or fire Britton ca. 7. where you may see what it differeth from Miladventure See Misadventure Average averagium by M. Skenes opinion verbo arage de verborum significatione commeth of the word averia i. a beast and so consequently signifieth service which the Tenent oweth to the Lord by horse or carriage of horse I have heard others probably derive it from the French euvrage or euvre i. opus It seemeth with us to have two divers significations For the first Rastall titulo Exposition of words maketh mention of the Kings averages which I take to be the Kings cariages by horse or cart Then anno 32. H. 8. ca. 14. and anno 1. Jacobi ca. 32. it is used for a certain contribution that Merchants and others doe every man proportionably make toward their losses who have their goods cast into the sea for the safegard of the ship or of the goods and lives of them in the ship in time of a tempest And this contribution seemeth to be so called because it is proportioned after the rate of every mans average or goods caried Averiis captis in withernam is a writ for the taking of cattel to his use that hath his cattel taken unlawfully by another and driven out of the County where they were taken that hey cannot be replevied Register origin fol. 82. a. b. Averment verificatto commeth of the French averer i. testari as averer quelque meschancete i. extrahere scelus aliquod in lucem ex occultis tenebris It signifieth according to the Author of the terms of Law an offer of the Defendant to make good or to justifie an exception pleaded in abatement or barre of the Plaintiffs act But me thinketh it should rather signifie the act than the offer or justifying the exception by divers places where I find it used For example an 34. Ed. 1. stat 2. And the demandant will offer to aver by the assise or jury where to offer to aver and to aver must needs differ and again in the same statute and the demandant will offer to averr by the country c. thirdly in the English nat br fo 57. These errors shall be tried by averment c. Aver pennie quasi Average pennie is money contributed toward the Kings averages Rastal exposition of words See Average Augmentation augmentatio was the name of a Court erected the seven and twentieth year of Henry the 8. as appeareth by the 27. chapter of that years parliament And the end thereof was that the King might be justly dealt with touching the profit of such religious houses and their lands as were given unto him by act of Parliament the same year not printed For the dissolving of which court there was authority given to Queen Mary by the Parliament held the first year of her reign ses 2. cap. 10. which she afterward put in execution by her letters patents The name of the Court grew from this that the revenues of the Crown were augmented so much by the suppression of the said houses as the King reserved unto the Crown and neither gave nor sold away to others Aulne of Renesh wine a. 1. Ed. 6. cap. 13. alias Awme of Renish wine 1. Jaco ca. p 33. is a vessel that containeth forty gallons Aulnogeour See Alneger Ave is the name of a writ for the which see Ayle Awncell weight as I have been informed is a kind of weight with scoles hanging or hooks fastened at each end of a staff which a man lifteth up upon his fore-finger or hand and so discerneth the equality or difference between the weight and the thing weighed In which because there may and was wont to be great deceit it was forbidden anno 25 Edw. 3. stat 5. ca. 9. anno 34 ejusdem cap. 5. and the even ballance only commanded yet a man of good credit once certified mee that it is stil used in Leaden Hall at London among Butchers c. In the derivation of this word I dare not be over confident But it may probably be thought to be called awnsell weight quasi hand sale weight because it was and is performed by the hand as the other is by the beam And if I should draw i◠from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. cubitus the part of the arm from the elbow to the fingers ends I might challenge a good warrant of this from the Romans who thence derived their ancile i. the luckie shield that was said to be sent from heaven in a tempest to Numa Pompilius together with a voice that the citie of Rome should be the mightiest of all others so long as that shield remained in it Auncient demeasne antiquum dominicum is called more at large auncient demeasne of the King or of the Crown Fitz. nat br fol. 14. d. It commeth of two French words auncieu i. veter vetus veteranus antiquus and of demain alias domain i. publicum vectigal It signifieth in our Common law a certain tenure whereby all the mannors belonging to the Crown in the dayes of Saint Edward the Saxon King or of William the Conquerour did hold The number and names of which mannors as all other belonging to common persons he caused to be written into a book after a survey made of them now remaining in the Exchequer and called Domes-day book And those which by that book do appear to have belonged to the Crown at that time and are contained under the title Terraregis be called auncient demeasn Kitchin fol. 98. and M. Gwin in the Preface to his readings Of these Tenents there were two sorts one that held their land frankly by Charter and another that held by copie of Court-roll or by verge at the will of the Lord according to the custome of the mannor Fitz. nat br fol. 14. d. of which opinion also Britton is ca. 66. nu 8. The benefit of this tenure consisteth in these poines first the Tenents of a mannor holding freely by Charter in this sort cannot be impleaded out of the same mannor and if they be they may abate the writ by pleading their tenure before or after answer made Secondly they be free of tolle for all things concerning their sustenance and husbandry Thirdly they may not be impanelled upon any enquest Terms of the Law But more at large by Fitz. nat br f. 14. d. whom read also fo 128. a. c. And as it appeareth by him codem fol. 3. b c these Tenents held by the service of prowing the Kings land by plashing his hedges or by such like toward the maintenance of the Kings houshold in which regard they had such Liberties given them wherein to avoid disturbance they may have writs to such as take the duties of Tolle in any market or fair as likewise for immunitie of portage passage and such like Fitzh natura brev fol. 228. a b c d. by which Authour also it appeareth That no lands be to be accounted Antient Demeasne but such as are holden in Socage fol. 13.
until he content the King for his fine Coke lib. 3. fol. 12. a. Capias utlagatum is a word of execution or after judgement which lyeth against him that is outlawed upon any sure by the which the Sheriff upon the receipt thereof apprehendeth the party outlawed for not appearing upon the exigend and keepeth him in safe custodie until the day of return assigned in the writ and then presenteth him unto the Court there farther to be ordered for his contempt Capias utlagatum inquir as de bonis catallis is a writ all one with the former but that it it giveth a farther power to the Shyreeve over and beside the apprehension of the body to inquire of his goods and cattels The form of all these writs see in the Old nat br fol. 154. and see the Terms of law verbo Proces Lastly you may find great variety of this kind in the table of the Register judiciall verbo Capias Capias in Wiâ—hernamium de averiis is a Writ lying for Cattel in Withernam Register orig f. 82. 83. see Withernam Capias in Withernamium de bemine is a writ that lieth for a servant in Withernam Register onig f. 79. 80. see Withernam Capias conductos ad proficiscendum is a writ that lieth for the taking up of such as having received prest money to serve the King slink away and come not in at their time assigned Register orig fo 191. Captain aliâs capitayne capitaneus commeth of the French capitaine and signifieth with us him that leadeth or hath charge of a company of Souldiers and is either generall as he that hath the governance of the whole host or speciall as he that leadeth one only band The word capitanei in other nations signifieth more generally those that are in Latine called principes or proceres because as Hotteman saith in verbis feudalibus tanquam caput reliquo corpori sic hii reliquis civibus praesunt He divideth them into two sorts and to use his words alii sunt capitanei regni quo verbo Duces Comites Marchiones intelliguntur l. 1. feud tit 1. § 1. ti 7. Alii impropriè qui urbium praefecti sunt quibus plebs ab liquo superiorum gubernanda committitur qui vallasoâ—es rigit majores appellantur l. feud tit 1. § 1. tit 7. et tit 17. So we have captaines of Castles here in England and other places as of the Isles of Gersay and Gernsey of the Isle of Wight c. Capite is a tenute which holdeth imâ— ediately of the King as of his crown be it by Knights service or socage Broke tet tenures 46. 94. Dyer fo 123. nu 38. et fo 363. nu 18. and not as of any Honour Castle or Mannor therefore it is otherwise called a tenure that holdeth meerely of the King because as the crown is a corporation and seigneurie in grosse as the Common lawyers term it so the King that possesseth the crown is in account of law perpetually King and never in his minority nor never dieth no more than populus doth whose authoritie he beareth See Fitzh nat br f. 5. F. Note by the way that a man may hold of the King and not in Capite that is not immediately of the crown in grosse but by means of some Honour Castle or Mannor belonging to the Crown whereof I hold my land Wherof Kitchin saith wel that a man may hold of the King by Knights service and yet not in capite because he holdeth happily of some honour by Knights service which is in the Kings hands as by descent from his ancestors not immediatly of the King as of his crown f. 129. with whom agreeth Fitzh nat or f. 5. K. whose words are to this effect So that it plainly appeareth that lands which be held of the King as of an Honour Castle or Mannor are not held in capite of the King because that a writ of right in that case shall be directed to the Bailiff of the Honour Castle or manor c. but when the lands be held of the King as of his Crown then they be not held of Honour Castle or Mannor but meerly of the King as King and of the Kings Crown as of a seigneury of it self in gross the chief above all other seigneuries c. And this tenure in capite is otherwise called tenure holding of the person of the King Dyer fo 44. nu 37. Author of the new Terms ver Tenure in capite Broke titulo Tenures nu 65. 