Process upon them for the breaking of them The Lord Treasurers Remembrancer makes out Process against all Sheriffs Escheators receivers and Bailiffs for their Accounts he makes the Process of Fieri sacias and Exteut for any Debts due to the King either in the Pipe or with the Auditors and he makes Process for all such revenue as is due to the King by reason of his Tenures The Remembrancer of the First Fruits takes all Compositions for First fruits and Tenths and makes Process against such as pay not the same Of these Officers see more in Dalton's Book of the Office and Authority of Sheriffs f. 186. Remitter REmitter is when a man hath two Titles to any Land and he comes to the Land by the tast Title yet he shall be judged in by force of his elder Title and that shall be said to him a Remitter As if Tenant in tail discontinue the Tail and after disseises his discontinuee and dies thereof seised and the Lands discend to his issue or Cousin inheritable by force of the Tail in that case he is in his Remitter that is to say seised by force of the Tail and the Title of the Discontinuee is utterly adnulled and defeated And the reason and cause of such Remitter is for that such an Heir is Tenant of the Land and there is no person Tenant against whom he may sue his Writ of Formedon to recover the Estate tail for he may not have an Action against himself Also if Tenant in tail infeoff his Son or Heir apparent who is within age and after dies that is a Remitter to the Heir but if he were full of age at the time of such Feoffment it is no Remitter because it was his folly that he being of full age would take such a Feoffment If the Husband alien Lands that he hath in right of his wife and after take an Estate again to him and to his Wife for term of their lives that is a Remitter to the Woman because this Alienation is the act of the Husband and not of the Woman for no folly may be adjudged in the Woman during the life of her Husband But if such Alienation be by Fine in Court of Record such a taking again afterward to the Husband and Wife for term of their lives shall not make the Woman to be in her Remitter for that in such a Fine the Woman shall be examined by the Iudge and such Examination in Fines shall exclude such women for ever Also when the Entry of any man is lawful and he takes an Estate to him when he is of full age if it be not by Deed indented or matter of Record which shall estop him that shall be to him a good Remitter Rents REnts are of divers kinds that is Rent-service Rent-charge and Rent-secke Rent-service is where the Tenant in Fee-simple holds his Land of his Lord by Fealty and certain Rent or by other service and rent and theu if the rent be behind the Lord may distrain but shall not have an Action of Debt for it Also if I give Land in tail to a man paying to me certain Rent that is Rent-service But in such case it behoves that the reversion be in the Donor For if a man make a Feoffment in fee or a Gift in tail the remainder over in Fee without Deed reserving to him a certain rent such reservation is void and that is by the Statute Quia emprores terrarum and then he shall hold of the Lord of whom his Donour held But if a man by Deed indented at this day make such Gift in tail the remainder over in fee or lease for term of life the remainder over or a Feoffment and by the same Indenture reserve to him rent and that if the rent be behind it shall be lawful for him to distrain that is Rent-chage But in such case if there be no clause of Distress in the Deed then such a rent is called Rent-seck for which he shall never distrain but if he were once seised he shall have Assise and if he were not seised he is without remedy And if one grant a rent going out of his Land with clause of Distress that is a Rēt-charge and if the rent be behind the Grantee may chuse to distrain or sue a Writ of Annuity but he cannot have both for if he bring a Writ of Annuity then the Land is discharged And if he destrain and avow the taking in Court of Record then the Land is charged and the person of the Grantor discharged Also if one grant a Rent charge and the Grantee-purchases half or any other part or parcel of the Land all the Rent is extinct But in Rent service if the Lord purchase parcel of the Land the Rent shall be apportioned If one hath a Rent charge and his Father purchase parcel of the Land and that parcel discends to the Son who hath the Rent charge then the Rent shall be apportioned according to the value of the Land as it is said of Rent-service because the Son comes to that not by his own act but by discent Also if I make a Lease for term of years reserving to me a certain Rent that is called a Rent service for which it is at my liberty to distrain or to have an Action of Debt but if the Lease be determined and the Rent behind I cannot distrain but shall be put to my Action of Debt And note well that if the Lord be seised of the Service and Rent aforesaid and they be behind and he distrain and the Tenant rescues the Distress he may have Assise or a Writ of Rescous but it is not more necessary for him to have Assise then a Writ of Rescous for that by Assise he shall recover his Rent and his Dammages but by a Writ of Rescous he shall recover only Dammages and the thing distrained shall be reprised If the Lord be not seised of the Rent and Service and they be behind and he distrain for them and the Tenant take again the Distress he shall not have Assise but a Writ of Rescous and the Lord shall not need to shew his right If the Lord cannot find a Distress in two years he shall have against the Tenant a Writ of Cessavit per biennium as it appears by the Statute of Westm 2. cap. 21. And if the Tenant die in the mean time and his Issue enter the Lord shall have against the Issue a Writ of Entry upon Cessavit or if the Tenant alien the Lord shall have against the Alienee the foresaid Writ But if the Lord have Issue and die and the Tenant be in arrearages of the said Rent and Service in the time of the Father and not in the time of the Issue he may not distrain for the Arrearages in the time of
to work fell and cut down Trees to repair the Buildings and Inclosures with divers such like for his Lords commodity so also he had Authority to govern and keep the Tenants in peace and if need required to lead them forth to war Reversion REversion of a Land is a certain Estate remaining in the Lessor or Donor after the particular Estate and Possession conveyed to another by Lease for Life or years or Gift in tail And it is called a Reversion in respect of the possession separated from it so that he that hath the one hath not the other at the same time for in one body at the same time there cannot be said a Reversion because by the uniting the one of them is drowned in the other And so the Reversion of Land is the Land it self when it falls Ribaud RIbaud seem to be sturdy Vagabonds Rot. Par. 50 E. 3. 61. Right Right of Entrie RIght and Right of Entry See in Droit Riot RIot is when three at the least or more do some unlawful act as to beat a man enter upon the possession of another or such like Robbery RObbery is when a Man takes any thing from the person of another Feloniously although the thing so taken be to the value but of a penny yet it is Felony for which the Offendor shall suffer death Rood of Land ROod of Land is a certain quantity of Land containing the fourth part of an Aere Anno 5 Eliz. c. 5. Rout. ROut is when people assemble themselves together and after proceed or ride or go forth or move by the instigation of one or more who is their Leader This is called a Rout because they move and proceed in routs and numbers Also where many assemble themselves together upon their own quarrels and brawls as if the Inhabitants of a Town will gather themselves together to break Hedges Walls Ditches Pales or such like to have Common there or to beat another that hath done them a common displeasure or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent See the Stat. 1 Mar. c. 12. S. Sac or Sake SAke is a Plea and Correction of Trespass in your Court because Sake in English is Encheson in French and sake is put for sick See Keloway in his Cases incerti temporis f. 145. a. that the privilege called Sake is for a man to have the Amerciaments of his Tenants in his own Court Sacrilege SAcrilege is when one steals any Vessels Ornaments or Goods of Holy Church which is Felony 2 Cro. 153 154. Salary SAlary is a word often used in our Books and it signifies a Recompence or Consideration given a man for his pains bestowed upon another mans business And it is so called as Pliny says in the 31 Book of his Nat. Hist cap. 7. because it is as necessary for a man as Salt and makes his labor relish as Salt doth his meat Sanctuary SAnctuary is a Priviledged place by the Prince for the safeguard of mens lives who are Offendors being founded upon the Law of Mercy and upon the great Reverence Honor and Devotion which the Prince bears to the place whereunto he grants such a Privilege which was heretofore so great that the Princes have granted the same in cases of Treason committed against themselves Murder Rape or other Crime whatsoever Hereof see Stamf. Pl. of the Crown l. 2. c. 38. Satisfaction SAtisfaction is when a Defendant hath paid a Debt or Dammages recovered against him it behoveth him to have satisfaction to be entred upon the Record of the Iudgment Sarpler SArpler is a quantity of Wool which in Scotland is called Serplath and contains 80 stone and with us in England a Load of Wool contains by the opinion of some fourscore Tod and every Tod two Stone and every Stone fourteen Pounds and that a Sack of Wool is in common account equal with a Load and a Sarpler the one half of a Sack Scandalum magnatum SCandalum magnatum is an Evil report invented or dispersed to the prejudice or slander of any great personage or Officer of the realm The punishment of which is enacted by divers Statutes viz Westm 1. c. 33. 2 R. 2. c. 5. 12 R. 2. c. 11. Scavage SCavage or Shewage is a Toll exacted by the Mayors Sheriffs and Bayliffs of Cities and Towns Corporate for wares or merchandise shewed to be sold within their precincts or jurisdiction which Exaction being against the priviledge of the Kings subjects was prohibited by a Statute made in 19 H. 7. c. 8. See 21 H. 7. f. 14. a. and see the Statute of 22 H. 8. c. 8 in the end thereof The Mayor c. of London brought debt for this duty by these words Pro supervisu a ê‘cionis H. 18 19 C. 2. B. R. roll 625. Scire facias SCire facias is a Writ judicial going out of the record and lies where one hath recovered Debt or Dammages in the Kings Court and sues not to have Execution within the year and the day then after the year and the day he shall have the said Writ to warn the party and if the party come not or if he come and say nothing to discharge or stay the Execution then he shall have a Writ of Fieri facias directed to the Sheriff commanding him to levy the Debt or Dammages of the goods of him that hath lost The Writ of Fieri facias lies within the year without any Scire facias sued Also if the summ of the same Debt or Dammages may not be levied of the Goods of him that hath lost them he may have a Writ of Elegit commanding the Sheriff to deliver him the one half of his Lands and Goods except his Oxen and implements of Plow When one hath recovered Debt or Dammages in an Action personal where the Preces is a Capias he may have another Writ of Execution called a Capias ad satisfaciendum to take the Body of him that is so condemned which shall be committed to prison there to abide without Bail or mainprise till he hath satisfied the party And when one hath Iudgment to recover any Lands or Tenements he shall have a Writ called Habere facias seisinam directed to the Sheriff commanding him to deliver to him Seisin of the same Land so recovered See more of that in the Titles Fieri facias and Execution The Writ abovesaid is given by the Statute of Westm 2. cap. 45. But there are also other manner of Scire facias Scil. upon Audita Querela Writs of Error as well to hear errors as wherefore the Plaintiff ought to have Execution against terrtenants upon Iudgments and the like Scot. SCot is to be quit of a certain Custom as of common Tallage made to the use of the Sheriff or Bayliff Scotale SCotale is an Extortion prohibited by the Statute of Charta de Forresta cap. 7. and it is where any Officer of the Forrest
same Statute And when any Waste or destruction is made by the Recognisee his Executors or him that hath his Estate the Recognisor or his Heirs shall have the same Law as is before said of the Tenant by Elegit If Tenant by Statute-Merchant hold over his term he that hath right may sue against him a Venire fac ' ad computandum or else enter immediately as upon Tenant by Elegit See the Statute 11 E. 1. and of Acton Burnel and 13 E. 1. De Mercatoribus Starr-chamber STarr-chamber was an High Court held in the Star-Chamber at Westm before the King Peers and Iudges abolished per Stat. 17 Car. cap. 10. Sterbrech STerbrech alias Strebrech is the Breaking Obstructing or or making less of a Way Stilyard STilyard is a word used in the Statute of 22 H. 8. chap. 8. where the Ha â— se-Merchants are called the Merchants of the Sti yard which is a place in London where these Merchants or their Brotherhood had their thode And the House is said to be so called because bullt upon a Court-yard near the Thames where Steel was wont to be much sold Sub poena SUb poena is the name of a Writ made in divers Courts of Law and Equity viz. in Chancery and all other Courts to summon Witnesses and in that Court and in the Exchequer in Law and Equity and in the Common Pleas upon Informations qui tam c. to summon Defendants and in the Crown Office upon Informations Suffragan SUffragan is a word used in the Statut of 26 H. 8. cap. 14. and signifies a Titular Bishop appointed to aid and assist the Bishop of the Diocess in his Spiritual Function And he is called Suffraganeus in Latin because by his Suffrage Ecclesiastical Causes are to be adjudged Suggestion SUggestion is an Information drawn in Writing shewing cause to have a Prohibition which is left in Court and is mentioned in the Statute 2 E. 6. cap. 13. Sumage SUmage seems to be Toll for Carriage on Horseback Cro. Jurisd f. 191. Summons ad Warrantizandum c. SUmmons ad Warrantizandum and Sequatur sub suo periculo See of them after in the Title Voucher Supercargo ou Supracargo SUpercargo ou Supracargo is a Factor or Agent which goes with a Ship beyond the Seas by order of the Owner of the Wares therein and disposes thereof And the Master of the Ship is obliged to perform the Orders of such Factor or Supereargo Supersedeas SUpersedeas is a Writ that lies in divers cases as appears by F. N. B. f. 236. A. but it is always a command to stay some ordinary Proceedings in Law which ought otherwise to proceed Supplicavit SUpplicavit is a Writ issuing out of the Chaucery directed to the Sheriff and some Iustices of the Peace in the County or to one or more Iustices without the Sheriff for taking Surety of such a one as it is prayed against that he should keep the Peace and this is by the Statute of 1 E. 3. c. 16. See F. N. B. f. 80. C and see the Stat. 21 Jac. c. 8. Sur cui in vita SUr cui in vita is a Writ that lies for the Heir of an Inheritrix whose Husband aliened the Inheritance of his Wife and the Wife died before she recovered in a Cui in vita See for this F. N. B. 194. C. Surplusage SUrplusage comes of the French Surplus that is an Overplus and signifies in the Law an Addition of more then needs which sometimes is the cause that a Writ shall abate but in pleading many times it is absolutely void and the residue of the Plea shall stand good Surrejoynder SUrrejoynder is an Answer to the Defendants Rejoynder or a second inforcing of the Plaintiffs Declaration Surrender SUrrender is the Consent of a particular Tenant that he in the Reversion or the Remainder shall presently have the possession And this is either Surrender in Deed by an actual yielding up of the Estate or in Law by the taking of the new Lease or such other act See of this Perkins c. 9. Also it is an act done to the Lord of a Mannor or his Steward of a Copy-hold Estate or done by special Custom of some Mannors to two Copy-hold Tenants of Mannors which surrender ought to be presented at the next Court Baron Swainmote SWainmote or Swannimote is a Court held thrice in a year within a Forrest by the Statute of Charta de Foresta c. 8. for all the Free-holders of the Forrest for so much the Etymology of the word imports Mote in the Norman speech signifying a Court and Swain in the Saxon a Charterer or Free-holder so that Swannimore is the Court of the Free-holder See of this Manwoods Forrest Laws cap. 23. f. 217 c. at large Swainmote in this Court Presentments of Offences done to the Forrest or Game are made given into the Iustices in Eyre Syb Som. SYb Som i. Peace and Security L. L. Eccles. Canuti Regis c. 17. Symony SYmony is an unlawful Contract made to have a man presented to a Rectory or Vicarage which is prohibited by Stat. 31 Eliz. cap. 6. T. Fee-tail TO hold in the Tail is where a man holds certain Lands or Tenements to him and to his Heirs of his Body begotten If the Land be given to a man and to his Heires males and he hath Issue male he hath Fee-simple which was adjudged in Parliament But where Lands are given to a man and to his Heirs males of his body begotten then he hath Fee-tale and the issue Female shall not inherit as appears in the 14 year of E. 3. in an Assise 18 E. 3. 45. Fee-tail is where the Land is given to a Man and the Heirs of his Body begotten and he is called Tenant in Taile general If Lands are given to the Husband and Wife and the Heirs of their two Bodies begotten then the Husband and the Wife are Tenants in Tail especial And if one of them die he that survives is Tenant in Tail after possibility of issue extinct and if he make Waste he shall not be impeached for it See Littleton But if the King give Lands to a man to his Heires males and the Donee dies without issue male then the Cousin collateral of the Donee shall not inherit but the King shall re-enter and so it was adjudged in the Exchequer-chamber 18 H. 8. in an Information made against the Heir of Sir T. Lovel Knight Tail after possibility TO hold in the Tail after possibility of Issue extinct is where Land is given to a Man and his Wife and the Heirs of their two Bodies engendred and one of them overlives the other without issue between them begotten he shall hold the Land for term of his own life as Tenant in the Tail after possibility of Issue extinct and notwithstanding that he do Waste he shall never be Impeached of it And if he alien he in the Reversion shall not have a Writ of Entry in consimili casu
in the same signification cap. 3. And at this day Chapiters are called Articles for the most part and are delivered as well by the mouth of the Iustice in his Charge as by the Clerks in writing to the Enquest where in ancient time they were after an Exhortation given by the Iustices for the observation of the Laws of the Kings peace first read distinctly and openly in the full Court and then delivered in writing to the grand Enquest An example of these Chapiters there is in the Book of Assises fol. 138. pla 44. Chaplain CHaplain is he that performs Divine Service in a Chappel and therefore is commonly used for him that depends upon the King or other man of worth for the instruction of him and his Family the reading of Prayers and Preaching in his private house where usually they have a Chappel for that purpose And for that they are retained by Letters under the Seal of their Patron and thereby by intendment are to be resident with them the Law hath given liberty for their Non-residency upon their Benefices If an Earl or Baron retains a Chaplain and before his advancement is attainted of Treason there the Retainer is determined and after the Attainder such Chaplain cannot take a second Benefice because he that is attainted is by his Attainder a dead person in Law What and how many Chaplains Noblemen and others may respectively retain the Statute of 21 H. 8. c. 3. doth well declare The wife of a Baron during the Coverture cannot retain a Chaplain yet when a Baronnesse Dowager retains one or two according to the Proviso of the said Statute the Retainer is the principal matter and as long as the Retainer is in force and the Baronness continues a Baronness the Chaplains may well take two Benefices by the express letter of the Statute for it suffices if at the time of the Retainer the Baronness were a widow And herein this rule is to be observed of a woman that attains Nobility by Marriage as by marriage of a Duke Earl or Baron c. for in such case if she afterward marry under the degree of Nobility by such Marriage she loses the Dignity she had attained and after such latter Marriage the power to retain a Chaplain is determined But otherwise it is where a woman is Noble by Discent for there her Retainer before or after the Marriage with one that is not Noble shall be in force and is not countermanded by the Marriage nor determined by her taking a Husband under her degree Coke lib 4. fol. 118 119. Chapter CHapter in Latine is defined to be An Assembly of Clerks in a Church-Cathedral conventual regular or Collegiate and in another signification A place wherein the members of that Community treat of their common affairs and it hath other significations which appertain not to our purpose It may be said that this Collegiate company is termed Chapter metaphorically the word originally implying a little head for this Company or Corporation is as a Head not only to rule and govern the Diocesse in the vacation of the Bishoprick but also in many things to advise the Bishop when the See is full Charge CHarge is where a man grants a Rent issuing out of his land and that if the Rent be behind it shall be lawfull for him his heirs and assigns to distrain till the Rent be paid this is called a Rent-charge But if one grant a Rent-charge out of the land of another though after he purchase the land yet the Grant is void Charter land CHarter-land is such as a man holds by Charter that is by Evidence in writing which otherwise is called Free-hold Copyhold-lands before the Conquest were by the Saxons called Folkland and the Charter-lands Bockland And Lambert in the Explication of Saxon words saith That this land was held with more easie and commodious conditions then Folkland and Copyhold-land held without writing And his reason is because it is a free and absolute Inheritance whereas land without writing is charged with payment and bondage so that for the most part Noblemen and persons of Quality possess the former and Rusticks the other The first we call Free-hold and by Charter the other Land at the will of the Lord. If a Riot Rout or Vnlawful assembly be committed then by the Statute of 19 H. 7. c. 13. twenty men inhabiting within the County where the Riot c. is made whereof every of them shall have lands and tenements within the same County to the yearly value of twenty shillings of Charter-hold or Free-hold or twenty six shillings of Copyhold shall make enquiry thereof Charter-party CHarter-party is an Indenture of Covenants and Agreements made between Merchants or Mariners concerning their Sea-affairs and of this you may read in the Statute now out of use made 32 H. 8. cap. 14. Charters CHarters of Lands are Writings Deeds Evidences and Instruments made from one man to another upon some Estate conveyed or passed between them of Lands or Tenements shewing the names place and quantity of the Land the Estate time and manner of the doing thereof the Parties to the Estate delivered and taken the Witnesses present at the same with other circumstances Chartis reddendis CHartis reddendis is a Writ which lies against him that has Charters of Feoffment delivered him to be kept and refuses to deliver them Old Nat. Brev. fol. 66. Reg. orig fol. 159. Chase CHase is taken two wayes first to drive cattel as to chase a Distress to a Castle secondly for a Receit for Deer and Beasts of the Forest and it is of a middle nature between a Forest and a Park being commonly less then a Forest and not endued with so many Liberties as with Courts of Attachment Swainmore and Justice seat and yet of a larger compass and having greater diversity of Keepers and Game then a Park Crompt in his Book of Iurisdictions fol. 148. saith That a Forest may not be in the hands of a Subject but it presently looses the name and becomes a Chase and yet fol. 197. he saith That a subject may be Lord and owner of a Forest which though they seem contradictory yet are both his sayings in some sense true For the King may give or alienate a Forest to a Subject yet so that when it is once in the Subject it loses the true property of a Forest because the Courts of Swainmote Justice seat and Attachment presently vanish none being able to make a Lord chief Iustice in Eyre of the Forest but the King as Manwood hath well shewed as his Book of Forest Laws cap. 3. 4. Yet it may be granted in such large manner that there may be Attachment and Swainmote and a Court equivalent to a Justice Seat as appears by him in the same Chapter numb 3. So that a Chase differs from a Forest in this because it may be in the hands of a Subject which a Forest in its proper nature cannot be and from
the land extends but to the moiety of a Knight's fee then the Tenant is bound to follow his Lord but 20 days if a fourth part then 10 days Fitzh Nat. Brev fol. 83. c. 84. c e. The other kind of Escuage uncertain is called Castleward where the Tenant by his land is bound either by himself or some other to defend a Castle as often as it shall come to his turn Escuage certain is where the Tenant is assessed to a certain summe of money to be paid instead of such uncertain service as that a man shall pay yearly for a Knights Fee 20 shillings for the half 10 shillings or any such rate And this Service because it is drawn to a certain Rent comes to be of a mixt nature not meerly Socage for it smells not of the Plow and yet Socage in effect being now neither personal service nor incertain Chivalry hath other conditions annexed thereunto as Homage Fealty Wardship Relief and Marriage Bract. l. 2. c. 35. and what they signifie see in their several places Chivalry is either general or special Dyer fol. 161. plac 47. General seems to be where it is only said in the Feoffment that the Tenant holds by Knights Service without any specification of Sergeanty Escuage c. Special is that which is declared particularly what kind of Knights service he holds by See the Statute 12 Car. 2. c. 24 Thing in Action THing in Action is when a man hath cause or may bring an Action for some duty due to him as an Action of Debt upon an Obligation Annuity or Rent Action of Covenant or Ward Trespasse of goods taken away Beating or such like and because they are things whereof a man is not possessed but for recovery of them is driven to his Action they are called Things in Action And those Things in Action that are certain the King may grant and the Grantee may have an Action for them in his own name only But a common person cannot grant his Thing in Action nor the King himself his Thing in Action which is uncertain as Trespass and such like But of late times it is used in London that Merchants and others there who have Bills without Seals for payment of Money assign them to others who bring actions in their own names Churchesset CHurchesset is a word whereof Flet. l. 1. c. 47. in the end thus writes It signifies a certain Measure of Wheat which in times past every man on St. Martins day gave to Holy Church as well in the time of the Britains as of the English Yet many great persons after the coming of the Romans gave that Contribution according to the ancient Law of Moses in the name of the First-fruits as in the Work of King Kanutus sent unto the Pope is contained in which they call the Contribution Chirchsed as one would say Church-seed Church-wardens CHurch-wardens are Officers yearly chosen by the consent of the Minister and the Parishioners according to the custom of every several place to see to the Church Church-yard and such things as belong to both and to observe the behaviour of the Parishioners for such crimes as appertain to the jurisdiction or censure of the Ecclesiastical Court These are a kind of Corporation and are enabled by Law to sue for any thing belonging to their Church or the Poor of the Parish See Lambert's Duty of Church-wardens Cinque Port. CInque Port are five Haven-towns that is Hastings Romney Hythe Dover and Sandwich to which have been granted long time since many Liverties which other Port-towns haue not and that first in the time of King Edward the Confessor which have been increased since and that chiefly in the days of the three Edwards the first the second and third as appears in Dooms-day book and other old Monuments too long to recite Circuity of Action CIrcuity of Action is when an Action is rightfully brought for a Duty but yet about the bush as it were for that it might as well have been otherwise answered and determined and the Suit saved and because the same Action was more then needful it is called Circuity of Action As if a man grant a Rent-charge of x. li out of his Mannor of Dale and after the Grantee disseises the Grantor of the same Manor and he brings an Assise and recovers the land and xxli damages which xx.li. being paid the Grantee of the Rent sues his Action for x. li of his Rent due during the time of the Disseisin which if no Disseisin had been he must have had This is called Circuity of Action because it might have been more shortly answered for whereas the Grantor shall receive xx.li. damages and pay x. li Rent he may haue received but the x. li only for the damages and the Grantee might have cut off and kept back the other x. li in his hands by way of deteiner for his Rent and so thereby might have saved his Action Circumstantibus CIrcumstantibus is a word of Art signifying the Supply and making up the number of Iurors if any impannelled do not appear or are challenged by either party by adding to them as many others of those that are present and standers by See 35 H. 8. c. 6. 5 El. c. 25. City CIty is such a Town corporate as hath a Bishop and a Cathedral Church whereof such words are found The same place is called Urbs Civitas and Oppidum It is called Civitas in regard it is governed in justice and order of Magistracy Oppidum for that there are therein great plenty of Inhabitants and Urbs because it is in due form begirt about with Walls But that place is commonly called Civitas which hath a Bishop Yet Crompton in his Jurisdictions reckons up all the Cities and leaves out Ely although it hath a Bishop and a Cathedral Church and puts in Westminster notwithstanding it now hath no Bishop And 35 El. 6. Westminster is called a City and Anno 27 ejusd c. 5 of Statutes not printed Westminster is alternative called a City or Borough It appears by the Stat. 35 H. 8. c. 10. that then there was a Bishop of Westm Cassanaeus writes that France hath within its Territories 104 Cities and gives this reason because there are so many Sees of Archbishops and Bishops Clack CLack as to clack force and bard wool 8 H 6. cap. 22. whereof the first viz. to Clack wool is to cut off the mark of the Sheep which makes it to weigh lesse and so to pay the less Custome to the King To Force wool is to clip the upper and most hairy part of it To Bard or beard wool is to cut the head and neck from the other part of the Fleece Claim CLaim is a Challenge by any man of the property or ownership of a thing which he hath not in possession but is withholden from him wrongfully and the party that so makes this Claim shall have thereby a great advantage for by it in some cases he may
had the Government of any such Manor or House was called the Commander who had nothing to do to dispose of it but to the use of the Priory and to have only his sustenance from it according to his degree which was usually a Brother of the same Priory who had been made Knight in the Wars against Infidels and they were lately called Knights of the Rhodes or Knights of Malta of the places where their grand Master did dwell See the said Statute and the old Statute intituled De Templariis whose decay was a great increase of this Order And many of these Commandries are called in the Country by the name of Temple Commandam COmmendam is a Benefice that being void is commended to the care of some sufficient Clerk to be supplied untill it may be conveniently provided of a Pastor And the true original of these Commendams was either evident profit or necessity He to whom the Church is commended hath the fruits and profits thereof only for a certain time and the nature of the Church is not changed thereby but is as a thing deposited in the hands of him to whom it is commended who hath nothing but the Custody thereof which may be revoked Commissary COmmissary is a title of Ecclesiastical Iurisdiction appertaining to him that exercises Spiritual Iurisdiction in places of the Diocess so far distant from the chief City that the Chancellor cannot call the Subjects to the Bishop's principal Consistory without their great trouble This Commissary is called by the Canonists Commissary or Officialis foraneus and is ordained to this special end that he should supply the Office and Iurisdiction of the Bishop in the out-places of the Diocess or in such Parishes as are peculiars to the Bishop and exempted from the Archdeacon's Iurisdiction for where by prescription or by composition there are Archdeacons who have Iurisdiction in their Archdeaconries as in most places they have there this Commissary is superfluous and rather to the prejudice then good of the people Commission COmmission is as much in the Common Law as the word Delegate in the Civil and is taken for the Warrant or Letters Patents which all men using Iurisdiction either ordinary or extraordinary have for their power to hear or determine any matter or action Yet this word sometimes extends more largely then to matters of Iudgement as the Commission of Purveyors or Cakers 11 H. 4. c. 28. But with this Epithete High it is most commonly used for the High-Commission Court instituted and founded upon the Stat. of 1 Eliz. c. 1. for the ordering and reforming of all offences in any thing appertaining to the Iurisdiction Ecclesiastical but especially such as are of highest nature or at least require greater puishment then the ordinary Iurisdiction call afford See the Statutes 17 Car. 1. c. 11. and 13 Car. 2. c. 12. by which the said Court is wholly abolished Commission of Rebellion Com̄ission of Rebellion otherwise called a Writ of Rebellion is used when a man after Proclamation made by the Sheriff upon an Order or Process of the Chancery under penalty of Allegeance to present himself to the Court by a day certain appears not And this Commission is directed by way of command to certain persons to the end they three two or one of them shall apprehend or cause to be apprehended the party as a Rebell and contemner of the Kings Laws in what place s ◠ever they shall find him within the Kingdom and bring or cause him to be brought to the Court upon a day therein assigned Committee COmmittee is he or they to whom the consideration or ordering of any matter is referred either by some Court or consent of the parties to whom it appertains as in Parliament a Bill being read is either consented unto and passed or denied and referred to the consideration of some certain man appointed by the House who hereupon are called a Committee But this word is otherwise used by Kitchen f. 160. where the widdow of the Kings Tenant is called the Committee of the King that is one committed by the ancient Law of the Land to the Kings care and protection Common COmmon is the right that a man hath to put his Beasts to Pasture or to use the ground that is not his own And note that there are divers Commons that is Common in grosse Common appendant Cōmon appurtenant and Common because of neighbourhood Common in Gross is where I by my Deed grant to another that he shall have Common in my Land Common appendant is where a man is seised of certain land to which he hath Common in anothers ground only for those beasts which compost the land to which it is appendant excepting Geese Goats and H ◠gs which Common is by prescription and of common right and appendant to arable land only Common appurtenant is of the same nature with Common appendant but with all manner of beasts as well Hogs and Goats as Horses Kine and such as compost the ground And this Common may be made at this day and severed from the land to which it is appurtenant but so cannot Common appendant Common because of neighbourhood is where the Tenants of two Lords are seised of two Mannors adjoyning to each other and the Tenants have time out of mind intercommoned each with other with all manner of beasts commonable Yet the one may not put his Cattel in the others ground for so they of the other Town may distrain them Dammage fesant or have an Action of Trespass but they may put them into their own fields and if they stray into the fields of the other Town there they ough to suffer them And the inhabitants of the one Town ought not to put in as many beasts as they will but with regard to the inhabitants of the other for otherwise it were no good Neighbourhood upon which all this depends Common Fine COmmon Fine is a certain summe of Money which the Resiants in a Leet pay unto the Lord of the Leet and it is called in some places Head-silver in some places Certum Letae and was as it seems first granted to the Lord towards the charge of his purchase of the Leet whereby the Resiants had now an ease to do their Suit royal within the Mannor and not be compelled to go to the Sherifs Tourn to do it And for this Common Fine the Lord must prescribe and cannot distrain for it without a prescription as it appears in Godfrey's Case in 11. Rep. fo 44. b. Common Law COmmon Law is for the most part taken three ways First for the Laws of this Realm simply without any other Law as Customary Civil Spiritual or whatever other Law joyned to it as when it is disputed in our Laws of England what ought of right to be determined by the Common Law and what by the Spiritual Law or Admirals Court or such like Secondly it is taken for the Kings Courts as the Kings Bench or Common Place only
for them Anno 39 Eliz. cap. 22. They are so called a concelando as Mons a Movendo by Antiphrasis Conclusion COnclusion is when a man by his own act upon record hath charged himself with a Duty or other thing As if a Free-man confesse himself to be the Villain of A â—â— upon record and afterward A. takes his goods he shall be concluded to say in any Action or Plea afterwards that he is free by reason of his own confession So if the Sheriff upon a Capias to him directed returns that he hath taken the body and yet hath not the body in Court at the day of the Return he shall be amerced and if it were upon a Capias ad satisfac ' the Plaintiff may have his Action against the Sherif for the Escape for by such Return the Sherif hath concluded himself And this word Conclusion is taken in another sense as for the End or later part of any Deâ—â— aration Barre Replication c. As where to the Barre there ought to be a Replication the Conclusion of his Plea shall be And this he is ready to affirm If in Dower the Tenant pleads that he was never seised so as to tender Dower the Conclusion shall be and upon this he puts himself upon the Country And in what manner the Conclusion shall be according to the nature of several Actions See Kitch f. 219 220 c. Concord COncord is defined to be the very Agreement between parties that intend the levying a Fine of Lands one to another how and in what manner the Lands shall be passed for in the form thereof many things are to be considered See West part 2. tit Fines Concords sect 30. Concord is also an Agreement made upon any Trespasse committed between two or more and is divided into a Concord Executory and Executed See Plowd in Reniger and Fogasie's Case fol. 5 6. where it appears by the opinion of some That the one doth not bind as being imperfect the other being absolute binds the parties And yet by the opinion of others in the same case it is affirmed That Concords Executory are perfect and do no less bind then Concords Executed fol. 8. b. It is lately held that in as much as Actions on assumpsits are now in use which were rarely before the reign of King H. 8. that now an accord with an Assumpsit upon which an Action lyes is a good plea in all those Actions to which it was formerly a good plea if executed Concubinage COncubinage is an Exception against her that brings an Action for her Dower whereby it is alledged That she was not lawfully married to the party in whose lands she seeks to be endowed but his Concubine Brit. cap. 107. Bract. lib. 4. tract 6. cap. 8. Conders COnders are those that stand upon high places near the Sea-coast at the time of Herring-fishing to make signs with boughs c. in their hands to the Fishers which way the shole of Herrings passes for they who stand upon some high Cliffe may see it better then those that are in their Ships These are otherwise called Huers and Balkers as appears by the Statute of 1 Jac. cap. 23. Condition COndition is a Restraint or Bridle annexed to a thing so that by the not performance or not doing of it the party to the Condition shall receive prejudice and loss and by the performance and doing of it commodity and advantage All Conditions are either Conditions actual and expressed which are called Concitions in Deed or else implied or covert and not expressed which are Conditions in Law Also all Conditions are either Conditions precedent and going before the Estate and are executed or else subsequent and following after the Estate and executory Condition precedent doth get and gain the thing or Estate made upon Condition by the performance of it Condition subsequent keeps and continues the thing or Estate made upon Condition by the performance of it Actual and expresse Condition which is called a Condition in Deed is a Condition annexed by express words to the Feoffment Lease or Grant either in writing or without writing As if I infeoff a man in lands reserving a Rent to be paid at such a Feast upon Condition that if the Feoffee fail of payment at the day then it shall be lawfull for me to re-enter Condition implied or covert is when a man grants to another the Office to be Keeper of a Park Steward Bedle Bayliff or such like for term of life and though there be no Condition at all expressed in the Grant yet the Law speaks covertly of a Condition which is That if the Grantee doth not execute all points appertaining to his Office by himself or his sufficient Deputy then it shall be lawfull for the Grantor to enter and discharge him of his Office Condition precedent is when a Lease is made to one for life upon Condition That if the Lessee will pay to the Lessor xx li. at such a day then he shall have Fee-simple here the Condition preceeds the Estate in Fee-simple and upon the performance of the Condition doth gain the Fee-simple Condition subsequent and coming after is when one grants to J. S. his Manor of Dale in Fee-simple upon Condition That the Grantee shall pay to him at such a day xx li. or else that his Estate shall cease here the Condition is subsequent and following the Estate in Fee and upon the performance thereof doth continue the Estate See more of this in Cok. lib. 3. fol. 64. and in Lit. li. 3. cap. 5. and Perkins in the last Title of Conditions Confederacy COnfederacy is when two or more confederate themselves to do any hurt or damages to another or to do any unlawfull thing And though a Writ of Conspiracy doth not lie if the party be not indicted and in lawfull manner acquitted for so are the words of the Writ yet false Confederacy between divers persons shall he punished though nothing be put in ure and this appears by the Book of 27 Assis placit 44. where there is a note That two were indicted of Confederacy each of them to maintain other whether their matter were true or false and though nothing was supposed to be put in use the parties were put to answer because this thing is forbidden in the Law So in the next Article in the same Book Enquiry shall be made of Conspirators and Confederators which bind themselves together c. falsly to endite or acquit c. the manner of their binding and between whom which proves also that Confederacy to indite or acquit although nothing be done is punishable by the Law And it is to be observed that this Confederacy punishable by Law before it be executed ought to have four incidents First to be declared by some matter of prosecution as by making of Bonds or Promises the one to the other secondly to be malicious or for unjust Revenge thirdly to be false against on innocent and
claims by purchase from the first Feoffee but for the Heir to the first Feoffee Contributione facienda COntributione facienda is a Writ that lies where there are divers Parceners and he who hath the part of the eldest makes all the suit to the Lord the others ought to make Contribution to him and if they will not he shall have against them this Writ In some cases the Heir shall have Contribution and in others not but shall be alone charged For if a man be seised of three Acres of Land and acknowledges a Recognizance or Statute c. and infeoffs A. of one Acre and B. of another Acre and the third discends to his Heir if Execution be sued against the Heir only he shall not have Contribution against any Purchasor yet he is charged as Terre-tenant and not as Heir for the Land and not himself is charged Yet if a man be seised of two Acres the one of the nature of Borough-English and binds himself as before and dies having issue two daughters who make partition in this case if the one be charged he shall have Contribution for as one Purchasor shall have Contribution against others and against the Heir of the Conusee also so one Heir shall have Contribution against another Heir for they are in equal degree Also if a man be so bound and after his death some of his Land descends to the Heir of the part of the father and some to the Heir of the part of the mother the one alone shall not be charged but if he be he shall have Contribution In Dower if the Tenant vouches the Heir in ward to three several Lords each of them shall be equally charged If two four or more men be severally seized of Land and they all joyn in a Recognisance in this case the Conusee cannot extend the Land of any of the Conusors alone but all ought equally to be charged for though the Land of the Conusor himself may be only extended when divers men have purchased any of the Land subject to the Recognisance because the Purchasor is in another degree then the Conusor himself yet one of the Conusors shall not be solely charged for he stands in equal degree with the other Conusors Also the tertenant of a Debtor upon an extent shall have contribution of the Heir of the Debtor which see 1 Cro. Eyer against Taunton If Iudgement be given against two Disseisors in Assise for the Land and damages and one Disseisor dies the Execution shall not be awarded against the surviving Disseisor that was party to the wrong but as well the Heir as the Disseisor shall be equally charged But otherwise it is in personal binding as if two are bound in an Obligation there the charge shall survive And where it is said that the one Purchasor shall have Contribution it is not thereby intended that the others shall give or allow unto him any thing by way of Contribution but it ought to be intended that the party that is solely extended for all may by an Audita querela or Scire Facias as the case requires defeat the Execution and thereby shall be restored to all the mean profits and force the Conusee to sue Execution of all the Land so in this manner every one shall be contributory viz. the Land of every Terre-Tenant shall be equally extended Convocation COnvocation is commonly taken for the Assembly of all the Clergy to consult of Exclesiastical matters in time of Parliament And as there are two Houses of Parliament so there are two places called Convocation-houses the one called the Higher Convocation-house where the Archbishops and Bishops sit severally by themselves the other the Lower Convocation-house where all the rest of the Clergy sit Vide Prolocutor Conusance COnusance of Plea is a Priviledge that a City or Tenant hath by the Kings grant to hold Plea of all Contracts and of Lands within the precinct of the Franchise and that when any man is impleaded for any such thing in the Court of the King at Westm the Mayors or Bayliffs of such Franchises or their Atturneys may ask Conusance of the Plea that is to say that the Plea and the matter shall be pleaded a â— d determined before them But if the Court at Westminster be lawfully seised of the Plea before Conusance be demanded then they shall not have Conusance for that Suit because they have neglected their time of demand thereof but this shall be no bar to them to have Conusance in another Action for they may demand Conusance in one Action and omit it in another at their pleasure And note that Conusance lies not in Prescription but it behoves to shew the Kings Letters Patents for it Coparceners COparceners See Parceners Copyhold COpyhold is a Tenure for which the Tenant hath nothing to shew but the Copies of the Rolls made by the Steward of his Lord's Court For the Steward as he inrolls all other things done in his Lords Court so he doth also such Tenants as are admitted in the Court to any parcel of Land or Tenements belonging to the Manor and the Transcript of this is called the Court-Roll the Copy whereof the Tenant takes from him and keeps as his only Evidence Coke l. 4. fol. 25. This Tenure is called a Base Tenure because it holds at the will of the Lord Kitchen fol. 80. Fitzh Nat. Brev. f. 12. b. c. who saith it was wont to be called Tenure in Villenage and that this Copyhold is but a new name Yet it is not simply at the will of the Lord but according to the Custome of the Manor so that if a Copiholder break not the Custome of the Manor and thereby forfeit his Tenure he seems not so much to stand at his Lords courtesie for his right as to be displaced when he pleases The Customes of Manors are infinite varying in one point or other almost in every several Manor First some Copyhold is fineable and some certain That which is fineable the Lord rates at what Fine he pleases when the Tenant is admitted unto it that which is certain is a kind of inheritauce and called in many places Customary because the Tenant dying and the Hold being void the next of bloud paying the customary Fine cannot be denied admittance Secondly some Copyholders have by Custome the Woods growing upon their own Land which by the Law they cannot have Thirdly there are Copy-holders that hold by the Vierge in Ancient demesne and although they hold by Copy yet they are in nature of Free-holders for if such a one commit Felony the King hath the year day and waste as in case of Free-hold Some others hold by Common Tenure called mere Copyhold and if they commit Felony their Land presently escheats to the Lord of the Manor West part 1 l. 2. sect 646. defines a Copyholder thus Tenant by Copy of Court-roll is he who is admitted Tenant of any Lands or Tenements within a Manor which time without
the Law gives much credit and authority to Coroners Corporation Corporation is a permanent thing that may have succession And it is an Assembly and joyning together of many into one Fellowship Brotherhood and mind whereof one is Head and chief the rest are the Body and this Head and Body knit together make the Corporation And of Corporations some are Spiritual some Temporal and of Spiritual some are Corporations of dead persons in Law and some otherwise and some are by authority of the King only and some have been of a mixt authority And of those that are Temporal some are by the authority of the King also and some by the Common Law of the Realm Corporation Spiritual and of dead persons in the Law is where the Corporation consists of an Abbot and Covent which had beginning of the King and the Pope when he had to do here Corporation Spiritual and of able persons in Law is where the Corporation consists of a Dean and Chapter Master of a Colledge or Hospital and this Corporation had beginning of the King only Corporation Temporal by the King is where there is a Mayor and Commonalty Corporation Temporal by authority of the Common Law is the Assembly in Parliament which consists of the King the Head of the Corporation the Lords Spiritual and Temporal and the Commons of the Realm the Body of the Corporation Bodies politick BOdies politick are Bishops Abbots Priors Deans Parsons of Churches and such like which have succession in one person only If land be given to a Maior and Commonalty for their lives they have an Estate by intendment not determinable So it is if a Feoffment be made of land to a Dean and Chapter without speaking of Successors Release of a Mayor for any summ of money due to the Corporation in his own name is not good in Law In case of a sole Corporation or Body politick as Bishop Parson Vicar Master of Hospital c. no Chattel either in action or possession shall go in succession but the Executors or Administrators of the Bishop Parson c. shall have them for Succession in a Body politick is as Inheritance in case of a body private But otherwise is in case of a Corporation composed of many as a Dean and Chapter Mayor and Commonalty and such like for there they in judgement of the Law never die Yet the case of the Chamberlain of London differs from all these and his Successors may in his own name have Execution of a Recognisance acknowledged to his Predecessor for Orphanagemoney and the reason is because in this case the Corporation of the Chamberlain is by Custome and the same Custome that hath created him and made a Corporation in Succession as to the said special purpose concerning Orphanage hath enabled the Successor to take such Recognisances Obligations c. that are made to his Predecessor And this Custom is founded upon great reason for the Executors or Administrators of the Chamberlain ought not to intermeddle with such Recognisances Obligations c. which by the said Custom are taken in the corporate capacity of the Chamberlain and not in his private But a Bishop Parson c. or any sole Corporation that are Bodies politick by prescription cannot take a Recognisance or Obligation but only to their private and not in their politick capacity for they want Custome to take a Chattel in their politick or corporate capacity Corpus cum Causa or Habeas Corpus COrpus cum Causa is a Writ issuing out of the Chancery to remove both the body and the Record of the Cause of any man lying in Execution upon a Iudgement for Debt into the Kings Bench c. there to lie till he have satisfied the Iudgement Fitzh Nat. Brev. fol. 251. e. It lies also to remove any Action from inferiour Courts of Record into any of the 3 Courts in Westm Corruption of Blood COrruption of Blood is when any one is attainted of Felony or Treason then his Bloud is said to be corrupt by means whereof neither his children nor any of his bloud can be heirs to him or to any other Ancestor for which they ought to claim by him And if he were a Noble or Gentleman before he and all his children are made thereby ignoble and ungentle having regard to the Nobility or Gentry they claim by their father which cannot be restored by the Kings Grant without authority of Parliament But if the King will pardon the offendor it will cleanse the corruption of the Blood of those children which are born after the Pardon and they may inherit the land of their Ancestor purchased at the time of the Pardon or afterwards but so cannot they who were born before the Pardon Also he that is attainted of Treason or Felony shall not be heir to his father but this disability shall hinder others to be heir so that during his life the land shall rather escheat to the Lord of the Fee then discend to another But if he who is attainted dies without issue of his body during the life of his Ancestor then his younger Brother Sister or Cousin shall inherit for if the eldest Son be hanged or abjure the Realm for Felony during the life of the Father it is no impediment but that the youngest Son may inherit 27 Edw. 3. c. 77. And if he who is attaint of Treason or Felony in the life of his Ancestor purchase the Kings Pardon before the death of his Ancestor yet he shall not be Heir to the said Ancestor but the Land shall rather escheat to the Lord of the Fee by the Corruption of bloud 26 Ass pla 2. But if the eldest son be a Clerk convict in the life of his Father and after his Father dies in this case he shall inherit his Fathers Land because he was not attainted of Felony for by the Common Law he should inherit after he had made his Purgation And now by the Statute of 18 El. cap. 6. he shall be forthwith enlarged after burning in the hand and delivered out of prison and not committed to the Ordinary to make his Purgation but he is in the same case as if he had made his Purgation If a man that hath Land in right of his wife hath issue and his Bloud is corrupt by Attainder of Felony and the King pardons him in this case if the wife dies before him he shall not be Tenant by the courtesse for the corruption of the blood of that issue But it is otherwise if he hath issue after the Pardon for then he shall be Tenant although the issue which he had before the Pardon be not inheritable 13 H. 7. c. 17. If a man seised of Land hath issue two sons and the eldest is attainted in the life of his Father of Felony and therefore executed or otherwise dies during the life of his Father and after the Father dies seised the Land shall descend to the youngest son as Heir unto his Father if
the eldest son hath no issue then alive But if the eldest son who was attaint hath any Issue 〈◊〉 which should have inherited but for the Attainder the 〈◊〉 shall escheat to the Lord and shall not discend to the youngest brother because the Bloud of the eldest brother is corrupt 32 H. 8. Dy. 48. But it is to be noted That there are divers things made Treason by Act of Parliament whereof although a man be attainted yet his Bloud is not corrupt neither shall he forfeit any thing but that which he hath for his own life As if a man be attainted upon the Statute of 5 Eliz. cap. 1. ordained against the maintaining of the authority of the Bishop and See of Rome this shall not extend to make any Corruption of bloud the disheritance of any Heir forfeiture of any Dower nor to the prejudice of the right or title of any person other then the Offendor during his natural life only So if a man be attainted by force of the Statute of 5 Eliz. cap. 11. provided against the clipping washing filing and rounding of Money yet there is no Corruption of bloud In the same manner is it of the Statute of 18 Eliz. cap. 1. 1 Jac. cap. 12. 1 Mar. cap. 12. against Vnlawfull assemblies and 5 Eliz. cap. 14. against the Forging of evidence and the Statute of 31 Eliz. c. 4. against the Embezilling of the Queens Ordnance Armour or Artillery Corse present COrse present are words signifying a Mortuary and the reason why the Mortuary is so termed is because where a Mortuary was wont to be due the Body of the best Beast was according to the Law or custome offered or presented to the Priest See Anno 21 Hen. 8. ca. 6. where among other things it is enacted That no Corse present nor any summe of money or other thing for any Mortuary or Corse present shall be demanded received or had but only in such places and Towns where Mortuaries have been accustomed to be taken and paid Cosinage COsinage is a Writ that lies where my great Grandfather my Grandfathers Grandfather or other Cousin dies seised in Fee-simple and a Stranger abates viz. enters into the Lands then I shall have against him this Writ or against his Heir or his Alienee or against whosoever comes after to the said Lands But if my Grandfather die seised and a Stranger abates then I shall have a Writ of Ayel But if my Father Mother Brother Sister Vncle or Aunt die seised and a Stranger abates then I shall have an Assise of Mortdauncester Cottage COttage is a little House for habitation of poor men without any Land belonging to it whereof mention is made in the first Statute made in 4 E. 1. And the inhabitant of such a house is called a Cottager But by a Statute made in the 31 year of Queen Eliz. cap. 7. no man may build such a Cottage for habitation unless he lay unto it four acres of Freehold-land except in Market-Towns or Cities or within a mile of the Sea or for habitation of Labourers in Mines Sailors Foresters Shepherds c. Coucher COucher is a Factor who continues in some place or Country for traffick an 37 E. 3. c. 16. It is also used for the general Book into which any Corporation enters their particular Acts for a perpetual remembrance of them Covenable COvenable is a French word signifying Convenient or suteable as Covenably endowed Anno 4 H. 8. ca. 12. It is anciently written convenable as in the Stat. 27 Ed. 3. Stat. 2. ca. 17. Covenant COvenant is an Agreement made by Deed in writing and sealed between two persons where each of them is bound to the other to perform certain Covenants for his part and if the one performs not his Covenant the other shall have thereupon a Writ of Covenant And Covenants are either in Law or in Fact Cok. lib. 4. fol. 80. or Covenant expressed and Covenant in Law Cok. lib. 6. fol. 17. A Covenant in Law is that which the Law intends to be done though it be not expressed in words As if a man demise any thing to another for a certain term the Law intends a Covenant of the part of the Lessor that the Lessee shall hold all his term against all lawfull incumbrances Covenant in Fact is that which is expresly agreed between the parties Also there is a Covenant meerly personal and Covenant real Fitzh Nat. Brev. f. 145. seems to say that Covenant real is whereby a man ties himself to pass a thing real as Lands or Tenements as a Covenant to levy a Fine of Land Covenant meerly personal is where a man covenants with another by Deed to build a house or to serve him See the old Book of Entries the word Covenant But note well That no Writ of Covenant shall be maintainable without especialty except in the City of London or in some other place priviledged by custome and use Coverture COverture is when a man and a woman are married together now whatsoever is done concerning the wife in the time of the continuance of this Marriage is said to be done during the Coverture and the wife is called a Woman covert and thereby is disabled to contract with any one to the prejudice of her self or her husband without his consent and privity at the least without his allowance and confirmation See Brook this Title And Bract. saith That all things that are the wife's are the husbands neither hath the wife power of her self but the husband lib. 2. cap. 15. and the husband is the head of his wife lib. 4. cap. 24. and again that in any Law-matter she cannot answer without her husband lib. 5. tract 1. cap. 3. And if the husband alien his wife's Land during the Coverture she cannot gain-say it during his life Covin COvin is a secret Assent determined in the hearts of two or more to the prejudice of another As if a Tenant for term of life or Tenant in tail will secretly conspire with another that the other shall recover against the Tenant for life the Land which he holds c. in prejudice of him in the Reversion Or if an Executor or Administrator permit Iudgments to be entred against him by fraud and plead them to a bond or any fraudulent assignment or conveyance be made the party grieved may plead covin and relieve himself Vid. Stat. 2 R. 2. cap. 3. 3 H. 7. ca. 4. 13 El. c. 5. and 27 El. 4. Count. COunt is as much as the original Declaration in a Processe though more used in real than personal Actions as Declaration is more applied to personal than real F. N. B. 16. a. 60. d. n. 71. a. 191. e. 217. A Libel with the Civilians comprehends both Yet Count and Declaration are confounded sometimes as Count in Debt Kitch 281. Count or Declaration in Appeal Pl. Cor. 78. Count in Trespasse Brit. cap. 26. Count in Action of Trespasse upon the Case for a Slander Kitch 252. Contours
dishonour of the King and his Crown and discredit of the Law that any person by birth and oath obliged to the obedience of the King and his Laws should presume of his own authority by Force and strong hand to resist them both by violent Intrusion into the Possession of another before the Law hath decided his Tttle therein therefore divers Statutes have been made for the restraint and reformation of these Abuses as among others the Stat. of 5 R. 2. ca. 7. where the King defends any Entry into Lands or Tenements but in case where Entry is given by the Law and then not with strong hand or with a multitude of people but onely in a peaceable manner See more of this in Po â— lt de pace Reg. f. 34. 35 c. Degrading DEgrading See Disgrading Delegates ARE Commissioners appointed by Letters Patents to determine Appeals upon things testamentary or matrimonial in which sentence was given Demaines DEmaines or Demesnes generally speaking are all the parts of any Mannor which are not in the hands of Freeholders though they be held by Copy-holders Lessees for years or for life as well as Tenants at will And the reason why Copyhold is accounted Demesnes is because they who are Tenants to it are adjudged in Law to have no other Estate but at the will of the Lord so that it is still reputed to be in a manner in the Lords hands yet in common speech that is ordinarily called Demesnes which is neither free nor copy And this word Demesne is sometimes used in a more special signification and is opposite to Frank-fee as those Lands which were in the possession of Edward the Confessor are called Ancient demesne and all others are called Franck-fee Kitch fol. 98. and the Tenants which hold any of those Lands are called Tenants in Ancient demesn the other Tenants in Frank-fee And no common person hath any Demesnes in the simple acceptation of the word because there is no Land but depends mediately or immediately of the Crown that is of some Honor or other belonging to the Crown and not granted in fee to any inferiour person and therefore when a man in pleading will signifie his Land to be his own he saith That he is or was seised thereof in his Demesne as of Fee Littleton f. 3. whereby it appears that though his Land be to him and his Heirs for ever yet it is not true Demesne but depending upon a superiour Lord and holding by Service or Rent in lieu of Service or by Service and Rent together Demaines according to the common speech are only understood the Lords chief Mannor-place which he and his Ancestors have time out of mind kept in their own hands with all buildings and houses meadows pastures woods arable lands and such like therewith occupied Demand DEmand is a word of art and if one release to another all Demands this is as Littleton fol. 117. a. saith the best Release to him to whom the Release is made that he can have and shall most enure to his advantage for by it not onely all Demands but also all causes of Demands are released And there are two manner of Demands that is in Deed and in Law In Deed as in every Praecipe there is expresse Demand and therefore in real Actions he is called Demandant in personal Plaintiff In Law as every Entry in Land Distresse for Rent Taking or seisure of Goods and such like acts in the Countrey which may be done without any words or demands in Law As a Release of Suits is more large then a Release of Quarrels or of Actions so a Release of Demands is more large and beneficial than either of them for by it is released all that which by the others is released and more By Release of all Demands all Freeholds and Inheritances executory are released By Release of all Demands to the Dissetsor the right of the Entry in the land and all that is contained therein is released By Release of all Demands all Executions are released and he that releases all Demands excludes himself from all Actions Entries and Seisures Littleton fol. 170. holds That if Tenant in tail enfeoffs his Vncle who enfeoffs another in fee with Warranty if after the Feoffee by his Deed releases to the Vncle all manner of Demands by such Release the Warranty which is a Covenant real and executory is extinct and the reason is because that by Release of Demands all the means and remedies and their causes which any hath to Lands Tenements Goods Chattels c. are extinct and by consequence the right and interest it self unto the thing Yet a Release of all Demands doth not extend to such Writs by which nothing is demanded neither in Deed nor in Law but lie only to relieve the Plaintiff by way of Discharge and not by way of Demand as a Release of all Demands is no Bar in a Writ of Error to reverse an Outlawry and so of such like See 18 Edw. 3. 59. Coke lib. 8. fol. 153 154. Demandant DEmandant is he that sues or complains in an Action real for Title of land and he is called Plaintiff in an Assise and in an Action personal for Debt Trespass Deceit Detinue and such like Demurrage IS called the time when a Shi â— lies idle in a Port or Harbour or on the Sea in a Calm Demurrer DEmurrer is when any Action is brought and the Defendant pleads a Plea to which the Plaintiff says that he will not answer for that it is not a sufficient Plea in the Law and the Defendant avers the contrary that it is a sufficient Plea and thereupon both parties submit the Cause to the Iudgement of the Court which is called a Demurrer for that they go not forward in pleading but rest upon Iudgement in that point and is called in Latine Records Moratur in Lege For in every Action the difference consists either in Deed or in Law If in Fact it is tried by the Iury if in Law then the matter is either plain or difficult and rare if it be plain then Iudgment is presently given but when it is hard and doubtfull then is stay made and time taken either to consider farther thereupon by the Iudges to agree if they can or otherwise for all the Iustices to meet together in the Exchequer-Chamber and upon hearing of that which the Serjeants shall say unto both parts to advise and determine what is Law and that which is there concluded on by them shall stand firm without further remedy There is also a Demurrer to Evidence given to a Iury upon Tryal of an Issue Plo. Com. 2. 3 Rast Entr. 607. Half bloud HAlf bloud is when a man marries a wife and hath issue by her a son or daughter and the wife dies and then he takes another woman and hath by her also a son or daughter Now these two sons are after a sort Brothers or as they are termed Half-brothers or Brothers of the half
bloud that is Brothers by the Fathers side because they had both one Father and are both of his bloud and not Brothers at all by the Mothers side nor of bloud nor kin that way and therefore the one of them cannot be Heir to the other for he that will claim as Heir to one by discent must be of whole â— bloud to him from whom he claims In the same manner it is if a woman have divers issues by divers husbands who are called Brothers by one Mother Denariata terrae DEnariata Terrae See Fardingdeal Denelage DEnelage is the Law that the Danes made here in England cut of which and Merchenlage and Westsaxonlage William the Conquerour composed certain Ordinances to be observed by his subjects Denizen DEnizen or Donaison is where au Alien born becomes the Kings Subject and obtains the Kings Letters Patents to enjoy all Priviledges as an English-man but if one be made Denizen he shall pay Customes and divers other things as Alien as it appears by divers Statutes thereof made It seems that Donaison is the true name so called because that his Legitimation is given to him and not Denizen as derived from Deins nee And the Law is so precise in the making of Denizens that the King cannot grant power to any other to make Aliens born Denizens it is by the Law so inseparably and individually annexed to his Royal person for the Law esteems it an high Prerogative to make Aliens Subjects of the Realm and capable of Lands and Inheritances as natural born Subjects are And therefore the Statute of 27 H. 8. c. 24. which reunites many of the most ancient Prerogatives and Regal Flowers of the Crown makes no mention of any authority to make Letters of Denization to be resumed for that never any claimed it be any pretext whatsoever it being so high a point of Prerogative See Cok. l. 7. Calvins Case Deodand DEodand is when any man by misfortune is slain by a Horse Cart or any other thing that moves to further his death such thing which at the time of his misfortune did move or cause his death shall be sorfeit to the King and that is called Deodand and that pertains to the Kings Almoner for to dispose in Alms and Deeds of Charity But it is not forfeited untill the matter be found of Record and therefore they cannot be claimed by Prescription and the Iury that finds or presents the death by such misadventure ought also to find and appraise the Deodand Co. l. 5. f. 110. If a Horse strikes one and afterwards the Owner sells the Horse and then the party that was stricken dies of the stroke in this case the Horse shall be forfeited as a Deodand notwithstanding the sale for relation shall be had to the stroke which was before the sale Plow Com. 260. b. What move to death or kill the dead Are Deodand and forfeited Departure from a Plea or matter DEparture from a Plea or matter is where a man pleads a Plea in bar and the Plaintiff replies thereto and he after in his Rejoynder pleads or shews another matter contrary or not pursuing to his first Plea that is called a Departure from his Bar. As if a man pleads a general Agreement in bar and in the Rejoynder he alledges an especial Agreement this shall be adjudged a Departure in Pleading So in Trespass if the Defendant will plead a discent to him and the Plaintiff saith that after this the Defendant enfeoffed him and the Defendant saith that this Feoffment was upon Condition for the breach whereof he entred this is a Departure from the Bar for it is a new matter See Plow Com. f. 7. 8. Departure in despight of the Court. DEparture in despight of the Court is when the Tenant or Defendant appears to an Action and hath a day over in the same Term or is called after though he had no day given him so that it be in the same Term if he do not appear but make Default it is a Departure in despight of the Court and therefore he shall be condemned And it is to be observed that Departure in despight of the Court is always of the part of the Tenant or Defendant and the Entry thereof is Quod praedictus A licet solenniter exactus non revenit sed in contemptum Curiae recessit Defaltam fecit and this is when in judgement of the Law he is present in Court and being demanded departs in despight of the Court this amounts to a Bar in respect of the Despight and Contempt of the Court. See Cok. lib. 8. f. 62. Deprivation DEprivation is when an Abbot Bishop Parson Vicar Prebend c. is deprived or deposed from his Preferment for any matter in Fact or in Law As if a Miscreant or Schismatick be presented admitted and inducted there is good cause of Deprivation So if a meer Lay-man be presented admitted instituted and inducted yet he shall be deprived or if the Incumbent hath Plurality of Benefices or subscribe not to the Articles of Religion according to the Stat. of 13 Eliz. cap. 12. By the Statute of 21 H. 8. cap. 13. it is enacted That if any person having a Benefice with Cure of souls of the yearly value of eight pounds or more accepts or takes any other with Cure of souls and be instituted and inducted into the possession thereof the first Benefice shall be void and the Incumbent in this case is outed or deprived by Cession In which case the Bishop needs not give notice to the Patron because the Deprivation is by Act of Parliament to which every one is party and ought to take notice at his peril But otherwise it is if the first Church be not of the yearly value of eight pounds for then it is void meerly by the Ecclesiastical Law See Co. l. 4. f. 76. and l. 7. 43 b Deputie DEputie is he that exercises in another mans right either Office or any other thing and his forfeiture or misdemeanor shall cause the Officer or him whose Deputy he is to lose his Office But a man cannot make his Deputy in all cases except the Grant so be as if it be with these or such like words To exercise or use by himself or his sufficient Deputy or if the words go farther To himself or his Deputy or the Deputy of his Deputy then he may make a Deputy and his Deputy also may make a Deputy or else not As if the Office of a Parkership be granted to one he cannot grant this over to another because it is an Office of trust and confidence and shall not be forfeited And there is great diversity between Deputy and Assignee of an Office for an Assignee is a person that hath an Estate or interest in the Office it self and doth all things in his own name for whom his Grantor shall not answer unless it be in especial cases and a Deputy hath not any Estate or interest in the Office but is only
both are Records yet the Iudgment in the Kings Court upon judicial and ordinary proceeding is more notorious and conspicuous and of a more high and eminent degree then a Statute or Recognisance taken in private and by consent of parties and is therefore preferred in judgment of the Law before Recognisance or Statute and if the Executors do not satisfie this first then if they have no goods of the dead in their hands they shall pay it of their own So the Ordinary having goods of one that dies intestate in his hands by Sequestration and an Action of Debt upon an Obligation to the value of the said goods is brought against him as Ordinary he shall not dispose or administer any parcell of the said Goods to the other Creditors at his pleasure but is bound to satisfie the Debt first for which an Action is brought against him Dyer fol. 232. placit 5. If a Sheriff retorne ex officio without inquest that the Executor hath wasted goods the Execution goes de bonis propriis of the Executor and if the retorn be false then the Executor may have an Action upon the Case against the Sheriff for his false retorn because the Executor hath no day to plead But if the Sheriff retorn a devastavit upon an Inquiry by a Iury the Executor may appear and traverse quod non devastavit and try it 1 Cro. Mounson and Bourn Proctor versus Chamberlain Devenerunt DEvenerunt is a Writ directed to the Escheator when any of the Kings Tenants holding in Capite dies and when his son and heir within age and in the Kings custody dies then shall this Writ go forth commanding the Escheator that he by the oath of good and lawful men enquire what Lands or Tenements by the death of the Tenant come to the King c. See Dyer f. 360. pla 4. But see the Stat. 12. Car. 2. cap. 24. Devest DEvest is a word contrary to Invest for as Invest signifies to deliver the possession of a thing so Devest signifies the taking it away Devise DEvise is where a man in his Testament gives or bequeaths his Goods or Lands to another after his decease And where such Devise is made of Goods if the Executors will nor deliver them to the Devisee he hath no remedy by the Common Law but it behoves him to have a Citation against the Executors of the Testator to appear before the Ordinary to shew why he performs not the Will of the Testator for the Devisee may not take the Legacy and serve himself but it must be delivered to him by the Executors See the Stat. 32 H. 8. ca. 1. 34 H. 8. ca. 5. 29 Car. 2. ca. 3. By which last Statute the Law of Testameuts is altered But by the Common Law if a man be sole seised of Lands in fee and devises them by Testament this Devise was void unless the Lands were in City or Borough where Lands are devisable by Custome But if any man were infeoffed to the use of another and his heirs and he to whose use he was so seised did make Devise of his Lands this Devise was good though it were not in a Town where Lands are devisable Also if any man devise Lands in City Town or Borough devisable and the Devisor dies if his Heir or any other abate in the Lands then the Devisee shall have a Writ of Ex gravi querela But this Writ shall never be pleaded before the Kings Iustice but always before the Maior or Bailiffs in the same Town And here to the end to shew how much the Laws of this Realm and the discreet Iudges of the same who are the Interpreters of it do favour Wills and Testaments and Devises in yielding to them such a reasonable construction as they think might best agree with the minds of the dead considering that Wills and Testaments are for the most part and by common intendment made when the Testatour is very sick weak and past all hope of recovery for it is a received opinion in the Countrey amongst most that if a man should chance to be so wise as to make his Will in his good health when he is strong of good memory and hath time and leisure to ask counsell if any doubt were of the Learned that then he should not live long after and therefore they deferre it to such time when it were more convenient to apply themselves to the dispositions of their Souls than of their Lands or Goods except it were that by the fresh memory and recital of them at that time it might be a cause to put them in mind of some of their goods or lands falsly gotten and so move them to restitution c. And at that time the penning of such Wills is commonly committed to the Minister of the Parish or to some other more ignorant who knows not what words are necessary to make an Estate in Fee-simple Fee-tail for term of life or such like besides many other mischiefs I will therefore here set down some of those Cases that are most common in ignorant mens mouths and carry by the wise interpretations of the Judges a larger and more favourable sense in Wills than in Deeds First therefore if one devise to J. S. by his Will all his Lands and Tenements here not only all those Lands that he hath in possession do pass but all those that he hath in Reversion by virtue of those words Tenements And if Lands be devised to a man to have to him for ever or to have to him and his Assigns in these two cases the Devisee shall have a Fee-simple But if it be given by Feoffment in such manner he hath but an Estate for term of life And if a man devise his Land to another to give sell or do therewith at his pleasure or will this is Fee-simple A Devise made to one and to his Heirs males doth make an Estate-tail But if such words be put in a Deed of Feoffment it shall be taken for Fee-simple because it doth not appear of what body the Heirs males shall be begotten If Lands be given by Deed to J. S. and to the Heirs males of his body c. who hath issue a daughter who hath issue a son and dies there the Land shall return to the Donor and the son of the Daughter shall nor have it because he cannot convey himself by Heirs males for his mother is a let thereto But otherwise it is of such a Devise for there the son of the daughter shall have it rather then the Will shall be void If one devise to an Infant in his mothers belly it is a good Devise but otherwise by Feoffment Grant or Gift for in those cases there ought to be one of ability to take presently or otherwise it is void See 14. El. Dy. 304. A Devise made in Fee-simple without expresse words of Heirs is good in Fee-simple But if a Devise be made to J. N. he
of Imprisonment But if a man be arrested upon an Action at the Suit of another though the cause of Action be not good nor true if he make an Obligation to a Stranger being in prison by such Arrest yet it shall not be said by Duresse But if he make an Obligation to him at whose Suit he was arrested to be discharged of such Imprisenment then it shall be said Duresse Duchy IS a Court in the Duchy Chamber of Lancaster at West before the Chancellor del Duchy de Lanc̄ for matters concerning the lands and Franchises of the Duchy and their proceedings are by English bill as in Chancery Co. 4. Inst 204. E. Earlderman EAlderman among the Saxons was as much as Earl among the Danes Camb. Brit. 107. And at this day we call them Aldermen who are Associates to the chief Officer in the Common Council of the Town 34 H. 8. c. 13. And in some places the chief Officer himself is called Alderman Earle EArle See Countee Easement EAsement is a Priviledge that one Neighbour hath of another by Writing or Prescription without profit as a Way or a Sink through his Land or such like Kitch f. 105. Egiptians EGiptians commonly called Gipsies are counterfeit Rogues Welsh or English that disguise themselves in speech and apparel and wander up and down the Country pretending to have skill in telling Fortunes and to deceive the common people but live chiefly by filching and stealing and therefore the Statutes of 1 2 Mar. c. 4. 5 Eliz. c. 20. were made to punish such as Felons if they departed not the Realm or continued so a mouth Ejectione firmae EJectione Firmae Look for that in the Title Quare ejecit infra terminum Ejectment de Gard. Ejectment de Gard. See that in the Title Gards Eigne EIgne is a French word and signifies the Eldest or First-born See Enitia pars Einecia EInecia signifies Eldership Stat. of Ireland Anno 14 H. 3. See Enitia pars Eire Justices EIre Justices or Itinerant as we call them were Iustices that used to ride from place to place throughout the Realm to administer Iustice And these Iustices had authority in ancient times to grant Land that was seised for the King for Alienation without licence for then Iustices in Eire might have granted such Land in fee rendring Rent as Iustices of the Forrest who in effect as to this purpose are Iustices in Eire at this day may of Lands iuclosed within a Forrest without the Kings licence Coke l. 2. fol. 80. Election ELection is when a man is left to his own Free will to take or do one thing or another which he pleases As if A covenants to pay B a pound of Pepper or Saffron before Whitsontide it is at the Election of A at all times before Whitsontide which of them he will pay but if he pays it not before the said Feast then afterward it is at the Election of B of have his Action for which he pleases Dyer f. 18. pl. 104. So if a man gives to another his Horse or Cow the Donee may take the one or the other at his Election But if it be that he will give in the future tense then the Donee cannot take the one nor other for then the Election is in the Donor 21 H. 7. 19. Also if a Iustice of Peace direct his Warrant to a Constable to bring the party apprehended before him or another Iustice it is in the Election of the Constable to go to what Iustice he pleases Coke lib. 5. fol. 59. And so in many other cases Elegit TO hold by Elegit is where a man hath recovered Debt or Dammage by a Writ against another by confession or in other manner he shall have within the year against him a Writ judicial called Elegit to have execution of the half of all his Lands and Chattels except Oxen and Beasts of the plow till the Debt and Dammages be wholly levied and paid him and during this term he is Tenant by Elegit If he be put out within the term he shall have Assise of Novel Disseisin and after a Redisselsin if need be and this is given by the Statute of Wes ◠m. 2. c. 18. And by the equity of the said Statute he that hath this Estate if he be put out shall have Assise and Redisseisin if need be And also if he make his Executors and die and his Executors enter and after are put out they shall have such Action as he himself And if he be put out and after make his Executors and die his Executors may enter and if they be stopped of their Entry they shall have a Writ of Trespasse upon their Case If he do Waste in all the Land or parcel the other shall have against him immediately a Writ judicial out of the first Record called Venire facias ad computandum by which it shall be enquired if he have levied all the money or parcel and if he have not levied the money then it shall be enquired to how much the Waste amounts and if the Waste amount but to parcel then as much of the money as the Waste amounts unto shall be abridged of the aforesaid money which was to be levied But if he have done more Waste then the aforesaid summ of money which was to be levied amounts to the other shall be discharged forthwith of all the said money and shall recover the Land And for the superfluity of the Waste made above the said summ he shall recover his dammages single The same Law is of his Executors and of him that hath his Estate Or if the Debtor be satisfied by digging Coals Load Tyn or oeher casual profits See the Stat. 32 H. 8. c. 5. If all the Lands extended be evicted from the Debtor by a better title he may take a new Execution Co. 4. Rep. 66. If he alien in fee for term of life or in tail all or parcel of the Land which he holds by Elegit if the Alienation be made within the term or after he who hath right shall have against him an Assise of Novel Disseisin And they both must be put in the Assise the Alienor and the Alience and though the Alienor d ◠e presently yet he who hath right shall have Assise against the Alienee alone as if the Alienee had been a plain Tenant for term of years And that is by the equity of the Statute of Westm 2. cap. 25. for that he hath but a Chattel in effect And the same Law is of his Executors and of him who hath his Estate as is aforesaid In Elegit if the Sherif return that the party hath nothing the day of the Recognizance made but that he purchased Lands after the time then the Plaintiff shall have a new Writ to have Execution thereof The same Law is of a Statute-Merchant After a Fieri facias a man may have the Elegit but not contrariwise for that the Elegit is of a higher nature then the
ei dimisit qui inde eum injuste disseisivit c. But if the Disseisor alien and the Alienee dies seised or aliens over to another or if the Disseisor dies and his Heir enters and that Heir aliens or dies and his Heir enters then the Disseisee or his Heir shall have a Writ of Entre sur Disseisin in the Per and Cui and the Writ shall say In quod idem A non habet Ingressum nisi per B cui C illud ei dimisit qui inde injuste c. A Writ of Entry in the Per and Cui shall be maintainable against none but where the Tenant is in by Purchase or Discent For if the Alienation or Discent be put out of the Degrees upon which no Writ may be made in the Per or in the Per and Cui then it shall be made in the Post and the Writ shall say In quod A non habet Ingressum nisi Post Disseis â— nam quam B inde injuste sine judicio fecit praef t. N. vel M. proavo N. cujus haeres ipse est Also there are five things which put the Wri â— of Entrie out of the Degrees viz. Intrusâ—on Succession Disseisin upon Disseisin Iudgment and Escheat 1. Intrusion is when the Disseisor dies seised and a stranger abates 2. Diss â— isin upon Disseisin is when the Disseisor is disseised by another 3. Succession is when the Disseisor is a man of Religion and dies or is deposed and his Successor enters 4. Judgment is when one recovers against the Disseisor 5. Escheat is when the Disseisor dies without Heir or doth Felony whereby he is attaint by which the Lord enters as in his Escheat In all these cases the Disseisee or his Heir shall not have a Writ of Entrie within the degrees of the Per but in the Post because in those cases they are not in by Discent nor by Purchase Entrie ad Communem Legem ALso there is a Writ of Entrie ad Communem Legem which lies where Tenant for term of Life Tenant for term of anothers Life Tenant by the curtesie or Tenant in Dower aliens and dies he in the Revetsion shall have this Writ against whomsoever is in after in the Tenement Entrie in the Case provided A Writ of Entrie in Casu proviso lies if Tenant in Dower alien in fee or for term of life or for anothers life living the Tenant in Dower he in the Reversion shall have this Writ which is provided by the Stat. of Gloc. c. 7. Entrie in Casu consimili A Writ of Entrie in Casu consimili lies where Tenant for life or Tenant by the courtesie aliens in Fee he in Reversion shall have this Writ by the Statute of Westmin 2. cap. 24. Entrie ad Terminum qui praeteriit THe Writ of Entrie ad terminum qui praeteriit lies where a man leases Land to another for term of years and the Tenant holds over his term the Lessor shall have this Writ And if Lands be leased to a Man for term of anothers life and he for whose life the Lands are leased dies and the Lessee holds over then the Lessor shall have this Writ Entrie without Assent of the Chapter A Writ of Entrie sine Assensu Capituli lies where an Abbot Prior or such as hath Covent or common Seal aliens Lands or Tenements of the right of his Church without the Assent of the Covent or Chapter and dies then the Successor shall have this Writ Entrie for Marriage in Speech A Writ of Entrie causa Matrimonii praeloquuti lies where Lands or Tenements are given to a man upon Condition that he shall take the Donor to his wife within a certain time and he does not espouse her within the said term or espouses another woman or makes himself Priest or enters in Religion or disables himself so that he cannot take her according to the said Condition then the Donor and her Heirs shall have the said Writ against him or against whosoever is in the said Land But this Condition must be made by Indenture otherwise this Writ doth not lie And all these and other Writs of Entry may be made in the Per Cui and Post Entrusion ENtrusion is a Writ that lies where a Tenant for Life dies seised of certain Lands or tenements and a Stranger enters he in the Reversion shall have this writ against the Abator or whosoever is in after their Entrusion Also a writ of Entrusion shall be maintainable by the Successour of an Abbot against the Abator who shall enter in Lands or tenements in the time of Vacation that belong to the Church by the Statute of Marlebridge the last Chapter And it seems the difference between an Intrudor and an Abator is this that an Abator is he that enters into Lands void by the death of a Tenant in Fee and an Intrudor is he that enters into Lands void by the death of a Tenant for Life or Years See F. N. B. fol. 203. Entrusion de Gard. ENtrusion de Gard is a Writ which lies where the Heir within age enters in his Lands and holds out his Lord for in such case the Lord shall not have the Writ de Communi Custodia but this Writ of Entrusion of the Ward Old N. B. Enure ENure signifies to take place or effect to be available As a Release shall enure by way of Extinguishment Lit. Cha. Release Equity EQuity is in two sorts and those of contrary effects for the one doth abridge and take from the letter of the Law the other doth enlarge and add thereunto The first is thus defined Equity is the Correction of a Law generally made in that part wherein it fails which correction of the general words is much used in our Law As for example When an Act of Parliament is made that whosoever doth such a thing shall be a Feion and shall suffer death yet if a Mad-man or an Infant that hath no discretion do the same they shall be no Felons nor suffer death ther fore Also if a Statute were made That all persons that shall receive or giv â— me â— t and drink or other succor to any that shall do any such thing shall be accessary to his Offence and shall suffer death if they knew of the Fact yet one doth such an act and comes to his wife who knowing thereof doth receive him and gives him meat and drink she shall not be Accessary nor Felon for by the generality of the said words neither the M â— d-man Infant nor Wife were included in the intent of the Law And thus Equity doth correct the generality of the Law in those cases and the general words are by Equity abridged The other Equity is defined to be an Extension of the words of the Law to Cases unexpressed yet having the same reason So that when the words enact one thing they enact all other things that are of like degree As the Statute which ordains That in an Action of Debt against
Forestall FOrestall is to be quit of Amerciaments and Cattels arrested within your Land and the Amerciaments thereof coming Founder FOunder is he that uses the Art of Melting or Dissolving Metals and making any thing thereof by casting in Molds He seems to have his name from the Latine word Fundere and is mentioned in the Statute of 17 R. 2. cap. 1. Fourcher FOurcher is a device used to delay the Plaintiff or Demandant in a Suit against two who thereto are not to answer till they both appear and the Appearance or Essoin of one will excuse the others Default at that day and they agree that the one shall be essoined or appear one day and for lack of the Appearance of the other have day over to appear and the other party shall have the same day and at that day the other will appear or be essoined and he that appeared or was essoined before will not then appear because he hoped to have another day by the Adjournment of the party who then appeared or was essoined This is called Fourcher and in some cases the mischief thereby is remedied by the Statute of Gloucest cap. 10. and Westm̄ 1. cap. 42. Franchise FRanchise is a French word and signifies in our Law an Immunity or Exemption from ordinary Iurisdiction as for a Corporation to hold Pleas within themselves to such a value and the like See of this in the Old Nat. Brev. fol. 4. a b. Franchise Royal. FRanchise Royal is where the King grants to one and his Heirs that they shall be quit of Toll or such like Free Almes FRee Almes is where in ancient times Lands were given to an Abbot and his Covent or to a Dean and his Chapter and to their Successors in pure and perpetual Almes without expressing any Service certain this is Frank-almoigne and such are bound before God to make Oraisons and Prayers for the Donor and his Heirs and therefore they do no Fealty and if such as have Lands in Frank-almoigne perform no Prayers nor Divine Service for the Souls of the Donors they shall not be compelled by the Donors to do it but the Donors may complain to the Ordinary praying him that such negligence be no more and the Ordinary of right ought to redress it But if an Abbot c. holds Lands of his Lord for certain Divine Service to be done as to sing every Friday a Mass or do some other thing if such Divine Service be not done the Lord may distrain and in such case the Abbot ought to do Fealty to the Lord and therefore it is not said Tenure in Frank-almoign but Tenure by Divine-Service for none can hold by Frank-almoign if any certain Service be expressed Frank Bank FRank Bank or Free Bench are Copihold-Lands which the Wife being married a Virgin hath after the decease of her husband for her Dower Kitch f. 102. Bract lib. 4. tract 6. cap. 13. num 2. hath these words There is a custom in those parts that the Wives their Husbands being dead should have Frank Bank of Lands of Sockmans and hold it in name of Dower Fitzh calls this a Custome by which in some Cities the Wife shall have all the Lands of her Husband for Dower N. B. fol. 150. See Plow fol. 411. Frank Chase FRank Chase is a Liberty by which all men having Land within this compass are prohibited to cut down the Wood or discover c. without the view of the Forrester although it be his own Crom. Jur. f. 187. Frank Fee TO hold in Frank Fee is to hold in Fee-simple Lands pleadable at the Common Law and not in ancient Demesne Frank Law FRank Law See Crom. Just of Peace f. 151. where you may find what this is by the contrary for he that for an Offence as Conspiracy loses his Frank Law is said to fall into these Mischiefs First that he shall never be Impanelled upon any Iury or Assize or otherwise used in saying any Truth Also if he have any thing to do in the Kings Court he shall not approach thither in person but must appoint his Attourney 3 His Lands Goods and Chattels are to be seised into the Kings hands and his Lands must be estrepped his Trees rooted up and his Body committed to prison Free Marriage FRee Marriage is when a man seised of Land in Fee-simple gives it to another man and his wife who is the daughter sister or otherwise of kin to the Donor in Free Marriage by virtue of which wards they have an Estate in special tail and shall hold the Land of the Donor quit of all manner of Services until the fourth degree be past accounting themselves in the first degree except Fealty which they shall do because it is incident to all Tenures saving Free alms And such Gift may be made as well after Marriage solemnized as before And a man may give Lands to his Soir in Free Marriage as well as to his Daughter by the opinion of Fitzh in his Writ of Champertie H. But it appears otherwise in Littleton and in Broke tit Frank-marriage pla 10. And so it was holden clear in Grays-Inne in Lent an 1576. 18 Eliz. by M. Rhodes then Reader there Frank-plege FRank-plege signifies a Pledge or Surety for Free-men according to the ancient Custom of England for preservation of the publick Peace See the Statute for View of Frank-pledge Anno 18 Ed. 2. and see View of Frank-pledge Free-hold FRee-hold is an Estate that a man hath in Lands or Tenements or Profit to be taken in Fee-simple Tail for term of his own or anothers life in Dower or by the Courtesse of England and under that there is no Free-hold for he that hath Estate for years or holds at will hath no Free-hōld but they are called Chatels And of Free-holds there are two sorts viz. Free-hold in Deed and Free-hold in Law Free-hold in Deed is when a man hath entred into Lands or Tenements and is seised thereof really and actually As if the Father seised of Lands or Teuements in Fee-simple dies and his son enters into the same as heir to his Father then he hath a Free-hold in Deed by his Entry Free-hold in Law is when Lands or Tenements are discended to a man and he may enter into them when he will but hath not yet made his Entry in Deed As in the case aforesaid if the Father being seised of Lands in Fee die seised and they discend to his Son but the Son hath not entred into them in Deed now befo rt his Entry he hath a Free-hold in Law French-man FRench-man was wont to be used for every Outlandish-man Bracton Lib. 3. Tract 2. cap. 15. See Engleshery Frendless man FRendless man was the old Saxon word for him we call an Outlaw nam forisfecit Amcos suos Bracton Lib. 3. Tract 2. cap. 12. Fresh Force FResh Force Frisca Forcia is a force committed in any City or Borough as by Disseisin Abatement Intrusion or Deforcement of any Lands or
Tenements within the said City or Borough For the redressing of which wrong he that hath right may by the Vsage of the said City or Borough have his remedy without Writ by an Assise or Bill of Fresh Force brought within 40 days after the Force committed or Title to him accrued In which Action he may make his protestation to sue in the nature of what Writ he will And see for this matter Fitzh Nat. Bre. f. 7. C. and Old N. B. f. 4. a. Fresh Suit FResh Suit is when a man is robbed and the party so robbed follows the Felon immediately and takes him with the manner or therwise and then brings an Appeal against him and doth convict him of the Felony by Verdict which thing being enquired of for the King and found the party robbed shall have restitution of his goods again Also it may be said that the party made Fresh Suit although he take not the Thief presently but that it be half a year or a year after the Robbery done before he be taken if so be the party robbed do what lies in him by diligent enquiry and search to take him yea although he be taken by some other body yet this shall be said Fresh Suit Fresh Suit is also when the Lord comes to distrain for Rent or Service and the Owner of the Beasts makes rescous and drives them into anothers Ground not holden of the Lord and the Lord follows presently and takes them And so in other like cases Friperer FRiperer is a word used in the Statute of 1 Jac. c. 21. for a kind of Broker And it seems to be a word taken from the French word Fripier to trick up old things and therefore a Friperer is one that uses to dress old Clothes to sell again Frumgyld FRumgyld is an old Saxon word which signifies the first payment made to the Kindred of a slain person in recompence of his Murder L. L. Edmundi c. ult Fugitives goods FUgitives Goods are the proper goods of him that flies upon felony which after the flight lawfully found do belong to the King Coke vol. 6. f. 109. b. G. Gable GAble Gablum in ancient Records is an old word that signifies a Rent Duty Custom or Service yielded or done to the King or any other Lord See the Comment upon Littl. fol. 142. a. Gager de deliverance GAger de deliverance is where one sues a Repleven of goods taken but he hath not the goods delivered and the other avows and the Plaintiff shews that the Defendant is yet possessed of the goods c. and prays that the Defendant may gage the Deliverance then he shall put in Surety or Pledges for the Redeliverance and a Writ shall go forth to the Sheriff to redeliver the goods c But if a man claim property he shall not gage Deliverance And if he say that the Beasts are dead in the Pound he shall not gage c. Also a man shall never gage the Deliverance before they are at Issue or Demurter in the Law as it is said Gainage GAinage Wainagium seems to come from the French word Gaignage id est Gain or Profit but in our Law it signifies the Profit most properly that comes by the Tillage of Land And therefore in the Statute of Mag. Chart. c. 14. it is Enacted that a Villain shall be amerced saving his Gainage and in West 1. c. 6. saving his Gainure and in c. 17. it is Enacted That he that deforces any of the deliverances of his Beasts by Replevin shall render unto the Plaintiff his double Dammages which he hath sustained in his Beasts or in his Gainage disturbed c. And by the Statute of Distress of the Exchequer made in 51 H. 3. it is Enacted That no man of Religion or other shall be distrained by the Beasts that gain his Land Galli-halpens GAlli-halpens were a certain Coin prohibited by the Stat. An. 3. H. 5. c. 1. Gaole GAole or Gayle comes of the French word Geole which signifies a Cage for Birds but metaphorically is used for a Prison And from thence the Keeper of the Prison is called a Gaoler or Gayler Garbe GArbe comes of the French Garbe vel Gerbe which signifies a Bundle or Sheaf This word is used in the old Stat. called Charta de Foresta cap. 7. where Herbas in the Latine is translated Garbe in English Garble GArble is is to sort and chuse the good from the bad as the Garbling of Bow-staves Anno 1 R. 3. c. 11. and the Garbling of Spice is nothing else but to purifie it from the Dross with which it is mixed See of this at large in the Statute of 1 Jac. c. 19. Gard. GArd or Ward is when an Infant whose Ancestor held by Knights Service is in the Ward or Keeping of the Lord of whom those Lands were holden And if the Tenant hold of divers Lords divers Lands the Lord of whom the Land is holden by Priority that is by the more elder Tenure shall hade the Wardship But if one Tenure be as old as the other then he that first gets the Ward of the Body shall keep it But every Lord shall have the Ward of the Land that is holden of him And if the Tenant hold any Land of the King in chief he by his Prerogative shall have the Ward of the Body and of all the Land that is holden of him and of every other Lord. Also there are divers Writs of Ward One is a Writ of Right of Ward and that lies where the Tenant dies his Heir within age and a Stranger enters into the Land and happens to have the Ward of the Body of the Infant A Writ of Ejectment of Ward lies where a man is put out of the Ward of the Land without the Body of the Infant A Writ of Ravishment of Ward lies where the Body is taken from him only and not the Land But see the Stat. 12 Car. 2. c. 24. for Abolishing the Court of Wards c. Gardian GArdian or Wardein most properly is he that hath the Wardship or Keeping of an Heir and of his Land holden by Knights Service or of one of them to his own use during the Nonage of the Heir and within that time hath the bestowing of the Body of the Heir in Marriage at his pleasure without disparagement And of Wa â—â— ens there are two sorts namely Gardian in Right and Gardian in Deed. Gardian in Right is he that by reason of his Seigniory is seised of the Wardship or keeping of the Land and Heir during his Nonage Gardian in Deed is where the Lord after his Seifin as aforesaid grants by Deed or without Deed the Wardship of the Land or Heir or both to another by force of which Grant the Grantee is in possession The Grantee is called Gardian in Deed. And this Gardian in Deed may grant the Heir to another also but that other is not properly called Gardian in Deed but Grantee of the Gardian in Right
only But the Gardian in Socage hath the profit only to the use of the Heir until he accomplish the age of 14 years and must yield therefore an account to the Heir See more hereof Littleton lib. 2. cap. 4 5. and Stamford upon the Statute of Prerogat cap. 1 2 6. Church-wardens CHurch-wardens are Officers chosen in every Parish to have the care and custody of the Church Goods and they may have an Action for the Goods of the Church and divers other things they may do for the benefit of the Church and by the Statute of 43 Eliz. cap. 2. they are to joyn with the Overseers for the making of Rates and other Provisions for the Poor of the Parish Gardian of the Spiritualties GArdian of the Spiritualties by the general Law is the Dean and Chapter of the Diocess unless there be a Custom that the Arch-bishop of the Province should be the Gardein sede vacante His office is to hold Courts prove Wills grant Administrations and supply the Bishops room Garnishment GArnishment If an Action of Detinue of Charters be brought against one and the Defendant saith that the Charters were delivered to him by the Plaintiff and by another upon certain Conditions and prays That the other may be warned to plead with the Plaintiff if the Conditions be performed or no and thereupon a Writ of Scire facias shall go forth against him this is called Garnishment and the other when he comes shall plead with the Plaintiff and that is called Enterpleader Garranty GArranty is when one is bound to another who hath Land to warrant the same to him which may be two ways that is by Deed of Law As if one and his Ancestors hath held Land of another and his Ancestors time out of mind by Homage which is called Homage Auncestrel Or by Deed of the party who grants by Deed or Fine to the Tenant of the Land to Warrant it to him upon which if the Tenant be impleaded by him who ought to warrant or his Heirs the Tenant shall bar the Demandant by pleading the Warranty against him which is called Rebutter or if he be impleaded by another in an Action wherein he may vouch he shall vouch him who warranted or his Heirs and if the Plaintiff recover the Tenant shall recover in value against the Voucher Garranty is of three sorts that is Garranty Lineal Garranty Collateral and Garranty that begins by Disseisin Warranty Lineal is where a man seised in fee or in tail makes a Feoffment to another and binds him and his heirs to Warranty and hath issue a son and dies and the warranty disceuds to his son For if no Deed with Warranty had been made then the right of the Lands should have discended to the son as heir to his father and he shall convey the Discent from the father to the son But if Tenant in tail discontinues the tail and hath issue and dies and the Vncle of the Issue releases to the Discontinuee with Warranty c. and dies without issue this is a Collateral Warranty to issue in tail for that the Warranty discends upon the Issue who may not convey himself to the tail by mean of his Vncle. And in every Case where a man demands Lands in Fee-tail by Writ of Formedon if any Ancestor of the Issue in tail makes a Warranty and he that sues a Writ of Formedon by possibility of matter that may be done conveys to him Title by force of his Gift that made the Warranty c. that is then a Lineal Warranty whereby the Issue in tail shall not be barred except he have Assets to him discended in Fee-simple But if he may not by any possibility convey to him Title by force of his Gift that made the warranty then that is a Collateral Warranty and thereby the Issue in tail shall be barred without any Assets And the cause that such a Collateral Warranty is a Bar to the Issue in the tail is for that all Warranties before the Statute of Gloucester which discended to those who are Heirs to the warrantors were Bars to the same Heirs to demand any Lands except the warranties that began by Disseisin and for that the said Statute hath ordained That the warranty of the Father shall be no Bar to his Son for the Lands which come by the Heritage of the Mother nor the Warranty of the Mother shall be no Bar to the Son for the Lands which come by the Heritage of the Father and neither the Stat. 11 H. 7. cap. 20. nor any other Statute hath ordained any remedy against any other Collateral Warranty therefore such Warranty is yet in force and shall be a bar to the Issue in tail as it was before the Statute And it behoves that every Warranty whereby the Heir shall be barred discend by course of the Common Law to him who is Heir to the Warrantor else it shall be no Bar for if the Tenant in Tail of Lands in Borough English where the youngest son shall Inherit by the Custome discontinues the tail and hath Issue two sons and the Vncle releases to the Discontinuee with Warranty and dies and the younger Son brings a Formedon yet he shall not be barred by such Warranty causa qua supra And if any man make a Deed with Warranty whereby his Heir should be barred and after the Warrantor be attaint of Felony his Heir shall not be barred by such Warranty for that such Warranty cannot discend upon him the blood being corrupt Warranty beginning by Disfeisin is if the son purchase Lands and let them to his Father for years and the Father by the Deed infeoffs a stranger and binds him and his Heirs to Warranty and the Father dies whereby the warranty discends to the son yet this warranty shall not bar the son but the son may well enter notwithstanding because this Warranty began by Disseisin when the Father made the Feoffment which was a Disseisin to the son And as it is said of the Father so it may be said of every other Ancestor And the same Law is if the Ancestor be Tenant by Elegit or by Statute-Merchant and make a Feoffment with warranty such Warranties shall be no Bars because they begin by Disseisin Garranty of Charters GArranty of Charters is a Writ that lies where any Deed is made that comprehends a clause of Warranty that is to say Dedi or Concessi or this word Warrantizabo and if the Tenant be impleaded by a Stranger in Assise or such Action where he may not vouch to warranty then he shall hate this Writ against his Feoffor or his Heir and if the Land be recovered against him he shall recover as much Land in value against him that made the Warranty But this Writ ought to be sued depending the first Writ against him else he hath lost his advantage Also upon a Warranty in the Law as upon Homage auncestrel or upon Rent reserved upon a Lease for Life or a
to have and tohold the one half to one and his Heirs aud the other half to another and his Heirs in all these cases none of them knows his several If there be two or three Ioyntenants and one hath Issue and dies then he or those Ioyntenants that overlive shall have the whole by Survivorship If two Iointenants by agreement make Partition between them by Deed then they are several Tenants But if one Ioyntenant grant that which belongs to him to a Strang â—â— then the other Ioyntenantand the Stranger are Tenants in common And though two Tenants in common be seised throughly and of the whole and none knows his several yet if one die the other shall not make the whole by Survivorship but the Heir of him that dies shall have the half And so if there be three Ioyntenants and one of them makes a Feoffment of his part to another and the Feoffee dies then his Heir shall have the third part and the other two are Ioyntenants as they were because they two are seised by one joynt Title Also if Lands be given to the baron and his wife and the husband aliens and dies the wife shall recover the whole But if they were Ioyntenants before the Coverture then he shall recover but the half If Land be given to the husband and his wife and a third person if the third person grant that which belongs to him the one half passes by this Grant for that the baron and his wife are but one person in Law and in this case they have right but to half Also if two Ioyntenants are of Lands in a Town that is Borough-English where Land is devisable and one by his Testament devises that which belongs to him to a Stranger and dies this Devise is void and the other shall have the whole by Sutviver for that the Devise may not take effect till after the death of the Devisor and immediately after the death of the Devisor the right comes to the other Ioyntenant by Surviver who claims nothing by the Devisor but in his own right by Surviver But otherwise it is of Parceners seised of Lands devisable causa qua supra Journies accounts JOurnies accounts Dietae computatae is a term in the Law which is understood thus If a Writ be abated without the default of the Plaintiff or Demandant he may purchase a new Writ which if it be purchased by Journies accounts that is within as little time as he possibly can after the Abatement of the first Writ then this second Writ shall be as a Continuance of the first and so shall ouste the Tenant or Defendant of his Voucher Plea of Non-tenure Ioyntenancy fully administred c. or any other Plea which arises upon matter hapning after the date of the first Writ And fifteen days have been held a convenient time for the purchase of the new Writ See for this Writ by Journies accounts Spencers Case Coke lib. 6. fol. 9. b. Joynture JOynture is an Estate and Assurance made to a Woman in consideration of Marriage for term of her life or otherwise as is mentioned in the Statute of 27 H. 8. cap. 10. whether it be before or after Marriage And if it be after then she may at her liberty after the death of her husband refuse to take or have the Lands so assured for her Ioynture and demand her Dower at the Common Law But if it be made before Marriage then she may not refuse such Ioynture nor have Dower according to the Common Law unless that when she brings her Writ of Dower the Defendant pleads such a Plea as will not bar her of her Dower as if he say in Bar that her husband was not seised of such Estate whereof she might be endowed or any such Plea and doth not shew that she hath a Ioynture made c. and therefore demands Iudgment of that Action or any such like Plea c. And this was the opinion of Master Brograve at his Reading in Grays-Inn in Summer An. 1567. 18 Eliz. upon a Branch of the Statute made 27 H. 8. cap. 10. concerning Joyntures and Dowers And of those things whereof a Woman may be endowed she may have Ioynture as of Mines Vesturam terrae Woods Towns Is â— es Meadows and such like Also of an Advowson Reversion depending upon an Estate for Life Wind-mill high Chamber Rectory and such other and they are called Tenements Also of a Villain for he is an Hereditament And of all these profit may come to the woman But of those things whereof no profit will come but rather a charge a Ioynture cannot be made See Coke lib. 4. fol. 1. Vernons Case Jurisdiction JUrisdiction is a Dignity which a Man hath by a power to do Iustice in Causes of complaint made before him Juris utrum JUris utrum is a Writ that lies for the succeeding Incumbent of a Benefice to recover the Lands or Tenements belonging to the Church which were aliened by his Predecessor And see of this Fitz. N. B. fol. 48. R. and see after in the Title Utrum Juror JUror is one of those 24 or 12 men which are sworn to deliver a truth upon such Evidence as shall be given them touching the matter in question of which see Fitz. Nat. B. fol. 165. D. and the Statute 16 and 17 Car. 2. cap. for returning able and sufficient Jurors Justice seat JUstice seat is the highest Court that is held in a Forrest and it is always held before the Lord Chief Iustice â—â— Eyre of the Forrest upon mâ—â—ning 40 â— ays before And 〈◊〉 the Iudgments are always given and the Fines see for Offences that were presented at the Courts of Attachments and the Offenders indicted at the Swainmotes See concerning this Court Manwoods Forrest Laws cap 2 â— fol. 238. b. Justices in Eire JUstices in Eire See Eire Justicies JUsticies is a Writ directed to the Sheriff for the dispatch of Justice in some special Cases in his County-Court of which he cannot by his ordinary power hold Plea there And of this you may see Precedents in Fitzh N. B. fol. 117. C. in Account and fol. 152. B. in Annuity and fol. 119. G. in Debt and many others And it is called a Justicies because it is a Commission to the Sheriff to do a man right and it requires no Return or Certificate of what he hath done K. Keelage KEelage in Latine Killagium is a Custom paid at Hartlepool in Durham for every Ship coming into that Port. R of Parl. 21 E. 1. Kiddle KIddle or Kidel is a Dam or Wear in a River All Kidels shall from henceforth be utterly put down in the Thames and Medway and throughout all England except upon the Sea-coast Mag. Char. cap. 24. KIngs silver Kings silver is the Money which is due to the King in the Court of Common Pleas for a License there granted to any man to pass a Fine Coke lib. 6. fol. 39 43. Kintal KIntal is a Weight
shall bring with him vj viij or xij of his Neighbors as the Court shall assign him to swear with him much like the Oath which they make who are used in the Civil Law to purge others of any crime laid against them who are called Compurgators Note that the Offer to make the Oath is called Wager of Law and when it is accomplished then it is called the Doing of your Law And if the Sheriff in any Action return that he hath summoned the Defendant to appear in Court at any day to answer the Plaintiff at which day he makes Default Process shall be awarded against him to come and save or excuse his Default which is as much to say as to excuse the Delay or otherwise to lose the thing demanded And the Defendant comes and swears he was not summoned which is called waging of Law then he ought to do it at the day assigned with xij others And in doing of his Law he ought upon his Oath to affirm directly the contrary of that which is imputed to him But the others shall onely say They think he saith the truth Libel LIbel Libellus is a term of the Civil Law signifying the Original Declaration in any Action and so it is used in the Statutes of 2 H. 3. cap. 3. and 2 E. 6. cap. 13. And an infamous Libel signifies properly in our Law a Scandalous report of any man unlawfully published in writing of which see Cok. lib. 5. fol. 125. a. Liberate LIberate is a Warrant issuing out of the Chancery to the Treasurer Chamberlains and Barons of the Exchequer or Clerk of the Hamper c. for the payment of any yearly Pension or other Sum granted under the Great Seal Regist orig 193. Sometimes to the Sheriffs c. Fitzh N. B. fol. 132. for the delivery of Lands or Goods taken upon Forfeiture of a Recognizance F. N. B. 131 132. Cok. lib. 4. Fulwoods Case fol. 64 66 67. Also to a Gaoler from the Justices for the delivery of a Prisoner that hath put in Bail for his Appearance There is also another Writ made out of the Petry-bag Office in Chancery upon a Statute Staple after an Extent thereupon retorned by which the Sheriff retorns he has delivered the Land extended to the Cognizee which being filed he may then not before bring his Action of Ejectment to recover possession of the Lands extended Libertate probanda LIbertate probanda Look for that in the Title Nativo habendo Librata Terrae LIbrata Terrae contains four Ox-gangs and every Oxgang 13 Acres of Land Skene de verb. signif verbo bovata Terrae Lien LIen is a word of two significations Personal lien and come being Covenant or Contract And real lien as Judgment Statute Recognizance or an Original against an Heir which oblige and affect the Land Ligeance LIgeance is a true and faithful Obedience of the Subject due to his Soveraign and this Ligeance which is an incident inseparable to every Subject is in four manners the first is natural the second acquired the third local and the fourth legal Of all which you may read much excellent Learning in Cok. lib. 7. Calvins Case Limitation LImitation is an Assignment of a space or time within which he that will sue for any Lands or Hereditaments ought to prove that he or his Ancestor was seised of the thing demanded or otherwise he shall not maintain his Suit or Action which Assignments are made by divers Statutes As the Statute of Merton cap. 8. Westm 1. cap. 38. 32 Hen. 8. cap. 2. c. Livery of Seisin LIvery of Seisin is a Ceremony used in Conveyance of Lands and Tenements where an Estate in Fee-simple Fee-tail or a Free-hold shall pass And it is a Testimonial of the willing departing of him who makes the Livery from the thing whereof Livery is made And the receiving of the Livery is a willing Acceptance by the other party of all that whereof the other hath devested himself And it was invented as an open and notorious thing by means whereof the common People might have knowledge of the Passing or Alteration of Estates from man to man that thereby they might be the better able to try in whom the right and possession of Lands and Tenements were if they should be impanelled in Juries or otherwise have to do concerning the same The common manner of Delivery of Seisin is thus If it be in the open Field where is no Building or House then one that can read takes the Writing in his hand if the Estate pass by Deed and declares to the standers by the cause of their meeting there together c. and then openly reads the Deed or declares the effect thereof and after that is sealed the party who is to depart from the Ground takes the Deed in his hands with a Clod of the earth and a Twig or Bough if any be there which he delivers to the other party in the name of Possession or Seisin according to the form and effect of the Deed there read or declared But if there be a Dwelling-house or Building upon the Land then this is done at the Door of the same none being left at that time within the House and the party delivers all aforesaid with the Ring of the Door in the name of Seisin or Possession and he that receives the Livery enters in first alone and shuts the door and presently opens it again and lets them in c. If it be a House whereto is no Land or Ground the Livery is made and Possession taken by the delivery of the Ring of the Door and Deed only And where it is without Deed either of Lands or Tenements there the party declares by word of mouth before witness the Estate that he means to depart with and then delivers Seisin or Possession in manner aforesaid And so the Land or Tenement doth pass as well as by Deed and that by force of the Livery of Seisin It was agreed in Gray's Inne by Master Snagge at his Reading there in Summer Anno 1574. That if a Feoffor deliver the Deed in view of the Land in name of Seisin that is good because he hath a Possession in himself But otherwise it is of an Attorney for he must go to the Land and take Possession himself before he can give Possession to another according to the words of his Warrant c. And where Livery of Seisin is by View if the Feoffee do not enter after c. nothi â— g passes for he ought to enter in Deed. Lollards LOllards were Dogmatists in Religion in the times of E. 3. and H. 5. and in those times were reputed Hereticks as appears by the Statutes in 5. R. 2. cap. 5. and 2 H. 5. cap. 7. Which Statutes you shall find repealed in 1 E. 6. cap. 12. and 1 El. cap. 1. They had their name as some think from one Gualter Lolhard a German who lived about the year 1315. and was the first Author
of this Sect. Lord in Grosse LOrd in Grosse is he who is Lord without a Mannor as the King in respect of his Crown Fitz. Nat. Brev. fol. 5. A man makes a Gift in tail of all his Land to hold of him and dies his Heir hath nothing but a Seignory in Gross Lotherwit LOtherwit is that you may take amends of him who doth deffle your Bondwoman without your licence Lushburgh LUshburgh was a counterfeit Coin in the time of E. 3. made beyond Seas in likeness of English Moneys and brought in to deceive the King and his Subjects And therefore it is declared to be Treason by the Stat. of 25 E. 3. Stat. 5. cap. 2. for any man to bring it into the Realm knowing it to be false M. Maegbote MAEgbote was a a Recompence for a Kinsman slain Maihem or Maime MAihem or Maime is where by the wrongful act of another any Member is hurt or taken away whereby the party is made unperfect to fight As if a Bone be taken out of the Head or broken in any other part of the Body or Foot or Hand or Finger or Joynt of a Foot or any Member be cut or by some Wound the Sinews be made to shrink or the Fingers made crooked or if an Eye be put out Fore-teeth broken or any other thing hurt in a mans Body by means whereof he is made the less able to defend himself or offend his enemy But the cutting off of an Ear or Nose or breaking of the Hinder-teeth or such like is no Maihem because it is rather a deformity of Body then diminishing of Strength and that is commonly tryed by the Justices beholding the party And if the Justices stand in doubt whether the hurt be a Maihem or not they use and will of their own discretion take the help and opinion of some skilful Chirurgeon to consider thereof before they determine upon the Cause Mainpernable MAinpernable that may be mainprised or delivered to Mainpernors See the Statute of Westm 1. Cap. 15. what persons may be mainpernable what not Mainprise MAinprise is when a man is arrested by Capias the Iudge may deliver his body to certain men to keep and to bring before him at a certain day and these are called Mainpernors and if the party appear not at the day assigned the Mainpernors shall be amerced Maintenance MAintenance is where any man gives or delivers to another that is Plaintif or Defendant in any Action any sum of money or other thing to maintain his Plea or takes great pains for him when he hath nothing therewith to do then the party grieved shall have against him a Writ called a Writ of Maintenance Manbote MAnbote signifies a Pecuniary Compensation for the killing a man Lambert Mandamus MAndamus is a Writ that goes to the Escheator for the finding of an Dffice after the death of one that died the Kings Tenant and it is all one with the Writ of Diem clausit extremum but that the Diem clausit extremum goes out within the year after the death and the Mandamus goes not out till after the year and in case where there was never any Diem clausit extremum sued out or was not sued out with effect Fitz. N. B. 253. B. C. See the Stat. 12 Car. 1. cap. 24. Also there is another sort of Mandamus granted upon Motion in the Kings Bench one to the Bishop to admit an Executor to prove a Will or to grant Administration Stiles Reports 78. Another to command Corporations to restore Aldermen and others to Offices out of which they are unjustly put out Look 11 Report James Bag 's Case Mannor MAnnor is compounded of divers things as of a House Arable Land Pasture Meadow Wood Rent Advowson Court-Baron and such like which make a Mannor And this ought to be by long continuance of time the contrary whereof mans memory cannot discern for at this day a Mannor cannot be made because a Court-Baron cannot now be made and a Mannor cannot be without a Court-Baron and Suiters and Freeholders two at the least for if all the Free-holds except one escheat to the Lord or if he purchase all except one there his Mannor is gon for that it cannot be a Mannor without a Court-Baron as is aforesaid and a Court-Baron cannot be holden but before Suiters and not before one Suiter and therefore where but one Free-hold or Freeholder is there cannot be a Mannor properly although in common speech it may be so called Mansion MAnsion Mansio is most commonly taken for the chief Messuage or Habitation of the Lord of a Mannor the Mannor-house where he doth most reside his Capital Messuage as it is called of which the Wife by the Statute of Mag. Chart cap. 7. shall have her Quarentine Munucaptio MAnucaptio is a Writ that lies for him who is arrested or indicted of Felony and offers sufficient Sureties for his Appearance but the Sheriff or he whom it concerns will not suffer him to be bailed then he shall have his Writ to command them to suffer him to be bailed See of this Fitz. N. B. fol. 249. G. Manumission MAnumission is the making a Bond-man free and may be in two sorts the one is a Manumission expressed the other a Manumission implied Manumission expressed is where the Lord makes a Deed to his Villain to Infranchise him by this word Manumittere which is as much to say as to let one go out of another mans hands or power The manner of Manumitting or Infranchising in old time most usually was thus The Lord in presence of his Neighbors took the Bondman by the Head saying I will that this Man be free and therewith shoved him forward out of his hand and by this he was free Manumission implied without this word Manumitere is when the Lord makes an Obligation to his Villain to pay him money at a certain day or sues him where he might enter without Suit or grants him an Annuity or Leases Lands to him by Deed for years or life and in divers like cases the Villain thereby is made free Marchers MArchers are the Noble-men dwelling on the Marches of Wales or Scotland who in â— imes past had their private laws as if they had been Kings and therefore in the Statutes of 2 H. 4. c. 28. 26 H. 8. cap. 6. 27 H. 8. cap. 26. and 1 E. 6. cap. 10. they are called Lord Marchers Marches MArches are the bounds and Limits betwixt us and Wales or Scotland so called either from the German word March which signifies a Frontire or Border or else from the French word Marque that is a Sign or Token of Distinction these being the notorious Distinctions of two divers Countries Of these you shall read in the Statutes of 4 H. 5. cap. 7. 22 E. 4. cap. 8. 24 H. 8. cap. 9. and others Marshal MArshal is a general word for many Officers in England as the Lord or Earl Marshal of whom mention is made in the Statutes
as to the Tenant that is the Feoffee And for this cause it is called in Latine Mortuum vadium as Littleton saith or rather Mortuum vas as I think Also if a Feoffment be made in Morgage upon condition that if the Feoffor pay such a sum at such a day c. and the Feoffor dies before the day yet if the Heir of the Feoffor pay the sum at the same day to the Feoffee and the Feoffee refuses it the Heir of the Feoffor may enter But in such case if there be no day of payment expressed then such Tender of the Heir is void because when the Feoffor dies the time of Tender is past otherwise the Heirs of the Feoffor shall have time of Tender for ever which would be inconvenient that one shall have a Fee-simple to him and his Heirs defeasible always at the pleasure and will of others But in the first case the time of Tender was not expired by the death of the Feoffor Mortmain MOrtmain where Lands are given to a House of Religion or to other Company Incorporate by the Kings Grant the Land is come into Mortmain that is in English a dead hand and then the King or the Lord of whom the Land is holden may enter as appears by the Statute de Religiosis And if one make a Feoffment upon trust to certain persons to the use of a House of Religion or to the use of any Guild or Fraternity Corporate it shall be said Mortmain and he shall incur the same penalty as appears by the Statute Anno 15 R. 2. Mortuary MOrtuary is that Beast or other Chattel moveable which after the death of the owner by the Custom of some places became due to the Parson Vicar or Priest of the Parish in lieu or satisfaction of Tithes or Offerings forgot or not well and truly paid by him that is dead See now the Statute of 21 H. 8. cap. 6. which â— imits the course and order of the payment of these Mortuaries or of money for them Mulier MUlier is a word used in our Law but how aptly I cannot say for according to the proper signification Mulier is a defiled Woman as it is used in Ulpianus thus Si ego me Virginem emere putarem cum esset Mulier emptio non valebat Whereby you may see Mulier is a Woman that hath had the company of a Man But to leave the right signification Mulier is taken in our Law for one that is lawfully begotten and born and is always contra-distinguished with Bastard only to shew a difference between them as thus A Man hath a Son of a Woman before Marriage that is a Bastard and Vnlawful and after he marries the Mother of the Bastard and they have another Son this second Son is called Mulier that is to say Lawful and shall be Heir to his Father but the other cannot be Heir to any man because it is not known nor certain in the Iudgment of the Law who was his Father and for that cause is said to be No mans son or the son of the people and so without Father according to these old verses To whom the People Father is to him is Father none and all To whom the People Father is well fatherless we may him call And always you shall find this addition to them Bastard eldest and Mulier youngest when they are compared together Muniments MUniments are Evidences or Writings concerning a Mans Possession or Inheritance whereby he is able to defend the Estate which he hath And they are fo called from the Latin word Munio which signisies to defend or fortifie And 35 H. 6. fol. 37. b. Wangford says That this word Muniment includes all manner of Evidences viz. Charters Releases and others Murage MUrage is a Toll or Tribute levied for the repairing or Building of Publick Walls See Fitz. Nat. Brev. fol. 227. D. and the Statute of 3 E. 1. cap. 30. Murder MUrder is a wilful Killing a Man upon Malice forethought and seems to come of the Saxon word Mordren which so signifies And Mordridus is the Murderer even until this day among them in Saxony from whence we have most of our words as hath been often said Or it may be derived of Mort and dire as Mors dira See Stanf. Pleas of the Crown lib. 1. Muster MUster comes of the French word Monstrer that is to shew for to Muster is nothing but to shew men and their Arms and to In â— ol them in a Book as appears by the Statute of 18 H. 6. cap. 39. N. Naam NAam is the Attaching or Taking of the moveable Goods of another man and is either lawful or unlawful Lawful Naam is a reasonable Distress according to the value of the thing for which the Distress is made See mo â— e of this in Horn's Mirror of Justices lib. 2. Nativo habendo NAtivo habendo is a Writ that lies where the Villain or Nief of the Lord is gone from him then the Lord shall have this Writ directed to the Sheriff to cause the Lord to have his Villain or Nief with all his goods In this Writ more Villians or Niefs may not be demanded then two but as many Villains or Niefs as will may jointly bring a Writ de Libertate probanda And if a Villain or Nief bring his Writ de Libertate probanda before the Lord bring this Writ then the Villain Plaintiff shall be in peace till the coming of the Iustices or else his Writ shall not help him Also if a Villain have tarried in ancient Demesne one year and a day without claim of the Lord then he cannot seise him in the said Franchise Naturalization NAturalization See Denizen Ne admittas NE admittas is a Writ directed to the Bishop at the Suit of one who is Patron of any Church and he doubts that the Bishop will collate one his Clerk or admit another Clerk presented by another man to the same Benefice then he that doubts it shall have this Writ to forbid the Sheriff to collate or admit any to that Church Negative Pregnant NEgative Pregnant is when an Action Information or such like is brought against one and the Defendant pleads in Bar of the Action or otherwise a Negative Plea which is not so special an answer to the Action but that it includes also an Affirmative As for example If a Writ of Entrie en casu proviso be brought by him in the Reversion of an Alienation by the Tenant for Life supposing that he hath aliened in Fee which is a Forfeiture of his Estate and the Tenant to the Writ saith He hath not alienated in Fee this is a Negative wherein is included an Affirmative for though it be true that he hath not aliened in Fee yet it may be he hath made an Estate in Tail which is also a Forfeiture and then the Entry of him in the Reversion is lawful c. Also in a Quare impedit the King makes Title to present to a
Law and for not performance thereof no Action lies for Ex nudo Pacto non oritur Actio Nuper obiit NUper obiit is a Writ and it lies where one hath many Heirs that is many Daughters or many Sons if it be in Gavelkind in Kent and dies seised and one Heir enters into all the Land then the others whom he holds out shall have this Writ against the Coheir that is in But a Writ of â— ationabili parte lies in such ca â— e where the Ancestor was once seised and died not seised of the Possession but in Revertion Nusance NUsance is where any Man raises any Wall or stops any Water or doth any thing upon his own Ground to the unlawful hurt or annoyance of his neighbor he that is grieved may have thereof an Assise of Nusance And if he that makes the Nusance aliens the Land to another then this Writ shall be brought against them both as it appears by the Stat. of Westm 2. c. 24. It may be also by stopping Lights in an House or causing water to run over House or Lands for remedy whereof an Action upon the Case or Assise lyeth O. Oblations OBlations are what things soever are offered to God and his Church by pious and faithful Christians Occupant OCcupant Is when a man makes a Lease to another for the Term of the Life of a third person The Lessee dies He who first enters shall hold the land as occupant during the life of the third person To prevent which such Leases are now made to the Lessee his heirs nnd assigns 2 Cro. 554. Co. 6. r. 37. Odio Atia ODio Atia is an old Writ mentioned in the Statute of Westm 1. made in 3 E. 1. cap. 11. and it was directed to the Sheriff to inquire whether a man committed to prison upon Suspicion of Murther were committed upon just cause of Suspicion or for Malice only And if upon an inquisition it were found that he were not guilty then there came another Writ to the Sheriff to bail him But now that course is taken away by the Statute of 28 E. 3. cap. 9. as it appears in Stamford's Pl. of the Crown fol. 77. G. Aud see Coke lib. 9. fol. 56. a. b. Ordael ORdael is as much as to say as Not guilty and was an ancient manner of Trial in Criminal causes for when the Defendant being arraigned pleaded Not guilty he might chuse whether he would put himself upon God and the Country which is upon the Verdict of twelve men as they are at this day or upon God onely and therefore it was called The Judgment of God presuming that God would deliver the innocent and that was if he were of Free estate by Fire that is to say to go bare-footed over nine Plow-shares fire-hot and if he escaped unhurt he should be acquitted and if not then he should be condemned And if the party were of Servile condition then he should be tried by Water which was in divers manners For which see Lambert in the word Ordalium But now this Trial is prohibited by Parliament See Coke lib. 9. fol. 32. b. Ordelfe ORdelfe is where one claims to have the Ore that is sound in his Soil or Ground Ordinary ORdinary is a term of the Civil Law and there signifies any Iudge that hath authority to take Conusance of Causes in his own Right and not by Deputation But in the Common Law it is properly taken for the Bishop of the Diocess who is the true Ordinary to certifie Excommunications lawful Marriages and such Ecclesiastical and Spiritual acts within his Diocess to the Iudges of the Common Law for he is the party to whom the Court ought to write upon such occasions And yet the word Ordinary is usually taken in the Common Law and Statutes for every Commissary or Official of the Bishop or other Iudge Ecclesiastical that hath Iudicial Authority within his Iurisdictio â— as appears in Coke l. 9. Hensloe's C. fol. 36. b. and the Statute of Westm 2. cap. 19. 31 E. 3. cap. 11. and many others Orfgild ORfgild signifies a payment or restoring of Cattel from the Sax. Orf. Pecus and Guild Solut â— o Redditio Ouster le maine OUster le maine is a Writ directed to the Escheator to deliver Seisin or Possession out of the Kings hands unto the party that sues the Writ for that the Lands seised are not holden of the King or for that he ought not to have the wardship of them or for that the Kings Title is determined c. It is also the Iudgement given in a Monstrans de Droit or upon a Traverse or Petition for when it appears upon the matter discussed that the King hath no Right or Title to the thing that he seised then Iudgment shall be given that the Kings hand be amoved and thereupon an Amoveas manum shall be awarded to the Escheator which is as much as if Iudgment were given that the party should have his Lands again And see for this Stamf. Prerog cap. 24. Outfangtheef OUtfangtheef is that Thieves or Felons belonging to your Land or Fee but taken out of it shall be brought back to your Court and there judged Outlary OUtlary See Utlary Owelty OWelty is when there is Lord Mesne and Tenant and the Tenant holds of the Mesne by the same Service that the Mesne holds over of the Lord above him as if the Tenant holds of the Mesne by Homage Fealty and xx s. Rent and the Mesne holds over of the Lord above by Homage Fealty and xx s. Rent also this is called Owelty of Services Hearing of Records and Deeds c. HEaring of Records and Deeds is where an Action of Debt is brought against a man upon an Obligation and the Defendant appears and then prays that he may hear the Obligation wherewith the Plaintiff charges him So it is when Executors bring an Action of Debt and the Defendant demands to hear the Testament upon this demand it shall be read unto him But if it be in another Term or after the Defendant hath imparled then he shall not hear it And so as is said of Deeds is to be understood of Records that are alledged against him But in the Kings Bench the Defendant may at any time before Plea and the Plaintiff have Oyer of Deed and Record See the Title Monstrans de Fait Oyer and Terminer OYer and Terminer is a Writ called in Latine de Audiendo Terminando and it lies where any great or sudden Insurrection is made or any other sudden Trespass which requires hasty Reformation then the King shall direct a Commission to certain Iustices to hear and to determine the same Note that the Iustices of Assise have also one Commission of Oyer and Terminer directed to them and divers other Inhabitants within the Shires whereunto their Circuit extends whereof each of the Iustices of Assise are of the Quorum for the hearing and determining of divers Offences which may
happen in their Circuit which without this Commission they could not do See Fitzh N. B. fol. 110. b. P. Paine fort dure PAine fort dure is an especial Punishment for such as being arraigned for Felony refuse to put themselves upon the common Trial of God and the Country and thereby are Mute or as Mute in Law See this at large in Stamford Pl. Cor. fol. 150. Palace Court PAlace-Court is a Court of Record erect by King James by his Letters Patents and held at Southwark and is a Court of Common Law See Marshalsea Pannage PAnnage See Paunage Pannel PAnnel comes of the French word Panne that is a Skin signifies in our Common Law a Schedule or Roll containing the names of the Iurors which the Sheriff hath returned to pass upon any Trial. And therefore the Empannelling of the Iury is nothing but the entring of their Names into the Sheriffs Roll. Pape or Pope PApe Papa is a name that signifies Father and anciently was applyed to other Clergy-men in the Greek Church but by usage is particularly appropriated in the Latine Church to the Bishop of Rome a name very frequent in our ancient Year-Books especially in the times of those Kings who too much abandoning their Imperial Authority and abasing themselves beneath their estate suffered an Alien an Outhlandish Bishop that dwelt 1000 miles off to take from them the disposition of many Spiritual preferments sometimes by Lapse sometimes by Provision or otherwise For redress whereof divers Statutes were made while the Kingdom was of the Roman Communion but his whole Poer was not taken away till towards the latter end of Henry the Eighths Reign Paramount PAramount is compounded of two French words par and monter and it signifies in our Law the Highest Lord of the Fee For the better understanding of this see F. N. B. f. 135. M. in his Writ of Mesne Paraphernalia PAraphernalia in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 praeter 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dos They are Goods which a Wife challengeth above her Dower 1 Cro. Lord Hastings against Douglas Paravaile PAravaile is also compounded of two French words par and availer and signifies in our Law the lowest Tenant of the Fee who is Tenant to one that helds over of another See for the use of this word F. N. B. in his Writ of Mesne f. 135. M. Parceners PArceners are according to the course of the Common Law and according to Custom Parceners according to the Common Law are where one seised of an Estate of Inheritance of Tenements hath no Issue but Daughters and dies and the Tenements descend to the Daughters then they are called Parceners and are but as one Heir The same Law is if he have not any Issue and that his Sisters should be his Heirs But if a Man hath but one Daughter she is not called Parcener but the Daughter and Heir And if there are no Daughters nor Sisters the Land shall discend to the Aunts and they are called Parceners When Lands discend to divers Parceners they may make Partition between themselves by Agreement but if any of them will not make Partition then the others shall have a Writ de Partitione facienda directed to the Sheriff who shall make Partition between them by the Oath of xij lawful men of the Bailywick Also Partition by Agreement may be made by the Law as well by Word without Deed as by Deed. And if they are of full age the Partition shall remain for ever and shall never be defeated But if the Lands be to them in tail though they are concluded during their lives yet the Issue of him who hath the lesser part in value may disagree from the Partition and enter and occupy in common with the other part And if the Husbands of the Parceners make Partition when the Husband dies the Wife may disagree from the Partition Also if the Parcener who is within Age makes Partition when she comes to full age she may disagree But she must take good heed when she comes to her full Age that she take not all the Profits to her own use of the Lands which were to her allotted for then she agrees to the Partition and the age shall alway be intended the age of one and twenty years If there be divers Parceners that have made Partition between them and one of their parts is recovered by lawful Title then she shall compel the other to make a new Partition Parceners according to Custom are where a man is seised of Lands in Gavelkind as in Kent and other places franchised and hath issue divers Sons and dies then the Sons are Parceners by Custom Parco fracto PArco fracto is a Writ that lies against him that breaks any Pound and takes out the Beasts which are there lawfully impounded See of this F. N. B. 100. E. Park PArk is a place in which by Prescription or by the Kings Grant a Subject preservs his Game of Beasts ferae naturae See Stat. W. 1. 3 E. 1. cap. 20. Parliament PArliament See the Lord Cook 's 4th Institutes and Mr. Cowels Interpreter Title Parliament Parson imparsonee PArson imparsonee is he that is in possession of a Church appropriate or presentative for so it is used in both cases in Dyer f. 40. b. and f. 221. b. Parties PArties to a Fine or Deed are those which are named in a Deed or Fine as Parties to it as those that levy the Fine and they to whom the Fine is levied And they that make a Deed of Feoffment and they to whom it is made are called Parties to the Deed and so in many other like cases Note that if an Iudenture be made between two as Parties thereto in the beginning and in the Deed one of them grants or lets a thing to another who is not named in the beginning he is not Party to the Deed nor shall take any thing thereby Partition PArtition is a Dividing of Lands descended by the Common Law or by Custome among Co-heirs or Parceners where there are two at least whether they be Sons Daughters Sisters Aunts or otherwise of kin to the Ancestor from whom the Land descended to them And this Partition is made four ways for the most part whereof three are at pleasure and by Agreement among them the fourth is by Compulsion One Partition by Agreement is when they themselves divide the Land equally into so many parts as there are of them Coparceners and each to chuse one share or part the Eldest first and so the one after the other as they be of age except that the eldest by consent made the Partition then the choice belongs to the next and so the eldest last according as it is said Who makes the Partition the other must have the Choice Another Partition by Agreement is when they chuse certain of their Friends to make Division for them The third Partition by Agreement is by drawing Lots thus First to divide the Land into so many
only by the Law that is to say by Escheat Privy in Right is where one possessed of a Term for years grants his Estate to another upon Condition and makes his Executors and dies now these Executors are Privies in Right for if the Condition be broken and they enter into the Land they have it in right of their Testator and to his use Privy of Blood is the Heir of the Feoffor or Donor c. Also if a Fine be levied the Heirs of them that levied the Fine are called Privies Privileges PRivileges are Liberties and Franchises granted to an Office Place Town or Mannor by the Kings great Charter Letter Patents or Act of Parliament as Toll Sake Socke Infangtheef Outfangtheef Tourne Ordelfe and divers such like for which look in their proper titles and places Also there are other privileges which the Law takes notice of that is to say the privileges of the Commons Peers of the Parliament the privileges of Attornies Officers of the Courts at Westm that they shall not be sued or impleaded in another Court but in that where they are Attornies or Officers Procedendo PRocedendo is a Writ that lies where any Action is sued in one Court which is removed to another more high as to the Chancery Kings Bench or Common Place by a Writ of Priviledge or Certiorari and if the Defendant upon the matter shewed have no cause of Priviledge or if the matter in the Bill whereupon the Certiorari issued be not well proved then the Plaintiff shall have this Procedendo to send again the matter unto the first base Court there to be determined Proces PRoces are the Writs and Precepts that go forth upon the Original And in Actions real and personal there are sundry sorts of Proces For in Actions real the Proces i ◠Grand Cape before Appearance Therefore see of that in the 〈◊〉 Petit Cape But in Actions personal as in Debt Trespass or Detinue the Proces is a Distress and if the Sheriff return Nihil habet in Balliva c. then the Proces is Alias Capias and Pluries and an Exigent and they are called Capias ad respondendum Also the Exigent shall be proclaimed five times and if the party do not appear he shall be outlawed But in divers Actions there are divers manners of Proces which at large is declared in N. B. And there are divers other Proces after Appearance when the parties are at Issue to make the Enquest appear as a Writ of Venire facias and if they do not appear at the day then a Writ of Habeas corpora Jurat ' and after a Writ of Dist ◠ingas Jurat ' And there are divers other Proces after Iudgment as Capias ad satisfaciendum and Capias utlagatum c. Capias ad satisfaciendum lies where a man is condemned in any Debt or Dammage then he shall be arrested by this Writ and put in Prison without Bail or Mainprise till he hath paid the Debt and the Dammages Capias utlagatum lies where one is outlawed then he shall be taken by this Writ and put in Prison without Bail or Mainprise for that he had the Law in contempt And there are other Proces and Writs Iudicial as Capias ad valentiam Fieri facias Scire facias and many other and therefore look for them in their Titles Next friend NExt friend is commonly taken for Gardian in Soccage and is where a man seised of Land holden in Socage dies his issue within age of 14 years then the next friend or next of kin to whom the Lands cannot discend shall have the keeping of the Heir and of the Land to the only use of the Heir until he come to the age of 14 years and then he may enter and put the Gardian out and bring him to accompt But in that Accompt he shall be allowed for all reasonable costs and expences bestowed either upon the Heir or his Land The next friend or next of kin to whom the Inheritance cannot discend is thus to be understood If the Lands discend to the Heir from his Father or any of the kin of his Fathers side then the Mother or other of the Mothers side are called the next of kin to whom the Inheritance cannot discend for before it shall so diseend it shall rather escheat to the Lord of whom it is holden And where the Lands come to the Heir from his Mother or any of her side then the Father or other of the Fathers side are called the next of kin to whom the Inheritance cannot discend but shall rather escheat to the Lord of whom it is holden Otherwise Prochein amy is he who appears in any Court for an Infant who sues any Action and aids the Infant to pursue his Suit whereof see the Statutes of Westm 1. cap. 47. and Westm 2. cap. 15. that an Infant may not make an Atturney but the Court may admit the next Friend for the Plaintiff and a Gardian for the Infant Defendant as his Atturney Proclamation PRoclamation is Notice publickly given of any thing whereof the King thinks good to advertise his Subjects so it is used Anno 7. R. 2. c. 6. Proclamation of Rebellion is an open notice given by an Officer that a man not appearing upon a Subpoena or Attachment in the Chancery shall be reputed a Rebell except he render himself at the day assigned Crompt Jurisdict fol. 92. And it is to be noted that no man may make Proclamation but by authority of the King or Majors and such like as have proviledges in Cities and Boroughs so to do or have it by Custom And therefore where an Executor made Proclamations in certain Market-towns that the Creditors should come by a certain day and claim and prove their Debts due by the Testator and because he did this without Authority he was committed to the Fleet and Fined Brook Proclamation 10. Procurator PRocurator is used for him who gathers the Fruits of a Benefice for another man Anno 3 Ric. 2. Stat. 1. cap. 2. Prohibition PRohibition is a Writ that lies where a man is impleaded in the Spiritual Court of a thing that touches not Matrimony nor Testament nor meerly Tithes but the Kings Crown This Writ shall be directed as well to the party as to the Iudge or his Official to prohibit them that they pursue no farther But if it appear afterward to the Iudges temporal that the matter is fit to be determined in the Spiritual Court and not in the Court Temporal then the party shall have a Writ of Consultation commanding the Iudges of the Court Spiritual to proceed in the first Plea Also there are many other Prohibitions to the Admiralty and to other Courts of Common-Law if they exceed their power Properite PRopertie is the highest Right that a man hath or can have to any thing which no way depends upon another mans courtesie And this none in this Kingdom can be said to have in any Lands or
Tenements but only the King in right of his Crown because all the Lands through the Realm are in nature of Fee and hold mediately or immediately of the Town This word nevertheless is used for such right in Lands and Tenements as common persons have in the same And there are three manner of rights of Property that is Property absolute Property qualified and Property possessory Of which see at large Cok. lib. 7. Case de Swans fol. 17. Proprietary PRoprietary is he that hath a Property in any thing but is most commonly used for him who hath the Profits of a Benefice to him and his Heirs or to himself and his Successors as in times past Abbots and Priors had Protection PRotection is a Writ that lies where a man will pass over the Sea in the Kings service then he shall have this Writ whereby he shall be quit of all manner of Pleas between him and any other person except Pleas of Dower Quare impedit Assise of Novel disseisin Darrein presentment and Attaints and Pleas before Iustices in Eyre But there are two Writs of Protection one cum clausula Volumus and another cum clau â— ula Nolumus as appears in the Register But a Protectiou shall not be allowed in any Plea begun before the date of it if it be 〈◊〉 in Veyages where the King himself shall pass or other Voyages Royal or in Messages of the King of affairs of the Realm Nor shall a Protection be allowed for Victual brought for the voyage whereof the Protection makes mention nor in Pleas of Trespass or of Contracts made after the date of the Protection Note that any may attach or begin any Action real against him that hath such Protection and therein proceed until the Defendant comes and shews his Protection in the Court and hath it allowed and then his Plea or Suit shall go without day But if after it appears that the party who hath the Protection goes not about the affairs for which he hath it then the Demandant shall have a Repeal thereof And if he go and return after the business ended the Demandant shall have a Resummons to recontinue the former Suit Protestation PRotestation is a form of Pleading when any will not directly affirm nor directly deny anything that is alledged by another or which he himself alledges And it is in two sorts One is when one pleads any thing which he dare not directly affirm or cannot plead for doubt to make his plea double As if in conveying to himself a Title to any Land he ought to plead divers Discents by divers persons and he dare not affirm that all they were seised at the time of their death or although he could do it it shall be double to plead two Discents of both which each by it self may be a good Bar. Then the Defendant ought to plead and alledged the matter interlacing this word protestando as to say that such a one died by Protestation seised c. And that is to be alledged by Protestation and not to be traversed by the other Another Protestation is when one is to answer to two matters and yet by the Law he ought to plead but to one then in the first part of the Plea he shall say to the one matter protestando and non cognoscendo this matter to be true and makes his Plea farther by these words Sed pro placito dicit c. And this is for saving to the party that so pleads by Protestation the being concluded by any matter alledged or objected against him upon which he cannot joyn issue and is no other but an exclusion of the Conclusion for he that takes the Protestation excludes the other party to conclude him And the Protestation ought to stand with the sequel of the Plea and not to be repugnant or otherwise contrary Provendry PRovendry in the Church of Sarum is called the lesser part of the Altar in the Church of St. Mary 41 E. 3. 5. b. Provision PRovision is used with us as it is in the Common Law for providing of a Bishop or other Ecclesiastical person of an Ecclesiastical Living by the Pope before the Incumbent of it be dead the great abuse whereof appears by several Statutes that have been made from the time of E. 3. to the reign of H. 8. for the avoiding of such Provisions Rast Entries Quare impedit Roy 17. 20. Proviso PRoviso is a Condition inserted in any Deed upon the performance whereof the validity of the Deed consists Sometimes it is only a Covenant whereof see Coke lib 2. in the Lord Cromwels Case It hath also another signification in matters judicial as if the Plaintiff or Demandant desists from prosecuting an Action and brings it not to Trial then the Defendant or Tenant may take forth the Venire facias to the Sheriff which hath in it these words Proviso quod c. to this end that if the Plaintiff takes out any Writ to this purpose the Sheriff shall summon but one Iury upon them both See Old Natura Brevium in the Writ Nisi prius fol. 159. Prov â— sor See Praemunire Proxy Procuratio PRoxy Procuratio is a payment to a Bishop by a Religious house for the charges of his visitation of such Houses Davies rep 2. Purchase PUrchase is the Possession that a man hath in Lands or Tenements by his own act means or agreement and not by title of Discent from any of his Ancestors See Littl. l. 1. c. 1. Purlue PUrlue is all the Ground near any Forrest which being made Forest by Henry the second Richard the first or King John was by Perambulations granted by Henry the third severed again from the same Manwood part 2. of his Forrest Laws c. 20. And it seems that this word is composed either of pouralle that is to go or walk about or purelieu that is a pure place because such Lands as were by those Kings subjected to the Laws and Ordinances of the Forrest are now cleared and freed from the same As the Civilians call that a pure place which is not subject unto Burials fo â—â— kewise this may be called a pure place because it is exempted from the servitude and thraldom which was formerly laid upon it Purlue man is he that hath Lands within the Purlieu and being able to dispenh forty shillings by the year of Free-hold is upon these two points licensed to hunt in his own Purlieu Manwood part 1. p. 151. 177. See now the Stat. made 1 Jac. c. 27. Purpresture PUrpresture is a wo â—â— derived from the French â— ourpr â—â— which signifies to take from another and to app â—â— priate to himself and therefore a Purpresture in a general sense is taken for any such wrong done by one man to another Purpresture in a Forrest is every Incroachment upon the Kings Forrest be it by Building Inclosing or using of any liberty without a lawful warrant so to do And of this see Manwood in his Forrest Laws
c. 10. f. 74. a. Purveyors PUrveyors were ancient Officers to provide Victuals for the King which Office is mentioned in the Statute 28 E. 1. cap. 2. 36 E. 4. cap. 6. 14 E. 3. cap. 19. But it is abolished by the Stat. 12 Car. 2. cap. 24. Q. Quadrantata terrae QUadrantata terrae is the fourth part of an Acre Quae plura QUae plura is a Writ that lies in case where the Escheator hath found an Office after the death of the Kings Tenant virtute officii and hath not found all the Lands of which he died seised then this Writ shall issue in nature of a Melius inquirendo to find what Lands he had more See F. N. B. f. 255. a. Quale jus QUale jus is a Writ that lies where an Abbot Prior or such other should have Iudgment to recover Land by Default of the Tenant against whom the Land is demanded then before Iudgment given or Execution awarded this Writ shall go forth to the Escheator to enquire what right he hath to recover And if it be found that he hath not right then the Lord who should have the Land if the Tenant had aliened in Mortmain may enter as into Land aliended in Mortmain for this losing by Default is like an Alienation See the Stat. Westm 2. c. 32. But where one will give Lands to a House of Religion an Ad quod damnū shall go forth to the Escheator to enquire of what value the Land is and what prejudice is shall be to the King Quare ejecit infra terminum QUare ejecit infra terminum is a Writ that lies where one makes a Lease to another for term of years and the Lessor infeoffs another and the Feoffee puts out the Termour then the Termour shall have this Writ against the Feoffee But if another stranger put out the Termour then he shall have a Writ De ejectione firmae against him And in these two Writs he shall recover the term and his dammages Quare impedit QUare impedit is a Writ that lies where I have an Addowson and the Parson dies and another presents a Clerk or disturbs me to present then I shall have the said Writ But Assise de darrein presentment lies where I or my ancestors have preseuted before And where a man may have art Assise de darrene presentment he may have a Quare impedit but not contratiwise Also if the Plea be depending between two parties and be not discussed within fix moneths the Bishop may present by Lapse and he that hath right to present shall recover his dammages as appears by the Statute of Westm 2. c 5. And if he that hath right to present after the death of the Parson brings no Quare impedit nor Darreine presentment but suffers a stranger to usurp upon him yet he shall have a Writ of right of Advowson But this Writ lies not unless he claim to have the Advowson to him and his heirs in Fee Quare incumbravit QUare incumbravit is a Writ that lies where two are in Plea for the Advowson and the Bishop admits the Clerk of one of them within the six moneths then he shall have this Writ against the Bishop But this Writ lies always depending the Plea Quare intrusit Matrimonio non satisfacto QUare intrusit Matrimonio non satisfacto is a Writ that lies where the Lord profers convenable Marriage to his Ward and he refuses and enters into the Land and marries himself to another then the Lord shall have this Writ against him Quare non admifit QUare non admifit is a Writ that lies where a man hath recovered an Advowson and sends his convenable Clerk to the Bishop to be admitted and the Bishop will not receive him then he shall have the said Writ against the Bishop But a Writ of Ne admittas lies where two are in Plea if the Plaintiff suppose the Bishop will admit the Clerk of the Defendant then he may have this Writ to the Bishop commanding him not to admit him hanging the Plea Quarels QUarels is derived from Querendo and extends not only to Actions as well real as personal but also to the Causes of Actions and Suits so that by the Release of all Quarels not only Actions depending in Suit but Causes of Action and Suit also are released and Quarels Controversies and Debates are words of one sense and of one and the same signification Coke lib. 8. fol. 153. Quarentine QUarentine is where a man dies seised of a Mannour-place and other Lands whereof the Wife ought to be endowed then the woman may abide in the Mannour-place and there live of the store and profits thereof the space of sorty days within-which time her Dower shall be assigned as it appears in Magna Charta cap. 6. Que estate QUe estate is a term in pleading to avoid prolixity as if a man pleads a feoffment in fee to A. cujus statum idem B. modo habet and no one can plead it but Tenant of the Fee nor can it be pleaded of things which pass meerly by grant as Advowsons Franchises c. Quid juris clamat QUid juris clamat is a Writ that lies where I grant the Reversion of my Tenant for life by Fine in the Kings Court and the Tenant will not attorn then the Grantee shall have this Writ to compel him But a Writ of Quem redditum reddit lies where I grant by Fine a Rent charge or another Rent which is not Rent service which my Tenant holds of me and the Tenant will not attorn then the Grantee shall have this Writ And a Writ of Per quae servitia lies in like case for Rent service Also if I grant four divers Rents to one man and the Tenant of the Land attourns to the Grantee by payment of a peny or of a half peny in the name of Attournment of all the Rents this Attournment shall put him in seisin of all the Rent But these three Writs ought to be brought against those who are Tenants at the day of the Fine levied and against no other Fifteenth FIfteenth is a Payment granted in Parliament to the King by the Temporalty namely the fifteenth part of their goods And it was used in ancient time to be levied upon their Cattel going in their grounds which thing was very troublesome and therefore now for the most part that way is altered and they use to levie the same by the Yard or Acre or other measure of Land by means whereof it is now less troublesome and more certain than before and every Town and Country know what sum is to be paid among them and how the same shall be raised We read that Moses was the first that numbred the people for he numbred the Israelites and the first Tax Subsidy Tribute or Fifteenth was invented by him among the Hebrews as Polydore Virgil thinks Quit claim QUit claim is a Release or Acquitting of a man for any Action that he
his Father and he shall have be no other Recovery against the Tenant or any other because such advantage is given by the Law to the Tenant And note that Fealty of common right belongs to Rent service but not to Rent charge nor Rent seck If a man distrain for Rent charge and the Distress be rescued from him and he was never seised before he hath no recovery but by Writ of Rescous for the Distress first taken gives not Seis â— to him unless he had the Rent before for if he were seised of the Rent before and after the Rent be behind and he distrain and Rescous be made he shall have Assise or a Writ of Rescous In every Assise of Rent charge and annual Rent or in a Writ of Annuity it behoves him that brings the Writ to shew an Especialty or else he shall not maintain the Assise But in an Assise of Mortdancestor or Formedon in the discender or other Writs in which Title is given or comprised brought of Rent charge or annual Rent the Especialty need not be shewn And note well that if a man grant a Rent charge to another and the Grantee release to the Grantor parcel of the Rent yet all that Rent is not extinct If Rent charge be granted to two joyntly and the one release yet the other shall have the half of the Rent And if the one purchase the half of the Land whereout the Rent is going the other shall have the half of the Rent of his companion And if the Disseisor charge the Land to a Stranger and the Disseisee bring an Assise and recover the Charge is defeated But if he that hath right charges the Land and a Stranger feign a false Action against him who hath no right and recovers by Default the charge abides In case Partition be between two Parceners and more Land be allowed to one then to the other and she that hath most of the Land charges her Land to the other and she happeth the Rent she shall maintain Assise without Especialty And it is a Rent seck where a man holds of me by Homage Fealty and other Services yielding to me a certain yearly Rent which I grant to another reserving to me the other Services If Rent seck be granted to a man and to his Heirs and the Rent be behind and the Grantor die the Heir may not distrain nor shall recover the arrearages of the time of his Father as it is said before of Rent services And in the same manner it is of Rent charge or annual Rent But in all these Rents the Heir may have for the arrerages in his own time such advantage as his Father had in his life See the Statute 32 H. 8. cap. 37. And note well that in Rent seck if a man be not seised of the Rent and it be behind he is without recovery for that it was his own folly at the beginning when the Rent was granted him or reserved that he took not Seisin of it as a peny or two pence A man may not have a Cessavit per biennium or any other Writ of Entry sur Cessavit for any Rent seck behind by two years but only for Rent service as it appears in the Stat. West 2. cap. 21. It behoves him that sues for Rent seck to shew a Deed to the Tenant cise the Tenant shall not be charged with the Rent except where the Rent seck was Rent service before as in this case Lord Mesne and Tenant and every of them holds of other by Homage and Fealty and the Tenant of the Mesne by 10 s. rent the Lord paramount purchases the Lands or Tenements of the Tenant all the Seigniory of the Mesne but the rent is extinct and for this cause this rent is become Rent seck and the Rent service changed for he may not distrain for this rent and in this case he that demands the rent shall never be charged to shew a Deed. Also in a Writ of Mordint-cestor Ayle or Besayle of rent seck it needs not to shew a Specialty for that these Writs of Possession comprehend a Title within themselves that is to say that the Ancestor was seised of the same rent and centinued his possession in respect of which Seisin the Law supposes that it is also averrable by the Countrey Yet learn for some suppose a necessity to shew forth a Deed because rent seck is a thing against common right as well as rent charge But in Assise of Novel disseisin and in a Writ of Entry sur disseisin brought of Rent seck it is needful to shew forth a Deed for that Rent seck is a thing against Common Right except in the case aforesaid where it was Rent service before and by the act of Law it is become Rent seck And Assise of Novel disseisin and a Writ of Entry sur disseisin contain within them no Title but suppose a Disseisin to be done to the Plaintiff and by the intendment of the Law the Disseisin gives no cause of Averment against common Right but there is a necessity to shew forth a Deed. Repleader REpleader is where the plea of the Plaintiff or Defendant or both are ill or an impertinent Issue joyned then the Court makes void all the Pleas which are ill and awards the Parties to replead Coke Entr. 152. and 221 224. Replevin REplevin is a Writ that lies where a man is distrained for Rent or other thing then he shall have this Writ to the Sheriff to deliver to him the Distress and shall find Surety to pursue his Action and if he pursue it not or if it be found or judged against him then he that tooks the Distress shall have again the Distress which is called the Return of the Beasts and he shall have in such case a Writ called Returno habendo But if the Defendant avow for Rent he may have Iudgment for the value of the Cattel by the Statute of 17 Car. 2. cap. 7. If it be in any Franchise or Bailiwick the party shall have a Replevin of the Sheriff directed to the Bailiff of the same Franchise to deliver them again and he shall find Surety to pursue his Action at the next County And this Replevin may be removed out of the County unto the Common place by Writ of Recordare See more of Replevin in the Title Distress Also see Mich. 2 E. 3. pl. 31. 7 E. 3. 27. pl. 13. the word Plevin where Land was taken out of the Kings hands and are afterwards delivered or replevied out of the Kings hands For which see Stat. 9. 3. cap. 2. The Writ of Homine replegiando lies where a man is in Prison and not by special commandment of the King nor of his Iustices nor for the death of a man nor for the Kings Forest nor for such cause which is not replevisable then he shall have this Writ directed to the Sheriff that he cause him to be replevied This Writ is a Justcies
for him that is infeoffed with Warranty and is afterward impleaded in an Assise or other Action in which he cannot vouch then he may have this Writ against the Feoffor or his Heir to compel them to warrant the Land unto him And see of this Fitz. N. B. f. 134. D. See Garrantie of Charters Warrantia diei WArrantia diei is a Writ the lies in case where a man hath a day in any Action sue â— against him to appear in prope â— person and the King at that day or before imploys him i â— some service so that he cann â—â— appear at the day in Court the â— he may have this Writ direct â— to the Iuistices that they shal â— not record them to be in Defau â—â— for his not appearing And see 〈◊〉 this Fitz N. B. fol. 17. A. and â—â— the form of the Writ see G 〈◊〉 vile lib. 1. cap. 8. Warren WArren is a place Priviledged by Prescription or Grant of the King for the Preservation of Hares Conies Partridges and Pheasants or any of them Warwit WArwit or Wardwit as some Copies have it is to be quit of giving money for keeping of Wards Wast WAst is where Tenant for term or years Tenant for life or Tenant for term of anothers life Tenant in Dower or Tenant by the Curtesse or Gardian in Chivalry doth make Wast or Destruction upon the Land that is to say pulls down the House or cuts down Timber or suffers the House willingly to fall or digs the Ground then he in the Reversion shall have a Writ for that Wast and shall recover the place where the Wast is done and treble Dammages And if a Man cut down Timber without Licence and therewith repairs old Houses yet that is no Wast But if he with the Timber build a new house the cutting down of such Timber is Wast Also the cutting down of Vnder-wood or Willows which is no Timber shall not be said to be Wast unless they grow in the sight or shadow of the House Wast by the Civil Law is call'd Dilapidation and for that the Executor of a Rector or Vicar are answerable in the Court Christian There is also a Writ of Wast permittendo Messuagium vel domum fore in decasu ruinosum Co. Ent. 601. Wharf WHarf is a word used in the Statute of 1 Eliz. cap. 11. and other Statutes and is a Broad place near a Crock or Hithe of water upon which Goods and Wares are laid which are to be Ship'd and Transported from place to place Withernam WIthernam is the Taking or Driving of a Distress to a Hold or out of the County so that the Sheriff cannot upon Replevin make delivery thereof to the party distrained in which case a Writ of Withernam is directed to the Sheriff for the taking of as many of his Beasts that did thus unlawfully distrain or as much Goods of his into his keeping until he hath made deliverance of the first Distress Also if the Beasts be in a Fortier or Castle the Sheriff may take with him the Power of the County and bear down the Castle as appears by the Statute of Westm 1. cap. 20. Brit. cap. 27. Woodgeld WOodgeld seems to be the Gathering or Cutting of Wood within the Forrest or money paid for the same to the Foresters And the Immunity from this by the Kings Grant is by Crompt fol. 197. called Woodgeld Woodmote WOodmote is the old name of that Court of the Forrest which is now since the Statute of Charta de Foresta called the Court of Attachments and by the Statute is held every forty days but was wont to be held at the will of the chief Officers of the Forrest and at no certain time See Manwoods Forrest Laws cap. 22. fol. 207. a. Woolferthfod WOolferthfod is the condition of such who were Outlawed in the Saxons time for not submitting themselves to Iustice for if they could be taken alive they should be brought to the King and if they in fear of apprehension did defend themselves they might be slain and their heads brought to the King for they carried a Woolfs Head that is to say their Head was no more to be accounted of than a Woolfs head being a Beast so hurtful to man See the Laws of King Edward by Lambert f. 127. num 7. Bract. lib. 3. tract 2. cap. 21. This is written Wulve-sheaved by Roger Hoveden part poster Annal. fol. 343. Wreck WReck or Varech as the Normans from whom it came call it is where a Ship is perished on the Sea and no man escapes alive out of it and the Ship or part of it so perished or the Goods of the Ship come to the Land of any Lord the Lord shall have that as a Wreck of the Sea But if a Man or a Dog or a Cat escape alive so that the party to whom the Goods belong come within a year and a day and prove the Goods to be his he shall have them again by Provision of the Statute of Westm 1. cap. 4. made in King Edw. 1. days who therein followed the Decree of H. 1. before whose days if a Ship had been cast on shore torn with Tempest and were not repaired by such as escaped alive within a certain time that then was taken for Wreck Y. Yard-land YArd-land Virgata terrae in some Counties contains 20 Acres in some 24 and in some 30 Acres of Land Abate ABate semble de vener del Francois Abbatre i. rescindere destruere ad pleuseurs significations Come abater un Chesteau ou Fortlet Vet. Nat. br fo 45. que en Westm 1. ca. 17. est enterprete to beat down Et abater un brief est pur le defaire ou renverser per ascun Erreur ou Exception Britton ca. 48. Et luy que s'enterpose enter le prieur possesseur son Heir est dit abater en les Terres Veies Abatement Abatement de Brief ou Plaint ABatement de Brief ou Plaint est quant un Action est port per Brief ou Plaint en que fault sufficient bone matter ou auterment le matter alledge nest certainment alledge ou si le Plaintiff ou Defendant ou Lieu sont misnosme ou si la appear varience perenter le Brief le Specialty ou Record ou que le Brief ou Declaration sont uncertain ou pur mort del Plaintiff ou Defendant ou pur divers auters semblable causes donques sur ceux defaults le Defendant poit prier que le Brief ou Plaint abatera cest adire que le Suit del plaintiff envers luy cessera pur cest temps que il commencera auter temps son Suit port uÌ„ novel Brief ou Plaint sil soit issint dispose Mes si le Defendant en ascun Action plede un matter en Bar ' pur adnuller de Action a touts jours il ne viendra apres a pleader en Abatement de Brief mes si apres il
woman at such a place within such a Diocess and that she is dead and that he hath married another woman within the same Diocess or within some other Diocess and so is Bigamus Or if he have been but once married then to say that she whom he hath married is or was a Widow that is the Relict of such a one c. which shall be tried by the Bishop of the Diocess where the Marriages are alledged And being so certified by the Bishop the prisoner shall lose the Benefit of the Clergy But at this day by force of the Act made 1 E. 6. ca. 12. this is no Plea but he may have his Clergy notwithstanding So is Brook titulo Clergie Placito 20. to the same purpose By-laws BY-laws are Orders made in Court-Leets or Court-Barons by a common consent for the good of them that are the makers of them And they are called By-laws quasi Birlaws or Bawrlaws of the Dutch word Bawr that is a Countrey-man and so Bawrlaws or By-laws is as much as the Laws of Country-men Bilinguis BIlinguis in general is a man with a double tongue but is commonly used for that Iury which passes between an English man and an Alien whereof part ought to be Englishmen and part Strangers And for this cause it is enacted by the Statute of 28 E. 3. cap. 13. That if any variance chance to be about the packing of Wooll before the Mayor of the Staple between the Merchants or Ministers of the same thereupon to try the truth thereof Enquest shall be taken and if the one party and the other be Denizons it shall be tried by Denizons or if the one party be Denison and the other Alien the half of the Enquest or of the proof shall be Denizons and the other half Aliens Bill BILL is all one with an Obligation saving that when it is in English it is commonly called a Bill in Latin an Obligation Also a Declaration in writing that expresses either the grievance and wrong which the Complainant has suffered by the party complained of or else some fault by him committed against some Law or Statute of the Realm By a Bill we now ordinarily understand a single Bond without a Condition by an Obligation a Bond with a Penalty and Condition West part 2. Symbol tit Supplications sect 52. Billa vera BIlla vera is the Indorsement of the grand Inquest upon any Presentment or Indictment which they find to be probably true Blackmail BLackmail is a word used in the Statute of 43 Eliz. c. 13. and signifies a certainty of Money Corn Cattel or other consideration given by the poor people in the North of England to men of great name and alliance in those parts to be by them protected from such as usually rob and steal there Black rod. BLack Rod is the Huissier belonging to the most Noble Order of the Garter so called of the Black rod he carries in his hand He is also Huissier of the Lords house in Parliament Bloodwit BLoodwit is to be quit of Amerciaments for Blood-shedding and what Pleas are holden in your Court you shall have the Amerciaments thereof coming because Wit in English is Misericordia in Latin Bloody hand BLoody hand is the apprehension of a Trespasser in the Forest against Venison with his hands or other part bloody though he be not found chasing or hunting Of which see Manwood part 2. c. 18. Bockland BOckland in the Saxons time was that we at this day cail Free-hold Land or Land held by Charter and it was by that name distinguished from Folkland which was Copy-hold Land Bona notabilia BOna notabilia is where a man dies having goods to the value of five pound in divers Diocesses then the Archbishop ought to grant Administration and if any inferior Bishop do grant it it is void 37 H. 6. 27. 28 10 H. 7. 18. Dyer 305. Bordlands BOrdlands signifie the Demesns which Lords keep in their own hand â— for he maintenance of their Bord or Table Bracton l. 4. Tract 3. c. 9. num 5. Borow BOrow which with us signifies an ancient Town as appears by Littleton sect 164. is a word derived either of the French Burg id est Pagus or of the Saxon Borhoe id est â— ignus for that anciently the Neighbours of a Town became Pledges one for another and from thence comes Headborow for the chief Pledge or Borhoe-Aldere with us now called the Borow-holder or Bursholder Borow English BOrow English is a customary Descent of Lands or Tenements in some places whereby they come to the youngest son or if the owner have no issue to his youngest brother as in Edmunton Kitchin fol. 102. Borowhead BOrohead See Head-borow Bote. BOte is an old word signifying Help Succor Aid or Advantage and is commonly joyned with another word whose signification is doth augment as these Bridgebote Burgbote Firebote Hedgebote Plowbote divers other for whose significations look in their proper Titles Bottomry vulgo Bomry IS when a Master of a Ship in case of necessity doth engage his Ship for money for use of the Ship Bribor BRibor Fr. Bribeur i. Mendicus seems to signifie one that pilfers other mans goods Anno 28 E. 2. Stat. 1. Brief BRief Breve signifies most properly in our Law the Process that issues out of the Chancery or other Court commanding the Sheriff to summon or attach A. to answer to the Suit of B. c. But more largely it is taken for any Precept of the King in writing under Seal issuing out of any Court whereby he commands any thing to be done for the furtherance of Iustice and good order And they are therefore called Briefs because they briessy comprehend the cause of the action And some of them are Original and some judicial as you may see at large in the Register of Writs Broadhalpeny BRoadhalpeny in some Copies Broadhalfpeny that is to be quit of a certain custome exacted for setting up of Tables or Boards in Fairs or Markets and those that were freed by the Kings Charter of this Custome had this word put in their Letters Patents by reason whereof at this day the Freedom it self for brevity of speech is called Broadhalfpeny Broker BRoker seems to come of the French word Broieur id est Tritor he that grinds or breaks a thing into small pieces And the true trade of a Broker as it appears in the Statute made 1 Jac. c. 21. is to beat contrive make and conclude Bargains between Merchants and Tradesmen But the word is now also appropriated to those that buy and sell old and broken apparel and Houshold-stuff Brugbote BRugbote and in some copies Bridgebote is to be quit of giving aid to the repair of Bridges Bull. BULL is an Instrument so called granted by the Bishop of Rome and sealed with a Seal of Lead containing in it his Decrees Commandments or other Acts according to the nature of the thing for which it is granted And these
Instruments have been heretofore used and of force in this Land but by the Statute of 28 H. 8. c. 16. it was e â— acted That all Bulls Breves Faculties and Dispensations of whatsoever name or nature that it was had or obtained from the B. of Rome should be altogether void and of no effect See Rastal 328. C. D. Bullion BUllion comes from the French word Billon which is the place where Gold is tryed And so Bullion is taken in the Statutes made in 27. E. 3. Stat 2. c. 14. and in 4 H 4. Stat. 1. c. 10. for the place whither Gold or Silver is brought to be tryed or exchanged But Bullion is also taken in the Stat. 9 E. 3. Stat. 2. c. 2. for Gold or Silver in the Mass or Billet Burbreach BUrbreach is to be quit of Trespasses done in City or Borough against the Peace Burgage TO hold in Burgage is to hold as the Burgagers hold of the King or of another Lord lands or tenements yielding him a certain Rent yearly or else where another man then Burgers holds of any Lord Lands or Tenements in Burgage yielding him a certain Rent Burghbote BUrghbote is to be quit of giving aid to make a Burrough Castle City or Walls thrown down Burgh English BUrgh English or Borough English is a Custome in some ancient Borough that if a man hath issue divers sons and dies yet the youngest son only shall inherit and have all the Lands and Tenements that were his fathers whereof he died seised within the same Borough by descent as Heir to his Father by force of the Custome of the same Borough This Tenure is also of Copyhold Estates by Custome of divers Mannors Burglary BUrglary is when one breaks and enters into the House of another in the night with felonious intent to rob or kill or to do some other Felony in which cases although he carry away nothing yet it is Felony for which he shall suffer death Otherwise it is if it be in the day-time or that he break the House in the night and enter no therein at that time But if a Servant conspire with other men to rob his Master and to that intent opens his Masters doors and windows in the night for them and they come into the house by that way this is Burglary in the Strangers and the Servant is a Thief but no Burglar And this was the opinion of Sir Roger Manwood Knight Lord chief Baron of the Cxchequer at the quarter Sessions holden at Canterbury in Jannary 1579. 21 Eliz. Buttlerage IS an old Duty to the Kings of this Realm for Wine imported by Aliens Moor Rep. 833. C Cablish CAblish among the Writers of the Forest Laws signifies Brushwood Manwood pag. 84. Cromp. Jur. fol. 165. Cantred CAntred is as much in Wales as an Hundred in England for Cantre in the British tongue signifies Centum The word is used An. 28. H. 8. c. 3. Capacity CApacity is when a man or Body politick or corporate is able to give or take Lands or other things or sue Actions As an Alien born hath sufficient Capacity to sue in any personal Action but in a real Action it is a good Plea to say he is an Alien born and pray if he shall be answered Dyer f. 3. pla 8. If a man enfeoff an Alien and another man to the use of themselves or c. it seems that the King shall have the moiety of the Land for ever by reason of the Incapacity of the Alien Dyer f. 283. pla 31. By the Common Law no man hath Capacity to take Tythes but Spiritual persons and the King who is a person mixt but a Lay-man who is not capable of taking Tithes was yet capable of discharge of Tithes in the Common Law in his own land as well as a Spiritual man See Coke l. 2. f. 44. Cape CApe is a Writ judicial touching Plea of Lands or Tenements so called as the most part of Writs are of that word which in it self carries the especiallest intention or end thereof And this Writ is divided into Grand Cape and Petit Cape both which take hold of things immovable and seem to differ in these Points First because Grand Cape lies before Apparance and Petit Cape after Secondly by the Grand Cape the Tenant is summoned to answer to the default and over to the Demandant Petit Cape summons the Tenant to answer to the default only and therefore it is called Petit Cape in the Old N. B. 161 162. Yet Ingham saith that it is not called Petit Cape because it is of small force but because it is a little Writ in words This Writ seems to contain in it a Process with the Civilians called Missio in possessionem ex primo secundo Decreto For as the first Decree seises the thing and the second gives it from him that made the second default in his Appearance so this Capias seises the Land and also assigns over to the party a day of Appearance at which if he comes not in the Land is forfeited Yet there is difference between these two courses of the Common and Civil Law for this Missio in possessionem extends to touch as well Goods movable as immovable where a Cape extends only to the immovable Secondly in this That the party being satisfied of his demand the residue is restored to him that defaulted but by the Cape all is seised without restitution Thirdly That is to the use of the party agent the Cape is to the use of the King See Bract. l. 5. tract 3. c. 1. num 4 5 6 Regist Judic fol. 2. a. Cape ad Valentiam CApe ad Valentiam is a Writ or Execution and is thus defined in the Old Nat. Brev. fo 161. 162. This writ lies where the Tenant is impleaded of certain Lands and he vouches to Warranty another against whom the Summons ad warrantizan â— hath been awarded and the Vouchee comes not in at the day given then if the Demandant recover against the Tenant he shall have this Writ against the Vouchee and shall recover so much in value of the Vouchees land if he have so much and if he hath not so much then the Tenant shall have Execution by this Writ of such Lands and Tenements as descend to him in Fee-simple or if he purchase afterwards the Tenant shall have against him a Resummons and if he can say nothing he shall recover the value And know that this Writ lies before Apparance Of these and their divers uses see the Table of the Reg. jud the word Cape Capias CApias is of two sorts The one before Iudgment called Capias ad respondendum in an action personal if the Sheriff return upon the first Writ Nihil habet in Balliva nostra And the other is a Writ of Execution after Iudgment which also is of divers natures which see in the Title Process Capite CApite is a Tenure that holds immediately of the King as of his Crown