to vs reliefe he shall haue inheritance by the old Reliefe that is to say the heire or heires of an Earle for one whole Earldome one hundred pound the heire or heires of a Baron for one whole Baronie one hundred merkes the heire or heires of a Knight for one whole Knights fee one hundred shillings at the most And he that hath lesse shall giue lesse according to the old custome of the fees Reade also Glanvile lib. 9. cap. 4. fol. 68. who saith that in his dayes the Reliefe of a Baronie was not certaine The heire in francke soccage when he commeth to his full age after the death of his auncester shall double the rent that he was wont to pay to the Lord and that shall be in place of reliefe old nat br fol. 94. Somewhat more hereof you may reade in anno 28. Ed. prim statut prim and Kitchin fol. 145. ca. Reliefe and Glanvile lib. 7. cap. 9. The Feudists also write of this at large Among others Vincentius de Franchis descis 121. saith that Relevii solutioest quaedam extrinseca praestatio à consuetudine introducta quae non inest feudo quodque soluitur proconsirmatione seu renouatione investiturae possessionis See Heriot This Leo the Emperour Novella 13. calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By the auncienter ciuile lawe it is termed introitus l. penult § Alumno Πde legatis Skene de verb. signif saith that Reliefe is a French word from the Latine relevare which is to releeue or take vp that which is falen For it is giuen by the tenent or vassall being of perfect age after the expiring of the wardeship to his Lord of whome he holds his land by Knights seruice that is by ward and reliefe and by payment thereof he relieues and as it were raiseth vp againe his lands after they were fallen downe into his superiours hands by reason of wardship c. Remainder remanentia signifieth in our common law a power or hope to inioy lands tenements or rents after the estate of another expired For example a man may let land to one for terme of his life and the Remainder to another for terme of his life Litleton cap. Atturnment fol 113. And this Remainder may be either for a certaine terme or in fee simple or fee taile as might be proued by many places in the law writers But in steed of the rest take Brooke titulo Done Remainder fol 245. Glanuile lib. 7. ca. pri in fine hath these words Not andum quod nec Episcopus nec Abbas quiaeorum Baroniae sunt de eleemozina Domini Regis antecessorum eius non possunt de Dominicis suis aliquam partem dare ad remanentiam sine assensu confirmatione Demini Regis Where it appeareth that Dare ad remanentiam is to giue away for euer To the same effect doth he vse it cap. 9. eiusdem libri in these words speaking of the Lords of mancrs during the minority of their wards Nihil tamen de haereditate de iure alienare possunt ad remanentiam In the like sort doth Bracton vse it lib. 2. cap. 23. in fine and also lib. 4. tracta 2. cap. 4. nu 4. See the new booke of Entries verbo Remainder Remembrancers of the Exchequer Rememoratores be three officers or clerks one called the Kings Remembrancer anno 35. El. cap. 5. The other the Lord Treasurers Remembrancer vpon whose charge it seemeth to lye that they put all Iustices of that court as the Lord Treasurer and the rest in remembrance of such things as are to be called on and delt in for the Princes behoofe The third is called the Remembrancer of the first fruites Of these you may read something anno 5. Rich. 2. stat pri cap. 14. 15. to the effect aboue specified These anno 37. Ed. 3. cap. 4. be called clerks of the Remembrance It seemeth that the name of this officer is borowed from the Ciuilians who haue their Memoriales qui sunt notarii Cancellariae in regno subiects officio Questoris Lucas de penna C. lib. 10. tit 12. nu 7. The kings Remembrancer entreth in his office all recognicances taken before the Barons for any the Kings debts for apparences or for obseruing of orders He taketh al bonds for any of the kings debts or for apparance or for obseruing of orders and maketh proces vpon them for the breach of them He writeth proces against the collectors of customes subsidies and fiueteenthes for their accompts All informations vpon penall statutes are entred in his office And all maters vp on English bils in the Exchequer chamber are remaining in his office He maketh the bils of compositions vpon penall lawes taketh the stalments of debts maketh a record of a certificate deliuered vnto him by the clerk of the Starre-chamber of the fines there set and sendeth them to the pipe He hath deliuered vnto his office all maner of indentures fines and other euidences whatsoeuer that concerne the assuring of any lands to the Crowne He yearely in crastino animarum readeth in open court the statute for the elections of Shyreeues and giueth those that chuse them their oath he readeth in open court the oath of all the officers of the court when they are admitted The treasurers remembrancer maketh proces against all Shyreeues escheators receiuers and bayliffs for their accoumpts He maketh proces of fieri facias and extent for any debts due to the King either in the pipe or with the auditors He maketh proces for all such reuenew as is due to the King by reason of his tenures He maketh a record whereby it appeareth whether Shyreeues and other accountants pay their profers dew at Easter and Michelmas He maketh another record whereby it appeareth whether Shyreeues and other accountants keepe their daies of prefixion All extreats of fines issues and amerciaments set in any courts of Westminster or at the assises or sessions are certified into his office and are by him deliuered to the clerk of extreats to write proces vpon them He hath also brought into his office all the accoumpts of customers controllers and other accoumptants to make thereof an entry of record The Remembrancer of the first fruites taketh all compositions for first fruites and tenthes and maketh proces against such as pay not the same Remittere commeth of the French remettre i. restituere reponere and signifieth in our common law a restitution of one that hath two titles to lands or tenements and is seised of them by his later title vnto his title that is more auncient in case where the later is defectiue Fitz. nat br fol. 149. F. Dyer fol. 68. nu 22. This in what case it may be graunted to any man see in Brooke titulo Remitter and the terms of law The Doctor and Student of this mater hath these words if land discend to him that hath right to that land before heshalbe remitted to his beter title if he will capite nono fol. 19. b.
set there seuerall seales See the rest where at the last he sheweth the cause of the name viz for that consisting of more partes eche parte is indented or cut one of them into the other that by the cut it may appeare they belonge to one busines or contract A deede poll or polled he describeth thus Sect. 46. Q. A polled deede is a deede testifying that onely the one of the parties to the bargaine hath put his seale thereunto after the maner there by him described which reade for your beter vnderstanding See the newe Tearmes of lawe verbo Fait where he sheweth that each deed consisteth of 3. points writing sealing and deliuerie Deere Hayse anno 19. H. 7. cap. 11. seemeth to be an Engine of cords to catch Deere De essendo quieium de relovio is a writ that lyeth for them which are by priuiledge freed from the payment of tolle which reade at large in Fitzh nat br fol. 226. Defalt defalta commeth from the French Defaut and is an offence in omitting that which we ought to doe West part 2. symbol titulo Indictment sect 2. Of this hath Bracton a whole tractats lib. 5. tractat 3. By whome it appeareth that a default is most notoriously taken for non appearance in court at a day assigned Of this you may reade also in Fleta lib. 6. cap. 14. Defeisance defeisantia commeth of the French Desfaire or Deffaire i. infectum reddere quod factumest and signifieth in our common lawe nothing but a condition annexed to an act as to an obligation a recognizance or statute which performed by the obligee or recognizee the act is disabled and made voide as if it neuer had bene done whereof you may see West at large part 1. symb li. 2. sect 156. Defendant defendens is he that is siewed in an action personall as tenent is he which is siewed in an action reall Tearmes of the lawe Defendemus is an ordinarie word in a feofment or donation and hath this force that it bindeth the donour and his heyres to defend the Donee if any man goe about to laye anie seruitude vpon the thing giuen other then is contained in the donation Bract. lib. 2. cap. 16. num 10. See also Warrantizabimus Acquietabimus Defender of the faith defensor fides is a peculiar title giuen to the King of England by the Pope as Catholicus to the king of Spaine and Christianissimus to the French king It was first giuen by Leo decimus to king Henry the 8. for writing against Martin Luther in the behalfe of the Church of Rome then accounted Domicilium fidei Caholicae Stowes annals pag. 863. Deforsour Deforciator commeth of the french For ceur i. expugnator It is vsed in our common law for one that ouercommeth and casteth out by force and differeth from disseisour first in this because a man may disseise another without force which act is called simple disseisin Britton ca. 53. next because a man may deforce another that neuer was in possession as for example if more haue right to lands as commō heires and one entring keepeth out the rest the law saith that he deforceth them though he doe not disseise them Old nat br fol 118. and Litleton in his chapter Discontinuance fol. 117. faith that he which is infeoffed by the tenent in taile and put in possession by keeping out the heire of him in reuersion being dead doth deforce him though he did not disseise him because he entred when the tenent in taile was liuing and the heire had noe present right And a deforsour differreth from an Intrudour because a man is made an Intrudour by a wrongfull entry only into land or tenement voide of a possessour Bracton li 4 ca pri and a deforsour is also by houlding out the right heire as is abouesaide Deliuerance See Repligiare Demaund Demanda vel Demandum commeth of the french Demande i. postulatio postulatus and signifieth a calling vpon a man for anything due It hath likewise a proper signification with the common lawyers opposite to plaint For the pursiute of all ciuill actions are either demaunds or plaints and the persyewer is called demaundant or plaintife Viz Demandaundant in actions reall and plaintife in personall And where the party persiewing is called demaundāt there the party persiewed is called tenent where plaintife there defendant See terms of law verbo Demaundant Demy haque See Haque and Haquebut Demaine Dominicum is a french word otherwise written Domaine and signifieth Patrimonium domini as Hotoman saith in verbis feudalibus verbo Dominicum where by diuers authorities he proueth those lands to be dominicum which a man holdeth originally of himselfe and those to be feodum which he holdeth by the benefite of a superiour Lord. And I find in the ciuill law Rem dominicam for that which is proper to the Emperour Cod. Ne rei dominicae vel templorum vindicatio temporis praescriptione submoueatur being the 38. title of the 7. booke And res dominici iuris i. reipub in the same place And by the word Domanium or Demanium are properly signified the kings lands in Fraunce appertaining to him in propertie Quia Domanium definitur illud quod nominatim consecratum est vnitum incorporatum Regiae coronae vt scripsit Chopinus de domanio Franciae tit 2. per legem Siquando 3. Cod. de bon vacan lib. 10. Mathaeus de Afflict is in constit Siciliae li. 1. tit De locatione Demanii 82. which may be called Bona incorporata in corpus sisci redacta Skene de verborum signif verb. Terrae Dominicales In like maner doe we vse it in England howbeit we here haue no land the Crowne land onely excepted which holdeth not of a superior For all dependeth either mediatly or immediately of the Crowne that is of some honour or other belonging to the Crowne and not graunted in fee to any inferior person Wherefore no common person hath any demaynes simply vnderstood For when a man in pleading would signifie his land to be his owne he saith that he is or was seised thereof in his demaine as of fee. Litleton li. 1. cap. 1. Whereby he signifieth that though his land be to him and his heyres for euer yet it is not true demaine but depending vpon a superior Lord and holding by seruice or rent in liewe of seruice or by both seruice and rent Yet I find these words vsed in the kings right anno 37. H. 8. cap. 16. and 39. Eliz. cap. 22. But the application of this speech to the king and crowne land is crept in by errour and ignorance of the word Fee or at least by vnderstanding it otherwise then of the Feudists it is taken But Britton cap. 78. sheweth that this word Demeyne is diuersly taken sometime more largely as of lands or tenements held for life c. and sometime more strictly as for such onely as are generally held in fee. This word somtime is vsed for
learned men in the lawe reteined of councell with the King in the said court Of this Court M. Gwin in the preface to his readings thus speaketh The court of the Duchy or Countie Palatine of Lancaster grew out of the graunt of king Edward the third who first gaue the Dutchy to his sonne Iohn of Gawnte and endowed it with such royall right as the Countie Palatine of Chester had and for as much as it was afterward extinct in the person of king Henry the fourth by reason of the vnion of it with the Crowne the same king suspecting himselfe to bee more rightfully Duke of Lancaster then king of England determined to saue his right in the Dutchy whatsoeuer should befal of the Kingdome and therefore hee separated the Dutchy from the Crowne and setled it so in the naturall persons of himselfe and his heires as if he had bin no king or Politique bodie at all In which plight it continued during the reigne of K. Henry the 5. and Henry the 6. that were descended of him But when King Edw. the 4. had by recouery of the Crowne recontinued the right of the house of Yorke hee feared not to appropriate that Dutchy to the Crowne againe and yet so that hee suffered the Court and Officers to remaine as he founde them And in this maner it came together with the Crowne to King Henry the 7. who liking well of that policy of King H. the 4. by whose right also hee obteined the Kingdome made like separation of the Dutchy as hee had done and so left it to his posterity which doe yet inioy it Dumfuit infra aetatem is a writ which lyeth for him that before hee came to his full age made a feofment of his land in fee or for terme of life or in taile to recover them againe from him to whome he conveied them Fitzh nat br fol. 192. Dum non fuit compos mentis is a writ that lieth for him that being not of sound memory did alien any lands or tenements in fee simple fee tayle for terme of life or of yeeres against the alienee Fitzh nat br fol. 202. Duplicat is vsed by Crompton for a second leters patent graūted by the Lord Chauncelour in a case wherein he had formerly done the same and was therefore thought void Cromptons Iurisd fol. 215. Dures Duritia commeth of the French dur i. durus vel durete i. duritas and is in our common lawe a plee vsed in way of exception by him that being cast in prison at a mans suite or otherwise by beating or threats hardly vsed sealeth any bond vnto him during his restraint For the lawe holdeth this not good but rather supposeth it to be constrained Brooke in his Abridgement ioyneth Dures and Manasse together i. duritiam minas hardnes and threatning See the newe booke of Entries verbo Dures and the new Termes of law E A EAlderman Aldermannus among the Saxons was as much as Earle among the Danes Camden Britan. pag. 107. If yee goe to the true etimologie of the word mee thinketh it shoud sound more generally so much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the Graecians or Senator with the Romanes who were rather Councellers at large then bestowed vpon any particular office as Comites were See Countie And that signification we retaine at this day almost in all our Cities and Borowes calling those Aldermen that are Associates to the Chiefe Officer in the common councell of the Towne anno 24. H. 8. ca. 13. or sometime the cheife officer himselfe as in Stawnford Earle Comes in M. Camdens opinion pag. 107. is a word made by the Danes of Ealderman a word of the Saxons M. Lamberd seemeth notwithstanding to acknowledge that Earle is originally a Saxon word Explica of Sax. words verbo Paganus and interpreteth it Satrapam which word the Romaines borowing of the Persians applied to those that were praefecti provinciarum M. Verslegan in his restitution of decaied intelligence deriueth it from two Netherland words ear i. honor and ethel i. nobilis wherein I leaue the reader to his owne iudgement This title in auncient time was giuen to those that were associates to the king in his councels and Marshall actions as Comes was to those that folowed the Magistrates in Roome and executed their offices for them as their deputies and died alwaies with the man Zasius hath of this word thus much Comitū originem in Doctoribus non invenimus sed noveris cam dignitatem vetustissimam esse Nam Cor. Tacitus in libello de Germania scribit apud priscos vsu fuisse receptum vt cuilibet principi seu Duci exercitus duodecim comites assignarentur ideo dictos quia comitarentur eos à Ducum latere non decederent Comitū itaque originē Germanis moribus ortum esse dictus receptissimus autor testis est Quapropter quod in duodecimo libro Codicis aliqui tituli de Comitibus largitionum c. inscribuntur usurpationem Imperatoris ex Germanorum ritibus sumptam credo But the Conquerour as M. Camd. saith gaue this dignitie in fee to his nobles annexing it to this or that countie or province and allotted them for their maintenance a certaine proportion of monie rising from the Princes profits for the pleadings and forfeitures of the province For example he bringeth an aunent Record in these words Henricus 2. Rex Anglie his verbis Comitem creauit Sciatis nos fecisse Hugonet Bigot Comitē de Nortfolk sc de tertio denario de Norwic. Northfolke sicut aliquis comes Angliae liberiùs comitatum suum tenet Which words saith the same author an ould booke of Battell Abbie thus expoundeth Consuetudinaliter per totam Angliammos antiquitùs inoleverat Comites provinciarum tertium denarium sibi obtinere inde Comites dicti And another booke without name more fully Comitatus a Comite dicitur aut vice versa Comes autem est quia tertiam portionem eorum quae de placitis proveniunt in quolibet Comitatu percipit Sed non omnes Comites ista percipiunt sed hii quibus Rex haereditariò aut personaliter concessit You may reade M. Fern in Lacyse nobility something to this effect pa. 12. But he saith that one Duke or Earle had diuers Shires vnder his gouernment as a viceroy and had lieuetenants vnder him in euery particular Shire called a Shyreeue That one Earle was dignified by the appellation or more rhen one Shyreeue it appeareth by diuers of our auncient Statutes as namely by the sentēce of excommunication pronounced by the Bishops against the infringers of the great Charter charter of the forest anno 38. H. 3. Roger Bigot is named Earle both of Northfolke and Southfolke and anno 1. Ed. 3. Thomas Earle of Lancaster and Leycester Humsrey Bohum Earle of Hereford and Essex Dyer fo 285. nu 39. At these daies as long since the kings of England make Earles by their charters of this or that Countie giuing them no
falsi Falsi crimen propriè dicitur quod vtilitatis priuatae causa factum est Connanus li. 5. ca. 7. nu 4. Ad esse falsitatis tria requiruntur mutatio veritatis dolus quod alteri sit nocivum Quorum si alterum desit falsitas non est punibilis Hostiensis Azo in suis summis Forister See Forester Formdon Breve formatum donationis is a writ that lyeth for him that hath right to any lands or tenements by vertue of any entayle growing from the statute of Westm 2. cap. 1. It lyeth in three sorts and accordingly is called forma donationis or formdon in the descender formdon in the reverter or formdon in the remainder Formdon in the descender lyeth for the recouery of lands c. giuen to one and the heyres of his bodie or to a man and his wife and the heyres of their two bodies or to a man and his wife being cosin to the donour in franke mariage and afterward alienated by the Donee For after his decease his heyre shall haue this writ against the tenent or alience Fitz. nat br fol. 211. He maketh three sorts of this formdon in the descender The first is in the maner now expressed the second is for the heire of a coparcener that alienateth and dieth fol. 214 The third is called by him In simul tenuit fol. 216. which lyeth for a coparcener or heire in Gauelkind before partition against him to whome the other coparcener or heire hath alienated and is dead Formdon in the reuerter lyeth for the donour or his heires where land entayled to certaine and their issue with condition for want of such issue to reuert to the donour and his heires against him to whom the Donee alienateth after the issue extinct to which it was entayled Fitzh nat br fol. 219. Formdon in the remainder lyeth where a man giueth landes in tayle the remainder to another in tayle and afterward the former tenent in tayle dieth without issue of his bodie and a stranger abateth then he in the remainder shall haue this writ Fitz. nat br fol. 217. See the Register original fol. 238. 242. 243. of this see the new booke of Entries verb. Formdon Forsechoke seemeth to signifie originally as much as forsaken in our moderne language or derelictum with the Romaines It is especially vsed in one of our statutes for land or tenements seised by the Lord for want of seruices due from the tenent and so quietly held and possessed beyond the yeare and day As if we should say that the tenent which seeing his land or tenements taken into the Lords hand and possessed so long taketh not the course appointed by lawe to recouerthem doth in due presumption of lawe disavow or forsake whatsoeuer right he hath vnto them See the statute anno 10. Ed. 1. cap. vnico Forstall is to be quit of amerciaments and catels arrested within your land and the amerciaments thereof comming New termes of lawe Forstalling forstallatio is partly french for Estaller is in that tongue as much as merces exponere expedire explicare or to shew wares in a market or faire It signifieth in our common law the buying or bargaining for any victuals or wares comming to be sould toward any faire or market or from beyond the seas toward any city port hauen creeke or roade of this realme and before the same be there anno 51. H. 3. stat 6. West parte 2. Simbol titulo indictments sect 64. Forstaller in Cromptons Iurisdiction fol. 153. is vsed for stopping of a deere broken out of the forest from returning home againe or laying betweene him and the forest in the way that he is to returne See Regratours and Engrossers See Cromptons Iustice of peace fol. 69. a. The author of the new terms of law defineth it thus Forstalling Forstallamentum is the buying of corne cattell or other merchandies by the way as it commeth toward the faire or market to be sould to the intent to sell the same againe at a more high and deere price Fleta saith thus of it significat obtrusionem vtae vel impedimentum transitus fugae aueriorum li. 1. cap. 47. Fortescue was a learned Lawyer Lord Chauncelor in Henry the 6. dayes who writ a booke in the commendation of our common lawes Fortlet forteletum commeth nete the french fortelet i. valenticulus forticulus and signifieth in our common lawe a place of some strength old nat br fol. 45. This in other countries is written fortalitium and signifieth castrum Scraderus select practabil quest § 12. nu 7. 8. Fother is a weight of twenty hundred which is a waine or cartloade Speight in his Annot. vpon Chawcer Fourche Assorciare seemeth to come of the french fourcher i. titubare liuguà and signifieth in our common lawe a putting off prolonging or delay of an action And it appeasieth no vnpleasant metaphor for as by stammering we draw out our speech not deliuering that we haue to say in ordinary time so by sourching we prolong a suite that might be ended in a shorter space To sourch by essoine Westm 1. cap. 24. anno 3. Ed. prim where you haue words to this effect Coparceners Ioint-tenants and Tenents in common may not sourch by essoine to essoine seuerally but haue only one essoine as one sole tenent may haue And anno 6. Ed. 1. ca. 10. you haue it vsed 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 balles of great dogges feet in the forest See Expeditate And to be quit of footegeld is a priuiledge to keepe dogges within the forest vnlawed without punishment or controlment Cromptons Iurisdict fol. 197. Manwood parte pri of his forest lawes pag. 86. Fowles of warren See Warren Founder is he that melteth mettall and maketh any thing of it by casting it into a mold c. anno 17. Rich. 2. cap. 1. deriued of the verbe fundere to powre Franchise libertas franchesia commeth of the french franchise so signifiing it is taken with vs for a priuiledge or an exemption from ordinarie iurisdiction and sometime an immunitie from tribute It is either personall or reall Cromp. Iurisd fol. 141. that is belonging to a personimmediatly or else by meanes of this or that place or court of immunitie whereof he is either chiefe or a member In what particular things franchises commonly consist See Britton cap. 19. Franchise royall anno 15. R. 2. cap. 4. anno 2. H. 5. cap. 7. in fine seemeth to bee that where the kings writs runne not as Chester and Durham they are called Seignories royall an 28. H. 6. cap. 4. The authour of the new Termes of lawe saith that franches royall is where the King graunteth to one and his heires that they shall be quit of tolle or such like See franchise in the new booke of Entries See Bracton lib. 2. cap. 5. See Sac.
the statute for view of Frankpledge made anno 18. Ed. 1 See Deoennier Leete vew of Frankpledge and Freoborghe That this discipline is borowed by vs of the Romane Emperours or rather Lombards appeareth most manifestly in the second booke of Feuds ca. 53. vpon which if you reade Hotoman with those authors that he there recordeth you will thinke your labour well bestowed Reade more of this viz. what articles were wont to be inquired of in this court in Hornes mirrour of Iustices li. 1. ca. de la veneudes francs pleges and what these articles were in auncient times see in Fleta li. 2. ca. 52. Fredwit See Fletwit Free chapell libera Capella by some opinion is a chapell founded within a parish for the seruice of God by the deuotion and liberalitie of some good man ouer and aboue the mother Church vnto the which it was free for the parishioners to com or not to come ēdowed with maintenance by the founder and therevpon called free I haue heard others say and more probably that those only be free chapels that are of the Kings foundation and by him exempted from the Iurisdiction of the Ordinarie but the King may licence a subiect to found such a chapell and by his charter exempt it from the Ordinaries visitation also That it is called free in respect it is exempted from the iurisdiction of the Diocesan appeareth by the Register originall fol. 40. 41. These chapels were all giuen to the King with chaunteries anno 1. Ed. 6. ca. 14. Free chapell of Saint Martin le grand anno 3. Eduardi 4. capite quarto anno 4. Eduard quarti ca. 7. Free hould liberum tenemētum is that land or tenement which a man holdeth in see see taile or at the least for terme of life Bract. li. 2. ca. 9. The newe expounder of the lawe termes saith that free hold is of 2. sorts Freehould in deede and freehold in lawe Freehold in deede is the reall possession of land or tenements in fee fee tayle or for life Freehould in lawe is the right that a man hath to such land or tenements before his entry or seisure I haue heard it likewise extended to those offices which a man holdeth either infee or for terme of life Britton defineth it to this effect Frank tenement is a possession of the soile or seruices issuing out of the soile which a free man holdeth in fee to him and his heires or at the least for tearme of his life though the soile be charged with free services or others ca. 32. Free hold is sometime taken in opposition to villenage Bract. li 4. ca. 37. 38. M. Lamberd in his explication of Saxon words verbo Terra ex scripto saith that land in the Saxons time was called either Bockland that is holden by booke or writing or Folcland that is holden without writing The former he reporteth was held with farre better conditions and by the beter sort of tenents as noble men and gentlemen being such as we nowe call free hould the later was commonly in the possession of clownes being that which wee nowe call at the will of the Lord I finde in the Register iudiciall fol. 68. a. and in diuers other places that he which holdeth land vpon an execution of a Statute merchant vntill he be satisfied the debt tenet vt liberum tenementum sibi assignatis suis and fol. 73. b. I reade the same of a tenent per elegit where I thinke the meaning is not that such tenents be free-houlders but as freehoulders for their time that is vntill they haue gathered profits to the value of their debt Freehoulders in the auncient lawes of Scotland were called Milites Skene de verb. signif verb. Milites The D. Student saith that the possession of land after the lawe of England is called franck tenement or free hould fol. 97. a. Frenchman Francigena was wont to be vsed for euerie out-landish man Bracton lib. 3. tract 2. cap. 15. See Englecerie Frendwite vel Infeng significat quietantiam prioris prisae ratione convivii Fleta li. 1. ca. 47. Frendles maen was wont to be the Saxon word for him whome we call an outlawe And the reason thereof I take to be because he was vpon his exclusion from the kings peace and protection denied all helpe of freinds after certaine daies Nam forisfecit amicos Bract. li. 3. tract 2. ca. 12. nu 1. whose words are these Talem vocant Angli vtlaugh alio nomine antiquitùs solet nominari sc Frendles man sic videtur quod forisfecit amicos vnde st quis talem post vtlagariam expulsionem scienter paverit receptaverit vel scienter cōmunicaverit aliquo modo vel receptauerit veloccultauerit eadem paenâ puniri debet quâ puniretur vtlagatus ita quòd careat omnibus bonis suis vita nisi Rex et parcat de sua gratia 〈◊〉 Fresh disseisin Frisca disseisina commeth of the french Fraiz 1. recens and disseisir i. posessione eiicere It seemeth to signifie in our common law that disseisin that a man may seeke to defeate of himselfe and by his owne power without the helpe of the king or his iudges Britton ca. 5. that is such disseisin as is not aboue 15. daies olde Bract. li. 4. ca. 5. whome you may reade at large of this mater concluding that it is arbitrarie and so doth Britton ca. 65. but ca. 43. he seemeth to say that in one case it is a yeare See him also ca. 44. Fresh fine is that which was levied within a yeare past Westm 2. cap. 45. an 13. Ed. 1. Fresh force Frisca fortia is a force done within 40. daies as it seemeth by Fitzh nat br fol. 7. C. For if a man be disseised of any lands or tenements within any city or borough or deforced from them after the death of his auncester to whome he is heire or after the death of his tenent for life or in taile he may within 40. daies after his title accrued haue a bille out of the chauncerie to the Mayor c. See the rest Fresh suite recens insecutio is such a present and earnest following of an offendour as neuer ceaseth from the time of the offence committed or espied vntill he be apprehended And the effect of this in the pursuite of a felon is that the partie persiewing shall haue his goods restored him agine whereas otherwise they are the kings Of this see Stawnf pl. cor li. 3. ca. 10. 12. where you shall finde handled at large what suite is to be accounted fresh and what not And the same author in his first booke cap. 27. saith that fresh suite may continue for seuen yeres See Cookes reportes l. 3. Rigewaies case Fresh suite seemeth to be either within the view or without for M. Manwood saith that vpon fresh suite within the view trespassers in the forest may be attached by the efficers persiewing them though without the limits
register fol. 234. which lyeth where the tenent for terme of life or of anothers life tenent by curtesie or tenent in Dower maketh a feofment in fee dyeth he in the reuersion shall haue the foresaid writagainst whomsoeuer that is in the land after such feofment made Ingrossing of a fine is making the indentures by the chirographer and the deliuery of them to the party vnto whom the cognisance is made Fitzh nat br fol. 147. A. Ingrosser ingrossator commeth of the frence Grosseur i. crassiiudo or Grosier i. Solidarius venditor it signifieth in the common law one that buieth corne growing or dead victuall to sell againe except barly for mault oats for oatemeale or victuals to retaile badging by licence and buying of oiles spices and victualls other then fish or salte anno 5. Edward 6. cap 14. anno 5. Elizab cap 14. anno 13. Elizab. cap 25. these be M. Wests words parte 2. simbol titulo Inditements sect 64. howbeit this definition rather doth belong to vnlawfull ingrossing then to the word in generall see Forstaller Inheritance hareditas is a perpetuity in lands or tenements to a man and his heirs For Litleton cap i. lib i hath these words and it is to be vnderstand that this word inheritance is not onely vnderstand where a man hath inheritance of lands and tenements by discent of heritage but also euery fee simple or fee taile that a man hath by his purchase may be said inheritance for that that his heires may inherit him Seuerall inheritance is that which two or moe hould seuerally as if two men haue land giuen them to them and the heires of their two bodies these haue ioynt estate during their liues but their heires haue seuerall inheritance Kitchin fol 155. See the new terms of law verbo Enheritance Inhibition Inhibitio is a writt to inhibit or forbid a Iudge from farder proceding in the cause depēding before him See Fitzh nat br fol 39. where he putteth prohibition and inhibition together inhibition is most commonly a writ issuing out of a higher courte Christian to a lower and inferiour vpon an Appeale anno 24. H. 8. cap 12. and prohibition out of the kings courte to a court Christian or to an inferiour temporall court Iniunction iniunctio is an interlocutory decree out of the Chācerie sometimes to giue possession vnto the plaintife for want of apparence in the defendant sometime to the Kings ordinary court and somtime to the court Christian to stay proceeding in a cause vpon suggestion made that the regour of the law if it take place is against equitie and conscience in that Case see West parte 2. simb titulo Proceeding in Chauncery sect 25. Inlawgh Inlagatus vel homo sub lege signifieth him that is in some frank pledge of whome take Bractons words l. 3. tracta 2. cap. H. nu 5. Minor verò qui infra aetatem duodecim annorū fuerit vtlagari non potest nec extra legem poni quia ante talem aetatem non est sub lege aliqua nec in decenna non magis quam foemina quae vtlagari non potest quia ipsa non est sub lege i. Inlowghe anglicè sc in franco plegio siue decenna sicut masculus duodecim annorum vlteriūs c. Inlaughe significat hominem subiectum leg i Fleta li. i. cap. 47. Inlagary Inlagatio is a restitution of one outlawed to the kings protection and to the benifite or estate of a subiect Bracton lib. 3 tracta 2 cap. 14. nu 6. 7. 8. Britton cap 13. Inmates are those that be admitted to dwell for their mony iointly with another mā though in seuerall roomes of his mantiō house passing in and out by one doore and not being able to maintaine themselues which are inquiralle in a leete Kitchin fol 45 where you may reade him at large who be properly Inmates in intendment of law and whoe not Imprision anno 18 Ed 3 statu 4 cap. vnico seemeth to signifie so much as an attempt comming of the french empris which is all one with enterpris an enterprise Inquirendo is an authoritie giuen to a person or persons to inquire into some thing for the kings aduantage which in what cases it lieth see the Register originall fol. 72. 85. 124. 265. 266. 179. 267. Inquisition Inquisitio is a maner of proceeding in maters criminall by the office of the Iudge which Hostiensis defineth thus Inquisitio nihil aliud est quà m alicuius criminis manifesti ex bono aquo Iudicis compeientis canonicè facta investigatio ca. qualiter de accusatio In the Decretales this course we take here in England by the great Enquest before Iustices in Eyre See Eyre and the places in Bracton and Britton there noted Inquisition is also with vs vsed for the King in temporall causes and profits in which kinde it is confounded with Office Stawnf praerog fo 51. See Office Inrolement Irrotulatio is the registring recording or entring of any lawful act in the rowles of the chauncerie as recognisance acknowledged or a statute or a fine leuied See West parte 2. symbol titulo Fines sect 133. Insimul tenuit is one species of the writ called a Formdon See Formdon Intakers be a kinde of theeues in Ridesdall anno 9. H. 5. ca. 8. so called as it seemeth because they dwelling within that libertie did receiue in such booties of catell or other things as the out parters brought in vnto them See Out parters Interdiction Interdictio is vsed in the common lawe in the same signification that it hath in the canon lawe where it is thus defined interdictio est censura ecclesiastica prohibens administrationem diuinorum c. quod in te de paenitent remiss in the Decretals and thus is it vsed anno 24. H. 8. cap. 12. Interpleder See Enterpleder Intrusion Intrusio by Bracton lib. 4. cap. 2. is thus defined Intrusio est vbi quis cui nullum ius competit in re nec scintilla Iuris possessionem vacuam ingreditur quae nec corpore nec animo possidetur sicut haereditatem iacentem antequam adita fuerit ab harede vel saltem a domino capitals ratione custodiae vel ratione eschaeta si forte heredes non existant vel si post mortem alicuius per finem factum vel per modum donationis vbi successio sibi locum vendicare non possit vel si post mortem alicuius qui tenuit ad vitam debeat tenementum reverti ad proprietariū ponat quis se in seisinā antequā tenemētū illud veniat ad illū ad quem pertinere deberet ex praedictis causis with whome agreeth Fleta lib. 4. cap. 30. § 1. 2. See Britton cap. 65. to the same effect See the newe booke of Entries verbo Entrusion See Entrusion See disseisin the author of new Terms of lawe would haue intrusion especially after the tenent for life is deceased verbo Abatement and abatement in all other cases But I finde
Bartolus in his Tractate De insigniis armis vseth these very wordes prioritas and posterioritas concerning two that beare one coate armor 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 I. H. 8. cap. 5. is a word almost out of vse now called Butlerage it is a custome wherby the prince chalengeth out of euery barke loaden with wine containing lesse then forty tunne two tunne of wine at his price Prise prisa commeth of the French prendre i. capere it signifieth in our Statutes the things taken by pourveyours of the Kings subiects As anno 3. Ed. 1. cap. 7. anno 28. eiusdem stat 3. cap. 2. It signifieth also a custome due to the King anno 25. eiusdem cap. 5. Regist origin fol. 117. b. Prisoner priso commeth of the French prisonnier and signifieth a man restrained of his libertie vpon any action ciuill or criminall or vpon commaundement And a man may be prisoner vpon matter of Record or mater of fact prisonervpon mater of Record is he which being present in court is by the court committed to prison only vpon an arrest be it of the Shyrecue Censtable or other Stawnf pl. cor lib. prim cap. 32. fol. 34. 35. Prinie commeth of the French priuè i. familiaris and significth in our common lawe him that is partaker or hath an interest in any action or thing as priuies of bloud old nat br fol. 117. be those that be linked in consanguinitie Eucry heire in tayle is priuy to recouer the land intayled eodem fol. 137. No priuitie was betweene me and the tenent Litleton fol. 106. If I deliuer goods to a man to be caried to such a place and he after he hath brought them thither doth steale them it is felenie because the priuitie of deliuerie is determined as soone as they are brought thither Stawn pl. cor lib. prim cap. 15. fol. 25. Merchants priuie be opposite to merchant straungers anno 2. Ed. tertii cap. 9. cap. 14. ann eiusdem stat 2. cap. 3. The newe Expositour of lawe termes maketh diuers sorts of priuics as priuies in estate priuies in deed priuics in lawe priuies in right and priuies in bloud And see the examples he giueth of euery of them See Perkins Conditions 831. 832. 833. and Sir Edward Cooke lib. 3. Walkers case fol. 23. a. lib. 4. fol. 123. b. 124. a. where he maketh foure kindes of priuies viz. priuies in bloud as the heire to his fathes c. priuies in representation as executours or administratours to the deceased priuies in estate as he in the reuersion and he in the remainder when land is giueÌ„ to one for life and to another in see the rcason is giuen by the Expositour of lawe termes for that their estates are created both at one time The fourth sort of priuies are priuies in tenure as the Lord by escheate that is when the land escheateth to the Lord for want of heires c. Priuie seale priuatum sigillum is a scale that the King vseth some time for a warrant whereby things passed the priuy signet and brought to it are sent farder to be confirmed by the great seale of England sometime for the strength or credit of other things written vpon occasions more transitory and of lesse continuance then those be that passe the great seale Priuiledge priuilegium is defined by Cicero in his oration pro domo sua to be lex priuata homini â—â—ogata Frerotus in paratitlis ad titulum decretalium de priuilegiis thus defineth it priuilegium est ius singulare hoc est priuata lex quae vni homini vel loco vel Collegio similibus aliis concedit ur cap. priuilegia distinct 3. priua enim veteres dixere que nos singula dicimus Insit Agellius lib. 10. ca. 20. Ideoque priuilegia modò beneficia modò personales constitutiones dicuntur c. It is vsed so likewise in our common law and sometime for the place that hath any speciall immunity Kitchin fol. 118. in the words where depters make sained gifts and feofements of their land and goods to their freinds and others and betake themselues to priuiledges c. Priuiledge is either personall or reall a personall priuiledge is that which is graunted to any person either against or beside the course of the common law as for example a person called to be one of the Parlament may not be arrcsted either himselfe or any of his attendance during the time of the Parlament A priuiledge reall is that which is graunted to a place as to the Vniuersities that none of either may be called to Westm hall vpon any contract made within their owne precincts And one toward the court of Chauncery cannot originally be called to any court but to the Chauncery certaine cases excepted If he be he will remoue it by a writ of Priuiledge grounded vpon the statute anno 18. Ed. 3. See the new booke of Entries verbo Priuilege Probat of testaments probatio testamentorum is the producting and insinuating of dead mens wils before the ecclesiasticall Iudge Ordinary of the place where the party dyeth And the ordinary in this case is knowne by the quantity of the goods that the party deceased hath out of the Dioces where he departed For if all his goods be in the same Dioces then the Bishop of the Dioces or the Archdeacon according as their composition or prescription is hath the probate of the Testament if the goods be dispersed in diuers Dioces so that there be any summe of note as fiue pounds ordinarily out of the Dioces where the party let his life then is the Archbishop of Canterbury the ordinary in this case by his prerogatiue For whereas in ould time the will was to be proued in cuery Dioces wherein the party diceased had any goods it was thought conuenient both to the subiect and to the Archiepiscopall See to make one proofe for all before him who was and is of all the generall Ordinary of his prouince But there may be aunciently some composition betweene the Archebishop and an inferiour ordinary whereby the summe that maketh the prerogatiue is abouc fiue pound See praerogatiue of the Archbishop This probate is made in two sorts either in common forme or pertestes The proofe in common forme is onely by the oath of the exceutour or party exhibiting the will who sweareth vpon his credulity that the will by him exhibited is the last will and testament of the party deceised The proofe per testes is when ouer and beside his oath he also produceth witnesses or maketh other proofe to confirme the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they haue beene lawfully summoned to see such a will proued
writ and not those that he houldeth of course or custome And in that case also it may be gathered out of the same authour that he hath a record but with the testimony of those annexed that be suiters to the Court. Which seemeth to agree with Bractons words aboue specified Seruiens Hundredi habet recordum in testimonio proborum hominum And to this purpose read Glanuile lib. 8. cap. 8. 9. 10. One Iustice vpon view of forcible detinew of land may record the same by statute anno 15. R. 2. cap. 2. the Maior and Constables of the Staple haue power to record recognisances of debt taken before them anno 10. H. 6. ca. 1. Brooke titulo Record seemeth to say that no court ecclesiasticall is of record how truly it is to be inquired For Bishops certifiing bastardy bigamy excommunication the vacancy or plenarty of a Church a mariage a diuorce a spirituall intrusion or whether a man be professed in any religion with other such like are credited without farder enquiry or controlment See Brooke titulo Bastardy See Fleta lib 6. ca. 39. 40. 41. 42. Lamb. cirenarcha lib pri cap. 13. Glanuile li. 7. ca. 14. 15. the Register originall fol. 5. b. Bracton lib. 5. tracta 5. ca. 20. nu 5. Britton ca. 92. 94. 106. 107. 109. Doct. and Stud. li. 2. ca. 5. but especially Cosius apologie parte pri ca. 2. And a testament shewed vnder the seale of the Ordinary is not trauersable 36. H. 6. 31. Perkins Testament 491. Fulb. paral fol. 61. b. But it may be that this opinion groweth from a difference betweene that law whereby the court Christian is most ordered and the common law of this land For by the ciuile or canon law no instrument or record is held so firme but that it may be checked by witnesses able to depose it to be vntrue Co. plu◠valere quod agitur quà m quod simulate concipitur ca. cùm Iohannes 10. extra de fide instrumentorum Whereas in our common law against a record of the Kings Court after the terme wherein it is made no witnes can preuaile Britton ca. 109. Coke lib. 4. Hindes case fol. 71. lib. assisarum fol. 227. nota 21. This reconciliation may be iustified by Brooke himselfe titulo Testaments num 4. 8. 14. and by Glanuile lib. 8. cap. 8. The King may make a court of record by his graunt Glanuil li. 8. ca. 8. Britton cap. 121. as for example Queene Elizabeth of worthy memory by her Charter dated 26. Aprilis anno 3. regni sui made the Consistory Court of the Vniuersity of Cambridge a Court of record There are reckoned among our common lawyers three sorts of records viz A record iudiciall as attainder c. A record ministeriall vpon oath as an office found A record made by conueyance by consent as a fine deede enrolled or such like Coke li. 4. Andrew Ognels case fo 54. b. Recordare facias or recordari facias is a writ directed to the Shyreeue to remoue a cause depending in an inferiour court to the Kings bench or common plees as out of a court of auncient Demesn Hundred or Countie Fitz. nat br fol. 71. B. out of the countie Court idem fo 46. B. or other courts of record idem fol. 71. C. 119. K. Howbeit if you will learne more exactly where and in what cases this writ lyeth reade Brooke in his Abridgm titulo Recordare pone It seemeth to be called a recordare because the forme is such that it commaundeth the Shyreeue to whom it is directed to make a record of the proceeding by himselfe and others and then to send vp the cause See the Register verbo Recordare in the Table of the originall Writs See Certiorart See Accedas ad Curiam Recorder recordator commeth of the French recordeur i. talis persona quae in Ducis Curia â iudicio faciendo non debet amoueri Grand Custumarie of Norm cap. 107. 121. Whereby it appeareth that those which were necessarie Iudges in the Duke of Normandies Courts were called Recorders and who they were is shewed in the ninth chapter of the said booke And that they or the greater part of them had power to make a record it is euident in the chapter 107. Here in England a Recorder is he whome the Maior or other Magistrate of any citie or towne corporate hauing Iurisdiction or a Court of record within their precincts by the Kings graunt doth associate vnto him for his beter direction in maters of Iustice and proceedings according vnto lawe And he is for the most part a man well seene in the common lawe Recordo processis mittendis is a writ to call a Record together with the whole proceeding in the cause out of one court into the Kings Court Which see in the Table of the Register orig how diuersly it is vsed Recordo vtlagariae mittendo is a writ Iudiciall which see in the Register iudicial fol. 32. Recouerie Recuperatio cōmeth of the French Recouvrer i. Recuperare It signifieth in our commō lawe an obteining of any thing by Iudgement or triall of lawe as evictio doth among the Ciuilians But you must vnderstand that there is a true recouerie and a feigned A true Recouerie is an actuall or reall recouerie of any thing or the value thereof by Iudgement as if a man siewed for any land or other thing moueable or immoueable and haue a verdict and Iudgement for him A feigned recouerie is as the Ciuilians call it quaedam fictio iuris a certaine forme or course set downe by lawe to be obserued for the beter assuring of lands or tenements vnto vs. And for the beter vnderstanding of this reade West parte 2. symbol titulo Recoveries sect pri who saith that the end and effect of a Recouerie is to discontinue and destroy estates Tayles Remainders and Reuersions and to barre the former owners thereof And in this formality there be required 3. parties viz. the Demaundant the Tenent and the Vowchee The Demaundant is he that bringeth the writ of Entrie and may be termed the Recouerer The Tenent is he against whom the writ is brought and may be termed the Recoveree The Vowchee is he whom the tenēt vowcheth or calleth to wartantie for the land in demaund West vbi supra In whom you may reade more touching this mater But for example to explane this point a man that is desirous to cut of an estate tayle in lands or tenements to the end to sell giue or bequeath it as him self seeth good vseth his frend to bring a writ vpon him for this land He appearing to the writ saith for him selfe that the land in question came to him or his auncesters from such a man or his auncester who in the conueiance thereof bound him selfe and his heires to make good the title vnto him or them to whome it was conueied And so he is allowed by the court to call in this third man to
say what he can for the iustifiing of his right to this land before he so conveied it The third man commeth not wherevpon the land is recouered by him that brought the writ and the tenent of the land is left for his remedie to the third man that was called and came not in to defend the tenent And by this meanes the entayle which was made by the tenent or his auncester is cut of by iudgement herevpon giuen for that he is pretended to haue no power to entaile that land wherevnto he had no iust title as now it appeareth because it is evicted or recouered from him This kinde of recouery is by good opinion but a snare to deceiue the people Doctor Stud. ca. 32. dial pri fol. 56. a. This feigned Recouery is also called a common Recouery And the reason of that Epitheton is because it is a beaten and common path to that end for which it is ordeined viz. to cut of the estates aboue specified See the new booke of Entries verbo Recouery I saide before that a true recouery is as well of the value as of the thing for the beter vnderstanding whereof know that In valew signifieth as much as Illud quod interest with the Ciuilians For example if a man buy land of an other with warranty which land a third person afterward by suite of lawe recouereth against me I haue my remedie against him that sould it me to recouer in value that is to recouer so much in mony as the land is worth or so much other land by way of exchaunge Fitzh nat br fol. 134. K. To recouer a warranty old nat br fol. 146. is to proue by iudgement that a man was his warrant against all men for such a thing Recto is a writ called in English a writ of Right which is of so high a nature that whereas other writs in reall actions be onely to recouer the possession of the land or tenements in question which haue beene lost by our auncester or our selues this aimeth to recouer both the seisin which some of our Auncesters or wee had and also the propertie of the thing whereof our Auncester died not seised as of fee and whereby are pleaded and tried both the rights togither viz. as well of possession as property Insomuch as if a man once loose his cause vpon this writ either by Iudgement by Assise or batell he is without all remedie and shall be excluded per exceptionem Rei iudicatae Bracton lib. 5. tract 1. cap. 1. seqq where you may reade your fille of this writ It is diuided into two species Rectumpatens a writ of right patent and Rectum clausum a writ of right close This the Ciuilians call Iudicium petitorium The writ of right patent is so called because it is sent open and is in nature the highest writ of all other lying alwaies for him that hath fee simple in the lands or tenements siewed for and not for any other And when it lieth for him that chalengeth fee simple or in what cases See Fitzh nat br fol. pri C. whome see also fol. 6. of a speciall writ of right in London otherwise called a writ of right according to the Custome of London This writ is also called Breue magnum de Recto Register originall fol. 9 A. B. and Fleta li. 5. cap. 32. § 1. A writ of right close is a writ directed to a Lord of auncient Demesn and lieth for those which hould their lands and tenements by charter in fee simple or in fee taile or for terme of life or in dower if they be eiected out of such lands c. or disseised In this case a man or his heire may siew out this writ of Right close directed to the L. of the Auncient Demesn commanding him to doe him right c. in his court This is also called a small writ of right Breve parvum Register originall fol. 9. a. b. and Britton cap. 120. in fine Of this see Fitzh likewise at large nat br fol. 11. seqq Yet note that the writ of right patent seemeth farder to be extended in vse then the originall inuention serued for a writ of Right of Dower which lieth for the tenent in Dower and onely for terme of life is patent as appeareth by Fitzh nat br fol. 7. E. The like may be said of diuers others that doe hereafter followe Of these see also the table of the originall Register verbo Recto This writ is properly tried in the Lords court betweene kindsmen that claime by one title from their Auncester But how it may be thence remoued and brought either to the Countie or to the kings court see Fleta lib. 6. cap. 3. 4. 5. Glanvile seemeth to make euery writ whereby a man sieweth for any thing due vnto him a writ of right lib. 10. ca. 1 lib. 11. cap. 1. lib. 12. cap. 1. Recto de dote is a writ of Right of Dower which lieth for a woman that hath receiued part of her Dower and purposeth to demaund the Remanent in the same towne against the heire or his Gardian if he be ward Of this see more in the old nat br fol. 5. and Fitzh fol. 7. E. and the Register originall fol. 3. and the newe booke of Entries verbo Droyt Recto de dote vnde nihil habet is a writ of right which lieth in case where the husband hauing diuers lands or tenements hath assured no dower to his wife and she thereby is driuen to siew for her thirds against the heire or his Gardian old nat by folio 6. Register originall fol. 170. Recto de rationabili parte is a writ that lieth alway beweene priuies of bloud as brothers in Gauel-kind or sisters or other Coparceners as Nephewes or Neeces and for land in Fee simple For example if a man lease his land for tearme of life and afterward dyeth leauing issue two daughters and after that the tenent for terme of life likewise dyeth the one sister entring vpon all the land and so deforcing the other the sister so deforced shall haue this writ to recouer her part Fitz. nat br fo 9. Register origin fol. 3. Recto quando Dominus remisit is a writ of right which lyeth in case where lands or tenements that be in the Seigneurie of any Lord are in demaund by a writ of right For if the Lord hold no Court or otherwise at the prayer of the Demandant or Tenent shall send to the Court of the King his writ to put the cause thither for that time sauing to him another time the right of his Seigneurie then this writ issueth out for the other partie and hath this name from the words therein comprised being the true occasion thereof This writ is close and must be returned before the Iustices of the common Bancke old nat br fol. 16. Regist orig fol. 4. Recto de Advocatia Ecclesiae is a writ of right lying where a man hath right of Advouzen and
See the new booke of Entries verbo Remitter Render commeth of the French Rendre i. reddere retribuere restituere and signifieth in our common lawe the selfe same thing For example this word is vsed in leuying of a fine For a fine is either single by which nothing is graunted or rendred backe againe by the Cognizee to the Cognizoumor double which conteineth a graunt or render backe againe of some rent common or other thing out of the land it selfe to the Cognizor c. West parte 2. symbol titulo Fines sect 21. 30. F. Also there be certaine things in a maner that lie in prender that is which may be taken by the Lord or his officer when they chaunce without any offer made by the tenent as the ward of the body of the heire and of the land escheats c. and certaine that lie in Render that is must be deliuered or answered by the Tenent as rents reliefes heriots and other seruices Idem eodem sect 126. C. Also some service confisteth in seisaÌ„ce some in Render Perkins Reseruations 696. Rent Reditus commeth of the French Rent i. vectigal pensitatio annua and signifieth with vs a summe of mony or other consideration issuing yearly out of land or tenements Plouden casu Browning fol. 132. b. fol. 138. a. 141. b. There be three sorts of rents obserued by our common Lawyers that is Rent seruice Rent charge and Rent seck Rent seruice is where a man houldeth his land of his Lord by fealty and certaine rent or by fealty seruice and certaine rent Litleton lib. 2. ca. 12. fol. 44. or that which a man making a lease to another for terme of yeares reserueth yearely to be paid him for the same Termes of lawe verbo Rents who giueth this reason thereof because it is in his libertie whether he will distraine or bring an action of debt A Rent charge is that which a man making ouer an estate of his land or tenements to another by deede indented either in in fee or fee tayle or lease for terme of life reserueth to himselfe by the said indenture a summe of money yearely to be paide vnto him with clause of distresse or to him and his heires See Litleton vbi supra A Rent seck otherwise a drie rent is that which a man making ouer an estate of his land or tenement by deede indented reserueth yeerely to be paid him without clause of distresse mentioned in the Indenture Litleton vbi supra and termes of the lawe verbo Rents see the newe expositour of lawe Termes See Plowden casu Browning fol. 132. b. See the differences betweene a rent and an annuitie Doctor and Student cap. 3. Oâ—dialo primo Reparatione facienda is a writ which lieth in diuers cases whereof one is where three be tenents in common or ioynt tenents or pro Indiviso of a mille or house which is fallen into decay and the one being willing to repaire it the other two will not In this case the party willing shall haue this writ against the other two Fitzh nat br f. 127. where read at large the form many vses of this writ as also in the Regi orig fol. 153. b. Repeale commeth of the French Rappel i. Revocatio and signifieth in our common lawe euen the same as the Repeale of a statute Rastall titulo Repeale Brooke vseth Repellance in this signification titulo Repellance Repleader Replacitare is to plead againe that which was once pleaded before Rastall titulo Repleader See the newe booke of Entries verbo Repleder Replegiare See Replevie See Second deliuerance Replevie Pleuina is the bringing of the writ called Replegiarifacias by him that hath his catel or other goods distreined by another for any cause and putting in suerty to the Shyreue that upon the deliuery of the thing distreined he will persiew the action against him that distreined Termes of lawe See Replegiare It is vsed also for the bayling of a man pl. cor fol. 72. 73. 74. West pri cap. 11. cap. 15. anno 3. Ed. 1. Replegiare de averus is a writ brought by one whose catell be distreined or put in pound vpon any cause by another vpon surety giuen to the Shyreeue to persiew the action in lawe anno 7. H. 8. cap. 4. Fitzh nat br fol. 68. See the Register originall of diuers sorts of this writ called Replegiare in the table verbo eodem See also the Register Iudiciall fol. 58. 70. see also the newe boke of Entries verbo Replevin See Dyer fol. 173. nu 14. Replevish Replegiaro is to let one to mainprise vpon suretie anno 3. Ed. 1. cap. 11. Replication replicatio is an exception of the second degree made by the plantife vpon the first answer of the Defendant West parte 〈◊〉 symbol titulo Chauncerie sect 55. Westm 2. anno 13. Ed. pri cap. 36. This is borowed from the Ciuilians De replicationibus lib. 4. Institutio titulo 14. Report Reportus is in our common lawe a relation or repetition of a case debated or argued which is sometime made to the court vpon reference from the court to the Reporter somtime to the world voluntarily as Ploydens reports such like Reposition of the Forest was an act whereby certaine forest grounds being made purlieu vpon view were by a second view laide to the Forest againe Manwood parte pri pag. 178. Reprisels Reprisalia are all one in the common and Ciuill law Represalia est potestas pignorandi contra quemlibet de terya debitoris data creditori pro iniuriis damnis acceptis Vocabularius vtriusque iuris This among the auncient Romans was called Clarigatio of the verb Clarigo i. res clarè repeto It is called in the statute anno 27. Ed. 3. stat 2. cap. 17. lawe of Marque of the German word March i. terminus limes And the reason may be because one destitute of Iustice in another territory redresseth himselfe by the goods belonging to men of that territorie taken within his owne bounds Requests Supplicum libelli Curia Requisitionum is a Court of of the same nature with the Chauncerie redressing by equitie the wrongs that poore men doe suffer at their hand whose might they are not able to withstand either in lawe or otherwise It tooke beginning as some men thinke by commission from King Henry the 8. before which time the Masters of Requests had no warrant of ordinary Iurisdiction but travailed betweene the Prince and petioners by direction from the mouth of the King Guins preface to his readings But see Court of Requests Resceyt Receptio seemeth to be an admission of a third person to pleade his right in a cause formerly commenced betweene other two See the newe booke of Entries verbo Resceit v. Aide prier The Ciuilians call this admissionem tertii pro suo interesse Of this you haue one example in the Termes of lawe viz. if Tenent for terme of life or tenent for terme of yeares bring an action he
such condition The difference betweene a Remainder and a Reversion is that a Remainder is generall and may be to any man but to him that graunteth or conueieth the land c. for terme of life onely or otherwise a Reuersion is to himselfe from whome the conveiance of the land c. proceeded and commonly perpetuall as to his heires also Litleton fol. 112. in fine See Cooke lib. 2. Sir Hugh Cholmleis case fol. 51. a. And yet a Reuersion is sometime confounded with a remainder Cooke li. 2. Tookers case fol. 67. b. Plowden casu Hille fol. 170. b. what this word Reuersion in a deede doth carie See Litleton lib. 2. ca. 12. Revocation Revocatio is the calling backe of a thing granted Of these you haue diuers in the Register originall as Reuovocationem brevis de audiendo terminando fol. 124. Revocationem praesentationis fol. 304 305. Revocationem protectionis fol. 23. Revocationem specialium Iusticiariorum quia c. fol. 205. Reviving is a word metaphorically applied to rents and actions and signifieth a renewing of them after they be extinguished no lesse then if a man or other liuing creature should be dead and restored to life See diuers examples in Brooke titulo Revivings of rents actions c. fol 223. Rewardum See Regard Reweye anno 43. Elizab. cap. 10. Rie is a Saxon word signifiing as much as Regnum in Latine Camd. Britan. pag. 346. Riens passe perle fait is a forme of an exception taken in some cases to an action See Brooke titulo Estaunger al fait or Record Riens dans le gard was a chalenge to a Iurie or Enquest within London for that foure sufficient men of liuelyhood to the yearely value of fortie shillings aboue all charges within the same City and dwelling and hauing within the same ward weare not impanelled therein But it is abrogated by the statute anno 7. H. 7. cap. 4. Rier countie Retrocomitatus seemeth to come of the French Arriere i. posterior and in the statute anno 2. Ed. 3. cap. 5 is opposite to the open countie And by comparison of that statute with Westm 2. cap. 38. it appeareth to be some publique place which the Shyreeue appointeth for the receipt of the kings money after the ende of his Countie Fleta saith that it is dies crastinus post comitatum lib. 2. cap. 67. § Quia Iusticiarii Right Rectum See Recto Ridings be the names of the parts or diuisions of Yorke shire being three in number viz. West riding East riding and North riding Camd. Britan. pag. 530. This word is mentioned in the statute anno 22. H. 8. cap. 5. 23. H. 8. cap. 18. and M. West parte 2. symbol titulo Inditements saith that in Inditements within that Countie it is requisite that the towne and the Riding be expressed sect 70. Q. Right in the Court anno 6. R. 2. stat 1. cap. 12. See Rectus in Curia Ringhead anno 43. Elizab. cap. 10. Riot Riottum commeth of the French Rioter 〈…〉 rixari It signifieth in our common lawe the forcible doing of an vnlawfull act by three or more persons assembled togither for that purpose Westm parte 2. symbol titulo Inditements sect 65. P. The differences and agreements betweene a Riot a Rout and vnlawfull assembly See in M. Lamb. Eirenarcha lib. 2. cap. 5. c. See the statute 1. M. 1. cap. 12. Kitchin fol. 19. who giueth these examples of Riots the breach of inclosures or banks or conduicts parks pownds houses barnes the burning of stacks of corne M. Lamberd vbi supra vseth these examples to beate a man to enter vpon a possession forcibly See Route and vnlawfull assembly See also Cromptons Iustice of peace diuers cases of Riots c. fol. 53. See Trihings Ripiers Riparii be those that vse to bring fish from the sea coast to the inner parts of the land Camd. Britan. pag. 234. It is a word made of the latine Ripa Rise oriza is a kinde of corne growing in Spaine Asia and India with the which both good foodes and medicines be made whereof if you desire farder knowledge reade Gerards herball lib. 1. cap. 52. This is mentioned among merchandize to be garbled in the statute anno 1. Iaco. cap. 19. Roag Rogus seemeth to come of the French Rogue i. arrogans It signifieth with vs an idle sturdie beggar that wandring from place to place without pasport after he hath beene by Iustices bestowed vpon some certaine place of aboade or offered to be bestowed is condemned to be so called who for the first offence is called a Roag of the first degree and punished by whipping and boring through the grissell of the right eare with a hot yron an inch in compas for the secoÌ„d offence is called a Roag of the second degree and put to death as a felon if he be aboue 18. yeares ould See the statute anno 14. Elizab. cap. 5. 18. eiusdem cap. 3. anno 36. cap. 17. If you will know who be Rogues and to be punished as Rogues by lawe Reade Lamberds Eirenarcha lib. 4. cap. 4. See Rout. Robberie Robaria commeth of the French Robbe 1. vestis and in our common lawe a felonious taking away of another mans goods from his person or presence against his will putting him in feare and of purpose to steale the same goods West parte 2. symbol titulo Inditments sect 60. This is sometime called violent theft Idem eodem which is felonie for two pence Kitchin fol. 26. and 22. lib. Assis 39. Robaria is a word vsed also in other nations as appeareth by the annotations vpon Mathaeus de Afflictis descis 82. nu 6. pag. 122. See Skene verbo Reif libro de verbo significat See Cromp. Iustice of peace f. 30. b. Roberdsmen anno 5. Ed. 3. cap. 14. anno 7. R. 2. cap. 5. M. Lamb. interpreteth them to be mighty theeues Eironarch lib. 2. cap. 6. pag. 190. Rodknights aliâs Radknights are certaine seruitours which hould their lands by seruing their Lord on horseback Bracton lib. 2. cap. 36. nu 6. faith of them debent equitare cum Domino suo de manerio in manerium vel cum Domini vxore Fleta lib. 3. cap. 14. § Continetur Rodde Pertica is otherwise called a pearche and is a measure of 16. foote and an halfe long and in Stafford Shire 20. foote to measure land with See â—earch Rofe tyle aliât Creast tyle is that tyle which is made to lay vpon the rudge of the house anno 17. Ed. 4. cap. 4. Rogation weeke dies rogationum is a time well knowne to all being otherwise called Gang weeke The reason why it is so termed is because of the especiall deuotion of prayer and fasting then inioyned by the Church to all men for a preparatiue to the ioyfull remembrance of Christs glorious ascension and the descension of the holy Ghost in the forme of cloven tongues shortly after And in that respect the solemnization of carnall matrimony is forbidden
words Telonis autem dicuntur public anorum stationes in quibus vectigalia recipiunt sed apud istius generis scriptores Telonium dicitur vectigal quod pro pontium aut riparum munitione penditur plerumque á principibus solius exactionis causa imperatur Team aliás Theam is an ould Saxon word signifiing a Royalty granted by the Kings charter to a Lord of a maner Bracton li. 3. tracta 2. ca. 8. of this Saint Edwards lawes nu 25. say thus Quod si quisquam aliquid interciet id est penes alium defendat super aliquem intercitatus non poterit warantum suum habere erit forisfactura sua Iusticia similiter de calumniatore si defecerit M. Skene de verborum significatione verbo Theme saith that it is a power to haue seruants and slaues which are called natiui bondi villani and all Baronies insoffed with Theme haue the same power For vnto them all their bondmen their children goods and cattels properly appertaine so that they may dispose of them at their pleasure And in some ould authentike bookes it is writen Theme est potestas habends natinos it a quòd generationes villanorum vestrorum cum eorum catallis vbicunque inueniantur ad vos pertineant Theme commeth from Than i. servus and therefore some time signifieth the bondmen and slaues according to an ould statute and law De curia de Theme Quod si quis teneat curiam de Theme illa querela in illa curia mouetur ad quam Theme vocatur non debet illa curia elongari sed ibidem determinari omnes Theme ibi compareant Which is vnderstoode of the question of liberty when it is in doubt whether any person be a bondman or free man Which kinde of proces should not be delayed but summarily discided And the new expositour of law terms speaketh to the like effect verbo Them I read it also in an ould paper writen by an exchequer man thus translated Theam i. propago villanorum Teller is an officer in the Eschequer of which sort their be foure in number And their office is to receiue all monies due to the King and to giue to the clerk of the Pel a bill to charge him therewith They also pay to all persons any money paiable vnto them by the King by warrant from the auditour of the receipt They also make weekely and yearely bookes both of their receipts payments which they deliuer to the L. Treasurer Templers Templarii See Knights of the Temple These whil lest they florished here in England which seemeth to be all that time betweene Henry the seconds daies vntill they were suppressed had in euery nation a particular gouernour whom Brac. calleth Magistrū militiae Tēpli l. 1. c. 10. Of these read M. Cam. in his Br. p. 320. See Hospitalers Temporalties of Bishops Temporalia Episcoporum be such reuenewes lands and tenements as Bishops haue had laid to their Sees by the Kings and other great personages of this land from time to time as they are Barons and Lords of the Parlament See Spiritualties of Bishops Tend seemeth to signifie as much as to indeuour or offer or shew forth to tend the estate of the party of the Demaundant old n. br f. 123. b. to tend to trauers Stawnf prarog fol. 96. to tend an auertment Britton cap. 76. Tender seemeth to come of the French Tendre i. tener delicatus and being vsed adiectiuely signifieth in english speech as much as it doth in French But in our common law it is vsed as a verb and betokeneth as much as carefully to offer or circumspectly to indeuour the performance of any thing belonging vnto vs as to tender rent is to offer it at the time and place where and when it ought to be paid To tender his law of non Summons Kitch fo 197. is to offer himselfe ready to make his law whereby to prooue that he was not summoned See law See make Tenementis legatis is a writ that lyeth to London or other corporation where the custome is that men may demise tenements by their last will as well as their goods and catels to whome they list for the hearing of any controuersie touching this mater and for the rectifying of the wrong Regist orig fol. 244. b. Tenant aliâs tenent tenens commeth either of the Latine tenere or of the French tenir and signifieth in our common lawe him that possesseth lands or tenements by any kind of right be it in fee for life or for yeares This word is vsed with great diuersitie of Epithits in the lawe sometime signifying or importing the efficient cause of possession as tenent in Dower which is shee that possesseth land c. by vertue of her Dower Kitchin fol. 160. Tenent per statute Merchant Idem fol. 172. that is he that holdeth land by vertue of a statute forfeited vnto him Tenent in franck mariage Kitchin fol. 158. viz. he that holdeth land or tenement by reason of a gift thereof made vnto him vpon mariage betweene him and his wife Tenent by the courtesie Idem fol. 159 i. he that holdeth for his life by reason of a child begotten by him of his wife being an inheritrix and borne aliue Tenent per elegit Idem fol. 172. i. he that holdeth by vertue of the writ termed Elegit Tenent in mortgage idem fol. 38. is he that holdeth by vertue of a mortgage or vpon condition that if the lessour pay so much money at such a day that he may enter and if not that the leassee shall haue a fee simple fee tayle or free hould Sometime these Epithites import the maner of admittance as tenent by the verge in auncient demesn Idem fol. 81. is he that is admitted by the rod in a court of auncient demesne Sometime the euidence that he hath to shew for his estate as Tenent by copy of court rolle which is one admitted Tenent of any lands c. within a maner that time out of the memorie of man by the vse and custome of the said maner haue bene demisable and demised to such as will take the same in see fee-fee-tayle for life yeares or at will according to the custome of the said maner West parte prim sym lib. 2. se 646. whom reade more at large Againe Tenent by charter is he that holdeth by feofment in writing or other deede Kitchin fol. 57. Sometime these Epithites signifie that dutie which the tenent is to performe by reason of his tenure As Tenent by Knights seruice Tenent in socage Tenent in burgage Tenent in frank fee Tenent in villenage Sometime they import the estate of the tenent or his continuance in the land as Tenent in fee simple Kitchin fol. 150. Tenent in fee taile Idem fol. 153. Tenent for life and tenent for yeares Idem fol. 163. Tenent at the will of the Lord according to the custome of the maner Idem fol. 132. 165. Tenent at will by the common law
is vsed anno 20. Ed 1. anno 11. H. 6. cap. 2. in these words Iustices assigned to take assises And the Substantiue assignement hath the same signification Wests symb parte 1. lib. 2. sect 496. seq In which maner is also vsed the adiectiue assignee assignatus viz. for him that is appointed or deputed by another to do any act or performe any businesse or enioy any commoditie And an assignee may be either in deed or in law Assignee in deed is he that is appointed by a person an assignee in lawe is he whom the lawe so maketh without any appointment of the person v. Dyer fol. 6. num 5. Perkins in Grauntes saith that an assignee is he that occupieth a thing in his owne right and deputè he that doth it in the right of another Assise assisa commeth of the French assise which in the grand custumarie of Normandy cap. 24. is defined to this effect Assise is an assembly of Knights and other substantiall men with the Bailiffe or Iustice in a certain place and at a certaine time appointed And againe cap. 55. Assise is a court in the which whatsoeuer is done ought to haue perpetuall strength This Normane word assise commeth of the French asseoir â— collocare to settle or bestow in some place certaine as sâ—asseoir is to sit downe by another And metaphorically it is vsed of things incorporeall as asseoir son iugement sur quelque lieu is interponere iudicium suum Of this verbe commeth the participle assis as estre assis i. sedere And this Participle in the grand custumarie of Normandie cap. 68. is vsed as we would say appointed limited or determined viz. au iour qui est assis à faire la battaille se doibuent les champions offrir á la iustice that is at the day which is appointed for the combat the champions ought to offer themselues to the Iustice So that by all these places compared together it is euident whence the original of this word assise floweth How diuersly it is vsed in our common lawe it followeth that we declare First Litleton in the chapter Rents saith that it is aequivocum where he setteth downe three seuerall significations of it one as it is taken for a writ another as it is vsed for a Iurie the third as for an ordinance And him he that listeth may reade more at large My collections haue serued me thus first assise is taken for a writ directed to the Shyreeue for the recouerie of possession of things immoueable whereof your selfe or your auncestor haue bene disseised And this is as well of things corporall as incorporeall rights being of foure sorts as here they follow in their order Assise of novel disseisin assisa nova disseisina lyeth where a tenent in Fee-simple Fee-taile or for tearme of life is lately disseised of his lands or tenements or else of a rent seruice rent seck or rent charge of common of pasture of an office of tolle tronage passage pownage or for a nusance leuied and diuers other such like For confirmation whereof you may reade Glanvile lib. 10. cap. 2. Bracton lib. 4. tract 1. per totum Britton cap. 70. seqq Register orig fol. 197. Fitz. nat br fol. 177. 178. 179. new booke of entries fol. 74. col 3. West 2. cap. 25. anno 13. Ed. 1. And to this may aptly be added the Bill of fresh force friscae fortiae which is directed to the officers or magistrates of Cities or Townes corporate being a kinde of assise for recovery of possession in such places within 40. daies after the force as the ordinarie assise is in the countie Fitzh nat br fo 7. c. This the Civilians call iudicium possessorium recuperandi Assise of mort d' auncester assisa mortis antecessoris lyeth where my father mother brother sister vncle aunte c. died seised of lands tenements rents c. that he had in see simple and after his death a straunger abateth an it is good as well against the abatour as any other in possession How likewise this is extended see Bracton li. 4. tract 3. per totum Britton ca. 70. cum multis sequent Fitzh nat br fo 114. Register orig fo 223. This the Civilians call Iudicium possessorium adipiscendi Assise of darrein presentment assisa vltima praesentationis lieth where I or mine auncestor haue presented a Clerke to a Church and after the Church being voide by the death of the said Clerke or otherwise a strauÌ„ger presenteth his Clerke to the same Church in disturbance of me And how otherwise this writ is vsed See Bracton li. 4. tract 2. Register orig fo 30. Fitzh nat br fo 195. Assise de vtrum assisa vtrum lieth either for a parson against a lay man or a lay man against a parson for land or tenement doubtfull whether it be lay see or free almes And of this see Bracton li. 4. tract 5. cap. 1. seqq Brit. ca. 95. The reason why these writs be called assises may be diuers First because they settle the possession and so an outward right in him that obteineth by them Secondly they were originally spedde and executed at a certaine time and place formerly appointed For by the Norman law the time and place must be knowne 40. daies before the Iustices sate of them and by our lawe there must be likewise 15. daies of preparation except they be tried in those standing courts of the king in Westminster as appeareth by Fitzh nat br fo 177. D. E. Lastly they may be called assises because they are tried most commonly by especial courts set appointed for the purpose as may be well proved not onely out of the custumarie of Normandie but our bookes also which shew that in auncient times Iustices were apointed by especiall commission to dispatch controversies of possession one or more in this or that onely countie as accasion fell out or disseisins were offered that as well in terme time as out of terme whereas of later daies wee see that all these commissions of asseses of eyre of oyer terminer of gaol deliuerie and of nisi prius are dispatched all at one time by two severall circuits in the yeare out of terme and by such as haue the greatest sway of Iustice being al of them either the Kings ordinarie Iustices of his benches Sergeants at the lawe or such like Assise in the second signification according to Litleton is vsed for a Iurie For to vse his owne example it is set downe in the beginning of the record of an assise of novel disseisin Assissa venit recognitura which is as much to say as Iuratores veniunt recognituri The reason why the Iurie is called an assise he giueth to be this because by the writte of assise the Shyreeue is commaunded quòd faciat duodecim liberos legales homines de viceneto c. videre tenementum illud nomina eorum imbreviari quod summoneat eos per bonas
the partie himselfe detaineth it and refuseth to bring it in Regist orig fo 152. b. In like maner may be said of certificando de statuto mercatorio eodem fo 148. and de certificando in cancellarium de inquisitione de idemptitate nominis fo 195. and certificando quando recognitio c. and certificando quid actum est de breui super statutum mercatorium fo 151 certificando si loquela Warantiae fo 13. Cessor is he that ceseth or neglecteth so long to performe a dutie belonging vnto him as that by his cesse or cessing he incurreth the daunger of lawe and hath or may haue the writ cessavit brought against him Old nat br fo 136. And note that where it is saide in diuers places the tenent cesseth without any more words such phrase is so to be vnderstood as if it were said the tenent ceseth to doo that which he ought or is bound to doe by his land ortenement Cessavit is a writ that lyeth in diuers cases as appeareth by Fitzh nat br fo 208. vpon this generall grounde that he against whome it is brought hath for 2. yeares foreslowne to performe such seruice or to pay such rent as he is tied vnto by his tenure and hath not vpon his land or his tenement sufficient goods or catells to be distreined Consult more at large with Fitz. vpon this vbi supra with Fleta li. 5. ca. 34. § visa sunt and with the Termes of lawe See Cessauit de cantaria Register orig fo 238. Cessavit de feodi firma eodem fo 237. Cessavit per biennium eodem folio etiam eodem See the newe booke of entrise verbo Cessavit Cestui qui vie is in true French cestui a vie de qui i. he for whose life any land or renement is graunted Perkins graunts 97. Cestui qui vse ille cuius vsui vel ad cuius vsum is broken french and thus may be bettered Cestui al vse de qui It is an ordinarie speech among our common lawyers signifying him to whose vse any other man is infeoffed in any lands or tenements See the newe booke of entrise verbo vses and in Replevin fo 508. colum 3. verbo Trespas fo 606. fo 123. a. b. colum 3. n◠7. Chafe waxe is an officer in chauncery that fitteth the waxe for the fealing of the writs and such other instruments as are there made to be sent out This officer is borowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser 1. sectari belluas apros cervos It signifieth two things in the commō lawe First as much as actus in the civil lawe that is a dryving of catell to or from any place as to chase a distresse to a fortlet Old nat br fo 45. Secondly it is vsed for a receite for deere and wilde beasts of a middle nature betweene a forest and a parke being commonly lesse then a forest and not endued with so many liberties as the courtes of attachment Swaine mote and Iustice seate and yet of a larger compas and stored with greater diuersity both of keepers and wilde beasts or game then a park And Crompton in his booke of Iurisdictions fo 148. saith that a forest cannot be in the hands of a subiect but it forthwith looseth the name and becommeth a chase and yet fo 197. he saith that a subiect may be lord and owner of a forest which though it seeme a contrariety yet be both his sayings in some sort true For the king may giue or alienate a forest to a subiect yet so as when it is once in the subiect it leeseth the true property of a Forest because that the courts called the Iustice seate the Swain mote and Attachment foorthwith doe vanish none being able to make a Lord chiefe Iustice in Eyre of the Forest but the king as M. Manwood well sheweth parte 2. of his Forest lawes cap. 3. 4. And yet it may be granted in so large a maner that there may be Attachement and Swainemote and a court equiualent to a Iustice seat as appeareth by him in the same chapter num 3. So that a chase differeth from a Forest in this because it may be in the hands of a subiect which a Forest in his proper true nature cannot and from a Parke in that that it is not inclosed and hath not onely a larger compasse and more store of game but of Keepers also and ouerseers See Forest Chalenge calumnia commeth of the French chalanger i. sibiasserere and is vsed in the commō lawe for an exception taken either against persons or things persons as in assise to the Iurors or any one or more of them or in a case of felonie by the prisoner at the barre Smith de rep Anglor lib. 2. cap. 12. Britton ca. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration old nat br fol. 76. Chalenge made to the Iurours is either made to the array or to the polles Chalenge to the array is when the whole number is excepted against as partially empaneled chalenge to or by the polle when some one or more are excepted against as not indifferent Termes of the law Chalenge to the Iurours is also divided into Chalenge principall and Chalenge per cause i. vppon cause or reason Chalenge principall otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the lawe alloweth without cause alledged or farder examination Lamberd Eirenar lib. 4. cap. 14. as a prisoner at the barre arraigned vpon felonie may peremptorily chalenge to the number of 20. one after another of the Iurie empaneled vpon him alledging no cause but his owne dislike and they shall be still put off and new taken in their places But in case of high treason no Chalenge peremptorie is allowed an 33. H. 8. cap. 23. Fortescue saith that a prisoner in this case may chalenge 35. men c. 27. but that law was abridged by anno 25. H. 8. cap. 3. I cannot here omit to note some difference that in mine opinion I obserue betweene Chalenge principall and Chalenge peremptorie finding peremptorie to be vsed onely in maters criminall and barely without cause alledged more then the prisoners owne phantasie Stawnf pl. cor fol. 124. but principall in ciuill actions for the most part and with naming of some such cause of exception as being found true the lawe alloweth without farder scanning For example if either partie say that one of the Iurors is the sonne brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farder examination of the parties credit And how farre this chalenge vpon kinred reacheth you haue a notable example in Plowden casu Vernon against Maners fol. 425. Also in the plee of the death of a man
his lords court For the steward as he inrolleth and maketh remembrances of all other things done in the lords court so he doth also of such tenents as be admitted in the court to any parcell of land or tenement belonging to the maner and the transcript of this is called the court rowle the copie whereof the tenent taketh from him and keepeth as his onely euidence Coke li. 4. fo 25. b. This tenure is called a base tenure because it houldeth at the wil of the lord Kitchin fo 80. chap copihoulds Fitzh nat br fo 12. B. C. who there saieth that it was wont to be called tenure in villenage and that this copihould is but a new name Yet is it not simply at the will of the lord but according to the custome of the maner So that if a copiehoulder breake not the custome of the maner and thereby forfeit his tenure he seemeth not so much to stand at the lords courtesie for his right that he may be displaced hand ouer head at his pleasure These customes of maner be infinit varying in one point or other almost in euery seuerall maner First some copiehould is fineable and some certaine that which is fineable the lord rateth at what fine or incom he pleaseth when the tenent is admmitted vnto it that which is certaine is a kinde of inheritance and called in many places custumary because the tenent dying and the hould being void the next of the blood paying the custumarie fine as two shillngs for an acre or such like may not be denied his admission Secondly some copihoulders haue by custome the wood growing vpon their owne land which by law they could not haue Kitchin vbisupra Thirdly copi-holders some be such as hold by the verge in ancient demesn although they hold by copy yet are they in accompt a kind of Free-holders For if such a one commit felonie the king hath annum diem vastum as in case of Freehold Some other hold by common tenure called meere copy hold and they committing felonie their land escheateth to the Lord of the maner foorthwith Kitchin fol. 81. chap. Tenents per verge in auncient demesn What auncient demesn is see in the right place See Tenent by copie of court rolle This is the land that in the Saxons time was called Folk land Lamberd explicat of Saxon words verbo Terra ex scripto West parte prim symbol lib. 2. Sect. 646. defineth a copi-holder thus Tenent by copie of court rolle is he which is admitted tenent of any lands or tenements within a maner that time out of the memory of man by vse and custome of the said maner haue bene dimisable and dimised to such as will take the same in fee in fee-fee-taile for life yeares or at will according to the custome of the said maner by copie of courtrolle of the same maner where you may read more of these things Coraage coraagium is a kinde of imposition extraordinarie growing vpon some vnusuall occasion and it seemeth to be of certaine measures of corne For corus tritici is a certaine measure of corne Bracton libro 2. ca. 16. nu 6. who in the same chapter nu 8. hath of this mater these words Sunt etiam quaedam communes praestationes quae seruitia non dicuntur nec de consuetudine veniunt nisi cùm necessitas interuenerit vel cùm rex venerit sicut sunt hidagia coraagia caruagia alia plura de necessitate ex consensu communitotius regni introducta quae ad dominum feudi non pertinent de quibus nullus tenetur tenentē suū acquietare nisi se adhoc specialiter obligauerit in charta sua c. Cordiner commeth of the French cordoüannier i. sutor calcearius a shoomaker and is so vsed in diuers statutes as anno 3. H. 8. ca. 10 anno 5. eiusdem ca. 7. and others Cornage cornagium commeth of the French cor i. cornu and in our common law signifieth a kinde of grand sergeantie the seruice of which tenure is to blow a horne when any invasion of the northern enemie is perceiued And by this many men hold their land northward about the wall commonly called the Picts walle Camd. Britan p. 609. hence commeth the word cornuare to blow a horn pupil oculi parte 5. ca. 22. in charta de Foresta This seruice seemeth to haue proceeded from the Romanes For I finde cornicularios mentioned in the ciuile lawe viz. li. 1. Cod. de officio diuerso Iud. 48. lege 3. lib. 12. titulo de apparitoribus praefectorum praetorio 53. lege 1. 3. where Lucas de Penna defineth them eos qui cornu faciunt excubias militares And Brissonius libro 3. de verbo significat saith thus of them hi militum quoddam genus fuere qui corniculo merebant vnde nomen habent Where it appeareth by him out of Suetonius Plinie and Livie that the horne was an honour reward giuen for seruice in war Corner tile See Gutter tile Corodye corodium commeth of the Latine verb corrodo and signifieth in our common lawe a summe of mony or allowance of meate and drinke due to the king from an abbey or other house of religion whereof he is the founder toward the reasonable sustenāce of such a one of his seruants being put to his pension as he thinketh good to bestowe it on And the difference betweene a corodie and a pension seemeth to be that a corodie is allowed toward the maintenance of any the kings seruants that liueth in the abbey a pension is giuen to one of the kings chaplaines for his better maintenance in the kings seruice vntill he may be prouided of a benefice Of both these read Fitzh nat br fo 230. 231. 233. who there setteth downe all the corodies and pensions certaine that any abbey when they stoode was bound to performe vnto the king There is mention also of a corodie in Stawnf praerogatiue fo 44. And this seemeth to be awncient lawe For in Westm 2. ca. 25. it is ordeined that an assise shall lie for a corodie It is also apparent by the statute anno 34. 35. H. 8. ca. 16. that corodies belonged some time to Bishops from monasteries by the new termes of lawe that a corodie may be due to a common person by graunt from one to another or of common right to him that is founder of a religious house not holden in frank almoyn For that tenure was a discharge of all corodies in it selfe By which booke it appeareth also that a corodie is either certaine or vncertaine and that it may be for life yeares in taile or in fee. Corodio habendo is a writ whereby to exact a corodie of any abbey or religious house See Corodie See the Register originall fo 264. Coronatore eligendo is a writte which after the death or discharge of any coroner is directed to the shyreeue out of the Chācery to call togither the free
petitioners as in conscionable cases deale by supplication with his Maiestie This court as M. Gwin saith in the preface to his readings had beginning from commission first graunted by Henry the 8. to the masters of Requests whereas before that time by his opinion they had no warrant of ordinary iurisdiction but trauelled betweene the king and the petitioner by direction from the kings mouth But Sir Iulius Caesar in a Tractate of his painefully and very iudiciously gathered from the records of the same court plainely sheweth that this court was 9. Henrici septimi though then following the king and not setled in any certaine place neither swayed particularly by the Masters of requests as now it is but more at large by others of the kings most Honourable Councell whom he pleased to employ in this seruice For pag. 148. of the said Tractate you haue the forme of the oath then ministred to those that were Iudges in this court and à pag. prim vsque ad pag. 46. causes of diuers natures which in the said kings dayes were there handled and adiudged This court as that right Honorable and learned Knight in a briefe of his vpon the same court plainely proueth was and is parcell of the kings most Honorable Councell and so alwaies called and esteemed The Iudges thereof were alwaies of the kings most Honourable Councell appointed by the king to keepe his Councell board The keeping of this court was neuer tyed to any place certaine but onely where the Councell sate the suyters were to attend But now of late for the ease of suiters it hath bene kept in the White hall at Westminster and onely in the Tearme time It is a court of Record wherein recognizances are also taken by the kings Councell The forme of proceeding in this court was altogether according to the processe of summarie causes in the ciuile lawe The persons plaintiffes and defendants were alwaies either priviledged as officers of the court or their servants or as the kings seruants or as necessarie attendants of them or else where the plaintiffes pouertie or meane estate was not matchable with the wealth or greatnesse of the defendant or where the cause meerely contained mater of equitie and had no proper remedie at the common law or where it was specially recommended from the king to the examination of his Councell or concerned Vniuersities Colledges Hospitals and the like The causes wherwith they deale and wherof they iudge are of all sortes as maritime vltra marine ecclesiasticall temporall but properly temporall causes and onely of the other sort as they are mixt with temporal The maner of proceeding in the said court is first by privie seale leters missiue or Iniunction or messenger or bond Secondly by attachement Thirdly by proclamation of rebellion Fourthly by commission of rebellion fiftly by Sergeant at armes The effect of the defendants apparence is that he attend de die in diem on the councell till he haue made his answer to the plaintiffes bill and be licenced to depart vpon caution de iudicio sisti indicato solvendo and constitution of his Atturney and councell by name The authoritie of this court is such as vppon cause to graunt iniunctions for barring the defendant from syewing the plaintiffe at the common lawe and to stay the suyte at the common lawe before commencement and not to arrest the bodie of the plaintiffe till furder order be taken by the Kings councell and the execution of a decree in this court may be done either by imprisonment of the person disobeying being partie or claiming vnder the partie or by levie of the summe adiudged vppon his lands Courtesie of England lex Angliae commeth of the french Courtesie i. benignitas humanitas but with vs hath a proper signification being vsed for a tenure For if a man marie an inheretrice that is a woman seised of land in fee simple or fee taile generall or seised as heire of the taile speciall and getteth a childe of her that commeth aliue into the world though both it and his wife die forthwith yet if she were in possession shall he keepe the land during his life and is called tenent per legem Angliae or by the courtesie of England Glanvil li. 7. ca. 18. Bracton li. 5. tracta 5. ca. 30. nu 7. 8. 9. Britton ca. 51. fo 132. Fleta li. 6. ca. 56. § lex quaedam Fitzh nat br fo 149. D. Litleton li. 1. ca. 4. It is called the law of England Westm 2. ca. 3. This is in Scotland called curialitas Scotiae Skene de verbo sign verbo Curialitas who there saith that this is vsed in these two realmes onely and maketh a large discourse of the custome Coutheutlaughe is he that wittingly receiueth a man outlawed and cheriseth or hideth him In which case he was in auncient times subiect to the same punishment that the outlawe himselfe was Bracton li. 3. tracta 2. ca. 13. nu 2. It is compounded of couthe i. knowne acquainted familiar and vtlaughe an outlaw as we now call him Courtilage aliâs curtilage curtilagium aliâs curtilegium signifieth a garden a yard or a feeld or peece of voide ground lying ne ere and belonging to a mesuage West parte 2. Symbolaeo titulo fines sect 26. And so is it vsed anno 4. Ed. i. ca. vnico anno 35. H. 8. ca. 4. anno 39. Eliza ca. 2. and Coke vol. 6. fo 64. a. Of this also Lindwood thus writeth Curtilegium vulgare nomen est non omnium patriarum sed certarum Est enim curtis mansio vel manerium ad habitandum cum terris possessionibus aliis emolumentis ad tale manerium pertimentibus prove satis colligitur in libro feudorum titulo de controuersia investiturae § si quis de manso Coll. 10. Vnde curtilegium dicitur locus adiunctus tali curti vbi leguntur herbae vel olera sic dictus a curtis lego legis pro collig ere Thus farre Linwood titulo de decimis ca. Sancta § omnibus verbo Curtelegiorum So that in effect it is a yard or a garden adioyning to a house Creansour creditor commeth of the french croyance i. persuasio and signifieth him that trusteth another with any debt be it in mony or wares Old nat br fo 67. Cranage cranagium is a liberty to vsea crane for the drawing vp of wares from the vessels at any creek of the sea or wharfe vnto the land and to make profit of it It signifieth also the mony paide and taken for the same New booke of Entries 〈◊〉 3. col 3. Creeke creca crecca vel crecum seemeth to be a part of a hauen where any thing is landed or disburdened out of the sea So that when you are out of the mayne sea within the hauen looke how many landing places you haue so many creeks may be said to belong to that hauen See Cromptons iurisdictions fo 110. a. This word is mencioned in the statute as anno
a distinction between those lands that the Lord of a maner hath in his owne hands or in the hands of his leasec dimised vpon a rent for tearme of yeares or life and such other laÌ„d appertaining to the said maner which belongeth to free or copy-houlders Howbeit the copyhold belonging to any maner is also in the opinioÌ„ of many good lawyers accounted Demeines Bracton in his fourth booke tract 3. ca. 9. nu 5. hath these words Item dominicum accipitur multipliciter Est auteÌ„ dominicum quod quis habet admensam suam propriè sicut sunt Bordlands anglie Item dicitur dominicum villenagium quod traditur villanis quod quis tempestiuè intempestiue resumere possit pro voluntate sua reuocare Of this Fleta likewise thus writeth Dominicum est multiplex Est autem Dominicum propriè terra admensam assignata villenagium quod traditur villanis ad excolendum terra precariò dimissa quae tempestiuè pro voluntate domini poterit reuocari sicut est de terra commissa tenenda quam diu commissori placuerit poterit dici Dominicum de quo quis habet liberum tenementum alius vsumfructum etiam vbiquis habet liberum tenementum alius curam sicut de custode dicipoter it curatore vnde vnus dicitur a iure alius quoque ab homine Dominicum etiam dicitur ad differentiam eius quod tenetur in seruitio Dominicum est omne illud tenementum de quo antecessor obiit seisitus vt de feudo nec refert cum vsufructu vel sine de quo si eiect us esset si viueret recuperare posset per assissam nomine disseisina licet alius haberet vsum fructum sicut dici poterit de illis qui tenent in villenagio qui vtuntur fruuntur non nomine proprio sed nomine Domini sui Fleta l. 5. c 5. § DominicuÌ„ auteÌ„ And the reasoÌ„ why copyhold is accouÌ„ted Demeanes is because they that be tenents vnto it are iudged in law to haue nor other right but at the will of the lord Soe that it is reputed still after a sort to be in the Lords hands And yet in common speach that is called ordinarily Demeanes which is neither free nor copy It is farder to be noted that Demaine is sometime vsed in a more speciall signification and is opposite to Franck fee. For example those lands which were in the possession of King Edward the confessor are called auncient Demaine all others be called Franck fee. Kitchin fol 98. and the tenents which hould any of those lands be called tenents in auncient demaine the others tenents in franck fee. Kitchin vbi supra And also tenents at the common lawe West parte 2. Simbol titulo Fines Sect 25. The reason is because tenents in auncient Demaine cannot be syewed out of the Lords court Tearmes of the Lawe verbo Auncient Demaine And the tenents in auncieÌ„t demaine though they hould all by the verge and haue none other euideÌ„ce but copy of court rolle yet they are saide to haue free hould Kitchin fol. 81. See Awncient demaine Demayne cart of an Abbot seemeth to bee that cart which the Abbot vseth vpon his owe Demaine Anno. 6. H. 3. cap. 21. Demurrer Demorare commeth of the French Demeurer i. manere in aliquo loco vel morari It signifieth in our common lawe a kinde of pawse vpon a pointe of difficultie in any action and is vsed substantiuely For in euery action the controversie consisteth either in the fact or in the lawe if in the fact that is tried by the Iurie if in lawe then is the case plaine to the Iudge or so hard and rare as it breedeth iust doubt I call that plaine to the Iudge wherein hee is assured of the lawe though perhaps the partie and his councell yeeld not vnto it And in such the Iudge with his Assessors proceedeth to Iudgement without farder worke but when it is doubtfull to him and his Associates then is there stay made and a time taken either for the court to thinke farder vpon it and to agree if they can or els for all the IuÌ„stices to meete together in the Chequer chamber and vpon hearing of that which the sergeants shall say of both partes to advise and set downe what is lawe And whatsoeuer they conclude standeth firme without farder remedie Smith de Repub. Angliae lib. 2. cap. 13. West calleth it a Demurrer in chauncery likewise when there is question made whether a parties answer to a bille of complaint c. be defectiue or not and thereof reference made to any of the bench for the examination therof report to bee made to the court parte 2. symb tit Chauncery sect 29. Denariata terrae See Farding deale of land Denizen commeth of the French Donaison i. Donatio and signifieth in our common lawe an Alein that is infraÌ„chised here in England by the Princes charter an dinabled almost in all respects to doe as the kings natiue subiects doe namely to purchas and to possesse lands to be capable of any office or dignitie Yet it is saide to be short of naturalisâ—â—ion because a straunger naturalised may inherit lands by descent which a man made onely a denizen cannot And againe in the charter whereby a man is made denizen there is commonly conteined some one claufe or other that abridgeth him of that full benefite which naturall subiects doe inioy And when a man is thus infránchised he is saide to bee vnder the kings protection or esse ad fidem Regis Angliae before which time he can inioy nothing in England Bracton lib. 5. tractat 5. cap. 25. nu 3. Nay hee and his goods might bee seised to the kings vse Horn in his mirrour of Iustices li. 1. ca. de la Venue de franc plege Deodand Deodandum is a thing giuen or forseited as it were to God for the pacification of his wrath in a case of misaduenture whereby any Christian soule commeth to a violent ende without the fault of any reasonable creature For example if a horse should strike his keeper and so kille him if a man in dryuing a cart and seeking to redresse any thing about it should so fall as the cart wheele running ouer him should presse him to death if one should be felling of a tree and giuing warning to one coÌ„ming by wheÌ„ the tree were neere falling to looke to themselues and any of them should bee slaine neuerthelesse by the fall of the tree In the first of these cases the horse in the second the cart wheele carte and horses and in the third the tree is to be giuen to God that is to be sold and distributed to the poore for an expiation of this dreadfull euent though effected by vnreasonable yea sensles dead creatures Stawnf pl. cor lib. 1. ca. 2. whereof also read Bracton lib. 3. tractat 2. cap. 5. and Britton cap. 7. and West parte 2.
H. 3. ca. 7. ca. 9. ca. 12. See old nat breu fol. 71. b. See grand distresse what thngs bee distreinable and for what causes See the newe Termes of lawe verbo Distresse Of this also see more in Attachment Distringas is a writ directed to the Shyreeue or any other ofofficer commanding him to distreine one for a debt to the king c. or for his appearance at a day See great diuersitie of this writ in the table of the Register iudicial verbo Distringas Divise See Devise Dividends in the Exchequer seemeth to be one part of an Indenture anno 10. Ed. 1. ca. 11. anno 28. eiusdem Stat. 3. ca. 2. Dyvorce See Devorce Docket is a brife in writing anno 2. 3. Ph. Mar. ca. 6. West writeth it Dogget by whome it seemeth to be some small peece of paper or parchement conteining the effect of a larger writing Symbol parte 2. titulo Fines sect 106. Doctor and Student is a booke conteining certaine dialogues betweene a D. of Diuinitie and a Student at the common Law wherein are conteined questions and cases as well of the equitie and conscience vsed in the common Lawe as also a comparison of the Civile Canon and common lawe together very worthy the reading The author is said by D. Cosin in his Apologie to bee a gentleman called Saint German The booke was written in the daies of H. 8. To do lawe facere legem is as much as to make lawe 23. H. 6. ca. 14. See Make. Dogge drawe is a manifest deprehension of an offender against venison in the forest There bee foure of these noted by M. Manhood parte 2. of his forest lawes ca. 18. nu 9. viz. Stablest and Dogge drawe Back beare and Bloodie hand Dogge drawe is when one is found drawing after a deere by the sent of a hound that he leadeth in his hand Dogger a kinde of shippe an 31. Ed. 3. Stat. 3. ca. pr◠Doggerfish ibid. c. 2. seemeth to bee fish brought in those ships to Blackcney hauen c. Dogger men anno 2. H. 8. ca. 4. Dogget See Docket Domo reparanda is a writ that lyeth for one against his neighbour by the fall of whose house he feareth hurt toward his owne house Register originall fol. 153. for this point The ciuilians haue the action de damno infecto Dole fishe seemeth to be that fish which the fisher men yerely imployed in the north sease doe of custome receiue for their allowance See the statute a. 35. H. 8. ca. 7. Donatyue is a benefice meerely giuen and collated by the Patron to a man without either presentation to the Ordinary or Institution by the Ordinarie or Induction by his commandement Fitzh nat br fol. 35. E. See the statute anno 8. R. 2. cap. 4. Of this Petr. Gregor de beneficiis cap. 11. nu 10. hatl these words Si tamen Capellaniae fundatae per Laicos non fuerint a Dioecesano approbatae vt loquuntur spiritualizatae non censentur beneficia nec ab Episcopo conferri possunt sed sunt sub pia dispositione fundatoris Ioh. Faber ad § Nullius De rerum divis Ideo fundatores haeredes eorum possunt tales Capellanias donare sine Episcopo cui voluerint tanquam profona beneficia Guido Papaeus descis 187. See also Gregorius lib. 15. ca. 29. sui syntagmatis nu 11. I finde in the preface of M. Gwins readings that as the king might of auncient times found a free Chapell and exempt it from the iurisdiction of the Diocesan so hee might also by his leters patents licence a common person to found such a chapell and to ordeine that it shal be donatiue not presentable and that the Chaplaine shall be depriueable by the founder and his heires and not by the Bishop And this is likest to bee the originall of these Donatiues in England Fitzh saith that there be certaine Chauntries which a man may giue by his leters patents nat br fol. 33. C. See him also fol. 42. B. All Bishopricks were donatiue by the king Coke li. 3. fo 75. b. Doomes day Rotulus Wintoniae domus Dei Coke in Praefatione ad librum suum is a booke that was made in king Ed. the Confessors dayes as the author of the old nat br saith f. 15. containing in it not onely all the lands through England but also all the names of those in whose hands they were at that time when the book was made M. Lamberd in his explication of Saxon wordes verbo Ius Dacoru c. proueth out of Gervasius Tilburiensis that this booke was made in William the Conquerors time with whome agreeth M. Camden in his Britan. pag. 94. prouing it out of Ingulphus that flourished the same time And for the beter commendation of the booke it is not amisse to set downe the words of Ingulphus touching the contents thereof Totam terram descripsit Nec erat hyda in tota Anglia quin valorem eius possessorem scivit nec lacus nec locus aliquis quin in Regis rotulo extitit descriptus ac eius reditus proventus ipsa possessio eius possessor regiae notitiae manifest atus iuxta taxatorum fidom qui electi de qualibet patria territorium proprium describebant Iste rotulus vocatus est Rotulus Wintoniae ab Anglis pro sua generalitate quòd omnia tenementa totius terrae continuit Domesday cognominatur So it is called in the Statute anno pri Ric. 2. cap. 6. And in Ockhams lucubrations de fisci Regii ratione which seemeth to be taken out of the Booke called Liber rubeus in the Exchequer It is termed liber Iudicatorius and the reason why quia in eo totius Regni descriptio diligens continetur tam de tempore Regis Edwardi quà m de tempore Regis Willielmi sub quo factus est singulorum fundorum valentia exprimitur Dorture Dormitorium anno 25. H. 8. ca. 11. is the common roome place or chamber where all the friers of one couent slept and lay all night Dote assignanda is a writ that lieth for a widowe where it is found by office that the kings tenent was seised of tenements in fee or fee taile at the day of his death c. and that hee holdeth of the king in cheife c. For in this case the widowe commeth into the Chauncerie and there maketh oath that shee will not mary without the kings leaue Anno 15. Ed. 3. ca. 4. and herevpon shee shall haue this writte to the Escheatour for which see the Register originall fol. 297. and Fitzh nat br f. 263. And this sort of widowes is called the kings widowe See Widowe Dote vnde nihil habet is a writ of dower that lyeth for the widow against the tenent which hath bought land of her husband in his life time whereof he was feised solely in fee simple or fee taile in such sort as the issue of them both might haue inhereted it Fitzh
nat br fol. 147. Register fol. 170. Dotis admensuratione See Admēsurement See the Register fol. 171. Dotkins a kinde of coine pl cor fol 37. It seemeth to come of the Dutch word Duythen that is the eight part of a Stufer or French Shilling which in lat ne is called Solidus Gallicus Doubles anno 14. H. 6. cap. 6. signifie as much as leters patents being as it seemeth a French word made of the Latine diploma Double plee duplex placitum is that wherein the defendant alledgeth for himselfe two seuerall maters in barre of the action whereof either is sufficient to effect his desire in debarring the plaintiffe And this is not to be admitted in the common lawe wherefore it is well to be obserued when a plee is double and when it is not For if a man alledge seuerall maters the one nothing depending of the other the plee is accounted double If they be mutually depending one of the other then is it accompted but single Kitchin fo 223. See Broke hoc titulo But why this doublenes for so Kitchin calleth it fol. 234. should bee debarred I see no reason vnder correction all things being spoken For a man may haue two good defences and happily in the issue he shall contrarily to his hope faile in prouing the one and yet be able to carie the cause by the other And therefore not onely the Civilians but Bracton also saith Pluribus exceptionibus uti nemo prohibetur lib. 5. tract 5. cap. 5. num 4. whom also reade libro 4. cap. 17. And Sir Thomas Smiths reason of this scantly satisfieth me alledging this to be the course of our proceeding because the triall is by twelue rude men whose heades are not to be troubled with ouer many things at once lib. 2. de Repub Anglor cap. 13. Double quarell duplex querela is a complaint made by any Clerke or other vnto the Archbishop of the Prouince against an inferiour ordinarie for delaying of iustice in some cause ecclefiasticall as to giue sentence or to institute a clerke presented or such like The effect whereof is that the said Archbishop taking knowledge of such delay directeth his leters vnder his authenticall seale to all and singular clerkes of his Prouince therby commaunding and authorizing them and euery of them to admonish the said Ordinarie within a certaine number of dayes namely 9. dayes to doe the iustice required or otherwise to cite him to appeare before him or his officiall at a day in the said leters prefixed and there to alledge the cause of his delay And lastly to intimate to the said Ordinarie that if he neither performe the thing enioyned nor appeare at the day assigned he himselfe will without farder delay proceed to perform the iustice required And this seemeth to be tearmed a double quarell because it is most commonly made against both the Iudge and him at whose petition iustice is delayed Dower dos commeth of the French douaire and signifieth in our common lawe two things first that which the wife bringeth to her husband in mariage otherwise called maritagiū mariage good next and more commonly that which she hath of her husband after the mariage determined if she out-liue him Glanvile lib. 7. cap. 1. Bracton lib. 2. cap. 38. Britton cap. 101. in princ And in Scotland dos signifieth iust as much Skene de verb. signif verbo Dos The former is in French called dot the other doüayre and by them latined doarium I likewise once thought it not vnreasonable to call the former a Dowrie the other a Dower but I find them confounded For exāple Smith de rep Anglo p. 105. calleth the later a dowrie and dower is sometime vsed for the former as in Britton vbi supra yet were it not inconuenient to distinguish them being so diuers The Civilians call the former dotem and the later donationem propter nuptias Of the former the common law bookes speake very litle This onely is to be noted that whereas by the ciuile lawe instruments are made before mariage which containe the quantitie of the wiues dowrie or substance brought to her husband that he hauing the vse of it during mariage may after certaine deductions restore it againe to his wiues heires or friends after the mariage dissolued the common lawe of England whatsoeuer chatels moueable or immoueable or readie money she bringeth doth make them foorthwith her husbands owne to be disposed of as he will leauing her at his courtesie to bestow any thing or nothing of her at his death The reason whereof is said to be the holding of the wife in obedience to her husband Onely if she be an inheretrice her husband holdeth the land but during her life except he haue issue by her but then he holdeth it by the courtesie of England during his owne life See Courtesie And againe if he haue any land in fee wherof he was possessed during the mariage she is to haue a third therof during her life though she bring nothing to him except she doe by fine release her right during the mariage So that here is no great mater to bee spoken of but touching dower in the later signification You must know therfore that vpon speech of mariage betweene two the parents of both sides are commonly more carefull in prouiding each for his childe then the parties themselues and that by their meanes there bee diuers bargaines made sometime for the conueiance of lands c. to them and their issue and this is said to be giuen in franke mariage sometime to her during her life and that before or at the mariage if before mariage then it is called a Ioynture For a Ioynture is a couenant whereby the husband or some for him is tyed ratione iuncturae in consideration of the mariage that the wife surviuing him shall haue during her life this or that tenement or lands or thus much rent yearely paylible out of such land c. with clause of distresse and this may be more or lesse as they doe accord Britton cap. 101. whome read also ca. 102. 103. 104. for conventio vincit legem Bracton lib. 5. tract 4. cap. 9. The diuersitie of these Ioyntures you may see in West parte prima symbol lib. 2. sect 128. 129. 130. 131. 132. 133. But if none of these former bargaines passe before mariage then must the wife stick to her Dower and that is sometime giuen at the Church doore or the Chappell doore if the mariage bee by licence but not the chamber doore and may bee what the husband will so it exceede not a third part of his lands G lanvile libro 6. cap. pri Or the halfe as some say Fitzh nat br fol. 150. N. P. And this Dower is either certainly set downe and named or not named but onely in generalitie as the law requireth if it be not named then is it by lawe the third part and called dos ligitima Bracton lib. 4. tracta 6. cap. 6. nu 6.
10. Magna Charta c. 7. or the halfe by the custome of some countries as in Gavelkinde Fitzh nat br fol. 150. O. And though it bee named it seemeth that it cannot bee aboue halfe the lands of the husband Fitzh nat br fol. 150. P. And the woman that will chalenge this dower must make 3. things good viz. that shee was maried to her husband that he was in his life time seised of the land whereof shee demaundeth dower and that he is dead Cokesreportes li. 2. Binghams case fo 93. a. Of these things see Glanvile li. 6. cap. 1. 2. 3. Bracton lib. 2. ca. 38. 39. lib. 4. tracta 6. cap. 1. 6. and Britton cap. 101. 102. 103. 104. and Fitzherb natur brev fol. 147. 148. 149. 150. And this custumary dower seemeth to be obserued in other nations as well as in ours Hotoman verbo Dotalitium in verbis feudal Cassan de consuetud Burg. pag. 580. 676. 677. de conventionali p. 720. And to these ioyne the graund Custumarie of Normandie cap. 102. where you shall perceiue that in a maner all our lawe in this point is taken from the Normans See Endowment Of dower reade Fleta likewise who writeth largely thereof and hath many things worth the learning li. 5. ca. 22 seqq Dozenne See Decennier Drags ano 6. H. 6. ca. 5. seeme to be wood or timber so ioyned together as swimming or floting vpon the water they may beare a burden or load of other wares downe the river Drawe latches anno 5. Ed. 3. ca. 14. anno 7. Rich. 2. ca. 5. Master Lamberd in his Eirenarch lib 2. ca. 6. calleth them miching theeues as Wasters and Roberdsemen mighty theeues saying that the words be growne out of vse Dreit Dreit signifieth a double right that is ius possessionis ius Domini Bracton lib 4. cap. 27. lib. 4. tracta 4. cap 4. lib. 5. tracta 3. cap. 5. Drye exchaunge an 3. H. 7. ca. 5. Cambium siccum seemeth to be a clenly terme inuented for the disguising of foule vsury in the which some thing is pretended to passe of both sides wheras in truth nothing passeth but on the one side in which respect it may well be called drie Of this Ludouicus Lopes tractat de contract negotiatio lib 2. ca. pri § Deinde postquam writeth thus Cambium est reale vel siccum Cambium reale dicitur quod consistentiam veri Cambit realem habet Cambium per trans Cambium minutum Cambium autē siccum est Cambium non habens existentiam Cambii sed apparentiam ad instar arboris exsiccatae quae humore vitali iam carens apparentiam arboris habet non existentiam Summa Sylv Verbo Vsura quaest 6. Est ergo Cambium siccum iuxta hanc acceptionem in qua etiam accipitur in Extrau Pii quinti idem quod Cambium fictū Non autē habet propriam naturam Cambii sed mutui vsurae At verò secundum Laurentium de Nauarra in Cōmento de vsuris Cambiis citatam Cambium siccum in alia acceptione minùs communi sumptum est Cambium in quo Campsor prius dat quam accipiat Dicitur autem isto modo siccum quia sine praeuia acceptione dat Campsor Quod tamen vt fic acceptum autore Siluestro licitè celebratur aliquando Quia tunc verum reale Cambium est differens genere ab eo Cambio in quo Campsor prius recipit Quia in isto Campsor semper primò dat deinde accipit Drift of the Forest seemeth to be nothing but an exact view or examination what catell are in the forest that it may be known whether it be ouercharged or not and whose the beastes be This drift when how often in the yeare by whome and in what maner it is to be made see Manwood parte 2. of his forest lawes cap 15. Droit d' Advowzen See Recto de aduocatione Ecclesiae Droit close See Recto clausum Droit de dower See Recto dotis Droit sur Disclaimer See Recto sur disclaimer Droit patent See Rectopatens Duces tecum is a writ commaunding one to appeare at a day in the chauncery and to bring with him some peece of euidence or other thing that the court would view See the new booke of Entries verb. Duces tecum Duke Dux commethe of the french Duc It signifieth in auncient times among the Romaines Ductorem exercitus such as led their armies who if by their prowes they obteined any famous victory they were by their souldiers sa'uted Imperatores as Hotoman verbo Dux de verbis feud il proueth out of Lyvy Tully and others Sithence that they were called Duces to whome the king or people committed the custodie or regiment of any province Idem eod And this seemeth to proceede from the Lombards or Germans Sigon de regno Ital. l. 4. In some natiōs at this day the Soveraignes of the country are called by this name as Duke of Russia Duke of Swethen Heere in England Duke is the next in seculer dignitie to the Prince of Wales And as M. Camden saith heretofore in the Saxons times they were called Dukes without any addition being but meere officers and leaders of armies After the Conquerour came in there were none of this title vntil Edward the thirds daies who made Edward his son Duke of Cornwayle After that there were more made and in such sort that their titles descended by inheritance to their posteritie They were created with solemnitie per cincturam gladii cappaeque circuli aurei in capite impositionem vide Camd. Britan. pa. 166. Zasium de feudis parte 4. nu 7. Cassan de consuetud Burg pag. 6. 10. and Ferns glory of generosity pag. 139. Dutchy court is a court wherein all maters appertaining to the Dutchy of Lancaster are descided the decree of the Chauncelour of that Court. And the originall of it was in Henry the fourthes daies who obtaining the crown by deposing Richard the second and hauing the Dutchy of Lancaster by discent in the right of his mother he was seised thereof as king and not as Duke So that all the liberties fraunchises and Iurisdictions of the said Dutchy passed from the king by his graund seale and not by liverie or attournment as the possessions of Everwicke and of the Earldome of March and such others did which had descended to the king by other Auncesters then kings But at the last Henry the 4. by authoritie of Parlament passed a charter whereby the possessions liberties c. of the said Dutchy were seuered from the Crowne Yet Henry the 7. reduced it to his former nature as it was in Henry the fifts daies Crompton Iurisdict fol. 136. The officers belonging to this Court are the Chauncellour the Atturney Receiuer generall Clerke of the court the Messenger Beside these there be certain Assistantes of this Court as one Atturney in the Exchequer one Atturney of the Dutchy in the Chauncery foure
45. Essoines and profers anno 32. H. 8. cap. 21. See Profer Essonio de malo lecti is a writ directed to the Shyreeue for the sending of 4. lawfull knights to view one that hath essoined himselfe de malo lecti Register orig fol. 8. b. Establishment of dower seemeth to be the assurance of dower made to the wife by the husband or his freinds before or at mariage And assignement is the setting it out by the heire afterward according to the Establishment Britton cap. 102. 103. Estandard or Standard commeth of the French Estandart or Estendart i. signum vexillum It signifieth an Ensigne in warre as well with vs as with them But it is also vsed for the principall or standing measure of the King to the scantling whereof all the measures through the land are or ought to be framed by the Clerk of the market Aulneger or other officer according to their functions For it was established by the statute of Magna charta anno 6. H. 3. ca. 9. that there should be but one scantlin of weights or measures thorough the whole realme which is sit hence confirmed by Anno 14. Ed. 3. ca. 12. and many other statutes as also that all should be fitted to the Standard sealed with the kings seale It is not called a Standard without great reason because it standeth constant and immoueable and hath all other measures comming toward it for their conformitie euen as souldiours in field haue their Standard or colours for their direction in their march or skirmish Of these Standards and measures reade Britton cap. 30. Estate commeth of the French Estat i. conditio and signifieth especially in our cōmon lawe that title or interest which a man hath in lands or tenements as estate simple otherwise called fee simple and estate conditionall or vpon condition which is as Litleton saith li. 3. ca. 5. either vpon condition indeede or vpon condition in lawe Estate vpon condition in deede is where a man by deede indented infeoffeth another in fee reseruing to him and to his heires yearelie a certaine rent paiable at one feast or at diuers vpon condition that if the rent be behind c. that it shall be lawfull to the feoffour and to his heires to enter in the lands or tenements c. Estate vpon condition in lawe is such as hath a consideration in the lawe annexed to it though it be not specified in writing For example if a man graunt to another by his deed the office of a Parkership for terme of his life this estate is vpon condition in the lawe or imploied by lawe viz. if the Parker so long shall wel and truly keepe the parke c. I reade also of an estate particular which is an estate for life or for yeares Parkins Surrenders 581. Estopel seemeth to come from the French estouper i. oppilare obturare stipare obstipare and signifieth in our common lawe an impediment or barre of an action growing from his owne fact that hath or otherwise might haue had his action for example A tenent maketh a feofment by collusion to one the Lord accepteth the seruices of the feoffee by this he debarreth himselfe of the wardship of his tenents heire Fitz. nat br fo 142. K. Diuers other examples might be shewed out of him and Brooke h. titule Sir Edward Cooke lib. 2. casu Goddard fol. 4. b. defineth an estopel to be a barre or hindrance vnto one to pleade the truth and restraineth it not to the impediment giuen to a man by his owne act onely but by anothers also li. 3. The case of Fines fol. 88. a. Estovers Estoverium commeth of the French estouver 1. fovere and signifieth in our common lawe nourishment or maintenance for example Bracton lib. 3. tractat 2. cap. 18. num 2. vseth it for that sustenance which a man taken for felonie is to haue out of his lands or goods for himselfe and his family during his imprisonment and the statute anno 6. Ed. prim cap. 3. vseth it for an allowance in meate or cloath It is also vsed for certaine allowances of wood to be taken out of another mans woods So is it vsed West 2. cap. 25. anno 13. Edw. 1. M. West parte 2. symbol titulo Fines sect 26. saith that the name of Estovers containeth housebote hay-bote and plow-bote as if he haue in his graunt these generall words De rationabili estoverio in boscis c. he may thereby clay me these three Estrepement or Estripament estrepementum commeth of the French word estropier i. mutilare obtruncare the which word the French men haue also borowed of the Italians or rather Spaniards with whome Estropear signifieth to set vpon the racke It signifieth in our common lawe spoile made by the tenent for terme of life vpon any lands or woods to the preiudice of him in the reversion as namely in the statute anno 6. Ed. 1. ca. 13. And it may seeme by the deriuation that Estrepament is properly the vnm easurable soaking or drawing of the heart of the land by ploughing or sowing it continually without manuring or other such vsage as is requisite in good husbandrie And yet Estropier signifying mutilare it may no lesse conueniently be applied to those that cut downe trees or loppe them farder then the lawe will beare This signifieth also a writte which lieth in two sorts the one is when a man hauing an action depending as a fordom or dum fuit infra aetatem or writ of right or any such other wherein the demandant is not to recouer dammages sieweth to inhibite the tenent for making waste during the suite The other sort is for the demaundant that is adiudged to recouer seisin of the land in question and before executiō siewed by the writ Habere facias seisinam for feare of waste to be made before he can get possession sieweth out this writ See more of this in Fitzh nat br fol. 60. 61. See the Register orig fol. 76. and the Regist iudicial fol. 33. Estreate extractum vel extracta commeth of the French Traict which among other things signifieth a figure or resemblance and is vsed in our common lawe for the copie or true note of an originall writing For example of amerciaments or penalties set downe in the rolles of a court to be leauied by the Bay liffe or other officer of euery man for his offence See Fitzh nat br fol. 75. H. I. K. 76. A. And so is it vsed Westm 2. cap. 8. anno 13. Edw. 1. Estrey extrahura in our common law signifieth any beast not wilde found within any Lordship and not owned by any man For in this case if it being cried according to lawe in the market townes adioyning shall not be claimed by the owner within a yeare and a day it is the Lords of the soyle See Britton cap. 17. See Estrayes in the Forest anno 27. H. 8. cap. 7. New booke of Entries verbo Trespas concernant estrey Evidence
See Fitzh nat br fol. 198. L. Exigendarie of the common banke Exigendarius de banco comuni is otherwise called Exigenter anno 10. H. 6. cap. 4. and is an officer belonging to that court for the which see Exigenter Exigent Exigenda is a writ that lyeth where the defendant in an action personall cannot be found nor any thing within the county whereby to be attached or distrained and is directed to the Shyreeue to proclaime and call fiue county daies one after another charging him to appeare vnder the paine of outlawrie Termes of the law This writ lyeth also in an indictment of felony where the party indicted cannot be found Smith de Rep. Angl. li. 2. ca. 19. It seemeth to be called an Exigent because it exacteth the party that is requireth his expearance or forth-comming to answer the lawe for if he come not at the last daies proclamation he is saide to be quinquies exactus and then is outlawed Crompton Iurisd fol. 188. and this M. Manwood also setteth downe for the law of the forest parte i. of his forest lawes pag. 71. See the new booke of Entries verbo Exigent Exigenter Exigendarius anno 18. H. 6. ca. 9. is an officer of the court of common plees of whom there be foure in number They make all Exigents and proclamations in all actions where proces of outlawrie doth lie and writs of supersedeas as well as the protonotaries vpon such exigents as were made in their offices Ex mero motu are words formally vsed in any charter of the Prince whereby he signifieth that he doth that which is cōtained in the charter of his owne will and motion without petition or suggestion made by any other And the effect of these words are to barre al exceptions that might be taken vnto the instrument wherein they be contained by alledging that the Prince in passing that charter was abused by any false suggestion Kitchin fol. 151. Exoneratione sectae is a writ that lyeth for the kings ward to be disburdened of all suite c. to the Countie Hundred Leet or court Baron during the time of his wardship Fitz. nat br fol. 158. Exparte latis is a writ that lyeth for a Bayliffe or Receiuer that hauing Auditours assigned to heare his accompt cannot obtaine of them reasonable allowance but is cast into prison by them Regist fol. 137. Fitzh nat br fol. 129. The maner in this case is to take this writ out of the Chauncerie directed to the Shyreeue to take foure mainperuours to bring his bodie before the Barons of the Echequer at a day certaine to warn the Lord to appeare at that time Newe Tearmes of the lawe verb. Accompt Expectant is vsed in the common lawe with this word fee and thus vsed it is opposite to Fee-simple For example lands are giuen to a man and his wife in franke mariage to haue and to hold to them and their heires In this case they haue Fee simple But if it be giuen to them and the heires of their body c. they haue tayle and see expectant Kitchin fol. 153. Mathaeus de afflictis vseth the Adiectiue expectativa substantiuely in the same signification Descis 292. num 2. pag. 412. Explees See Espleese Expeditate expeditare is a word vsuall in the Forest signifiing to cut out the balles of the great dogges feet for the preseruation of the Kings game Euery one that keepeth any great dogges not expeditated forfeiteth to the king 3. shillings 4. pence Crompt iurisd fol. 152. M. Manwood vseth the same word parte prim of his Forest lawes pag. 205. and pag. 212. he setteth downe the manner of expeditating dogges heretofore viz. Quòd tres ortelli abscindantur sine pellota de pede anteriori i. that the three clawes of the sorefoot on the right side shall be cut off by the skinne whereunto he also addeth out of the same ordinance called the Assise of the Forest that the same maner of expeditating of dogges shall be still vsed and kept and none other Quaere whence it groweth that M. Crompton and hee differ the one saying that the ball of the foote it cut out the other that the three foreclawes are pared off by the skinne Expensis militum levandis is a writ directed to the shyrecue for levying the allowance for Knights of the Parlament Register original fol. 191. b. Expensis militum non levandis ab hominibus de antiquo dominico nec à natiuis is a writ whereby to prohibite the Shyreeue from levying any allowance for the Knights of the Shire vpon those that hold in auncient demesn c. Regist orig fol. 261. b. Extend extendere commeth of the French estendre i. dilatare dispandere distendere and signifieth in our common lawe to valew the lands or tenements of one bound by statute c. that hath forfeited his bond to such an indifferent rate as by the yearely rent the obligour may in time be paide his debt The course and circumstances of this see in Fitzh nat br fol. 131. Brief d'execution sur statut Merchant Extendi facias is a writ ordinarily called a writ of extent whereby the valew of lands c. is commaunded to be made and leavied in divers cases which see in the table of the Register originall Extent extenta hath two significations sometime signifiing a writ or commission to the shyreeue for the valuing of lands or tenements Register iudiciall in the Table of the booke sometime the act of the Shyreeue or other Commissioner vpon this writ Brooke titulo Extent fol. 313. Extinguishment in our common law signifieth an effect of consolidation For example if a man haue due vnto him a yearely rent out of any lands and afterward purchase the same lands now both the property and rent are consolidated or vnited in one possessour and therefore the rent is said to be extinguished In like maner it is where a man hath a lease for yeares and afterwards buyeth the property this is a consolidation of the property and the fruites and is an extinguishment of the lease See the terms of lawe Extirpatione is a writ Iudiciall that lyeth against him who after a verdict found against him for land c. doth maliciously ouerthrow any house vpon it c. and it is two-fold one ante iudicium the other post iudicium Register iudiciall fol. 13. 56. 58. Extortion Extortio signifieth in our common law an vnlawfull or violent wringing of mony or mony worth from any man For example if any officer by terrifiing any the kings subiects in his office take more then his ordinary duties he committeth and is inditeable of extortion To this by M. Wests iudgment may be referred the exaction of vnlawfull vsurie winning by vnlawfull games and in one word all taking of more then is due by colour or pretence of right as excessiue tolle in milners excessiue prices of ale bread victuals wares c. West parte 2. Simbol titulo Indictments sect 65. M
both in his commentaries and disputations And no man may graunt that our king or Crowne oweth fealty to any superior but God onely Yet it may be said that land c. with vs is termed fee in two respects one as it belongeth to vs and our heires for ever and so may the Crowne land be called Fee the other as it holdeth of another which is and must be farre from our Crowne Britton ca. 32. defineth fee to this effect Fee is a right consisting in the person of the true heire or of some other that by iust title hath purchased it Fleta saith that Feudum est quod quis tenet ex quacunque causa sibi haeredibus suis siue sit tenementum siue reditus qui non proveniunt ex camera alio modo dicitur feudum sicut eius quifeoffat quod quis tenet ab alio sicut dicitur talis tenet de tali tot feuda per servitium militare li. 5. ca. 5. § Feudum autem And all that write de feudis doe hold that Feudatarius hath not an entire propertie in his fee Nay it is held by right learned men that these fees were at the first invention or creation of them either all or some of them temporarie and not perpetuall and hereditarie Iacobutius de Franchis in praeludio fend ca. 2. nu 133. The diuisions of fee in diuers respects are many and those though little knowne to vs in England yet better worthie to known then we commonly thinke But for our present purpose it is sufficient to diuide Fee into two sorts Fee absolute otherwise called simple and Fee conditionall otherwise termed fee tayle Fee simple Feudum simplex is that whereof we are seised in these generall words to vs and our heires for ever Fee tayle Feudum talliatum is that whereof we are seized to vs and our heires with limitation that is the heires of our body c. And fee taile is either generall or speciall Generall is where land is giuen to a man and the heires of his body The reason whereof is giuen by Litleton ca. 2. li. 1. because a man seised of land by such a gift if he marie one or more wiues and haue no issue by them and at the length marie another by whome he hath issue this issue shall inherit the land Fee taile speciall is that where a man and his wife be seised of lands to them and the heires of their two bodies The reason is likewise giuen by Litleton in the same place because in this case the wife dying without issue and he marying another by whome he hath issue this issue cannot inherit the land being specially giuen to such heires c. this Fee taile hath the originall from the statute of Westm 2. cap. 1. which was made anno 13. Ed. 1. yet see Bracton li. 2. ca. 5. nu 3. hiis verbis Item quaedam absoluta larga quaedam stricta coarctata sicut certis haeredibus to whome adde Plowden casu Willion fo 235. a. b. seqq for before that statute all land giuen to a man and his heires either generall or speciall was accompted in the nature of fee and therefore held to be so firmely in him to whome it was giuen that any limitation notwithstanding he might alienate and fell it at his pleasure much like that which the Civilians call Nudum praeceptum binding rather by way of counsell and aduice then compulsion or restrainte And this thing seeming vnreasonable to the wisedome of our realme because so a man meaning well to this or that posterity of himselfe or his freinds might be forthwith deceiued of his intention the said statute was made for redresse of this inconvenience wereby it is ordained that if a man giue lands in fee limiting the heires to whome it shall descend with a reversion to himselfe or his heires for default c. that the forme and true meaning of his gift shal be obserued Wherefore in what conscience our lawyers haue invented meanes so easily to cut off this forme of gift it is to be considered He that hath fee then holdeth of another by some dutie or other which is called seruice and of this seruice and the diuersitie thereof See Chivalrie and Seruice He that will learne from what fountaine these feuds or fees did first spring let him read Antonius Contius his first chapter de methodo feudorum where he shal receiue great light for his guide into so obscure a dungeon See Liege This word Fee is sometime vsed with vs for the compas or circuit of a Lordship or maner Bracton lib. 2. cap. 5. in these words In eadem villa de eodem feodo Thirdly it is vsed for a perpetuall right incorporeall as to haue the keeping of prisons in fee. old nat br fol. 41. Foster in fee eod fol 6. Rent granted in fee. eod fo 8 Shyreeue in fee. ann 28. Ed pri stat 3. ca. 8. Lastly fee signifieth a reward or ordinarie dutie that a man hath giuen him for the execution of his office or the performance of his industrie in his art or science as the lawyer or the phisitian is said to haue his fee when he hath the consideration of his paines taken the one with his client the other with his patient Fee expectant is by the feudists termed feudum expectativum or expectatiua substantiuely vsed Mathaeus de Afflictis decis 292. nu 2. pag. 417. See expectant Fee fcrm feudi firma is a compound of Fee whereof see Fee and ferm i. coloma villa praedium rusticum of Ferme commeth Fermier du prince i. manceps redemptor publicorum vectigalium Publicanus Feeferm signifieth in our common lawe land held of another in fee that is in perpetuitie to himselfe and his heires for so much yearely rent as it is reasonably worth more or lesse so it be the fourth part of the worth old tenurcs See exposition of the statute of Glocester anno 6. Ed. pri without homage fealtie or other seruices other then be especially comprised in the feofment but by Fitzh it seemeth that the third part of the value may be appointed for the rent or the finding of a chaplaine to sing diuine seruice c. nat br fol. 210. C. And the nature of it is this that if the rent be behind and vnpaid for the space of two yeares then the feoffour or his heires haue action to recouer the lands as their demesnes Britton ca. 66. nu 4. but obserue out of West symbol parte 1. lib. 2. sect 463. that the feofment may containe seruices and suite of court as well as rent and the author of the new terms of law saith that Feeferm oweth fealtie though not expressed in the feofment for that fealtie belongeth to all kind of tenures This is neere the nature of that which among the Civilians is called ager vectigalis qui in perpetuum licetur i. hac lege vt quam diu pro eo
Frauk almoine libera Eleemozyna in french frank Ausmone signifieth in our common lawe a tenure or title of lands Britton cap. 66. nu 5. saith thus of it Franke almoyne is lands or tenements bestowed vpon God that is giuen to such people as bestow themselues in the seruice of God for pure and perpetuall almes whence the feoffours or giuers cannot demaund any terrestriall seruice so long as the lands c. remaine in the handes of the feoffees With this agreeth the grand custumary of Normandie cap. 32. Of this you may reade Bracton at large lib. 2. cap. 5. 10. See Fitzh nat br fol. 211. See the new booke of Entries verbo Franke Almoine But Britton maketh another kind of this land c. which is giuen in almes but not free almes because the tenents in this are tyed in certain seruices to the feoffor Pritton vbisupra Frank bank francus bancus in true french franc banc signifieth word for word a free bench or seate and among our lawe writers it seemeth to be vsed for copyhold lands that the wife being espoused a virgin hath after the decease of her husband for her dower Kitchin fol. 102. Bracton lib. 4. tract 6. cap. 13. nu 2. hath these wordes Consuetudo est in partibus illis quòd vxores maritorum defunctorum habeant francum bancum suum de terris sockmannorum tenent nomine dotis Fitzher calleth it a custome whereby in certaine cities the wise shall haue her husbands whole lands c. for her dower Nat. br fol. 150. P. See Plowden casu Newis fol. 411. Frank chase Libera chasea is a libertie of free chase whereby all men hauing ground within that compasse are prohibited to cut downe wood or discouer c. without the view of the forester though it be his owne demesne Cromptons Iurisdictions fol. 187. Frank fee feudum francum seu liberum is by Brooke tit Dimesn num 32. thus expressed That which is in the hand of the King or Lord of any maner being auncient demesn of the Crowne viz. the Demesnes is called frank fee and that which is in the hands of the tenents is auncient demesn onely see the Register original fol. 12. a. Whereby it seemeth that that is frank see which a man holdeth at the common lawe to himselfe and his heires and not by such seruice as is required in auncient demesn according to the custome of the maner And again I find in the same booke fol. 14. b. a note to this effect that the lands which were in the handes of king Edward the Saint at the making of the booke called Doomesday is auncient demesn and that all the rest in the realme is called frank fee with the which note Fitzherb agreeth na br fol. 161. E. So that all the land in the realme by this reason is either auncient demesn or frank fee. The new expounder of the lawe termes defineth frank fee to be a tanure in fee simple of lands pleadable at the common lawe and not in auncient demesn See Fachineus lib. 7. cap. 39. who defineth feudum francum esse pro quo nullum seruitium praestatur Domino with whom agreeth Zasius de fendis parte 12. saying that therefore it is feudum improprium quia ab omni seruitio liberum Frank ferme Firma libera is land or tenement wherein the nature of fee is chaunged by feofment out of knights seruice for certaine yearely seruices and whence neither homage wardship mariage nor releife may be demaunded nor any other seruice not contained in the feofment Britton ca. 66. nu 3. see Fee ferme Frank law libera lex See Cromptons Iustice of peace fol. 156. b. where you shall finde what it is by the contrary For he that for an offence as conspiracy c. leeseth his franke lawe is said to fall into these mischiefs first that he may neuer be impaneled vppon any iury or assise or otherwise vsed in testifiing any truth Next if he haue any thing to doe in the kings court he must not approch thither in person but must appoint his attourney Thirdly his lands goods and chatelsmust be seised into the kings hands and his lands must be estreaped his trees rooted vp and his body committed to prison For this the said authour citeth the booke of Assises fo 59. Conspiracy F. 11. 24. Ed. 3. fo 34. See Conspiracy Frank mariage liberū maritagiū is a tenurein taile speciall growing from these words in the gift comprised Sciant c. me M. H de W. dedrsse concessisse praesenti charta mea confirmasse I. A. filio meo Margeriae vxori eius filiae verae T. N. in liberū marit agium vnum messuagium c. West parte i. Symbol li. 2. sect 303. The effect of which words is that they shall haue the land to them and the heires of their bodies and shall doe no fealty to the donour vntill the fourth degree See new Terms of law Glanuile li. 7. ca. 18. Bracton li. 2. ca. 7. nu 4. where he diuideth maritagium in liberum seruitio obligatum See Mariage Fleta giueth this reason why the heires doe no seruice vntill the fourth discent ne donatores vel eorum haeredes per homagii receptionem a reuersione repellantur And why in the fourth discent and downeward they shall doe seruice to the donour quia in quarto gradu vehementer praesumitur quòd terra non est pro defectu haeredum donatariorum reversura libro tertio ca. 11. in princ Frankpledge Franoiplegium is compounded of Franc. i. liber and pleige i. fideiussor and signifieth in our common law a pledge or surety for free men For the auncient custome of England for the preseruation of the publique peace was that euery free borne man at fourteene yeares of age after Bracton religious persons clerks knights and their eldest sonnes excepted should finde suerty for his truth toward the King and his subiects or else be kept in prison whereupon a certaine number of neighbours became customably bound one for another to see each man of their pledge forthcomming at all times or to answere the transgression committed by any broken away So that whosoeuer offended it was forthwith inquired in what pledge he was and then they of that pledge either brought him forth within 31. daies to his aunswere or satisfied for his offence This was called Frank pledge causa qua supra and the circuit thereof was called Decenna because it commonly consisted of 10. houshouldes And euery particular person thus mutually bound for himselfe and his neighbours was called Decennier because he was of one Decenna or another This custome was so kept that the shyreeues at euery county court did from time to time take the oaths of yonge ones as they grew to the age of 14. yeares and see that he were combined in one dozen or another whereupon this braunch of the shyreeues authority was called visus Franciplegu view of frankpledge See
i. hospitio excipere It signifieth with vs an officer of the princes court that allotteth the noble men and those of the household their lodgings It signifieth also in Kitchin an Inkeeper fol. 176. Hereditaments hereditamenta seeme to signifie all such things immoueable be they corporeall or incorporeall as a man may haue to himselfe and his heires by way of inheritance v. anno 32. H. 8. ca. 2. or not being otherwise bequeathed doe naturally and of course descend to him which is our next heire of blood and fall not within the compas of an executour or administratour as chatels doe Heriot See Hariot Hide of land Hida terrae Saxonicè Hidelandes is a certaine measure or quantitie of land by some mens opinion that may be plowed with one plowe in a yeare as the author of the newe Termes saith verbo Hidage by other men it is an hundred acres By Beda who calleth it familiā it is as much as will maintaine a familie Crompton in his Iurisdict fol. 220. saith that it consisteth of an hundred acres euery acre in length 40. perches and in breadth 4. perches everie perch 16. foote and a halfe and againe fol. 222. A hide of land conteineth an hundred acres 8. hides or 800. acres conteine a knights fee. Of this reade more in M. Lamberds Explica of Saxon wordes verbo Hyda terrae See Carue Hide and gaine old nat br fol. 71. Coke lib. 4. Tirringhams case signifieth carable land See Gainage Hidage Hidagium is an extraordinarie taxe to be paide for euery hide of land Bracton li. 2. c. 6. writeth thus of it Sunt etiam quaedam communes praestationes quae seruitia non dicuntur nec de consuetudine veniunt nisi cum necessitas intervenerit vel cum Rex venerit sicut sunt Hidagia Coragia Carvagia alia plura de necessitate ex consensu communi totius Regni introducta quae ad Dominum feudi non pertinent c. of this reade the new expounder of lawe termes who saith that hidage is to be quit if the king shall taxe all the lands by hides and yet also graunteth it to be the taxe it selfe saying that it was wont to be an vsuall kind of taxing as well for prouision of armour as payments of money Hinefare See Heinfare Hidel i. H. 7. ca. 6. seeemeth to signifie a place of protection as a Sanctuarie Hierlome See Heirlome Hine seemeth to be vsed for a Seruant at husbandrie and the master hine a seruant that ouerseeth the rest anno 12. R. 2. ca. quarto Hoblers Hobellarii are certaine men that by their tenure are tyed to maintaine a little light nagge for the certifiing of any inuasion made by enemies or such like perill toward the Sea side as Porchmouth c. of these you shall reade anno 18. Ed. 3. stat 2. cap. 7. anno 25. eiusdem stat 5. ca. 8. Hoghenhine is he that commeth guestwise to a house and lieth there the third night After which time he is accounted of his familie in whose house he lieth and if he offend the kings peace his host must be answerable for him Bracton lib. 3. tract 2. cap. 10. In the lawes of King Edward set forth by M. Lamberd he is called agenhine wheare you may reade more of this mater Hithe Hitha is a petit hauen to land wares out of vessels or boates new booke of Entrise fol. 3. colum 3. Hoggeshead is a measure of wine or oyle containing the fourth parte of a tunne that is 63. gallons anno i. R. 3. ca. 13. Hoistings See Hustings Homage Homagium is a french word signifiing fidem clientularem for in the originall grants of land and tenements by way of fee the lord did not onely tie his tenents or feed men to certaine seruices but also tooke a submission with promis and oathe to be true and loyall to him as there lord benefactour This submission was and is called homage the forme wherof you haue in the second statute anni 17. Ed 2. in these words when a free man shall doe homage to his Lord of whome he holdeth in chiefe he shall hold his hands together betweene the hands of his lord and shall say thus I become your man from this day forthe for life for member for wordly honour and shall owe you my faith for the land I hold of you sauing the faith that I doe owe vnto our Soueraigne Lord the king and to mine other Lords And in this maner the Lord of the fee for which homage is due taketh homage of euery tenent as he commeth to the land or fee. Glanvile lib. 9. ca. 1. except they be women who performe not homage but by their husbands yet see Fitzherbert that saith the contrary in his natura br fol. 157. F. Reade Glanuile more at large in the said first chapter with the second third fourth The reason of this M. Skene giueth de verbo significatione verbo Homagium viz. because Homage especially concerneth seruice in warre He saith also that consecrated Bishops doe no homage but onely fidelitie the reason may be all one And yet I find in the Register orig fol. 296. a. that a woman taking liuerie of lands holden by knights seruice must doe homage but not being ioyntly infeoffed for then shee doth only fealtie And see Glanuile in the ende of the first chapter of his nineth booke touching Bishops consecrated whome he denieth to performe homage to the king for their Baronie but onely fealty Fulbeck reconeileth this fol. 20. a. in these words By our lawe a religious man may doe homage but may not say to his Lord. Egodevenio homo vester because he hath professed himselfe to be onely Gods man but he may say I doe vnto you homage and to you shall be faithfull loyall See of this Britton cap. 68. Homage is either new with the fee or auncestrell that is wheare a man and his auncesters time out of minde haue held their lands by homage to their Lord whereby the Lord is tied to warrant the land vnto his tenent newe Termes of the lawe This homage is vsed in other countries as well as ours was wont to be called Hominium See Hotom de verbis feudalibus verbo Homo Skene diuideth it into liegium non liegium de verb. signifi verbo Homage for the which see Leige and Hotoman disputatione de feudis tertia Homage is sometime vsed for the Iurie in the Courte Baron Smith de Repub. Anglo lib. 2. cap. 27. The reason is because it consisteth most commonly of such as owe homage vnto the Lord of the fee. And these of the Feudists are called pares curiae sive ourtis siue domus sic dicuntur enim conuassalli siue compares qui ab eodem patrono feudum receperunt vel qui in eodom territorio feudum habent Hotoman Of this homage you may read in the 29. c. of the Grand Custumarie of Normandie where you shall vnderstand of other
not any latine word for abatement but intrusio so that I rather thinke these 2. english words to bee synonyma and Fleta cap. suprà citato seemeth direct against this his opinion Intrusione is a writ that lyeth against the intruder Register fol. 233. Inuentarie inuentarium is a description or repertory orderly made of all dead mens goods and catels prized by foure credible men or more which euery executor or administrator ought to exhibite to the Ordinary at such times as he shall appoint the same West parte prim Simb lib 2. sect 696. where likewise you may see the forme This Inuentary proceedeth from the ciuill law for whereas by the auncient law of the Romans the heire was tyed to aunswer all the testators debts by which meanes heritages were preiudiciall to many men and not profitable Iustinian to encorage men the better to take vppon them this charitable office ordained that if the heire would first make and exhibite a trew Inuentary of all the testatours substance comming to his hand he should be no furder charged then to the valew of the Inuentarie l. vlt. Cod. de Iure de liberando Inuest Inuestire commeth of the french word Inuester and signifieth to giue possession He are Hotoman de verbis fendalibus verbo Inuestitura Inuestitura barbarum nomen barbaricam quoque rationem habet Nam vt ait Feudista lib. 2. titulo 2. Inuestitura propriè dicitur quando hasta vel aliquod corporeum traditur à domino with vs we vse likewise to admit the tenents by deliuering them a verge or rodd into their hands and ministring them an oath which is called Inuesting others define it thus Inuestitura est alicuius in suumius introductio Inure signifieth to take effect as the pardon inureth Stawnf praerog fol. 40. See Enure Ioynder is the coupling of two in a suite or action against another Fitzh nat br fol. 118. H. 20◠H. 221. H. in many other places as appeareth in the Index verbo Ioynder Ioynt tenents simul tenentes liber intrationum titulo Formdon in vieu 3. be those that come to and hould lands or tenements by one title pro indiuiso or without partition Litleton lib. 3. cap. 3. and termes of law See Tenents in common Ioyning of issue Iunctio exitus See Issue Iointure Iunctura is a couenant whereby the husband or some other freind in his behalfe assureth vnto his wife in respect of mariage lands or tenements for terme of her life or otherwise See West part 2. Symbol lib. 2. titulo Couenants sect 128. and the new expositiō of the law terms it seemeth to be called a Ioynture either because it is granted ratione iuncturae in matrimonio or because the land in franke mariage is giuen ioyntly to the husband and the wife and after to the heirs of their bodies whereby the husband and wife be made ioynt tenents during the couerture Coke li. 3. Butler Bakers case f. 27. b. See franckmariage Ioynture is also vsed as the abstract of ioynt tenents Coke lib. 3. the Marques of Winchesters case fol. 3. a. b. Iunctura is also by Bracton and Fleta vsed for ioyning of one bargaine to another Fleta lib. 2. ca. 60. touching the selfe same thing and therefore ioynture in the first signification may be so called in respect that it is a bargaine of liuelyhood for the wife adioyned to the contract of mariage Iourn Choppers anno 8. Hen. 6. cap. 5. be regraters of yarn Whether that we now call yarne were in those daies called iourn I cannot say but choppers in these daies are well knowne to be chaungers as choppers of churches c. Iourneyman commeth of the French Iournee that is a day or dayes worke which argueth that they were called Iourneymen that wrought with others by the day though now by statute it be extended to those likewise that couenant to worke in their occupation with another by the yeare anno quinto Elizabeth cap. quarto Issue Exitus commeth of the French Issir i. emanare or the substantiue Issue i. exitus euentus It hat diuers applications in the common lawe sometime being vsed for the children begotten betweene a man and his wife sometime for profits growing from an amercement or fine or expenses of suite sometime for profits of lands or tenements West 2. anno 13. Edw. prim cap. 39. sometime for that point of mater depending in suite wherupon the parties ioyne and put their cause to the triall of the Iury and in all these it hath but one signification which is an effect of a cause proceeding as the children be the effect of the mariage betweene the parents the profits growing to the king or Lord from the punishment of any mans offence is the effect of his transgression the point referred to the triall of twelue men is the effect of pleading or processe Issue in this last signification is either generall or speciall Generall issue seemeth to be that whereby it is referred to the Iury to bring in their verdict whether the defendant haue done any such thing as the plaintife layeth to his charge For example if it be an offence against any statute and the defendant pleade not culpable this being put to the Iury is called the generall issue and if a man complaine of a priuate wrong which the defendant denieth plead no wrong nor disseisin and this be referred to the 12. it is likewise the generall issue Kitchin fol. 225. See the Doctor and Student fol. 158. b. the speciall issue then must be that where speciall mater being alleadged by the defendant for his defence both the parties ioyne therevpon and so grow rath er to a demurrer if it be quaestio Iuris or to tryall by the Iurie if it be quaestio facti see the new booke of Entries verbo Issue Iuncture see Iointure Iure patronatus See the newe booke of Entries verbo Iure patronatus in quar◠impedit fol. 465. col 3. Iurie Iurata commeth of the french Iurer i iurare it signifieth in our common lawe a companie of men as 24. or 12. Sworne to deliuer a truth vpon such euidēce as shal be deliuered them touching the matter in question Of which triall who may and who may not be empaneled see Fitzh nat br fol. 165. D. And for beter vnderstanding of this point it is to be knowne that there be 3. maner of trials in England one by Parlament another by battle and the third by Assise or Iurie Smith de repub Anglorum lib 2. cap 5. 6. 7. touching the 2. former reade him and see Battell and Combat and Parlament the triall by Assise be the action ciuile or criminall publick or priuate personall or reall is referred for the fact to a Iurie and as they finde it so passeth the Iudgement and the great fauour that by this the King sheweth to his subiects more then the princes of other nations you may reade in Glanuil lib 2 cap 7. where he called it
our common lawe plurally those that are empaneled in an Enquest vpon any man for the conuicting and clearing him of any offence for the which he is called in question And the reason thereof is because the course and custome of our nation is to trie euery man in this case by his equals West prim cap. 6. anno 3. Ed. prim So Kitchin vseth it fol. 78. in these wordes Mais si le amerciament soit affirre per pares And this word in this signification is not in vse with vs onely but with other nations also For pares sunt conuasalli quorum sententiá vasallus propter feloniam est condemnatus Barklaius de Regno lib. 4. cap. 2. Et pares sunt qui ab eodem domino feudum tenent lib. prim Feudor cap. 26. But this word is most notoriously vsed for those that be of the Nobilitie of the Realme and Lords of the Parlament and so is it vsed in Stawnf pl. of the Crowne lib. 3. cap. Triall per les Peeres being the first The reason whereof is because though there be a distinction of degrees in our Nobilitie yet in all publike actions they are equall as in their voices in Parlament and in passing vpon the triall of any Noble man c. This appellation seemeth to be borowed from Fraunce and from those twelue Peeres that Charles the Great or Lewis the younger in some mens opinion instituted in that kingdome which be next vnto the King and are of like dignitie among themselues touching their power in publike affaires Of whome you may reade Vincentius Lupanus de magistrat Fraunciae lib 1. cap. Pares Fraunciae So that we though we haue borowed the appellation and applied it with some reason to all that are Lords of the Parlament yet haue wee no sett number of them because the number of our Nobles may be more or lesse as it pleaseth the King Pelota is a word vsed in the booke called pupilla ocult parte 5. cap. 22. signifying the ball of the foot of the French pelote i. pila Peru fort dure See Pain for dure Pelt wooll is the woll pulled off the skinne or pelt of dead sheepe anno 8. H. 6. cap. 22. Penon anno 11. R. 2. cap. prim is a Standard Banner or Ensigne caried in warre It is borowed from Fraunce for pennon in the French language signifieth the same thing See Baneret yea reade this word anno 21. R. 2. cap. 1. Penne See Baye Peper piper is a spice known in a manner to euery childe beeing the fruite of a plant that is betweene a tree and an herbe of whose diuersities and nature you may reade Genards herball lib. 3. cap. â—46 This is set among merchandize that are to be garbled anno 1. Iacob cap. 19. Peper lowse anno 32. H. 8 cap. 14. Per. cui post See Entrie Perambulatione facionda is a writ that is siewed out by two or more Lords of manets lying neere one another and consenting to haue their bounds seuerally knowne It is directed to the Shyreeue commanding him to make perambulation and to set downe their certaine limits betweene them Of this reade more at large in Fitz. nat br fol. 133. See Rationabilibus diuisis See the Regist orig fol. 157. and the new booke of Entries verbo Perambulatione facienda Perche pertica is a French word signifying a long pole It is vsed with vs for a Rodde or Pole of 16. foote and a halfe in length Where of 40 in length and foure in bredth make an acre of ground Cromptons Iurisd fol. 222. Yet by the custome of the countrie is may be longer as he there saith For in the Forest of Sheerewood it is 25. foot fol. 224. M. Skene de verbor signif verbo Particata terrae saith that particata terrae is a Roode of land where he hath also these wordes in effect Three beere cornes without tayles set together in length make an inch of the which cornes one should be taken of the midde ridge one of the side of the ridge another of the furrow Twelue inches make a foot of measure three foote and an inch make an elne sixe elnes long make one fall which is the common lineall measure and sixe elnes long and sixe broade make a square and superficiall fall of measured land And it is to be vnderstood that one rod one raip one line all fall of measure are all one for each one of them containeth sixe elnes in length Howbeit a rod is a staffe or pole of wood a raipe is made of tow or hempe And so much land as falleth vnder the rod or raipe at once is called a fal of measure or a lineal fall because it is the measure of the line or length onely Like as the superficiall fall is the measure both of length and bredth Item tenne fals in length and foure in bredth make a Roode foure Roodes make an acre c. This is the measure of Scotland where of you may reade more in the same place Perdonatio vtlagariae in the Register iudiciall fol. 28. is the forme of pardon for him that for not comming to the kings court is outlawed and afterward of his owne accord yeldeth himselfe to prison Peremptorie peremptorius commeth of the verb perimere to cut of and ioyned with a substantiue as action or exception signifieth a finall and determinate act without hope of renewing So Fitzh calleth a peremptory action nat br fol. 35. P. fol. 38. M. fol. 104. O. Q. R. fol. 108. D. G. and non-suite peremptorie idem eodem fol. 5. N. F. fol. 11. A. peremptory exception Bracton li. 4. ca. 20. Smith de rep Anglorum li. 2. ca. 13. calleth that a peremptory exception which can make the state and issue in a cause Perinde valere is a dispensation graunted to a clerk that being defectiue in his capacity to a benefice or other ecclesiasticall function is de facto admitted vnto it And it hath the appellation of the words which make the faculty as effectuall to the party dispensed with as if he had bene actually capable of the thing for which he is dispensed with at the time of his admissioÌ„ Perkins was a learned Lawyer fellow and bencher of the inner Temple that liued in the daies of Edward the 6. and Queene Mary He writ a booke vpon diuers points of the common law of very great commendation Permutatione Archidiaconatus ecclesiae eidem annexae cum ecclesia praebenda is a writ to an Ordinary commaunding him to admit a clerk to a benefice vpon exchaunge made with another Register orig fol. 307. a. Pernour of profits commeth of the French verb prendre i. accipere and signifieth him that taketh as pernour of profits anno 1. H. 7. ca. pri Pernour de profits and cesti quevse is all one Coke li. i. casu Chudley fol. 123. a. See Pernour anno 21. R. 2. ca. 25. Per quae seruitia is a writ iudiciall issuying from the note or fine and
forfeitures as are laid vpon those that pay not their duties or rent for Castle ward at their daies a. 32. H. 8. ca. 48. Bract. hathit in a generall signification lib. 5. tract 3. ca. 1. nu 8. and Fleta lib. 6. ca. 3. in prin Surueiour superuisor is compounded of two French words sur 1. super and veoir 1. ceâ—ert intueri despioere prospicere videre It signifieth in qur common law one that hath the ouerseeing or care of some great personages lands or works As the Surueiour generall of the Kings maners Cromptons Iurisd fo 106. And in this signification it is taken anno 33. H. 8. cap. 39. where there is a court of Surueiours erected And the Surueiour of the Wards and Liueries West parte 2. simbologr titulo Chauncery sect 136. which officer is erected anno 33. H. 8. ca. 22. who is the second officer by his place in the court of wards and Liueries assigned and appointed by the king His office seemeth especially to consist in the true examination of the lands belonging to the Kings wards that the King be not deceiued At the entrance into his office he taketh an oath ministred vnto him by the Maister of that Court which see an 33. H. 8. cap. 39. Surueiour of the Kings exchange anno 9. H. 5. stat 2. ca. 4. was an officer whose name seemeth in these daies to be changed into some other For I cannot learne that there is any such now Suruiuour is compounded of two French words Sur. 1. super and viure 1. aetatem agere viuere whence also commeth the compound Suruiure i. superesse It signifieth in our common law the longer liuer of two ioynt tenents See Brooke titulo Ioynt tenents fol. 33. or of any two ioyned in the right of any thing Suspension Suspensio is vsed for a temporall stop of a mans right and differeth from extinguishment in this that a Right of Estate suspended reuiueth againe but extinguished it dyeth for euer Brooke titulo Extinguishment and Suspension fol. 314. Suspension is also vsed in our common lawe sometimes as it is vsed in the Canon lawe pro minori excommunicatione As anno 24. H. 8. cap. 12. See Excommunication Suspirall seemeth to be a spring of water passing vnder the ground toward a conduit or cesterne anno 35. H. 8. ca. 10. and to be deriued from the Latine suspirare or the French souspirer i. ducere suspiria And indeed the word it self is French for souspiral in that tongue signifieth spiramentum cauernae the mouth of a caue or den or the tunnell of a chimney Swainmot alias Swanimote Swainmotum signifieth a Court touching maters of the Forest kept by the Charter of the Forest thrice in the yeare anno 3 Henr. octau cap. 18. it is called a Swannie-mote what things be inquirable in the fame you may reade in Cromptons Iurisd fol. 180. who saith that this court of Swainemote is as incident to a Forest as the court of Piepowder is to a faire with whome agreeth M. Manwood parte pri of his Forest lawes pag. 144. The word seemeth to be compounded of Swain and mot or Gemot For swaine as M. Manwood saith vbi supra pag. 111 in the Saxons tongue signifieth a Bockland man which at this day is taken for a Charterer or freeholder and Gemot as M. Lamberd saith in his explication of Saxon words verbo Conventus is Conventus wherevpon it is to be noted as he saith in the same place that the Swainemote is a court of free-holders within the Forest Of the which you may reade him at large pag. 110. c. vsque 122. T TAbling of fines is the making of a table for euery countie where his Maiesties writ runneth conteining the contents of euery fine that shall passe in any one terme as the name of the Countie townes and places wherein the lands or tenements mentioned in any fine do lye the name of the plaintiffe and Deforceant and of euery maner named in the fine This is to be done properly by the Chirographer of fines of the common plees who the first day of the next terme after the engressing of any such fine shall fixe euery of the said tables in some open place of the court of Common plees and so euery day of the said terme during the sitting of the said court And the said Chirographer shall deâ—iuer to the Shyreeue of euery Countie his Vndershyreeue or Deputie faire writen in parchment a perfect content of the table so to be made for that shire in the terme that shall be next before the Assises to be holden in the same countie or else in the meane time betweene the terme and the said assises to be set vp the first day and euery day of the next assises in some open place of the Court where the Iustices of Assises then shall sit to continue there so long as they shall sit in the said court If either the Chirographer or Shyreeue faile herein he forfeiteth fiue pounds And the Chirographers fee for euery such table is foure pence anno 23. Elizab. cap. 3. This saith West parte 2. symbol titulo Fines sect 130. Taile Tallium commeth of the French taile i. Sectura or the verb tailler i. scindere signifiing in our common law two seuerall things both grounded vpon one reason Plowden casu Williâ—n fol. 251. a. b. First it is vsed for the fee which is opposite to fee simple by reason that it is so as it were minced or pared that it is not in his free power to be disposed of him which owneth it but is by the first giuer cut or diuided from all other and tyed to the issue of the Donee Cooke lib. 4. in prooemio And this limitation or taile is either generall or speciall Taile generall is that whereby lands or tenements are limited to a man and to the heires of his body begotten And the reason of this terme is because how many soeuer women the tenent houlding by this title shall take to his wiues one after another in lawfull matrimony his issue by them all haue a possibility to inherit one after the other Taile speciall is that whereby lands or tenements be limited vnto a man and his wife and the heires of their two bodies begotten because if the man bury his wife before issue and take another the issue by this second wife cannot inherit the land c. Also if land should be giuen to a man and his wife and to their sonne and heire Iohn for euer this is taile especiall See more of this in see and Litleton lib. pri ca. 2. and the new booke of Entries verbo Taile Taile in the other signification is that which we vulgarly call a Tallie For it is vne taille de bois a clouen peece of wood to nick vp an accoumpt vpon for in the statute anno 10. Ed. pri cap. 11. and anno 27. eiusdem stat pri ca. 2. it is termed a Taile and anno 38. Ed 3. cap. 5. And
action The rest of the yeare is called vacation Of these terms there be foure in euery yeare during the which maters of Iustice for the most part are dispatched and this Sir Tho. Smith lib. 3. de Rep. Ang cap. 2. reckoneth as miraculous that in lesse time then the third part of the yeare three Tribunals all in one city should certifie the wrongs of so large and populous a nation as England is Of these terms one is called Hilary terme which beginneth the 23. of Iannuary or if that be Sunday the next day following and eudeth the 21. of February Another is called Easter terme which beginneth 18. daies after Easter and endeth the munday next after Ascension day The third is Trinity terme beginning the Friday next after Trinity SuÌ„day and ending the Wedensday fortnight after The fourth is Mich aelmas terme beginning the 9 of October or if that be Sunday the next day after and ending the 28. of Nouember Termor Tenens extermino is he that â—houldeth for terme of yeares or life Kitchin fol. 151. Litleton fol. 100. Terra extendenda is a writ directed to the Escheatour c. willing him to inquire and find the true yearely value of any land c. by the oath of twelue men and to certifie the extent into the Chauncerie c. Regist orig fol. 293. b. Terris bonis catallis rehabendis post purgationem is a writ that lyeth for a Clerke to recouer his lands goods or chatels formerly seised on after he hath cleared himselfe of that felonie vpon suspition whereof he was formerly conuicted and deliuered to his Ordinarie to be purged Regist orig fol. 68. b. Terris liberandis is a writ that lyeth for a man conuicted by attaint to bring the Record and processe before the King and to take a fiue for his imprisonment and to deliuer him his lands and tenements againe and to release him of the Strip and Waste Regist orig fol. 232. a. It is also a writ for deliuery of lands to the heire after homage and reliefe performed eodem fol. 293. b. or vpon securitie taken that he shall performe them eodem fol. 313. b. Terris catallis ventis vltra debitum levatum is a writ Iudiciall for the restoring of lands or goods to a deptour that is distrained aboue the quantitie of the dept Register Iudiciall fol. 38. b. Terretenent terratenens is he which hath the naturall and actuall possession of the land which we otherwise call the occupation anno 39. Eliz cap. 7. For example a Lord of a maner hath a freeholder who letteth out his freeland to another to be occupied this occupier is called the Terretenent West parte 2. symb titulo Fines sect 137. Cromptons Iurisd fol. 194. Britton cap. 29. Perkins feofments 231. And Petrus Bellugain speculo Principum Rub. 46. versiculo Restat videre num 9. vseth this word Terratenentes in the same signification See Land tenents Yet I haue heard some learned in the lawe say that the Tertenent is the teuent in free or copyhold according to the custome of the maner and opposite to tenent for terme of yeres Quaere Ters is a certaine measure of liquide things as wine oyle c. conteining the sixth part of a Tunne anno 32. H. 8. cap. 14. or the third part of a pipe Testament testamentum See Will. Testatum is a writ that seemeth especially to lye against great personages of the realm whose bodies may not be medled with in actions of dept And therefore if the Shyreeue return nihil habet in balliva mea in a case of execution another writ shall be sent out into any other Countie where such personage is thought to haue whence to satisfie which is termed a Testatum because the Shyreeue hath formerly testified that he found nothing in his Bayliweeke to serue the turne See Kitchin in his Returnes of writs fol. 287. b. Teste is a word commonly vsed for the last part of any writ so called because the very conclusion of euery writ wherein the date is contained beginneth with these words teste â—eipso c. If it be an originall writ or if iudiciall teste Thom. Flemming or Edovar do Cooke according to the Court whence it commeth Where I may note by the way that in Glanvile lib. pri cap. 6. 13. lib. 2. cap. 4. I find the forme of an originall writ in the last clause to be teste Ranulpho de Glanvilla apud Clarindon c. And diuers times in the Register orig Teste custode Anglu as namely in the title Prohibition fol. 42. a. and Consultation fol. 54. b. Thanus is a made Latin word of the Saxon thegn which commeth of thenian i. alicui ministrare It signifieth sometime a Noble man somtime a free man sometime a Magistrate somtime an Officer or minister Lamb. in in his Explication of Saxon words verbo Thanus See the place See vavasour M. Skene de verbor signif saith it is the name of a dignitie and appeares to be equall with the sonne of an Earle And Thanus was a free holder holding his lands of the King And a man not taken with the fang that is with the maner as we say accused of theft no sufficient proofe being brought against him must purge himselfe by the oath of 27. men or of three Thanes Thanagtum Regis signifieth a certaine part of the Kings lands or propertie whereof the rule and gouernement appertaineth to him who therefore is called Thanus For Domania Regis and Thanagia idem significant It is a Dutch word For teiner signifieth a seruant and teiner to serue And thane is likewise a seruant and vnder-thane an inferiour thane or subiect Thus farre M. Skene Thack tile anno 17. Ed. 4. cap. 4. otherwise called plaine tyle is that tile which is made to be layed vpon the side and not vpon the rudge of a tyled house anno 17. Ed. 4. cap. 4. Theam See Team Theft furtum is an vnlawfull felonious taking away of another mans moueable and personall goods against the owners will with an intent to steale them West parte 2. symbol titulo Inditements sect 58. where also he saith that theft is from the person or in presence of the owner or in his absence Theft from the person or in presence of the owner is of two sorts the one putting the owner in feare the other not Idem eodem sect 59. The former is properly called Robberie ibid. sect 60. The new expounder of lawe termes verbo Larconie diuideth theft into theft so simply called and petit or litle theft Whereof the one is of goods aboue the value of twelue pence and is felonie the other vnder that value and is no felonie But see Felonie Theftbote is made of theft and boote i. compensatio and signifieth properly the receiuing of goods from a theefe to the end to fauour and maintaine him The punishment whereof is raunsome and imprisonment and not losse of life and member Stawnf pl. cor lib. prim
sub aliorum testimonio faciet de his rebus This high Officer hath by vertue of his office at this day the nomination of the Escheatours yeerely throughout England and giueth the places of all customers controllers and searchers in all the ports of the Realme He sitteth in the chequer chamber and with the rest of the court ordereth things to the Kings best benefite He with the Barons may by statute stall depts of three hundred pounds and vnder And by commission from his maiestie he with others ioyned with him letteth leases for liues or yeares of the lands that came to the Crowne by the dissolution of Abbeys He by his office giueth warrant to certaine men to haue their wine without impost He taketh declaration of all the money payed into the Receipt of the Exchequer and of all Receiuers accompts Then is there a Treasurer of the kings houshold who is also of the priuie Councell and in the absence of the Steward of the Kings houshold hath power with the Controller and the Steward of the Marshalsea without commission to heare and determine treasons misprisions of treasons murder homicide and bloudshed committed within the Kings pallace Stawnf pl. cor lib. 3. cap. 5. In the statute anno 28. Rich. 2. cap. 18. anno 11. H. 7. cap. 16. mention is made of the Treasurer of Calis In Westm 2. cap. 8. of the Treasurer of the Exchequer anno 27. Ed. 3. stat 2. cap. 18. ann 35. Eliz. cap. 4. Of the Treasurer of the Nauie or Treasurer of the warres or garrisons of the Nauie anno 39. El. cap. 7. Treasurer of the Kings chamber anno 26. H. 8. cap. 3. anno 33 eiusdem cap. 39. Treasurer of the warres anno 7. H. 7. cap. prim anno 3. H. 8. cap. 5. Treasurer of the Chauncerie West parte 2. symbol titulo Fines sect 152. Treasurer of the Kings Wardrobe anno 15. Ed. 3. stat prim cap. 3. anno 25. eiusdem stat 5. cap. 21. whose office you haue well set foorth in Fleta lib. 2. cap. 14. Treasurer of the Countie for poore souldiers anno 35. Eliz. cap. 4. And most corporations through the kingdome haue an officer of this name that receiueth their rents and disburseth their common expences Treate commeth of the French traire i. emulgere and signifieth in the common lawe as much as taken out or withdrawne As a Iurour was chalenged for that hee might not dispend 40. pounds and for that cause he was treate by the Statute old na br fol. 159. that is remoued or discharged Breade of treate anno 51. H. 3. Statute of breade c. what it signifieth I cannot learne Trespas Transgressio is a French word signifiing as much as Mors obitus excessiss The reason whereof I take to be because in interpretation it is a passage from one place or estate to another for in Britton cap. 29. I find trespassants for passengers In our common law and language it is vsed for any transgression of the lawe vnder treason felonie or misprision of treason or of felonie as may be gathered out of Stawnf pl. cor fol. 38. where he saith that for a Lord of the Parlament to depart from the Parlament without the kings licence is neither treason nor felonie but trespasse And againe fol. 31. saying that where it was wont before the statute made anno prim Ed. 2. called Statutum de frangentibus prisonam that the breach of prison was felonie if it were the Kings prison it is sithence but trespasse except the prisoner were committed for felonie But it is most commonly vsed for that wrong or dammage which is done by a priuate man to the King as in his Forest pl. cor lib. 2. cap. 18. or to another priuate man And in this signification it is of two sortes trespasse generall otherwise termed trespasse vi armis and trespasse especiall otherwise called trespasse vpon the case And this seemeth to be without force Termes of the Lawe Action vpon the case as appeareth by Kitchin fol. 176. The former I take to be called generall because it riseth from that generall ground in lawe that whatsoeuer is done by any priuate mans humour vi armis is an offence The later I call especiall because Kitchin calleth the other generall and another reason may be this because it springeth from a particular case or fact not conteined vnder any other generall head And the action lying for this trespasse is otherwise called an action vpon the case as may be gathered out of diuers places vnder the title Trespasse in Brookes his Abridgement How to distinguish the forme of these writs or actions See Fitz. nat br fol. 86. I. 87. H. I. In an action of trespasse this is perpetuall that the plaintiffe sieweth for dammages or the valew of the hurt cone vnto him by the Defendant It seemeth an hard thing to distinguish these two kinds of trespasses so as to be able to say when it is a trespasse vi armis and when vpon the case as may well appeare to him that shall peruse this title in Brooke But this is to be left to the experiēce of graue and skilfull pleaders I find moreouer in Kitchin fol. 188 that there is a trespasse locall and trespasse transitorie trespasse locall is that which is so annexed to a place certaine as if the Defendant ioyne issue vpon the place and trauers the place onely by saying Absque hoc that he did the trespasse in the place mentioned in the declaration and averre it it is enough to defeate the action Trespasse transitorie is that which cannot be defeated by the defendants trauers of the place saying without that I cōmitted the trespasse in the place declared because the place is not materiall Examples of both you haue set downe by Kitchin in the place aboue named to this effect trauers by Absque hoc of trespasse in batterie or goods brought in is transitorie and not locall as it is of trees cut or herbes And therefore in trespasse transitorie the place shall not make issue neither is it trauersable no more then is a trespasse vpon a case of an Assumption Bracton in his fourth booke cap. 34. num 6. diuideth transgressionē in maiorem minorem which place reade See also great diuersitie of trespasses in the new booke of Entries verbo Trespasse Triall triatio is vsed in our common lawe for the examination of all causes ciuill or criminall according to the lawes of our Realme Of this word Stawn pl. cor lib. 2. cap. 26. writeth to this effect There was a statute made prim secund Philip. Mar. cap. 10. to this purpose And be it furder enacted by the authoritie aforesaid that all trials hereafter to be had awarded or made for any treason shal be had and vsed according to the due order and course of the common lawes of this Realme and not otherwise c. By this word triall saith Stawnf in that place some vnderstand
in the receipt that the Lord Treasurer doth He nominateth the two Praysers of all goods seised as not customed and ordereth whether the partie shall haue them at the price or not He appointeth the Steward Cooke and Butler for the prouision of the Starre-chamber But this Officer in other mens iudgment is farre more auncient then Henry the seuenths dayes yet named Treasurer of the Exchequer in the Statutes vntill Queene Elizabeths time where he is tearmed Vnder-treasurer of England Neuerthelesse anno 35 Eliz. he is also written Treasurer of the Exchequer Read the Statutes anno 18. Ed. 3. stat 2. cap. 17. 27. eiusdem Stat. 2. cap. 18. 1. Rich. 2. cap. 5. 4. Hen. 4. cap. 18. 8. H. 6. cap. 17. 27. H. 8. cap. 11. with diuers other places that seeme to approue this to be true Vnion vnio is a combining or consolidation of two Churches in one which is done by the consent of the Bishop the Patron and the Incumbent And this is properly called an Vnion Howbeit that there be two other sortes as when one Church is made subiect to the other and when one man is made Prelate of both and when a conuentual is made Cathedrall as you may reade in the Glosse of the chapter Licet De locato conducto in Lyndwoods Prouincials § Et quia versu Appropriationis Touching Vnion in the first signification there was a statute an 37. H. 8. cap. 21. that it should be lawfull in two Churches wherof the value of the one is not aboue sixe pounds in the Kings bookes of the first fruites and not aboue one mile distant from the other Vnion in this signification is personall that is for the life of the Incumbent or reall that is perpetuall whosoeuer be Incumbent Vnitie of possession is called consolidatio vsus fructus proprietatis in the Ciuill lawe signifying a ioynt possession of two rights by seuerall titles For example I take a lease of land from one vpon a certaine rent afterward I buy the Fee-simple This is an vnitie of possession wherby the lease is extinguished by reason that I which had before the occupation only for my rent am become Lord of the same and am to pay my rent to none but my selfe Also an Abbot being seated within a certaine parish afterward obtaineth an appropriation of the tythes belonging to that Church for the vse of his house Here is an vnity of possession by reason that the tythes which before were to be paid to the Incumbēt are now to be paid to none but himselfe by vertue of the appropriation Vniversitie Vniuersitas is by the Ciuill lawe any bodie politicke or corporation but in our language it is at the least most ordinarily taken for those two bodies that are the Nourishes of learning and the liberall Sciences Cambridge and Oxford endowed with great fauours and priuiledges for their beter maintenance as appeareth not onely by an 2. 3. Ph. Mar. c. 15. a. 13. El. c. 21. a. 18. eius c. 6. but much more by their seuerall charters graunted vnto them by diuers godly and magnanimous Kings of this land Vnlawfull assembly Illicita congregatio illicita assemblata is the meeting of three or more persons together with force to commit some vnlawfull act and abiding stil not indeuouring the execution thereof as to assault or beate any person to enter into his house or land c. West parte 2. symb titulo Inditements sect 65. M. Lam. in his Eirenarcha cap. 19. saith thus An vnlawfull assembly is the companie of three persons or more gathered together to do such an vnlawfull act although they do it not indeed So saith Kitchin in effect fol. 20. Vnques prist is word for word alwaies readie And it signifieth a Plee whereby a man professeth himselfe alway ready to do or performe that which the Demaundant requireth therby to auoide charges For example a woman sieweth the tenent for her Dower and he cōming in at the first day offereth to auerre that he was alway ready and still is to performe it In this case except the Demaundant will auerre the contrarie he shall recouer no dammages When this Plee will serue to auoide Charges and when not see Kit. fol. 243. See Vncore prist Voydance vacatio is a want of an Incumbent vpon a benefice and this voydance is double either in law as when a man hath more benefices incōpetible or indeed as when the Incumbēt is dead or actually depriued Brooke titulo Quareimpedit n. 51. Voucher Aduocatio is a calling in of one into the Court at the petition of a party that hopeth to be helped thereby New booke of Entries verbo voucher voucher de garantie Brit. ca. 75. in latine Aduocatio ad war antizandum is a petition in court made by the Defendant to haue him called of whom he or his Auncester bought the land or tenement in question and receiued warranty for the secure inioying thereof against all men Britton of this writeth a long chapter vbi supra intituling it Garant voucher But Bracton writeth a large tractate of it lib. 5. tracta 4. per totum Litleton also handleth it not minsingly in the last chapter of all his Tenures Of this you may read Fitzh also in his nat br fol. 134. De warantia chartae All this law seemeth to haue bene brought into England out of Normandy For in the Grand Custumary you haue likewise a chapter intituled vouchement de garant cap. 50. id est vocamentum Garanti where it is set downe what time ought to be giuen for the appearance of the warrant called in this case how many warrants may be vouched one calling in another and diuers other points touching this doctrine All which and many more you may read in Bracton vbi supra A common voucher a double voucher Coke lib. 2. Sir Hughe Cholmleis case fol. 50. b. This is very aunswerable to the contract in the Ciuill lawe whereby the buyer bindeth the seller sometime in the simple value of the thing bought sometime in the double to warrant his secure enioying of the thing bought But this difference I find betweene the Ciuill lawe and ours that whereas the Ciuill lawe bindeth euery man to warrant the securitie of that which hee selleth ours doth not so except it be especially couenanted The party that voucheth in this case is called the Tenent the partie vouched is tearmed the Vouchee The writ whereby he is called is termed Summoneas ad warrantizandum And if the Shyreeue return vpō that writ that the party hath nothing whereby he may be summoned then goeth out another writ viz. Sequntur sub suo periculo See Termes of the lawe verbo Voucher And Lamb. in his Explication of Saxon wordes verbo Advocare See Warrantie I reade in the new booke of Entries of a forain voucher which hath place properly in some Franchise Countie Palatine or other where one voucheth to warrantie one not dwelling within the Franchise fol. 615.
kings house whose function is fragmenta diligenter colligere ea distribuere singulis diebus egenis agrotos leprosos incarceratos pauperesque viduas alios egenos vagosque in patria commorantes charitative visitare item equos relictos robas pecuniam alia ad eleemosynae largita recipere fideliter distribuere Debet etiam regem super eleemosynae largitione crebris summonitionibus stimulare praecipuè diebus Sanctorum rogare ne robas suas quae magni sunt pretii histrionibus blanditoribus adulatoribus accusatoribus vel menestrallis sed and eleemosinae suae incrementum iubeat largiri Fleta lib. 2. cap. 2. Almoine eleemosina See Frank almoyne Almond amygdalum is well knowne to euery mans sight it is the kirnell of a nut or stone which the tree in Latine called amygdalus doth beare within a huske in maner of a wal nut of whose nature and diuersities you may reade Gerards Herball lib. 3. cap. 87. This is noted among merchandize that are to be garbled anno 1. Iaco. ca. 19. Alnegeor aliâs aulnegeor vlniger vel vlnator cometh from the French aulne an elle or elwand and signifieth an officer of the Kings who by himselfe or his deputie in places conuenient looketh to the assise of wollen cloth made through the land and to seals for that purpose ordained vnto them an 25. Ed. 3. Stat. 4. cap. 1. anno 3. R. 2. cap. 2. who is accomptable to the king for euery cloth so sealed in a fee or custome therunto belonging anno 17. R. 2. cap. 2. Reade of this more anno 27. Ed. 3 cap. 4. anno 17. R. 2. cap. 2. 5. anno 1. H. 4. cap. 13. anno 7. eiusdem cap. 10. anno 11 eiusd cap. 6. anno 13. eiusd cap. 4. anno 11. H. 6. cap. 9. anno 31. eiusdem cap. 5. anno 4. Ed. 4. ca. 1. anno 8. eiusdem cap. 1. an 1. R. 3. cap. 8. Ambidexter is that iurour or embraceour that taketh of both parties for the giuing of his verdict He forfeiteth ten times so much as he taketh anno 38. Ed. 3. cap. 12. Cromptons iustice of peace fol. 156. b. Amendment emendatio commeth of the French amendement and signifieth in our common lawe a correction of an error committed in a processe and espyed before iudgment Terms of the lawe Broke titulo Amendement per totum But if the fault be found after iudgment giuen then is the party that wil redresse it driuen to his writ of errour Tearmes of the lawe Broke titulo Error Amerciament amerciamentum signifieth the pecuniarie punishment of an offendor against the King or other Lord in his court that is found to be in misericordia i. to haue offended and to stand at the mercie of the King or Lord. There seemeth to be a difference betweene amerciaments and fines Kitchin fol. 214. And I haue heard coÌ„mon Lawyers say that fines as they are taken for punishments be punishments certaine which grow expresly from some statute and that amerciaments be such as be arbitrably imposed by affeerors This is in some sort confirmed by Kitchin fol. 78. in these words l'amerciameÌ„t est affire per pares M. Manwood in his first part of Forest lawes pag. 166. seemeth to make another difference as if he would inferre an amerciameÌ„t to be a more easie or more mercifull penaltie and a fine more sharpe and grieuous Take his wordes If the pledges for such a trespasse saith he do appeare by common summons but not the defendant himselfe then the pledges shall be imprisoned for that default of the defendant but otherwise it is if the defendant himselfe do appeare and be ready in Court before the Lord Iustice in eyre to receiue his iudgment and to pay his fine But if such pledges do make default in that ease the pledges shall be amerced but not fined c. The author of the new tearmes of lawe saith that amerciament is most properly a penalty assessed by the peeres or equals of the partie amercied for an offence done for the which he putteth himselfe vpon the mercie of the Lord. Who also maketh mentioÌ„ of an amerciament royal and defineth it to be a pecuniarie punishment laid vpon a Sheriffe Coroner or such like Officer of the kings amercied by Iustices for his offence See Misericordia Amoveas manum Looke ouster le râ—aiue An tour waste annus dies vastum Looke yeare day and waste Ancaling of tile anno 17. Ed. 4. ca 4. Annats Annates seemeth to be all one with first fruites anno 25. H. 8. ca. 20. looke First fruites The reason is because the rate of first fruites payed of spirituall liuings is after one yeares profite Of which Folydore Virgil de inueÌ„tione rerum lib. 8. cap. 2. saith thus Nullum inuentum mâ—iores Romano Pontifici cumulavit opes quà m annatum quas vocant vsus qui omnino multò antiquior est quà m receÌ„tiores quidam scriptores suspicantur Et annates more suo appellant primos fructus vnius anni sacerdatii vacantis aut danidiam eorum partem Sanè hoc vectigal iam pride cùm Romanus Pontifex non habuerit tot possessiones quot nunc habet eum oportuerit pro dignitate pro officio multos magnosque facere sumptus paulatim impositum fuit sacerdotiis vacantibus quae ille conferret de qua quidem re vt gravi saepe reclamatum fuisse testatur Henricus Hostiensis qui cum Alexandro 4. Pontifice vixit sic vt Franciscus Zabarellus tradat post hac in concilio Viennensi quod Clemens quintus indixit qui factus est Pontifex anno salutis humanae 135. agitatum fuisse vt eo deposito annatum onere vigesima pars vectigalium sacerdotalium penderetur quotannis Romano Pontifici id quidem frustrà Quare Pontifex annatas in sua nassa retinuit vt ne indidem exire possent lege caetera Anniented commeth of the French aneantir i. se abiicere atque prosternere It signifieth with ourlawyers as much as frustrated or brought to nothing Litletâ—n lib. 3. cap. warrantie Annua pensione is a writte wherby the king hauing due vnto him an annuall pension from any Abbot or Prior for any of his Chaplaines whom he shal think good to name vnto him being as yet vnprouided of sufficient liuing doth demaund the same of the said Abbot or Prior for one whose name is comprised in the same writ vntill c. and also willeth him for his Chaplaines better assurance to giue him his leters patents for the same Register orig fol. 265. 307. Fitzh nat br fol. 231. where you may see the names of al the Abbeyes and Priories bound vnto this in respect of their foundatioÌ„ or creation as also the forme of the leters patents vsually graunted vpon this writ Annuitie annuus reditus signifieth a yearely rent to be paide for tearme of life or yeres or in fee and is also vsed for the writ that lyeth against a man for
the recouerie of such a rent either out of his land or out of his cofers or to be receiued of his person at a day certaine euery yere not satisfying it according to the graunt Register orig fol. 158. Fitz. nat br fol. 152. The author of the new tearmes of law defineth annuitie to be a certaine summe of money graunted to another in fee simple fee taile for tearme of life or of yeares to receiue of the graunter or his heires so that no Free-hold be charged therewith whereof a man shall neuer haue assise or other action but a writ of annuitie Saintgerman in his booke intituled The Doctor and Student dialogo primo cap. 3. sheweth diuers differences betweene a rent and an annuitie whereof the first is that euery rent be it rent seruice rent charge or rent seck is going out of land but an annuity goeth not out of any land but chargeth onely the person that is to say the graunter or his heires that haue assets by descent or the house if it be granted by a house of religion to perceiue of their coffers The second difference is that for the recouerie of an annuity no action lyeth but onely the writ of annuitie against the graunter his heires or successors but of a rent the same actions lye as do of land as the case requireth The third difference is that an annuitie is neuer taken for assets because it is no Free-hold in lawe neither shall be put in execution vpon a statute Merchant statute Staple or elegit as a rent may Dyer fol. 345. num 2. speaketh also to this effect Annise seede semen Anisi is a medicinall seed not vnknowne so called of the hearbe anisum whereof it is the fruite Of this he that listeth may reade Gerad◠herball li. 2. ca. 397. It is noted among the garbleable drugs and spices anno 1. Iaco. ca. 19. Anoisance aliàs Noisance aliàs Nusance nocumentum commeth of the French nuisance i incommodum noxa and hath a double signification being vsed as well for any hurt done either to a publike place as high way bridge or common river or to a private by laying any thing that may breede infection by incroaching or such like means as also for the writ that is brought vpon this transgression whereof see more in Nusance The word anoysance I finde anno 22. H. 8. ca. 5. Apostata capiendo is a writ that lyeth against one that hauing entred and professed some order of religon breaketh out againe and wandereth the country contrarily to the rules of his order For the Abbot or Prior of the house certifying this into the chawncerie vnder their common seale and praying this writ directed to the Shyreeue for the apprehensiō of such offend our and for the delivery of him again to his Abbot or Prior or their lawful atturney were wont to obtaine the same The forme whereof with other circumstances you shall finde in the Register orig fo 71. 267. and Fitzh nat br fo 233. C. Apparelment commeth of the French pareisement i. similiter perinde itidem and signifieth a resemblance as apparelment of warre anno 2. R. 2. stat 1. ca. 6. Appeale appellum commeth of the French appeller i. accire accersere nominare evocare clamore aliquem flagitare It signifieth in our common lawe as much as accusatio with the civilians For as in the civile lawe cognisance of criminal causes is taken either vpon inquisition denunciation or accusation so in ours vpon indictment or appeale indictment comprehending both inquisition and denunciation And accusation or apeale is a lawfull declaration of another mans crime which by Bracton must be felonie at the least in the common lawe before a competent Iudge by one that setteth his name to the declaration and vndertaketh to prooue it vpon the penaltie that may ensue of the contrary To declare the whole course of an appeale weare to much for this treatise Wherefore for that I must referre you to Bracton li. 3. tract 2. ca. 18. cum sequent Britton ca. 22. 23. 24. 25. and to S. Thomas Smith li. 3. de repub Anglo ca. 3. and lastly to Stawnf pl. cor li. 2. ca. 6. 7. c. vsque 17. An appeale is commenced two waies either by writte or by bill Stawnf vbi supra fo 46. And it may be gathered by him fo 148. that an appeale by writ is when a writ is purchased out of the chauncerie by one to another to this ende that he appeale a third of some felonie committed by him finding pledges that he shall doe it and deliuer this writ to the Shyreeue to be recorded Appeale by bill is when a man of himselfe giueth vp his accusation in writing to the Vicount or Coroner offering to vndergoe the burden of appealing another therein named This pointe of our lawe among others is drawne from the Normans as appeareth plainly by the grand custumarie ca. 68. where there is set downe a solemne discourse of both the effects of this appeale viz. the order of the cōbate of the tryall by enquest of which by the common lawe of England it is in the ioyce of the defendant whether to take See the newe booke of entrise verbo Appel the booke of Assises fo 78. Appel Appeale of mahem appellum mahemij is an accusing of one that hath maymed another But that being no felony the appeale thereof is but in a sort an action of trespas because there is noe thing recouered but dammages Bracton calleth this appellum de plagis mahemio and writeth of it a whole chapter li. 3. tract 2. ca. 24. See S. Ed. Cook 4. vol. fo 43. a. Appeale of wrong imprisonment appellum de pace imprisonamento is vsed by Bracton for an action of wrong imprisonment whereof he writeth a whole itactat li. 3. tractat 2. ca. 25. Appeale appellatio is vsed in our common law diuers times as it is taken in the civile lawe which is a remouing of a cause from an inferiour iudge to a superiour as appeale to Rome an 24. H. 8. ca. 12. an 1. Elix ca. 1. But it is more cōmonly vsed for the priuate accusation of a murderer by a party who had interest in the partie murdered or of any felon by one of his complices in the fact See Approver Appendant appendens is any thing belonging to another as accessorium principali with the Civilians or adiunctum subiecto with the logicians An hospitall may be appendant to a Maner Fitzh nat br fo 142. Common of fishing appendant to a free hold Westm 2. ca. 25. anno 13. Ed. 1. Appertinances pertinentiae commeth of the French appartenir i. pertinere It signifieth in our common lawe things both corporal belonging to another thing as to the more principal as hamlets to a chiefe Maner common of pasture turbarie piscarie and such like and incorporeal as liberties and services of tenents Brit. ca. 39. where I note by the way that he accounteth common
in the reuersion commeth in and prayeth to be receiued to defend the land and to plead with the Demandant Many more you may haue in Brooke titulo Resceite fol. 205. See Perkins Dower 448. â—eceit is also applied to an admittance of plee though the controuersie be but betweene two onely Brooke estoppell in many places Resceyt of homage is a relatiue to doing homage for as the Tenent who oweth homage doth it at his admission to the land so the Lord receiueth it Kitchin fol. 148. See Homage Rescous Rescussus commeth of the French Rescourre se Rescourre du danger i. asserere se ab iniuria It signifieth in our common law a resistance against a lawfull authoritie as for example if a Baylife or other officer vpon a writ doe arrest a man and another one or more by violence doe take him away or procure his escape this act is called a Rescus Cassanaeus in his booke de consuetud Burg. hath the same word coupled with resistentia fol. 294. whereby it appeareth that other nations do vse this word in the same signification that we doe or the very like It is also vsed for a writ which lyeth for this act called in our lawyers latine Breue de rescussu whereof you may see both the forme and vse in Fitzh nat br fol. 101. and the register originall fol 125. See the new booke of Entries verbo rescous This rescous in some cases is treason and in some felony Crompton Iustice fol 54. b. Reseiser reseisire is a taking againe of lands into the Kings hands whereof a generall liuery or ouster le main was formerly missued by any person or persons and not according to forme and order of law Of this see Stawnf praeroga 26. where it is handled at large See resumption Resiance resiantia seemeth to come of the French rasseoir see Rasseoir i. residere and signifieth a mans aboad or continuance in a place Old nat br fo 85. whence also commeth the participle resiant that is continually dwelling or abiding in a place Kitchin fol. 33. It is all one in truth with Residence but that custome of speach tyeth that onely to persons ecclesiasticall Reseruation signifieth that rent or seruice which the graunter in any graunt tyeth the grauntee to performe vnto him or them or the Lord Paramonte Perkins reseruations per totum Residence residentia commeth of the Latine residere and is peculiarly vsed both in the Canon and Common lawe for the continuance or abode of a Parson or Vicar vpon his benefice The default whereof except the partie be qualified and dispenced with is the losse of tenne pounds for euery moneth anno 28. Henr. 8. cap. 13. Resignation resignatio is vsed particularly for the giuing vp of a Benefice into the hands of the Ordinarie otherwise called of the Canonists renunciatio And though it signifie all one in nature with the word Surrender yet it is by vse more restreined to the yeelding vp of a spirituall liuing into the hands of the Ordinarie and Surrender to the giuing vp of temporall lands into the handes of the Lord. And a resignation may now be made into the hands of the King as well as of the Diocesan because he hath supremam authoritatem Ecclesiasticam as the Pope had in time past Plowden casu Grendon fol. 498. a. Resort is a word vsed properly in a writ of ayle or cousenage as discent is in a writ of right Ingham Respectu computi Vice-comitis habendo is a writ for the respiting of a Shyreeues accompt vpon iust occasion directed to the Treasurer and Barons of the Exchequer Register fol. 139 279. Respight of homage respectus homagii is the forbearing of homage which ought first of all to be performed by the tenent that holdeth by homage Which respight may be occasioned vpon diuers good reasons but it hath the most frequent vse in such as hold by Knights seruice in capite who because the Prince cannot be at leasure to take their homage do pay into the Exchequer at certaine times in the yeare some small summe of money to be respighted vntill the Prince may be at leasure to take it in person Responsions responsiones seeme to be a word vsed properly and especially by the knights of S. Iohn of Ierusaiem for certaine accompts made vnto them by such as occupied their landes or stockes anno 32. H. 8. cap. 24. Responsalis is he that commeth for another at the day assigned for his appearance in Court Bracton Fleta seemeth to make a difference betweene atturn atum essoniatorem responsalem lib. 6. cap. 11. § Officium as if essoniator came onely to alledge the cause of the parties absence be he the demandant or tenent and responsalis came for the tenent not onely to excuse his absence but also to signifie what triall he meant to vndergoe viz. the combat or the countrie lib. 6. cap. 11. § Si autem A man in auncient time could not appoint an Atturney for him without warrant from the king Fleta eodem cap. 13. in fine See Atturney This word is vsed in the Canon lawe Et significat procuratorem vel eum qui absentem excusat cap. Cùm olim propter extra de rescript Restitution restitutio is a yeelding vp againe of any thing vnlawfully taken from another It is vsed in the common law most notoriously for the setting him in possession of lands or tenements that hath bene vnlawfully disseised of them which when it is to be done and when not see Cromptons Iustice of peace fol. 144. b. c. vsque 149. Restitutione extracti ab Ecclesia is a writ to restore a man to the Church which he had recouered for his sanctuarie being suspected of felonie Register ori fol. 69. a. Restitutione temporalium is a writ that lyeth in case where a man being elected and confirmed Bishop of any Diocesse and hath the Princes royall assent thereunto for the recouery of the temporalities or Baronie of the said Bishopricke with the appurtenances And it is directed from the King to the Escheatour of the Countie the forme whereof you haue in the Regist origin fol. 294. and in Fitz. nat br fol. 169. Where you may read also that it lyeth for those Abbots and Priors newly elected and confirmed that were of the kings foundation Resummons resummonitio is compounded twice that is of re sub and Moneo and signifieth a second summons and calling of a man to answer an action where the first summons is defeated by any occasion as the death of the partie or such like Brook tit See Resummons fol. 214. See of these foure sorts according to the foure diuers cases in the Table of the Register Iudiciall fol. 1. See also the new booke of Entries verbo Reattachement Resummons Resumption resumptio is particularly vsed for the taking again into the Kings hands such land or tenements as before vpon false suggestion or other error he had deliuered to the heire or graunted by leters