99. And yet M. Kitchin fo 208. saith that a man may hold of the person of the King and not in capite His example is this If the King purchase a mannor that I. S. holdeth the Tenent shall hold as he held before and shall not render livery or primeiâ— seisin nor hold in capite And if the King grant that mannor to W. N. in fee excepting the services of I. S. then I. S. holdeth of the King as of the person of the King and yet holdeth not in capite but as he held before So that by this Book tenure holding of the person of the King and tenure in capite are two divers tenures To take away this difficulty I think M. Kitchin is in that place to be taken as if he said not in capite by Knights service but by socage following 〈◊〉 usuall speech because most commonly where wee talk of tenure in capite wee mean tenure by knights service Carno Cromptons jurisd fol. 191. is an immunitie Carke seemeth to be a quantity of Wool whereof thirty make a Sarpler anno 27 H. 6. ca. 2. See Sarpler Carrack alià s Carrick seemeth to be a ship of burthen so called of this Italian carrico or carco a burthen or charge or the Spanish cargo you have this word anno 2 R. 2. ca. 4. anno 1 Ja. ca. 33. Carroway seeds alià s Carruway seeds semen cari vel carei is a Seed springing of the herb so called of whose operation you may read in Gerards Herball li. 2. cap. 396. It is reckoned among the Merchandise that ought to be garbled anno 1 Jaco ca. 19. Carue of land carrucata terrae commeth of the French charue i. aratrum and with us is a certain quantity of land by the which the Subjects have sometime been taxed whereupon the tribute so levied is called Caruago Caruagium Bracton li. 2. cap. 16. nu 8. It is all one with that which the same Author lib. 2. cap. 17. calleth carucatam terrae For Littleton ca. Teuure in socage saith that haec soca socae idem est quod caruca sc one soke or one plow land Yet one place I find in Stowes annals that maketh me doubt pag. 271. where he hath these words The same time King Henry took caruage that is to say two marks of silver of every Knights fee toward the marriage of his sister Izabell to the Emperour where caruage cannot be taken for a Plow land except
The site of this College is the Castle of Windsour with the chapel of Saint George erected by Edward the Third and the Chapter house in the said Castle Howbeit the yearly Solemnity or Prfoession may be and is by the Soveraigns direction performed at the Court wheresoever it lyeth upon Saint Georges day Master Camden saith that this order received great ornament from Edward the fourth See M. Ferns glory of Generosity pag. 120. See Garter Hospinian in his book de origine progressu Monachatiu maketh mention of this honourable order terming it by ignorance of our tongue ordinem Carteriorum equitum and Charteriorum equitum which you may read cap. 307. as also Bernardus Girardus in his historie lib. 15. cap. 185. Knights of the Bath milites balnei vel de balneo are an order of Knights made within the Lists of the Bath girded with a Sword in the ceremony of his creation Ferns glorie of generositie pag. 105. These are spoken of anno 8 Edw. 4. cap. 2. But I had an old Monument lent me by a friend whereby it appeareth that these knights were so called of a Bath into the which after they had been shaven and trimmed by a Barber they entered and thence the night before they were Knighted being well bathed were taken again by two Esquiers commanded to attend them dried with fine linnen cloathes and so apparelled and led through many solemn ceremonies viz. confessing their sins watching and praying all night in a Church or Chapel with many other to the order of knighthood the next day So that by the same reason these seemed to be tearmed knights of the Bath by which knights made out of the field in these dayes are called knights of the Carpet because in receiving their Order they commonly kneel upon a carpet Knights of the Order of S. John of Jerusalem Milites Sancti Johannis Hierosolumitani were otherwise called knights of the Rhodes beeing an Order of knighthood that had beginning about the year of the Lord 1120. Honorius then Pope of Rome Cassanaeus de Gloria Mundi parte 9. Consideratione 4. And Master Fern in his Glory of Generosity pag. 127. They had their primary foundation and chief aboad first in Hierusalem and then in Rhodes where many of them lived under their Principal called the Master of Rhodes untill they were expelled thence by the Turk Anno 1523. Siâ—hence which time their chief Seat is at Malta where they have done great exploits against the Infidels but especially in the year 1595. These though they had their beginning and especiallest aboad first at Hieruâ—alem and next in Rhodes yet they encreased both in number and Revenues living after the Order of Friers under the rule of Saint Augustine and were dispersed into France Spain Alverne Campany England and Ireland Of these mention is made in the Statute Anno 25 Her 8. cap. 2. and anno 26 ejusdem cap. secundo And it appeareth that they in England had one general Prior that had the government of the whole Order within England and Scotland Regist. orig fol. 20. b. But towards the end of Henry the eighths daies they in England and Ireland being found overmuch to adhere to the Bishop of Rome against the King were suppressed and their Lands and Goods referred by Parliament to the Kings disposition anno 32 Hen. 8. cap. 24. The occasion and the propagation of this order more especially described you may read in the Treatise intituled the Book of Honor and Arms lib. 5. cap. 18. written by Master Richard Johnes Knights of the Rhodes anno 32 H. 8. cap. 24. See Knights of the Order of S. John Knights of the Temple otherwise called Templers Templarii was an Order of Knighthood created by Gelasius the Pope about the year of our Lord 1117. and so called because they dwelt in a part of the buildings belonging to Temple These in the beginning dwelling not far from the Sepulchre of the Lord entertained Christian Strangers and Pilgrims charitably and in their Armor led them through the Holy Land to view such things as there were to be seen without fear of Infidells adjoining This Order continuing and increasing by the space of 200 years was far spread in Christendom and namely here in England But at the last the chief of them at Hierusalem being as some men say found to fall away to the Sarazens from Christianity and to abound in many vices the whole Order was suppressed by Clemens quintus which was about King Edward the 1. daies and their substance given partly to the Knights of the Rhodes and partly to other Religious Cassan de gloria mundi parte 9. Consid 5. And see anno prim Edw. 1. cap. 24. Others write that in truth their destruction grew from leaning to the Emperour against the Pope of Rome whatsoever was pretended Joach Stephanus de jurisdictione lib. 4. cap. 10. nu 18. See Templers Knights of the Shire Milites Comitatus otherwise be called Knights of the Parliament and be two Knights or other Gentlemen of worth that are chosen in pleno Comitaâ—u by the Freeholders of every County that can dispend 40 shillings per annum and be resident in the Shire anno 10 H. 6. cap. 2. anno 1 H. 5. cap. 1. upon the Kings Writ to be sent to the Parliament and there by their Counsel to assist the common proceedings of the whole Realm These when every man that had a Knights fee were custumarily constrained to be a Knight were of necessity to be mlietes gladio cincti for so runneth the tenure of the writ at this day Crompton Jurisdict fo pri But now there being but few Knights in comparison of former times and many men of great livings in every County Custom beareth that Esquires may be chosen to this Office anno 23 H. 6. cap. 6. so that they be resident within the County anno H. 6. cap. 7. anno 1 H. 5. cap. prim For the observations in choise of these Knights see the Statutes anno 7 H. 4. cap. 15. anno 11 ejusdem cap. 1. anno 6 Hen. 6. cap. 4. anno 23 H. 6. ca. 15. and the new Book of Entries verbo Parliament nu 1. Their expences during the Parliament are born by the County anno 35 Hen. 8. cap. 11. Knight Marshal Marescallus hospitii regâ—i is an Officer in the King House having jurisdiction and cognisance of any transgression within the Kings House and Verge as also of Contracts made within the same House whereunto one of the House is a party Regist orig fo 185. a b. et fo 191. b. whereof you may there read more at large Knights fee feudum militare is so much inheritance as is sufficient yearly to maintain a Knight with convenient Revenue which in Henry thirds daies was 15 pounds Cambdeni Britan. pag. 111. Or 180 acres of Land or 800 acres eodem But Sir Thomas Smith in his Repub Ang. li. prim cap. 18. rateth it at forty pound And
Cassand de Consustud Burgund pag. 420 421. This word is used in the Statutes of our realm as the Kings liege people anno 14 Hen. 8. ca. 2. Of the oath of legeancy Jacobutius de Franchis in praeludio Feudorum ca. 2. num 138 hath these words Praestatur hoc ligeum homagium in manibus regis vel Imperatoris genibus flexis positis manibus junct is in manibus Domini dicendo Ego juro homagium tibi Domin ut ae modo sim homo ligeus vester contra omnem hominem qui potest vivere verba sunt pulchra Andr. de Isern in cap. 1. in verbo Omnem Colum. prima de novo forma fidelita hoc ligenm homagium videmus praestari domino Regi tantum quiacùm per id efficiatur homo solius illius cui juratur ut dixit Hostiensis in ca. ex diligenti de Symon alunon potest praestari i. quia illius solius esse similiter non potest non n. esse potest duorum in solidum l. si ut certo § si duobus vehiculum Ï€. commodati secundùm And. in dicto ca. 1. § omnem et Bald. hic in 7 divis Alvar. in 13. divisione Non ligeum verò dicitur quando quis jurat fidelitatom Domino excepta aliqua persona viz Domino superiori vel antiquiore Hactenus Jacobutius where you may read more touching this point As also in Hotomans Disputations De Feudis pag. 816 fol. 829. c. Ligeance Ligeantia see Liege It somtime signitieth the dominions or territoritie of the liege Lord as anno 25 Ed. 3. stat 2. Children born out of the liegeance of the King Lierwâ—test mulcta adulteriorum Fleta li. 1. ca. 47. It is used for a liberty whereby a Lord challengeth the penaltie of one that lieth unlawfully with his bondwoman see Lotherwit Limitation of assise limitatio assisae is a certain time set down by Statute wherein a man must allege himself or his auncestourto have been seised of lands sued for by a writ of Assise See the Statute of Merton cap. 8. an 20 Hen. 3. and Westm. 1. ca. 38. and anno 32. H. 8. ca. 2. an 1. M. 1. pag. ca. 5. See also Theloals Digest of writs li. 10. ca. 2. So it is used in Old Nat. Br. fol. 77. in these words The writ de consuetudinibus et servitiis lyeth where I or mine auncestours after the limication of Assise were not seised of the Customes c. But before the Limitation of Assise we were seised c. Lindwood was a Doctor of both Civil and Canon Laws and Dean of the Arches he was Embassadour for Henry the fifth into Portugal anno 1422. as appeareth by the preface to his Commentary upon the Provincials Litleton was a Lawyer of great account living in the dayes of King Edward the fourth as appeareth by Stawnf praerogat ca. 21. fo 72. He wrote a book of great account called Litletons Tenure which Hotoman in his Commentary de verbis Feudalibus verb. Foedum thus commmendeth Stephanus Pasquerius excellentivir ingenio inter Parisienses causidicos dicendi facultate praestans libellum mihi Anglicanum Litletonum dedit quo Feudorum Anglicorum jura exponuntur ita inconditè absurte et inconcinnè scriptum ut facilè appareat verum esse quod Polydor. Virgilius in Anglica Historia scribit stulsitiam in eo libro cum malisia et caluminiandi studio certare Literae ad faciendum attornatum pro secta facienda See in the Register original fol. 172. Literae de annua pensione eodem 266 307. Litera patens ad faciendum generalem atturnatum quia infirmus eodem fo 21. Litera per quam Dominus remittit curiam suam Regi cod fol. 4. Literae de requestu eodem fol. 129. Literaet Canonici ad exercendam jurisdictionem loco suo fo 305. Literae patentes ad conferendum Beneficia domino in remotis agente fol. 305. Literae adinnotescendum recuperationem Regis de ecclesia omnibus quorum interest fol. 305. Literae patentes Regis quod Abbas ad totam vitam suam possit facere Attornatos generales fol. 21. Literae procuratoriae fol. 205 306. Literae Regiae deprecatoriae pro annua pensione fol. 307. All these you may see in their places and understand the meaning of them as occasion shall require Livery Liberatur is drawn from the French livre i. insigne gestamen Centuriale discrimen nota Centurialis turmalis Or else from livrer id est tradere and accordingly hath three significations in one it is used for a suit of Cloath or other stuff that a Gentleman giveth in Coats Cloaks Hats or Gowns with Cognisance or without to his Servants or followers Anno 1 Rich. 2. cap. 7. et anno 20. ejusdem cap. 1 et 2. and anno 7 Hen. 4. cap. 14. and anno 8 Edw. 4. cap. 2. et anno 7 ejusdem cap. 14. and anno 13 ejusdem cap. 3. and anno 8 H. 6. ca. 4. and anno 8 Ed. 4. cap. 3. and anno 3 H. 7. cap. 1. 12. and anno 11 e usdena cap. 3. and anno 19 ejusdem cap. 14. In the other signification it betokeneth a delivery of possession unto those Tenents which hold of the King in Capite or in Knights service for the King by his prerogative hath primier seysini or the first possession of all lands and tenements so holden of him anno 52 Henry 3. cap. 16. and an 17 Ed. 2. cap. 3. that is when any such Tenant dyeth the King forthwith entreth and holdeth it untill the Heir do his homage and so pray this land to be delivered unto him Which act in the King is called Livery and Livery in this signification is either general or special Stawnf praerogat fol. 12. et cap. 3. Livery general seemeth to be that which is made in general words and therefore may easily be missued Livery special is that which containeth in it a pardon of oversights committed by the Tenent in suing out his Livery by which pardon the missuing is dispenced with Stawnf pag. 67. ca. Travers 20. See the Institutes and grounds of the Common law Chapter the thirtieth of general and special Liveries Liverie in the third signification is the writ which lyeth for the Heir to obtain the possession or seisin of his Land at the Kings hands Which see in Fitz. nat brev fol. 155. Livery of seisin deliberatio seisinae is a delivery of possession of Land or Tenement or other things corporeal for of things incorporeal no Livery of seisin may be unto one that hath right or a probality of right unto them For as Bracton saith Traditio debet esse vestita et non nuda sc quod traditione praeced at vera causae vel idputativa qua transeat Dominicum Lib. 2. cap. 18. nu 3. West parte 1. symbol li. 2. sect 169. calleth this a Ceremouy in the Common law used in the Conveyance of Lands or Tenements c. where you may
writ of errour be not suffered to remove his goods untill the errour be tried Register orig fo 131. b. Borow burgus vel burgum may either come from the French burg i. pagus or from the Saxon borhoe i. vadium pignus It signifieth here in England a corporate Town that is not a City anno 2 Ed. 3. ca. 3. namely all such as send Burgesses to the Parliament the number whereof you may see in M. Cromptons jurisd fo 24. It may probably be thought that it was antiently taken for those companies consisting often families which were combined to be one anothers pledge or borhoe See Bracton li. 3. tractat 2. a. 10. See Headborow and Borowhead and M. Lamberd in the duties of Constables pag. 8. Lynwood upon the provinciall ut singula de censibus speak to this effect Aliqui interpretantur burgum esse castrum vel locum ubi sunt crebra castra vel dicitur burgus ubisunt per limites habitacula plura constituta Butthen setting down his own opinion he defineth it thus Burgus dici potest villa quaecuâ—que alia à civitate in qua est universitas approba ta And that he provethout of the 11. book of Justinians Codex tit de fund rei privatae 65. l. 6. ejus tituli where burgus is termed corpus Some derive it from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i turris see M. Skene de verbo sign verbo Borghe The late author M. Verstegan in his restitution of decayed intelligences saith that burg or burgh wherof we say yet Borough or Bourrow metaphorically signifieth a Town having a wall or some kind of closure about it also a Castle All places that in old time had among our ancestors the name of Borrough were places one way or other fenced or fortified Bordlands signifie the demesnes that Lords keep in their hands to the maintenance of their bord or table Bract. li. 4. tractat 3. ca. 9. nu 5. Borrowhead aliâs Headborow capitalis plegius by M. Lamberds opinion in his treatise of Constables is made up of these two words borhoe i. pledge and head and signifieth a head or chief pledge And in explication of this and other Saxon words of this nature he maketh an excellent rehearsall of some antient customs of England during the reign of the Saxons which you may read This borowhead in short was the head or chief man of the Decurie or Borhoe that there he speaketh of chosen by the rest to speak and to doe in the name of the rest those things that concerned them See Boron-holders Borow-holders allâs Bursholders be quasi borhoe calders signifying the same officers that be called borow-heads Lamb. in the duties of Caustables Bracton calleth them Borghio Aldere li. 3. tractat 2. ca. 10. Borow english is a customary descent of lands or tenements whereby in all places where this custome holdeth lands and tenements descend to the youngest sonne or if the owner have no issue to his youngest brother as in Edmuntan Kitchin fa 102. And the reason of this custome as Lutleton saith is for that the youngest is tresumed in law to bee least able to shift for himself Barow goods divisable I find these words in the Statute of Acton Burnal anno 11 Edw. 1. statuto unico and dare not confidently set down the true meaning of them But as before the Statute of 32. 34. H. 8. no lands were divisable at the Common law but in antient baronies so perhaps at the making of the foresaid Statute of Acton burnel it was doubtfull whether goods were devisable but in antient borrowes For it seemeth by the writ de rationabili parte bonorum that antiently the goods of a man were partible between his wife and children Bote signifieth compensation Lamb. explication of Saxon words Thence commeth manbote aliâs monbote that is compensation or amends for a man slain which is bound to another For farther understanding whereof it is to be seen in K. Inas laws set out by M. Lamberd ca. 96. what rate was ordained for the expiation of this offence See Hedgebote Plowbote Howsebote and read M. Skene de verbo signif verbo Bote. Boeiler of the King pincerua regis anno 43 Ed. 3. ca. 3. is an officer that provideth the Kings wines who as Fleta li. 2. ca. 21. saith may by vertue of his office out of every ship loaden with sale wines unum dolium eligere in prora navis ad opus regis et aliud in puppi et pro qualibet pecia reddere tantùm 20. solid mercatori Si autem plura inde habere volucrit bene licebie dum tamen precium fide dignorum judicio pro rege apponatur Bow-bearer is an under-officer of the Forest as M. Crompton in his jurisdict fo 201. setteth down sworn to the true performance of his Office in these words I will true man be to the Master Forester of this Forest and to his lieutenent and in the absence of them I shall truely oversee and true inquisition make as well of swornmen as unsworn in every bayliwick both in the North bayl and South bayl of this Forest and of all manner of trespasses done either to vert or venison I shall truly endeavour my self to attach or cause them to be attached in the next court Attachment there to be presented without any concealment had to my knowledge So help me God c. BR Bracton otherwise called Henry of Bracton was a famous Lawyer of this land renowned for his knowledge both in the Common Civill laws as appeareth by his book every where extant He lived in the dayes of Henry the third Stawnf praero f. 5. b. and as some say Lord chief Justice of England Bread of treate and bread of coker anno 51. H. 3. statuto 1. of bread and ale Bred signifieth broad This word Bracton useth li. 3. wact 2. ca. 15. nu 7. proverbially thus to lange and to bred the meaning whereof you may there find word for word it is as we now speak two long and two broad or two in length or two in brea th Brevibus rotulis liberandis is a writ or mandat to a Shyreeve to deliver unto the new Shyreeve chosen in his room the County with the appertinances together with the rols briefs remembrances and all other things belonging to that office Register orig fo 295. a. Bribours cometh of the French bribeur i. mendicus It seemeth to signifie with us one that pilfreth other mens goods anno 28 Ed. 2. stat 1. ca. unico Brief breve cometh from the French bref ou breif i. brevis and in our Common law siggnifieth a writ whereby a man is summoned to answer to any action or more largely any precept of the King in writing issuing out of any Court whereby he commandeth any thing to be done for the furtherance of justice or good order The word is used in the Civil law sometime in the singular number and masculin gender
disavow or forsake whatsoever right he hath unto them See the Statute anno 10. Edward 1. cap. unico Forstall is to be quit of amerciaments and cattels arrested within your land and the amerciaments thereof comming New terms of law Forstalling forstallatio is partly French for estaller is in that tongue as much as merces exponere expedice explicare or to shew wares in a Market or Fair. It signifieth in our Common law the buying or bargaining for any victuals or wates comming to be sold toward any Fair or Market or from beyond the Seas toward any City Port Haven Creek or road of this Realm and before the same be there anno 51. H. 3. stat 6. West parte 2. Symbol titulo indictments sect 64. Forstaller in Cromptonâ— Jurisdiction fol. 153. is used for stopping of a Deer broker out of the Forest from returning home again or laying between him and the Forest in the way that he is to return See Regratours and Engrossers See Cromptons Justice of peace fol. 69. a. The Author of the new terms of Law defineth it thus Forstalling Forstallamentum is the buying of Corn Cattell or other Merchandise by the way as it cometh toward the Fair or Market to be sold to the intent to sell the same again at a more high and deer price Fleta saith thus of it significat obtrusionem viae vel impedimentum transitus fugae averiorum lib. 1. cap. 47. Fortescue was a learned Lawyer and Lord Chanceller in Henry the 6. daies who writ a book in the commendation of our Common Laws Fortlet forte letum cometh neer the French fortlet i. valenticulus forticulus and signifieth in our Common law a place of some strength Old nat br fol. 45. This in other Countries is written fortalitium and signifieth castrum Scraderus select practabil quaest sect 12. num 7 8. Fother is a weight of twenty hundred which is a wain or cart load Speight in his Annot upon Chawcer Fourche Afforciare seemeth to come of the French Fourchir i. tiâ—ubare lingua and signifieth in our Common law a putting off prolonging or delay of an action and it appeareth no unpleasant Metaphor for as by stammering we draw out our speech not delivering that wee have to say in ordinary time so by fourching wee prolong a sute that might be ended in a shorter space To fourch by essoin Westm 1. cap. 24. anno 3. Edw. pri where you have words to this effect Coparceners Jointenants and Tenents in common may not fourch by essoin to essoin severally but have only one essoin as one sole tenent may have And anno 6. Edw. 1. ca. 10. You have it used in like sort Foutgeld is a word compounded of these two German words fous i. pes and gyldan i. solvere and it signifieth an amercement for not cutting out the balls of great dogs feet in the Forest See Expeditate And to be quit of footgeld is a privilege to keep dogs within the Forest unlawed without punishment or controlement Cromptons Jurisd fol. 197 Manwood parte pri of his Forest Laws pag. 86. Fowles of warren See Warren Founder is he that melteth metal and maketh any thing of it by casting it into a mould c. anno 17. Rich. 2. cap. 1. derived of the verb fundere to powre FR Franthise libertas franchesia cometh of the French franchise so signifying it is taken with us for a privilege or an exemption from ordinary jurisdiction and sometime an immunity from tribute It is either personall or reall Crompt Jurisd fol. 141. that is belonging to a person immediately or else by means of this or that place or Court of immunity whereof he is either chief or a member In what particularly things franchises commonly consist See Britian cap. 19. Franchise royall anno 15. R. 2. ca. 4. et anno 2. H. 5. cap. 7. in fine seemeth to be that where the Kings writs run not as Chester and Durham they are called Seignories royal anno 28. H. 6. cap. 4. The author of the new Terms of law saith that franches royal is where the King granteth to one and his heirs that they shall be quit of tolle or such like See franchise in the new book of Entries See Bracton lib. 2. cap. 5. See Sac. Frank almoin libera Eleemozyna in french frank Ausmone signifieth in our Common law a tenure or title of lands Britton cap. 66. num 5. saith thus of it Frank almoyne is lands or tenements bestowed upon God that is given to such people as bestow themselves in the service of God for pure and perpetual almes whence the Feoffours or givers cannot demand any terrestiall service so long as the lands c. remain in the hands of the Feoffees With this agreeth the grand Costumary of Normandie cap. 32. Of this you may read Bracton at large lib. 2. cap. 5. 10. See Fitzh nat br fol 211. See the new book of Entries verbo Frank almoin But Britton maketh another kind of this land c. which is given in almes but not free almes because the tenents in this are tyed in certain services to the Feoffour Britton ubi supra Frank bank francus bancus in true french franc bank signifieth word for word a free bench or seat and among our Law-writers it seemeth to be used for Copyhold lands that the wife being espoused a virgin hath after the decease of her husband for her dower Kitchin fol 102. Bracton lib. 4. tract 6. cap. 13. nu 2. hath these words Consuetudo est in partibus illis quod uxores maritorum defunctorum habeant francum bancum suum de terris sockmaxnorum et tenent nomine dotis Fitz. calleth it a custome whereby in certain Cities the wife shall have her husbands whole lands c. for her dower Nat. br fol. 150. P. See Plowden casu Newis fol. 411. Frank chase Libera chasea is a liberty of feee chase whereby all men having ground within that compasse are prohibited to cut down wood or discover c. without the view of the Forester though it be his own Demesn Cromptons Jurisdictions fol. 187. Frank fee feudum francum seis liberum is by Broke tit Demesn num 32. thus expressed That which is in the hand of the King or Lord of any Mannor being antient demesn of the Crown viz. the Demesns is called frank fee and that which is in the hands of the tenents is ancient demeasn only see the Register orign fol. 12. a. Whereby it seemeth that that is frank fee which a man holdeth at the Common law to himself and his heirs and not by such service as is required in antient demesn according to the custome of the mannor And again I find in the same book fol. 14. b. a note to this effect that the lands which were in the hands of King Edward the Saint at the making of the book called Doomesday is antient demesn and that all the rest in the Realm is called frank
died in pound Kitchin fol. 145. or if he claim a propriety in the Cattel sued for Terms of the Law To wage law what it is see in his place verbo Law See Mortgage Gager deliverance See Gage Gayle See Gaol Gainage Wain agium is â—eer to the French Gaignage i. quaestus lucrum and signifieth in our Common law the land held by the baser kind of Sokemen or Villeins Bracton lib. 1. cap. 9. where he hath these words speaking observants Et in hoc legem habet contra dominos quòd stare possunt in judicio contra eos de vita membris propter saevuiam dominorum vel propter intolerabilem injuriam Ut si eos destruant quòd salvum non possit eis esse Wainagium suum Hoc autem verum est de illis servis qui tenent in antiquo dominico coronae And again lib. 3. tract 2. cap. 1. Miles liber homo non amerciabitur nisi secundum modum delicti secundum quod delictum fuit magnum vel parvum salvo contenemento suo Mercator verò non nisi salva mercandiza sua villanus non nisi salvo Wainagio suo This in West 1. cap. 6. anno 3. Ed. prim is called Gaynure and again cap. 17. and in magna charta cap. 14. it is called Wainage I find it in the Old nat br fol. 117. called Fainor v.z. in these words The Writ of Aile was praecipe c. quòd reddat unam bovatam terrae unam bovatam marisci and â—he Writ was abated for that the oxegang is alwayes of a thing that lyeth in gainor I think this word was used of lands usually plowed because they that had it in occupation had nothing of it but the profit and fruit raised of it by their own pains toward their sustenance nor any other title but at the Lords will Gainor again in the same book fol. 12. is used for a Sokeman that hath such land in his occupation In the 32. Chapter of the Grand Custumary of Normandie Gergneurs be ruricolae qui terras eleemozynatas possidem and Britton useth gainer for to plow or till fol. 65. a. 42. b. West parte 2. symbol titulo Recoveries sect 3. hath these words A praecipe quòd reddat lyeth not in Bovata marisci 13 Ed. 3. fol. 3. nor de selione terrae Edw. 1. for the uncertainty because a selion which is a land sometime containeth an acre sometime half an acre sometime more and sometime lesse It lyeth not of a garden cotage or croft 14. Assis 13.8 H. 63.22 Ed. 4.13 de virgata terrae 41.43.13 Ed. 3. de fodina de minerade mercatu 13 E. 3. for they be not in demesn but in gain c. Lastly in the statute of distresses in the Exchequer anno 51 Hen. 3. I find these words No man of religion nor other shall be distreined by his beasts that gain the land Galege galicae seemeth to come of the French galloches which signifieth a certain kind of shoo worn by the Gaules in foul weather of old times I find it used for some such Implement anno 4 Ed. 4. cap. 7. anno 14. 15 H. 8. c. 9. where is written plainly Galoches Galingal cyperus is a medicinal herb the nature and diversity whereof is expressed in Gerards Herbal lib. 1. cap. 22. The root of this is mentioned for a drugge to be garbled anno 1 Jacob. cap. 19. Gallihalpens were a kind of coin forbidden by the statute anno 3 H. 5. cap. 1. Galloches See Galege Galls Gallae be a kind of hard fruit like a nut but rounder growing of the Tree called in Latine galla The divers kinds and uses whereof Gerard expresseth in his Herbal lib. 3. c. 34. This is a drug to be garbled an Ja. c. 19. Gaol gaola cometh of the French Geole i. caveola a cage for birds but is metaphorically used for a prison Thence cometh Geolier whom we call Gayler or Gaoler Garbe Garba cometh of the French garbe altâs gerbe i. sascis It signifieth with us a bundle or sheaf of corn Charta de Foresta cap. 7. and garba sagittarum is a sheaf of arrowes Skene de verb. significat verbo Garbae Garbling of bow-staves anno 1 R. 3. cap. 11. is the sorting or culling out the good from the bad As garbling of Spice is nothing but to purifie it from the drosse and dust that is mixed with it It may seem to proceed from the Italian garbo that is finesse neatnesse Gard Custodia cometh of the French garde being all of one signification It signifieth in our Common law a custodie or care of defence but hath divers applications sometimes to those that attend upon the safety of the Prince called Yeoman of the Guard sometime to such as have the education of children under age or of an Idiot sometime to a Writ touching Wardship Which writs are of three sorts one called a right of Guard or Ward in French droit de gard Fitzh nat br fol. 139. The second is ejectment de gard Idem fol. 139. L. The third is ravishment de gard Idem fol. 140. F.G. See Gardein see Ward Gardein Custos cometh of the French Gardien and yet the German Warden is neer unto it It ligniheth generally him that hath the charge or custodie of any person or thing but most notoriously him that hath the education or protection of such people as are not of sufficient discretion to guide themselves and their own affairs as Children and Idiots being indeed as largely extended as both Tutor and Curator among the Civilians For where as Tutor is he that hath the government of a youth untill he come to fourteen yeers of age and Curator he that hath the disposition and ordering of his substance afterward until he attain to five and twenty years or that hath the charge of a frantick person during his lunacie the common Lawyers use but onely Gardien or Gardian for both these And for the better understanding of our English law in this thing you must know that as Tutor is either Testamentarius or à Praetore datus est ex lege Atilia or lastly legitimus so we have three sorts of Gardeins in England one ordained by the Father in his last will another appointed by the Judge afterward the third cast upon the Minor by the law and custome of the land Touching the first a man having goods and Chattels never so many may appoint a Gardein to the body or person of his child by his last VVill and Testament until he come to the age of fourteen years and so the disposing or ordering of his substance until what time he thinketh meet and that is most commonly to the age of 21 years The same may he do iâ— he have lands to never so great a value so they hold not in capite of the King nor oâ— any other Lord by Knights service And in the former case if the Father appoint no Gardein to his Child the Ordinary
The rest touching this writ see in Fitzh nat brev fol. 75. See Misericordia Modo forma are words of Art in a Process and namely in the answer of the Defendant whereby he denyeth himself to have done the thing laid to his charge modo forma declarata Kitchin fol. 232. It signifieth as much as that clause in the Civil law Negat allegata prout allegantur esse vera Moitie commeth of the French moitiè id est coaequa vel media pars and signifieth the half of any thing Littleton folio 125. Monks Cloths anno 20 Hen. 6. cap. 20. Moniers monetarii Regist orig fol. 262. b. anno 1 Edw. 6. ca. 15. be ministers of the Mint which make and coyn the Kings mony It appeareth by some Antiquity which I have seen that in antient times our Kings of England had Mints in most of the Countries of this Realm And in the Tractate of the Exchequer written by Ockham I find that whereas Sheriffs ordinarily were tyed to pay into the Exchequer the Kings Sterling for such debts as they were to answer they of Northumberland and Cumberland were at liberty to pay in any sort of mony so it were silver And the reason is there given because those two Shires monetarios de antiqua institutione non habent Monstrance de droyt is as much as to say as shewing of his right It signifieth in our Common law a sute in Chancery to be restored to Lands or Tenements that indeed be mine in right though they were by some office found to be in possession of another lately dead See Stawnf praerog cap. 21. at large and Broke titulo Petition Of this also read Sir Edward Cokes Reports lib. 4. fo 54. b. c. The Wardens of the Sadlers Case Monstraverunt is a writ that lieth for tenents that hold freely by Charter in antient Demean being destreined for the payment of any toll or imposition contrary to their liberty which they do or should enjoy which se in Fitzh na br f. 14. Moriam is all one in signification with the French morion i. cassis a head-piece which word the Frenchman borroweth from the Italian morione anno 4 5 Phil. Mar. cap. 2. Morling aliâs mortling seemeth to be that wool which is taken from the skin of a dead sheep whether dying of the rot or being killed anno 27 H. 6. c. 2. This is written Morkin an 3 Jac. c. 18. Mort d'ancester See Assise Mortgage mortuum vadium vel mortgagium is compounded of two French words mort id est mors and gage id est pignus merces It signifieth in our Common law a pawn of land or tenement or any thing moveable laid or bound for mony borrowed peremptorily to be the Creditours for ever if the mony be not paid at the day agreed upon And the Creditour holding land or tenement upon this bargain is in the mean time called Tenent in mortgage Of this we read in the grand Customary of Normandy ca. 113. in these words Notandum insuper est quod vadiorum quoddam vivumqu oddam mortuum nuncupatur Mortuum autem dicitur vadium quod se de nihilo redimit acquietat ut terra tradita in vadium pro centum solidis quam cum obligator retrahere voluerit acceptam pecuniam restituet in solidum Vivum autem dicitur vadium quod ex suis proventibus acquiratur ut terra tradita in vadium pro centum solidis usque tres annos quae elapso tertio anno reddenda est obligatori vel tradita in vadium quousque pecunia recepta de ejusdem proventibus fuerit persoluta Glanvile likewise lib. 10. cap. 6. defineth it thus Mortuum vadium dicitur illud cujus fructus vel reditus interim percepti in nullo se acquietant So you see by both these Books that it is called a dead gage because whatsoever profit it yieldeth yet it redeemeth not it self by yielding such profit except the whole sum borrowed be likewise paid at the day See Skene de verb. significat eodem He that layeth this pawn or gage is called the Mortgager and he that taketh it the Mortgagee West parte 2. symb titulo Fines Sect. 145. This if it contain excessive usury is prohibited anno 37 H. 8. c. 9. Morimain manus mortua is compounded of two French words mort i. mors and main i. manus It signifieth in the Common law an alienation of Lands or Tenements to any Corporation Guild or Fratemity and their Successors as Bishops Parsons Vicars c. which may not be done without licence of the King and the Lord of the Manor The reason of the name proceedeth from this as I conceive it because the services and other profits due for such lands as Escheats c. commeth into a dead hand or into such a hand as holdeth them and is not of power to deliver them or any thing for them back again Magna Charta cap. 36. anno 7 Ed. pri commonly called the Statute of Mortmain and anno 18 Edw. 3. statut 3. cap. 3. anno 15 Rich. 2. cap. 5. Polydor. Virgil in the seventeenth Book of his Chronicles maketh mention of this Law and giveth this reason of the name Et legem hanc manum mortuam vocarunt quòdres semel datae collegiis sacerdotum non utique rursus venderentur velut mortuae hoc est usui aliorum mortalium in perpetuum ademptae essent Lex diligenter servatur sic ut nihil possessionum ordini sacerdotali à quoquam detur nisi Regio permissu But the former Statutes be something abridged by anno 39 Elizabeth cap. 5. by which the gift of land c. to Hospitals is permitted without obtaining of Mortmain Hotoman in his Commentaries de verbis feudal verbo Manus mortua hath these words Manus mortua locutio est quae usurpatur de iis quorum possessio ut ita dicam immortalis est quia nunquam haeredem habere desinunt Quâ de causâ res nunquam ad priorem dominum revertitur Nam manus pro possessione dicitur mortua pro immortali Sic municipium dicitur non mori l. An usus fructus 56. D. de usufr ligat quoniam hominibus aliis succrescentibus idem populi corpus videtur l. proponebatur 76. D. de Judiciis Haec Hotomanus and read the rest Amortizatio est in manum mortuam trar slatio Principis jussu Petrus Belluga in speculo principum fol. 76. Jus amortizationis est licentia capiendi ad manum mortuam Idem eodem where you may read a learned Tractate both of the beginning and nature of this Doctrine To the same effect you may read Cass de consuet Burg. pag. 348 387 1183 1185 1201 1225 1285 1218 1274. M. Skene de verbo signif saith that Dimittere terras ad manum mortuam est idem atque dimittere ad multitudinem sive univer sitatem quae nunquam moritur idque per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu Ã
duty in mony to be paid by the Sheriff upon his account in the Exchequer anno secundo tertio Ed. 6. cap. 4. Prest mony is so called of the French word Prest i. explicatus tromptus expeditus for that it bindeth those that have received it to be ready at all times appointed Primage is a duty due to the Mariners and Saylers for the loading of any ship at the setting forth from any Haven anno tricesimo secundo Henrici octavi capitulo decimo quarto Primier seisin prima seisina ad verbum signifieth the first possession It is used in the Common law for a branch of the Kings Prerogative whereby he hath the first possession of all lands and tenements through the Realm holding of him in chief whereof his tenant dyed seised in his demeasn as of fee and so consequently the rents and profits of them untill the heir if he be of age do his homage if he be under years untill he come to years See Stawnf praerog capite tertio Bracton libro quarto tract 3. cap. prim Primo beneficio See Beneficio Prince Princeps is a French word and taken with us diversly sometime for the King himself but more properly for the Kings eldest son who is Prince of Wales as the eldest Son to the French King is called Dolphire both being Princes by their nativity Master Fern in the glory of generosity page 138. For Edward the first to appease the tumultuous spirits of the Welch-men who being the antient Indigene of this Land could not in long time bear the yoak of us whom they call Strangers sent his wife being with child into Wales VVhere at Carnarvan she was delivered of a Son thereupon called Eaward of Carnarvan and afterward asked the VVelsh-men seeing they chought much to be governed by strangers if they would be quietly ruled by one of their own nation who answering him Yea Then quoth he I will appoint you one of your own Country-men that cannot speak one word of English and against whose life you can take no just exception and so named unto them his son born in Carnarvan not long before From which time it hath continued that the Kings eldest Son who was before called Lord Prince St ronf praerog cap. 22. fol. 75. hath been called Prince of Wales Stowes Annals pag. 303. See anno vicesimo septimo Henrici octavi cap. 26. et anno 28 ejusdem cap. 3. Principality of Chester anno 21 Rich. 2. cap. 9. See County palatinâ— and Cromptons divers jurisdictions fol. 137. Prior perpetual or dative et removeable an 9 R. 2. cap. 4. and anno 1 Ed. 4. cap. 1. paulo ante finem Lord prior of Saint Johns of Jerusalem anno 26 H. 8. cap. 2. Priors aliens Priores alieni were certain religious men born in France and governours of religious houses erected for outlandish men here in England which were by Henry the fifth thought no good members for this land after such conquest obtained by him in France and therefore suppressed Whose livings afterwards by Henry the sixth were given to other Monasteries and houses of learning Stowes Annals pag. 582. See anno 1 H. 5. cap. 7. but especially to the erecting of those two most famous colleges called the Kings Colleges of Cambridge and Faton Priority prioritas signifieth in our common law an antiquity of tenure in comparison of another not so antient As to hold by priority is to hold of a Lord more antiently than of another Old nat br fol. 94. So to hold in posteriority is used by Stawnf praerog cap. 2. fol. 11. And Crompton in his jurisdiction fol. 117. useth this word in the same signification The Lord of the priority shall have the custody of the body c. fol. 120. If the tenent hold by priority of one and by posteriority of another c. To which effect see also Fitzh nat br fol. 142. Bartolus in his Tractate de insigniis et armis useth these very words prioritas et posterioritas concerning two that beat one coat armour Prisage seemeth to be that custome or share that belongeth to the King out of such merchandize as are taken at sea by way of lawfull prize anno 31 Eliz. cap. 5. Prisage of Wines anno 1 H. 8. cap. 5. is a word almost out of use now called Butlerage it is a custome whereby the Prince challengeth out of every bark loaden with wine containing less than forty tun two tun of wine at his price Prise prisa commeth of the French prenare i. capere It signifieth in our Statutes the things taken by purveyours of the Kings subjects As anno 3 Edw. 1. cap. 7. et anno 28 ejusdem stat 3. cap. 2. It signifieth also a custome due to the King anno 25 ejusdem cap. 5. Register origin folio 117. b. Prisoner priso commeth of the French prisonnâ—er and signifieth a man restrained of his liberty upon any action civil or criminal or upon commandement And a man may be prisoner upon matter of Record or matter of fact prisoner upon matter of record is he which being present in Court is by the Court committed to prison only upon an arest be it of the Shyreeve Constable or other Stawnf pi cor li. pri ca. 32. fo 34 et 35. Privie commeth of the French privè i. familiaeris and signifieth in our Common law him that is partaker or hath an interest in any action or thing as privies of bloud Old nat br fol. 117. be those that be linked in consanguinity Every heir in tayl is privy to recover the land intayled eodem fol. 137. No privity was between me and the tenent Littleton fol. 106. If I deliver goods to a man to be carried to such a place and he after he hath brought them thither doth steal them it is felony because the privity of delivery is determined as soon as they are brought thither Stawn pl. co lib. prim cap. 15. fol. 25. Merchants privy be opposite to Merchants strangers anno 2 Edw. tertii cap. 9. cap. 14. anno ejusdem stat 2. cap. 3. The new Expositour of law-terms maketh divers sorts of privies as privies in estate privies in deed privies in law privies in right and privies in blood And see the examples he giveth of every of them See Perkins Conditions 831 832 833. and Sir Edward Cook lib. 3. Walkers case fol. 23. a. lib. 4. fol. 123. b. 124. a. where he maketh four kinds of privies viz. privies in bloud as the heir to his Father c. privies in representation as executors or administratours to the deceased privies in estate as he in the reversion and he in the remainder when land is given to one for life and to another in fee the reason is given by the Expositour of law-terms for that their estates are created both at one time The fourth sort of privies are privies in tenure as the Lord by escheat that is when the land escheateth to the Lord for
judic fol. 13.51 There is another writ of this name and nature eodem fol. 54. Rejoynder rejunctio signifieth in our Common law as much as Duplicatio with the Civilians that is an exception to a replication For the first answer of the Defendant to the Plaintiffs Bill is called an exception the Plaintiffs answer to that is called a Replication and the Defendants to that Duplicacation in the Civil law and a Rejoynder with us especially in Chancery West parte 2. symbol titulo Chancery sect 56. where he citeth these words out of Spigelius Est autem rejunctio seu duplicatio vel allegatio quae datur reo ad infirmandum replicationem actoris et confirmandum exceptionem Rei Relation relatio idem quod fictio juris to make a nullity of a thing from the beginning for a certain intent which had essence Cook lib. 3. Butler and Baker fol. 28. b. which in plainer terms may be thus expounded Relation is a fiction of the Law whereby something is for a special purpose imagined never to have been which in truth was Read the rest Release relaxtio commeth of the French Relasche i. cessatio relâ—xatio laxamentum in our Common law is thus defined A release is an Instrument whereby estates rights titles entries actions and other things be sometime extinquish'd sometime transferred sometime abridged and sometime enlarged Westm parte prim symb lib. 2. sect 509. And there is a Release in fact and a Release in law Perkins Graunts 71. A release in fact seemeth to be that which the very words expresly declare A release in law is that which doth acquite by way of conseqnent or intendment of Law An example whereof you have in Perkins ubi supra Of these how they be available and how not see Littleton at large lib. 3. cap. 8. fol. 94. of divers sorts of these Releases see the new book of Entries verbo Release Release relevium commeth of the French relever i. relevare and sign fieth in our Common law a certain sum of mony that the Tenent holding by Knights service grand sergeanty or other tenure for the which homage or regal service is due or by socage for the which no homage is due and being at full age at the death of his Ancestor doth pay unto his Lord at his entrance Bracton lib. 2. cap. 36. giveth a reason why it is called a relief viz. quia baereditas quae jacens fuit per Antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur Relevinm Of this you may read Briton cap. 69. in a manner to the same effect Of this also speaks the Grand Cnstomary of Normandy cap. 34. to this effect It is to be known that the Lord of the fee ought to have relief of the Lands which he held of him by homage when those dye of whom he had homage And that this is not only proper to us in England or Normandy appeareth by Hotoman in his Commentaries de verbis feud verbo Relevium who there defineth it thus Relevium est honorarium quod novus vasallus patrono introitus causa largitur quasi morte vasalli alterius vel alio quo casu feudum ceciderit quod jam à novo sublevetur and farther speaketh of it that which is worth the reading and contains great knowledge of antiquity See the like definition in Marantae singularibus verbo Relevium For the quantity of this relief see the Great Charter cap. 2. in these words If any of our Earls or Barons or any other our tenents which hold of us in chief by Knights service dye and at the time of his death his heir is of full age and oweth to us relief he shall have inheritance by the old relief that is to say the heir or heirs of an Earl for one whole Earldome one hundred pound the heir or heirs of a Baron for one whole Barony one hundred marks the heir or heirs of a Knight for one whole Knights fee one hundred shillings at the most And he that hath lesse shall give lesse according to the old custome of the fees Read also Glanvile lib. 9. cap 4. fol. 68. who saith that in his daies the relief of a Barony was not certain The heir in franck socage when he commeth to his full age after the death of his Ancestor shall double the rent that he was wont to pay to the Lord and that shall be in place of relief Old nat br fol. 94. Somewhat more hereof you may read in anno 28 Ed. prim statut prim and Kitchin fo 145. ca. Relief and Glanvile lib. 7. cap. 9. The Feudists also write of this at large Among others Vincentius de Franchis descis 121. saith that Relevii solutio est quaedam extrinsâ—ca praestatio à consuetudiue introducta quae non inest fendo quodq solvitur pro confirmatione seu renovatione investiturae possessionis See Heriot This Leo the Emperor Novella 13. calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By the antienter Civil law it is termed introitus l. penult sect Alumno Ï€. de legatis Skene de verb. signif saith that relief is a French word from the Latine relevare which is to relieve or take up that which is fallen For it is given by the tenent or vassal being of perfect age after the expiring of the wardship to his Lord of whom he holds his Land by Knight service that is by ward and relief and by payment thereof he relieves and as it were raiseth up again his lands after they were fallen down into his superiours hands by reason of wardship c. Remainder remanentia signifieth in our Common law a power or hope to enjoy lands tenements or rents after the estate of another expired For example a man may let land to one for term of his life and the remainder to another for term of his life Littleton cap. Atturnment fo 113. And this Remainder may be either for a certain term or in fee simpse or fee tayl as might be proved by many places in the law writers But in stead of the rest take Brook titulo Done Remainder fo 245. Glanvile lib. 7. cap. pri in fine hath these words Notandum quod nec Episcopus nec Abbas quia eorum Baroniae sunt de eleemozina Dom. Regis antecessornm ejus non possunt de Dominicis suis alâ—quam partem dare ad remanentiam sine assensu confirmatione Domini Regis Where it appears that Dare adremanentiam is to give away for ever To the same effect doth he use it cap. 9. ejusdem libri in these words speaking of the Lords of Manors during the minority of their wards Nihil tamen de haereditate de jure alienare possunt ad remanentiam In the like sort doth Bracton use it lib. 2. cap. 23. in fine and also lib. 4. tract 2. c. 4. nu 4. See the New book of Entries verbo Remainder
travers Stawnf praerog fo 96. to tend an averment Brit. cap. 76. Tender seemeth to come of the French Tendre i. tener delicatus and being used adjectively signifieth in English speech as much as it doth in French But in our Common law it is used as a verb and betokeneth as much as carefully to offer or circumspectly to endeavour the performance of any thing belongingunto us to tender As rent is to offer it at the time and place where and when it ought to be paid To tender his law of non summons Kitchin fo 197. is to offer himself ready to make his Law whereby to prove that he was not summoned See law See make Tenementis legatis is a Writ that lyeth to London or other corporation where the custome is that men may demise tenements by their last will as well as their goods and chatels to whom they list for the hearing of any controversie touching this matter and for the rectifying of the wrong Reg. orig f. 244. b. Tenant alias tenent tenens commeth either of the Latine tenere or of the French tenir and signifieth in our Common law him that possesseth Lands or tenements by any kind of right be it in fee for life or for years This word is used with great diversity of Epithits in the Law sometime signifying or importing the efficient cause of possession as Tenent in Dower which is she that possesseth land c. by vertue of her Dower Kitchin fol. 160. Tenent per statute Merchant Idem fol. 172. that is he that holdeth land by vertue of a Statute forfeited unto him Tenent in frank mariage Kitchin fol. 158. viz. he that holdeth land or tenement by reason of a gift thereof made unto him upon mariage between him and his wife Tenent by the courtesie Idem fol. 159. i. he that holdeth for his life by reason of a child begotten by him of his wife being an Inheritrix and born alive Tenent per elegit Idem fol. 172. i. he that holdeth by vertue of the writ termed Elegit Tenent in Mortgage Idem fol. 38. is he that holdeth by vertue of a mortgage or upon condition that if the lessor pay so much mony at such a day that he may enter and if not that the seassee shall have a fee simple fee tayl or freehold Sometime these Epithites import the manner of admittance as Tenent by the Verge in antient demeâ—n Idem fol. 81. is he that is admitted by the Rod in a Court of antient demesn Sometime the evidence that he hath to shew for his estate as Tenent by copy of Court roll which is one admitted Tenant of any Lands c. within a Manor that time out of the memory of man by the use and custome of the said Manour have been demisable and demised to such as will take the same in fee fee tayl for life years or at will according to the custome of the said manor West parte prim symb li. 2 sect 646 whom read more at large Again Tenent by charter is he that holdeth by feoffment in writing or other deed Kitchin fol. 57. Sometime these Epithites signifie that duty which the Tenent is to perform by reason of his tenure As Tenent by Knight service Tenents in burgage Tenent in soccage Tenent in frank fee tenent in villenage Sometime they import the estate of the Tenent or his continuance in the Land as Tenent in fee simple Kitchin fol. 150. Tenent in fee tayl Idem fol. 153. Tenent at the will of the Lord according to the custome of the manner Idem fo 132 165. Tenent at will by the Common law Idem eodem Tenent upon sufferance Idem fol. 165. Tenent of state of Inheritance Stawnford praeroge fol. 6. Sometime they contain a relation toward the Lord of whom he holdeth as tenent in chief i. he that holdeth of the King in the right of his Crown Fitzher nat br fol. 5. F. Tenent of the King as of the person of the King Idem eodem or as of some honor eodem Very tenent i. he that holdeth immediately of his Lord Kitchin fol. 99. For if there be Lord Mesn and tenent the tenent is very tenent to the Mesn but not to the Lord above Tenent paravailes pl. cor 197. Fitzh nat br fo 136. D. is the lowest Tenent and farthest distant from the Lord Paramount It seemeth to be Tenent Per availe See Dyers Commentaries fol. 25. nu 156. No tenent in right to the Lord but Tenent for the avowry to be made Littleton fol. 96. Sometime they have a relation between Tenents and Tenents in several kinds as Joynt tenents i. they that have equal right in lands and tenements and all by vertue of one title Litleton lib. 3. cap. 3. Tenents in Common be they that have equal right but hold by divers titles as one or more by gift or descent and others by purchase Idem eodem cap. 4. Particular tenent Stawnf Praerog fol. 13 that is he which holdeth only for his term as tenent in dower tenent by the courtesie or otherwise for life West parte 2. Symbol titulo Fines Sect. 13. G. See anno 32 H. 8. cap. 31. and Coke in Sir William Pellams case lib. 1. fo 15. a. they be termors for years or life See Plowden casu Colthirst fol. 22. b. Sole tenent Kitchin 134. i. he that hath none other joyned with him If a man and his wife hold for both their lives and the man dyeth he dyeth not sole tenent Idem eodem Several tenent is opposite to joynt tenents or tenents in common See Several tenenoy Tenent al praecip is he against whom the writ Praecipe is to be brought Cokes Reports lib. 3. The case of Fines fo 88. a. Tenent in demesn anno 13 Ed. 1. cap. 9. anno 32 H. 8. ca. 37. is he that holdeth the demeans of a manor for a rent without fervice Tenent in service anno 20 Ed. 1. stat 1 is he that holdeth by service v. Britton cap. 79. in principio cap. 96 Car fealtic c. â—â—el quaere whether he may be termed tenent in Demein that holdeth some of the demeans howsoever and he tenent in service which is a Free-holder to a Manor holding by service for the Free-holds of a Manor are not accounted of the demesn but only that which the Lord keepeth in his own hand or letteth out by copy according to the custome of the Manor Tenent by execution anno 32 Henry 8. cap. 5. is he that holdeth Land by vertue of an execution upon any Statute Recogn zance c. Tendeheved decanus vedcaput decem familiarum of this see Rogen Hovedon parte poster suorum annalium fol. 346 a. See Frank pledge Tenement tenementum is diversly used in the Common law most properly it signieth a house or home Stall but in a larger sig nfication it is taken either for house or land that a man holdeth of another And joyned with the Adjective Frank in our Lawyers French it
distinction groweth from an event after the death of him that covenanteth to warrant But to make this plain I find warranty to be used equivocally signifying one sort the contract or covenant of warranty first made as appeareth by Bracton in the place formerly noted and in another sort the very effect and performance of this contract either by the Warrenter or his heirs when he or they be by the tenent thereunto vouched or called As also I shew out of Bracton lib. 5. tract 4. cap. pri nu 2. in these words Inprimis videndum est quid sit warrantizatio Et sciendum quòd warrantizare nihil aliud est quà m defendere acquietare tenentem qui warrantum vocabit in seisina sua c. VVith whom agreeth Fleta saying that Warrantizare nihil aliud est quam possidentem defendere lib. 5. ca. 15. § 1. lib. 6. cap. 23. quod lege per totum And the former division of lineal and collateral warranty rather belonging to warranty in the second signification than the former And that this way it is imperfect or at the least obscure I think it not hard to declare First to shew this I note out of Bracton who may be called to warranty And he lib. 5 tract 4. cap. pri num 5. saith thus Videndum est quis vocari possit ad warrantum sciendum quod tam maseulus quam foemina tam minor quà m major dism tamen si minor vocetur remane at platitum de warrantia in suspenso usque ad aetutem uisicausa fuerit ita favorabilis quòd aetas expectari non debeat sicut ex causa Dotis Item non solum vocandus est ad warrantum ille qui dedit vel vendidit verum etiam vocandi sunt eorum haeredes-descendentes in infinitum propter verba in Chartis contenta Ego haeredes mei warrantizabimus tali haeredibus suis c. Et in quo casu tenentur haeredes warrantizare sive sini propinqui sive remoti remotiores vel remotissimi Et quod de haeredibus dititur idem dici poterit de assignatis et de illis qui sunt locoallorum haeredum sicut sunt capitales Domini qui tenentibus suis quasi succedunt vel propter aliquem defectum vel propter aliqund delictum sicut de eschaetis Dominorum By which words we perceive that the burthen of this warranty is not tyed to heirs only be they in the descending or collateral line but that under this word Haeredes are comprised all such as the first warranters Lands afterwards come unto either by descent or otherwise ex causa lueraâ—iva So that if a man have twenty children yet if he will and may give his land to a Stranger leaving his children no land that Stranger in this case is his assign and is contained under this word Heir So if he commit felony after such warranty covenanted and forfeited his lands to his Lord by escheat the Lord is quesihares in this case and lyable to the warranty sormerly passed And in these two later cases warranty in the second signification seemeth to be neither lineal nor collateral and at the least as Littleton and the other Author have defined or by example expressed them But let us define these two species as they be wherefore lineal warranty is that which he is called unto by the Tenent upon whom the land warranted had descended if the warrantee had not been covenanted For example A. selleth to B. twenty acres land with clause of warranty and afterward dyeth leaving issue C. soon after B. is impleaded for this Land by D. and voucheth C. This is called a lineal warranty because but for it the land had descended from A. to C. Warranty collateral is that whereunto he is called by the Tenent upon the covenant of him from whom the Land could not descend to the party called For example B. the Son purchaseth Tenements in fee whereof A. his Father disseiseth him and selleth them to C. with a clause of warranty A. being dead C. is impleaded for the Tenements and calleth B. to warranty This warranty whereunto B. is called ia collateral because the Tenements if the warranty had not been covenanted by A. could not have descended from him to his Father A. for they were his own by purchase Many other examples there be of this in Littleton And this very case he maketh his example of warranty by disseisin as also of warranty collateral which plainly argueth that warranty by disseisin and warranty collateral are not distinct members of warrantee but may be confounded though one warranty may carry both names in divers respects For there is some warranty collateral that beginneth not by disseisin For example A. Tenent in tayl alienated to B. in fee and dyeth leaving issue C. afterward D. Brother to A. and Uncle to C. releaseth to B. with warranty and dying leaveth B. his heir being next of blood unto him This warraaty is collateral because it descendeth upon C. from his Vncle D. and yet it beginneth not by disseisin of his said Uncle Warranty hath a double effect one to debar him upon whom it descendeth from the first warranter as his next of blood from claiming the land warranted and another to make it good to the Tenent if by him he be vouched thereunto or else to give him as much other land by exchange But as the former of these effects taketh place with all heirs except those to whom the Land warranted was entailed and that reap no equivalent benefit by the first warranter anno 6 Ed. prim cap. 3. so the later prejudiceth none that receiveth not sufficient Land from the first warranter to make it good Bracton lib. 5. tractat 4. cap. 8. num prim cap. 13. num 2. In the Customary of Normandy cap. 5. you have vouchment de garant which the Interpreter translateth Vocamentum Garanti a voucher or calling of the warranter into the Court to make good his sale or gift Warrantia diei is a writ lying in case where a man having a day assigned personally to appear in Court to any action wherin he is sued is in the mean time by commandment imployed in the Kings service so that he cannot come at the day assigned This writ is directed to the Justices to this end that they neither take nor record him in default for that day Register original fol. 18. Of this you may read more in Fitzherb nat brev fol. 17. and fee Glanvile lib. prius cap. 8. Warrantia chartae is a writ that lyeth properly for him who is infeoffed in land or tenements with clause of warranty and is impleaded in an Assise or Writ of Entry wherein he cannot vouch or call to warranty for in this case his remedy is to take out this writ against the seoffor of his heir Regist. origin fol. 157. Fitzh nat brev fol. 134. Of this yon may likewise read Fleta lib. 6. cap. 35. and West parte 2. symb
which doctrine Fitzherbert in his Natura brevium fol. 112. E. extendeth thus far that if any of the goods be cast upon the dry Land by any in the ship it is no wreck subject to the Prerogative for by this some of the Ship are presumed to come to land and still to have a custody of the goods Cook ubi supra This in the Grand Customary of Normanny cap. 17. is called varech and latined veriscum where it appeareth that the like law to ours was in Normandy almost in all points But some sorts of their precious Merchandise do by their law appertain to the Duke by his Prerogative though a just challenge of the goods be made within the year and day The Emperors of Rome made no advantage of this pitifull event as appeareth titulo De Naufragiis 11. Cod. And it appeareth that Richard the first had some remorse of poor sea-mens miseries in this case For he quietum clam evit wreck suis subditis Rog. Hoveden parte poster suerum annâ—l fol. 386. Of this M. Skene de verb. siguif speaketh to this effect wreck signifieth a power liberty and prerogative appertaining to the King or to any person to whom the same is granted by him by feoffment or any other disposition to take up and gain such goods as are ship-broken or fall to him by escheat of the sea Writ breve is that with our Common Lawyers in Sir Thomas Smiths judgement lib. 2. de Repub. Anglorum ca. 9. which the Civilians call Actionem sive formulam But I am rather of his judgement that hath added the marginal note unto him saying that Actio is the parties whole sute and that Breve is the Kings precept whereby any thing is commanded to be done touching the sute or action as the Defendant or Tenent to be summoned a distresse to be taken a disseisin to be redressed c. And these writs are diversly divided in divers respects Some in respect of their order or manner of granting are termed original and some judicial Original writs be those that are sent out for the summoning of the Defendant in a personal or Tenent in a real action or other like purpose before the sute beginneth or to begin the sute thereby Those be judicial that be sent out by order of the Court where the cause dependeth upon occasion growing after sute begun Old nat brev fol. 51. And Iudicial is thus by one sign known from the Original because the Teste beareth the name of the Chief Iustice of that Court whence it commeth where the Original beareth in the Teste the name of the Prince Then according to the nature of the action they be personal or real and real be either touching the possession called writs of Entry or the property called writs of right Fitz. nat br sparsim per totum Some writs be at the sute of a party some of office Old nat br fol. 147. Some ordinary some of privilege A writ of privilege is that which a privileged person bringeth to the Court for his exemption by reason of some privilege See Procedendo See the new book of Entries verbo Privilegt See Brief Writ of Rebellton See Commission of Rebellion Writer of the Tallies Scriptor talliarum is an Officer in the Exchequer being Clerk to the Auditor of the Receipt who writeth upon the Tallies the whole letfers of the Tellers bills Y. YA YArd lands Virgata terrae is a quantity of land called by this name of the Saxon Gyrdlander but not so certain a quantity as that it is all one in all places For in some Countries it containeth 20 acres in some 24. in some 30. as M. Lamberd saith in his explication of Saxon words verbo virgata terrae This Yard land Bracton calleth virgatam terrae lib. 2. cap. 10. et 37. but he expresseth no certainty what it containeth YE Year and day annus et dies is a time thought in construction of our Common law fit in many cases to determine a right in one and to work an usucapion or prescrition in another As in a case of an estray if the owner Proclamations being made chalenge it not within that time it is forfeit So is the year and day given in case of appeal in case of descent after entry or claim of no claim upon a fine or writ of right at the Common law so of a villein remaining in antient demean of the death of a man sore bruised or wounded of Protections Essoins in respect of the Kings service of a wreck and divers other cases Coke vol. 6. fol. 107. b. And that touching the death of a man seemeth an imitation of the Civil Law Nam si mortiferè fuerit vulneratus et posteà post longum intervallum mortuus fit inde annum numerabimus secundum Iulianum l. ait lex n. ad legem Aquiâ— Year day and wasto annus dies et vastum is a part of the Kings Prerogative whereby he challengeth the profits of their lands and tenements for a year and a day that are attainted of petit treason or felony whosoever be Lord of the Manor whereunto the lands or tenements do belong and not only so but in the end wasteth the tenement destroyeth the houses rooteth up the woods gardens pasture and ploweth up meadows except the Lord of the fee agree with him for the redemption of such waste afterward restoring it to the Lord of the fee wherof you may read at large Siawnf prarog cap. 16. fol. 44. et seq YO Yoman seemeth to be one word made by contraction of two Danish words young men which I gather out of Canutus Charter of the Forest set out out by M. Manwood parte prim fol. prim num 2. in these words Sunt sub quolibet horum quatuor ex mediocribus hominibus quos Angli Legespend â—uncupant Dani vero yong men vecaut locati qui curam et onus tum viâ—idâ—s tum veneris suscipiant These M. Cambden in his Britan. pag. 105. placeth next in order to Gentlemen calling them Iugenuos whose opinion the Statute affirmeth anno 6 R. 2. cap. 4 Whereunto adde the Statute anno 20. ejusdem Regis cap. 2. Sir Thomas Smith in his Repub. Anglor lib. prim cap. 23. calleth him a Yoman whom our Laws call legalem hominem which as he saith is in English a â—ee man born that may dispend of his own free land in yearly revenue to the sum of 40 shillings sterling Of these he writeth a good large discourse touching their estate and use in this Common wealth The former etymologie of the name he liketh not making question whether it come of the Dutch Yonger yea or not which in the Low-countries signifieth a mean Gentleman or a gay fellow but he that hath added the marginal notes to that book seemeth to draw it from the Saxons Geman which signifieth a maried man M. Verstegan in his restitution of decayed intelligence cap. 10. writeth that Gemen among the antient Teutonicks and Germein among the modern signifieth as much as common and that the first Letter G. is in this word as in many others turned into Y. and so writeth Yemen and that therefore Yemen or Yeomen signifieth so much as Commoner Yoman signifieth an Officer in the Kings house which is in the middle place between the Sergeant and the Groom as Yoman of the Chaundry and Yoman of the Scullery an 33 Hen. 8. cap. 12. Yoman of the Crown anno 3 Ed. 4. cap. 5. anno 22 ejusdem cap. 1. anno 4 H. 7. cap. 7. This word Yongmen is used for Yomen in the Statute anno 33 H. 8. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS