Those of the new foundation are by a shorter course installed by vertue of the Kings Letters Patents without either election or confirmation This word is also applyed to divers that are the chief of certain peculiar Churches or Chapels as the Dean of the Kings Chappel the Dean of the Arches the Dean of Saint George his Chapel in Windfor the Dean of Bocking in Essex Debet solet These words are divers times used in the Writers of the Common law and may trouble the mind of a young Student except he have some advertisement of them For example it is said in the Old nat br fol. 98. This Writ de secta molindini being in the debet and solet is a Writ of right c. and again fol. 69. A Writ of Quod permittat may be pleaded in the County before the Sheriff and it may be in the debet and in the solet or the debet without the solet according as the Demandant claimeth Wherefore note that those Writs that be in this sort brought have these words in them as formal words not be omitted And according to the diversity of the case both debet and solet are used or debet alone that is if a man sue to recover any right by a Writ whereof his Ancester was disseised by the Tenant or his Ancestor then he useth onely the word debet in his Writ because solet is not fit by reason his Ancestor was disseised and the custome discontinued but if he sue for any thing that is now first of all denied him then he useth both these words debet solet because his Ancestors before him and he himself usually injoyed the thing sued for as sute to a Mill or common of Pasture until this present refusal of the Tenant The like may be said of debet and detinet as appeareth by the Regist orig in the Writ de debito fol. 140. a. Debito is a VVrit which lyeth where a man oweth to another a certain summe of money upon an Obligation or other bargain for any thing sold unto him Fitzh nat br fol. 119. This VVrit is made sometime in the Detinet and not in the Debet which properly falleth out where a manoweth an Annuitie â—or a certain quantitie of wheat barley or such like which he refuseth to pay Old nat br fol. 75. See Debet Solet Denelage Denelagia is the law that the Danes made here in England out of which and Merchenlage and West-Saxonlage the Conquerour compounded certain ordinances for his subjects Camdeni Britan. pag. 94. pag. 183. Decens tales See Tales Decies tantum is a VVrit that lyeth against a Jurour which hath taken money for the giving of his Verdict called so of the effect because it is to recover ten times so much as he took It lieth also against Embracers that procure such an Enquest anno 38 Ed. 3. cap. 13. Reg. orig fol. 188. Fitzh nat br fol. 171. New book of Entries verbo Decies tantum Deceit deceptio fraus dolus is a subtile wily shift or devise having no other name Hereunto may be drawn all maner of craft subtilty guile fraud wylinesse slightnesse cunning covin collusion practice and offence used to deceive another man by any means which hath none other proper or particular name but offence West parte 2. symbol titulo Indictments sect 68. See Cosening Decanniers See Deciners Deceptione is a VVrit that lyeth properly against him that deceitfully doth any thing in the name of another for one that receiveth harm or Dammage thereby Fitzh nat br fol. 95. This VVrit is either original or judicial as appeareth by the Old nat br fol. 50. where you may read the use of both For some satisfaction take these words of that book This VVrit of deceit when it is original then it lieth in case where deceit is made to a man by another by which deceit he may be disherited or otherwise evil intreated as it appeareth by the Register c. And when it is judicial then it lieth out of the Rolls of Record as in case where scire facias is sent to the Sheriff that he warn a man to be before the Justices at a certain day and the Sheriff return the Writ served whereas the said man was not warned by which the party that sueth the scire facias recovereth then the party which ought to have been warned shall have the said Writ against the Sheriff The Author of the Termes of Law verbo Deceit saith that the original VVrit of Deceit lieth where any Deceit is done to a man by another so that he hath not sufficiently performed his bargain or promise In the VVrit judicial he concurreth with the former book See the Reg. orig fol. 112. and the Reg. Judicial in the table verbo Deceptione Decintis solvendis pro possessionibus alienigenarune is a VVrit or Letters Patents yet extant in the Register which lay against those that had fermed the Priors aliens lands of the King for the Rector of the Parish to recover his tithe of them Regist orig fol. 179. Deciners aliâs desiners aliâs doziners decenarii cometh of the French dizeine i. decan ten in number or old of disenier i. decearchus It fignifieth in the ancient monuments of our law such as were wont to have the ouersight and check of ten Fribargs for the maintenance of the Kings peace And the limits or compalâ—e of their jurisdiction was called decenna Bracton lib. 3. tract 2. cap. 15. of whom you may also read Fleta lib. 1. cap. 27. and a touch in the Regist orig fol. 98. b. These seemed to have large authority in the Saxons time taking knowledg of causes within their Circuit and redressing wrongs by way of judgement as you may read in the Laws of King Edward set out by M. Lamberd num 32. In later times I find mention of these as in Britton cap. 12. who saith in the Kings person as he writeth his whole book in this manner VVe will that all those which be 14 years old shall make oath that they shall be sufficient and loyal unto us and that they will be neither Felons nor assenting to Felonsâ— and we will that all be endozeint plevis per dozeniers that is professe themselves to be of this or that Dozein and make or offer surety of their behaviour by these or those Doziniers except Religious persous Clerks Knights and their eldest Sons and Women Yet the same Author in his 29 Chapter something toward the end doth say that all of twelve years old and upward are punishable for not coming to the turn of the Sheriff Except Earls Prelates Barons Religious persons and women Stawnf pl. cor fol. 37. out of Fitzh hath these words The like Law is where the Dozeniers make presentment that a Felon is taken for Felonie and delivered to the Sheriff c. And Kitchin out of the Register and Britton saith thus Religious persons Clerks Knights or VVomen shall not be Deceniers fol.
of summs under forty shillings Crompton fol. 231. agreeth with him It is called a Justicies because it is a commission to the Sheriff ad Justiciandam aliquem to doe a man right and requireth no return of any certificate of what he hath done Bracton lib. 4. tract 6. cap. 13. num 2. maketh mention of a Justicies to the Sheriff of London in a case of Dower See the new book of Entries Justicies Justification Justificatio is an upholding or shewing a good reason in Court why he did such a thing as he is called to answer as to Justifie in a cause of Replevin Broke titulo Replevin KE KEeper of the great Seal Custos Magni Sigilli is a Lord by his Office and called Lord-Keeper of the great Seal of England c. and is of the Kings privy Councel under whose hands pass all Charters Commissions and Grants of the King strengthened by the great or broad Seal Without the which Seal all such Instruments by Law are of no force for the King is in interpretation and intendment of Law a Corporation and therefore passeth nothing firmly but under the said Seal This Lord Keeper by the Statute anno 5 Eliz. cap. 18. hath the same and the like place authority preheminence Jurisdiction execution of Laws and all other Customes Commodities and advantages as hath the Lord Chancellor of England for the time being Keeper of the privy Seal Custos privati Sigilli is a Lord by his Office under whose hands pass all Charters signed by the Prince before they come to the broad or great Seal of England He is also of the Kings privy Councell He seemeth to be called Clerk of the privy Seal anno 12 Rich. 2. cap. 11. But of late daies I have known none to bear this Office by reason the Prince thinketh good rather to keep his Seal in his own hands and by private trust to commit it to his principal Secretary or some such one of his Councel as he thinketh fit for that function Keeper of the Touch anno 2 H. 6. cap. 14. seemeth to be that Officer in the Kings Mint which at this day is termed the Master of the Assay See Mint Keeper of the Forest Custos Forestae is also called Chief Warden of the Forest Manwood parte prim of his Forest laws pag. 156. c. and hath the principal government of all things belonging thereunto as also the check of all Officers belonging to the Forest And the Lord Chief Justice in Eyr of the Forest when it pleaseth him to keep his Justice Seat doth forty daies before send out his general Summons to him for the warning of all under Officers to appear before him at a day assigned in the Summons This see in Manwood ubi supra KI King Rex is thought by M. Camden in his Britan. pag. 105. to be contracted of the Saxon word Cyninge signifying him that hath the highest power and absolute rule over our whole Land and thereupon the King is in intendment of Law cleared of those defects that Common persons be subject unto For he is alwaies supposed to be of full age though he be in years never so young Cromptons Jurisdictions fol. 134. Kitchin fol. 1. He is taken as not subject unto death but is a Corporation in himself that liveth ever Crompton ibidem Thirdly he is above the Law by his absolute power Bracton lib. 1. cap. 8. Kitchin fol. 1. And though for the better and equal course in making Laws he do admit the three Estates that is Lords Spiritual Lords Temporal and the Commons unto Counsel yet this in divers learned mens opinions is not of constraint but of his own benignity or by reason of his promise made upon oath at the time of his Coronation For otherwise were he a Subject after a sort and subordinate which may not be thought without breach of duty and loyalty For then must we deny him to be above the Law and to have no power of dispersing with any positive law or of granting especial Privileges and Charters unto any which is his only and clear right as Sir Thomas Smith well expresseth lib. 1. cap. 3. de Repub. Anglica and Bracton lib. 2. cap. 16. num 3. and Britton ca. 39. For he pardoneth life and limme to Offendors against his Crown and Dignity except such as he bindeth himself by Oath not to forgive Stawnf pl. Cor. l. 2. ca. 35. And Habet omnia jura in manu sua Bracton l. 2. c. 24. nu 1. And though at his Coronation he take an Oath not to alter the laws of the Land yet this Oath notwithstanding he may alter or suspend any particular Law that seemeth hurtfull to the publique Estate Blackwood in Apologia Regum cap. 11. See Oath of the King Thus much in short because I have heard some to be of opinion That the Laws be above the King But the Kings Oath of old you may see in Bracton lib. 3. cap. 9. nu 2. for the which look in Oath of the King The Kings Oath in English you may see in the old Abridgement of Statutes titulo Sacram. Regis Fourthly the Kings only Testimony of any thing done in his presence is of as high nature and credit as any Record Whence it commeth that in all Writs or Precepts sent out for the dispatch of Justice he useth none other Witness but himself alwaies using these words under it Teste me ipso Lastly he hath in the right of his Crown many Prerogatives above any common person be he never so potent or honorable whereof you may read you fill in Stawnfords Tractate upon the Statute thereof made anno 17 Ed. 2. though that contain not all by a great number What the Kings power is read in Bracton lib. 2. cap. 24. nu pri 2. King of Heralds Rex Haraldorum is an Officer at Armes that hath the preeminence of this Society See Herald This officer of the Romans was called Pater Patratus Kings Bench Bancus Regius is the Court or Judgement Seat where the King of England was wont to sit in his own person and therefore was it moveable with the Court or Kings houshold And called Curia Domini Regis or Aula Râ—gia as Master Gwin reporteth in the Preface to his Readings and that in that and the Exchequer which were the only Courts of the King untill Henry the Thirds dayes were handled all matters of Justice as well Civil as Criminal whereas the Court of Common Plees might not be so by the Statute anno 9 H. 3. cap. 11. or rather by Master Gwins opinion was presently upon the grant of the great Charter severally erected This Court of the Kings bench was wont in ancient times to be especially exercised in all Criminal matters and Plees of the Crown leaving the handling of private contracts to the County Court Glanvil lib. 1. cap. 2 3 4 lib. 10. cap. 18. Smith de Repub. Anglicana lib. 2. cap. 11. and hath President of it the Lord
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 upon whose charge it seemeth to lye that they put all Justices of that Court as the Lord Treasurer and the rest in remembrance of such things as are to be called on and dealt in for the Princes behoof The third is called the Remembrancer of the first-fruits Of these you may read something anno quinto Rich. 2. stat pri cap. 14. 15. to the effect above specified These anno 37 Ed. 3. cap. 4. be called Clerks of the Remembrance It seemeth that the name of this Officer is borrowed from the Civilians who have their Memorales qui sunt notarii Cancellâ—riae in regnò subjecti officio Quaestoris Lucas de penna C. lib. 10. tit 12. nu 7. The Kings Remembrancer entreth in his Office all recognisances taken before the Barons for any the Kings Debts for apparences or for observing of Orders He takes all bonds for any of the Kings debts or for appearance or for observing of Orders and maketh Proces upon them for the breach of them He writeth Proces against the Collectors of customs and subsidies and fifteenths for their accounts All informations upon penal Statutes are entred in his Office And all matters upon English-Bills in the Exchequer-chamber are remaining in his Office He maketh the Bills of compositions upon penal Laws taketh the stallments of debts maketh a Record of a Certificate delivered unto him by the Clerk of the Star-chamber of the fines there set and sendeth them to the Pipe He hath delivered unto his Office all manner of indentures fines and other evidences whatsoever that concern the assuring of any lands to the Crown He yearly in crastino animarum readeth in open Court the Statute for the election of Shyreeves and giveth 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 process against all Shyreeves Escheators Receivers and Bayliffs for their accompts He maketh process of Fierifacias and Extent for any debts due to the King either in the Pipe or with the Auditors He maketh process for all such Revenew as is due to the King by reason of his Tenures He maketh Record whereby it appeareth whether Shyreeves and other accountants pay their profers due at Easter and Michaelmas He maketh another Record whereby it appeareth whether Shyreeves and other Accountants keep 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 delivered to the Clerk of Extreats to write Proces upon them He hath also brought into his Office all the accompts of Customers Controllers and other accomptants to make thereof an entry of Record The Remembrancer of the first fruits taketh all compositions for first Fruits and Tenths and maketh Process against such as pay not the same Remitter 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 latter Title unto his Title that is more antient in case where the latter is defective Fitzherberâ— natura brev fol. 149. F. Dyer folio 68. num 22. This in what Case it may be granted to any man see in Brook titulo Remitter and the Terms of Law The Doctor and Student of this matter hath these words If land descend to him that hath right to that Land before he shall be remitted to his better Title if he will Ca. nono fo 19. b. See the new Book of Entries verbo Remitter Render commeth of the French Rendre i. reddere retribuere restituere and signifieth in our Common law the self-same thing For example this word is used in levying of a fine For a Fine is either single by which nothing is granted or rendred back again by the Cognizee to the Cognizour or double which containeth a grant or render back again of some Rent common or other thing out of the Land it self to the Cognisor c. West parte 2. Symbol titulo Fines Sect. 21 30. F. Also there be certain things in a Manor that lie in Prender that is which may be taken by the Lord or his Officer when they chance without any offer made by the Tenant as the Ward of the body of the Heir and of the Land Escheats c. and certain that lye in Render that is must be delivered or answered by the Tenant as Rents Reliefs Heriots and other services Idem codem Sect. 126. C. Also some service consisteth in seisance some in Render Perkins Reservations 696. Rent reditus commeth of the French Rent i. vectigal pensitatio annua and signifieth with us a sum of mony or other consideration issuing yearly out of Land or Tenements Plowden casu Browning fol. 132. b. fol. 138. a. 141. b. There be three sorts of Rents observed by our Common Lawyers that is Rent service Rent charge and Rent seck Rent service is where a man holdeth his Land of his Lord by Fealty and certain Rent or by Fealty Service and certain Rents Littleton lib. 2. cap. 12. fol. 44. or that which a man making a Lease to another for term of years reserveth yearly to be paid him for the same Terms of Law verbo Rents who giveth this Reason thereof because it is in his liberty whether he will distrein or bring an action of Debt A Rent charge is that which a man making over an estate of his Land or Tenements to another by deed indented either in fee or fee tail or lease for term of life reserveth to himself by the said Indenture a sum of Mony yearly to be paid unto him with clause of distress or to him and his heirs See Littleton ubi supra A Rent seck otherwise a dry Rent is that which a man making over an Estate of his Land or Tenement by Deed indented reserveth yearly to be paid him without clause of Distresse mentioned in the Indenture Littleton ubi supra And Terms of the Law verbo Rents See the new Expositor of Law Terms See Plowden casu Browning fol. 132. b. See the differences between a Rent and an Annuity Doctor and Student cap. 30. Dialog primo Reparatione facienda is a writ which lyeth in divers cases whereof one is where three be Tenants in Common or Joynt tenents or pro indiviso of a Mill or house which is fallen into decay and the one being willing to repair it the other two will not In this Case the party willing shall have this writ against the other two Fitz. nat br fol. 127. where read at large the form and many uses of this writ as also in the Regi orig fol. 153. b. Repeal commeth of the French Rappel i. Revocatio and
THE INTERPRETER OR BOOK CONTAINING The signification of WORDS Wherein is set forth the true meaning of all or the most part of such words and terms as are mentioned in the Law-Writers or Statutes of this victorious and renowned Kingdom requiring any Exposition or Interpretation A Work not only profitable but necessary for such as desire throughly to be instructed in the knowledge of our Laws Statutes or other Antiquities Collected by JOHN COWELL Doctor sometime the Kings Majesties Professor of the Civil Law in the University of Cambridge In Legum obscuritate captio LONDON Printed by F. Leach and are to be sold by Hen. Twyford Tho. Dring and Io. Place 1658. To his Reverend Father in GOD his especial good Lord THE LORD ARCHBISHOP OF CANTERBVRY Primate and Metropolitan of England and one of his MAJESTIES most Honourable Privie Councel AFter long deliberation I hardly induced my self to crave your gracious protection towards this simple work valuing it at so low a price as I think it hardly worth the respect of any grave man much lesse the favourable aspect of so honourable a personage Yet the remembrance of those your Fatherly provocations whereby at my coming to your Grace from the University you first put me upon these studies at the last by a kind of necessity inforced me to this attempt because I could not see how well to avoid it but by adventuring the hatefull note of unthankfulness For I cannot without dissimulation but confesse my self perswaded that this poor Pamphlet may prove profitable to the young Students of both Laws to whose advancement that way I have of late addicted mine endeavours else were I more than mad to offer it to the world and to offer it without mention of him that by occasioning of this good more or less deserveth the prime thanks were to prove my self unworthy of so grave advice And therefore howsoever I account this too much boldness in respect of the subject yet could I be exceedingly glad it might please your Grace to ascribe mine intention to the integrity of my duty For he that meaneth truly well and cannot perform much must needs rejoyce at the good acceptance of that little which he performeth All I crave for this at your Graces hands is patience and pardon for this enterprise with the continuance of those your many favours that hitherto to my great comfort I have enjoyed And so my long observation of your judicious disposition having taught me what small delight you take in affected complements and verbal commendation without more words In all true humblenesse I beseech the Almighty long to continue your Grace in health and prosperity to his glory and the good of his Church Your Graces at all Commandement JO. COWELL To the Readers GENTLE Readers I here offer my self to your censures with no other desire than by you to be admonished of my faults For though I doe professe the amplifying of their works that have gone before me in this kind and have both gathered at home and brought from abroad some ornaments for their better imbellishing of our English Laws yet am I neither so vain as to deny my imperfections nor so passionate as to be offended at your charitable reformations Nay my true end is the advancement of knowledge and therefore have published this poor work not only to impart the good thereof to those young ones that want it but also to draw from the learned the supply of my defects and so by degrees if not my self to finish this model yet at least by the heat of emulation to incense some skilfuller Architect thereunto Yea I shall think my pains sufficiently recompensed if they may be found but worthy to stir up one learned man to amend mine errors The Civilians of other Nations have by their mutual industries raised this kind of work in their profession to an unexpected excellency I have seen many of them that have bestowed very profitable and commendable pains therein And Lastly one Calvinus a Doctor at Heidelberge like a laborious Bee hath gathered from all the former the best juyce of their flowers and made up a hive full of delectable honie And by this example would I gladly incite the learned in our Common Laws and Antiquities of England yet to lend their advice to the gaining of some comfortable lights and prospects towards the beautifying of this antient Palace that hitherto hath been accounted howsoever substantial yet but dark and melancholy Whosoever will charge these my travels with many oversights he shall need no solemn pains to prove them for I will easily confesse them And upon my view taken of this Book sithence the Impression I dare assure them that shall observe most faults therein that I by gleaning after him will gather as many omitted by him as he shall shew committed by me But I learned long sithence out of famous Tully That as no mans errors ought to be followed because he saith some things well so that which a man saith well is not to be rejected because he hath some errors No man no Book is void of imperfections And therefore reprehend who will in Gods name that is with sweetnesse and without reproach So shall he reap hearty thanks at my hands and by true imitation of the most indicious that ever wrote more soundly help on this point of learning to perfection in a few months than I by tossing and tumbling my books at home could possibly have done in many years Experience hath taught me this in my Institutes lately set forth by publishing whereof I have gained the judicious observations of diverse learned Gentlemen upon them which by keeping them private I could never have procured By which means I hope one day to commend them to you again in a more exact purity and so leave them to future times for such acceptance as it shall please God to give them I have is some Towardnesse a Tract De Regulis Juris wherein my intent is by collating the cases of both Laws to shew that they both be raised of one foundation and differ more in language and terms than in substance and therefore were they reduced to one method as they easily might to be attained in a manner with all one pains But my time imparted to these studies being but stoln from mine employments of greater necessity I cannot make the hast I desire or perhaps that the discourse may deserve Wherefore untill my leisure may serve to perform that I intreat you lovingly to accept this One thing I have done in this Book whereof because it may seem strange to some I think to yeeld my reason and that is the inserting not only of words belonging to the art of the Law but of any other also that I thought obscure of what sort soever as Fish Cloath Stices Druggs Furrs and such like For in this I follow the example of our Civilians that have thought it their part to expound any thing they could meet with in
Wesenbecius in their Paratitles π. finium regund And though Justinian in his first division omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certain actions naming these and other of like nature that seem to have a mixture c. Of this you may also read Britton at large in his Chapter 71. And this division of action springeth from the object or matter whereabout it consisteth Wesenb parat π. de actio obliga The Author of the new Tearms of Law defineth a mixt action to be a sute given by the Law to recover the thing demanded and also the damages for wrong done as in Assise of novel disseisin the which writ if the disseisour make a feoffment to another the disseiseur shall have a remedie against the disseisour and the feoffer or other land tenant to recover not only the land but the dammages also See the test These words occasion me to shew that actio is by the Civil law called mixta in two respects Nam quadam mistae sunt quòd in se actionis in rem actionis personalis naturam habeant in üs actor reus uterque sit l. actionis verbo § fina w. de obliga actio Tales sunt actio familiae excisc communi dividun finium regun quaedam verò mistae sunt quòd rem simul poenam persequantur ut in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta solvere distulerunt And of this latter sort is the example that the said Author bringeth of a mixt action Action is also by the Civilians divided of the efficient cause in civilem praetoriam Whereof one riseth out of the common civil law the other from some Edict of the Pretour Who being Chief Justicer had authority for his year to supply the defects of the general law by his especial edicts And a division not unlike this may be made in the Common law of England one growing from the antient customary law the other from some Statute Brook tit Action sur le statut Action of the final cause is divided into civill poenal mixt Cook vol. 6. fol. 61. a. Action civil is that which tendeth only to the reeovery of that which by reason of any contract or other like cause is due unto us as if a man by action seek to recover a sum of mony formerly lent c. Action penal is that aimeth at some penalty or punishment in the party sued be it corporal or pecuniary As in the Action legis Aquiliae in the Civil law wherby in our Common law the next Friends of a man feloniously slain or wounded shall pursue the law against the murtherer or him that wounded him to condign punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are deprived and a penalty also for the unjust deteining of the same as in an Action of Tithe upon the Statute anno 2 3 Ed. 6. cap. 13. Action is also according to the form of Petition divided into such as are conceived to recover either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doth Decies tantum lye against Embracers Fitz. not br fol. 171. and against Jurours that take mony for their verdict of one part or the other or both And to be short any other action upon a Statute that punisheth any offence by restitution or fine proportionable to the transgression Action is prejudicial otherwise called preparatorie or else principal prejudicial is that which groweth from some question or doubt in the principal as if a man sue his younger Brother for Land descended from his Father and it be objected unto him he is a Bastard Bract. lib. 3 ca. 4. nu 6. For this point of bastardy must be tryed before the cause can further proceed and therefore is termed praejudicialis quia prius judicanda Action is either awncestrel or personal Stawnf pl. cor 59. Auncestrel seemeth to be that which we have by some right descending from our Ancestor upon us and that personall which hath the beginning in and from our selves Action upon the Case actio super casu is a general Action given for redress of wrongs done without force against any man and by Law not especially provided for For where you have any occasion of sute that neither hath a fit name nor certain form already prescribed there the Clerks of the Chancery in antient time conceived a fit form of Action for the fact in question which the Civilians call actionem in factum and our common Lawyers action upon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gesta enarratione declarant citra formulam ac solennitatem ullam Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the Civill Law there are two sorts actionis in factum one termed actio in factum ex praescriptis verbis the other actio in factum praetoria Wesenb parat de praescrip verb. the former growing upon words passed in contract the other more generally upon any fact touching either contract or offence formerly not provided against this Action upon the Case seemeth in use to be more like to the Pretours Action in factum than to the other because in the perusal of the new book of Entries and Brooks his Abridgement hereupon I perceive that an Action upon the Case lyeth as well against offences as breach of contract Of this see more in the word Trespass Action upon the Statute actio super Statuto is an Action brought against a man upon breach of a Statute to be resembled in mine opinion to any Action given in the law Imperial either upon edictum praetoris ple biscitum or senatusconsultum For as the Pretour so the common People in comitiis tributis and the Senators or Nobility in curia vel senatu had power to make laws whereupon the Pretour or other Judges permitted Action And even so our high Court of Parliament maketh Statutes against such offences as are either newly grown or more and more increased and our Judges entertain their Plees that commence their actions against the breakers of them Action is perpetual or temporal perpetua vel temporalis and that is called perpetual the force whereof is by no time determined Of which sort were all civil Actions among the antient Romans viz. such as grew from Laws decrees of the Senate or constitutions of the Emperors whereas actions granted by the Pretor died within the year de perpet tempor actio in Instit So we have in England perpetual and temporary actions and I think all may be called perpetual that are not expresly limited As divers Statutes give actions so
they be pursued within the time by them prescribed namely the Statute anno 1 Ed. 6. cap. 1. giveth action for three years after the offences therein shall be committed and no longer and the Statute anno 7 H. 8. cap. 3. doth the like for four years and that anno 31 Eliz. cap. 5. for one year and no more But as by the Civil Law no actions were at the last so perpetual but that by time they might be prescribed against as actiones in rem decem aut viginti terminantur annis personales veró triginta sect 1. de perpet temp actioin Institutio l. 3. Co. de praescript 30. annorum so in our Common law though actions may be called perpetual in comparison of those that be expresly limited by Statute yet is there a means to prescribe against real actions within five years by a fine levied or a recovery acknowledged as you may see farther in the word Fine and Recovery And for this also look Limitation of Assise Action is farther divided in actionem bonae fidei stricti juris Which division hath good use in our common Law likewise though the terms I find not in any of their Writers But of this and such like divisions because they have as yet no apparent acceptance amongst our Lawyers but only a hidden use I refer the Reader to the Civilians and namely to Wesenb in his Paratitles ◠Deobligatio actio AD Addition additio is both the English and French word made of the Latine and signifieth in our common Law a title given to a man over and above his Christian and Surname shewing his Estate Degree Occupation Trade Age Place of Dwelling c. For the use whereof in original writs of Actions personal appeals and indictments It is provided by Statute an 1 H. 5. cap. 5. upon the penalty therein expressed Terms of the Law Brook farther addeth that it is likewise requisite in Towns and Gates of the Towns Parishes in great Towns and Cities where there may be any doubt by reason of more Towns Gates or Parishes of the same name titulo Addition See also M. Cromptons Justice of peace fol. 95 96. Adeling was a word of Honor among the Angles properly appertaining to the Kings Children whereupon King Edward being himself without issue and intending to make Eadgare to whom he was great Uncle by the Mothers side his Heir to this Kingdom called him Adeling Roger Hoveden parte poster suorum Annal. fol. 347. a. Adjournment adjournamentum is almost all one with the French adjouarement i. denunciatio vel diei dictio and signifieth in our Common-law an assignment of a day or a putting off untill another day Adjournment in eyre anno 25 Ed. 3. Statute of Pourveyers cap. 18. is an appointment of a day when the Justices in eyre mean to sit again Adjourn anno 2 Edw. 3. cap. 11. hath the like signification And this whole Title in Brook his Abridgement proveth the same The bastard Latine word adjournamentum is used also among the Burgundians as M. Skene noteth in his Book De verbo signi verbo Ad urnatus out of Cassaneus de consuet Burg. Ad inquirendum is a Writ judicial commanding inquiry to be made of any thing touching a Cause depending in the Kings Court for the better execution of Justice as of Bastardy of Bond-men and such like whereof see great diversity in the Table of the Register judicial verbo ad inquirendum Admeasurement admensuratio is a Writ which lyeth for the bringing of those to a mediocrity that usurp more than their part And it lyeth in two cases one is termed Admeasurement of Dower admensuratio dotis where the widow of the deceased holdeth from the Heir or his Guardian more in the name of her Dower than of right belonging unto her Register orig fol. 171. a. Fitzh nat br fol. 148. The other is Admeasurement of Pasture admensuratio pasturae which lyeth between those that have common of Pasture appendant to their free-hold or common by vicenage in case any one of them or more do surcharge the Common with more Cattel than they ought Register orig fol. 156. b. Fitzh nat br fol. 125. Administer administrator in our Common-law is properly taken for him that hath the Goods of a Man dying intestate committed to his charge by the Ordinary and is accountable for the same whensoever it shall please the Ordinary to call him thereunto I find not this word so used in all the Civil or Canon-law but more generally for those that have the Government of any thing as the Degrees Can. 23. quaest 5. cap. 26. Administratores plane saecularium dignitatum c. and extrava com ca. 11. Grangias autem alia loca Cisterciensium ordinis aliorum Regalium in quibus Gubernatores seu custodes vel administratores ponuntur c. Howsoever the signification of this word grew to be restrained amongst us it greatly booteth not But there was a Statute made anno 31 Ed. 3. cap. 11. whereby Power was given to the Ordinary to appoint these Administrators and to authorize them as fully as Executors to gather up and to dispose the Goods of the deceased alway provided that they should be accountable for the same as Executors And before that viz. Westm 2. anno 13 Ed. 1. cap. 19. it was ordained that the Goods of those that died intestate should be committed to the Ordinary his disposition and that the Ordinary should be bound to answer his debts so far forth as the Goods would extend as Executors And I perswade my self that the committing of this burden unto Bishops and those that derive Ecclesiastical Authority from them grew first from the constitution of Leo the Emperor Co. de Episco et cleri l. nulli li licere 28. Where it is said that if a man dying bequeath any thing to the redeeming of Captives c. and appoint one to execute his Will in that point the Party so appointed shall see it performed and if he appoint none to do it then the Bishop of the City shall have power to demand the legacie and without all delay perform the Will of the deceased Admirall Admiralius commeth of the French amerel and signifieth both in France and with us an high Officer or Magistrate that hath the Government of the Kings Navy and the hearing determining of all Causes as well Civil as Criminal belonging to the Sea Cromptons divers jurisd fo 88. and the Statutes anno 13 R. 2. ca. 5. anno 15. ejusdem ca. 3. anno 2 H. 4. ca. 11. anno 2 H. 4. ca. 6. anno 28. H. 8. ca. 15. with such like This Officer is in all Kingdoms of Europe that border upon the Sea and this Authority in the Kingdom of Naples is called magna Curia Admiratiae quae habet jurisdictionem in eos qui vivunt ex arte maris Vincent de Franch deseis 142. nu 1. This Magistrate among the Romans was called praefectus
himself or his Deputie in places convenient looketh to the Assise of wollen cloth made through the land and to seales for that purpose ordained unto them anno 25. Ed. 3. Stat. 4. cap. 1. anno 3. R. 2. cap. 2. who is accomptable to the king for every cloth so sealed in a fee or custom therunto belonging an 17 R. 2. c. 2. Read of this more an 27. Ed. 3. c. 4. an 17. R. 2. c. 2. 5. an 1. H. 4. c. 13. an 7. ejusd c. 10. an 11. ejusd cap. 6. an 13. ejusd ca. 4. an 11. H. 6. ca. 9. an 31. ejusdem cap. 5. anno 4. Ed. 4. ca. 1. anno 8. ejusdem ca. 1. an 1. R. 3. cap. 8. AM Ambidexter is that jurour or embraceour that taketh of both parties for the giving of his verdict He forfeiteth ten times so much as he taketh anno 38. Edw. 3. cap. 12. Cromptons Juflice of Peace fol. 156. b. Amendment amendatio commeth of the French amendment and signifieth in our common Law a correction of an errour committed in a Processe and espyed before judgement Terms of the law Brook titulo Amendment per totum But if the fault be found after judgement given then is the party that will redresse it driven to his writ of errour Terms of the Law Brok 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 have offended and to stand at the mercy of the King or Lord. There seemeth to be a difference between amerciament and fines Kitthin fol. 214. And I have heard common Lawyers say that fines as they are taken for punishments be punishments certain which grow expresly from some Statute and that amerciaments be such as be arbitrably opposed by affeerors This is in some sort confirmed by Kitch f. 78. in these words l'amerciament 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 amerciament to be a more easie or more mercifull penaltie and a fine more sharp and grievous Take his words If the pledges for such a trespasse saith he do appear by common summons but not the defendant himself then the pledges shall be imprisoned for that default of the defendant but otherwise it is if the defendant himself doe appear and be ready in Court before the Lord Justice in eyr to receive his judgement and to pay his fine But if such pledges do make default in that case the pledges shall be amerced but not fined c. The Author of the new terms of law saith that amerciament is most properly a penaltie assessed by the peers or equals of the partie amercied for an offence done for the which he putteth himself upon the mercy of the Lord. Who also maketh mention of an amerciament royal and defineth it to be a pecuniary punishment laid upon a Sheriff Coroner or such like Officer of the Kings amercied by Justices for his offence See Misericordia Amoveas maium Look ouster le maine AN An tour waste annus dies vastum Look year day and waste Anealing of tile anno 17. Ed. 4. ca. 4. Annats Annaies seemeth to be all one with first fruits anno 25. H. 8. ca. 20. Look First fruits The reason is because the rate of first fruits payed of spiritual livings is after one years profit Of which Polydore Virgil de inventione rerum lib. 8. cap. 2. saith thus Nullum inventum majores Romano Pontifici cumulavit opes quam annatum qua vocant usus qui omnino multò antiquior est quam recentiores quidam scriptores suspicantur Et annates more suo appellant primos fractus unius anni sacer dotii vacantis aut dimidiam eorum partem Sanè hoc vectigal jam pridem cùm Romanus Pontifex non habuerit tot possessiones quot nunc habet cum oportuerit pro dignitate pro officio multos magnosque facere sumptus paulatim impositum fuit sacerdotiis vacantibus quae ille conferret de qua quidem re ut gravi saepe reclamatum fuisse testatur Henricus Hostiensis qui cum Alexandro 4. Pontifice vixit sic ut Franciscus Zabarellus tradat posthac in concilio Viennensi quod Clemens quintus indixit qui factus est Pontifex anno salutis humanae 135. agitatum fuisse ut eo deposito annatum onere vigesima pars vectigalium sacerdotalium penderetur quotannis Romano Pontifici id quidem frustrà Quare Pontifex annatas in sua massa retinuit ut ne indidem exire possent lege caetera Anniented commeth of the French anneantir i. se abjicere atque prosternere It signifieth with our Lawyers as much as frustrated or brought to nothing Littleton lib. 3. cap. warrantie Annua pensione is a writ whereby the King having due unto him an annual pension from an Abbot or Prior for any of his Chaplaines whom he shall think good to name unto him being as yet unprovided of sufficient living doth demand the same of the said Abbot or Prior for one whose name is comprised in the same writ untill c. and also willeth him for his Chaplaines better assurance to give him his Letters patents for the same Register orig fol. 265 307. Fitz. nat br fol. 231. where you may see the names of all the Abbeys and Priories bound unto this in respect of their Foundation or creation as also the form of the Letters Patents usually granted upon this writ Annuitie annuus reditus signifieth a yearly rent to be paid for term of life or years or in fee and is also used for the Writ that lyeth against a man for the recovery of such a rent either out of his Land or out of his Coffers or to be received of his person at a day certain every year not satisfying it according to the Grant Register Origin fol. 158. Fitzh nat br fol. 152. The Author of the new terms of Law defineth annuitie to be a certain sum of mony granted to another in fee-simple fee-tail for term of life or of years to receive of the Granter or his Heirs so that no Free-hold be charged therewith whereof a man shall never have assise or other action but a Writ of Annuity Saintgerman in his Book intituled The Doctor and Student dialogo primo cap. 3. sheweth divers differences between a Rent and an Annuity wherof the first is That every rent be it rent-charge rent-service or rent-seck is going out of Land but an Annuity goeth not out of any Land but chargeth only the person that is to say the Granter or his Heirs that have Assets by descent or the House if it be granted by a House of Religion to perceive of their Coffers The second difference is that for the recovery of an Annuity no Action lyeth but only the Writ of Annuity against the Granter his Heirs or Successors
que lieu is interponere judicium suum Of this Verb commeth the Participle assis as estre assis i. sedere And this Participle in the grand Customary of Normandy c. 68. is used as we would say appointed limited or determined viz. au jour qui est assis à faire la battaille se doibuent les champions offrir à la justice That is At the day which is appointed for the combat the Champions ought to offer themselves to the Iustice So that by all these places compared together it is evident whence the original of this word assise floweth How diversly it is used in our Common law it followeth that we declare First Littleton in the Chapter Rents saith that it is aequivocum where he setteth down three several significations of it one as it is taken for a Writ another as it is used for a Iury the third as for an Ordinance And him he that listeth may read more at large My Collections have served me thus first assise is taken for a Writ directed to a Sheriff for the recovery of possession of things immoveable where of your self or your Ancestors have been disseised And this is as well of things corporal as incorporeal rights being of four sorts as here they follow in their order Assise of novel disseisin assisanovae disseisinae lyeth where a Tenent in fee-simple fee-tail or for term of life is lately disseised of his Lands or Tenements or else of a Rent-service Rent-seck or Rent-charge of common of Pasture of an office of toll tronage passage pownage or for a Nusance levied and divers other such like For confirmation whereof you may read Glanvile li. 10. c. 2. Bracton li. 4. tract 1. per totum Britton c. 70. seq Reg orig fol. 197. Fitz. Nat. br fo 177 178 179. New book of Entries fo 74. col 3. West 2. c 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 Towns corporate being a kind of Assise for recovery of possession in such places within forty daies after the force as the ordinary Assise is in the County Fitzh Nat. br fol. 7. c. This the Civilians call Judicium possessorium recuperandi Assise of mort d'auncester assisa mortis antecessoris lyeth where my Father Mother Brother Sister Uncle Aunt c. died seised of Lands Tenements Rents c. that he had in Fee-simple and after his death a Stranger abateth and it is good as well against the Abatour as any other in possession How likewise this is extended see Bracton lib. 4. trast 3. per totum Britton ca. 70. cum multis sequent Fitzh Nat. br fo 114. Regist. orig fo 223. This the Civilians call Judicium possessorium adipiscendâ— Assise of darrein presentment assisa ultimae praesentationis lyeth where I or mine Ancestor have presented a Clark to a Church and after the Church being void by the death of the said Clark or otherwise a Stranger presenteth his Clark to the same Church in disturbance of me And how otherwise this Writ is used see Bracton l. 4. tract 2. Reg. orig fo 30. Fitzh Nat. br fo 195. Assise de utrum assisa utrum lyeth for a Parson against a Lay-man or a Lay-man against a Parson for Land or Tenement doubtfull whether it be lay-fee or free-alms And of this see Bracton li. 4. sract 5. ca. 1. seq Britton ca. 95. The reason why these Writs be called assises may be divers First because they settle the possession and so an outward right in him that obtaineth by them Secondly they were originally sped and executed at a certain time and place formerly appointed For by the Norman law the time and place must be known forty days before the Iustices sate of them and by our Law there must be likewise fifteen daies of preparation except they be tryed in those standing Courts of the King in Westminster as appeareth by F. N. B. fo 177. d e. Lastly they may be called Assises because they are tryed most commonly by especial Courts set and appointed for the purpose as may be well proved not only out of the Customary of Normandy but our books also which shew that in antient times Iustices were appointed by special Commission to dispatch controversies of possession one or more in this or that only County as occasion fell out or disseisins were offered and that as well in Term time as out of Term whereas of later daies we see that all these Commissions of Assises of Eyr of Oyer and Terminer of Gaol-delivery and of Nisi prius are dispatched all at one time by two several Circuits in the year out of term and by such as have the greatest sway of Iustice being all of them either the Kings ordinary Iustices of his Benches Sergeants at the Law or such like Assise in the second signification according to Littleton is used for a Jury For to use his own example it is set down in the beginning of the Record of an Assise of novel disseisin assisa venit recognatura which is as much as to say as Juratores venâ—unt recognituri The reason why the Iury is called an Assise he giveth to be this because by writ of Assise the Sheriff is commanded quod faciat duodecim liberos legales homines de viceneto c. Videre Tenementum illud nomina corum imbreviari quòd summoneat eos per bonas summonitiones quòd sint coram Justiciariis c. parati inde facere recognitionem c. This is as if he should have spoken shorter Metonymia effecti For they are called the Assises because they are summoned by vertue of the Writ so termed And yet the Iury summoned upon a Writ of right is likewise called the Assise as himself there confesseth Which writ of right is not an Assise but this may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or abusively so termed Assise in this signication is divided in magnam parvam Glanvile li. 2. c. 6 7 c. and Britton c. 12. where it appeareth wherein the great Assise differeth from the petit Assise whom I wish to be read by those who would be further instructed in this point For this place thus much in short The former four kinds of Assises used in actions only possessory be called petit assises in respect of the grand Assise For the Law of fees is grounded upon two rights one of possession the other of property and as the grand Assise serveth for the right of property so the petit assise serveth for the right of possession Horns mirror of Justices l. 2. c. de novel disseisin Assise in the third signification according to Littleton is an Ordinance or Statute as the Statute of bread and ale made anno 51 H. 3. is termed the assise of bread and ale assisa panis cervisiae Register orig fol. 279. b. The Assise of Clarendon
d 14 b c. See Monstraverunt and Fitzherb fol. 14. and Dessendo quietum de telonio fol. 226. Fleta maketh three tenures holding of the Crown Ancient demeasne by Echeate and by Purchase lib. 1. cap. 2. See Demaine Auncient Demesn arere antiquum dominicum à retro is that auncient demeasn which the King granteth over to hold of a mannor Kitch fol. 67 b. Avowè Advocatus see Advowè Britton saith that Avowè is he to whom the right of Advowzen of any Church appertaineth so that he may present thereunto in his own name and is called Avowè for a difference from those that sometime present in another mans name as a Gardian that presenteth in the name of his Ward and for a difference also from them which have the lands whereunto an advowzen appertaineth but only for term of their lives or of yeers or by intrusion or Disseisin cap. 29. Avowrie see advowry Avoir du pois is in true French avoir du poix i. habere pondus aut justi esse ponderis It signifieth in our Common law two things first a kinde of weight diverte from that which is called Troy weight containing but twelve ounces to the pound whereas this containeth sixteen And in this respect it may be probably conjectured that it is so called because it is of more weight than the other Then also it signifieth such merchandise as are weighed by this weight and not by Troy weight as in the statute of York anno 9 Edw. 3. in proaem anno 27 Edw. 3. statut 2. cap. 10. anno 2 Rich. 2. cap. 1. See Weights Auxilium ad silium militem faciendum filiam maritandam is a Writ directed to the Sheriff of every County where the King or other Lord hath any Tenents to levy of them reasonable ayde toward the knighting of his son and the marriage of his daughter See Ayde and Fitzh Nat. Brev. fol. 82. B. BA BAcheler bachalaureus cometh of the French bachalier i. tyro and thereupon I think those that be called Bachelers of the companies in London be such of eath company as be springing towards the estate of those that be employed in councel but as yet are inferiors For every company of the twelve consisteth of a Master two Wardens the Livery which are assistants in matters of counsel or at the least such as the assistants be chosen out of and the Bachelers which are yet but in expectance of dignity among them have their function only in attendance upon the Master and Wardens I have read in an old monument this word Bacheler attributed to the Lord Admiral of England if he be under a Baron in French words to this effect And it is to weet that when the Admiral rideth to assemble a ship of war or other for the business and affairs of the realm if he be a Bacheler he shall take for his dayes wages 4 s. sterling if he bean Earl or Baron he shall take wages after the rate of his estate and degree This word is used an 13 R. 2. stat 2. cap. 1 and signifieth as much as Bacheler knight doth anno 3 Ed. 4. cap. 5. that is a simple knight not a knight baneret See Baneret Touching the farther etymologie of this word Bachalarii teste Renano à Bacillo nominati sunt quia primi studii authoritatem quae per exhibitionem baculi concedebatur jam consecuti fuissent Ut fuerit velut quoddam mancipationis signum in hujusmodi aliquod studium baculi traditto Alciat writeth the word baccalaurei eosque dicit visos à baccâ laureâ nomen sumpsisse in l. cui praecipua 57 π. de verbo signif Backberond is a Saxon word and almost English at this day signifying as much as bearing upon the back or about a man Bracton useth it for a signe or circumstance of manifest theft which the Civilians call Furtum manifestum For dividing Furtum in manifestum non manifestum he defineth furtum manifestum in this sort Furtum verò manifestū est ubi latro deprehensus est seisitus de aliquo latrocinio sc haud habend backberend insecutus fuerit per aliquem cujus res illa fuerit lib. 3. tract 2. cap. 32. Master Manwood in the second part of his Forest laws noteth it for one of the four circumstances or cases wherein a Forester may arrest the body of an offender against vert or venison in the Forest For by the assise of the Forest of Lancaster saith he taken with the manner is when one is found in the kings forest in any of these four degrees sc Stable stand Dog draw Back bear and Bloody hand In which place you may find all these interpreted Badger cometh of the French bagage i. sarcina impedimentum It signifieth with us one that buyeth corn or victuals in one place and carrieth it into another See Cromptons Justice of Peace f. 69 70. Baye or Penne is a Pond head made up of a great height to keep in a great quantity or store of water so that the wheels of the furnace or hammer belonging to an iron mill may stand under them and be driven by the water coming out of them by a passage or floud-gate called the Penstock and falling upon the said wheels This word is mentioned in the statute an 27 Elizab. cap. 19. Bayl ballium plevina manucaptio commeth of the French bailler i. attribuere tradere tribuere It is used in our Common law properly for the freeing or setting at liberty of one arrested or imprisoned upon action either civil or criminal under surety taken for his appearance at a day and place certainely assigned Bracton lib. 3. tract 2. cap. 8. num 8 9. The reason why it is called Bayl is because by this means the party restrained is delivred into the hands of those that binde themselves for his forth-coming There is both common special bayl Common bayl is in actions of small pre judice or slight proof being called common because any Sureties in that case are taken wheras upon causes of greater weight or apparent specialty special bayl or surety must be taken as Subsidy-men at the least and they according to the value Master Manwood in his first part of Forest lawes pag. 167. maketh a great difference between Bayland Mainprise in these words and note that there is a great diversity between bayle and mainprise For he that is mainprised is alwayes sayd to be at large to go at his own liberty out of ward after that he is let to mainprise until the day of his appearance by reason of the said common summons or otherwise But otherwise it is where a man is let to bayle by four or two men by the Lord chief Justice in the Eyre of the forest until a certain day For there he is alwayes accounted by the Law to be in their ward and custody for the time And they may if they will keep him in ward or in
except there were some other farther division whereby to raise of every plow land so much and so consequently of every Knights fee that is of every 680. acres two marks of silver Rastal in his Exposition of words saith that caruage is to be quit if the Lord the King shall tax all the land by carues that is a priviledge whereby a man is exempted from caruage Skene de verb. signif ver Carucata terrae deriveth it from the French charon i. a plough and saith that it containes as great a portion of land as may be tilled and laboured in a year and day with one plough which also is called hilda or hida terrae a word used in the old Britain lawes Master Lamberd among his precedents in the end of his Eirenarcha translateth carucatum terrae a plough land Caruage caruagium see Carue Cassia Fistula is a tree that beareth certain black round and long cods wherein is contained a pulpe soft and pleasant sweet serving for many uses in Physick This tree with her vertues you may find described in Gerards Herball lib. 3. cap. 77. The fruit is mentioned in the Statute anno 1 Jacob. cap. 19. among drugges and spices that bee to be garbled Cassia Lignea is a sweet wood not unlike to Cynamon and sometime used in stead of Cynamon Whereof you may read in Gerards Herball lib. 1. cap. 141. this is called Cassia lignum in the Statute anno 1. Jacob. c. 19. and is comprised among merchandize that are to be garbled Castellain castellanus is a keeper or a Captain sometime called a Constable of a Castle Bracton lib. 5. tractat 2. cap. 16. lib. 2. cap. 32. num 2. In like maner is it used anno 3 Ed. 1. cap. 7. In the books de feudis you shall find guastaldus to be almost of the same signification but something more large because it is also extended to those that have the custody of the Kings mansion houses called of the Lomberds curtes in England Courts though they be not places of defence or strength M. Manwood part 1. of his Forest laws pag. 113. saith that there is an Officer of the Forest called Castellanus Castelward castelgardum vel wardum castri is an imposition laid upon such of the Kings subjects as â—â—en within a certain compasse of any Castle toward the maintenance of such is doe watch and ward the Castle Magna charta cap. 20. anno 32 H. 8. cap. 48. It is used sometime for the very circuit it self which is inhabited by such as are subject to this service is in Stowes annals pag. 632. Casu consimâ—li is a writ of entrie granted where the Tenent by courtesie or Tenent for Term of life or for the life of another doth alien in fee or in tail or for term of anothers life And it hath the name of this for that the Clerks of the Chauncery did by their common consent frame it to the likenesse of the writ called In casu proviso according to their authority given them by the Starute Westm 2. cap. 24. which as often as there chanceth any new case in Chancery something like to a former case and yet not especially fitted by any writ licenceth them to lay their heads toge 〈…〉 and to frame a new form answerable to the new case and as like some former case as they may And this writ is granted to him in the reversion against the party to whom the said Tenent so alienateth to his prejudice and in the life time of the said Tenent The form and effect whereof read more at large in Fitzh na br fol. 206. Casu proviso is a writ of entry given by the Statute of Glocester cap. 7. in case where a Tenent in dower alieneth in fee or for Term of life or in tail and lyeth for him in reversion against the alienee Whereof read Fitz. nat br more at large fol. 205. Catalls Catalla al. âs chatels cometh of the Normans For in the eighty-seventh Chapter of the grand customary you shall find that all moveable goods with them are called charels the contrary whereof is fief ibid. which we do call fee. But as it is used in our Common Law it comprehendeth all goods moveable and immoveable but such as are in the nature of freehold or parcel thereof as may be gathered out of Stawnf praero cap. 16. and anno Eliz. 1. cap. 2. Howbeit Kitchin in the chapter catalla fol. 32. saith that ready money is not accounted any goods or chatels nor hawkes nor hounds The reason why hawkes and hounds be not he giveth because they be ferae naturae why money is not though he set not down the cause yet it may be gathered to be for that money of it self is not of worth but as by consent of men for their easier traffick or permutation of things necessary for Common life it is reckoned a thing rather consisting in imagination than in deed Catals be either personal or real Personal may be so called in two respects one because they belong immediately to the person of a man as a bow horse c. the other for that being any way with-held injuriously from us we have no means to recover them but by personal action Chatels real be such as either appertain not immediatly to the person but to some other thing by way of dependency as a boxe with charters of land the body of a ward apples upon a tree or a tree it self growing on the ground Cromptons Justice of peace fol. 33. B. or else such as are necessary issuing out of some immoveable thing to a person as a lease or rent for tearm of yeares Also to hold at will is a chatel real New tearms verbo Chatel The Civilians comprehend these things as also lands of what kind or hold soever under bona bona autem dividuntur in mobilia immobilia mobilia verò in ea quae se movent vel ab aliis moventur v. legem 49. l. 208. Ï€. de verb. significa interpretes ibidem Bracton also c. 3. l. 3. num 3. 4. seemeth to be of the same judgement Catallis captis nomine dictrictionis it is a Writ that lyeth within a Borow or within a honse for rent going out of the same and warranteth a man to take the dores windowes or gates by way of distresse for the rent Old nat br Fol. 66. Catallis reddendis is a Writ which lyeth where goods being delivered to any man to keep until a certain day and be not upon demand delivered at the day And it may be otherwise called a Writ of detinew See more of it in the Register orig f. 139. and in the Old nat br fol. 63. This is answerable to actio dispositi in the Civil law Catchepâ—lle though it now be used as a word of contempt yet in ancient times it seemeth to have been used without reproach for such as we now call Sergeants of the Mace or any other that use to arrest
lawyers signifying him to whose use any other man is infeoffed in any Lands or Tenements See the new book of entries verbo uses and in Replevin fol. 508. colum 3. verbo Trespas fol. 606. fol. 123. a. b. colum 3. num 7. CH Chafe wax is an Officer in Chauncery that fitteth the wax for the sealing of the Writs such other instruments as are there made to be sent out This Officer is borrowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser i. sectari belluas apros cervos It signifieth two things in the Common Law First as much as actus in the Civil law that is a driving of cattel to or from any place as to chase a distress to a fortlet Old nat br fol. 45. Secondly it is used for a receit for Deer and wild beasts of a middle nature between a Forest and a Park being commonly lesse than a Forest and not endued with so many liberties as the Courts of attachment Swain mote and Justice seat and yet of a larger compas and stored with greater diversity both of keepers and wild beasts or game than a park And Crompton in his book of Jurisdictions fol. 148. saith that a Forest cannot be in the hands of a subject but it forth with loseth the name and becommeth a chase and yet fol. 197. he saith that a subject may be lord and owner of a Forest which though it seem a contrariety yet be both his sayings in some sort true For the King may give or alienate a Forest to a subject yet so as when it is once in the subject it leeseth the true property of a Forest because that the Courts called the Justice seat the Swain more and Attachment forthwith do vanish none being able to make a Lord chief Justice in Eyr 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 manner that there may be Attachment and Swainmote and a Court equivalent to a Justice 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 subject which a Forest in his proper true nature cannot and from a Park in that that it is not inclosed hath not onely a larger compasse and more store of game but of Keepers also and Overseers See Forest Chaleâ—ge calumnia cometh of the French chalenger i. sibâ— asserere is used in the Common law for an exception taken either against persons or things persons as in assise to the Jurors or any one or more of them or in a case of felony by the prisoner at the barre Smith de reâ— Angl. lib. 2. cap. 12. Briton cap. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration Old nat br fol. 76. Chalenge made to the Jurors 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 different Terms of the Law Chalenge to the Jurours is also divided into Chalenge principal and Chalenge per cause i. upon cause or reason Challenge principal otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the Law alloweth without cause alleged or farther examination Lamberd Eirena lib. 4. cap. 14. as a prisoner at the barr arraigned upon felonie may peremptorily chalenge to the number of 20. one after another of the Jurie empaneled upon him alleging no cause but his own dislike and they shall be still put off and new taken in their places But in case of high treason no challenge peremptorie is allowed anno 33 H. 8. cap. 23. Fortescue saith that a prisoner in this case may challenge 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 observe between Chalenge principal and Chalenge peremptorie finding peremptorie to be used only in matters criminal and barely without cause alledged more than the prisoners own phantasie Stawnf pl. cor fol. 124. but principal in civil actions for the most part and with naming of some such cause of exception as being found true the law alloweth without farther scanning For example if either party say that one of the Jurors is the son brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farther examination of the parties credit And how far this Chalenge upon children reacheth you have a notable example in Plowden casu Vernon against Manners fol. 425. Also in the plee of the death of a man and in every action real as also every action personal where the debt or dammages amount to 40 marks it is a good Chalenge to any man that he cannot dispend 40 shillings by the year of Free-hold anno 11 H. 7. cap. 21. and Terms of the Law verbo Chalenge The ground of this Chalenge you may see farther in Fleta lib. 4. cap. 8. Chalenge upon reason or cause is when the party doth allege some such exception against one or more of the Jurors as is not forthwith sufficient upon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Jurors as for example if the son of the Juror have married or espoused the daughter of the adverse party Terms of the Law ubi supra This Chalenge per cause seemed to be tearmed by Kitchin chalenge for favour fol. â—2 or rather Chalenge for favour is said there to be one species of Chalenge per cause where you may read what chalenges be commonly accounted principal and what not See the new book of Enteries verbo Chalenge and the Old nat br fol. 158. 159. That this word Chalenge is long sithence latined by the word calumnia appeareth by Bracton lib. 3. tract 2. cap. 18. lib. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will never forgive him that first strook this blow at him Of Chalenge you may farther read Fleta lib. 1. cap. 32. § Ad quem diem seq Chamberdekins are Irish beggers an 1 H. 5. c. 8. Chamberer is used for a Chamber-maid an 33 H. 8. cap. 21. Chamberlain camerarius vel camberlingus cometh of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly used in our Cbronicles Laws and Statutes as Lord great Chamberlain of England Lord Chamberlain of the Kings house the Kings Chamberlain anno 13 Ed. 1. cap. 41. anno 17 R. 2. cap. 6. to whose office it especially appertaineth to look to the Kings chambers and wardrope and to govern the under ministers
the suggestion of the party they do find the suggestion false or not proved and therefore the cause to be wrongfully called from the Court Christian then upon this consultation or deliberation they decree it to be returned again whereupon the Writ in this case obtained is called a consultation Of this you may read the Register orig fol. 44 45. c. usque fol. 58. Old nat br fol. 32. Fitz. eodem fol. 50. Contenement contenementum seemeth to be the free-hold Land which lyeth to a mans Tenement or dwelling house that is in his own occupation For in Magna charta chap. 14. you have these words A free man shall not be amerced for a small fault but after the quantity of the fault and for a great fault after the manner thereof saving to him his contenement or free-hold And a Merchant likewise shall be amerced saving to him his merchandies and any other villain then owers shall be amerced saving his waynage if he take him to our mercy And Bracton lib. 3. tractat 2. cap. 1. num 3. hath these words sciendum quòd miles liber homo non amerciabitur nisi secundùm modum delicti secundùm quod delictum fuit magnum velparvum salvo contenemento suo mercator verò non nisi salva merchandiz sua villanus nisi salvo Waniagio suo which mercy seemeth to have been learned from the Civil law whereby executio non potest fieri in boves aratra aliave instrumenta rusticorum l. executores Authen Agricultores Co. quae res pign obliga nec in stipendia arma equos militum l. stipendia Co. de executio rei judica ibi doctores nec in libros scholarium glos in l. Nepos Proculo verbo dignitate π. de verbo significa Quae tamen rusticorum militum scholarium privilegia circa executionem vera esse eatenus obtinere intelligenda sunt quatenus alia bona habent Johan Eimericus in processu judiciario cap. de Executione senten 79. num 11. Continuance seemeth to be used in the Common law as prorogatio is in the Civil law For example Continuance until the next Assise Fitz. nat br fol. 154. F. and 244. D. in both which places it is said that if a record in the Treasurie be alleged by the one party and denyed by the other a certiorari shall be sued to the Treasurer and the Chamberlain of the Exchequer who if they certifie not in the Chauncerie that such a record is there or that it is likely to be in th◠Tower the King shall send to the Justices repeating the certificate and will them to continue the Assise In this signification it is likewise used by Kitchin fol. 202. 199. and also anno 11 H. 6. cap. 4. Continual claim continuum clameum is a claim made from time to time Within every year and day to Land or other thing which in some respect we cannot attain without danger For example if I be disseised of land into which though I have right unto it I dare not enter for fear of beating it behooveth me to hold on my right of entry to the best opportunity of me and minetheir by approaching as neer it I can once every year as long as I live and so I save the right of entry to mine heir Terms of Law Again if I have a slave or villein broken from me and remaining any where within the ancient demeasne of the King being in the hands of the King I cannot maintain the writ de nativo habendo as long as he contuinueth there but if I claim him within the year and the day and so continue my claim until I can find him within that compass I may lawfully lay hold of him as mine own Fitz. nat br fol. 79. See more in Litleton verbo Continual claim And the new book of Entries Ibid. and Fleta lib. 6. cap. 53. Contract contractus is a Covenant or agreement with a lawful consideration or cause West parte prim symbol l. 1. Sect. 10. and lib. 19. π. de verbo Significa with other places it is thus defined Contractus est negotium inter duos pluresve data opera gestum ut vel uterque invicē vel alteruter obligetur Who so will throughly examine the difference between this pactum and such otherwords something like in signification let himsearch the Civilians and he shall find workboth pleasant and profitable and well fitting the Common law also Contra formam collation is is a Writ that lieth against an Abbot or his successor for him or his heir that hath given land toan Abbey to certain good uses and findeth that the Abbot or his Successour hath made a Feofment thereof with the assent of the Tenents to the disherison of the House and Church This is founded upon the statute of West 2. cap. 41. And of this see the Regist orig fol. 238. and Fitzh nat br fol. 210. And note that the Author of the Terms of Law saith that this is not brought against the Tenent or alienee Contra formam feoffamenti is a Writ that lyeth for the heir of a Tenent infeoffed of certain Lands or Tenements by charter of Feofment of a Lord to make certain services and sutes to his Court and is afterward distreined for more than is contained in the said charter Register orig fol. 176. Old nat br fol. 162. and the Terms of the Law Contributione facienda is a Writ that lieth in case where more are bound to one thing and one is put to the whole burthen Fitz. nat br fol. 162. bringeth these examples If Tenents in common or joynt hold a Mill pro indiviso and equally take the profits thereof the Mill falling to decay and one or more of them refusing to contribute toward the reparation thereof the rest shall have this Writ to compel them And if there be three Coparceners of Land that owe sute to the Lords Court and the eldest perform the whole then may she have this Writ to compel the other two to a contribution of the charge or to one of them if one onely refuse The Old nat br frameth this Writ to a case where one onely sute is required for Land and that Land being sold to divers sute is required of them all or some of them by distresse as intirely as if all were still in one fol. 103. See the Register orig fol. 176. Controller contrarotulator commeth of the French contrerouleur i. antigraphus graecè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which in Rome was used for him cui ia muneris iujunctum erat ut observares pecúniam quam in usum Principis vel civitatis collegerunt exactores Budaeus in annota prio in pand tit De officio quaestoris In England we have divers officers of this name as Controller of the Kings house pl. cor fol. 52. anno 6 H. 4. cap. 3. Controller of the Navie anno 35 Elizabeth cap. 4. Controller of the Custome Cromptons
appeareth by Bracton in these words Negotium in hoc casu terminabitur per cuntey cuntey sicut inter coharedes Bracton lib. 4. tract 3. cap. 18. And again in the same place In b evi de recto negotium terminabitur per cuntey cuntey And thirdly lib. 4. tract 4. cap. 2. Terminabitur negotium per breve de recto ubi nec duellum nec magna assisa sed per cuntey cuntey omninò which in mine opinion is as much as the ordinary Jury Curfew cometh of two French words couvrir i. tegere and feu i. ignis We use it for an Evening Peal by the which the Conqueror willed every man to take warning for the raking up of his fire and the putting out of his light So that in many places at this day where a Bell customably is rung toward Bed-time it is said to ring Curfew Stowes annals Curia avisare vult is a deliberation that the Court purposeth to take upon any point or points of a cause before judgement be resolved on For this see the new Book of Entries verbo Curia advisare vult Curia claudenda is a Writ that lyeth against him who should fence and close up his ground if he refuse or deferre to do it Regist orig fol 155. Fitzh nat br fol. 127. See also the new Book of Entries verbo Curia claudenda Cursiter clericus de cursu vel cursista curiae cancellariae is an Officer or Clerk belonging o the Chancerie that maketh out original Writs anno 14 15 H. 8. cap. 8. They be called Clerks of Course in the oath of the Clerks of the Chancery appointed anno 18 Ed. 3. stut 5. cap. unico There be of these 24 in number which have allotted unto every of them certain Shires into the which they make out such original writs as are by the subject required and are a Corporation among themselves Curteyn curtana was the name of King Edward the Saint his Sword which is the first Sword that is carried before the Kings of this Land at their Coronation Matthaeus Parisiens in Henrico tertio And I have heard say that the point thereof is broken which may argue an emblem of Mercie Curtilage See Curtelage Custode admittendo Custode amovendo are Writs for the admitting or removing of Gardians Reg. orig in indice Custom consuetudo is all one in signification with our Common Lawyers and Civilians being by them both accounted a part of the law Consuetudo quandoque pro lege servatur saith Bracton in partibus ubi fuerit more utentium approbata Longaevi enim temporis usus consuetudinis non est vilis authoritas lib. 1. cap. 3. It may be thus not unaptly defined Custome is a law or right not written which being established by long use and the consent of our Ancestors hath been and is daily practised our Ancestors that is majores and those of our kindred that are Ultra tritavum lib. 4. § parentem Ï€. de in jus vocando lib. ult § parentes Ï€. de gradibus affini nominibus eorum So that allowing the father to be so much older than his son as pubertas or the years of generation do require the Grandfather so much elder than him and fo forth usque ad tritavum we cannot say that this or that is a Custome except we can justifie that it hath continued so one hundred years For tritavus must be so much elder than the party that pleadeth it yet because that is hard to prove it is enough for the proof of a Custome by witnesse in the Common law as I have credibly heard if 2 or more can depose that they heard their Fathers say that it was a custome all their time and that their Fathers heard their Fathers also say that it was likewise a custome in their time If it be to be proved by record the continuance of a hundred years will serve Custome is either general or particular General I call that which is current thorow England whereof you shall read divers in the Doctor and Student lib. pri c. 7. very worthy to be known Particular is that which belongeth to this or that County as Gravelkind to Kent or to this or that Lordship City or Town Custome differeth from Prescription for that cuâ—ome iâ— common to more and Prescription in some mens opinion is particular to this or to that man Again Prescription may be for a farre shorter time than a Custome viz. for five years or for one year or lesse Example of five years Prescription you have in the levying of a Fine For if a Fine duly levied of Lands and Tenements be not impugned within five years it excludeth all claim for ever And if a man omit his continual claim for a year and a day then the Tenent in possession prescribeth an immunity against the entry of the Demandant his Heir Fitz. nat br fol. 79. Terms of the law verbo continual claim Out of our statutes you may have greater diversity which see collected in mine Institutes titulo de Usucapio longi tempo praescript So that Brissonius in his 14 de verbo signif seemeth to say truly that Prescription is an exception founded upon so long time run and past as the Law limiteth for the pursute of any action An example may be taken from those statutes anno 1 H. 8. cap. 4. which enacteth that in all action popular information shall be made within three years after the offence committed or else be of no force Of like nature is the Statute anno 7 H. 8. cap. 3. which in some cases maketh one years prescription sufficient against informations Custome is also used for the tribute or tolle that Merchants pay to the King for cartying in and out Merchandise anno 14 Ed. 3. stat 1. cap. 21. in which signification it is Latined Custuma Register orig fol. 138. a. r 29. a. And lastly for such services as Tenents of a Mannor owe unto their Lord New book of Entries verbo Custome Customary tenents tenentes per consuetudinem are such Tenents as hold by the Custom of the Mannor as their special evidence See Copie-holds Custos brevium is the principal Clerk belonging to the Court of Common Plees whose office is to receive and keep all the Writs and put them upon files every return by it self and at the end of every Term to receive of the Protonotaries all the Records of Nisi prius called the postea For they are first brought in by the Clerk of Assise of every circuit to the Protonotary that entred the issue in that matter for the entring of the Judgement And then do the Pronotaries get of the Court peremptory day for every party to speak what he hath to allege in arrest of Judgement which day being past he entreth the Verdict and Judgement thereupon into the rols of the Court and that done he doth in the end of the Term deliver over to the Custos brevium all the Records of
Nisi prius which came to his hand that term which received he bindeth into a bundle and bestoweth them The Custos breviam also maketh entry of the Writs of Covenant and the Concord upon every Fine and maketh forth exemplifications and Copies of all Writs and Records in his office and of all Fines levied The Fines after they be ingrossed the parts thereof are divided between the Custos brevium and the Chirographer whereof the Chirograper keepeth alwayes with him the Writ of Covenant and the note the Custos brevium keepeth the concord and the foot of the Fine upon the which foot the Chirographer do because the Proclamations to be endorsed when they be all proclaimed This Office is in the Princes gift Custos placitorum coronae Bracton l. 2. cap. 5. This seemeth to be all one with him whom we now call Custos rotulorum Of this Officer I find mention in the Writ odio acia Regist orig fol. 133. b. Custos rotulorum is he that hath the custodie of the Rolls or Records of the Sessions of Peace and as some think of the commission of the Peace it self Lamb. Eirenarch lib. 4. ca. 3. pag. 373. He is alwayes a Justice of Peace and Quorum in the County where he hath his Office Idem eodem and by his Office he is rather termed an Officer or Minister than a Judge because the Commission of the Peace layeth by expresse words this especial charge upon him quòd addies loca praedicta brevia praecepta praecessus indictamenta prodictacoram te dictis sociis tuis venire facias Idem eodem where read a competent tract of other things belonging to this Office Custos of the spiritualities custos spiritualitatis vel spiritualium is he that exerciseth the Spiritual or Ecclesiastical Jurisdiction of any Dioces during the vacancie of the See the appointment of whom by the Canon Law appertaineth to the Dean and Chapter ca. ad abolendā Extra Ne sede vacante aliquid innovetur But with us in England to the Arch-bishop of the Province by Prescription Howbeit divers Deans and Chapters if M. Gwin say truly in the Preface to his Readings do challenge this by auncient Charters from the Kings of this Land Cutter of the tayls is an Officer in the Exchequer that provideth Wood for the Tayles and cutteth the sum paid upon them and then casteth the same into the Court to be written upon DA DAmmage cometh of the French dam or domage signifying generally any hurt or hinderance that a man taketh in his estate But in the Common law it particularly signifieth a part of that the Jurours be to enquire of passing for the Plaintiff or Demandant in a Civil action be it personal or real For after verdict given of the principal cause they are likewise asked their consciences touching costs which be the charges of sute called of the Civilians expensae litis and Dammages which conte in the hindrance that the Plaintiff or Demandant hath suffered by means of the wrong done to him by the Defendant or Tenant Dane-gilt Dane-gold or Dane-gelt Dane-geldum is compounded of Dane and gelt i. pecunia and was a Tribute layd upon our Ancestors of twelve pence for every hide of Land through the Realm by the Danes that once got the masterie of us in regard as they pretended of clearing the Seas of Pyrates which greatly annoyed our Land in those dayes Cambd. Britan. 83. with whom agree the laws of Edward set out by M. Lamberd cap. 11. Stow in his annals pag. 118. saith that this tribute came to 40000. pounds by the year and that it was released by Ed. the Confessor The Author of the new terms of Law saith that this tribute began in the time of King Etheldred who being sore distressed by the continual invasion of the Daue to procure his peace was compelled to charge his people with importable payments For first he gave them at five several payments 113000. pounds and afterward granted them 48000. pounds yeerly See Roger Hoveden parte poster suorum annalium in Henrico secundo fol. 344. a. Dareyn continuance See Continuance Darein is a corrupt word of the French dernier i. ultimus Darrein presentment ultimae prasentatio See Assise or Darreyn presentment Dates dactyli is the plumme or fruit of the tree in Latine called palma in English the Date-tree well known to most men by sight And he that will farther understand the nature or diversities of this fruit may repair to Gerards Herbal lib. 3. cap. 131. They be numbred among Spices and Drugs to be garbled 1 Jacob. 19. Day dies is sometime used in the Law for the day of appearance in Court either originally or upon assignation and sometime for the returns of Writs For example dayes in bank be dayes set down by Statute or order of the Court when Writs shall be returned or when the party shall appear upon the Writ served And of this you may read the Statutes anno 51 H. 3. cap. 1. 2. Marlb cap. 12. anno 52 H. 3. and the Statute de anno bissextili anno 21 H. 3. and lastly anno 32 H. 8. cap. 21. To be dismissed without day is to be finally discharged the Court Kitchin fol. 193. He had a day by the Roll Kitchin fol. 197. that is he had a day of appearance assigned him Day Yeer and waste See Dies and Year DE Deadly feud feuda is a profession of an unquenchable hatred until we be revenged even by the death of our enemy It is deduced from the German word Feed which as Hotoman saith in verbis feudalibus modo bellum modo capitales inimicitias significat This word is used anno 43 Eliz. cap. 13. Dead pledge mortuum vadium See Mori gage Dean decanus is an Ecclesiastical Magistrate so called of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because he hath power over ten Canons at the least Howbeit in England we use to call him a Dean that is next under the Bishop and chief of the Chapter ordinarily in a Cathedral Church and the rest of the Society or Corporation we call Capitulum he Chapter But this word how diversly it is used read Lindwood titulo de judic ca. pri verbo Decani rurales where Dean Rurals are said to be certain persons that have certain jurisdiction Ecclesiastical over other Ministers and Parishes neer adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them As there be two foundations of Cathedral Churches in England the old and the new the new be those which Henry the eighth upon suppression of Abbyes transformed from Abbot or Prior and Covent to Dean and Chapter so be there two means of creating these Deans For these of the old foundation are brought to their dignity much like Bishops the King first ending out his Congé d'eslire to the Chapter the Chapter then chusing the King yeelding his royal assent and the Bishop confirming him and giving his mandate to install him
33. So that hereby I gather that of later times this word signifieth nothing but such an one as by oath of loyalty to his Prince for surety none ordinarily findeth at these dayes is setled in the combination or society of a Dozein And a Dozein seemeth now to extend so farre as every Leet extendeth because in Lâ—ets onely this oath is ministred by the Steward and taken by such as are twelve years old and upwards dwelling within the compasse of the Leet where they are sworn Fitzh nat br fol. 161. A. The particulars of this oath you may read in Bracton lib. 3. tract 2. cap. 1. num 1. in these words Quibus propositis that is the Commission of the Justices being read and the cause of their coming being shewed debent Justiciarii se transferre in aliquem locum secretam vocatis ad so quatuor vel sex uel pluribus de ma oribus de comitatu qui dicuntur Busones Comitatus ad quorum nutum dependent vota aliorum sic inter se tractatum habeant Justiciarii adinvicem ostendant qualiter à Donâ—ino Rege erus concilio provisum sit quà d omnes tam milite quà m alii qui sunt quindecim annâ—rum ampliùs jurare debent quòd utlagatos murditores robbatores burglatores non receptaâ—â—nt nec eis consentient nec corum receptatoribus si quos tales noverint illos attachiari facient hoc Vicecomiti balivis suis monstrabuntâ— si hutesium vel clameum de talibus audiverint statim and to clamore sequantur cum familia hominibus de terra sua Here Bracton setreth down fifteen years for the age of those that are sworn to the Kings peace but lib. 3. tract 2. cap. 11. num 5. he nameth 12 years See Inlaughe A man may note out of the Premisses diversities between the ancient and these our times in this point of law and government as well for the age of those that are to be sworn as also that Decennier is not now used for the chief man of a Dozen but for him that is sworn to the Kings peace and lastly that now there are no other Dozens but Leets and that no man ordinarily giveth other security for the keeping of the Kings peace but his own oath and that therefore none answereth for anothers transgression but every man for himself And for the general ground this may suffice See Franke pledge Declaration declaratio is properly the shewing forth or laying out of an action personal in any sure howbeit it is used sometime and indifferently for both personal and real actions For example anno 36. E. 3. cap. 15. in these words By the ancient terms and forms of Declarations no man shall be prejudiced so that the matter of the action be fully shewed in the Demonstration and in the Writ See the new Terms of Law See Cownte Dedimus potestatem is a Writ whereby commission is given to a private man for the speeding of some act appertaining to a Judge The Civilians call it Delegationem And it is granted most commonly upon suggestion that the party which is to do something before a Judge or in Court is so feeble that he cannot travel It is used in divers cases as to make a personal answer to a Bill of complaint in the Chaunceâ—ie to make an Atturney for the following of a sute in the Countie Hundred Wapentake c. Old nat br fol. 20. To levie a Fine West parte 2. symbol titulo Fines sect 112. and divers others effects as you may see by Fitzh nat br in divers places noted in the Index of the Book In what diversity of cases this VVrit or Commission is used see the Table of the Regist orig verbo Dedimus potestatem Deeds Facta signifie in our Common law-writings that contain the effect of a contract made between man and man which the Civilians call Literarum obligationem And of Deeds there be two sorts Deeds indented and Deeds poll VVhich division as M. West saith parte 1. Symbol lib. 1. sect 46. groweth from the form or fashion of them the one being cut to the fashion of teeth in the top or side the other being plain And the definition of a deed indented hee expresseth thus Sect. 47. A Deed indented is a Deed consisting of two parts or more in which it is expressed that the parties to the same Deed have to every part thereof interchangeably or severally set their several seals See the rest where at the last he sheweth the cause of the name viz. for that consisting of more parts each part is indented or cut one of them into the other that by the cut it may appear they belong to one businesse or contract A Deed poll or polled he describeth thus Sect. 46. Q. A polled Deed is a Deed testifying that onely the one of the parties to the bargain hath put his seal thereunto after the manner there by him described which read for your better understanding See the new Terms of law verbo Fait where he sheweth that each Deed consisteth in three points writing sealing and delivery Deer Hayse anno 19 H. 7. cap. 11. seemeth to be an Engine of cords to catch Deer De essendo quietum de telonio is a VVrit that that lyeth for them which are by privilege freed from the payment of Toll which read at large in Fitzh nat br fol. 226. Defalt Defalta cometh from the French Defaut and is an offence in omitting that which we ought to do West parte 2. symbol titulo Indictment sect 2. Of this hath Bracton a whole Tractate lib. 5. tractat 3. By whom it appeareth that a Default is most notoriously taken for non appearance in Court at a day assigned Of this you may read also in Fleta lib. 6. cap. 14. Defeisance defeisantia cometh of the French Desfaire or Deffaire i. infectum reddere quod factum est and signifieth in our Common law nothing but a condition annexed to an Act as to an Obligation a Recognisance or Statute which performed by the Obligee or Recognizee the Act as disabled and made void as if it never had been done whereof you may see West at large part 1. symb lib. 2. Sect. 156. Defendant defendens is he that is sued in an Action personal as Tenant is he which is sued in an Action real Terms of the Law Defendemus is an ordinary word in a Feofment or Donation and hath this force that it bindeth the Donour and his Heirs to defend the Donee if any man go about to lay any servitude upon the thing given other than is contained in the Donation Bracton lib. 2. cap. 16. num 10. See also Warrantizabimus Acquietabimus Defender of the Faith defensor fidei is a peculiar title given to the King of England by the Pope as Catholicus to the King of Spain and Christianissimus to the French King It was first given by Leo Decimus to King Henry the 8. for
writing against Marsin Luther in the behalf of the Church of Rome then accounted Domicilium fidei Catholicae Stows annals pag. 863. Deforsour deforciator cometh of the French Forceur i. expugnator It is used in our Common law for one that overcometh 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 cap. 53. next because a man may deforce another that never was in possession as for example if more have right to lands as Common heirs and one entring keepeth out the rest the Law saith that he deforceth them though he do not disseise them Old nat br fol. 118. and Litleton in his Chapter Disconti nuance fol. 117. saith that he which is enfeoffed by the Tenant in Tail and put in possession by keeping out the Heir of him in reversion being dead doth deforce him though he did not disseise him because he entred when the Tenant in tail was living and the Heir had no present right And a Deforsor differeth from an intrudour because a man is made an Intrudour by a wrongful entry onely into Land or Tenement void of a possessour Bracton lib. 4. cap. pri and a Deforsour is also by holding out the right He iras is above said Deliverances See Repligiare Demand demanda vel demandum cometh of the French Demande i. postulatio postulatus and signifieth a calling upon a man for any thing due It hath likewise a proper significatioÌ„ with the Common Lawyers opposite to plaint For the pursute of all civil actions are either demands or plaints and the persuer is called Demandant or Plaintiff viz. Demandant in actions real and Plaintiff in personal And where the party perfuing is called Demandant there the party persued is called Tenant where Plaintiff there Defendant See Terms of Law verbo Demandant Demy haque See Haque and Haquebut Demain Dominicum is a French word otherwise written Domaine and signifieth Patrimonium Domini as Hotoman saith in verbis feudalibus verbo Dominicum where by divers authorities he proveth those Lands to be dominicum which a man holdeth originally of himself and those to be feodum which he holdeth by the benefit of a superiour Lord. And I find in the Civil Law Rem dominicam for that which is proper to the Emperor Cod. Ne rei dominicae vel templorum vindicatio temporis praescriptione submoveatur being the 38 title of the 7 book And Res dominici juris i. reipub in the same place And by the word Domanium or Demanium are properly signified the Kings Lands in France appertaining to him in property Quia Domanium definitur illud quod nominatim consecratum est unitum incorporatum Regiae coronae ut scripsit Chopinus de domanâ—o Franciae tit 2. per legem Si quando 3. Cod. de bon vacan lib. 10. Mathaeut de Afflictis in consti Siciliae lib. 1. tit De locatione Demanii 82. which may be called Bona incorporata in corpus fisci redacta Skene de verborum signif verb. Terrae Dominicales In like manner co we use it in England howbeit we here have no land the Crown-land onely excepted which holdeth not of a Superior For all dependeth either mediatly or immediately of the Crown that is of some honour or other belonging to the Crown and not graunted in fee to any inferiour person Wherefore no common person hath any Demaines simply understood For when a man in pleading would signifie his land to be his own he saith that he is or was seised therof in his demain as of Fee Litleton l. 1. c. 1. Whereby he signifieth that though his land be to him and his Heirs for ever yet it is not true Demain but depending upon a superior Lord and holding by service or rent in lieu of service or by both service and rent Yet I find these words used 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 crown land is crept in by errour and ignorance of the word Fee or at least by understanding it otherwise than of the Feudists it is taken But Britton cap. 78. sheweth that this word demeyn is diversly 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 see This word sometime is used for a distinction between those lands that the Lord of a Mannor hath in his own hands or in the hands of his Leassee dimised upon a rent for tearm of years or life and such other land appertaining to the said Mannor which belongeth to free or copy-holders Howbeit the copy-hold belonging to any Manor is also in the opinion of many good Law yers accounted Demeines Bracton in his fourth Book tract 3. cap. 9. num 5. hath these words Item dominicum accipitur multipliciter Est autem dominicum quod quis habet ad mensam suam propriè sicut sunt Bordlands anglicè Itèm dicitur dominicum villenagium quod traditur villanis quod quis teÌ„pestivè intempestive sumere possit pro voluntare sua revocare Of this Fleta likewise thus writeth DominicuÌ„ est multiplex Est auteÌ„ DominicuÌ„ propriè terra ad mensaÌ„ assignata villenagium quod traditur villanis ad excolendum terra precariò dimissa quae tempestiviè pro voluntate domini poterit revocari sicut est de terra commissa tenenda quà m diu commissori placuerit poterit dici Dominicum de quo quis babet liberuÌ„ tenementuÌ„ alius usufructum etiaÌ„ ubi quis habet liberuÌ„ tenementuÌ„ alius curaÌ„ sicut de custode dici poterit curatore unde urus dicitur à jure alius quoque ab homine Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio Dominicum est omne illud tenementum de quo antecessor oblit seâ—situs ut de feudo nec refert cum usufructu vel sine de quo sie ectus esset si viveret recuperare posset per assisam nomine disseisinae licet alius haberet usum fructum sicut dici poterit de illis qui tenent in villenagio qui utuntur fruuntur non nomine proprio sed omine Dominâ— sui Flet. lib. 5. cap. 5. sect Dominicum autem And the reason why Copy-hold is accounted Demeans is because they that be Tenents unto it are judged in law to have no other right but at the will of the Lord. So that it is reputed still after a sort to be in the Lords hands And yet in common speech that is called ordinarily Demeans which is neither free nor copy It is farther to be noted that Demain is sometime used in a more special signification and is opposite to Frank-fee For example those lands which were in the possession of King Edward the Confessour
carens appaerentiam arboris habet non existentiam Summa Syl. Verbo Usura quaest 6. Est ergo Cambium siccum uxta hanc acceptionem in quà etiam accipitur in extrav Pii quinti idem quod Cambium fictum Non autem habet propriam naturam Cambii sed mutui et usurae At vero secundum Laurentium de Navarra in commento de usuris et Cambiis citatam Cambium siccum in alia acceptione minus communi summum est â—ambium in quo Campsor prius dat quam accipiat Dicitur autem isto modo ficcum quia sine praevia acceptione dat Campsor Quod tamen ut sic acceptum autore Sylvestro licitè celebratur aliquando Quiatunâ— verum et reale Cambium est diffe ens genere ab eo Cambio in quo Campsor prius recipit Quiae in isto Campsor semper primò dat et deâ—nde accipit Drift of the Forest seemeth to be nothing but an exact view or examination what cattel are in the Forest that it may be known whether it be overcharged or not and whose the beasts be This drist when how often in the year by whom and in what manner it is to be made See Manwood parte 2 of his Forest Laws cap. 15. Drait d' Advorizen See Recto de advocatione Ecclesiae Droit close See Recto clausum Droit de dower See Recto dotis Droit sur disclaimer See Recto sur diselaimer Droit patens See Recto patens DU Duces tecum is a Writ commanding one to appear at a day in the Chancery and to bring with him some piece of evidence or other thing that the Court would view See the new book of Entries verbo Duces tecum Duke Dux commeth of the French word Duc. In signifieth in ancient times among the Romans Ductorent exercitus such as led their armies who if by their prowesse they obtained any famous victory they were by their Souldiers saluted Imperatores as Hotoman verbo Dux de verbis feudal proveth out of Livy Tully and others Sithence that they were called duces to whom the King or people committed the custody or regiment of any Province Idem cod And this seemeth to proceed from the Lombards or Germans Sigon de reg ' no Ital. l. 4. In some Nations this day the Soveroigns of the Countrey are called by this name as Duke of Russia Duke of Sweden Here in England Duke is the next in secular dignity to the Prince of Wales And as M. Cambden saith heretofore in the Saxons times they were called Dukes without any addition being but meer officers and leaders of Armies After the Conquerour came in there were none of this title until Edward the thirds dayes who made Edward his son Duke of Cornwal After that there were more made and in such sort that their titles descended by inheritance unto their posterity They were created with solemnity per cincturam gladii cappaeque circuli aurei in capite impositionem vide Camd. Britann pag. 166. Zazium de feudis parte 4. num 7. et Cassan de consuetud Burg. pag. 6. et 10. and Ferns glory of generosity pag. 139. Dutchy court is a Court wherein all matters appertaining to the Dutchy of Lancaster are decided by the decree of the Chancellour of that Court. And the original of it was in Henly the fourths dayes who obtaining the Crown by deposing Richard the second and having the Dutchy of Lancaster by descent in the right of his mother he was seised thereof as King and not as Duke So that all the liberties franchises and Jurisdictions of the said Dutchie passed from the King by his grand Seal and not by Livery or Attournment as the possessions of Ever wick and of the Earldom of March and such others did which had descended to the King by other Ancestors than the Kings but at last Henry the fourth by authority of Parlament passed a Charter whereby the possessions liberties c. of the said Dutchy were severed from the Crown Yet Henry the seventh reduced it to his former nature as it was in Henry the fifts dayes Cromptons Jurisd fol. 136. The officers belonging to this Court are the Chancelour the Atturney Recelver general Clerk of the Court the Messenger Beside these there be certain Assistants of this Court as one Atturney in the Exchequer one Atturney of the Dutchy in the Chancery four Learned men in the Law retained of Councel with the King in the said Court. Of this Court M. Gwinâ— in the Preface to his Readings thus speaketh The Court of the Dutchy or County Palatine of Lancaster grew out of the grant of King Edward the third who first gave the Dutchy to his Son John of Gaunt and endowed it with such Royal right as the County 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 union of it with the Crown the same King suspecting himself to be more rightfully Duke of Lancaster than King of England determined to save his right in the Dutchy whatsoever should befall of the Kingdome and therefore he separated the Dutchy from the Crown and setled it so in the natural persons of himself and his Heirs as if he had been no King or Politick body at all In which plight is continued during the reign of King Henry the fifth and Henry the sixth that were descended of him But when King Edward the fourth had by recovery of the Crown recontinued the right of the house of York he seared not to appropriate that Dutchy to the Crown again and yet so that he suffered the Court and Officers to remain as he found them And in this manner it came together with the Crown to King Henry the seventh who liking well of that Policy of King Henry the fourth by whose right also he obtained the Kingdom made like separation of the Dutchy as he had done and so left it to his posterity which do yet injoy it Dum fuit infra aetatem is a Writ which lieth for him that before he came to his full age made a Feofment of his Land in Fee or for term of life or in tail to recover them again from him to whom he conveyed them Fitz. nat br fol. 192. Dum non fuit compos mentis is a VVrit that lyeth for him that being not of sound memory did alien any Lands or Tenements in Fee-simple Fee-tail for term of life or of years against the alience Fitzherb nat br fol. 202. Duplicat is used by Crompton for a second Letters Patent granted by the Lord Chancellour in a case wherein he had formerly done the same and was therefore thought void Cromptons Jurisd fol. 215. Dures Duritia cometh of the French dur i. durus veldurete 1. duritas and is in our Common law a Plee used in way of exception by him that being cast in prison at a mans sute or otherwise by beating or threats hardly used sealeth any Bond unto him during his
viderum partes infidelium minusque legem Mahometi noverunt sed sunt ferè omnes Itali male habituati ex rebus furtivis vivunt ac fraudulent is earum permutationibus ludis in quibus ut plurimum fraudes committunt sunt baptizati EI Ejectione custodiae Ejectment de gard is a Writ which lyeth properly against him that casteth our the Gardian from any land during the minority of the Heir Regist orig fol. 162. Fizth nat br fol. 139. Terms of the Law verbo Gard. There be two other writs not unlike this the one is termed Droit de gard or right of guard the other Ravishment de guard Which see in their places Ejectione firmae is a Writ which lyeth for the Lessee for term of years that is cast out before the expiration of his term either by the leassour or a stranger Regist. fol. 227. Fitzh nat br fol. 220. See Quare ejecit infra terminum See the new book of Entries verbo Ejectione firmo Einecia is borrowed of the French Aisne i. primogenitus and signifieth in our Common law Eldership Statute of Ireland anno 14 Hen. 3. Of this see M. Skene de verb. signif verbo Eneya Eire alias Eyre Iter. Bract. lib. 3. c. 11. in Rubrica cometh of the old French word Erre i. iter as à grand erre i. magnis â—ineribus It signifieth in Britton cap. 2. the Court of Justices Itinerants and Justices in Eyre are those onely which Bracton in many places calleth Justiciarios itinerantes of the Eyre read Britton ubi supra who expresseth the whole course of it And Bracton lib. 3. tractat 2. cap. 1. 2. The Eyre also of the Forrest is nothing but the Justice Seat otherwise called which is or should by ancient custome he held every three year by the Justices of the Forrest journying up and down to that purpose Cromptons Jurisd fol. 156. Manwood parte prima of of his Forrest laws pag. 121. See Justice in Eyr Read Skeâ—e de verborum significa verbo Iter whereby as by many other places you may see great affinity between these two Kingdomes in the administration of Justice and Government EL Election de Clerk Electione clerici is a Writ that lyeth for the choice of a Clerk assigned to take and make bonds called statute Merchant and is granted out of the Chancery upon suggestion made that the Clerk formerly assigned is gone to dwell in another place or hath hinderance to let him from following that businesse or hath not land sufficient to answer his transgression if he should deal amisse c. Fitzh na br fol. 164. Elegit is a Writ judicial and lyeth for him that hath recovered debt or dammages in the Kings Court against one not able in his goods to satisfie and directed to the Sheriff commanding him that he make delivery of half the parties lands or tenements and all his goods Oxen and Beasts for the Plough excepted Old nat br fol. 152. Regist orig fol. 299. 301. and the table of the Register Judicial which expresseth divers uses of this Writ The author of the new Terms of Law saith that this Writ should be sued within the year whom read at large for the use of the same Elk a kinde of Ewe to make Bowes of anno 33 H. 8. cap. 9. EM Empanel Impanellare Ponere in assisis Juratis cometh of the French Panne i. Pellis or of Panneau which signifieth sometime as much as a Pane with us as a Pane of glasse or of a window It signifieth the writing and entring the names of a Jury into a parchment Shedule or Roll or Paper by the Sheriff which he hath summoned to appear for the performance of such publike service as Juries are imployed in See Panel Emparlance cometh of the French Parler and signifieth in our Common law a desire or petition in Court of a day to pause what is best to do The Civilians call it petitionem induciarum Kitchin fol. 200. interpreteth it in these words If he imparl or pray continuance For praying continuance is spoken interpretative in that place as I take it The same Author maketh mention of Emparlance general fol. 201. and Emparlance special fol. 200. Emparlance general seemeth to be that which is made onely in one word and in general terms Emparlance special where the party requireth a day to deliberate adding also these words Salvis omnibus advantagiis tam ad jurisdictionem Curia quà m ad breve narrationem or such like Britton useth it for the conference of a Jury upon the cause committed unto them cap. 53. See Imparlance Emprovement See Improvement EN Encheson An. 50. Ed. 3. cap. 3. is a French word signifying as much as occasion cause or reason wherefore any thing is done See Skene de verbo significat verbo Encheson Encroachment or Accrochment cometh of the French Accrocher i. apprehendere inuncare harpagare and that cometh of Crochure i. aduncitas or crochu i. aduncus Encrochment in our Common law signifieth an unlawful gathering in upon another man For example if two mens grounds lying together the one presseth too far upon the other or if a Tenant owe two shillings rent service to the Lord and the Lord taketh three So Hugh and Hugh Spencer encroched unto them royal power and authority anno prim Ed. 3. in prooem Enditement Indictamentum cometh of the French Enditer i. deferre nomen alicujus indicare or from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because M. Lamberd will have it so Eirenar l.b. 4. cap. 5. pag. 468. It signifieth in our Common law as much as Accusatio in the Civil Law though it have not in all points the like effect West part 2. symb titulo Inditements defineth it thus An Inditement is a Bill or Declaration made in form of Law for the benefit of the Common-wealth of an accusation for some offence either criminal or penal exhibited unto Jurours and by their Verdict found and presented to be true before an Officer having power to punish the same offence It is an accusation because the Jury that inquireth of the offence doth not receive it until the party that offereth the Bill appear so farre in it as to subscribe his name and offereth his oath for the truth thereof It differeth from an Accusation in this that the preferrer of the Bill is no way tyed to the proof thereof upon any penalty if it be not pround except there appear conspiracy Wherefore though moved by M. Wests authority I call it an Accusation yet I take it to be rather Denunciatio because it is office done by the great Enquest rather that of a free intent to accuse Of this you may read S. Tho. Smith de Repup Anglor lib. 2. cap. 19. and Stawnf pl. cor lib. 2. cap. 23 24 25 26 c. Usque 34. and M. Lamberds Eirenarcha lib. 4. cap. 5. whence you may receive good satisfaction in this matter Endowment dotatio cometh of the French Doüaire and lignifieth
more remote Seisin whereunto the other three degrees do not extend The Writ in the second degree is called a VVrit of entry in le per and a VVrit in the third degree is called a VVrit of entry in le per cui and the fourth form without these degrees is called a VVrit of entry in le postâ—â— that is to say after the disseisin which such a one made to such a one And if any Writ of entry be conceived out of the right case so that one form be brought for another it is abateable The form of the first degree is such Praecipe Willielmo quod reddat Petro manerium de B. cum pertinentiis quod ille definet pro termino qui est elapsus The second is such Praecipe Petro quod reddat Willielmo manerium c. in quod ille non habuit ingressum nisi per patrem aut matrem avunculum vel amitam vel cognatum avum vel proavum dicts Petri qui dictum manerium dimisit pro termino qui est elapsus The third form is such Praecipe Johanni quod reddat Petro manerium de S. in quod ille non habuit ingressum nisi per T. cui talâ—s pater vel mater vel alius antecessor aut cognatus idem dimisit cujus haeres est ipse Petrus pro termino qui est elapsus And the form without the degrees is such In quod non habuit ingressum nisi post lessam quam talis pater aut mater sic ut supra cujus haeres ille est inde fecit pro termino qui est elapsus And in those four degrees be comprehended all manner Writs of entry which be without certainty and number Thus farre Britton by whom you may perceive that those words solet debet and also those other words in le per in le per cui and in le post which we meet with many times in books shortly and obscurely mentioned do signifie nothing else but divers forms of this Writ applyed to the case whereupon it is brought and each form taking his name from the said words contained in the Writ And of this read Fitzh in his nat br fol. 193. 194. This VVrit of entry differeth from an Assise because it lyeth for the most part against him who entred lawfully but holdeth against Law whereas an Assise lyeth against him that unlawfully disseised yet sometime a VVrit of entry lyeth upon an entrusion Regist orig fol. 233. b. See the new book of Entries verbo Entre brevis fol. 254. colum 3. I read of a VVrit of entry in the nature of an Assise Of this VVrit in all his degrees read Fleta lib. 5. cap. 34. sâ—q Entrusion Intrusio in our Common law signifieth a violent or unlawfull entrance into Lands or Tenements being utterly void of a possessor by him that hath no right nor spark of right unto them Bracton lib. 4. cap. 2. For example if a man step in upon any Lands the owner whereof lately dyed and the right Heir neither by himself or others as yet hath taken possession of them VVhat the difference is between Abator and Intrudor I do not well perceive except an Abatour he be that step peth into land void by the death of a Tenent in Fee and an Entrudor that doth the like into lands c. void by the death of the Tenent for Terms of life or yeers See Fitzh nat br fol. 203. F. The author of the new Terms of Law would have abatement Latined Interpositionem aut intro tionem per interpositionem and to be restrained to him that entreth before the Heir after the decease of a Tenent for life though the new book of Entries fol. 63. C. 205. D. 519. C. by his confession doth Latine Abatement by this word Intrusionem See Abatement See Disseisin See Britton cap. 65. Entrusion is also taken for the Writ brought against an Intrudor which see in Fitzhâ—nat br fol. 203. Entrusion de gard is a Writ that lyeth where the Infant within age entred into his his lands and holdeth his Lord on t for in this case the Lord shall not have the VVrit De communi custodia But this Old nat br fol. 90. Enure signifieth to take place or effect to be availeable Example A Release shall enure by way of extinguishment Litleton cap. Release And a Release made to a Tenent for Term of life shal inure to him in the Reversion ER Erius alias Iris is the Flower de lyce whose divers kinds you have expressed in Gerards Herbal lib. 1. cap. 34. The root of this is mentioned among Merchandize or Drugs to be garbled anno 1 Jacob. cap. 19. Ermins seemeth to come of the French Ermine i. mus araneus It signifieth a Furre of great price Erminstreat see Watlingstreat Errant Itinerans cometh of the French Error i. errare or the old word Erre i. Iter. It is attributed to Justices of circuit p. cor fol. 15. and Baylifes at large See Justices in Eyr and Baylife See also Eyr Errour Error cometh of the French Erreur and signifieth more specially in our Common law an error in pleading or in the Proces Brook titulo Errour And thereupon the VVrit which is brought for remedy of this oversight is called a VVrit of error in Latine De errore corrigendo thus definedâ— by Fitzh nat br fol. 20. A VVrit of Error is that properly which lyeth to redresse false judgement given in any Court of Record as in the Common bench London or other City having power by the Kings Charter or prescription to hold Plee of debt See the new book of Entries verbo Error or trespasse above the sum of twenty shillings This is borrowed from the French practice which they call proposition d'erreur VVhereof you may read in Gregorius De appellation pag. 36. In what diversity of cases this VVrit lyeth see the Register original in the Table verb. Errore corrigendo and Register judicial fol. 34. There is likewise a VVrit of Errour to reverse a Fine West parte 2. sect symbol titulo Fines 151. Errore corrigendo See Error ES Escawbio is a license granted to one for the making over of a Bill of Echange to a man over Sea Register Original fol. 194. a. Escape escapium cometh of the French eschapper i. aufugere effugere and signifieth in the Law a violent or prive evasion out of some lawful restraint For example if the Sheriff upon a Capias directed unto him take one and indeavour to carry him to the Gaol and he in the way either by violence or by slight break from him this is called an escape pl. cor fol. 70. Many examples might be brought out of him and others but the thing is plain Stawnf lib. 1. cap. 26. pl. cor nameth two kinds of Escapes voluntarie and negligent Voluntarie is when one arresteth another for Felonie or some other crime and afterwards letteth him go whither he listeth In which escape the party that
truly keep the Park c. I read also of an estate particular which is an estate for life or for yeers Parkins Surrenders 581. Estopel seemeth to come from the French estouper i. oppilare obturare stipare obstipare and signifieth in our Common Law an impediment or barre of an Action growing from his own fact that hath or otherwise might have had his Action for example A Tenent maketh a Feofment by collusion to one the Lord accepteth the services of the Feoffee by this he debarreth himself of the wardship of his Tenents Heir Fitzh nat br fol. 142. K. Divers other examples might be shewed out of him and Broke h. titulo Sir Edward Coke lib. 2. casu Goddard fol. 4. b. defineth an estopel to be a barre or hinderance unto one to plead the truth and restraineth it not to the impediment given to a man by his own Act onely but by anothers also lib. 3. The case of Fines fol. 88. a. Estovers Estoverium cometh of the French estouver i. fovere and signifieth in our Common law nourishment or maintenance For example Bracton lib. 3. tractat 2. cap. 18. num 2. useth it for that sustenance which a man taken for Felonie is to have out of his lands or goods for himself and his family during his imprisonment and the statute anno 6 Ed. prim cap. 3. useth it for an allowance in meat or cloath It is also used for certain allowances of wood to be taken out of another mans woods So it is used West 2. cap. 25. anno 13. Edw. 1. M. West parte 2. symbol titulo Fines Sect. 26. saith that the name of Estovers ontaineth House-bote Hay-bote and Plowbote and Plowbote as if he have in his grant these general words Dâ— rationabili esto verio in bosâ—is c. he may thereby claim these three Estrepement or Estrepament estrepementum cometh of the French word estropier i. mutilare obtruncare the which word the French men have also borrowed of the Italians or rather Spaniards with whom Estropear signifieth to set upon the rack It signifieth in our Common law spoil made by the Tenant for Term of life upon any Lands or Woods to the prejudice of him in the reversion as namely in the statute anno 6 Edw. 1. cap. 13. And it may seem by the derivation that Estrepament is properly the unmeasurable soaking or drawing of the heart of the Land by plowing or sowing it continually without manuring or other such usage as is requisite in good Husbandry And yet Estropier signifying nutilare it may no lesse conveniently be applyed to those that cut down Trees or lop them farther than the Law will bear This signifieth also a Writ which lyeth in two sorts the one is when a man having an Action depending as a fordom or dum fuit infra atatem or Writ of right or any such other wherein the Demandant is not to recover dammages sueth to inhibite the Tenant for making waste during the sute The other sort is for the Demandant that is adjudged to recover seisin of the Land in question and before execution sued by the Writ Habere facias seisinam for fear of waste to be made before he can get possession sueth out this Writ See more of this in Fitzherbert nat br fol. 60. 61. See the Register orig fol. 76. and the Register judicial fol. 33. Estreat extractum vel extracta cometh of the French Traict which among other things signifieth a figure or resemblance and is used in our Common law for the copie or true note of an original writing For example of amercements or penalties set down in the Rolls of a Court to be levied by the Bailiff or other Officer of every man for his offence See Fitzh nat br fol. 57. H. I. K. 76. A. And so it is used Westm 2. cap. 8. anno 13 Ed. 1. Estrey extrahura in our Common Law signifieth any beast not wild found within any Lordship and not owned by any man For in this case if it being cryed according to Law in the Market towns adjoyning shall not be claimed by the owner within a year and a day it is the Lords of the soil See Britton cap. 17. See Estrajes in the Forest anno 27 H. 8. cap. 7. New book of Entries verbo Trespas câ—â—icernant estrey EV Evidence evidentia is used in our Law generally for any proof be it testimony of men or instrument Sir Thomas Smith useth it in both sorts lib. 2. cap. 17. in these words Evidence in this signification is Authentical writings of contracts after the manner of England that is to say written sealed and delivered And lib. 2. cap. 23. speaking of the prisoner that standeth at the bar to plead for his life and of those that charge him with Felony he saith thus then he telleth what he can say after him likewise all those who were at the apprehension of the prisoner or who can give any Indices or tokens which we call in our language Evidence against the malefactor EX Examiner in the Chancerie or Starre-Chamber examinator is an Officer in either Court that examineth the parties to any sute upon their oaths or witnesses producted of either side whereof there be in the Chancery two Exception exceptio is a stop or stay to an Action being used in the Civil and Common Law both alike and in both divided into dilatory and peremptory Of these see Bracton lib. 5. tract 5 per totum and Britton cap. 91 92. Exchange excambium vel cambium hath a peculiar signification in our Common law and is used for that compensation which the Warrantor must make to the Warrantee value for value if the Land warranted be recovered from the Warrantee Bracton lib. 2. cap. 16. lib. 1. cap. 19. It signifieth also generally as much as Permutatio with the Civilians as the Kings Exchange anno 1 Hen. 6 cap. 1 4. anno 9 Edw. 3. statut 2. cap. 7. which is nothing else but the place appointed by the King for the exchange of Bullion be it gold or silver or plate c. with the Kings coyn These places have been divers heretofore as appeareth by the said statutes But now is there onely one viz. The Tower of London conjoyned with the Mint VVhich in time past might not be as appeareth by anno 1 Henrici 6. cap. 4. Exchequer see Eschequer Excheator see Escheator Excommunication excommunicatio is thus defined by Panormitan Excommunicatio est nihil aliud quà m censura a Canone vel Judice Ecclesiastico prolata inflicta privans legitima communione sacramentoram quandoque hominum And it is divided in majorem minorem Minor est per quam quis à Sacramentorum participatione conscientia vel sententia arcetur Major est quae non solùm à Sacramentorum verùm etiam fidelium communione excludit ab omni actu legitimo separat dividit Venatorius de senten excom Excommunicato capiendo is a VVrit directed to the
Terms of the Law verbo Account Expectant is used in the Common law with this word fee and thus used it is opposite to Fee simple For example Lands are given to a Man and his Wife in Frank-marriage to have and to hold to them and their Heirs In this case they have Fee-simple But if it be given to them and the Heirs of their body c. they have Tail and Fee expectant Kitchin fol. 153. Matthaeus de afflict is useth the Ad ective expectativa substantively in the same signification Descis 292. num 2. p. 412. Explees see Espleese Expeditate expeditare is a word usual in the Forest signifying to cut out the balls of the great dogs feet for the preservation of the Kings game Every one that keepeth any great Dogs not expeditated forfeiteth to the King three shillings four pence Cromptons Jurisdict fol. 152. M. Manwood useth the same word parte prim of his Forest Laws pag. 205 and pag. 212. he setteth down the manner of expeditating Dogges heretofore viz. Quòdtres ortell abscindantur sive pellota de pede anteriori that is that the three clawes of the fore-foot on the right side shall be cut off by the skin whereunto he also addeth out of the same ordinance called the Assise of the Forest that the same manner of expeditating of Dogs shall be still used and kept and none other Quaere whence it groweth that Master Crompton and he differ the one saying that the ball of the foot is cut out the other that the three fore-clawes are pared off by the skin Expensis militum levandis is a Writ directed to the Sheriff for levying allowance for the Knights for the Parliament Regist orig fol. 191. b. Expensis militü non levandis ab hominibus de antiquo dominico nec à nativis is a Writ wherby to prohibit the Sheriff from levying any allowance for the Knights of the Shire upon those that hold in ancient Demesn c. Reg. orig fol. 261. b. Extend extendere cometh of the French estendre i. dilatare dispandere distendere and signifieth in our Common law to value the Lands or Tenements of one bound by Statute c. that hath forfeited his bond to such an indifferent rate as by the yearly rent the Obligor may in time be payd his debt The course and circumstances of this see in Fitz. h. nat br fol. 131. Brief d'execution sur statut Merchant Extendi facias is a Writ ordinarily called a Writ of Extent whereby the value of Lands c. is commanded to be made and levied in divers cases which see in the Table of the Register original Extent extenta hath two significations sometimes signifying a Writ or commission to the Sheriff for the valuing of Lands or Tenements Register judicial in the Table of the Book Sometime the Act of the Sheriff or other Commissioner upon this Writ Brook titulo Extent fol. 313. Extinguishment in our Common law signifieth an effect of consolidation For example if a man have due unto him a yearly rent out of any Lands and afterward purchase the same Lands now both the property and rent are consolidated or united in one Possessor and therefore the rent is said to be extinguished In like manner it is where a man hath a Lease for years and afterward buyeth the property this is a consolidation of the property and the fruits and is an extinguishment of the Lease See the Terms of Law Extirpatione is a Writ judicial that lieth against him who after a verdict found against him for Land c. doth maliciously overthrow any house upon it c. and it is two-fold one ante judicium the other post judicium Register judicial fol. 13.56.58 Extortion Extortio signifieth in our Common law an unlawful or violent wringing of money or money-worth from any man For example if any Officer by terrifying any the Kings subjects in his office take more than his ordinary duties he committeth and is inditeable of Extortion To this by M. Wests judgement may be referred the exaction of unlawful Usury winning by unlawful Games and in one word all taking of more than is due by colour or pretence of right as excessive toll in Milners excessive prizes of Ale Bread Victuals Wares c. West parte 2. Symbol titulo Indictments Sect. 65. M. Manwood saith that Extortion is Colore officii and not virtute officii parte 1. of his Forest laws pag. 216. M. Crompton in his Justice of Peace fol. 8. hath these words in effect Wrong done by any man is properly a Trespasse but excessive wrong done by any is called Extortion and this is most properly in officers as Sheriffes Maiors Bailiffes Escheatours and other Officers whatsoever that by colour of their Office work great oppression and excessive wrong unto the Kings subjects in taking excessive reward or fees for the execution of their office Great diversity of cases touching Extortion you may see in Cromptons Justice of Peace fol. 48. b. 49. 50. See the difference between colore officii virtute vel ratione officii Plow casu Dives fol. 64. a. This word is used in the same signification in Italy also For Cavalcanus de brachio regio parte 5. num 21. thus describeth it Extortio dicitur fieri quando Judex cogit aliquid sibi dari quod non est debitum vel quod est ultra debitum vel ante tempus petit id quod post administratam justitiam debetur Extreats See Estreats Eyre See Eire FA. FAculty Facultas as it is restrained from the original and active signification to a particular understanding in Law is used for a privilege or especiall power granted unto a man by favour indulgence and dispensation to do that which by the Common law he cannot do as to eat flesh upon dayes prohibited to marry without Banes first asked to hold two or more Ecclesiastical Livings the Son to succeed the Father in a Benefice and such like And for the granting of these there is an especial Officer under the Arch-bishop of Canterbury called Magister ad Facultates the Master of the Faculties Fag anno 4 Ed. 4. cap. 1. Faint and false action seem to be Synonyma in Litleton fol. 144. for faint in the French tongue signifieth as much as feigned in English Faint pleader falsa placitatio cometh of the French feint a Participle of the Verb feindre i. simulare fingere and pledoir i. placitare It signifieth with us a false covenous or collusory manner of pleading to the deceit of a third party anno 34. 35. H. 8. cap. 24. Faire aliàs Feire feria cometh of the French feire and signifieth with us as much as Nundinae with the Civilians that is a solemn or greater sort of Market granted to any Town by privilege for the more speedie and commodious provision of such things as the subject needeth or the utterance of such things as we abound in above our own uses and occasions both our
Huckstow idem pag. 456. of Hay Manwood parte 1. pa. 144. of Cantsâ—lly eadem pag. of Ashdowne in the County of Sussex an 37. H. 8. ca. 16. Forests of Whittilwood and Swasie in the County of Northampton an 33. H. 8. cap. 38. Of Fronselwood in the County of Somerset Coke li. 2. Cromwels case fo 71. b. I hear also of the forest of Exmore in Devonshire There may be more which he that listeth may look for Forester forestarius is a sworn officer of the forest appointed by the Kings letters patents to walk the forest both early and late-watching both the vert and the venison attaching and presenting all trespassers against them within their own bayliwick or walk whose oath you may see in Crompton fo 201. And though these letters parents bee ordinatily granted but quam diu bene se gesserint yet some have this grant to them and their heirs and thereby are called Foresters or fosters in fee Idem fol. 157. 159. and Manwood parte 1. pag. 220. whom in Latine Crompton calleth Foresta rium feudi fo 175. Fore-judger forisjudicatio signifieth in the Common law a Judgement whereby a man is deprived or put by the thing in question It seemeth to be compounded of fo rs i. praeter and juger i. â—udicare Bracton lib. 4. tract 3. cap. 5. hath these words Et non permittas quòd A. capitalis dominus feudi illius habeat custodiam haeredis c. quia in Curia nostra forisjudicatur de custodia c. So doth Kitchin use it fol. 29. and Old nat brev fol. 44 and 81. and the Stat. An. 5. E. 3. c. 9. an 21 R. 2. c. 12. Forjudicatus with Authors of other nations signifieth as much as Banished or as Deportatus in the antient Roman law as appeareth by Vincentius de Franchis descis 102. Mathaeus de Afflictis l. 3 feud Rub. 31. p. 625. Foregoers be Purveyors going before the King or Queen being in progresse to provide for them anno 36. Ed. 3. c. 5. Forfeiture forisfactura commeth of the French word Forfaict i. scelus but signifieth in our language rather the effect of transgressing a penall Law than the transgression it self as forfeiture of Eschears anno 25 E. 3. ca. 2. statut de Proditionibus Goods confiscate and goods forfeited differ Staw pl. Co. f. 186. where those seem to be forfeited that have a known owner having committed any thing whereby he hath lost his goods and those confiscate that are disavowed by an offendor as not his own nor claimed by any other I think rather that forfeitute is more general and confiscation particular to such as forfeit onely to the Princes Exchequer Read the whole chapter li. 3. ca 24. Full forfeiture plena forisfactura otherwise called plena vita is forfeiture of life and member and all else that a man hath Manwood parte 1. p. 341. The Canon Lawyers use also this word For forisfactura sunt pecuniariae pocnae delinquentium Glos in c. Presbyteri extrade poenis Forfeiture of mariage forisfactura maritagii is a writ lying against him who holding by Knights service and being under age and unmarried refuses her whom the Lord offereth him without his disparagement and marrieth another Fitz. nat br fo 141. H. I. K. L. Register original fol. 163. b. Forseng quietantiam prioris prisae designat in hoc enim delinquunt Furgenses Londonenses cum prisas suas ante prisas regis faciunt Fleta lib. 1. ca. 47. Forgery see here next following Forger of false deeds Forger of false deeds cometh of the French Forger i. accudere fabricare conflare to beat on an anvile to fashion to bring into shape and signifieth in our Common law either him that frandulently maketh and publisheth false writings to the prejudice of any mans right or else the writ that lieth against him that committeth this offence Fitz. nat br fo 96. b c calleth it a writ of Deceit See Terms of Law verbo Forger and Wests Symb. parte 2. Indictments Sectio 66. See the new book of Entries verbo Forger de faits This is a branch of that which the Civilians call Cremen falsi Nam falsarius est qui decipiendi causa scâ—ipta publica falsificat Speculator de crimine falsi Falsicrimen propriè dicitur quod utilitatis privatae causa factum est Connanus li. 5. ca. 7. nu 4. Ad esse falsitatis tria requir untur mutatio veritatis dolus quod alteri sit nocivum Quorum si alterum desit falsitas non est pu ibilis Hostiensis et Azo in suis summis Forister See Forester Formdon Breve formatum donationis is a writ that lyeth for him that hath right to any ands or tenements by vertue of any entail growing from the Statute of Westm 2. cap. 1. It lyeth in three sorts and accordingly is caled forma donations or formdon in the descender formdon in the reverter or formdon in the remainder Formdon in the descender lyeth for the recovery of lands c. given to the one and the heirs of his body or to a man and his wife and the heirs of their two bodies or to a man and his wife being Cosin to the Donour in franck mariage and afterward alienated by the Donee For after his decease his heire shall have this writ against the renent or alienee Fitz. nat br fol. 211. He maketh three sorts or this formdon in the descender The first is in the manner now expressed The second is for the heir of a Coparcener that alienateth and dyeth fo 214. the third is called by him In simul tenuit fol. 216. which lieth for a Coparcener or heir in Gavelkind before partition against him to whom the other Goparcener or heir hath alienated and is dead Formdon in the Reverter lyeth for the Donour or his heirs where land entailed to certain and there issue with condition for want of such issue to revert to the Donour and his heirs against him to whom the Donee alienateth after the issue extinct to which it was entailed Fitz. nat br fol. 219. Formedon in the remainder lyeth where a man giveth lands in tail the remainder to another in tayl and afterward the former tenent in tail dyeth without issue of his body and a stranger abateth then he in the remainder shall have this writ Fitz. nat br f. 217. See the Register original fol. 238 242 243. Of this see the new book of Entries verb. Formdon Forsechoke seems to signifie originally as much as forsaken in our modern language or derelictum with the Romans It is especially used in one of our Statutes for land or tenements seised by the Lord for want of services due from the tenent and so quietly held and possessed beyond the year and day As if wee 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 law to recover them doth in due presumption of Law
died in pound Kitchin fol. 145. or if he claim a propriety in the Cattel sued for Terms of the Law To wage law what it is see in his place verbo Law See Mortgage Gager deliverance See Gage Gayle See Gaol Gainage Wain agium is â—eer to the French Gaignage i. quaestus lucrum and signifieth in our Common law the land held by the baser kind of Sokemen or Villeins Bracton lib. 1. cap. 9. where he hath these words speaking observants Et in hoc legem habet contra dominos quòd stare possunt in judicio contra eos de vita membris propter saevuiam dominorum vel propter intolerabilem injuriam Ut si eos destruant quòd salvum non possit eis esse Wainagium suum Hoc autem verum est de illis servis qui tenent in antiquo dominico coronae And again lib. 3. tract 2. cap. 1. Miles liber homo non amerciabitur nisi secundum modum delicti secundum quod delictum fuit magnum vel parvum salvo contenemento suo Mercator verò non nisi salva mercandiza sua villanus non nisi salvo Wainagio suo This in West 1. cap. 6. anno 3. Ed. prim is called Gaynure and again cap. 17. and in magna charta cap. 14. it is called Wainage I find it in the Old nat br fol. 117. called Fainor v.z. in these words The Writ of Aile was praecipe c. quòd reddat unam bovatam terrae unam bovatam marisci and â—he Writ was abated for that the oxegang is alwayes of a thing that lyeth in gainor I think this word was used of lands usually plowed because they that had it in occupation had nothing of it but the profit and fruit raised of it by their own pains toward their sustenance nor any other title but at the Lords will Gainor again in the same book fol. 12. is used for a Sokeman that hath such land in his occupation In the 32. Chapter of the Grand Custumary of Normandie Gergneurs be ruricolae qui terras eleemozynatas possidem and Britton useth gainer for to plow or till fol. 65. a. 42. b. West parte 2. symbol titulo Recoveries sect 3. hath these words A praecipe quòd reddat lyeth not in Bovata marisci 13 Ed. 3. fol. 3. nor de selione terrae Edw. 1. for the uncertainty because a selion which is a land sometime containeth an acre sometime half an acre sometime more and sometime lesse It lyeth not of a garden cotage or croft 14. Assis 13.8 H. 63.22 Ed. 4.13 de virgata terrae 41.43.13 Ed. 3. de fodina de minerade mercatu 13 E. 3. for they be not in demesn but in gain c. Lastly in the statute of distresses in the Exchequer anno 51 Hen. 3. I find these words No man of religion nor other shall be distreined by his beasts that gain the land Galege galicae seemeth to come of the French galloches which signifieth a certain kind of shoo worn by the Gaules in foul weather of old times I find it used for some such Implement anno 4 Ed. 4. cap. 7. anno 14. 15 H. 8. c. 9. where is written plainly Galoches Galingal cyperus is a medicinal herb the nature and diversity whereof is expressed in Gerards Herbal lib. 1. cap. 22. The root of this is mentioned for a drugge to be garbled anno 1 Jacob. cap. 19. Gallihalpens were a kind of coin forbidden by the statute anno 3 H. 5. cap. 1. Galloches See Galege Galls Gallae be a kind of hard fruit like a nut but rounder growing of the Tree called in Latine galla The divers kinds and uses whereof Gerard expresseth in his Herbal lib. 3. c. 34. This is a drug to be garbled an Ja. c. 19. Gaol gaola cometh of the French Geole i. caveola a cage for birds but is metaphorically used for a prison Thence cometh Geolier whom we call Gayler or Gaoler Garbe Garba cometh of the French garbe altâs gerbe i. sascis It signifieth with us a bundle or sheaf of corn Charta de Foresta cap. 7. and garba sagittarum is a sheaf of arrowes Skene de verb. significat verbo Garbae Garbling of bow-staves anno 1 R. 3. cap. 11. is the sorting or culling out the good from the bad As garbling of Spice is nothing but to purifie it from the drosse and dust that is mixed with it It may seem to proceed from the Italian garbo that is finesse neatnesse Gard Custodia cometh of the French garde being all of one signification It signifieth in our Common law a custodie or care of defence but hath divers applications sometimes to those that attend upon the safety of the Prince called Yeoman of the Guard sometime to such as have the education of children under age or of an Idiot sometime to a Writ touching Wardship Which writs are of three sorts one called a right of Guard or Ward in French droit de gard Fitzh nat br fol. 139. The second is ejectment de gard Idem fol. 139. L. The third is ravishment de gard Idem fol. 140. F.G. See Gardein see Ward Gardein Custos cometh of the French Gardien and yet the German Warden is neer unto it It ligniheth generally him that hath the charge or custodie of any person or thing but most notoriously him that hath the education or protection of such people as are not of sufficient discretion to guide themselves and their own affairs as Children and Idiots being indeed as largely extended as both Tutor and Curator among the Civilians For where as Tutor is he that hath the government of a youth untill he come to fourteen yeers of age and Curator he that hath the disposition and ordering of his substance afterward until he attain to five and twenty years or that hath the charge of a frantick person during his lunacie the common Lawyers use but onely Gardien or Gardian for both these And for the better understanding of our English law in this thing you must know that as Tutor is either Testamentarius or à Praetore datus est ex lege Atilia or lastly legitimus so we have three sorts of Gardeins in England one ordained by the Father in his last will another appointed by the Judge afterward the third cast upon the Minor by the law and custome of the land Touching the first a man having goods and Chattels never so many may appoint a Gardein to the body or person of his child by his last VVill and Testament until he come to the age of fourteen years and so the disposing or ordering of his substance until what time he thinketh meet and that is most commonly to the age of 21 years The same may he do iâ— he have lands to never so great a value so they hold not in capite of the King nor oâ— any other Lord by Knights service And in the former case if the Father appoint no Gardein to his Child the Ordinary
may appoint one to order his moveables and chattels until the age of fourteen years at which time he may chuse his Gardian accordingly as by the Civil Law he may his Curator For we hold all one rule with the Civilians in this case and that is Invito curator non datur And for his Lands if he hold any by Copy or Court-rol commonly the Lord of the Fee appointeth him a Guardian until he come to the age of fourteen years and that is one next of kind to the Minor of that side that can hope for least profit by his death If he hold by charter in socage then the next of kind on that side by which the land cometh not is the Guardian and hereupon called guardian in socage And that which is said here of socage seemeth to be true likewise in petit sergeantie anno vicesimo octavo Ed. vardi primi statuto primo And the reason of this Fortescue giveth in his book intituled A commendation of the politique laws of England cap. 44. viz. because there might be suspition if the next kinsman on that side by which the land descendeth should have the custody and education of the Child that for desire of his land he might be entised to work him some mischief Lastly if a man die seised of lands holding by Knights service leaving his heir in minority that is under 21 years the Lord of the Fee hath by Law the custody both of the heir anâ— his land until he come to age See the statute anno 28 Ed. prim statut prim And the reason of this Fortescue likewise giveth for that he to whom by his Tenure he oweth Knights service when he can perform it is likeliest to train him up in martial and ingenious discipline until he be of ability But Polidore Virgil in his Chronicle lib. 16. saith that this was Novum vectigalis genus excogitatum to help Henry the third being oppressed much with poverty by reason he received the Kingdome much wasted by the Wars of his Ancestors and therefore needing extraordinary help to uphold his estate yet the 33 Chapter of the Grand Custumary maketh mention of this to have been used by the Normans and I think this the truer opinion Here it is to be observed whether land in Knights service hold in capite or of another Lord or some of the King and some of another If of the King whether of the King alone or not all is one For the King in this case is Guardian to the heirs both person and land by his prerogative Stawnford praerogat cap. 1. If he hold of a common Lord it is either of one alone or more if of one onely then is he Guardian of both person and Lands if of more then the Lord of whom he holdeth by the elder Tenure is Guardian of the person and every one of the rest hath the custody of the land holden of himself If the priority of the Tenure cannot be discerned then is he Guardian of the person that first happeth him Terms of the law Stawnf ubi supra whom you may read more at large which Author fol. 19. maketh mention of Gardeyn in feit and Gardeyn in droit that is in deed and in law I take the first to be him that hath purchased or otherwise obtained the ward of the Lord of whom the Land holdeth The second him that hath the right by his inheritance and seignorie Old nat br fol. 94. Then is there Gardeyn per cause de gard which is he that hath the wardship of a Minor because he is Guardian of his Lord being likewise in minority Stawnford ubi supra fol. 15. Of this you may read Skene de verb. signif verbo Varda by whom you may learn great affinity and yet some difference between the Law of Scotland and ours in this point Guardia is a word used among the Feudists for the Latine Custodia and Guardianus seu guardio dicitur ille cui custodia commissa est lib. Feudo 1. titulo 2. titulo 11. Gardeyn of the Spiritualities Custos spiritualium vel spiritualitatis is he to whom the spiritual jurisdiction of any Diocesse is committed during the vacancie of the See an 25 H. 8. c. 21. And I take that the Guardeyn of the Spiritualties may be either Guardein in law or Jure Magistratus as the Arch-bishop is of any Dioces within his Province or Guardian by delegation as he whom the Arch-bishop or Vicar general doth for the time depute Gardeyn of the peace Custos pacis See Conservatour of the peace Gardeyn of the Cinque ports Gardianus quinque portuum is a Magistrate that hath the jurisdiction of those Havens in the East part of England which are commonly called the Cinque ports that is the five Havens who there hath all that jurisdiction that the Admiral of England hath in places not exempt The reason why one Magistrate should be assigned to these few Havens seemeth to be because they in respect of their situation anciently required a more vigilant care than other Havens being in greater danger of invasion by our enemies by reason that the Sea is narrower there than in any other place M. Cambden in his Britannia pag. 238. saith That the Romans after they had setled themselves and their Empire here in England appointed a Magistrate or Governour over those East parts whom they rearmed Comitem littoris Saxonici per Britanniam having another that did bear the same title on the opposite part of the Sea whose office was to strengthen the Sea Coasts with Munition against the outrages and robberies of the Barbarians And farther signifieth his opinion that this Warden of the Cinque ports was first erected amongst us in imitation of that Roman policie See Cinque ports Gare anno 31 Ed. 3. cap. 8. is a coarse wool full of staring hairs as such as groweth about the pesil or shanks of the Sheep Garnishment cometh of the French Garnir i. instruere It signifieth in our Common law a warning given to one for his appearance and that for the better furnishing of the cause and Court. For example one is sued for the detinue of certain Evidences or Charters and saith that the Evidences were delivered unto him not onely by the Plaintiff but by another also and therefore prayeth that that other may be warned to plead with the Plaintiff whether the said conditions be performed yea or no. And in this petition he is said to pray Garnishment New book of Entries fol. 211. colum 3. Terms of the Law Cromptons Jurisd fol. 211. which may be interpreted either warning of that other or else furnishing of the Court with parties sufficient throughly to determine the cause because untill he appear and joyn the Defendant as Fitzherb saith is as it were out of the Court nat br fol. 106. G. and the Court is not provided of all parties to the action I am the bolder thus to interpret it because I find Britton in the same
2. cap. 36. See Relief But Britton cap. 69. saith That Heriot is a reward made by the death of a Tenent to any Lord of the best beast found in the possession of the Tenent deceased or of some other according to the ordinance or assignement of the party deceased to the use of his Lord which reward toucheth not the Lotd at all nor the heir nor his inheritance neither hath any comparison to a Relief for it proceedeth rather of grace or good will than of right and rather from Villeins than Free-men See Dyer fol. 199. num 58. to the same effect This in Scotland is called Herrezelda compounded of herr i. dominus herus and zeild i. gift Skene de verbo signific verbo Herrezelda Hart is a Sagge of five years old compleat Manwood parte 2. of his Forest Laws cap. 4. num 5. which he hath out of Budeus de philologia lib. 2. And if the King or Queen do hunt him and he escape away alive then afterward he is called a Hart royal And if the Beast by the Kings or Queens hunting be chased out of the Forest and so escape Proclamation is commonly made in the places thereabout that in regard of the pastime that the Beast hath shewed to the King or Queen none shall hurt him or hinder him from returning to the Forest and then is be a Hart royal proclaimed Idem eodem Hawberk cometh of the French Haubert i. lorica whereupon he that holdeth land in France by finding a Coat or Shirt of Mail and to be ready with it when he shall be called is said to have Hauberticum feudum whereof Hotoman writeth thus Hauberticum feudum gallicâ linguà vulgò dicitur pro loricatum i. datum vasallo ea conditione ut ad edictum loricatus sive cataphractus praesto sit Nam ut lorica latinis propriè minus usitatè est tegmen de loro factum quo majores in bello utebantur quem admodum Servius Honoratus scribit in libro Aeneidum 11. fâ—equentissimè autem pro aenea armatura integra usurpatur sic apud Gallos Haubert propriè loricam annulis contextam significat quam vulgus Cotte de maille appellat Haec Hot. in verbis feudal verbo Hauberticum feudum Hauberk with our Ancestors seemeth to signifie as in France a Shirt or Coat of Male and so it seemeth to be used anno 13 Ed. pri stat 3. cap. 6. Though in these dayes the word is otherwise written as Halbert and signifieth a weapon well enough known Haward alià s Hayward seemeth to be compounded of two French words Hay i. Sepes Garde i. Custodia It signifieth with us one that keepeth the common Herd of the Town and the reason may be because one part of his office is to look that they neither break nor crop the hedges of inclosed grounds It may likewise come from the German herd i. armentum and bewarren i. custodire He is a sworn Officer in the Lords Court and the form of his oath you may see in Kitchin fol. 46. Hawkers be certain deceitful fellows that go from place to place buying and selling Brasse Pewter and other merchandise that ought to be uttered in open Market The appellation seemeth to grow from their uncertain wandring like those that with Hawkes seek their game where they can find it You find the word anno 25 H. 8. cap. 6. anno 33. ejusdem cap. quarto HE Headborow is compounded of two words Heosodi i. caput and Bor. he i. pignus It signifieth him that is chief of the Frank-pledge and him that had the principal government of them within his own pledge And as he was called Headborow so was he also called Burow-head Bursholder Thirdborow Tithing man Chief pledge or Borowelder acording to the diversity of speech in divers places Of this see M. Lamberd in his Explication of Saxon words verbo Centuria in his Treatise of Constables and Smith de Repub. Anglo lib. 2. cap. 22. It now signifieth Constable See Constable Healfang is compounded of two Saxon words Hals i. collum and fang i. capere captivare See Pylory Heir Haeres though for the word it be borrowed of the Latine yet it hath not altogether the same signification with us that it hath with the Civilians for whereas they call him haeredem qui ex testamento succedit in universum jus testatoris the common Lawyers call him heir that succedeth by right of blood in any mans Lands or Tenements in Fee for there is nothing passeth with us jure haereditatis but onely Fee Moveables or chatels immoveable are given by Testament to whom the Testator listeth or else are at the disposition of the Ordinarie to be distributed as he in conscience thinketh meet Glossa in Provinciali constitut Ita quorundam De testamentis verbo Ab intestato And whether a man injoy moveable goods and chatels by will or the discretion of the Ordinarie he is not with us called an Heir but onely he that succeedeth either by restament or right of blood in fee. Cassanaeus in consuetud Burg. pag. 909. hath a distinction of haeres which in some sort well accordeth with our law For he saith ther is haeres sanguinis haereditatis And a man may be haeres sanguinis with us that is heir apparentto his Father or other Ancestor yet may upon displeasure or meer will be defeated of his inheritance or at the least the greatest partthereof Heyre loom seemeth to be compounded of heir and loom that is a frame namely to weave in The word by time is drawn to a more general-signification than at the firstit did bear comprehending all implements of houshold as namelytables presses cupbords bedsteads wainscot and such like which by the custom of some Countries having belonged to a house certain descents are never inventaried after the decease of the owner as Chattels but accrue to the heir with the house it self This word is twice metaphorically used in that Divine speech made by that most worthy and compleat noble-man the Earl of Northampton against that hellish oughly and damnable Treason of Gunpowder plotted to consume the most vertuous King that ever reigned in Europe together with his gracious Queen and precious posterity as also the three honourable Estates of this renowned kingdom Heck is the name of an Engine to take fish in the river of Owse by Yorke anno 23. H. 8. cap. 18. Heinfare aliâs Hinefair discessio famuli à Domino The word is compounded of Hine a Servant and Fare an old English word signifying a passage Henchman or heinsman is a Germane word signifying Domesticum aut unum de familia It is used with us for one that runneth on foot attending upon a man of honour or worship anno 3. Edw. 4. cap. 5. anno 24. Henric. 8. cap. 13. Hengwite significat quetantiam meserecordiae dè latrone suspenso absque consideratione Fletali 1. ca. 47. See Hankwit Herald heraldus is borrowed by us of the
joyntly to the Husband and the Wife and after to the Heirs of their bodies whereby the Husband and Wife be made joynt tenants during the coverture Coke lib. 3. Butler and Bakers case f. 27. b. See Frank mariage Joynture is also used as the abstract of Joynt tenants Coke lib. 3. the Marquess of Winchesters Case fol. 3. a. b. Junctura is also by Bracton and Fleta used for joyning of one bargain to another Fleta lib. 2. cap. 60. touching the self-same thing and therefore joynture in the first signification may be so called in respect that it is a bargain of livelihood for the wife adjoyned to the contract of mariage Journ Choppers anno 8 Hen. 6. cap. 5. be regraters of yarn Whether that we now call yarn were in those daies called journ I cannot say but Choppers in these dayes are well known to be changers as choppers of Churches c. Journeyman commeth of the French Journee that is a day or dayes work which argueth that they were called Journeymen that wrought with others by the day though now by Statute it be extended to those likewise that covenant to work in their occupation with another by the year anno quinto Elizabeth cap. quarto IS Issue Exitus commeth of the French Issir i. emanare or the Substantive Issue i. exitus eventus It hath divers applications in the common Law sometime being used for the children begotten between a man and his wife sometime for profits growing from an amercement or fine or expences of sute sometime for profits of lands or tenements West 2. anno 13. Edw. prim cap. 39. sometime for that point of matter depending in sute whereupon the parties joyn and put their cause to the trial of the Jury 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 between 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 trial of twelve men is the effect of pleading or processe Issue in this last signification is either general or special General issue seemeth to be that whereby it is referred to the Jury to bring in their verdict whether the Defendant have done any such thing as the Plaintiff layeth to his charge For example if it be an offence against any Statute and the Defendant plead not culpable this being put to the Jury is called the General issue and if a man complain of a private wrong which the Defendant denieth and pleads no wrong nor disseisin and this be referred to the 12. it is likewise the General issue Kitchin fol. 225. See the Doctor and Student fol. 158. b. The Special issue then must be that where special matter being alleged by the Defendant for his defence both the parties joyn thereupon and so grow rather to a Demurrer if it be quaestio Juris or to tryal by the Jury if it be quaestio facti See the new Book of Entries verbo Issue JU Juncture See Joynture Jure patronatus See the new Book of Entries verbo Jure patronatus in quare impedit fol. 465. col 3. Jurie Jurata commeth of the French Jurer i. jurare it signifieth in our Common law a company of men as 24. or 12. sworn to deliver a truth upon such evidence as shall be delivered them touching the matter in question Of which trial who may and who may not be empanelled see Fitzh nat brev fol. 165. D. And for better understanding of this point it is to be known that there be three manner of trials in England one by Parliament another by Battel and the third by Assize or Jury Smith de Repub. Anglorum lib. 2. cap. 5 6 7. touching the two former read him and see Battel and Combat and Parliament the trial by Assise be the action civil or criminal publike or private personal or real is referred for the fact to a Jury and as they find it so passeth the Judgement and the great favour that by this the King sheweth to his Subjects more than the Princes of other Nations you may read in Glanvil lib. 2. cap. 7. where he called it Regale beneficium clement is principis de consilio procerum populis indultum quo vitae hominum Status integritats tam salubriter consulitur ut in jure quod quis in libero soli tenemento possidet retinendo duelli casum declinare possint homines ambiguum c. see the rest This Iury is not used only in Circuits of Justices Errant but also in other Courts and matters of Office as if the Escheatour make inquisition in any thing touching his Office he doth it by Jury or Inquest if the Coroner inquire how a subject found dead came to his end he useth an Inquest the Justices of Peace in their Quarter Sessions the Sheriff in his County and Turn the Bayliff of a Hundred the Steward of a Court Leet or Court Baron if they inquire of any offence or decide any cause between party and party they doe it by the same manner So that where it is said that all things be triable by Parliament Battel or Assise Assise in this place is taken for a Jury or Enquest empanelled upon any cause in a Court where this kind of trial is used and though it be commonly deemed that this custom of ending and deciding causes proceed from the Saxons and Britons and was of favour permitted unto us by the Conquerour yet I find by the grand Customarie of Normandy cap. 24. that this course was used likewise in that Country For Assise is in that Chapter defined to be an assembly of wise men with the Bayliff in a place certain at a time assigned forty dayes before whereby Justice may be done in causes heard in the Court. Of this custom also and those Knights of Normandie Johannes Faber maketh mention in the Rubrique of the Title de militari testamento in Institut this Jury though it appertain to most Courts of the Common law yet is it most notorious in the half-year Courts of the Justices errants commonly called the great Assises and in the quarter Sessions and in them it is most ordinarily called a Jury And that in civil causes whereas in other Courts it is oftener termed an Enquest and in the Court Baron the Homage In the general Assise there are usually many Juries because there be store of causes both civil and criminal comonly to be tried whereof one is called the Grand Jury and the rest Petit Juries whereof it seemeth there should be one for every Hundred Lamb. Eirenar lib. 4. cap. 3. pag. 384. The Grand Jury consisteth ordinarily of 24. grave and substantial Gentlemen or some of them Yeomen chosen indifferently out of the whole Shire by the Sheriff to consider of all Bils of Inditement preferred to the Court which they doe either approve by writing upon them these
quod constituimus vos Justiciarium nostrum capitalem ad placita coram nobis terminandum durante bene-placito nostro Teste c. And Bracton in the place now recited speaking of the Common Plees saith that Sine Warranto jurisdictionem non habet which I think is to be understood of a Commission under the great Seal This Court was first called the Kings Bench because the King sat as Judge in it in his proper Person and it was moveable with the Court. See anno 9 H. 3. cap. 11. More of the jurisdiction of this Court see in Crompton ubi supra See Kings Bench. The oath of the Justices see in the Statute anno 18 Edw. 3. stat 4. See Oatb Justice of common plees Justiciarius communium placitorum is also a Lord by his Office and is called Dominus Justiciarius communium placitorum and he with his assistants originally did hear and determine all causes at the Common law that is all civil causes between common persons as well personal as real for which cause it was called the Court of Common Plees in opposition to the Plees of the Crown or the Kings Plees which are special and appertaining to him only Of this and the Jurisdiction hereof see Cromptons jurisdiction fol. 91. This Court was alwayes setled in a place as appeareth by the Statute anno 9 H. 3. cap. 11. The oath of this Justice and his Associates see anno 18 Edw. 3. Stat. 4. See Oath Justice of the Forest Justiciarius Forestae is also a Lord by his Office and hath the hearing and determining of all offences within the Kings Forest committed against Venison or Vert of these there be two whereof the one hath jurisdiction over all the Forests on this side Trent the other of all beyond The chiefest point of their Jurisdiction consisteth upon the articles of the Kings Charter called Charta de Foresta made anno 9 H. 3. which was by the Barons hardly drawn from him to the mitigation of over cruel ordinances made by his predecessors Read M. Camdens Brit. pag. 214. See Protoforestarius The Court where this Justice sitteth and determineth is called the Justice seat of the Forest held every three years once whereof you may read your fill in M. Manwoods first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Justice in Eyre of the Forest See the reason in Justice in Eyre This is the only Justice that may appoint a Deputy per statutum anno 32 H. 8. cap. 35. Justices of Assise Justiciarii ad capiendas Assisas are such as were wont by special Commission to be sent as occasion was offered into this or that County to take Assises the ground of which polity was the ease of the Subjects For whereas these actions passe alway by Jury so many men might not without great hinderance be brought to London and therefore Justices for this purpose were by Commission particularly authorised and sent down to them And it may seem that the Justices of the Common Plees had no power to deal in this kind of businesse until the statute made anno 8 Richard 2. cap. 2. for by that they are enabled to take Assises and to deliver Gaols And the Justices of the kings Bench have by that Statute such power affirmed unto them as they had one hundred years before that Time hath taught by experience that the better sort of Lawyers being fittest both to judge and to plead may hardly be spared in term time to ride into the Countrey about such businesse and therefore of later years it is come to passe that these commissions ad capiendas Assisas are driven to these two times in the year out of term when the Justices and other may be at leasure for these Controversies also wherupon it is also fallen out that the matters wont to be heard by more general Commission of Justices in Eyr are heard all at one time with these Assises which was not so of old as appeareth by Bracton l. 3. c. 7. 2. nu Habet etiam Justiciarios itinerantes de Comitatu in Comitatum quandoque adomnia placita quandoque ad quaedam specialia sicut Assisas c. et ad Gaolas deliberandas quandoque ad unicam vel duas non plures And by this means the Justices of both Benches being justly to be accounted the fittest of all others others their Assistants as also the Sergeant at law may be imployed in these affaires who as gravest in years so are they ripest in judgement and therefore likest to be void of partiality for being called to this dignity they give over practice anno 8 R. 2. cap. 3. but this alway to be remembred that neither Justice of either Bench nor any other may be Justice of Assise in his own Countrey anno 8 R. 2. cap. 2. anno 33 H. 8. cap. 24. Lastly note that in these dayes though the self same men disparch businesse of so divers natures and all at one time which were wont to be performed by divers and at severall times yet they doe it by several commissions Cromptons jurisdictions fol. 210. For those who be in one word called Justices of Circuit and twice every year passe by two and two through all England have one Commission to take Assises another to deliver Gaols another of Oyer and Terminer That Justices of Assise and Justices in Eyre did antiently differ it appeareth anno 27 Ed. 3. cap. 5. and that Justices of Assise and Justices of Gaol delivery were divers it is evident by anno 4 Ed. 3. cap. 3. The oath taken by Justices of Assise is all one with the oath taken by the Justices of the Kings Bench. Old abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of Oyer and Terminer Justiciarii ad audiâ—ndum Terminandum were Justices deputed upon some especial or extraordinary occasion to hear and deter mine some or more causes Fitzherbert in his natura brevium saith that the Commission a'Oyer and Terminer is directed to certain persons upon any great assembly insurrections hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely weighed is provided by the Statute anno 2 Ed. 3. cap. 2. that no such commission ought to be granted but that they shall be dispatched before the Justices of the one Bench or other or Justices errants except for horrible trespasses and that by the special favour of the King The form of this commission see in Fitzh natur brev fol. 110. Justices in Eyre Justiciarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis itineribus proverbially spoken the use of these in antient time was to send them with Commission into divers Counties to hear such causes especially as were termed the Plees of the Crown and therefore I must imagine they were so sent abroad for the ease of the Subjects who must else have been
Goods of that people of whom they have received wrong and cannot get ordinary Justice when they can catch them within their own territories or precincts Law Merchant is a Privilege or special law differing from the Common law of England and proper to Merchants and summary in proceeding anno 27 Edw. 3. stat 8 9 19 et 20. anno 13 Edward 1. stat tertio Lawing of dogs expeditatio canum See Expeditate Mastifs must be lawed every three year Crompton jurisdict fol. 163. LE Leasi lessa commeth of the French laysser i. linquere relinquere smittere permittere It signifieth in our Common law a demise or letting of lands or tenements or right of Common or of a Rent or any hereditament unto another for term of years or of life for a rent reserved And a lease is either written called a lease by Indenture or made by word of mouth called a lease paroll See the new terms of the law The party that letteth this lease is called the Leassour and the party to whom it is let the Lessee And a lease hath in it six ponts viz. words importing a demise a leassee named a commencement from a day certain a term of years a determination a reservation of a rent Cook vol. 6. Knights Case fol. 55. a. Leet leta is otherwise called a law day Smith de Repub. Anglor lib. 2. cap. 18. the word seemeth to have grown from the Saxon Lethe which as appeareth by the laws of King Edward set out by M Lambard num 34. was a Court of Jurisdiction above the Wapentake or Hundred comprehending three or four of them otherwise called Thryhing and contained the third part of a Province or Shire These Jurisdictions one and other be now abolished and swallowed up in the County Court except they be held by prescription Kitchin fol. 6. or Charter in the nature of a Franchise as I have said in Hundred The liberty of Hundreds is rare but many Lords together with their Courts Baron have likewise Leets adjoined and thereby doe enquire of such transgressions as are subject to the enquiry and correction of this Court whereof you may read your fill in Kitchin from the beginning of this book to the fift Chapter Bâ—itton cap. 28. But this Court in whose Manor soever it be kept is accounted the kings Court because the authority thereof is originally belonging to the Crown and thence derived to inferiour persons Kitchin fol. 6. Justice Dyer saith that this Leete was first-derived from the Sheriffs Turn fol. 64. And it enquireth of all offences under high treason committed against the Crown and Dignity of the king though it cannot punish many but must certifie them to the Justices of Assise per Statut. anno 1. Ed 3. cap. ult Kitchin fol. 8. but what things be onely inquirable and what punishable see Kitchin in the charge of a Court Leet fol. 8 9 10 11 12 13 14 15 16 17 18 19 20. See also the Statute anno 8. Ed. 2. The Jurisdiction of Bayliffs in the Dutchy of Normandie within the compasse of their Provinces seemeth to be the same or very near the same with the power of our Leet cap. 4. of the grand Custumary Legacie legatum is a particular thing given by last will and testament For if a man dispose or transferre his whole right or estate upon another that is called Haereditas by the Civilians and he to whom it is so transferred is termed haeres Howbeit our common Lawyers call him Heir to whom all a mans lands and hereditaments doe descend by right of bloud See Heir See Hereditaments Leproso amovendo is a writ that lyeth for a Parish to remove a Leper or Lazar that thrusteth himself into the companie of his neighbours either in Church or other publike meeting and commeth with them to their annoyance or disturbance Regist orig fol. 267. Fitz nat Brev. fo 234. Lestage aliâs lastage lastagium proceedeth from the Saxon word last i. onus and is a Custom challenged in Fairs and Markets for carrying of things Rastals Exposition of words or a Custom challenged in cheapings or Fairs Saxon in the description of England cap. 11. Lastage anno 21. R. 2. cap. 18. seemeth to be the ballance of a ship Fleta termeth it Lesting saying quòd significat acquietantiam Le stagii lib. 1. cap. 47. § Lesting Letters of Exchange literae Cambitoriae vel literae Cambii Regist orig fol. 194. a. Letters patents literae patentes bee Writings sealed with the broad Seal of England whereby a man is authorized to doe or enjoy any thing that otherwise of himself he could not anno 19. H. 7. cap. 7. And they be so termed of their form because they be open with the Seal hanging ready to be shewed for the confirmation of the authority given by them If any will say that Letters patents may be granted by Common persons I will not greatly contend For I find that to be true in Fitz. nat br fol. 35. E. Howbeit they bee called rather patents in our Common speech then Letters patents Letters patents to make Denizens anno 32. Hen. 6. cap. 16. yet for difference sake the kings letters patents be called letters patents royal Anno 2 Hen. 6. cap. 10. There is likewise a writ patent Fitzh nat br fol. 1. seqq Levari facias is a writ directed to the Sheriff for the levying of a Sum of money upon lands and tenements of him that hath forfeited a Recognizance c. Regist origin fol. 298. b. 300. b. Levari facias damna de disseisitoribus is a writ directed to the Sheriff for the levying of damages wherein the disseisour hath formerly been condemned to the disseisee Regist fol. 214. b. Levari facias residuum debiti is a writ directed to the Sheriff for the levying of a Remanant of a debt upon lands and tenements or chattels of the debtor that hath in part sasatisfied before Regist. orig fol. 299. Levari facias quando vicecomes returnavir quòd non habuit emptores is a writ commanding the Sheriff to sell the goods of the debtor which he hath already taken and returned that he could not sell them and as much more of the debtors goods as will satisfie the whole debt Register orig fol. 300. a. Letter of Atturney litera Atturnatus is a writing authorizing an Atturney that is a man appointed to doe a lawfull act in our steeds West part prim symbol lib. 2. sect 559. It is called in the civil law mandatum or procuratorum There seemeth to be some difference between a letter of Atturney and a warrant of Atturney For whereas a letter of Atturney is sufficient if it be sealed and delivebefore sufficient witnesse a warrant of Atturney must bee acknowledged and certified before such persons as fines be acknowledged in the Countrey or at the least before some Justice or Sergeant West parte 2. symbol tit Recoveries sect 1. F. See the Statute anno 7 R. 2. cap. 13. Letters of
see the usual form hereof particularly set down whereunto joyn the new Exposition of Law terms Lieutenant see Lieftenant Lieutenant of the Tower seemeth to have been an Officer under the Constable an H. 4. cap. 15. LO Locus partitus signifieth a division made between two Towns or Countries to make trial in whether the Land or place in question lieth Fleta lib. 4. cap. 15. nu 1. Locall localis signifieth in our Common law as much as tyed or annexed to a place certain Example the thing is local and annexed to the freehold Kitchin folio 180. And again in the same place An action of trespass for battery c. is transitory not local that is not needfull that the place of the battery should be set down as material in the Declaration or if it be set down that the Defendant should traverse the place set down by saying he did not commit the battery in the place mentioned in the Declaration and so avoid the Action And again fol. 230. the place is not local that is not material to be set down in certainty And the gard of the person and of the lands differeth in this because the person being transitory the Lord may have his Ravishment de Gard before he be seised of him but not of the Land because it is local Perkins Grants 30. Lobbe is great kind of North sea fish an 31 Ed. 3. stat 3. ca. 2. Lodemanage is the hire of a Pslot for conducting of a ship from one place to another Loich fish as Lob Ling Cod an 31 Ed. 3. stat 3. cap. 2. Lodeworks is one of the works belonging to the stanneries in Cornwall for the which read M. Cambdens Britan. in his title of Cornwall pag. 119. See Stremework Lollards Lollardi were in account and reputation of those times Heretiques that abounded here in England in the daies of Edward the third and Henry the fifth an 2 H. 5. cap. 7. whereof Weekliefe was the chief as Stow saith in his Annals pa. 425. who by this report went bare footed and basely cloathed to wit in base russet garments down to the Heels they preached and especially against Monks and other religious men Of these read more in him and others that writ of those times The name Lindwood derià Lolio quia sicut lolium inficit segetes sic Lollardi multociens inficinnt fideles simplices inter quos conversantur in ca. finali de Haereticis verbo Lollardiae But Tritemius in his Chronicle deduceth the name from one Gualter Lolhard a German as the first Author of that Sect living about the year of our Redemption 1315. Lord Dominus by Master Cambdens opinion is a contract of Lafford which is the Danish word for dominus It is a word of honor with us and is used diversly Sometime being attributed to a man that is noble by birth or creation which sort are otherwise called Lords of the Parliament Sometime to those that be so called by the courtesie of England as all the Sons of a Duke or the eldest son of an Earl Sometime to men honorable by office as Lord Chief Justice c. And sometime to a mean man that hath fee and so consequently the homage of Tenents within his Manour for by his Tenents he is called Lord and by none other and in some places for distinction sake he is called Land-lord It is used nevertheless by the Writers of the Common law most usually in this signification and so is it divided into Lord above and Lord measn Lord Measn is he that is owner of a Mannour and by vertue thereof hath Tenants holding of him in fee and by copy of Court-roll and yet holdeth himself over a Superiour Lord who is called Lord above or Lord paramount Old nat br fol. 79. Although I think none simply to be accounted Lord paramount but the Prince because all other hold mediately or immediately of him and he of none In this signification I like wise read Very Lord and very Tenent eodem fo 42. and Brook titulo Heriot n. 1. where I think very Lord is he which is immediate Lord to his Tenent and him to be Very Tenent to that Lord of whom he immediately holdeth So that if there be Lord above Lord measn and Tenant the Lord above is not very Lord to the Tenent nor the tenent very tenent to the Lord above Lord in grosse Fitzh nat brev fol. 3. is he that is Lord having no manour as the King in respect of his Crown idem fol. 5. f. See him also fo 8. a b. where I find a Case wherin a private man is Lord in gross viz. a man make a gift in tayl of all the land he hath to hold of him and dieth his heir hath but a Seignory in gross Lorimersy an 1 Richard 2. cap. 12 is one of the Companies of London that maketh Bits or Briddles of Horses and such like the name seemeth to be taken from the Latin Lorum and is elsewhere written Lorinors Lotherwit aliâs Leyerwit is a liberty or privilege to take amends of him that defileth your Bond-woman without licence Rastals expositinn of words It is an amends for lying with a Bond-woman Saxon in his description of England cap. 11. Some think it should be rather written Legerwit for Leger is the Saxon word for a Bed or Logherwit of the old word Logher being of the same signification See Bloodwit and Lyerwit LU Lusernes see Furre Lushoborow is a base coyn used in the daies of King Edward the third coyned beyond Seas to the likeness of English mony and brought in to deceive the King and his subjects To avoid the which it was made Treason for any man wittingly to bring in any such anno 25 Edward the third stat 4. cap. secundo MA MAcegriefs aliâs Macegrefs be such as willingly buy and sell stollen flesh Briton cap. 29. fol. 71. b. Cromptons Justice of Peace fol. 193. a. Magna assisa eligenda is a Writ directed to the Sheriff to summon four lawfull Knights before the Justices of Assise there upon their Oaths to chuse twelve Knights of the vicenage c. to pass upon the great Assise between A. Plaintiff and B. Defendant c. Regist orignal fol. 8. a. Magna Charta called in English the great Charter is a Charter containing a number of Laws ordained the ninth year of Henry the third and confirmed by Edward the first The reason why it was tearmed Magna Charta was either for that it contained the sum of all the written laws of England or else that there was another Charter called the Charter of the Forest established with it which in quantity was the lesser of the two I read in Holinshed that K. John to appease his Barons yielded to Laws or Articles of Government much like to this great Charter but we now have no ancienter written law than this which was thought to be so beneficial to the Subject and a Law of so great equity in comparison of
in Chancery to the L. Chancellor or L. Keeper of the Broad Seal in matters of Judgment Of these there be some ordinary and some extraordinary of ordinary there be twelve in number whereof some sit in Court every day throughout each Term and have committed unto them at the Lord Chancellors discretion the interlocutory report and sometimes the final determination of causes there depending Master of the Kings Musters is a Martial Officer in all royal armies most necessary as well for the maintaining of the Forces compleat well armed and trained as also for prevention of such frands as otherwise may exceedingly waste the Princes Treasure and extremely weaken the Forces He hath the oversight of all the Captains and Bands and ought to have at the beginning delivered unto him by the Lord General perfect Lists and Rolls of all the forces both horse and foot Officers c. with the rates of their allowances signed by the Lord General for his direction and discharge in signifying warrants for their full pay This Officer is mentioned in the Statute anno 2 Edw. 6. cap. 2. and Muster master general anno 35 Eliz. cap. 4. who so desireth to read more of him let him have recourse to Master Digs his Stratioticos Master of the Wardrobe magister garderobae is a great and principal Officer in Court having his habitation and dwelling house belonging to that Office called the Wardrobe near Puddle wharfe in London He hath the charge and custody of all former Kings and Queens ancient robes remaining in the Tower of London and all Hangings of Arras Tapestrie or the like for his Majesties houses with the bedding remaining in standing Wardrobes as Hampton Court Richmond c. He hath also the charging and delivering out of all either Velvet or Scarlet allowed for Liveries to any of his Majesties Servants of the Privy Chamber or others Mention is made of this Officer anno 39 Elizab. cap. 7. Matterin deed and matter of record are said to differ Old nat brev fol. 19. where matter in deed seemeth to be nothing elle but a truth to be proved though not by any Record and matter of Record is that which may be proved by some Record For example if a man be sued to an exigent during the time he was in the Kings warrs this is matter in deed and not matter of record And therefore saith the book he that will allege this for himself must come before the Scire facias for execution be awarded against him For after that nothing will serve but matter of Record that is some errour in the processe appearing upon the Record Kitchin fol. 216. maketh also a difference between matter of Record and a specialty and nude matter where he saith that nude matter is not of so high nature as either a matter of Record or a specialty otherwise there called matter in deed which maketh mee to think that nude matter is a naked allegation of a thing done to be proved only by witnesses and not either by Record or other specialtie in writing under Seal Maugre is shuffled up of two French words Mal and Gre i. animo iniquo it signifieth with us as much as in despight or in desof ones teeth as the wife maugre the husband Litleton fol. 124. that is whether the husband will or not ME Meane Medius signifieth the middle between two extreams and that either in time or dignity Example of the first his action was mean betwixt the disseisin made to him his recovery that is in the interim Of the second there is Lord Meane and Tenent See Mesn Mease Mesuagium seemeth to come of the French Maison or rather Meix which word I find in Cassanaeus de consuet Burgund pag. 1195. and interpreted by him Mansus what Mansus is see Mansion it signifieth house Kitch fol. 239. and Fitz. nat br fo 2. C. See Mesuage Medlefe Cromptons Justice of peace fol. 193. is that which Bracton calleth medletum li. 3. tract 2. cap. 35. It seemeth to signifie quarrels scuffling or brawling and to be derived from the French mesler i. miscere turbare Meere Merus though an Adjective yet is it used for a Substantive signifying meere right Old nat br fol. 2. in these words And know yee that this Writ hath but two issues that is to say joyning the mise upon the meere And that is to put himself in the great assise of our Sovereign Lord the King or to joyn battel See Mise Mesurement See Admesurement Medietas linguae signineth an enquest empaneled upon any cause whereof the one half consisteth of Denizens the other of Stranggers It is called in English the half tongue and is used in Plees wherein the one party is a Stranger the other a Denizen See the Stat. an 28. Ed. 3. cap. 13. an 27. ejusdem stat 2. c. 8. commonly called the Statute of the Staple et an 8. H. 6. cap. 29. et anno 2 H. 5. cap. 3. anno 11 H. 7.21 anno 1. 2. Phil. et Mar. cap. 8. And before the first of these Statutes was made this was wont to be obtained of the King by grant made to any company of Strangers as Lombards Almaines c. Stawnford pl. cor lib. 3. cap. 7. Medio acquietando is a writ judicial to destrain a Lord for the acquitting of a mean Lord from a rent which he formerly acknowledgeth in Court not to belong unto him Register judicial fol. 29. b. Melius inquirendo is a writ that lieth for a second inquiry as what lands and tenements a man died seised of where partiall dealing is suspected upon the writ Diem clausit extremum Fitz. nat br fol. 255. Merchenlage was one of the 3. sorts of laws out of which the Conq. framed Laws unto us mingled with those of Normandie Camd. Brit. p. 94. who also p. 103. sheweth that in the yeer of our Lord 1016. this land was divided into three parts whereof the West Saxons had one governing it by the Laws called West Saxon Laws and that conteined these nine Shires Kent Southsex Southrey Barkeshire Hampshire Wiltshire Somerset Dorset and Devonshire The second by the Danes which was governed by the Laws called Denelage and that conteined these fifteen Shires York Darby Nottingham Liecester Lincolne Northampton Bedford Buckingham Hartford Essex Middlesex Northf Southf Cambridge Huntington The Third was ponessed and governed by the Mercians whose Law was called Merchenlage which were these eight Glocester Worcester Hereford Warwick Oxenford Chester Salop and Stafford See Law Mercy Miserecordia signifieth the arbitrement or descretion of the King or Lord in punishing any offence not directly censured by the law As to be in the grievous mercie of the King anno 11 H. 6. cap. 6. is to be in hazard of a great penalty See Misericordia Measondue domus Dei cometh of the French maison de dieu by which names divers Hospitals are named You find the word anno 2 3. Philip et Mar. cap. 23. in fine
Mese See Mease Measn med us seemeth to come from the French maisnè i. minor natu it signifieth in our Common law him that is Lord of a manour and thereby hath Tenents holding of him yet holding himself of a Superiour Lord. And therefore it seemeth not absurdly to be drawn from the French mainsnè because the Lordship is created after the higher whereof he holdeth Mesn also signifieth a writ which lyeth where there is Lord mesn and Tenent the Tenent holding of the mesn by the same services whereby the mesn holdeth of the Lord and the Tenent of the mesn is distrained by the superiour Lord for that his service or rent which is due to the Mesn Fitzherbert nat brev fol. 135. See Mesnaltie Mesnaltie medietas cometh of Mesn and signifieth nothing but the right of the Mesntas the Mesnaltie is extinct Old nat br fol. 44. if the Mesnaltie descend of the Tenent Kitchin fol. 147. For farther understanding whereof take these words out of the Custumary of Norm Medietate tenentur feuda quando aliqua persona intervenerit inter Donimum tenentes Et hoc modo tenent omnes postnati mediante ante nato Messenger of the Exchequer is an officer there of which sort there be four in that Court that be Pursuivants attending the lord Treasurer to carry his Letters and Precepts See Pursuivant Mesuage mesuagium is a dwelling house West parte 2. symb titulo Fines Sect. 26. But by the name of a mesuage may passe also a Curtilage a Garden an Orchard a Dove-house a Shop a Mill as parcel of an house as he himself confirmeth out of Bracton lib. 5. cap. 28. Sect. prim and Plowden fol. 199. 170 171. and of himself he avoncheth the like of a Cottage a Tost a Chamber a Celler c. yet may they be demanded by their single names Mesuagium in Scotland signifieth the principal dwelling place or house within a Baronie which in our land is called a Manor house Skene de verb. signific verbo Mesuagium where he citeth Valentine Leigh that in his Book of Survey he affirmeth Mesuagium to be the tenement or land earable and the dwelling house or place or Court Hall thereof to be called Site in Latin called Situs MI Mile miliare is a quantity of a thousand paces otherwise described to contain eight Furlongs and every furlong to contain Forty lugs or poles and every lug or pole to contain 16. foot and a half anno 35 Eliz. cap. 6. Mildervix anno 1 Jacob. cap. 24. Mindbruch is hunting of honour and worship Saxon in his description of England ca. 71. Miniver See Furre Minoverie anno 7 R. 2. ca. 4. seemeth to be compounded of two French words main i. manus and ouvrer i. operari and to signifie some trespasse or offence committed by a mans handie-work in the Forest as an engine to catch Deer Briton useth the verb meinoverer for to occupie and manure land cap. 40. and cap. 62. main-ovre for handie-work It is not unlike that our English manure is abbreviated of the French Mint cometh of the German word meunk i. pecunia moneta and it signifieth with us the place where the Kings Coin is formed be it Gold or Silver which is at this present and long hath been the Tower of London though it appear by divers Stories and other Antiquities that in antient times the Mint hath been also at Caleis an 21 R. 2. cap. 16. an 9 H. 5. stat 5. cap. 5. The Officers belonging to the Mint have not been alwayes alike At this present they seem to be these The Warden who is the chief of the rest and is by his office to receive the Silver of the Goldsmiths and to pay them for it and to oversee all the rest belonging to this function His fee is an hundred pounds per annum The Master-worker who receiveth the Silver from the Warden causeth it to be melted and delivereth it to the moniers and taketh it from them again when it is made His allowance is not any set fee but according to the pound weight The third is the Controller who is to fee that the money be made to the just assise to over-see the officers and controll them if the money be not as it ought to be his fee is one hundred markes per annum Then is the Master of Assay who weigheth the Silver and seeth whether it be according to standard his yeerly fee is also an hundred markes Then is the Auditor to take the accompts and make them up Auditor-like Then is the Surveyor of the melting who is to see the Silver cast out and not to be altered after it is delivered to the Melter which is after the Assay master hath made trial of it Then is the Clerk of the Irons who seeth that the Irons be clean and fit to work with Then the Graver who graveth the stamps for the moneys Then the Smiters of Irons who after they be graven smiteth them upon the money Then the Melters that melt the Bullion before it come to the coyning Then the Blanchers who do aneal boyl and cleanse the money The Porter who keepeth the gate of the mint The Provost of the mint who is to provide for all the moniers and to over-see them Lastly the moniers who are some to sheer the money some to forge it some to beat it abroad some to round it some to stamp or coin it Their wages is not by the day or year but uncertain according to the weight of the money icoyned by them Other officers that have been n former time are said now to be out of use Misaventure or misadventure cometh neer the French mesadventure i. infortunium In out Common law it hath an especial signification for the killing of a man partly by negligence and partly by chance As if one thinking no harm dissolutely throweth a stone wherewith he killeth another or shooreth an arrow c. For in this case he committeth not felony but only loseth his goods and hath pardon of course for his life Stawnf pl. cor lib. 1. ca. 8. Britton ca. 7. distinguisheth between Aventure and misaventure Aventure he maketh to be meere chance as if a man being upon or neer the water be taken with some sodain sicknesse and so fall in and is drowned or into the fire and be burned to death Misaventure hee maketh where a man cometh to his death by some outward violence as the fall of a tree or of a gate the running of a cart-wheel the stroke of a horse or such like So that misaventure in Stawnfords opinion is construed somewhat more largely than Britton understandeth it West parte 2. symbol titulo Inditement sect 48. maketh homicide casual to be meerly casual or mixt Homicide by meer chance he defineth sect 49. to be when a man is slain by meer fortune a gainst the mind of the killer as if one hewing the Axe flieth oft the haft and killeth a man And this is all
portionis is a Writ that lyeth for a joint renent or renent in Common that is distreyned for more rent than the proportion of the Land commeth unto Reg. orig fol. 182. b. OP Open Law Lex manifesta Lex apparens is making of Law which by Magna Charta cap. 28. Bayliffs may not put men unto upon their own bare assertions except they have Witnesses to prove their imputation OR Orchel anno 1 R. 3. cap. 8. Orchall anno 24 H. 8. cap. 2. anno 3 4 Ed. 6. cap. 2. seemetst to be all one with Cork Ordinance of the Forest Ordinatio Forestae is a Statute made touching Forest causes in the 34 year of Edward 1. See Assise Ordinary Ordinarius though in the Civil law whence the word is taken it doth signifie any Judge that hath authority to take knowledge of Causes in his own right as he is a Magistrate and not by deputation yet in our Common law it is most commonly and for ought I remember alway taken for him that hath ordinary jurisdiction in causes Ecclesiastical See Brook hoc titulo Linwood in cap. exterior titulo de Constitutionibus verbo Ordinarii saith quòd Ordinarius habet locum principaliter in Episcopo et aliis superioribus qui soli sunt universales in suis ju isdictionibus sed sunt sub eo aliâ—ordinarii hii viz. quibus competit jurisdictio ordinaria de jure privilegio vgl consuetudine c. v. c. Ordinatione contra servientes is a Writ that lyeth against a Servant for leaving his Master against the Statute Register original fol. 189. Ordel Ordalium is a Saxon word signifying as much as Judgement in some mens opinions compounded of two Saxon words or a privative as a in Greek and dael 1. pars It signifieth as much as expers but it is artificially used for a kind of purgation practised in antient times whereby the party purged was judged expers criminis called in the Canon law purgatio vulgaris and utterly condemned There were of this two sorts one by fire another by water Of these see M. Lamberd in his explication of Saxon words verbo Ordalium where he expresseth it at large with such superstitions as were used in it Of this you may like wise read Holinshed in his description of Britain fol. 98. and also M. Manwood parte pri of his Forest laws pag. 15. But of all the rest Hotoman especially disput de feud p. 41. where of five kind of proofs which he calleth feudales probationes he maketh this the fourth calling it explorationem et hujus furiosae probationis 6. genera fuisse animadvertit per flammam per aquam perferrum candens per aquam vel gelidam vel ferventem per sortes et per corpus Domini of all which he allegeth several exemples out of History very worthy the reading See M. Skene also de verbor significatione verbo Machamium This seemeth to have been in use here with us in Henry the seconds dayes as appeareth by Glanvile lib. 14. c. 1 2. Read also of this in M. Verstegans Restitution of decayed intelligence cap. 3. pag. 63. seq Orfgild aliis Cheapegeld is a restitution made by the Hundred or County of any wrong done by one that was in plegio Lamberd Archaion page 125. 126. Org is anno 31. Ed. 3. stat 3. cap. 2. is the greatest sort of North sea-fish now a daies called Organ ling. Oredelf is a liberty whereby a man claimeth the Ore found in his soyl New exposition of Termes Ortelli is a word used in the book termed pupilla oculi in the chapter containing the Charter of the Forest parte 5. cap. 22. and signifyeth the clawes of a dogs foot being taken from the French orteils des pieds i. digiti pedum the Toes OS Osmonds anno 32. Henr. 8. cap. 14. OT Oth of the King Juramentum Regis is that which the King taketh at his Coronation which in Bract. is set down in these words Debet Rex in coronatione sua in nomine Jesu Christi praestito sacramento haec tria promittere populo sibi subdito Inprimis se esse praecepturum pro viribus opem impensurum ut ecclesiae dei et omni populo Christiano vera pax omnisuo tempore observetur Secundò ut rapacitates et omnes inquietates omnibus gradibus interdicat Tertiò ut in omnibus judciis aequitatem praecipat misericordiam ut indulgeat ei suam misericordiam clemens misericors Dens ut per justitiam suam firma gaudeant pace universi And in the old abridgment of Statutes set out in King Henry the eighths dayes I find it thus described This is the oath that the King shall swear at his Coronation That he shall keep and maintain the right and the liberties of the Holy Church of old time granted by the righteous Christian Kings of England and that hee shall keep all the Lands Honours and Dignities righteous and free of the Crown of England in all manner whole without any manner of minishment and the rights of Crown hurt decayed or lost to his power shall call again into the ancient estate and that he shall keep the peace of the Holy Church and of the Clergy and of the people with good accord and that he shall doe in all his judgements equity and right justice with discretion and mercy and that he shall grant to hold the Lawes and customes of the Realm and to his power keep them and affiem them which the folke and people have made and chosen and the evill Lawes and customes wholey to put out and stedfast and stable peace to the people of this Realm keep and cause to be kept to his power and that hee shall grant no Charter but where he may doe it by his oath All this I find in the foresaid Book titulo Sacramentum Regit and Charter of Pardon quinto Oth of the Kings Justices is That they well and truly shall serve the King and that they shall not assent to things that may turn to his dammage or disinheritance Nor that they shall take no fee nor livery of none but the King Nor that they shall take gift or reward of none that hath adoe before them except it be meat and drink of small value as long as the plce is hanging before them nor after for the cause Nor that they shall give counsell to none in matter that may touch the King upon pain to be at the Kings will body and goods And that they shall doe right to every person notwithstanding the Kings Letters c. Anno 18. Ed. 3. statut 4. which the old abridgement maketh to be anno 20. ejusdem statuâ—o perse Otho was a Deacon Cardinal of S. Nichens in carcere Tulliani and Legate for the Pope here in England anno 22 H. 3. whose constitutions we have at this day Stows An. p. 303. and see the first constitution of the said Legat Othobonus was a Deacon Cardinal
ego stipulor constituis te mihi scluturum debitum à Titio mihi debitum Tu respondes Satisfiet Haec impersonalitas non contrahit obligationem Persons ne Praebendaries ne seront charges as quinsimes c. is a writ that lieth for prebendaries or other spiritual persons being distreined by the shyreeve or collectors of fifteenths for the fifteenth of their goods or to be contributory to taxes Fitzh nat br fol. 176. Pestarable wares seem to be such ware as pester and take up much room in a shipp anno 32. H. 8. cap 14. Peter pence Denarii Sancti Petri otherwise called in the Saxon tongue Romefeoh i. the fee of Rome or due to Rome and also Romescot and Rome penning was a tribute given by â—n as King of the West Saxons being in pilgrimage at Rome in the year of our Lord 720. which was a penny for every house Lamberds explication of Saxon words verbo Numus whom see also fol. 128. in St. Edw. Laws nu 10. where it is thus written Omnes qui habent 30. denariatus vivae pecuniae in domo sua de suo proprio Anglorum lege dabit denarium Sancti Petri lege Danorum dimidiam markam Iste vero denarius debet summoniri in solemnitate Apostolorum Petri et Pauliâ—â— et colligi ad festivitatem quae dicitur ad vincula ita ut ultra illum diem non detineatur Si quispiam detinuerit ad Justiciam Regis clamor deferatur quoniam denarius hic Regis eleemozyna est Justicia vero faciat denarium reddere forisfacturam Episcopi et Regis Quòd si quis domos plures habueris de illa ubi residens fuerit in festo Apostolorum Petri et Pauli denarium reddat See also King Edgars lawes fol. 78. ca. 4. which containeth a sharp constitution touching this matter Stow. in his Annals pag. 67. saith that he that had 20. penniworth of goods of one manner cattel in his house of his own proper was to give a penny at Lammas yearly See Romescot Petit Cape See Cape Petit Larceny parvum latrocinium See Larceny Petit treason parva traditio in true French is petit trabizon i. proditio minor treason in a lesser or lower kind For whereas treason in the highest kind is an offence done against the security of the common wealth Westm parte 2. symb titulo Inditement sect 63. petit treason is of this nature though not so expresly as the other Examples of petit treason you shall find to be these if a servant kill his Master a wife her husband a secular or religious man his prelat anno 25. Edw. 3. cap. 2. Whereof see more in Stawn pl. cor lib. 1. cap. 2. See also Cromptons Justice of peace fol. 2. where he addeth divers other examples to those of Stawnford For the punishment of petit treason see the Statute an 22. H. 8. cap. 14. and Crompton ubisupra Petition petitio hath a general signification for all intreaties made by an inferiour to a superiour and especially to one having jurisdiction But most especially it is used for that remedie which the subject hath to help a wrong done or pretended to be done by the King For the King hath it by prerogrative that he may not be sued upon a writ Stawn praer cap. 15. whom also read cap. 22. And a petition in this case is either general or special It is called generall of the general conclusion set down in the same viz. que le Roy lui face droit et reison that the King doe him right and reason whereupon followeth a general indorsement upon the same soit droit fait aux partis let right be done to the parties Petition special is where the conclusion is speciall for this or that and the Indorsement to this is likewise special See the rest cap. 22. Petra lanae a stone of wool See Stone PH Philiser See Filazer PI Piccage piccagium is money paid in fairs for breaking of the ground to set up booths or standings Picle alià s pitle seemeth to come from the Italian piccolo vel picciolo i. parvus minutus and signifyeth with us a little small close or inclosure Pienour cometh of the French Pionnier i. fossor and signifieth such labourers as are taken up for the Kings host to cast trenches or undermine forts Anno 2. 3. Ed. 6. cap. 20. Piepowders court Curiae pedis pulverizati comes of two French words pied i pes and pouldreux i. pulverulentus It signifieth a court held in fairs for the redresse of all disorders committed within them which because it is summary de plano fine figura judicii it hath the name of dustie feet which we commonly get by sitting neer the ground of this see Cromptons Jurisd fol. 221. Read M. Skene de ver signif verbo Peduâ—ulversus which word he reporteth to signifie a vagabond especially a merchant which hath no place of dwelling where the dust may be wiped off his feet or shooes and therefore must have justice summarily ministred unto him viz. within three flowings and three ebbings of the sea Bract. calleth it Justitiam pepoudrous li. 5. tract 1. c. 6. nu 6. Of this court read the Statute anno 17 Edw. 4. ca. 2. Pille of Foddray in the Countie of Lancaster anno 2 H. 6. ca. 5. seemeth to be a creek and called pille by the idiom of the Countrey for pile for the which see Pile Pillorie Collistrigium Pillorium cometh of the French Pilori which may seem to smell of the greek and to proceed from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because one standing on the pillory putteth his head through a kind of a door i. janua 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 video it signifieth all one thing with it saving that the French is used for a tumbrell as well as for that which we call the pillorie there is a Statute made of the pillory anno 51 H. 3. wherein you may see who were then subject to this punishment This was among the Saxons called Healsfang of Heals a neck and Fang to take Lamb explication of Saxon words verbo Mulcta Pipe pipa seemeth to be a roll in the exchequer otherwise called the great roll anno 37 Ed. 3. cap. 4. See Clerk of the pipe It is also a measure of wine or oyle containing half a tun that is six score and six gallons anno 1 R. 3. cap. 13. Piscarie piscaria cometh of the French pescharie i. piscatio It signifieth in our common Law a libertie of fishing in an other mans waters Pittle See Picle PL Placard anno 2. 3. Ph. Mar. cap. 7. is a licence whereby a man is permitted to maintain unlawfull games Plaint Querela is a French word signifying as much as questus querimonia In our Common law it is used for the propounding of any action personal or real in writing So it is used in Brook titulo Plaint in Assise and the party making this plaint is called Plaintiff Kitchin fol. 231. Plea
Mines fol. 322. a. to be received in a sute before issue joyned upon an ayde prier Idem casu Dutchy of Lancaster fol 221. b. to be never in nonage codem f. 218. b. that a man indicted may not wage battel with him Idem casu nimes fol. 335. b. that no man upon any right may enter upon him being in possession but must be put to sute Dyer f. 139. nu 33 to seise the lands of his tenents that alienate without license Plowd casu Mines fol. 322. a. that no subject may wage his law against him Broke chose in action 9 Coke lib. 4. fol. 93. to present in the right of the youngest coparcener being his ward before the elder Plowd casu Mines fol. 332. b. fol. 333. a. that a benefice by institution is not full against him Coke Digbies c. f. 79. a. not to find pledges for the persecuting of any action For he cannot be amerced Fitzh na br f. 31. F. fo 47. C. To sue in what Court he will Fitz. na b. f. 7. B. 32. E. To sue the writ Ne adm ttas after 6 months Reg. or f. 31. a. That a mans villain having remained in his ancient demesn by the space of a year may not be recovered by the writ de nativo habendo Fitzh nat br fol. 79. A. To grant an office with the habendam post mortem alterius Dyer fol. 295. nu 1. to shorten the ordinary time of summons being 15 daies in writ of right Brit. ca. 121. To give what honour or place he listeth to his subjects anno 31 H. 8. cap. 10. To be owner of a forest See Forest To have free warren See Warren Not to be owted of his freehold Cromptons justice of peace fol. 59. b. et 16. a. To araign a man being both a Traitor and a Felon rather upon the Treason than upon the Felony because he may have the whole Escheats idem eodem fol. 99. a. To warrant the day of appearance to his subject being in his service and summoned to appear at a day certain Fitzh nat br fol. 17. a. Divers of these and many others did belong fisco imperatorum which you may find in the Digest de jure fisci et Co. lib. 10. tit 1. Besides these also many moe may be observed to belong unto our King out of the laws which I leave to their collection which are of longer reading and more painfull industry Prerogative of the Archbishop of Canterbury or York prerogativa Archiepiscopi Cantuariensis seu Eboracensis is an especial preeminence that these Sees have in certain cases above ordinary Bishops within their Provinces And that of the Archbishop of Canterbury principally consisteth of these points First in the confirmation of all elections made of Bishops by the Dean and Chapter of all Cathedral Churches as also the consecration of them Next in a power of visiting his whole Province of assembling Synods of supplying the defects and negligences of inferiour Bishops of receiving appeals from their Courts of assigning coadjutors to those Bishops that grow weak and insufficient to discharge their function of appointing Vicars general to those that have either none or an insufficient man employed in that office and of dispensing in all Ecclesiastical cases wherein the laws bear dispensation of taking oath of every Bishop at his confirmation to perform canonical obedience unto the See of Canterbury But these seem to belong unto him by an ordinary Archiepiscopal authority Certain other things there be that appertain unto him more than ordinarily to other Archbishops as the original calling of any person in any cause belonging to spiritual jurisdiction out of any part of his Province though not appealed But this point is now limited by the Statute made anno 23 H. 8. cap. 9. The receiving of an appeal from the lowest Judge Ecclesiastical within his Province immediately The appointing of a Keeper or Guardian of the spiritualties during the vacancy of any Bishoprick By which means all Episcopal rites of the Diocess for that time do belong unto him as Visitation Institution to benefices and such like The visitation of every Dioces within his province when and in what order it pleaseth him As also of all other privileged Churches The probat of Testaments and granting of Administrations in case where the party deceased hath goods of any considerable value out of the Diocess wherein he dyeth And that value is ordinarily five pounds except it be otherwise by composition between the said Archbishop and some other Bishop as in the Diocess of London it is ten pounds The probat of every Bishops Testament or the administration of his goods dying intestate though not having any goods chattels or debts without the compass of his own jurisdiction The bestowing of any one dignity or Prebend in any Cathedral church upon the creation of a new Bishop that himself thinketh good to make choice of There may be more particulars of this prerogative that I know not but these may be sufficient to express the thing that I desire to declare Who so desireth to read these more more at large and other privileges of this Church in temporal matters may resort to the book intituled De antiquitate Britannicae Ecclesia nominatim de privilegiis Ecclesiae Cantuariensis historia and especially to the eighth chapter of the said book pa. 25. Prerogative Court curia Praerogativa Archiepiscopi Cantuariensis is the Court wherein all Wills be proved and all Administrations taken that belong to the Archbishop by his prerogative which see in Prerogative And if any contention do grow between two or more touching any such Will or Administration the cause is properly debated and determined in this Court The Judge of this court is called Judex Curia praerogativâ— Cantuariensis The Archbishop of York hath also the like power and court which is termed his Exchequer but far inferiour to this in countenance and profit Prescription praescriptio is a course or use of any thing for a time beyond the memory of man as the exposition of the Law terms doth define it Kitchin fol. 104. saith thus Prescription is when for continuance of time whereof there groweth no memory a particular person hath particular right against another particular person And custom is where by continuance of time beyond memomory divers persons have gotten a right with whom agreeth Sir Edward Coke lib. 4. fol. 32. a. And usage is by continuance of time the efficient cause of them both and the life of both prescription and custome Thus saith Kitchin But as in the Civil law so I think likewise in the common Prescription may be in a shorter time As for example where the Statute anno 1 H. 8. cap. 9. saith that all actions popular must be sued within three years after the offence committed and the Statute anno 7 ejusdem cap. 3. That four years being past after the offence committed in one case and one year in another no sute can be commenced
open concurse of Merchants and protest that I am deceived by him And thereupon if he hath any goods remaining in any mans hands within the Realm the Law of Merchants is that I be paid out of them Prouver Probator See Approuver anno 5 H. 4. cap. 2. See Approvours Province Provincia was used among the Romans for a Country without the compasse of Italy gained to their subjection by the sword whereupon the part of France next the Alpes was so called of them when it was in their dominion and of that carrieth the same name at this present But with us a Province is most usually taken for the circuit of an Archbishops Iurisdiction as the Province of Canterbury and the Province of York anno 32 H. 8. ca. 23. anno 33 ejusdem cap. 31. yet it is used divers times in our statutes for several parts of the Realm Provincial provincialis is a chief goververnor of an order of Friers anno quar Hen. quar cap. 17. Protoforestaâ—ius was he whom the antient Kings of this Realm made chief of Wind for Forest to hear all causes of death or mayhem or of slaughter or of the Kings Deer within the Forest Camden Brit. pag. 213. See Justice of the Forest Prove See Profe Provision proviso is used with us as it is used in the Canon law for the providing of a Bishop or any other person of an Ecclesiastical living by the Pope before the Incumbent be dead It is also called gratia expectativa or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenns de sacris ecclesiae ministeriis beneficiis l. 3. cap. 2. but also for England particularly in divers statutes of the Realm viz. anno 35 Ed. 3. cap. 22. stat 4. statu 5. commonly called the statute de provisionibus anno 27 ejusdem cap. 1. anno 38 ejusdem stat 2. cap. pri 2 3 4. anno 38 ejusdem anno 2 Rich. 2. cap. 7. anno 3 ejusdem cap. 3. anno 7 ejusdem cap. 12. anno 12 ejusdem cap 15. anno 13 ejusdem stat 2. cap. 2 3. anno 16 ejusdem cap. 5. anno 2 Henr. 4. cap. 3 et 4. et anno 5 ejusdem cap. prim et anno 7 ejusdem cap. 6 et 8. et anno 9 ejusdem cap. 8. anno 3 Henr. 5. cap. quar See Praemunire Provisour Provisor is he that sueth to the court of Rome for a provision Old nat br fol. 143. See Provision Proviso is a condition inserted into any deed upon the observance whereof the validity of the deed consisteth which form of condition seemeth to be borrowed from France for Pourvieu Gallicum semper conditionem inducit Tiraquel tome 3. pag. 316. Our common Lawyers say that it sometime signifieth but a covenant whereof you have a large dispute in the second Book of Sir Edward Cooks Reports in the Lord Cromwels case It hath also another signification in matters Iudicial as if the Plaintiff or demandant desist in prosecuting an action by bringing it to a tryal the defendant or tenent may take out the venire factas to the Shyreeve which hath in it these words Proviso quòd c. to this end that if the Plaintiff take out any writ to that purpose the Sheriff shall summon but one Iury upon them both See Old natura brev in the writ Nisi prius fo 159. PU Purchas See Pourchas Purfles of a womans gown anno 33 H. 8 cap. 5. Purgation purgatio is a clearing of a mans self from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great use in England touching matter of Felony imputed to Clerks in former time as appeareth by Stawnf pl. cor li. 2. cap. 48. See Clergy It is still observed for matter pertaining to the Ecclesiastical court as suspicion or common fame of incontinency or such like Purgation is either Canonical canonica or vulgar vulgaris Canonical is that which as prescribed by the Canon law The form whereof is usually in the Spiritual court the man suspected taking his oath that he is clear of the fault objected and bringing so many of his honest Neighbours being not above twelve as the court shall assign him to swear upon their consciences and credulity that he sweareth truly or hath taken a true oath Vulgar purgation was by fire or water or by combat used by infidels and Christians also untill by the Canon law it was abolished tit 15. depurgatione Canon et vulga in Decretalibus Combat though it be lesse in use than it was yet it is and may be still practised by the Laws of the Realm in cases doubtfull if the defendant chuâ—e rather the combat than other tryal See Ordell See Combat Purlue is all that ground near any Forest which being made Forest by Henry the second Richard the first or King John were by perambulation granted by Henry the third severed again from the same Manwood parte 2. of his Forest laws cap. 20. And he calleth this ground either pouralce i. perambulationem or purliu purluy which he saith be but abusively taken for pourallee ubi supra num 3. But with the licence of that industrious and learned Gentleman I am bold to say that this word may be no less fitly made of two French words pur i. purus and lieu i. locus and my reason is because that such grounds as were by those Kings subjected to the Laws and Ordinances of the Forest are now cleared and freed from the same for as the Civilians call that purum locum qui sepulchrorum reliâ—ioni non est obstrictus sect 9. de reruus divisin institution so no doubt in imitation of that very point our auncestors called this purlieu i. purum locum because it was exempted from that servitude or thraldome that was formerly layd upon it So ager purus est qui neque sacer neque sanctus neque religiosus sed ab omnibus hujusmodi nominibus vacare videtur lib. 2. sect 4. Ï€. de religio et sumptibus funerum And therefore Master Crompton Purraile is not much amisse fol 153. of his Iurisdict because we may also derive it from the French words pur and allee that is as much as to say as a clear or a free walk or passage And where it is sometime called Pouralee that may and doth come from pur and alee i. itio profectio ambulatio because he that walketh or courseth within that compasse is clear enough from the laws or penalties incurred by them which hunt within the precincts of the Forest See the statute anno 33 Edw. prim stat 5. Pourlie man is he that hath ground within the purlieu and being able to dispend forty shillings by the year of Freehhold is upon these two points licensed to hant in his own purlieu Manwooâ— parte 1 of his Forest laws pag. 151 and 157.
lyeth for the tenent in tail tenent in dower or tenent for term of life having lost by default against him that recovered or against his heir Exposition of terms See Brook hoc tit See the Reg. origin fo 171. and the new book of Entries verbo Quod ei deforceat Quod permittat is a writ that lyeth for him that is disseised of his Commune of pasture against the heir of the disseisour being dead Terms of the Law Briton cap. 8. saith That this writ lyeth for him whose Auncestour died seised of commune of pasture or other like thing annexed to his inheritance against the Deforceour See Brook hoc titulo See the Register origin fo 155. and the new book of Entries verbo Quod permittat Quod Clerici non eligantur in officio ballivi c. id est a writ that lyeth for a Clark which by reason of some Land he hath is made or in doubt to be made either Bayliff Bedell or Reeve or some such like officer See Clerico infra sacres c. See the Register orig fol. 187. Fitzh nat br fo 175. Quod Clerici beneficiati de Cancellaria is a writ to exempt a Clark of the Chancery from contribution towards the proctors of the Clergy in Parliament Register origin fo 261. a Quòd persona nec Praebendarti c. is a writ that lyeth for spiritual persons that are distreined in their spiritual possessions for the payment of the fifteenth with the rest of the parish Fitz. nat br fol. 176. Quod non permittat See Consuetudixibus servitiis Quo jure is a writ that lyeth for him that hath land wherein another challengeth commune of pasture time out of mind And it is to compell him to shew by what title he challengeth this Commune of pasture Fitzherberts natura brevium fo 128. Of this see Briton more at large cap. 59. See the Regist orig fo 156. and the new book of Entries verbo Quo jure Quo minus is a writ that lyeth for him that hath a Grant of House-bote and Hey-bote in another mans woods against the Granter making such waste as the Grantee cannot enjoy his grant Old nat br fol. 148 Terms of law see Brook hoc titulo See Kitchin fol. 178. b. This writ also lyeth for the Kings Farmer in the Exchequer against him to whom he selleth any thing by way of bargain touching his farm Perkins Graunts 5. For he supposeth that by the breach of the vendee he is disabled to pay the King his Rent Quo warranto is a writ that lyeth against him which usurpeth any Fraunchis or liberty against the King as to have wayfe stray fair market court baron or such like without good title Old nat br fol. 149. or else against him that intrudeth himself as heir into Land Bracton lib. 4. tractat 1. cap. 2. numb 3. See Brook hoc titulo You may read of this also anno 18 Ed. prim Stat. 2 3. et anno 30 ejusdem And the new book of Entries Quo warranto R RA RAch vintage anno 32 H. 8. c. 14. is a second vintage or voyage for wines by our Merchants into France c. For rackt wines that is wines cleansed and so purged that it may be and is drawn from the lees From this voyage our Merchants commonly return about the end of December or beginning of Ianuary Radknights See Roadknights Ran is a Saxon word signifying so open a spoyling of a man that it cannot be denyed Lamb. Archan fol. 125. defineth it thus Ran dicitur aperta rapina qua negari non potest Ransome redemptio commeth of the French raacon or rencon i. redemptio It signifyeth properly with us the sum paid for the redeeming of a Captive and sometime a great sum of mony to be paid for the pardoning of some hainous crime Anno pri H. 4. cap. 7. Note that when one is to make a Fine and Ransome the Ransome shall be treble to the Fine Cromptons Justice of peace fol. 142. a. and Lamb. Eirenarch lib. 4. cap. 16. pa. 556. Horn in his mirrour of Justices maketh this difference between amerciament and ransome because ransome is the redemption of a corporal punishment due by law to any offence lib. 3. cap. de amerciament taxable Rape rapus vel rapa is a part of a County signifying as much as a Hundred As Southsex is divided into six parts which by a peculiar name are called rapes viz. the Rape of Chichester of Arundel of Brember of Lewis of Puensey of Hastings Cambden Britan. pag. 225. whom also see pag. 229. These parts are in other places called Tythings Lathes or Wapentakes Smith de repub Angl. li. 2. ca. 16. Rape raptus is a felony committed by a man in the violent deflowring of a woman be she old or young Briton ca. 1. whereof West parte 2. Symb. titulo Inditements sect 54 hath these words Copulation violent is termed a rape or ravishment of the body of a woman against her will which is carnal knowledge had of a woman who never consented thereunto before the fact nor after And this in Scotland ought to be complained of the same day or night that the crime is committed Skene de verborum significa verbo raptus His reason quia lapsu diei hoc crimen praescribitur This offence is with us Felony in the principal and his ayders anno 11 Hen. 4. cap. 13. anno pri Ed. 4. ca. 1. West 2. ca. 13. But Fleta saith That the complaint must be made within forty daies or else the woman may not be heard Lib. 3. cap. 5. sect praeterea And carnal knowledge of a woman under ten years old is felony Anno 8 Elizabeth ca. 6. Thus far Master West Of the diversity of Rapes see Cromptons Iustice of peace fol. 43. b. and 44. See Ravishment The Civil law useth raptus in the same signification And rapere virginem vel mulierem est ei vim inferre et vila re Co. li. de raptu virginis Raptuâ—haeredis is a writ lying for the taking away of an heir holding in socage and of this there be two sorts one when the heir is maried the other when he is not Of both these see the Register original fol. 163. b. Rastall was a Lawyer of reverend account that lived in Queen Maries daies and was a Iustice of the Common plees he gathered the statutes of the Land into an abridgement which carryeth his name at this day He is also the Author of the new book of Entries Ratification ratificatio is used for the confirmation of a Clerk in a Prebend c. formerly given him by the Bishop c. where the right of patronage is doubted to be in the King Of this see the Register original fol. 304. Rationabili parte bonorum is a writ that lyeth for the wife against the Executors of her Husband denying her the third part of her Husbands goods after debts and funeral charges defrayed Fitzh nat br fo 222.
hath supremam authorit◠em Ecclesinsticam as the Pope had in time past Plowden casu Grendon fo 498. Resort is a word used properly in a writ of tayl or cousenage as descent is in a writ of right Ingham Respectu computi Vicecomitis habendo is a writ for the respiting of a Shyreeves accompt upon just occasion directed to the Treasurer and Barons of the Exchequer Register fol. 139 179. Respite 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 respite may be occasioned upon divers good reasons but it hath the most frequent use in such as hold by Knights service in capite who because the Prince cannot be at leasure to take their homage do pay into the Exchequer at certain times in the year some small sum of mony to be respited untill the Prince may be at leasure to take it in person Responsions responsiones seems to be a word used properly and especially by the Knights of S. John of Jerusalem for certain accompts made unto them by such as occupied their lands or stocks 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 between atturnatum essoniatorem responsalem lib. 6. cap. 11. § Officium as if essoniator came only to allege the cause of the parties absence be he the Demandant or Tenent and responsalis came for the Tenent not only to excuse his absence but also to signifie what tryal he meant to undergo viz. the Combate or the Country lib. 6. cap. 11. § Si autem A man in antient time could not appoint an Attorny for him without warrant from the King Fleta codem cap. 13. in fine See Atturney This word is used in the Canon law Et significat procuratorem vel cum qui absentem excusat cap. Cum olim propter extra de rescript Restitution restitutio is a yeelding up again of any thing unlawfully taken from another It is used in the Common law most notoriously for the setting him in possession of Lands or Tenements that hath been unlawfully disseised of them which when it is to be done and when not see Cromptons Justice of peace fol. 144. b. c. usque 149. Restitutione extracti ab Ecclesia is a Writ to restore a man to the Church which he had recovered for his sanctuary being suspected of felony Register orig 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 Royal assent thereunto for the recovery of the Temporalities or Barony of the said Bishoprick with the appurtenances And it is directed from the King to the Escheator of the County the form whereof you have in the Regist. orig fol. 294. and in Fitzb. 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 party or such like See Brook titu Resummons fol. 214. See of these four sorts according to the four divers cases in the Table of the Register judicial fol. 1. See also the new Book of Entries verbo Reattachment Resummons Resumption resumptio is particularly used for the taking again into the Kings hands such Land or Tenements as before upon false suggestion or other error he had delivered to the heir or granted by Letters patents to any man Brook titule Repetance resumption fol. 298. Thus it is applyed anno 31 H. 6. cap. 7. See Reseiser Retainer commeth of the French retenir i. detinere retinere it signifieth in the Common law a servant not menial nor familiar that is not continually dwelling in the house of his Lord or Master but only using or bearing his name or livery This Livery was wont to consist of Hats otherwise Hoods Badges and other suits of one garment by the year an 1 R. 2. ca. 7. These were taken by the Lords many times upon purpose of maintenance and quarrels and therefore they have been justly for the better freedom of Law forbidden by many Statutes as namely by anno 1 R. 2. cap. 7. upon pain of imprisonment and grievous forfeiture to the King and again anno 16 ejusd cap. 4. anno 20 ejusdem cap. 1. 2. and anno prim H. 4 cap. 7. by the which the Lords offending herein should make ransome at the Kings will and any Knight or Esquire hereof duly attainted should lose his said Livery and forfeit his fee forever and any Yeoman wearing the Livery of the King or other Lord should be imprisoned and make ransome at the Kings will only some few excepted in the said Statute which statute is further confirmed and explaned anno 2 H. 4. cap. 21. et an 7 ejusd cap. 14. anno 13. ejusd cap. 3. et anno 8 H. 6. ca. 4. And yet this offence was so deeply rooted that Edward the fourth was driven to confirm the former statutes and further to extend the meaning of them as appeareth by the statute made anno 8 Ed. 4. cap. 2. adding an especial pain of five pounds to every man that giveth such Livery and as much to every one so retained either by writing oath or promise for every month Yet is not this fault so well looked unto but that there is need of more pregnant Laws for the redresse thereof or at the least better execution of those that be already made These be by the Feudists called assidati Sic enim dicuntur qui in alicujus fidem et tutelam recepti sunt Neapol constitu lib. 3. titulo 7. And as our retainers are here forbidden so are those affidats in other countries Retraxit is an exception against one that formerly commenced an action and withdrew it or was non-sute before tryal Brook titulo Departure in despight Retraxit fol. 216. See also the new book of Entries verbo departer verbo retraxit Return returna cometh of the French retour i. reditio reversio recursus and in our common Law hath two particular applications as namely the teturn of a Writ by Shyreeves and Bayliffs which is nothing but a certificate made to the Court whereunto the writ directeth him of that which he hath done touching the serving of the same Writ And this among the Civilians is called Certificatorium Of returns in this signification speak the Statutes of Westm. 2. cap. 39. anno 13 Ed. prim and Tractatus contra Vice-comites et Clericos with divers others collected by Rastal titulo Return of Shyreeves So is the return of an Office Stawnf praerog fol. 70. a certificate into
differences and agreements between a Riot Rout and unlawfull assembly See in M. Lamb. Eirenarcha lib. 2. cap. 5. c. See the Statute 1 M. 1. ca. 12. et Kitchin fol. 19. who giveth these examples of Riots the breach of inclosures or banks or conducts parks pownds houses barnes the burning or stacks of corn Mr. Lamberd ubi supra useth these examples to beat a man to enter upon a possession forcibly See Ront and unlawful assembly See also Cromptons Iustice of peace divers cases of Riots c. fol. 53. See Trihings Ripiers riparii be those that use 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 Rize oriza is a kind of corn growing in Spain Asia and India with the which both good foods and medicines be made whereof if you desire farther knowledge read Gerards Herbal lib. 1. cap. 52. This is mentioned among merchandize to be garbled in the Statute anno 1 Jaco cap. 19. RO Roag rogus seemeth to come of the French Rogu i. arrogans It signifieth with us an idle sturdy begger that wandring from place to place without pasport after he hath been by Justices bestowed upon some certain place of aboad 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 thorow the grissel of the right ear with an hot iron an inch in compass and for the second offence is called a Roag of the second degree and put to death as a felon if he be above 18 years old See the Statute anno 14 Eliz. cap. 5. 18 ejusdem cap. 3. anno 36. cap. 17. If you will know who be Rogues and to be punished as Rogues by law read Lamberts Eirenarcha lib. 4 cap. 4. See Rout. Robbery robaria commeth of the French Robbe i. vestis and in our Common law a felonious taking away of another mans goods from his person or presence against his will putting him in fear and of purpose to steal the same goods West parte 2. Jymbol titulo Inditements sect 60. This is sometime called violent theft Idem eodem which is felony for two pence Kitchin fol. 16. and 22. lib. Assis 39. Robaria is a word also used in other Nations as appeareth by the annotations upon Mathaeus de afflictis descis 82. num 6. pag. 122. See Skene verbo Reif libro de verbo significat See Cromp. Justice of peace f. 30. b. Roberdsmen an 5 Ed. 3. cap. 14. anno 7 R. 2. cap. 5. M. Lamb. interpreteth them to be mighty theeves Eirenarch li. 2. cap. 6. pag. 90. Rodknights aliâs Radknights are certain servitours which hold their land by serving their Lord on Horse-back Bracton li. 2. ca. 36. num 6. saith of them debet equitars cum Domino sus de manerio in manerium vel cum Domint uxore Flo a lib. 3. cap. 14. § Continetus Redde Pertica is otherwise called a Pearch and is a measure of sixteen foot and an half long and in Stafford-shire 20 foot to measure land with See Pearch Rose tyle alias Creast tyle is that tyle which is made to lay upon the rudge of the house anno 17 Ed. 4. cap. 4. Rogation week dies rogationum is a time well known to all being otherwise called Gang-week The reason why it is so termed is because of the especial devotion of Prayer and Fasting then enjoyned by the Church to all men for a preparative to the joyfull remembrance of Christs glorious Ascension and the Descension of the holy Ghost in the form of cloven Tongues shortly after And in that respect the solemnization of carnal Matrimony is forbidden from the first day of the said week untill Trinity sunday See Advent Rood of land roda terrae is a certain quantity of Land being the fourth part of an Acre Anno 5 Eliza. cap. 5. See Perch Roll alias Roule rotulum commeth of the French rouler i. volvere pervolvere rotare whence also is the French Role ou Roule i. volumen catalogus codex It signifieth with us a shedule of Paper or Parchment turned or wound up with the hand to the fashion of a pipe So is it used in Stawnfplees of the Crown fol. 11. The Chequer Roll of the Kings house out of the statute anno 3 H. 7. cap. 13. which signifieth nothing but the Catalogue wherin the names of the Kings Houshold servants are set down And anno 5 Rich. 2. cap. 14. stat prim there is mention made of the great Roll of the Exchequer which seemeth otherwise to be called the Pipe The Roules is also a place destinated by Edward 3. to the keeping of the rolls or records of the Chancery situate between the two Temples in London Cambden Britan pag. 321. the Master whereof is the second man in Chancery and in the absence of the Lord Chancellor or Keeper sitteth as Iudge being commonly called the Master of the Rolls See Master of the Rolls Romescot is compounded of Rome and Scot as you would say the tribute due to Rome it is called by Matthaeus Westmonasteriensis consuetudo Apostolica à qua neque Reâ— neque Archiepiscopus vel Episcopus Abbas vel Prier aut quilibet inregno immunis erat and was first granted by Offa a Saxon King Camden Britan. pag. 6. See Peter pence and Roger Hoveden parte poster suorum annalium fol. 34 i. a. in Hen. secundo Roundlet is a certain measure of Wine Oyl c. containing 18 gallons and an half anno 1 R. 3. cap. 13. Rout routá is a French word signifying a company or flock as une grande route de gents on de cerfs i. grex hominum longa servorum series It signifieth in our Common law an Assembly of three persons or more going on about forcibly to commit an unlawfull act but yet do it not Westm. parte 2. symb titule Indictments sect 65. O. M. Lamberd thus saith of it A Rout is the same which the Geâ—manes yet call Rot meaning a bond or great company of men gathered together and going about to execute or executing indeed any Ryot or unlawfull act and saith more it is said properly of the multitude that assembleth themselves in such disorderly sort for their common quarrels As if the Inhabitants of a Town-ship do assemble to pull down a hedge or pale to have their common where they ought to have none or to beat a man that hath done them some publike offence or displeasure But the Statute of 18 Ed. 3. stat prim cap. unico which giveth process of outlawry against such as bring routs into the presence of the Instices or in any affray of the people and the Statute of 2 Richard 2 cap. 6. that speaketh of riding in great routs to make entry into Lands and to beat others and to take their wives c. do seem to understand it more largely And it is a
travers Stawnf praerog fo 96. to tend an averment Brit. cap. 76. Tender seemeth to come of the French Tendre i. tener delicatus and being used adjectively signifieth in English speech as much as it doth in French But in our Common law it is used as a verb and betokeneth as much as carefully to offer or circumspectly to endeavour the performance of any thing belongingunto us to tender As rent is to offer it at the time and place where and when it ought to be paid To tender his law of non summons Kitchin fo 197. is to offer himself ready to make his Law whereby to prove that he was not summoned See law See make Tenementis legatis is a Writ that lyeth to London or other corporation where the custome is that men may demise tenements by their last will as well as their goods and chatels to whom they list for the hearing of any controversie touching this matter and for the rectifying of the wrong Reg. orig f. 244. b. Tenant alias tenent tenens commeth either of the Latine tenere or of the French tenir and signifieth in our Common law him that possesseth Lands or tenements by any kind of right be it in fee for life or for years This word is used with great diversity of Epithits in the Law sometime signifying or importing the efficient cause of possession as Tenent in Dower which is she that possesseth land c. by vertue of her Dower Kitchin fol. 160. Tenent per statute Merchant Idem fol. 172. that is he that holdeth land by vertue of a Statute forfeited unto him Tenent in frank mariage Kitchin fol. 158. viz. he that holdeth land or tenement by reason of a gift thereof made unto him upon mariage between him and his wife Tenent by the courtesie Idem fol. 159. i. he that holdeth for his life by reason of a child begotten by him of his wife being an Inheritrix and born alive Tenent per elegit Idem fol. 172. i. he that holdeth by vertue of the writ termed Elegit Tenent in Mortgage Idem fol. 38. is he that holdeth by vertue of a mortgage or upon condition that if the lessor pay so much mony at such a day that he may enter and if not that the seassee shall have a fee simple fee tayl or freehold Sometime these Epithites import the manner of admittance as Tenent by the Verge in antient demeâ—n Idem fol. 81. is he that is admitted by the Rod in a Court of antient demesn Sometime the evidence that he hath to shew for his estate as Tenent by copy of Court roll which is one admitted Tenant of any Lands c. within a Manor that time out of the memory of man by the use and custome of the said Manour have been demisable and demised to such as will take the same in fee fee tayl for life years or at will according to the custome of the said manor West parte prim symb li. 2 sect 646 whom read more at large Again Tenent by charter is he that holdeth by feoffment in writing or other deed Kitchin fol. 57. Sometime these Epithites signifie that duty which the Tenent is to perform by reason of his tenure As Tenent by Knight service Tenents in burgage Tenent in soccage Tenent in frank fee tenent in villenage Sometime they import the estate of the Tenent or his continuance in the Land as Tenent in fee simple Kitchin fol. 150. Tenent in fee tayl Idem fol. 153. Tenent at the will of the Lord according to the custome of the manner Idem fo 132 165. Tenent at will by the Common law Idem eodem Tenent upon sufferance Idem fol. 165. Tenent of state of Inheritance Stawnford praeroge fol. 6. Sometime they contain a relation toward the Lord of whom he holdeth as tenent in chief i. he that holdeth of the King in the right of his Crown Fitzher nat br fol. 5. F. Tenent of the King as of the person of the King Idem eodem or as of some honor eodem Very tenent i. he that holdeth immediately of his Lord Kitchin fol. 99. For if there be Lord Mesn and tenent the tenent is very tenent to the Mesn but not to the Lord above Tenent paravailes pl. cor 197. Fitzh nat br fo 136. D. is the lowest Tenent and farthest distant from the Lord Paramount It seemeth to be Tenent Per availe See Dyers Commentaries fol. 25. nu 156. No tenent in right to the Lord but Tenent for the avowry to be made Littleton fol. 96. Sometime they have a relation between Tenents and Tenents in several kinds as Joynt tenents i. they that have equal right in lands and tenements and all by vertue of one title Litleton lib. 3. cap. 3. Tenents in Common be they that have equal right but hold by divers titles as one or more by gift or descent and others by purchase Idem eodem cap. 4. Particular tenent Stawnf Praerog fol. 13 that is he which holdeth only for his term as tenent in dower tenent by the courtesie or otherwise for life West parte 2. Symbol titulo Fines Sect. 13. G. See anno 32 H. 8. cap. 31. and Coke in Sir William Pellams case lib. 1. fo 15. a. they be termors for years or life See Plowden casu Colthirst fol. 22. b. Sole tenent Kitchin 134. i. he that hath none other joyned with him If a man and his wife hold for both their lives and the man dyeth he dyeth not sole tenent Idem eodem Several tenent is opposite to joynt tenents or tenents in common See Several tenenoy Tenent al praecip is he against whom the writ Praecipe is to be brought Cokes Reports lib. 3. The case of Fines fo 88. a. Tenent in demesn anno 13 Ed. 1. cap. 9. anno 32 H. 8. ca. 37. is he that holdeth the demeans of a manor for a rent without fervice Tenent in service anno 20 Ed. 1. stat 1 is he that holdeth by service v. Britton cap. 79. in principio cap. 96 Car fealtic c. â—â—el quaere whether he may be termed tenent in Demein that holdeth some of the demeans howsoever and he tenent in service which is a Free-holder to a Manor holding by service for the Free-holds of a Manor are not accounted of the demesn but only that which the Lord keepeth in his own hand or letteth out by copy according to the custome of the Manor Tenent by execution anno 32 Henry 8. cap. 5. is he that holdeth Land by vertue of an execution upon any Statute Recogn zance c. Tendeheved decanus vedcaput decem familiarum of this see Rogen Hovedon parte poster suorum annalium fol. 346 a. See Frank pledge Tenement tenementum is diversly used in the Common law most properly it signieth a house or home Stall but in a larger sig nfication it is taken either for house or land that a man holdeth of another And joyned with the Adjective Frank in our Lawyers French it
contained generally lands or houses yea or offices wherein we have estate for term of life or in fee. And in this signification Kitchin so 41. maketh frank tenement and base estate opposite the one to the other In the same sort doth Britton use it through his whole 27 Chapter as also Bracton doth the Latin libernm tenementum li. pri ca. 5. 6. and many other places Tenentibus in assist non onerandis c. is is a writ that lyeth for him to whom a disseisor hath alienated the Land whereof he disseised another that he be not molested for the dammages awarded if the Disseisour have wherewith to satisfie them himself Reg. orig fol. 214. b. Tenths Decimae it that yearly portion or tribute which all Livings Ecclesiastical do yeeld to the King For though the Bishop of Rome do originally pretend right unto this revenue by example of the High Priest among the lews who had tenths from the Levites Numb cap. 8. Hieronimus in Ezechielem Yet I read in our Chronicles that these were of en granted to the King by the Pope upon divers occasions sometime for one year som time for more until by the Statute an 26 Hen. 8. ca. 3. they were annexed perpetually to the Crown See Disms It signifieth also a task levyed of the temporalty Holinshed H. 2. fol. 111. Tenore indictamenti mittendo is a writ wherehy the Record of an indictment and the processe thereupon is called out of another Court into the Chancery Regist orig fol. 169. a. Tenure Tenura commeth of the Norman Tendure as appeareth by the Grand Custumary cap. 28. where it is defined to this effect Tenure is the manner whereby Tenements are holden of their Lords What may make a Tenure and what not see Perkins Reservations 70. And in that Chapter shall you find the most of those Tenures recited that be now usually â—o England In Scotland I find that there be four manner of Tennres which they call holding of land the first is ura eleemoâ—yna which is proper to spiritual men paying nothing for it but devota animarnm suffragia the second they call Few or Few ferm which holdeth of the King Church Barons or others paying a certain duty called Feuda firma The chird is a hold in Blench as they term it by payment of a peny rose pair of guilt Spurs or some such like thing if it be asked in name of Blench id est nomine albae firmae The fourth is by service of ward and releeve where the Heir being minor is in regad or custody of his Lord together with his lands c. And land holden in this fourth maner is called there feudum de Hauberk or Haubert or seudum militare or feudum Hauberticum or fendum loricatum because it is given upon condition that the vassal possessor thereof shall come to the Host with a Jack or Haubert which is a coat of Mail. M. Skene de verb. signif verbo Haubert Tenure in grosse is the Tenure in Capite For the Crown is called a Seignory in grosse because it consisteth of a corporation of and by it self not tyed to any honor or manor See Cromptons Iurisdict f. 206. See the new book of Entries verbo Tenure Term Termiuus fignifieth with us commonly the bounds and limitation of time as a lease for term of life or term of years Bracton lib. 2. cap. 6. nu 4. But most notoriously it is used for that time wherein the Tribunals or places of Iudgement are open to all that list to complain of wrong or to seek their right by course of Law or action The rest of the year is called vacation Of these Terms there be 4 in every year during which matters of Iustice for the most part are dispatched And this Sir Thomas Smith lib. 3. de Rep. Ang. cap. 2. reckoneth as miraculous that in lesse time than the third part of the year three Tribunals all in one City should rectifie the wrongs of so large and populous a Nation as England is Of these Terms one is called Hilarie Term which beginneth the 23 of Ianuary or if that be Sunday the next day following and endeth the 21 of February Another is called Easter term which beginneth 18 dayes after Easter and endeth the Monday next after Ascension day The third is Trinity Term beginning the Friday next after Trinity Sunday and ending the Wednesday fort night after The fourth is Michaelmas Term beginning the 9th of October or if that be Sunday the next day after and ending the 18 of November Termor Tenens ex termino is he that holdeth for term of years or life Kitchin fol. 151. Littleton fol. 100. Tenra extendendae is a writ directed to the Escheator c willing him to inquire and find the true yearly value of any land c. by the oath of twelve men and to certifie the extent into the Chancery c. Register orig fol 293. b. Terris bonts caiallis rehabendis post purgationem is a writ that lye th for a Clerk to recover his lands goods or chatels formerly soised on after he hath cleared himself of that seiony upon suspition whereof he was formerly convicted and delivered to his Ordinary to be purged Register orig fol. 68. b. Terris liberandis is a writ that lyeth for a man convicted by attaint to bring the Record and Processe before the King and to take a fine for his imprisonment and to deliver him his lands and tenements again and to release him of the Scrip and Waste Regist. orig fol. 232. a. It is also a writ for delivery of lands to the heir after homage and relief performed eodem fol. 293. b. or upon security taken that he shall perform them eodem fol. 313. b. Terris catallis tentis ulera debitum levatum is a writ Iudicial for the restoring of lands or goods to a debtour that is distreined above the quantity of the debt Register Iudicial fol. 38. b. Terretenent terratenens is he which hath the natural and actual possesssion of the land which we otherwise call the occupation anno 39 Eliz. ca. 7. For example a Lord of a manour hath a Free-holder who letteth out his free land to another to be occupied this Occupier is called the Terretenent Wist parte 2. symb tit Fines Sect. 137. Cromptons Inrisd fol. 194. Britton cap. 29. Porkins feoffments 231. And Petrus Belluga in sprenlo Principum Repub. 46. versic Restut vidert nu 9. useth this word Terrae tenentee in the same signification See Land tenents Yet I have heard some learâ—ed in the Law say that the Terienent is the tenent in free or copyhold according to the custom of the Manor and opposite to tenent for term of years Quaere Ters is a certain measure of liquid things as wine oyl c. containing the 6th part of a tun an 32. H. 8. c. 14. or the 3d. part of a Pipe Testament Testamentum See Will. Testatum is a writ that seemeth especially to lye
upwards to the number of 24. by whose discretion all tryals pass both in civil and criminal causes through all Courts of the common Law in this Realm First for civil causes when proof is made of the matter in question as the parties and their Counsel think good on both sides the point of the fact that they are to give their verdict of is delivered likewise unto them which we call the issue and then are they put in mind of their oath formerly taken to do right between party and party and so sent out of the Court severally by themselves to consider upon the evidence of both sides untill they be agreed which done they return to the Court again and deliver their verdict by the mouth of the foreman And according to the verdict Iudgement afterward passeth either condemnatory for the Plaintiff or absolutory for the Defendant These twelve be called twelve milites Glanvile lib. 2. cap. 14 15. and so be they in Bracton divers times but that word is altered In causes criminal there be two sorts of Enquests one called the grand Enquest and the other the Enquest of life and death The grand Enquest is so called either because it consisteth commonly of a greater number than twelve as of twenty four eighteen or sixteen at the least or else because all causes criminal or penal first passe through them whereas the other Enquest is especially appointed for one or few matters touching life and death committed to their consideration Those of the grand Enquest are also called by Bracton 12 milites lib. 3. tract 2. cap. pri num 2. because they were wont to be Knights as it seemeth and not inferiours except so many Knights could not be found Idem eodem num 1. in fine And their function is to receive all presentments made unto them of any offence and accordingly to give their general opinion of the presentment by writing either these words Billa vera upon the bill of presentment which is an inditement of the party presented or else this word Ignoramus which is an absolving of him Now as criminal causes be of two sorts either capital touching life and member or finable so is there a double course of these Inditements For in causes only finable the party indited must either traverse the Inditement by denying it and so it is referred to a petit Jury whereby he is either convicted or discharged of the crime or else he confessing it the Court setteth his fine upon his head without more work But in matters of life and death the party indited is commanded to hold up his hand and answer guilty or not guilty if guilty he standeth convicted by his own confession if not guilty he is farther referred to the Enquest of life and death which consider upon the proof brought against the Prisoner and accordingly bring in their verdict Guilty or not Guilty so is he judged to dye or delivered by the Court. Of this read more in Inditement Assise Iury. See the statute anno 35 H. 8. cap. 6. 37 ejusdem cap. 22. et anno 2 Ed. 6. cap. 32. et anno 5 Eliz. cap. 25. VA VAcation vacatio hath an especial signification in this Kingdom being used for all that time respectively which passeth between term and term at London And when such times begun and ended in our Ancestors daies see Roger Hovedens annals parte posteriori fol. 343. a. where you shall find that this intermission was called pax Dei et Ecclesiae Vaccarie aliàs vacharie vaccaria aliàs vacheria seemeth to be a house to keep kine in Fleta lib. 2. cap. 41. sect Item inquiratur 12. and Cromptons Jurisd fol. 194. in these words without warrant no subject may have within the Forest a vacary But in the statute anno 37 H. 8. cap. 16. I find vachary to be as it were a special proper name of a certain quantity and compass of ground within the Forest of Ashedown Valew valentia valor The word is in it self plain enough But I cannot omit one place in M. West parte 2. symbol titulo Inditements sect 70. V. W. touching the difference between value and price These be his words And the value of those things in which offences are committed is usually comprised in Inditements which seemeth necessary in theft to make a difference from petit larceny and in trespass to aggravate the fault and increase the fine But no price of things ferae naturae may be expressed as of Deer of Hares c. If they be not in Parks and Warrens which is a Liberty anno 8 Edward 4. fol. 5. nor of Charters of land And where the number of the things taken are to be expressed in the Inditement as of young Doves in a Dove-house young Hawks in a wood there must be said pretii or ad valentiam but of divers dead things ad valentiam and not protii of coyn not current it shall be pretii but of coin current it shall neither be said pretii nor ad valentiam for the price and value thereof is certain But of counterfeit coin shall be said ad valentiam and in counterfeiting of coin shall not be said decem libras in denariis Dominae Reginae nor in pecunia Dominae Reginae but ad instar pecuniae Dominae Reginae Valour of mariage Valore maritagii is a writ that lyeth for the Lord having profered covenable mariage to the Infant without disparidgement against the Infant comming to his years if he refuse to take the Lords offer And it is to recover the value of the mariage Regist orig fol. 164. Old nat br fol. 90. Variarce commeth of the French varier i. alterare it signifieth in the Common law an alteration or change of condition after a thing done For example the Commonalty of a Town make a Composition with an Abbot Afterward this Town by a grant from the King obtaineth Bayliffs This is a variance and in this case if the Abbot commence any sute for breach of the composition he must vary from the words of the Commonalty set down in the Composition and begin against the Bayliffs and the Commonalties Brook tit Variance fol. 292. It is also used for an alteration of something formerly laid in a plee which is easilier known what it is than when it may be used as it appeareth by Brook through the whole title aforesaid See variance in the new book of Entries Vassal vasallus signifieth him that holdeth land in fee of his Lord Hot. verbo Feudal we call him more usually a Tenent in fee whereof some owe fidelity and service and are called vassalli jurati some that owe neither and are called vassalli injurati But of this later sort I think that in England we have not any Of these thus writeth Hotom in his disputations upon the Feuds cap. 3. Propriè is vassa dicitur qui ab Imperatore regale feudum accipit vassallus autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diminutivo nomine qui ab illo
effect and saith thus Vifangthef dicitur extraneus latro veniens aliunde de terra aliena qui captus fuit in terra ipsius qui tales habet libertates It seemeth to be compounded of these three words Vi fang thef which in our modern English be out take or taken Thief Of this Fleta hath these words Vifangenthef dicitur latro extraneus veniens aliunde de â—erra aliena qui captus fucrit in terra ipsius qui tales habet libertates Sed non sequitur quod possit ille hominem suum proprium extra libertatem suâ—m captum reducere usque in libertatem et ibi cum judicare reducere tamen poterit judicatum et judicium in proprio patibulo exequi ratione libertatis commodum tamen non video Debet enim quilibet juri subjacere ubi deliquit proprios tamen latrones et alienos judicare possunt dum tamen infra libertatem fuerint capti c. Vtlaghe significat bannitum extra legem Fleta lib. 1. cap. 47. See Vtlawrie Vtlagatio capiendo quando utlagatur in uno comitatu et postea fugit in alium is a writ the nature whereof is sufficiently expressed in the words set down for the name thereof See the Register original fol. 133. Vtlawrie utlagaria aliâs utlagatio is a punishment for such as being called into law and lawfully sought do contemptuously refuse to appear And as Bracton saith lib. 3. tract 2. cap. 11. He that is sued must be sought and called at 5 Counties a month being between every County to answer to the law And if he come not within that time pro exlege tenebitur cum principi non obediat nec legi et ex tunc utlagabitur that is as the Author of the Terms of Law saith he shall be pronounced by the Coroner to be out of the Kings protection and deprived of the benefit of the Law The effect of this is divers as the same Author saith for if he be out-lawed in an action personal he meaneth at the sute of another in a civil cause he shall forfeit all his goods and cattels to the King if upon felony then he shall forfeit all his Lands and Tenements that he hath in fee-simple or for term of his life and his goods and cattels Bracton ubi supra xum 5. saith that such as be outlawed upon Felony Ex tunc gerunt caput lupinum ita quod sine judiciali inquisitione ritè pereant et secum suum judicium portent et meritò sine lege pereunt qui secundum legem vivere recusarunt Et haec ita si cùm capiendi fuerint fugiant vel se defendant si autem vivi capti fuerint vel se reddiderint vita illorum et mors erit et manu Domini Regis See Horns miror of Justices lib. 3. cap. des fautes punishables Bracton saith in the place above specified with whom also Fleta agreeth lib. 1. cap. 27. that a Minor or a woman cannot be out-lawed But take his own words Minor vero qui infra aetatem 12. annorum fuerit utlagari non potest nec extra legem poni quia ante talem aetatem non est sub lege aliqua nec in Decenna non magis quà m foemina quae utlagari non potest quia ipsa non est sub lege i. Inlangh Anglice sc in franco plegio sive decenna sicut masculus 12. annorum ulteriùs Et ideo non potest utlagari Waiviari tamen bene potest pro derelicta haberi cum pro felonia aliqua fugam fecerit sine ceperit Est enim waivium quod nullus advocat nec princeps eum advocabit nec tuebitur cum fuerit rite Waiviata sicut fit de masculo qui secundum legem terrae ritè fuerit utlagatus c. To the same effect writeth Fitzherbert in his Natura brev fol. 161. viz. And because women be not sworn in Leets to the King as men be of the age of twelve years or upward it is said when a woman is out-lawed that she is waived but not out-lawed for she was never under the law nor sworn unto it More of this you may read in Bracton lib. 3. tractat 2. cap. 12 13. and then in the 14. how an out-law is in-lawed again and restored to the Kings peace and protection See also Fleta lib. 1. cap. 28. per totum Vtrum See Assise Vtter Baristers be such as for their long study and great industry bestowed upon the knowledge of the Common law be called out of their contemplation to practise and in the face of the world to take upon them the protection and defence of the Clyents These are in other Countries called Licentiati in jure Howbeit in modesty they still continue themselves hearers for divers years like the Scholars of Pythagoras that for the first five years never adventured to reason or discourse openly upon any point of their Masters Doctrine which their silence à cohihibendo sermone was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Suidas and Zenodorus do report Vtlepe significat escapium latronum Fleta lib. 1. ca. 47. W WA VVAge vadiare proceedeth of the French Gager i. dare pignus pignore certare and signifieth in our Common law the giving of security for the performing of any thing as to wage law and to wage deliverance which see before in Gage None wageth law against the King Brook titulo Chose in action num 9. The substantive of this verb is Wager in the Latin vadium which some Feudists call wadium as testifieth Hotoman in his Commentaries de verbis feudalibus verbo Wadium See Law Wainage wanagium aliâs wannagium signifieth as much as peculium servorum of the Saxon word wonen i. habitare woening i. habitatio See Gamage Waive waiviare Regist. orig fol. 277. a. is to forsake habere pro derelicto as the Civilians term it Waiviare feudum suum Bracton lib. 2. cap. 7. that is to forsake Many of the Kings liege people to be out-lawed and many waived by erroneous proces anno 7 H. 4. cap. 13. See Vtlawry To waive the company of Theeves Stawnf pl. cor fol. 26. To waive his benefit Idem fol. 46. To waive the advantage Idem praerog fol. 17. Persons attainted or waived West parte 2. symbol tit Fines Sect. 13. D. This word waived waiviata properly belongeth to a woman that being sued in the Law contemptuously refuseth to appear as out-lawed doth to a man Regist. orig fol. 132. b. 277. a. The reason whereof see in Fitz. nat br fol. 161. A. See Weif Wales Wallia is a part of England on the West side inhabited by the off-spring of the antient Britons chased thither by the Saxons being called hither by them to assist them against the might of the Picts The reason of the appellation commeth from the Saxon Wealh i. exterus vel peregrinus for so the Saxons both called them and held them though now to the great quiet of this
which doctrine Fitzherbert in his Natura brevium fol. 112. E. extendeth thus far that if any of the goods be cast upon the dry Land by any in the ship it is no wreck subject to the Prerogative for by this some of the Ship are presumed to come to land and still to have a custody of the goods Cook ubi supra This in the Grand Customary of Normanny cap. 17. is called varech and latined veriscum where it appeareth that the like law to ours was in Normandy almost in all points But some sorts of their precious Merchandise do by their law appertain to the Duke by his Prerogative though a just challenge of the goods be made within the year and day The Emperors of Rome made no advantage of this pitifull event as appeareth titulo De Naufragiis 11. Cod. And it appeareth that Richard the first had some remorse of poor sea-mens miseries in this case For he quietum clam evit wreck suis subditis Rog. Hoveden parte poster suerum annâ—l fol. 386. Of this M. Skene de verb. siguif speaketh to this effect wreck signifieth a power liberty and prerogative appertaining to the King or to any person to whom the same is granted by him by feoffment or any other disposition to take up and gain such goods as are ship-broken or fall to him by escheat of the sea Writ breve is that with our Common Lawyers in Sir Thomas Smiths judgement lib. 2. de Repub. Anglorum ca. 9. which the Civilians call Actionem sive formulam But I am rather of his judgement that hath added the marginal note unto him saying that Actio is the parties whole sute and that Breve is the Kings precept whereby any thing is commanded to be done touching the sute or action as the Defendant or Tenent to be summoned a distresse to be taken a disseisin to be redressed c. And these writs are diversly divided in divers respects Some in respect of their order or manner of granting are termed original and some judicial Original writs be those that are sent out for the summoning of the Defendant in a personal or Tenent in a real action or other like purpose before the sute beginneth or to begin the sute thereby Those be judicial that be sent out by order of the Court where the cause dependeth upon occasion growing after sute begun Old nat brev fol. 51. And Iudicial is thus by one sign known from the Original because the Teste beareth the name of the Chief Iustice of that Court whence it commeth where the Original beareth in the Teste the name of the Prince Then according to the nature of the action they be personal or real and real be either touching the possession called writs of Entry or the property called writs of right Fitz. nat br sparsim per totum Some writs be at the sute of a party some of office Old nat br fol. 147. Some ordinary some of privilege A writ of privilege is that which a privileged person bringeth to the Court for his exemption by reason of some privilege See Procedendo See the new book of Entries verbo Privilegt See Brief Writ of Rebellton See Commission of Rebellion Writer of the Tallies Scriptor talliarum is an Officer in the Exchequer being Clerk to the Auditor of the Receipt who writeth upon the Tallies the whole letfers of the Tellers bills Y. YA YArd lands Virgata terrae is a quantity of land called by this name of the Saxon Gyrdlander but not so certain a quantity as that it is all one in all places For in some Countries it containeth 20 acres in some 24. in some 30. as M. Lamberd saith in his explication of Saxon words verbo virgata terrae This Yard land Bracton calleth virgatam terrae lib. 2. cap. 10. et 37. but he expresseth no certainty what it containeth YE Year and day annus et dies is a time thought in construction of our Common law fit in many cases to determine a right in one and to work an usucapion or prescrition in another As in a case of an estray if the owner Proclamations being made chalenge it not within that time it is forfeit So is the year and day given in case of appeal in case of descent after entry or claim of no claim upon a fine or writ of right at the Common law so of a villein remaining in antient demean of the death of a man sore bruised or wounded of Protections Essoins in respect of the Kings service of a wreck and divers other cases Coke vol. 6. fol. 107. b. And that touching the death of a man seemeth an imitation of the Civil Law Nam si mortiferè fuerit vulneratus et posteà post longum intervallum mortuus fit inde annum numerabimus secundum Iulianum l. ait lex n. ad legem Aquiâ— Year day and wasto annus dies et vastum is a part of the Kings Prerogative whereby he challengeth the profits of their lands and tenements for a year and a day that are attainted of petit treason or felony whosoever be Lord of the Manor whereunto the lands or tenements do belong and not only so but in the end wasteth the tenement destroyeth the houses rooteth up the woods gardens pasture and ploweth up meadows except the Lord of the fee agree with him for the redemption of such waste afterward restoring it to the Lord of the fee wherof you may read at large Siawnf prarog cap. 16. fol. 44. et seq YO Yoman seemeth to be one word made by contraction of two Danish words young men which I gather out of Canutus Charter of the Forest set out out by M. Manwood parte prim fol. prim num 2. in these words Sunt sub quolibet horum quatuor ex mediocribus hominibus quos Angli Legespend â—uncupant Dani vero yong men vecaut locati qui curam et onus tum viâ—idâ—s tum veneris suscipiant These M. Cambden in his Britan. pag. 105. placeth next in order to Gentlemen calling them Iugenuos whose opinion the Statute affirmeth anno 6 R. 2. cap. 4 Whereunto adde the Statute anno 20. ejusdem Regis cap. 2. Sir Thomas Smith in his Repub. Anglor lib. prim cap. 23. calleth him a Yoman whom our Laws call legalem hominem which as he saith is in English a â—ee man born that may dispend of his own free land in yearly revenue to the sum of 40 shillings sterling Of these he writeth a good large discourse touching their estate and use in this Common wealth The former etymologie of the name he liketh not making question whether it come of the Dutch Yonger yea or not which in the Low-countries signifieth a mean Gentleman or a gay fellow but he that hath added the marginal notes to that book seemeth to draw it from the Saxons Geman which signifieth a maried man M. Verstegan in his restitution of decayed intelligence cap. 10. writeth that Gemen among the antient Teutonicks and Germein among the modern signifieth as much as common and that the first Letter G. is in this word as in many others turned into Y. and so writeth Yemen and that therefore Yemen or Yeomen signifieth so much as Commoner Yoman signifieth an Officer in the Kings house which is in the middle place between the Sergeant and the Groom as Yoman of the Chaundry and Yoman of the Scullery an 33 Hen. 8. cap. 12. Yoman of the Crown anno 3 Ed. 4. cap. 5. anno 22 ejusdem cap. 1. anno 4 H. 7. cap. 7. This word Yongmen is used for Yomen in the Statute anno 33 H. 8. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS