be it by Knights Service or Soccage and not of any Honor Castle or Mannor and for this it is also called a Tenure which holds meerly of the King For as the Crown is a Corporation a Seignory in gross so the King who possesses the Crown is in the eye of the Law perpetually King never in his Minority and dies no more than Populus doth whose authority he bears See Fitz N. BreÌ„ fol. 5. Yet note That a man may hold of the King and yet not in Capite that is not immediately of the Crown in gross but by means of some Honor Castle or Manor belonging to the Crown whereof he holds his Land Of this Kitchin saith well That a man may hold of the King by Knight's service and yet not in Capite because it may be he holds of some honour by Knights service that is in the Kings hands by descent from his Ancestors and not immediately of the King as of his Crown fol. 129. With which agrees Fitzh Nat. BreÌ„ fol. 5. k. whose words are to this effect It plainly appears that Lands which are held of the King as of an Honor Castle or Manor are not held in Capite of the King because a Writ of right iu this case shall be directed to the Bailiff of the Honor Castle or Manor c. But when the lands are held of the King as of his Crown then they are not held of an Honor Castle or Manor but meerly of the King as King as of his Crown as of a Seignory of it self in gross and the chief of all other Seigniories And this Tenure in Capite is otherwise called Tenure holding of the person of the King Dyer fol. 44. Brook titulo Tenures num 65 99. And yet Ki â— chen fol. 208. saith That a man may hold of the person of the King and yet not in Capite His Case is this If the King purchase a Manor that J. S. holds the Tenant shall hold as he did before and he shall not render Livery nor primer Seisin nor hold in Capite And if the King grants his Manor to W. N. in fee excepting the services of J. S. then J. S. holds as of the person of the King and yet holds not in Capite but as he held before By which it seems that Tenure holding of the person of the King and Tenure in Capite are two divers Tenures To take away which difference it may be said That this place of Kitchen is to be taken as if he had said Not in Capite by Knights service but by Socage following the usual speech because most commonly where we speak of Tenure in Capite we intend Tenure by Knight's service See the Stat. 12 Car. 2. c. 24. by which all Tenures are now turned into free and common Socage Cark CArk seems to be a quantity of Wooll whereof 30 make a Sarplar 27 H. 6. cap. 2. See Sarplar Carno CArno is an Immunity as appears in Cromp. Jurisd f. 191. where it is said That the Prior of Malton made claim for him and his men to be quit of all Amerciaments within the Forest and also to be quit of Escapes and of all manner of Gelds and of Foot-gelds Buckstall Trites Carno and Summage c. Carrack or Carrick CArrack alias Carrick is a Ship of burthen and is so called of the Italian word Carico or Carco which signifies a Burthen This word is mentioned in the Statute 1 Jac. c. 33. Carue of Land CArue or Carucate of land is a certain quantity of land by which the Subjects have been heretofore taxed whereupon the Tribute so levied is called Caruage Bract. l. 2. c. 16. num 8. Lit. Sect. 119. saith that Soca is the same with Caruca sc a Soke or Plow Stow in his Annals p. 251. hath these words The same time H. the King took Caruage that is to say two Marks of Silver for every Knight's Fee to the marriage of his sister Isabel to the Empereur By which it seems there was raised of every Plow-land so much and so consequently of every Knight's free two Marks of Silver Rastal in his Exposition of words saith that Caruage is to be quit if the King shall tax all the Land by Plows that is a Priviledge by which a man is freed from Caruage Skene saith that it contains as great a portion of land as may be eyred or tilled in a year and a day with one Plow which also is called a Hild or Hide of land Castellain CAstellain is a Keeper or Captain sometimes called a Constable of a Castle Bracton l. 5. c. 2. cap. 16. In the same manner it is used anÌ„ 3 E. 1. c. 7. In the book of Feudis you shall find Guastaldus to be of like signification but more large because it is also extended to those that have the custody of the King's Mansion-houses called Courts notwithstanding they are not places of defence or force Manwood part 1. of the Laws of the Forest p. 113. saith That there is an Officer of the Forest called Castellanus Castle-guard CAstle-guard is an Imposition laid upon such of the Kings subjects as dwell within a certain compass of any Castle to the maintenance of such as watch and ward it Mag. Chart. cap. 2. an 32 H. 8. ca. 48. It is sometimes used for the Circuit it self which is inhabited by such as arc subject to this Service See Chivalry Casu consimili CAsu consimili is Writ of Entry granted where the Tenant by courtesie or Tenant for term of life or for the life of another aliens in Fee or in tail or for the life of another And it hath this name because the Clerks of the Chaucery have framed it by their common consent like the Writ called in casu ê“viso according to the authority given them by the Stat. of West 2. cap. 24. which wills That as often as it shall happen in Chancery that in one case a Writ is found and in the like case a remedy is wanting the Clerks of the Chancery should agree to make a Writ c. And this Writ is granted to him in reversion against the party to whom the said Tenant so aliened to his prejudice and in the life of the Tenant See more of this F. N. B. fol. 206. Casu proviso CAsu proviso is given by the Stat of Gloucester cap. 7. This Writ lies where Tenant in Dower aliens in Fee or for life or in tail the Land which she holds in Dower there he that hath the Reversion Fee or in Tail or for term of life shall presently have this Writ against the Alienee or him that is Tenant of the Free-hold of the Land and that during the life of the Tenant in Dower F. N. B. 205. n. Catals CAtals or Chatels comprehend all Goods movable and immovable except such as are in nature of Free-hold or parcel of it as may be collected out of Stamf. Praer cap. 16. and anno 1 Eliz. cap. 2. Yet Kitch fol. 32. saith that
the Statute of Mag. Charta cap. 14. speaks And therefore if a man be outragiously amerced in a Court not of Record as in a Court-Baron c. there is a Writ called Moderata Misericordia to be directed to the Lord or his Baily commanding them that they take moderate Amerciaments according to the quantity of the fault And of that see Fitzh N. B. fol. 75. A. and Moderata Misericordia after Misnomer MIsnomer is the Mistake of a Name or the using of one Name for another See Broke tit Misnomer Misprision MIsprision is when one knows that another hath committed Treason or Felony and will not discover him to the King or his Council or to any Magistrate but conceals the same Divers other offences are called Misprision as when a Chaplain had fixed an old Seal of a Patent to a new Patent of Non-residence this was held to be Misprision of Treason only and no counterfeiting of the Kings Seal So it is holden in 37 H. 8. Bro. tit Treason 3. in Fine but 2 H. 4. f. 25. A. it is adjudged contrary and Stamf. Pl. cor fol. 3. B. cites it Treason and so it is holden at this day And if a man know Money to be counterfeit and bring the same from out of Ireland hither and utter it in payment yet this is but Misprision of Treason and no Treason and so it is in divers like cases In all cases of Misprision of Treason the Party offendor shall forfeit his Goods for ever and the profits of his Lands for his life and his Body to Prison at the Kings pleasure And for Misprision of Felony or Trespass the Offendor shall be committed to Prison until he have found Sureties or Pledges for his Fine which shall be assessed by the discretion of the Iustices before whom he was convict And note That in every Treason or Felony is included Misprision and where any man hath committed Treason or Felony the King may cause him to be Indicted and Arraigned of Misprision only if he will See more hereof Stamf. lib. 1. cap. 39. Mittimus MIttimus is a Writ by which Records are transferred from one Court to another sometimes immediately as it appears in the Statute of 5. R. 2. cap. 15. as out of the Kings Bench into the Exchequer and sometimes by a Certiorari into the Chancery and from thence by a Mittimus into another Court as you may see in 28 H. 8. Dyer fol. 29. a b. 29 H. 8. Dyer fol. 32. a b. This word is used also for the Precept that is directed by a Iustice of Peace to a Goaler for the receiving and safe keeping of a Felon or other Offendor committed by the said Iustice to the Goal Moderata Misericordia MOderata Misericordia is a Writ that lies where a man is amerced in Court-Baton or County more then he ought to be then he shall have this Writ directed to the Sheriff if it be in the County or to the Bayliff if it be in Court-Baron commanding them that they amerce him not but with regard to the quantity of the Trespass and if they obey not this Writ then shall go forth against them a Sicut alias and Causam nobis significes and after that an Attachment Modus decimandi MOdus decimandi is Mony or other thing of value given annually in lie â— of Tithes The tryal of which appertains to the Common Law and not to any Court-Christian Ridley's view del Civil Law 141. In which he says There was one modus decimandi pro omnibus rebus per totum regnum Monstrans de Droit MOnstrans de Droit is a Suit in Chancery for the Subject to be restored to Lands and Tenements which he shews to be his Right but are by Office found to be in the possession of another that is lately dead by which Office the King is intitled to a Chattel Free-hold or Inheritance in the said Lands And this Monstrans de Droit is give by the Statutes of 34 E. 3. cap. 14. and 37 E. 3. cap. 13. See Coke lib. 4. fol. 54. B. in the Case of the Wardens and Commonalty of Sadlers Shewing of Deeds or Records SHewing of Deeds or Records is thus An Action of Debt is brought against A upon an Obligation by B or by Executors c. After the Plaintiff hath declared he ought to shew his Obligation and the Executor the Testament to the Court. And so it is of Records And the diversity between Shewing of Deeds or Records and Hearing of Deeds or Records is this He that pleads the Deed or Record or Declares upon it ought to shew the same and the other against whom such Deed or Record is pleaded or declared and is thereby to be charged may demand hearing of the same Deed or Record which his Adversary brings or pleads against him Monstraverunt MOnstraverunt is a Writ that lies for the Tenants in Ancient Demesne and is directed to the Lord him commanding not to Distain his Tenant to do other Service then he ought and they may have this Writ directed to the Sheriff that he suffer not the Lord to distrain the said Tenant to do other Service If the Tenants cannot be in quiet they may have an Attachment against the Lord to appear before the Iustices and all the names of the Tenants shall be put in the Writ though but one of them be grieved Also if any Land in ancient Demesne be in variance between the Tenants then the Tenant so grieved shall have against the other a Writ which is called of Right close after the Custome of the Mannor and that shall be alway brought in the Lords Court and thereupon he shall declare in the nature of what Writ he will as his case lies and this Writ shall not be removed but for a great cause or non-power of the Court. Also if the Lord in another place out of ancient Demesne distrain his Tenant to do other Service then he ought he shall have a Writ of Right called Ne Injuste vexes and it is a Writ of Right Patent which shall be tried by Battel or Grand Assise Mortdancester MOrtdancester See before in the Title Cosinage MOrtgage or Morgage MOrtgage or Morgage is when a Man makes a Feoffment to another on such condition that if the Feoffor pay the Feoffee at a certain day 40 li. of money then the Feoffor may re-enter c. In this case the Feoffee is called Tenant in Morgage And as a Man may make a Feoffment in Fee in Morgage so he may make a Gift in Tail or a Lease for Life or Years in Morgage And it seems the cause why it is called Morgage is for that it stands it doubt whether the Feoffoe will pay the mony at the day appointed or not and if he fail then the Land which he laid in gage upon condition of payment of the money is gone from him for ever and so dead to him upon condition but if he pay the mony then is the gage dead
therefore those Officers in the Forest that thus take in Cattel and gather the money for the Feed of them are called Agistors and the feed or herbage of the Cattel is called Agistment which in a large signification extends to all manner of Common of Herbage of any kind of ground or land or woods or the money that is due or received for the same as well out of Forests as within them See Manwood's Forest Laws c. 11. fol. 80. Agreement AGreement is thus defined or expounded in Plowdens's Commentaries Aggreamentum is compounded of two words namely Aggregatio and Mentium that is Agreement of minds So that Agreement is a consent of minds in some things done or to be done and by drawing together the two words Aggregatio and Mentium and by the hasty and short pronouncing of them they are made one word to wit Aggreamentum which is no other than a joyning coupling and knitting together of two or more minds in any thing done or to be done See after in Testament And this Agreement is in three manners The first is an Agreement executed already at the beginning The second is an Agreement after an act done by another and is an Agreement executed also The third is an Agreement executory or to be done in time yet to come The first which is an Agreement executed already at the beginning is such whereof mention is made in the Stat. of 25 E. 3. c 3. of Clothes in the 4 th Sat. which saith That the goods and things bought by forestallers being thereof attainted shall be forfeit to the King if the buyer have made gree with the seller In which case the word gree which is otherwise called Agreement shall be extended to Agreement executed that is payment for the things The second manner of Agreement is where one doth a thing or act and another agrees or assents thereunto afterwards as if one make a Disseisin to my use afterwards I agree to it now I shall be a Disseisor from the beginning And such Agreement is an Agreement after an act done The third agreement is when both parties at one time are agreed that such a thing shall be done in time to come and this agreement is executory in as much as the thing shall be done after and yet there their minds agreed at one time But because the performance shall be afterward and the thing upon which the Agreement was made remains to be done that Agreement shall be called Executory And that the Stat. of 26 H. 8. c. 3. doth prove which saith That every Vicar Parson and such liks c. before their actual possession or medling with the profits of their Benefices shall satisfie content c. or agree to pay the King the First-fruits c. if any such Parson or Vicar c. enter in actual possession c. this Agreement is to be understood executory as common usage proves for it is used that he with one or two with him do make two or three Obligations for it is to be paid at certain days after And this Agreement executory is divideded into two points One is an Agreement executory which is certain at the beginning as is said last before of the First-fruits The other is when the certainty doth not appear at the first and the parties are agreed that the thing shall be performed or payed upon the certainty known as if one sell to another all his Wheat in such a bay of his Barn unthres ed and it is agreed between them that he shall pay for every bushel 3s when it is threshed clean and measured Aid AID is when a Tenant for term of Life Tenant in dower Tenant by courtesie or Tenant in Tail after possibility of issue extinct is impleaded then for that they have no estate but for term of life they shall pray in aid of them in the Reversion and process shall be made by Writ against him to come and plead with the tenant in the defence of the land if he will But it behoves that they agree in the Plea for if they vary the plea of the Tenant shall be taken and then the aid-prayer is void but if he come not at the second Writ then the tenant shall answer sole Also Tenant for years Tenant at will Tenant by Elegit and Tenant by Statute-Merchant shall have aid of him in the Reversion and the Servant and Bailiff of their Master when they have done any thing lawfully in the right of their Master shall have aid This word is sometimes applied to Subsidies as in 14 E. 3. Stat. 2. cap. 1. Other times to a Prestation due from the Tenants to their Lords as for relief due to the Lord paramount or for the making of his Son a Knight or for marrying of his Daughter Glan lib. 9. c. 8. This aid the K. or other Lord by the ancient Law of England may lay upon their Tenants to make his son Knight at the age of 15 years and to marry his daughter at the age of 7 years Regist orig fol. 87. a. and that at what rate they please But the Stat. of West 1. made An. 3. Ed. 1. ordained a restraint for any great or large demand made by common persons being Lords in this case and hath tied them to a certain rate and the Stat. of 25 Ed. 3. Stat. 5. c. 11. provides that the rate which is appointed by the former Stat. shall be held in the King as well as in other Lords Aid of the King AID of the King is in like case as it is said before of a common person also in many other cases where the King may have loss although the Tenant be Tenant in fee-simple he shall have aid as if a Rent be demanded against the Kings Tenant who holds in chief he shall have aid so he shall nor of a common person And where a City or Borough hath a Fee-farm of the King and any thing is demanded against them which belongs to the Fee-farm they shall have aid for it of the King Also a man shall have aid of the King in the stead of Voucher And the Kings Baliff the Collector and the Purveyor shall have aid of the King as well as the Officers of other persons Aile AILE is a Writ which lies where Land descends from the grandfather to his nephews sc the son or daughter of the son of the grandfather the father being dead before the entry by him and one abates the heir shall have against the Abator this Writ Aler sans jour ALer sans jour is word for word to go without day that is to be dismist the Court because there is no day of farther Appearance assigned Ale-Taster ALe-taster is an Officer appointed and sworn in every Leet to look that the due Assise be kept of all the Bread Ale and Beer sold within the Iurisdiction of the Leet Alien ALien is a Subject born out of the liegeance of our King and he cannot
the eldest son hath no issue then alive But if the eldest son who was attaint hath any Issue 〈◊〉 which should have inherited but for the Attainder the 〈◊〉 shall escheat to the Lord and shall not discend to the youngest brother because the Bloud of the eldest brother is corrupt 32 H. 8. Dy. 48. But it is to be noted That there are divers things made Treason by Act of Parliament whereof although a man be attainted yet his Bloud is not corrupt neither shall he forfeit any thing but that which he hath for his own life As if a man be attainted upon the Statute of 5 Eliz. cap. 1. ordained against the maintaining of the authority of the Bishop and See of Rome this shall not extend to make any Corruption of bloud the disheritance of any Heir forfeiture of any Dower nor to the prejudice of the right or title of any person other then the Offendor during his natural life only So if a man be attainted by force of the Statute of 5 Eliz. cap. 11. provided against the clipping washing filing and rounding of Money yet there is no Corruption of bloud In the same manner is it of the Statute of 18 Eliz. cap. 1. 1 Jac. cap. 12. 1 Mar. cap. 12. against Vnlawfull assemblies and 5 Eliz. cap. 14. against the Forging of evidence and the Statute of 31 Eliz. c. 4. against the Embezilling of the Queens Ordnance Armour or Artillery Corse present COrse present are words signifying a Mortuary and the reason why the Mortuary is so termed is because where a Mortuary was wont to be due the Body of the best Beast was according to the Law or custome offered or presented to the Priest See Anno 21 Hen. 8. ca. 6. where among other things it is enacted That no Corse present nor any summe of money or other thing for any Mortuary or Corse present shall be demanded received or had but only in such places and Towns where Mortuaries have been accustomed to be taken and paid Cosinage COsinage is a Writ that lies where my great Grandfather my Grandfathers Grandfather or other Cousin dies seised in Fee-simple and a Stranger abates viz. enters into the Lands then I shall have against him this Writ or against his Heir or his Alienee or against whosoever comes after to the said Lands But if my Grandfather die seised and a Stranger abates then I shall have a Writ of Ayel But if my Father Mother Brother Sister Vncle or Aunt die seised and a Stranger abates then I shall have an Assise of Mortdauncester Cottage COttage is a little House for habitation of poor men without any Land belonging to it whereof mention is made in the first Statute made in 4 E. 1. And the inhabitant of such a house is called a Cottager But by a Statute made in the 31 year of Queen Eliz. cap. 7. no man may build such a Cottage for habitation unless he lay unto it four acres of Freehold-land except in Market-Towns or Cities or within a mile of the Sea or for habitation of Labourers in Mines Sailors Foresters Shepherds c. Coucher COucher is a Factor who continues in some place or Country for traffick an 37 E. 3. c. 16. It is also used for the general Book into which any Corporation enters their particular Acts for a perpetual remembrance of them Covenable COvenable is a French word signifying Convenient or suteable as Covenably endowed Anno 4 H. 8. ca. 12. It is anciently written convenable as in the Stat. 27 Ed. 3. Stat. 2. ca. 17. Covenant COvenant is an Agreement made by Deed in writing and sealed between two persons where each of them is bound to the other to perform certain Covenants for his part and if the one performs not his Covenant the other shall have thereupon a Writ of Covenant And Covenants are either in Law or in Fact Cok. lib. 4. fol. 80. or Covenant expressed and Covenant in Law Cok. lib. 6. fol. 17. A Covenant in Law is that which the Law intends to be done though it be not expressed in words As if a man demise any thing to another for a certain term the Law intends a Covenant of the part of the Lessor that the Lessee shall hold all his term against all lawfull incumbrances Covenant in Fact is that which is expresly agreed between the parties Also there is a Covenant meerly personal and Covenant real Fitzh Nat. Brev. f. 145. seems to say that Covenant real is whereby a man ties himself to pass a thing real as Lands or Tenements as a Covenant to levy a Fine of Land Covenant meerly personal is where a man covenants with another by Deed to build a house or to serve him See the old Book of Entries the word Covenant But note well That no Writ of Covenant shall be maintainable without especialty except in the City of London or in some other place priviledged by custome and use Coverture COverture is when a man and a woman are married together now whatsoever is done concerning the wife in the time of the continuance of this Marriage is said to be done during the Coverture and the wife is called a Woman covert and thereby is disabled to contract with any one to the prejudice of her self or her husband without his consent and privity at the least without his allowance and confirmation See Brook this Title And Bract. saith That all things that are the wife's are the husbands neither hath the wife power of her self but the husband lib. 2. cap. 15. and the husband is the head of his wife lib. 4. cap. 24. and again that in any Law-matter she cannot answer without her husband lib. 5. tract 1. cap. 3. And if the husband alien his wife's Land during the Coverture she cannot gain-say it during his life Covin COvin is a secret Assent determined in the hearts of two or more to the prejudice of another As if a Tenant for term of life or Tenant in tail will secretly conspire with another that the other shall recover against the Tenant for life the Land which he holds c. in prejudice of him in the Reversion Or if an Executor or Administrator permit Iudgments to be entred against him by fraud and plead them to a bond or any fraudulent assignment or conveyance be made the party grieved may plead covin and relieve himself Vid. Stat. 2 R. 2. cap. 3. 3 H. 7. ca. 4. 13 El. c. 5. and 27 El. 4. Count. COunt is as much as the original Declaration in a Processe though more used in real than personal Actions as Declaration is more applied to personal than real F. N. B. 16. a. 60. d. n. 71. a. 191. e. 217. A Libel with the Civilians comprehends both Yet Count and Declaration are confounded sometimes as Count in Debt Kitch 281. Count or Declaration in Appeal Pl. Cor. 78. Count in Trespasse Brit. cap. 26. Count in Action of Trespasse upon the Case for a Slander Kitch 252. Contours
Court of Iustice Magistracy or Title of land for which the party shall be punished according to the nature and quality of his offence sometimes by Action upon the Case for Slander at the Common Law and other times in the Ecclesiastical Court. As if a man contrive any False news or horrible and false Lies of Prelates Dukes Earls c. then an Action De Scandalis Magnatum will lie against him by the Statute of 2 R. 2. cap. 5. and this being proved the party offending shall be grievously punished But for words of Defamation against a private man there the party grieved shall have his Action upon the Case for the Slander and shall recover in dammages according to the quality of the fault wherein the quality of the person who is so defamed is much to be considered But for Defamations determinable in the Spiritual Court they ought to have three incidents First it ought to concern matter meerly Spiritual and determinable in the Ecclesiastical Court as for calling him Heretick Schismatick Adulterer Fornicator c. Secondly that it concern matter meerly Spiritual only for if such Defamation concern any thing determinable at the Common Law the Ecclesiastical Iudge shall not have conusance thereof As if a Divine is to be presented to a Benefice and one to defeat him thereof saith to the Patron that he is an Heretick or a Bastard or that he is Excommunicated whereby the Patron refuses to present him and he loses his Preferment he shall have an Action upon the Case for these Defamations tending to such an end Also if a woman be bound that she shall live continent for if a Lease be made to her so long as she shall live chaste in these cases Incontinency shall be tryed by the Common Law Thirdly although such Defamation be meerly and only Spiritual yet he that is defamed cannot sue there for amends or Dammages but the Suit ought to be only for punishment of the fault for the Soul's health of him that so offends And as for the Slander of a Title to Land if A. saith that B. hath right in the Lands of C. whereby C. is damnified then he may have an Action upon the Case for the Defamation of his Title against A. And although B. hath a colourable Title yet A. shall be punished forasmuch as he hath taken upon him knowledge of the Law and medled in a matter which concerned him not But if a man saith that he himself hath right to the Land of another in this case no Action for Defamation lies although he knows his Title to be false Cok lib. 4. fol. 18. Defeisance DEfeisance is a Condition relating to a Deed as an Obligation Recognisance or Statute which being performed by the Obligor or Recognisor the Act is disabled and made void as if it had never been done And there is no Warrantie Recognisance Rent-charge Annuity Covenant Lease for years or such like but that they may by a Defeasance made with the mutual consent of all those who were parties to the creation thereof by Deed be adnulled discharged and defeated And the difference between a Proviso or Condition in Deed and a Defeasance is in this That the Proviso or Condition is annexed or inserted in the Deed or Grant whereas a Defeasance is usually a Deed by it self concluded and agreed on between the parties and having relation to another Deed. And therefore if the Condition of an Obligation be repugnant to the Deed the Condition is void and the Obligation good As if the Condition be that he shall not sue the Obligation this is void as well as it is of a Feoffment upon Condition that the Feoffee shall not take the Profits But a Defeasance is a Grant that is made after the Obligation to defeat the same Obligation and this is good though it be repugnant and so not like a Condition 21 H. 7. fol. 24. b. For the form and manner of Defeasances according to the diversity of the Case see West part 1. Symb. lib. 2. sect 230 231 c. Defence DEfence is that which the Defendant ought to make immediately after the Count or Declaration made that is that he defends all the Wrong Force and Dammage where and when he ought and then to proceed farther to his Plea or to imparl And note that by defending the Force and Wrong he doth excuse himself of the Wrong against him surmised and makes himself party to the Plea and by defending the Dammage he affirms the Plaintiff able to be answered unto And for the residue of the Defence he accepts the power of the Court to hear and determine their Pleas of this matter For if he will plead to the Iurisdiction he ought to omit in his Defence these words ou quant il devera and if he will shew any disability in the Plaintiff and demand Iudgment if the party shall be answered unto then he ought to omit the Defence of the Dammage Defendant DEfendant is he that is sued in Action personal who is called Tenant in an Action real Defendemus DEfendemus is an ordinary word in a Feoffment or Donation and hath this force that it binds the Donor and his Heirs to defend the Donee if any man go about to lay any Servitude upon the thing given other then is contained in the Donation Braction lib. 2. cap. 16. num 10. See also Warrantizantibus Defender of the Faith DEfender of the Faith 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. x. to K. Hen. 8. for writing against Martin Luther in behalf of the Church of Rome Stow's Annals p. 863. Deforceor DEforceor is he that overcomes and casts out with Force who differs from a Disseisor first in this that a man may disseise another without Force which act is called Simple Dissesin Britton cap. 33. Then because a man may deforce another that never was in possession as if many have right to Lands as common Heirs and one keeps them out the Law saith that he deforces them though he never disseised them Old Nat. Brev. fol. 118. If Tenant in tail makes a Feoffment in fee by which the Feoffee is in and afterward the Tenant in tail dies and his issue sues a Writ of Formedon against the Feoffee the Writ shall say and also the Count c. that the Feoffee wrongfully deforced him c. though he did not disseise him because he entred in the life of the Tenant in tail and the Heir had no present right Lit fol. 138. And a Deforceor differs from an Intrudor because a Deforceor keeps out the right Heir as aforesaid and a man is made an Intrudor by a wrongful Entry only in Lands or Tentments void of a Possessor Bract. lib. 4. cap. 1. And because Force and Forcible entry into Lands is so opposite to the Peace and Iustice of the Realm and a
punishes her Officers as Serjeants Pleaders Philizers Exigenters Attornies and others so she renounces and condemns all acts of greatest importance if they be intermixt with Disceit and falshood As if a Fine be levied by Disceit and five years past by the Statute of 4 H. 7. c. 24. all persons and their rights shall be barred thereby yet for that it was by Disceit th â— Fine shall be avoided as is a â—â— dged in Cok. lib. 3. fol. 77. 〈◊〉 the same manner if one â—â— cover Land by Disceit the â—â—â— overy for this shall be fru â—â—â— ated and made void 3 Ed. 3. 2 â— So if a woman that hath good cause to be endowed will by Disceit have the Tenant to be disseised and after recovers her Dower by a Writ of Dower against the Disseisor yet she shall be adjudged in possession against the Disseis â— e but as a Disseisoresse in respect of the Disceit Cok. lib. 5. fol. 35. There is another manner of Writ of Disceit where Land which is auncient demesn is impleaded by the Kings Writ at Westm Then the Lord of the Mannor may have this Writ and reverse all the former proceedings and Iudgment as it appears Rast Ent. 100 221. 2 R. 3. 1 11 H. 4. 36. Discent DIscent or Descent is in two sorts either lineal or collateral Lineal Discent is when a Discent is conveyed in the same Liue of the whole bloud as grandfather father son sons son and so downward Collateral Discent is out in another branch drawn from above of the whole bloud as grandfathers brother fathers brother and so downward Note that if one die seised in fee or in tail of Land in which another hath right to enter and that discends to his Heir such Discent shall take away the Entry of him who hath right to enter for that the Heir hath it by Discent from his father and so by act of the Law and he that hath right cannot put him out by entring upon him but is put to sue his Writ to demand the Land according to the nature of his Title See hereof in Littl. lib. 3. cap. 6. and Stat. 32. H. 8. cap. 33. Disclaimer DIsclaimer is where the Lord distrains his Tenant and he sues a Replevin and the Lord avows the taking by reason he holds of him if the Tenant say that he disclaims to hold of him this is called a Disclaimer and if the Lord thereupon bring in a Writ of Right sur Disclaimer and it be found against the Tenant he shall lose his Land Also if one brings a Praecipe against two others for the Land and the Tenant disclaims and saith that he is not thereof Tenant nor claims any thing therein then the other shall have the whole Land but if the Praecipe be brought against one alone and he disclaims as aforesaid the Writ shall abate yet the Demandant may enter in the Land and hold it in his rightfull estate though his Entry was not lawful And after the Tenant in an Action brought against him disclaims he shall not have a Writ of Error against his own Disclaimer because by it he hath barred himself of his right to the Land for the words of the Disclaimer are He hath nothing neither claims he to have in the Land neither at the day of the bringing of the Original Writ aforesaid c. had or claimed but any thing in the same Land to have he disavows and disclaims and against this he shall not have Restitution by a Writ of Error See Cok. lib. 8. fol. 62. So if a Lord in case where he may disclaims his Seigniory in Court of Record his Seigniory by this is extinct and the Tenant shall hold of the Lord next above him that so disclaimed Lit. sect 146. If Lands be given to the husband and wife in tail or in fee and the husband dies the wife cannot devest the Freehold cut of her by any verbal Waver or Disclaimer in the Countrey as if before any Entry made by her she saith that she altogether waves and disclaims the said Estate and will never take nor accept thereof yet the Free-hold remains in her and she may enter when she pleases So a Charter of Feoffment was made to four and Seisin was delivered to three in the name of all and after the Seisin was delivered the fourth coming sees the Deed and saith by word that he will have nothing of the Land nor agree to the Deed but disclaims and it was adjudged that this Disclaimer by word in the Countrey shall not devest the Freehold out of him Cok. lib. 3. fol. 26. Discontinuance DIscontinuance is when a man alienates to another Lands or Tenements and dies and another hath right to the same Lands and may not enter into them because of this Alienation as if an Abbot alien the Lands of his House to another in fee fee-tail or sor life or if a man alien the Lands that he hath in right of his wife or if Tenant in tail makes of the Lands given to him and the Heirs of his body any Feoffment Gift in tail or Lease for life not warranted by the Statute 32 Hen. 8. by Fine or Livery of seisin then such Alienations are called Discontinuances for such Estates passe away by Livery and seisin In these cases the Successors of the Abbot or the woman after the death of her husband or the issue in tail after the death of the Tenant in tail and they that have any Remainder or Reversion after the end of the Estate-tail may not enter but every of them is put to his Action And as there is Discontinuance of Possession as is said before so also is there Discontinuance of Process or Plea and this is when the instant is lost and may not be regained but by a new Writ to begin the Suit afresh for to be discontinued and to be put without day is all one and nothing else but finally to be dismissed the Court for that time West part 2. tit Fines sect 115. So Crompton in his Jurisdictions fol. 131. uses it in these words If a Justice-seat be discontinued by the not coming of the Justices the King may renew it by his Writ And if the Iustices of any Court do not meet at the day and place appointed then the Cause shall be discontinued unto another day as in Cok. lib. 1 fol. 38. So if a man hath an Action in the Court of the Marshalsea and the King removes forth of the Vierge the Pleas shall be discontinued Cok. lib. 10. fol. 73. See more hereof in Litt. lib. 3. cap. 11. and 32 H. 8. cap. 28. which takes away Discontinuances by the husband seised in right of his wife Disgrading DIsgrading or Degrading is when a man having taken upon him a Dignity temporal or spiritual is afterwards thereof deprived be he Knight Clerk or other Whereof if a Clerk be delivered to his Ordinary and cannot clear himself of the Offence whereof he is convicted by the
Fieri facias If a man recover by a Writ of Debt and sue a Fieri facias and the Sheriff return that the Defendant hath nothing whereof he may satisfie the Debt to the party then the Plaintiff shall have Elegit or Capias sicut alias and a Pluries And if the Sheriff return at the Caplas Mitto vobis corpus and he have nothing whereof he may make satisfaction to the party he shall be sent to the prison of the Fleet and there abide untill he have made Agreement with the party and if the Sheriff return Non est inventus then there shall go forth an Exigent against him Note well That in a Writ of Debt brought against a Parson who hath nothing of Lay-Fee and the Sheriff returns that he may not be summoned then shall the Plaintiff sue a Writ to the Bishop to cause his Clerk to come and the Bishop shall make him come by Sequestration of the Church And if a man bring a Writ of Debt and recover and make his Executors and die they shall not have Execution notwithstanding it be within the year be a Fieri facias There is another sort of Elegit upon adjudging execution against Terr-tenants which Elegits recite the lands against which Execution is adjudged and commands the Sheriff to deliver to the Creditor a moyty of those Lands and nothing is therein mentioned of any Goods or Chattels as in the other Elegits Elopement ELopement is when a married woman departs from her husband and dwells with an Adulterer for which without voluntary reconcilement to her husband she shall lose her Dower by the Statute of West 2. cap. 34. Whereupon is this old Verse The woman that her husband leaves And with Adult'ry is defil'd Her Dower she shall want unless She first to him be reconcil'd Embleaments EMbleaments are the Profits of the Land which have been sowed and in some cases he who sowed them shall have them and in some not as if Tenant for life sow the Land and afterwards die the Executors of the Tenant for life shall have the Embleaments and not he in Reversion But if Tenant for years sow the Land and before that he hath reap'd his term expires there the Lessor or he in Reversion shall have the Embleaments If one desseises me and cuts the Embleaments growing upon the Land and afterwards I re-enter I shall have an Action of Trespasse against him for the Embleaments but if my Disseisor makes a Feoffment in fee or leases the Land whereof he disseised me and the Feoffee or Lessee takes the Embleaments and after I re-enter I shall not have Trespass Vi armis against them who come in by Title but against my Disseisor Cok. lib. 11. f. 51. If a woman Copiholder during her Widowhood according to the Custome of the Mannor sows the Land and before severance of the Embleaments she takes a husband the Lord shall have the Embleaments So if a woman seised of Land during her Widowhood makes a Lease for years and the Lessee sows the Land and the woman takes a husband there the Lessee shall not have the Embleaments although his Estate be determined by the act of a stranger And although it is commonly held in our Books That if a man leases Lands at will and after the Lessee sows the Land and then the Will is determined that the Lessee shall have the Embleaments yet if the Lessee himself determines the Will before the severance of the Corn. he shall not have the Embleaments See Cok. lib. 5. fol. 116. Embrasour or Embraceour EMbrasour or Embraceour is he that when a matter is in trial between party and party comes to the Barrs with one of the parties having received some reward so to do and speaks in the case or privily labours the Iury or stands there to survey or overlook them thereby to put them in fear and doubt of the matter But persons learned in the Law may speak in the case for their clients Emparlance EMparlance is when a man being to answer to a Suit or Action desires some time of Respite to advise himself the better what he shall answer and it is nothing else but a Continuance of the Cause untill a fatther day And though the Plaintiff in the Kings Bench after the Barre pleaded hath time to reply two or three Terms after yet no mention shall be made in the Roll of any Emparlance or Continuance but the Entry shall be general and so intended to be the same Term. But it is otherwise with a Barre for it contains the Emparlance or Continuance and is in this manner And now at this day that is Friday c in the same Term untill which day the aforesaid A had licence to imparle c. But there is no such Entry upon any Replication or Rejoynder See Coke lib. 5. fol. 75. Brit. cap. 53. uses this word for the Conference of a Iury upon the business to them committed There is a special Imparlance also for a Defendant salvis sibi omnibus omnimodis exceptionibus ad breve narrationem or ad billam which is of use where the Defendant is to plead some matters which cannot be pleaded after a general imparlance Encheson ENcheson is a French word much used in our Law Books as in the Statute of 50 E. 3. cap. 3 and it signifies as much as the Occasion cause or reason for which any thing is done So it is used by Stamford lib. 1. cap. 12. in his description of a Deodand Encrochment ENcrochment comes from the French word Acrocher that is to Pull or draw to And it signifies an Vnlawfull gaining upon the right or possession of another And so a Rent is said to be encroched when the Lord by Distresse or otherwise compells the Tenant to pay more Rent then he ought or then he need See Bucknal's Case 9 Rep ' fol. 33. So when a man sees his Hedge or his Wall too far into the land or ground of his neighbour that lies next him he is said to incroach upon him Enditement or Indictment INdictment comes of the French Enditer that is to set a man out as he is And it is a Bill or Declaration in form of Law exhibited by way of Accusation against one for some offence either criminal or penal and preferred to Iurors and by their Verdict found and presented to be true before a Iudge or Officer that hath power to punish or certifie the Offence Endowment ENdowment Dotatio signifies properly the Giving or assuring of Dower to a woman But it is sometimes by a Metaphor used for the Setting out or severing of a sufficient part or portion to a Vicar for his perpetual maintenance when the Benefice is appropriated And so it is used in the Statutes of 15 R. 2. cap. 6. and 4 H. 4. cap. 12. Endowment de la pluis belle part ENdowment de la c. is when a man dies seeised of some Lands held in Knights-service and others in
ei dimisit qui inde eum injuste disseisivit c. But if the Disseisor alien and the Alienee dies seised or aliens over to another or if the Disseisor dies and his Heir enters and that Heir aliens or dies and his Heir enters then the Disseisee or his Heir shall have a Writ of Entre sur Disseisin in the Per and Cui and the Writ shall say In quod idem A non habet Ingressum nisi per B cui C illud ei dimisit qui inde injuste c. A Writ of Entry in the Per and Cui shall be maintainable against none but where the Tenant is in by Purchase or Discent For if the Alienation or Discent be put out of the Degrees upon which no Writ may be made in the Per or in the Per and Cui then it shall be made in the Post and the Writ shall say In quod A non habet Ingressum nisi Post Disseis â— nam quam B inde injuste sine judicio fecit praef t. N. vel M. proavo N. cujus haeres ipse est Also there are five things which put the Wri â— of Entrie out of the Degrees viz. Intrusâ—on Succession Disseisin upon Disseisin Iudgment and Escheat 1. Intrusion is when the Disseisor dies seised and a stranger abates 2. Diss â— isin upon Disseisin is when the Disseisor is disseised by another 3. Succession is when the Disseisor is a man of Religion and dies or is deposed and his Successor enters 4. Judgment is when one recovers against the Disseisor 5. Escheat is when the Disseisor dies without Heir or doth Felony whereby he is attaint by which the Lord enters as in his Escheat In all these cases the Disseisee or his Heir shall not have a Writ of Entrie within the degrees of the Per but in the Post because in those cases they are not in by Discent nor by Purchase Entrie ad Communem Legem ALso there is a Writ of Entrie ad Communem Legem which lies where Tenant for term of Life Tenant for term of anothers Life Tenant by the curtesie or Tenant in Dower aliens and dies he in the Revetsion shall have this Writ against whomsoever is in after in the Tenement Entrie in the Case provided A Writ of Entrie in Casu proviso lies if Tenant in Dower alien in fee or for term of life or for anothers life living the Tenant in Dower he in the Reversion shall have this Writ which is provided by the Stat. of Gloc. c. 7. Entrie in Casu consimili A Writ of Entrie in Casu consimili lies where Tenant for life or Tenant by the courtesie aliens in Fee he in Reversion shall have this Writ by the Statute of Westmin 2. cap. 24. Entrie ad Terminum qui praeteriit THe Writ of Entrie ad terminum qui praeteriit lies where a man leases Land to another for term of years and the Tenant holds over his term the Lessor shall have this Writ And if Lands be leased to a Man for term of anothers life and he for whose life the Lands are leased dies and the Lessee holds over then the Lessor shall have this Writ Entrie without Assent of the Chapter A Writ of Entrie sine Assensu Capituli lies where an Abbot Prior or such as hath Covent or common Seal aliens Lands or Tenements of the right of his Church without the Assent of the Covent or Chapter and dies then the Successor shall have this Writ Entrie for Marriage in Speech A Writ of Entrie causa Matrimonii praeloquuti lies where Lands or Tenements are given to a man upon Condition that he shall take the Donor to his wife within a certain time and he does not espouse her within the said term or espouses another woman or makes himself Priest or enters in Religion or disables himself so that he cannot take her according to the said Condition then the Donor and her Heirs shall have the said Writ against him or against whosoever is in the said Land But this Condition must be made by Indenture otherwise this Writ doth not lie And all these and other Writs of Entry may be made in the Per Cui and Post Entrusion ENtrusion is a Writ that lies where a Tenant for Life dies seised of certain Lands or tenements and a Stranger enters he in the Reversion shall have this writ against the Abator or whosoever is in after their Entrusion Also a writ of Entrusion shall be maintainable by the Successour of an Abbot against the Abator who shall enter in Lands or tenements in the time of Vacation that belong to the Church by the Statute of Marlebridge the last Chapter And it seems the difference between an Intrudor and an Abator is this that an Abator is he that enters into Lands void by the death of a Tenant in Fee and an Intrudor is he that enters into Lands void by the death of a Tenant for Life or Years See F. N. B. fol. 203. Entrusion de Gard. ENtrusion de Gard is a Writ which lies where the Heir within age enters in his Lands and holds out his Lord for in such case the Lord shall not have the Writ de Communi Custodia but this Writ of Entrusion of the Ward Old N. B. Enure ENure signifies to take place or effect to be available As a Release shall enure by way of Extinguishment Lit. Cha. Release Equity EQuity is in two sorts and those of contrary effects for the one doth abridge and take from the letter of the Law the other doth enlarge and add thereunto The first is thus defined Equity is the Correction of a Law generally made in that part wherein it fails which correction of the general words is much used in our Law As for example When an Act of Parliament is made that whosoever doth such a thing shall be a Feion and shall suffer death yet if a Mad-man or an Infant that hath no discretion do the same they shall be no Felons nor suffer death ther fore Also if a Statute were made That all persons that shall receive or giv â— me â— t and drink or other succor to any that shall do any such thing shall be accessary to his Offence and shall suffer death if they knew of the Fact yet one doth such an act and comes to his wife who knowing thereof doth receive him and gives him meat and drink she shall not be Accessary nor Felon for by the generality of the said words neither the M â— d-man Infant nor Wife were included in the intent of the Law And thus Equity doth correct the generality of the Law in those cases and the general words are by Equity abridged The other Equity is defined to be an Extension of the words of the Law to Cases unexpressed yet having the same reason So that when the words enact one thing they enact all other things that are of like degree As the Statute which ordains That in an Action of Debt against
is a Writ that lies where the Tenant holds of the King in chief as of his Crown and he is deforced that is put out of his Land then he shall have this Writ and it shall be Close and shall be pleaded in the Common Pleas. Also if any Tenant that holds of any Lord be deforced it behoves him to sue a Writ of Right Patent which shall be determined in the Lords Court But if the Land be holden of the King the Writ of Right Patent shall be brought to the Kings Court and the Writ may be removed from the Lords Court unto the County by a To â— t and from the County into the Common Place by a Pone Look therefore before in the Title Drolt Praecipe PRaecipe are of divers sorts Quod reddat terras as dower formedon c. debitum bona catalla Quod teneat conventionem Quod faciat sectam ad molendinum Quod permittat c. Preignotary PReignotary is compounded of two Latine words prae and Notarius and is used in our Law for the chief Clerks of the Kings Courts whereof there is one in the Kings Bench and three in the Common Pleas. He in the Kings Bench records all Actions Civil sued in that Court and they of the Common Pleas inrol all Declarations Pleadings and Iudgments and make out all Iudicial Writs they Inroll all Fines and Recognisances and exemplifie all Records the same Term before the Rolls are delivered out of their hands In 15 E. 4. 26 b. This Officer is called Praesignator And one of the three in the Common Bench Praesignator pauperum Premisses PRemisses See Habendum Praemunire PRaemunire is a Writ that lies where any man sues another in the Spiritual Court for any thing that is determinable in the Kings Court for which great punishment is ordained by divers Statutes viz. that he shall be out of the Kings protection and put in Prison without Bail or Mainprise till he have made Fine at the Kings Will and that his Lands and Goods shall be forfeited if he come not within two months And his Provisors Procurators Atturneys Executors Notaries and Maintainers shall be punished in the same manner Therefore look the Statute Also some say if a Clerk sue another man in the Court of Rome for a thing Spiritual where he may have remedy within the Realm in the Court of his Ordinary that he shall be within the case of the Statute And upon divers other offences is imposed by Statutes lately made the Penalty that they incur who are attainted in Praemunire As by 13 Eliz. cap 8. they who are aiding to make a corrupt Bargain whereupon Vsury is reserved above x. l. in the hundred for a year c. Prender PRender is the power or right of Taking a thing before it be offered from the French prendre i. accipere Prescription PRescription is when a Man claims any thing because he his Ancestors or Predecessors or they whose Estate he hath have had or used it all the time whereof no memory is to the contrary But one may not prescribe against a Statute except he have another Statute that serves for him Presentment PResentment is of two significations One is to a Church as when a man hath right to give any Benefice Spiritual and names the person to the Bishop to whom he will give it and makes a Writing to the Bishop for him that is a Presentation or Presentment If divers Coheirs cannot agree in Presentment the Presentee of the eldest shall be admitted But if Ioyntenants and Tenants in common agree not within six moneths the Bishop shall present by lapse The other is a Presentment or Information by a Iury in a Court before any Officer who hath Authority to punish any offence done contrary to the Law Pretensed Right or Title PRetensed Right or Title is where one is in possession of Lands or Tenements and another who is out claims it and sues for it now the pretensed Right or Title is said in him who so doth sue claim And if he afterward come to the possession his Right or Title is annexed to the Land and possession and not then called Right Primer Seisin PRimer Seisin is used in the Common Law for a branch of the Kings Prerogative by which he hath the first possession that is the intire Profits for a year of all the Lands and Tenements whereof his Tenant that held of him in capite died seised in his Demesne as of Fee his Heir then being at full age and thus the King takes in lieu of the intire Profits which he may take if he will until Livery be sued or at the least tendered Prerog Reg. c. 3. Stamf. f. 11. B. See the Stat. 12 Car. 2. c. 24. Prisage PRisage is that part or portion that belongs to the King of such Merchandizes as are taken at Sea by way of lawful Prise And this word you shall find in the Statute of 31 Ell â— cap. 5. Prisage of Wines PRisage of Wines mentioned in the Stat. 1 H. 8. c. 5. is a custom by which the King out of every Bark laden with Wine under 40 Tun claims to have two Tun at his own price Privie or Privities PRivie or Privities is where a Lease is made to hold at will for years for life or a Feoffment in fee and in divers other cases now because of this that hath passed between these parties they are called Privies in respect of strangers between whom no such Conveyantes have been Also if there be Lord and Tenant and the Tenant holds of the Lord by certain Service there is a Privity between them because of the Tenure and if the Tenant be disseised by a stranger there is no Privity between the Disseisor and the Lord but the Privity still remains between the Lord and the Tenant that is disseised and the Lord shall avow upon him for that he is his Tenant in right and in Iudgment of the Law Privies are in divers sorts as namely Privies in Estate Privies in Deed Privies in Law Privies in Right and Privies in Blood Privies in Estate is where a Lease is made of the Mannor of Dale to A for life the Remainder to B in fee there both A and B are Privies in Estate for their Estates were both made at one time And so it is in the first case here where a Lease is made at will for life or years or a Feoffment in fee the Lessees or Feoffees are called Privies in Estate and so are their Hairs c. Privies in Deed is where a Lease is made for life and afterward by another Deed the Reversion is granted to a stranger in fee this Grantee of the Reversion is called Privy in Deed because he hath the Reversion by Deed. Privy in Law is where there is Lord and Tenant the Tenant leases the Tenancy for life and dies without Heir and the Reversion escheats to the Lord he is said Privy in Law because he hath his Estate
same Statute And when any Waste or destruction is made by the Recognisee his Executors or him that hath his Estate the Recognisor or his Heirs shall have the same Law as is before said of the Tenant by Elegit If Tenant by Statute-Merchant hold over his term he that hath right may sue against him a Venire fac ' ad computandum or else enter immediately as upon Tenant by Elegit See the Statute 11 E. 1. and of Acton Burnel and 13 E. 1. De Mercatoribus Starr-chamber STarr-chamber was an High Court held in the Star-Chamber at Westm before the King Peers and Iudges abolished per Stat. 17 Car. cap. 10. Sterbrech STerbrech alias Strebrech is the Breaking Obstructing or or making less of a Way Stilyard STilyard is a word used in the Statute of 22 H. 8. chap. 8. where the Ha â— se-Merchants are called the Merchants of the Sti yard which is a place in London where these Merchants or their Brotherhood had their thode And the House is said to be so called because bullt upon a Court-yard near the Thames where Steel was wont to be much sold Sub poena SUb poena is the name of a Writ made in divers Courts of Law and Equity viz. in Chancery and all other Courts to summon Witnesses and in that Court and in the Exchequer in Law and Equity and in the Common Pleas upon Informations qui tam c. to summon Defendants and in the Crown Office upon Informations Suffragan SUffragan is a word used in the Statut of 26 H. 8. cap. 14. and signifies a Titular Bishop appointed to aid and assist the Bishop of the Diocess in his Spiritual Function And he is called Suffraganeus in Latin because by his Suffrage Ecclesiastical Causes are to be adjudged Suggestion SUggestion is an Information drawn in Writing shewing cause to have a Prohibition which is left in Court and is mentioned in the Statute 2 E. 6. cap. 13. Sumage SUmage seems to be Toll for Carriage on Horseback Cro. Jurisd f. 191. Summons ad Warrantizandum c. SUmmons ad Warrantizandum and Sequatur sub suo periculo See of them after in the Title Voucher Supercargo ou Supracargo SUpercargo ou Supracargo is a Factor or Agent which goes with a Ship beyond the Seas by order of the Owner of the Wares therein and disposes thereof And the Master of the Ship is obliged to perform the Orders of such Factor or Supereargo Supersedeas SUpersedeas is a Writ that lies in divers cases as appears by F. N. B. f. 236. A. but it is always a command to stay some ordinary Proceedings in Law which ought otherwise to proceed Supplicavit SUpplicavit is a Writ issuing out of the Chaucery directed to the Sheriff and some Iustices of the Peace in the County or to one or more Iustices without the Sheriff for taking Surety of such a one as it is prayed against that he should keep the Peace and this is by the Statute of 1 E. 3. c. 16. See F. N. B. f. 80. C and see the Stat. 21 Jac. c. 8. Sur cui in vita SUr cui in vita is a Writ that lies for the Heir of an Inheritrix whose Husband aliened the Inheritance of his Wife and the Wife died before she recovered in a Cui in vita See for this F. N. B. 194. C. Surplusage SUrplusage comes of the French Surplus that is an Overplus and signifies in the Law an Addition of more then needs which sometimes is the cause that a Writ shall abate but in pleading many times it is absolutely void and the residue of the Plea shall stand good Surrejoynder SUrrejoynder is an Answer to the Defendants Rejoynder or a second inforcing of the Plaintiffs Declaration Surrender SUrrender is the Consent of a particular Tenant that he in the Reversion or the Remainder shall presently have the possession And this is either Surrender in Deed by an actual yielding up of the Estate or in Law by the taking of the new Lease or such other act See of this Perkins c. 9. Also it is an act done to the Lord of a Mannor or his Steward of a Copy-hold Estate or done by special Custom of some Mannors to two Copy-hold Tenants of Mannors which surrender ought to be presented at the next Court Baron Swainmote SWainmote or Swannimote is a Court held thrice in a year within a Forrest by the Statute of Charta de Foresta c. 8. for all the Free-holders of the Forrest for so much the Etymology of the word imports Mote in the Norman speech signifying a Court and Swain in the Saxon a Charterer or Free-holder so that Swannimore is the Court of the Free-holder See of this Manwoods Forrest Laws cap. 23. f. 217 c. at large Swainmote in this Court Presentments of Offences done to the Forrest or Game are made given into the Iustices in Eyre Syb Som. SYb Som i. Peace and Security L. L. Eccles. Canuti Regis c. 17. Symony SYmony is an unlawful Contract made to have a man presented to a Rectory or Vicarage which is prohibited by Stat. 31 Eliz. cap. 6. T. Fee-tail TO hold in the Tail is where a man holds certain Lands or Tenements to him and to his Heirs of his Body begotten If the Land be given to a man and to his Heires males and he hath Issue male he hath Fee-simple which was adjudged in Parliament But where Lands are given to a man and to his Heirs males of his body begotten then he hath Fee-tale and the issue Female shall not inherit as appears in the 14 year of E. 3. in an Assise 18 E. 3. 45. Fee-tail is where the Land is given to a Man and the Heirs of his Body begotten and he is called Tenant in Taile general If Lands are given to the Husband and Wife and the Heirs of their two Bodies begotten then the Husband and the Wife are Tenants in Tail especial And if one of them die he that survives is Tenant in Tail after possibility of issue extinct and if he make Waste he shall not be impeached for it See Littleton But if the King give Lands to a man to his Heires males and the Donee dies without issue male then the Cousin collateral of the Donee shall not inherit but the King shall re-enter and so it was adjudged in the Exchequer-chamber 18 H. 8. in an Information made against the Heir of Sir T. Lovel Knight Tail after possibility TO hold in the Tail after possibility of Issue extinct is where Land is given to a Man and his Wife and the Heirs of their two Bodies engendred and one of them overlives the other without issue between them begotten he shall hold the Land for term of his own life as Tenant in the Tail after possibility of Issue extinct and notwithstanding that he do Waste he shall never be Impeached of it And if he alien he in the Reversion shall not have a Writ of Entry in consimili casu
See Yard-land Viscount VIscount is either the name of a degree or State of Honour under an Earl and above a Baron or else the name of a Magistrate and an Officer of great Authority whom we commonly call Sheriff or to speak more truly Shire reve and was at the first called Shire gereve that is the Keeper of the Shire or the Reeve or Ruler of the Shire for Gereve is derived of the Saxon word Gerefa i. a Ruler And hereof comes Portreve or Portgreve a name in old time given to the head Officer of a Town and signifies the Ruler of the Town for that Port coming of the Latine word Portus signifies a Port-town and Greve being derived as aforesaid signifies a Ruler so that Portgreve or as we now shorter speak a Portreve is the Ruler of the Town And thus was the Head Officer or Governor of the City of London long since before they had the name of Mijor or Bayliffs called as it doth appear in divers old Menuments but chiefly in the Saxon Charter of William the Conquerour which begins thus William the King greeteh William the Bishop and Godfrey the Portreve and also the Citizens that in London be c. So also they of Germany from whom we and our Language first came call one Governor Burgreeve another Margreeve and another Lansgreeve with such like c. Thus much is said only to shew the right Etymon and Antiquity of the word Sheriff to which Officer our Common Law hath always given so great Trust and Authority as to be a special Preserver of the Peace And therefore all Obligations that he takes to that end are Recognisances in Law He is a Iudge of Record when he holds the Leets or Turns which are Courts of Record Also he hath the Execution and Return of Writs and impannelling of Iuries and such like c. Uncore prist UNcore prist is a Plea for the Defendant in Debt upon an Obligation who being sued because he did not pay the Debt at the day pleads to save the Forfeiture that he rendred the money at the day and place and that no Body was there to receive it and says over That he is yet ready to pay it And where a man ought to plead over that he is yet ready and where not see in Perkins sect 783 784. Coke 9 book fol. 79. a b in Peyto's Case Volunt VOlunt is when the Tenant holds at the Will of the Lessor or Lord and that is in two manners One is when I make a Lease to a man of Lands to hold at my Will then I may put him out at my pleasure but if he sow the Ground and I put him out then he shall have his Corn with egress and regress till it be ripe to cut and carry it out of the ground Such Tenant at Will is not bound to sustain and repair the House as Tenant for years is But if he make wilful waste the Lessor shall have against him an Action of Trespass Also there is another Tenant at Will of the Lord by Copy of Court-Roll according to the Custome of the Mannor and such a Tenant may surrender the Land into the hands of the Lord according to the Custom to the use of another for Life in fee or in tail and then he shall take the Land of the Lord or his Steward by Copy and shall make Fine to the Lord. But if the Lord put out such a Tenant he hath no remedy but to sue by Petition And if such a Tenant will implead another of the Lands c. he ought to enter a Plaint in the Court and shall declare in the nature of what Writ he will as the case lies Voucher VOucher is when a Praecipe quod reddat of Land is brought against a man and another ought to warrant the Land to the Tenant then the Tenant shall vouch him to Warranty and thereupon he shall have a Writ called Summoneas ad Warrantizandum And if the Sheriff return that he hath nothing by which he may be summoned then there shall go forth a Writ called Sequatur sub suo periculo And when he comes he shall plead with the Demandant And if he come not or if he come and cannot bar the Demandant then the Demandant shall recover the Land against the Tenant and the Tenant shall recover as much Land in value against the Vouchee and thereupon shall have a Writ called Capias ad Valentiam against the Vouchee See more of Voucher before in the Title of Garranty Uses USes of Land had beginning after the Custom of Property began amongst men as where one being seised of Lands in Fee-simple made a Feoffment to another without any Consideration but only meaning that the other should be seised to his Use and that he himself would take the Profits of the Lands and that the feoffee should have the Possession and Franktenement thereof to the same use c. Now after this upon good Considerations and to avoid divers Mischiefs and Inconveniences was the Statute of An. 27 H. 8. c. 10. provided which unites the Use and possession together so that he who hath the Use of the Land hath the Possession thereof according to the Vse he hath therein by virtue of that Statute Usurpation USurpation is most commonly used when any one presents a Rector or Vicar to a Church without a good Title Stat. Westm 2. cap. 5. Co. 6. Rep. 51. 11 Rep. 33. Usury USury is a Gain of any thing above the Principal or that which was lent exacted only in Consideration of the Loan be it as well Corn Meat Apparel Wares or such like as Money And here much might be said and many Cases put concerning Vsury which of purpose I omit only I wish they who account themselves Religious and good Christians would not deceive themselves by colour of the Statute of Usury because the Statute saith that it shall not be lawful for any to take above xi pound in the C. l. for a year c. whereby they gather though falsly that they may therefore take six pounds for the Loan of an Hundred pounds with a good Conscience because the Statute doth after a sort dispense with it because it doth not punish such taking For God will have his Decrees to be kept inviolable who saith Lend looking for nothing thereby c. by which words is excluded either the taking of vi l. v. l. yea or one peny above the Principal But rather let such think that Statute was moved upon like cause that moved Moses to give a Bill of Divorce to the Israelites as namely to avoid a greater mischief and for the hardness of their hearts And the Statute of 21 Jac. cap. 17. hath expresly Ordained That no word in that Law shall be Construed and Expounded to allow the practice of Vsury in point of Religion or Conscience By the Statute of 13 Eliz. c. 8. the Loan of Money was at 10 l. per Cent. by
Lease to any other the Executors shall have the Lease because they are his Assignees in Law And so it is in other cases Assise ASsise is a Writ that lies where any man is pur out of his lands tenements or of any profit to be taken in a certain place and so disseised of his Free-hold Free-hold to any man is where he is seised of lands and tenements or profit to be taken in Fee-simple Fee-tail for term of his own or another mans life But Tenant by Elegit Tenant by Stat Merchant and Stat. Staple may have Assise though they have no Free-hold and this is ordained by divers Statutes In an Assise it is needful always that there be one Disseisor and one Tenant or otherwise the writ shall abate Also where a man is disseised and recovers by Assise of Novel Disseisin and afterward is again disseised by the same Disseisor he shall have against him a Writ of Redisteisin directed to the Sheriff to make inquisition and if the Redisseisin be found he shall be sent to prison Also if one recover by assise of Mortduncaster or by other Iury or default or by reddition and if he be another time disseised then he shall have a Writ of Post Disseisin and he who is taken and imprisoned for Redisseisin shall not be delivered without special commandment of the King See the Statutes Merton c. 3. Marlebridge cap. 8. and Westminster 2. c. 26. There is also another assise called Assise of Fresh force and lies where a man is disseised of tenements which are devisable as in the City of London or other Boroughs or Towns that are Franchises then the Defendant shall come unto the Court of the said Town and enter his Plaint and shall have a Writ directed to the Mayor or Batleffs c. and thereupon shall pass a Iury in manner of Assise of Novel Disseisin But he must enter his Plaint within forty days as it is said or otherwise he shall be sent to the Common Law And if the Officers delay the Execution then the Plaintiff shall have another Writ to have Execution and a Sicut alias and a Pluries c. See Littleton cap. Rents Assise de darrain Presentment ASsise de darrain Presentment See Quare impedit Also there is an Assise of Nusance called Assisa Nocumenti Assise of the last Presentation Assise de Mortdancestor ASsise de Mortdancastor Look in the title of Cosinage Association ASsociation is a Patent sent by the King either of his own motion or at the suit of the party Plaintiff to the Iustices of Assise to have other persons associated to them to take the Assise And upon this Patent of Association the King will send his Writ to the Iustices of Assise by it commanding them to admit them that are so sent If the King makes three Iustices of Assise and afterwards one of them dies there the King may make a Patent of Association to another to associate him to the two in place of him that is dead and a Writ which shall be close directed to the two Iustices that are alive to admit him F. N. B. 185. Assoil ASsoil comes from the Latin absolvere and signifies to deliver or discharge a man of an Excommunication and so it is used by Stamford in his Plcas of the Crown lib. 2. cap 18. fol. 71. b. Assumpsit See Nude Contract ASsumpsit is a voluntary promise made by word by which a man assumes and takes upon him to perform or pay any thing to another This word contains in it any verbal Promise made upon consideration which the Civilians express by several words according to the nature of the Promise calling it sometimes Pactum Promissionem other times Sponsionem Pollicitationem or Constitutum Attach ATtach is a Taking or Apprehending by Command or Writ There are some differences between an Arrest and an Attachment for an Arrest proceeds out of the inferiour Courts by Precept and Attachment out of the Superior Courts by Precept or Writ Lamb. Eiren. lib. 1. cap. 16. Also an Arrest lies only upon the Body of a man whereas an Attachment is sometimes upon the Goods only as Kitch fol. 279. b. saith a man may attach a Cow and in another case that a man may be attached by an hundred Sheep and it is sometimes awarded upon the Body and Goods together at one and the same Attachment differs from a Capias for Kit. fol. 79. b. hath these words Note that in a Court of Baron a man shall be attached by goods and a Capias shall not go out thence By which it seems Attachment is more general extending to the taking of Goods where a Capias extends to the taking of the Body only An Attachment differs from a Distress as appears by Kit. fol. 78. a. where he saith Process in Court Baron is Summons Attachment and Distress which are Process at the Common Law There is also an Attachment of Priviledge and this is twofold either giving power to apprehend a man in a place priviledged or by vertue of an Office or Priviledge as to call another to that Court to which he himself belongs and in respect of which he is priviledged New Book of Entries fol. 431. a. And there is a Process called a Foreign Attachment which is used to attach the goods of Foreigners found within any Liberty or City for a Debt due to the party himself And by the custome of some places a man may attach goods in the hands of a stranger As if A. ows to B. ten pounds and C owes A. another Summe of money B. may attach the goods of A. in the hands of C. to satisfie himself in part or all as the Debt is Also there is Attachment of the Forest which is a Court there held every forty days throughout the year In which the Verderors have not any authority but to receive and inrol the Attachment of offenders against Vert and Venison taken by the other Officers that they may be presented at the next Iustice seat in Eyre Manwood part 1. pag. 93. cap. 22. Attainder ATtainder is a Conviction of of any person of a Crime or fault whereof he was not convict before As if a man have committed Felony Treason or such like and thereof is convicted arraigned and found guilty and hath Iudgment then he is said to be Attainted And this may be two ways the one upon Appearance the other upon default The Attainder upon Appearance is by Confession Batrail or Verdict the Attainder upon Default is by Process until he be outlawed Attaint ATtaint is a Writ that lies where false Verdict is given by twelve men and Iudgment given thereon then the party against whom they have passed shall have a Writ against the twelve men and when they are at issue it shall be tried by twenty four Iurors and if the false Verdict be found the twelve men are attaint and then the Iudgment shall be That their Meadows shall be eyred their Houses broken down their
Woods turned up and all their Lands and Tenements forfeited to the King But if it pass against him that brought that Attaint he shall be Imprisoned and grievously ransomed at the Kings will See the Statute 23 Hen. â— cap. 3. Attaint also is when Iudgment is given in Treason or Felony Attendant ATtendant is where one ows a duty or service to another or as it were depends upon another As if there be Lord Mesne and Tenant the Tenant holds of the Mesne by a peny the Mesne holds over by two pence the Mesne releases to the Tenant all the right which he hath in the Land the Tenant dies his wife shall be endowed of the land and she shall be Attendant to the Heir of the third part of one peny and not of the third part of two pence for she shall be endowed of the best possession of her husband Also where the wife is endowed by the Gardian she shall be attendant to the Gardian and to the Heir at his full age Attournment ATtournment is when one is Tenant for term of Life and he in Reversion or Remainder grants his right or estate to another then it behoves the Tenant for life to agree thereto and this agreement is called an Attournment For if he in the Reversion grant his estate and right to another if the Tenant for life attourn not nothing passes by the grant But if it be granted by Fine in Court of Record he shall be compelled to attourn And see thereof after Title Quid juris c â— mat and in Littl. lib. 3. cap. 10. Atturney ATturney is one appointed by another man to do something in his stead whom West hath defined thus Attorneys are such persons as by consent commandment or request take care of see to and undertake the Charge of other mens Business in their absence And where in ancient time those of authority in Courts have had it in their dispose when they would permit men to appear or sue by any other than themselves as appears by F. N. B. 25. in the Writ of Dedimus potestatem Ä‘ Attornato faciendo where it is shewed that men were driven to procure the Writs or Letters Patents of the King to appoint Atturneys for them it is now provided by divers Stat. that it shall be lawful so to do without any such circuity And there is great diversity of Writs in the table of the Register by which the King commands his Iudges to admit of Atturneys By which means at last there were so many unskilful Atturneys and so many mischiefs by them that an Act was 4 H. 4 c. 18. ordained for their restraint that the Iustices should examine them and put out the unskilful and An. 33 H. 6. c. 7. that there should be but a certain number of them in Norfolk and Suffolk In what cases a man at this day may have an Atturney and in what not see F. N. B. in the place before cited Atturney is either general or special Atturney general is he that is appointed to all our Affairs or Suits as the Atturney general of the King Atturney general of the Duke Cromp. 105. Atturney special or particular is he that is imploi â— d in one or more things particularly specifyed Atturneys general are made two ways either by the Kings Letters Patents or by our own appointment before Iustices in Eyre in open Court See Glan lib. 11. cap. 1. Brit. 126. Audience Court AUdience Court Curia audientiae Canturiensis is a Court belonging to the Archbishop of Canterbury of equal Authority with the Arches Court though inferior both in dignity and antiquity Of which you may read more in a Book entituled De antiquitate Ecclesiae Britannicae historia Audita Querela AUdita Querela is a Writ that lies where one is bound in a Statute-Merchant Statute-Staple or Recognisance or where Iudgment is given against him for Debt and his body in Execution thereupon then if he have a Release or other matter sufficient to be discharged of Execution but hath no day in Court there to plead it then he shall have this writ against him which hath recovered or against his Executors Auditor AUditor is an Officer of the King or some other great person who by yearly examining the Accounts of all under-Officers accountable makes up a general Book that shews the difference between their Receipts or Charge and their Payments or Allowances See the Statute 33 H. 8. c. 33. There is also another sort of Auditor assigned by any Court wherein a Defendant is adjudged to Account who take the Account and put it in form into Writing and then it is inrolled and the Plaintiff pleads to it and the Defendant replies if occasion be and so go to issue upon divers points and particulars of the Account Average AVerage is that Service which the Tenant owes his Lord to be done by the Beasts of the Tenant and it seems to be deriv'd from the word Averia because it is the Service which the Tenants Beasts perform for the Lord by carriage or otherwise This word also hath another signification and is much used in the Statute 32 H. 8. c. 14. for a certain Contribution which Merchants and others pay proportionably towards their losses that have their goods cast out in a tempest for the saving of the Ship or of the goods or lives of them that are therein Averment AVerment is where a man pleads a Plea in Abatement of the Writ or Bar of the Action which he saith he is ready to prove as the Court will award This offer to prove the Plea is called an Averment Also there is a Writ called a Writ of Averment which is made out of any of the Law Courts of Westminster-Hall when the Action is depending when the Sheriff upon a Distringas returns small issues then the Iudges of Assise may cause it to be enquired by a Iury if the Sheriff could return more issues of the Lands of the Defendant and if it be found he may then he must return more issues to force the Defendant to appear to the Plaintiffs suite or to do what the Distringas required him to do Averpeny AVerpeny is to be quit of divers sums of money for the Kings arrerages Augmentation AUgmentation was the name of a Court erected in the 27 year of King Henry the eighth And the cause thereof was that the King might be iustly used touching the profits of such Religious Houses and their Lands as were given him by Act of Parliament the same year not printed For dissolving which Court there was an Act made in the Parliament held in the first year of the Reign of Queen Mary Sess 2. cap. 10. which she afterward put in execution by her Letters Patents The name of the Court arises from this That the Revenues of the Crown were so much augmented by the Suppression of the said Houses as the King reserved to the Crown and neither gave nor sold to others But the Office of
Money is not to be accounted Goods or Catals nor Hawks nor Hounds for they are ferae naturae But it seems that Money is not a Chattel because it is not in it self valuable but rather in imagination than in Deed. Catals are either real or personal Catals real are either such as do not immediately appertain to the person but to some other thing by way of dependance as a Box with writings of Laud the body of a Ward the Apples upon the tree or the Tree it self growing upon the ground Crom. fol. 33. b. Or else such as are issuing out of some thing immovable to the person as a Lease for Rent or term of years Personal may be so called in two respects The one because they belong immediately to the person of a man as a Horse c. The other because when they are wrongfully detained we have no other means for their recovery but personal Actions The Civilians comprehend these things and also Lands of all natures and tenures under the word Goods which are by them divided into Moveable and Immovable See Bract. lib. 3. c. 3. num 3 4. Cepi corpus CEpi corpus is a Return made by the Sheriff that upon an Exigend or other Writ he has taken the body of the party F N. B. fol. 26. Certificate CErtificate is a Writing made in some Court to give notice to another Court of something done there as a Certificate of the cause of Attaint is a transcript briefly made by the Clerks of the Crown Clerks of the Peace or Clerks of Assise to the Court of Kings Bench containing the tenor and effect of every Indictment Outlawry or Conviction and Clerk attainted made or declared in any other Court But note that this Certificate ought to be made by him that is the immediate Officer to the Court and therefore if the Commissary or Official of the Bishop certifie an Excommunication in bar of an action at the Common Law this is not good as was resolved in Coke lib. 8. fol. 68. but such Excommunication ought to be certified by the Bishop himself Yet the Certificate of an Excommunication by special Commissioners Delegates under their Common Seal was allowed and held good enough in the Common-place Dyer fol. 371. pla 4. Certification of Assise CErtification of Assise of Novel disseisin c. is a Writ awarded to re-examine or review a matter passed hy Assise before any Iustices and is used when a man appears by his Bailiff to an assise brought by another and loses the day and having some other matter to plead farther for himself as a Deed of Release or c. which the Bailiff did not plead or might not plead for him desires a better Examination of the Cause either before the same or other Iustices and obtains Letters Pa â— ents see their form F. N. B. 181. and then brings a Writ to the Sheriff to call the party for whom the Assise had passed and also the Iury which was impannelled upon the same Assise before the said Iustices at a day and place certain And it is called a Certificate because therein mention is made to the Sheriff that upon the parties complaint of the defective Examination or doubts remaining yet upon the Assise passed the King hath directed his Letters Patents to the Iustices for the better certifying of themselves whether all the points of the said Assise were duly examined or not Certiorari CErtiorari is a Writ that lies where a man is impleaded in a base Court that is of Record and he purposes that he may not have equal Iustice there then upon a Bill in the Chancery comprising some matter of Conscience he shall have this Writ to remove all the Record into the Chancery there to be determined by Conscience but if he prove not his Bill then the other party shall have a Writ of Procedendo to send again the Record into the base Court and there to be determined And it lies in many other cases to remove Records for the King as Indictments and others This Writ is also granted out of the Court of Kings Bench or Common Pleas to remove any Action thither out of Inferior Courts of Record and so the Plaintiff must declare and proceed in the Superior Court Also to certifie original writs or proceedings out of any Courts of Record into the Kings Bench where nullum tale Recordum is pleaded Also upon Writs of Error of a Iudgment in the Common Pleas each party may have this Writ to bring any of the Proceedings into the Kings Bench upon alledging Diminution as appears Coke Entr. 232 233 242. 2 Cro. 131 479. Cessavit CEssavit is a Writ that lies where my very Tenant holds of me certain Lands or Tenements yielding certain Rent by the year and the Rent is behind for two years and no sufficient Distress may be found upon the Land then I shall have this Writ by which I shall recover the Land But if the Tenant come into the Court before Iudgment given and tender the Arrearges and Damages and find Surety that he shall cease no more in payment of the said Rent I shall be compelled to take the Arrerages and the Damages and then the Tenant shall not lose the Land The heir may not maintain this Writ for Cessure made in the time of his Ancestor And it lies not but for Annual service as Rent and such other and not for Homage and Fealty Also there is another Writ called Cessavit de cantaria which lies where a man gives Land to a House of Religion to find for the soul of him his ancestors and his heirs yearly a Candle or Lamp in the Church or to say Divine Service feed the poor or other Alms or to do some other thing then if the said Services be not done in two years the Donor or his Heirs shall have this Writ against whosoever holds the things given after such Cessure See the Statute W. 2. cap. 41. Cession CEssion is when an Ecclesiastical Person is created Bishop or when a Parson of a Parsonage takes another Benefice without dispensation or otherwise not qualified c. In both cases their first Benefices are become void and are said to become void by Cession And to those that he had who was created Bishop the King shall present for that time whosoever is Patron of them And in the other case the Patron may present See 41 E. 3. 5. 11 H. 4. 37. Cestuy a que vie cestuy a que use CEstuy a que vie is he for whose life another holds an estate and cestuy a que use is he who is a Feoffee for the use of another Challenge CHallenge is an Exception taken either against Persons or Things Persons as in an Assise the Iurors or any one or more of them or in case of Felony by the Prisoner at the Bar against Things as a Declaration Old N. B. 76. Challenge made to the Jurors is either made to the Array or
Lessee pays the Rent to the Lessor and he receives it and puts it in his purse and afterwards upon review of it at the same time he finds that he hath received some counterfeit pieces aud thereupon refuses to take away the Money but re-enters for the Condition broken there his Entry is not lawful for when he hath accepted the Money this was at his peril and after this allowance he shall not take exception to any of it Collateral COllateral is that which comes in or adheres to the side of any thing as Collateral Assurance is that which is made over and beside the Deed it self For example if a man covenants with another and enters Bond for the performance the Bond is called Collateral Assurance because it is external and without the nature and essence of the Covenant And Crompton fol. 185. saith that to be subject to feeding the Kings Deer is collateral to the soil within the Forest In like manner we may say that the liberty to pitch Sheds or Standing for a Fair in the soil of another man is collateral to the land The private Woods of a common person within the Forest cannot be cut down without the Kings license for it is a Prerogative collateral to the soil Man part 1. pag. 66. Collateral Warranty See tit Warrantie Collation COllation is properly the bestowing of a Benefice by the Bishop that hath it in his own Gift or Patronage and differs from Institution in this for that Institution into a Benefice is performed by the Bishop at the motion and Presentation of another who is Patron of the same Church or hath the Patrons right for that time Yet Collation is used for Presentation in 25 E. 3. Stat. 6. and there is a Writ in the Regist 31. b. called De Collatione facta uni post mortem alterius c. directed by the Iustices of the Common Pleas commanding them to direct their Writ to the Bishop for the admitting a Clerk in the place of another presented by the King who during the Suit between the King and the Bishops Clerk deceased for judgment once passed for the Kings Clerk and he dying before he be admitted the King may give his Presentation to another Collusion COllusion is where an action is brought against another by his own agreement if the Plaintiff recover then such Recovery is called by Collusion And in some cases the Collusion shall be enquired of as in Quare impedit and Assise and such like which any Corporation or Body politick brings against another to the intent to have the Land or Advowson whereof the Writ is brought in Mortmain But in Avowry nor in any Action personal the Collusion shall not be inquired See the Stat. of Westm 2. c. 32. which gives the Quale jus and enquiry in such cases Colour COlour is feigned matter which the Defendant or Tenant uses in his barre when an Action of Trespass or an Assise is brought against him in which he gives the Demandant or Plaintiff a Shew at first sight that he hath good cause of Action where in truth it is no just cause but only a Colour and Face of a cause and it is used to the intent that the determination of the Action should be by the Iudges and not by an ignorant Iury of twelve men And therefore a Colour ought to be a matter in Law doubtfull to the common people As for example A. brings and Assise of land against B. and B. saith he himself did let the same land to one C. for term of life and afterward did grant the Reversion to A. the Demandant and after C. the Tenant for term of life died after whose decease A. the Demandant claiming the Reversion by force of the Grant whereto C. the Tenant for life did never atturn entred upon whom B. entred against whom A. for that Entry brings this Assise c. This is a good Colour because the common people think the land will pass by the Grant without Atturnment where indeed it will not pass c. Also in an Action of Trespass Colour must be given of which there are an infinite number one forexample In an Action of Trespass for taking away the Plaintiffs Beasts the Defendant saith that before the Plaintiff had any thing in them he himself was possessed of them as of his proper goods and delivered them to A. B. to deliver them to him again when c. and A. B. gave them unto the Plaintiff and the Plaintiff supposing the property to be in A. B. at the time of the gift took them and and the Defendant took them from the Plaintiff whereupon the Plaintiff brings an Action that is a good Colour and a good Plea See more hereof in Doctor and Student l. 2. c. 13. Colour is for this cause viz. where the Defendant justifies by title in trespass or Assize if he do not give the Plaintiff Colour his plea amounteth only to not guilty for if the Defendant hath title he is not guilty 1 Co. 79. 108. Colour of Office COlour of Office is always taken in the worst part and signifies an act evilly done by the countenance of an Office and it bears a dissembling face of the right of the Office whereas the Office is but a vail to the falshood and the thing is grounded upon vice and the Office is as a shadow to it But by reason of the Office and by virtute of the Office are taken always in the best part and where the Office is the just cause of the thing and the thing is pursuing the Office Plo. in Dive Man case sol 64. a. Combat COmbat in our ancient Law was a formal Trial of a doubtful Cause or quarrel by the Sword or Bastons of two Champions See Glanvile l. 14. c. 1. Britton c. 22. and Dyer fol. 301. num 41. Commandment COmmandment is taken in divers significations sometimes for the Commandment of the King when by his mere motion and from his own mouth he casts any man into prison Stamf. Plac. Coron fol. 72. or of the Iustices And this Commandment of the Iustices is either absolute or ordinary Absolute as when upon their own authority or wisdom and discretion they commit any man to prison for a punishment Ordinary is when they commit one rather to be safely kept then for punishmenr and a man committed by such ordinary Commandment is bailable Placit Cor. fol. 73. Commandment is again used for the offence of him that wills another man to transgresse the Law or to do any such thing as is contrary to the Law as Murther Theft or such like Bract. l. 3. tract 2. c. 19. The Civilians call this Commandment Angelus de maleficiis Commendrie COmmandrie was the name of a Manor or chief Messuage with which Lands or Tenements were used belonging to the late Priory of S. John of Jerusalem untill they were given to King Henry the eighth by Statute made in the 32 year of his reign And he who
to shew a difference between them and base Courts as Customary Courts Court-Barons County Courts Pipowders and such like as when a Plea of land is removed out of ancient Demesne because the land is Frank-fee and pleadable at the Common Law that is to say in the Kings Court and not in ancient Demesne or in any other base Court Thirdly and most usually by Common Law is understood such Laws as were generally taken and holden for Law before any Statute was made to alter the same as for example Tenant for life nor for years were not to be punished for doing Waste at the common Law till the Statute of Gloucester cap. 5. which gives an Action of Waste against them But Tenant by the courtesie and Tenant in dower were punishable for Waste at the Common Law that is by the usual and common received Laws of the Realm before the said Statute was made Common Pleas. COmmon Pleas is the Kings Court now held in Westminster-Hall but in ancient time moveable as appears by Magna Charta cap. 11. But Gwyn in the Preface to his Reading saith That untill the time that Henry the third granted the Great Charter there were but two Courts only called the Kings Courts the Exchequer and Kings Bench which was called Aula Regia because it followed the Court and that upon the grant of that Charter the Court of Common Pleas was erected and setled in a place certain viz. at Westminster and therefore all the Writs were made with this Return Quid sit coram Justiciariis meis apud Westmonasteriū where before the partie was commanded by them to appear coram Me vel Justiciariis meis without any addition of any place certain All Civil causes as well Real as Personal are or were in ancient time tried in this Court according to the strict Law of the Kingdom And by Fortescue cap. 50. it seems to have been the only Court for Real Causes The thief Iudge thereof is called The Lord chief Justice of the Common pleas accompanied with three or four Assistants or Associates who are created by the Kings Letters Patents and as it were installed or placed upon the Bench by the Lord Chancellor and Lord Chief Iustice of the Court as appears by Fortescue cap. 51. who expresses all the circumstances of this Admission The rest of the Officers appertaining to this Court are these The Custos Brevium three Prothenataries Chirographer fourteen Philasers four Exigenters Clerk of the Warrants Clerk of the Iuries Clerk of the Treasurie Clerk of the Kings Silver Clerk of the Essoines Clerk of the Outlawries Common day in plea of land COmmon day in plea of land Anno 13 R. 2. Stat. 1. cap. 17. signifies an ordinary day in the Court as Octabis Michaelis Quindena Paschae c. as you may see in the Statute ◠1 Hen. 3. concerning general days in the Bench. Commotes COmmotes seems to be a compound word of the Preposition Con and Motio that is Dictio Verbum and signifies in Wales part of a County or Hundred An. 28 H. 8. cap. 3. It is written Commoithes Anno 4 H. 4. cap. 17. and is used for a Gathering made upon the people of this or that Hundred by Welsh Minstrels Communi Custodia COmmuni Custodia is a Writ which didlie for that Lord whose Tenant holding by Knights service dies his eldest son within age against a stranger who entred the land and obtained the Ward of the body It seems to take name from the common Custome or right in this case which is That the Lord shall have the wardship of his Tenant untill his full age or because that it is common for the recovery both of the Land and Tenant as appears by the form thereof Old N. B. 89. Regist Orig. 161. Compromise COmpromise is a mutual Promise of two or more parties that are at controversie to submit themselves and all differences between them unto the Award Arbitrement or Iudgment of one or more Arbitrators indifferently chosen between them to determine and adjudge upon all matters referred and upon which the parties differ Computation COmputation is used in the Common Law for the true and indifferent Construction of time so that neither the one party shall do wrong to the other nor the determination of times referred at large be taken one way or other but computed according to the just censure of the Law As if Indentures of Demise are ingrossed bearing date the eleventh day of May 1665. to have and to hold the land in S. for three years from henceforth and the Indentures are delivered the fourth day of June in the year aforesaid In this case from henceforth shall be accounted from the day of the Delivery of the Indentures and not by any computation from the Date And if the said Indenture be delivered at four of the clock in the afternoon of the said fourth day this Lease shall end the third day of June in the third year for the Law in this Computation rejects all fractions or divisions of the day for the incertainty which alwayes is the Mother of contention So where the Statute of Inrollments made Anno 27 Henr. 8. cap. 16. is That the Writings shall be inrolled within six moneths after the Date of the same Writings indented if such Writings have Date the six months shall be accounted from the Date and not from the Delivery but if they want Date then it shall be accounted from the Delivery Co. li. 5. fol. 1. If any Deed be shewed to a Court at Westminster the Deed by Iudgment of the Law shall remain in Court all the Term in which it is shewed for all the Term in Law is but one day Co. lib. 5. fol. 74. If a Church be void and the true Patron doth not present within six months then the Bishop of the Diocess may collate his Chaplain but these six months shall not be computed according to 28 days to the month but according to the Kalendar And there is great diversity in our common speech in the singular number as a Twelve-moneth which includes all the Year according to the Kalendar and twelve-months which shall be computed according to 28 days to every month See Coke lib. 6. f. 61. b. Computo COmputo is a Writ so called of the effect because it compells a Bayliff Chamberlain or Receiver to yield his Account Old Nat. Brev. fol. 53. It is founded upon the Statute of Westm 2. cap 2. which you may for your better understanding read And it also lies for Executors of Executors 15 Ed. 3. Star de Provis Victual cap. 5. Thirdly against the Gardian in Secage for Waste made in the Minority of the Heir Malbr cap. 17. And see farther in what other cases it lies Reg. Orig. fol. 135. Old N. B. fol. 58. F. N. B. fol. 116. Concealers COncealers are such as find out lands concealed that is such lands as are secretly detained from the King by common persons having nothing to shew
appertaining to Christianity and such as without good knowledge in Divinty cannot be well judged of being heretofore held by Archbishops and Bishops as from the Pope of Rome but after his ejection they held them by the Kings Authority by virtue of his Magistracy as the Admiral of England holds his Court whence it proceeds that they send out their Precepts in their own names and not in the Kings as the Iustices of the Kings Courts do and therefore as the Appeal from those Courts did lie to Rome now by the Stat. of 25 H. 8. cap. 19. it lies to the King in his Chancery Court-Baron COurt-Baron is a Court that every Lord of a Mannor hath within his own Precincts Of this Court and Court-Leet Kitch hath writ a learned Book This Court as it seems in Cok. lib. 4. fol. 26. fs twofold And therefore if a man having a Mannor in a Town grants the inheritance of all the Copyholds therein to another this Grantee may hold a Court for the customary Tenants and accept of Surrenders to the use of others and make Admittances and Grants The other Court is of Free-holders which is properly called the Court-Baron wherein the Suitors that is the Free-holders are Iudges whereas of the other Court the Lord or his Steward is Iudge Coutheutlaugh COutheutlaugh is he that wittingly receives a man utlawed and cherishes or hides him in which case he was in ancient time subject to the same punishment as the man utlawed was Br. l. 3. tr 2. c. 13. nu 2. It is compounded of couth i. known and utlaw outlawed as we now call them Cranage CRanage is a liberty to use a Crane for drawing up wares or Goods out of any Ship Boat or Barge at any Creek or Wharf and to make profit of it It is used also for the Money that is taken for that work Creditor CReansor or Creditor comes of the French Coryance that is Confidence or perswasion and it signifies him that trusts another with any Debt be it money wares or other things This word is used in the Old N. B. in the Writ of Audita querela f. 66. a. Creek CReek is that part of a Haven from whence any thing is landed or disburthened out of the Sea And this word is used in the Stat. 5 El. cap. 5. and 4 H. 4. cap. 20. c. Croft CRoft is a little Close or Pightle adjoyning to an House used either for pasture or arable as the owner pleases And it seems to be derived from the old word Creaft that is Handicraft because these lands are for the most part manured with the best skill of the owner Cucking-stool CUcking-stool is an Engin invented for the punishment of Scolds and unquiet women and it was called in old time a Tumbrell as appears by Lamb. in his Eirenarc l. 1. c. 12. And by the Cases and Iudgements in Eire in the time of Ed. 3. a Pillory and a Tumbrell are appendant to a Leet without which right cannot be administred to the parties within the view Keloway fol. 140. b. And in the Stat. 51 H. 3. ca. 6. it is called Trebuchett Cui ante divortium CUi ante divortium is a Writ that lies when Alienation is made by the husband of the wifes Land and after Divorce is had between them then the woman shall have this Writ and the Writ shall say Whom she before the Divorce might not gain-say Cui in vita CUi in vita is a Writ that lies where a man is seised of Lands in Fee-simple Fee-tail or for life in right of his wife and aliens the same and dies then she shall have this Writ to recover the Land And note That in this Writ her Title must be shewed whether it be of the purchase or inheritance of the woman But if the husband alien the right of his wife and the husband and the wife die the wifes Heir may have a writ of Sur cui in vita Cuinage CUinage See Cuynage Cuntey CUntey cuntey is a kind of Trial as appears by Bract. in these words The matter in this case shall be ended by Cuntey cuntey as between coheirs l. 4. tr 3. cap. 18. And again in the same place In a Writ of right the business shall be determined by cuntey cuntey And thirdly l. 4. tr 4. c. 2. The cause shall be tried by Writ of right neither by Battel nor by the great Assise but by Cuntey cuntey only which seems to be as much as by ordinary Iury. Curfew CUrfew comes of two French words Couvrir to cover and Feu Fire It is used with us for an evening Peal by which the Conqueror willed every man to take warning for the taking up his Fire and putting out his Light So that in many places at this day when a Bell is customably rung toward Bed-time it is said to ring Curfew Curia avisare vult CUria avisare vult is a Deliberation which the Court purposes to take upon any difficult point of a Cause before Iudgement be resolved on For which see the New Book of Entries verbo Curia c. Curia claudenda IS a Writ or Action to compell another to make a Fence or Wall which the Defendant ought to make between his land and the Plaintiffs Currier CUrrier is one that dresses or liquors Leather and is so called of the French word Cuir id est Corium Leather The word is used in all the Statutes made for the good making of Leather as in 1 Jac cap. 22. c. Cursiter CUrsiter is an Officer or Clerk belonging to the Chancery who makes out Original Writs 14 15 H. 8. cap. 8. They are called Clerks of Course in the Oath of Clerks of the Chancery appointed anno 18 Ed. 3. Stat. 5. There are of them twenty four to each of whom is allotted certain Shires into which they make out such Original Writs as are by the subject required and are a Corporation among themselves Curtesie of England CUrtesie of England is where a man takes a wife seised in Fee-simple or Fee-tail general or seised as Heir of the tail special and hath issue by her male or female be the issue dead or alive if the wife die the husband shall hold the Land during his life by the Law of England And it is called Tenant by the Curtesie of England because this is not used in any other Realm but only in England If the Infant was never alive then the husband shall not be Tenant by the Curtesie but if the issue be born alive it suffices If the woman be delivered of a Monster which hath not the shape of mankind this is not Issue in Law But though the issue hath some deformity or defect in the hand or foot and yet hath humane shape if suffices to make the husband Tenant by the Curtesie And in some cases the time of the birth is material and in some not Therefore if a man marries a woman Inheritrix who is great with child by him
and the issue is â—â— pt forth of her belly alive there he shall not be Tenant by the Curtesie for this ought to begin by the issue and consummate by the death of the woman and the Estate of the Tenant by the Curtesie ought to avoid the immediate discent But if the husband hath issue by his wife and after Land discends to the woman be the issue then dead or alive he shall be Tenant by the Curtesie for the time of the birth of the issue is not material if it be in the life of the woman If Lands be given to a woman and the heirs males of her body and she takes an hu â— band and hath issue a daughter and dies the husband shall not be Tenant by the Curtesie for the issue cannot by any possibility inherit the same Tenements Also as a woman alien marrying one of the Kings subjects shall not be endowed in the same manner a man alien shall not be Tenant by the Curtesie Also if a man seised of Land in right of his wife be attainted of Felony having issue and then purchases the Kings Pardon and after his wife dies there he shall not be Tenant by the Curtesie But if he hath issue by his wife born after the Pardon in such case he shall Curtilage CUrtilage is a Garden Yard Field or piece of void ground lying near and belonging to the Messuage West part 2. sect 26. And so it is used 35 H. 8. c. 4. 39 Eliz. 2 Coke l. 6. fol. 64. Customary Tenants CUstomary Tenants are such Tenants as hold by the Custome of the Mannor as their special Evidence Custome CUstome may be defined to be a Law or Right not written which being established by long use and consent of our Ancestors hath been and dayly is put in practice Custome is either general or particular General is that which is current through England whereof you may read in Doctor and Student l. 1. c. 7. many very worthy to be known Particular is that which belongs to this or that County as Gavelkind to Kent or to this or that Lordship City or Town Custome differs from Prescription because Custome is common to many and Prescription by the opinion of some is particular to this or that man Again Prescription may be for a shorter time than Custome sc for five years or less As if a Fine be duly levied of Lands or Tenements and be not gainsaid within five years this is a Bar to all Claim for ever If a man omits his Continual Claim for a year and a day then the Tenant in possession prescribes an Immunity against the Entry of the Demandant and his Heir Fitzh Nat. Brev. 79. Out of our Statutes you may have greater diversity so that this seems to be a true saying That Prescription is an Exception founded upon so long time gone and past as the Law limits for the pursuit of any Action An example may be taken out of the Statute of 1 H. 8. c. 4. which enacts That in all Actions popular information shall be made within three years after the offence committed otherwise to be of no force Custome is also used for the Tribute or Toll that Merchants pay to the King to carry in and out Merchandizes 14 E. 3. Stat. 1. c. 21. In which signification it is called Custuma in Latine Reg. Orig. 129. a. 138. a. And lastly for such Services as Tenants of a Manor owe unto their Lord. Old Book of Entries word Custome See Consuetud Servitiis Custos Brevium CUstos Brevium is the chief Clerk belonging to the Court of Common Pleas or Kings Bench whose office is to receive and keep all the Writs and to put them upon Files every Return by it self and at the end of every Term to receive of the Prothonotaries all the Records of Nisi prius called the Postea The Custos Brevium also makes entry of Writs of Covenant and the Concord upon every Fine and makes out Exemplifications and Copies of all the Writs and Records in his Office and of all the Fines levied The parts of the Fines after they are ingrossed are divided between the Custos Brevium and the Chirographer whereof the Chirographer keeps always the Writ of Covenant and the Note the Custos Brevium keeps the Concord and the Foot of the Fine upon which Foot the Chirographer causes the Proclamations to be indorsed when they are all proclaimed Custos Rotulorum CUstos Rotulorum is he that hath the keeping of the Rolls or Records of the Sessions of the Peace and as some think of the Commission of the Peace it self Lam. l. 4. c. 3. p. 373. He is always Iustice of the Peace and Quorum in the County where he hath his Office and by his Office he is rather termed an Officer or Minister then a Iudge because the Commission of the Peace lays this special Charge by express words upon him That he should cause the Writs Precepts Process and Indictments aforesaid to come and be before him and his fellow-Justices at the days and places aforesaid Gardian of the Spiritualties GArdian of the Spiritualties is he that exercises the spiritual and Ecclesiastical Iurisdiction of any Diocess during the Vacancy of the See the appointment of whom by the Canon Law pertains to the Dean and Chapter lest in the Vacancie of the See some Innovation should be introduced But in Engl. the Archbishop of the Province hath it by Prescription Howbeit many Deans and Chapters a â— M. Gwyn saith in his Preface to his Readings challenge this by ancient Charters from the Kings of this Land Cuynage CUynage is a word used in the Statute of 11 H. 7. c. 4. for the making up of Tinne into that fashion as it is used to be framed for the better carriage of it into other parts D. Dammage DAmmage is part of that which the Iurors are to enquire of in giving their Verdict for the Complainant or Demandant in an Action real or personal For after the Verdict given upon the principal matter they are also asked their Consciences touching Costs which are the Expences of the Suit and Dammages which contain the prejudice which the Plaintiff or Demandant hath suffered by means of the wrong doue him by the Defendant or Tenant And forasmuch as Iustice and Reason require that when the life credit lands goods corruption of bloud and all that a man hath to forfeit in this world are put in peril without just cause but only upon the malicious Accusation of another by Appeal that the Appellee should have satisfaction therefore against his false Accuser and if he hath not sufficient then against him or them that abbetted or procured him to pursue the Appeal Therefore the Common Law gave Dammages to the Defendant in an Appeal and assigned him a means for the recovery thereof when he was acquitted of the Felony as it is 48 E. 3. 22. But forasmuch as the Dammages against the Procurors and Abbettors were to be recovered
dishonour of the King and his Crown and discredit of the Law that any person by birth and oath obliged to the obedience of the King and his Laws should presume of his own authority by Force and strong hand to resist them both by violent Intrusion into the Possession of another before the Law hath decided his Tttle therein therefore divers Statutes have been made for the restraint and reformation of these Abuses as among others the Stat. of 5 R. 2. ca. 7. where the King defends any Entry into Lands or Tenements but in case where Entry is given by the Law and then not with strong hand or with a multitude of people but onely in a peaceable manner See more of this in Po â— lt de pace Reg. f. 34. 35 c. Degrading DEgrading See Disgrading Delegates ARE Commissioners appointed by Letters Patents to determine Appeals upon things testamentary or matrimonial in which sentence was given Demaines DEmaines or Demesnes generally speaking are all the parts of any Mannor which are not in the hands of Freeholders though they be held by Copy-holders Lessees for years or for life as well as Tenants at will And the reason why Copyhold is accounted Demesnes is because they who are Tenants to it are adjudged in Law to have no other Estate but at the will of the Lord so that it is still reputed to be in a manner in the Lords hands yet in common speech that is ordinarily called Demesnes which is neither free nor copy And this word Demesne is sometimes used in a more special signification and is opposite to Frank-fee as those Lands which were in the possession of Edward the Confessor are called Ancient demesne and all others are called Franck-fee Kitch fol. 98. and the Tenants which hold any of those Lands are called Tenants in Ancient demesn the other Tenants in Frank-fee And no common person hath any Demesnes in the simple acceptation of the word because there is no Land but depends mediately or immediately of the Crown that is of some Honor or other belonging to the Crown and not granted in fee to any inferiour person and therefore when a man in pleading will signifie his Land to be his own he saith That he is or was seised thereof in his Demesne as of Fee Littleton f. 3. whereby it appears that though his Land be to him and his Heirs for ever yet it is not true Demesne but depending upon a superiour Lord and holding by Service or Rent in lieu of Service or by Service and Rent together Demaines according to the common speech are only understood the Lords chief Mannor-place which he and his Ancestors have time out of mind kept in their own hands with all buildings and houses meadows pastures woods arable lands and such like therewith occupied Demand DEmand is a word of art and if one release to another all Demands this is as Littleton fol. 117. a. saith the best Release to him to whom the Release is made that he can have and shall most enure to his advantage for by it not onely all Demands but also all causes of Demands are released And there are two manner of Demands that is in Deed and in Law In Deed as in every Praecipe there is expresse Demand and therefore in real Actions he is called Demandant in personal Plaintiff In Law as every Entry in Land Distresse for Rent Taking or seisure of Goods and such like acts in the Countrey which may be done without any words or demands in Law As a Release of Suits is more large then a Release of Quarrels or of Actions so a Release of Demands is more large and beneficial than either of them for by it is released all that which by the others is released and more By Release of all Demands all Freeholds and Inheritances executory are released By Release of all Demands to the Dissetsor the right of the Entry in the land and all that is contained therein is released By Release of all Demands all Executions are released and he that releases all Demands excludes himself from all Actions Entries and Seisures Littleton fol. 170. holds That if Tenant in tail enfeoffs his Vncle who enfeoffs another in fee with Warranty if after the Feoffee by his Deed releases to the Vncle all manner of Demands by such Release the Warranty which is a Covenant real and executory is extinct and the reason is because that by Release of Demands all the means and remedies and their causes which any hath to Lands Tenements Goods Chattels c. are extinct and by consequence the right and interest it self unto the thing Yet a Release of all Demands doth not extend to such Writs by which nothing is demanded neither in Deed nor in Law but lie only to relieve the Plaintiff by way of Discharge and not by way of Demand as a Release of all Demands is no Bar in a Writ of Error to reverse an Outlawry and so of such like See 18 Edw. 3. 59. Coke lib. 8. fol. 153 154. Demandant DEmandant is he that sues or complains in an Action real for Title of land and he is called Plaintiff in an Assise and in an Action personal for Debt Trespass Deceit Detinue and such like Demurrage IS called the time when a Shi â— lies idle in a Port or Harbour or on the Sea in a Calm Demurrer DEmurrer is when any Action is brought and the Defendant pleads a Plea to which the Plaintiff says that he will not answer for that it is not a sufficient Plea in the Law and the Defendant avers the contrary that it is a sufficient Plea and thereupon both parties submit the Cause to the Iudgement of the Court which is called a Demurrer for that they go not forward in pleading but rest upon Iudgement in that point and is called in Latine Records Moratur in Lege For in every Action the difference consists either in Deed or in Law If in Fact it is tried by the Iury if in Law then the matter is either plain or difficult and rare if it be plain then Iudgment is presently given but when it is hard and doubtfull then is stay made and time taken either to consider farther thereupon by the Iudges to agree if they can or otherwise for all the Iustices to meet together in the Exchequer-Chamber and upon hearing of that which the Serjeants shall say unto both parts to advise and determine what is Law and that which is there concluded on by them shall stand firm without further remedy There is also a Demurrer to Evidence given to a Iury upon Tryal of an Issue Plo. Com. 2. 3 Rast Entr. 607. Half bloud HAlf bloud is when a man marries a wife and hath issue by her a son or daughter and the wife dies and then he takes another woman and hath by her also a son or daughter Now these two sons are after a sort Brothers or as they are termed Half-brothers or Brothers of the half
both are Records yet the Iudgment in the Kings Court upon judicial and ordinary proceeding is more notorious and conspicuous and of a more high and eminent degree then a Statute or Recognisance taken in private and by consent of parties and is therefore preferred in judgment of the Law before Recognisance or Statute and if the Executors do not satisfie this first then if they have no goods of the dead in their hands they shall pay it of their own So the Ordinary having goods of one that dies intestate in his hands by Sequestration and an Action of Debt upon an Obligation to the value of the said goods is brought against him as Ordinary he shall not dispose or administer any parcell of the said Goods to the other Creditors at his pleasure but is bound to satisfie the Debt first for which an Action is brought against him Dyer fol. 232. placit 5. If a Sheriff retorne ex officio without inquest that the Executor hath wasted goods the Execution goes de bonis propriis of the Executor and if the retorn be false then the Executor may have an Action upon the Case against the Sheriff for his false retorn because the Executor hath no day to plead But if the Sheriff retorn a devastavit upon an Inquiry by a Iury the Executor may appear and traverse quod non devastavit and try it 1 Cro. Mounson and Bourn Proctor versus Chamberlain Devenerunt DEvenerunt is a Writ directed to the Escheator when any of the Kings Tenants holding in Capite dies and when his son and heir within age and in the Kings custody dies then shall this Writ go forth commanding the Escheator that he by the oath of good and lawful men enquire what Lands or Tenements by the death of the Tenant come to the King c. See Dyer f. 360. pla 4. But see the Stat. 12. Car. 2. cap. 24. Devest DEvest is a word contrary to Invest for as Invest signifies to deliver the possession of a thing so Devest signifies the taking it away Devise DEvise is where a man in his Testament gives or bequeaths his Goods or Lands to another after his decease And where such Devise is made of Goods if the Executors will nor deliver them to the Devisee he hath no remedy by the Common Law but it behoves him to have a Citation against the Executors of the Testator to appear before the Ordinary to shew why he performs not the Will of the Testator for the Devisee may not take the Legacy and serve himself but it must be delivered to him by the Executors See the Stat. 32 H. 8. ca. 1. 34 H. 8. ca. 5. 29 Car. 2. ca. 3. By which last Statute the Law of Testameuts is altered But by the Common Law if a man be sole seised of Lands in fee and devises them by Testament this Devise was void unless the Lands were in City or Borough where Lands are devisable by Custome But if any man were infeoffed to the use of another and his heirs and he to whose use he was so seised did make Devise of his Lands this Devise was good though it were not in a Town where Lands are devisable Also if any man devise Lands in City Town or Borough devisable and the Devisor dies if his Heir or any other abate in the Lands then the Devisee shall have a Writ of Ex gravi querela But this Writ shall never be pleaded before the Kings Iustice but always before the Maior or Bailiffs in the same Town And here to the end to shew how much the Laws of this Realm and the discreet Iudges of the same who are the Interpreters of it do favour Wills and Testaments and Devises in yielding to them such a reasonable construction as they think might best agree with the minds of the dead considering that Wills and Testaments are for the most part and by common intendment made when the Testatour is very sick weak and past all hope of recovery for it is a received opinion in the Countrey amongst most that if a man should chance to be so wise as to make his Will in his good health when he is strong of good memory and hath time and leisure to ask counsell if any doubt were of the Learned that then he should not live long after and therefore they deferre it to such time when it were more convenient to apply themselves to the dispositions of their Souls than of their Lands or Goods except it were that by the fresh memory and recital of them at that time it might be a cause to put them in mind of some of their goods or lands falsly gotten and so move them to restitution c. And at that time the penning of such Wills is commonly committed to the Minister of the Parish or to some other more ignorant who knows not what words are necessary to make an Estate in Fee-simple Fee-tail for term of life or such like besides many other mischiefs I will therefore here set down some of those Cases that are most common in ignorant mens mouths and carry by the wise interpretations of the Judges a larger and more favourable sense in Wills than in Deeds First therefore if one devise to J. S. by his Will all his Lands and Tenements here not only all those Lands that he hath in possession do pass but all those that he hath in Reversion by virtue of those words Tenements And if Lands be devised to a man to have to him for ever or to have to him and his Assigns in these two cases the Devisee shall have a Fee-simple But if it be given by Feoffment in such manner he hath but an Estate for term of life And if a man devise his Land to another to give sell or do therewith at his pleasure or will this is Fee-simple A Devise made to one and to his Heirs males doth make an Estate-tail But if such words be put in a Deed of Feoffment it shall be taken for Fee-simple because it doth not appear of what body the Heirs males shall be begotten If Lands be given by Deed to J. S. and to the Heirs males of his body c. who hath issue a daughter who hath issue a son and dies there the Land shall return to the Donor and the son of the Daughter shall nor have it because he cannot convey himself by Heirs males for his mother is a let thereto But otherwise it is of such a Devise for there the son of the daughter shall have it rather then the Will shall be void If one devise to an Infant in his mothers belly it is a good Devise but otherwise by Feoffment Grant or Gift for in those cases there ought to be one of ability to take presently or otherwise it is void See 14. El. Dy. 304. A Devise made in Fee-simple without expresse words of Heirs is good in Fee-simple But if a Devise be made to J. N. he
one of the Articles to be enquired touching the Forrest is If all great Dogs or Mastives in the Forest are Expeditated according to the Laws of the Forrest and if any be not the Owner of every such Dog shall forfeit to the King three shillings and four pence Cromp. Jurisd fol. 152. Manwood uses the same word and part 1. of his Forrest Law fol. 212. sets down the manner of expeditating Dogs heretofore which was that the three Claws of the Fore-foot on the right side shall be cut off by the skin whereunto he also adds out of the Ordinance called the Assise of the Forrest that the same manner of expeditating Dogs shall be still used and kept and none other Quaere whence it arises that Crompton and he differ the one saying the Ball of the foot is cut out the other that the three Fore-claws are cut off by the skin Expensis Militum levandis EXpensis Militum levandis is a Writ directed to the Sheriff for levying the Allowance for the Knights of the Parliament Regist orig fol. 191. b. And Expensis Militum non levandis de hominibus de Antiquo Dominico nec a Nativis is a Writ to prohibit the Sheriff to levy any Allowance for the Knights of the County upon such as hold in Ancient Demesne c. Ibidem fol. 261. b. Extend EXtend is to value the Lands or Tenements of one bound by Statute c. that hath forfeited it and to deliver them to the Conusee at such indifferent rates as that by the yearly Profits the Conusee in time may be satisfied his Debt See Fitz. Nat. B. fol. 131. and Coke lib. 4. fol. 67. Fulwoods Case Extent EXtent has two significations The one is a Writ or Commission to the Sheriff for the valuing of Lands or Tenements the other the act of the Sheriff or other Commissioner upon that Writ Broke tit Extent fol. 313. Extinguishment EXtinguishment is where a Lord or any other hath any Rent or Service going out of any Land and he purchases the same Land so that he hath such Estate in the Land as he hath in the Rent then the Rent is extinct for that one may not have Rent going out of his own Land Also when any Rent shall be extinct the Land and the Rent must be in one hand the Estate indefesible and he have as good Estate in the Land as in the Rent for if he have Estate in the Land but for Life or Years and hath Fee-simple in the Rent then the Rent is not extinct but in suspence for that time and after the term the Rent is revided If there be Lord Mesne and Tenant and the Lord purchase the Tenancy the Mesnalty is extinct but the Mesne shall have the surplusage of the Rent if there be any as Rent-seck Also if a man have a High-way appendant and after purchase the Land wherein the High-way is then the Way is extinct and so it is of a Common appendant Extortion EXtortion is wrong done by any Officer Ordinary Archdeacon Official Major Bailiff Sheriff Escheator Coroner Under-Sheriff Goaler or other Officer by colour of his Office by taking excessive Reward or Fee for execution of his Office or otherwise and is no other thing indeed then plain Robbery or rather more odious then Robbery for Robbery is apparent and always hath with it the countenance of Vice but Extortion being as great a Vice as Robbery is carries with it a countenance of Vertue by means whereof it is the more hard to be tried or discerned and therefore the more odious And yet some there are that will not stick to stretch their Office Credit and Conscience to purchase Mony as well by Extortion as otherwise according to the saying of the Poet Virgil What is it that the greedy thirst of Gol ◠doth not constrain mortals to attempt F. Faculty FAculty is a word often used in the Statute of 25 Hen. 8. cap. 21. and it signifies a Priviledge or special Dispensation granted unto a man by favour and indulgence to do that which by the Law he cannot do as to eat Flesh upon days forbidden or to hold two or more Ecclesiastical Livings and the like And for the granting of these Faculties there is a special Officer under the Arch-bishop of Canterbury called The Master of the Faculties Failing of Record FAiling of Record is when an Action is brought against one who pleads any matter of Record and avers to prove it by Record and the Plaintiff saith there is no such Record whereupon the Defendant hath day given him to bring in the Record at which day he fails or brings in such a one as is no Bar to this Action then he is said to fail of his Record and thereupon the Plaintiff shall have Iudgment to recover c. Faint Action Faint Pleading FAint Action as Littleton fol. 154. saith is as much as to say in English a Fained Action that is such Action as though the words of the Writ be true yet for certain causes he hath no title by the Law to recover by the same Action And a false Action is where the words of the Writ are false So Faint Pleading is a covinous false and collusory manner of Pleading to the deceit of a third party And against such Faint Pleading amongst other things the old Statute in 3 E. 1. cap. 29. seems to be made Deed. DEed is a Writing sealed and delivered to prove and testifie the agreement of the party whose Deed it is to the thing contained in the Deed as a Deed of Feoffment is a Proof of the Livery of Seisin for the Land passes by the Livery of Seisin but when the Deed and the Delivery are joyned together that is a proof of the Livery and that the Feoffor is contented that the Feoffee shall have the Land All Deeds are either Indented whereof there are two three or more parts as the ease requires of which the Feoffor Grantor or Lessor hath one the Feoffee Grantee or Lessee another and peradventure some other body a third c. Or else they are Poll Deeđs single and but one which the Feoffee Grantee or Lessee hath c. And every Deed consists of three principal Points without which it is no perfect Deed to bind the parties namely Writing Sealing and Delivery 1. By Writing is shewed the parties Names to the Deed their Dwelling-places their Degrees the Thing granted upon what Considerations the Estate limited the Time when it was granted and whether simply or upon Condition with other such like Circumstances But whether the parties to the Deed write in the end their Names or set to their Marks as it is commonly used it matters not at all as I think for that is not meant where it is said that every Deed ought to have Writing 2. Sealing is a farther Testimony of their Consents to what is contained in the Deed as it appears in these words In Witness whereof c. or to such effect
always put in the latter end of Deeds without which words the Deed is insufficient And because we are about Sealing and Signing of Deeds it shall not be much amiss here to shew you for Antiquities sake the manner of Signing and Subscribing Deeds in our Ancestors the Saxons time a fashion Differing from that we use now in this That they to their Deeds subscribed their Names commonly adding the Sign of the Cross and in the end did set down a great number of Witnesses not using at that time any kind of Seal And we at this day for more surety both subscribe our Names though that be not very necessary and put to our Seals and use the help of Witnesses besides That former fashion continued absolute until the time of the Conquest by the Normans whose manners by little and little at the length prevailed amongst us for the first Sealed Charter in England is thought to be that of King Edward the Confessour to the Abbey of Westminster who being educated in Normandy brought into this Realm that and some other of their Fashions with him And after the coming of William the Conquerour the Normans liking their own Country Custom as naturally all Nations do rejected the manner that they found here and retained their own as Ingulphus the Abbot of Croiland who came in with the Conquest Witnesses saying The Normans do change the making of Writings which were wont to be firmed in England with Crosses of Gold and other holy Signs into an impression of Wax and reject also the manner of the English Writing Howbeit this was not done all at once but it increased and came forward by certain degrees so that first and for a season the King only or a few other of the Nobility used to Seal then the Noble-men for the most part and none other Which thing a man may see in the History of Battel Abbey where Richard Lucie Chief Iustice of England in the time of King Henry the Second is reported to have blamed a mean Subject for that he used a private Seal whereas that pertained as he said to the King and Nobility only At which time also as J. Rosse notes it they used to ingrave in their Seals their own Pictures and Counterfeits covered with a long Coat over their Armors But after this the Gentlemen of the better sort took up the Fashion and because they were not all Warriors they made Seals ingraven with their several Coats or Shields of Arms for difference sake as the same Author reports At length about the time of King Edward the third Seals became very common so that not only such as bare Arms used to Seal but other men also fashioned to themselves Signers of their own devices some taking the Letters of their own Names some Flowers some Knots and Flourishes some Birds and Beasts and some other things as we now yet daily see used Some other manners of Sealing besides these have been heard of among us as namely that of King Edward the third by which he gave to Norman the Hunter The Hop and the Hop-Town With all the bounds upside down And in witness that it was sooth He bit the Wax with his foretooth The like to this was shewed me by one of my Friends in a loose Paper but not very anciently written and therefore he willed me to esteem of it as I thought good It was as follows I William King give to thee Powlen Royden my Hop and my Hop-Lands with all the bounds up and down from Heaven to Earth from Earth to Hell for thee and thine to dwell from me and mine to thee and thine for a Bow and a broad Arrow when I come to hunt upon Yartow In witness that this is sooth I bit this Wax with my tooth in the presence of Magge Maud and Margery and my third son Henry Also that of Alberick de Vere containing the Donation of Hatfield to which he affixed a short black-hafted knife like an old half-peny whittle instead of a Seal with Divers such like But some peradventure will think that these were received in common use and custom and that they were not the devices and pleasures of a few singular persons such are no less deceived then they that deem every Charter and Writing that hath no Seal annexed to be as ancient as the Conquest whereas indeed Sealing was not commonly used till the time of King Edw. 3. as hath been already said 3. Delivery though it be set last is not the least for after a Deed is written and sealed if it be not delivered all the rest is to no purpose And this Delivery ought to be done by the party himself or his sufficient Warrant and so it will binde him whosoever wrote or sealed the same and by this last act the Deed is made perfect according to the intent and effect of it and therefore in Deeds the Delivery is to be proved c. Thus you see Writing and Sealing without Delivery is nothing to purpose Sealing and Delivery where there is no Writing work nothing And Writing and Delivery without Sealing make no Deed Therefore they all ought joyntly to concur to make a perfect Deed. Faitour FAitour is a word used in the old repealed Statute of 7 R. 2. cap. 5. and it is there taken in the worser sense for an Evil doer or an Idle companion and it seems there to be a Synomymon to Vagabond Fardingdeale FArdingdeal otherwise Farundel of Land signifies the Fourth part of an Acre Cromptons Jurisd fol. 220. b. Quadrantata terrae is read in the Reg. orig fol. 1 b where you may have Denariata and Obolata Solidata and Librata terrae which by probability must rise in proportion of quantity from Fardingdeal as a Half-peny Peny Shilling or Pound rise in value or estimation then must Obolata be Half an Acre Denariata the Acre Solidata Twelve Acres and Librata Twelve score Acres Yet in the Reg. orig fol. 94 and 248. you may find viginti Libratas terrae vel reditus whereby it seems that Librata terrae is as much as yields twenty shillings by the year and centum Solidatas terrarum tenementorum redituum fol. 249. And in F. N. B. f. 87. there are these words Viginti Libratas terrae vel reditus which proves this to be so much Land as is rated at twenty shillings by the year See Furlong Farm or Ferm FArm or Ferm is usually the chief Messuage in a Village or Town whereto belongs great Demeans of all sorts and hath been used to be let for term of Life Years or at Will The Rent that is reserved upon such a Lease or the like is called Farm or Ferm And Farmor or Fermor is he that Tenants the Farm or Ferm or is Lessee thereof Also generally every Lessee for life years or at will is called Farmor or Fermor And note That they are calltd Farms or Ferms of the Saxon word Feormian which signifies to Feed or yield Victual For in ancient
time their Reservations were as well in Victuals as Money until at the last and that chiefly in the time of King Henry the First by agreement the reservation of Victuals was turned into ready Money and so hitherto hath continued amongst most men Fate or Fatt FAte or Fatt is a Measure mentioned in the Statutes of 1 H. 5. cap. 10. and 11 H. 6. cap. 8. to contain eight Bushels but the Citzens and Merchants of London as it appears by those Statutes and the Kings Purveyors would have that measure and a Bushel over for one Quarter and so they had nine Bushels for one Quarter of Corn. Faux Imprisonment FAux Imprisonment is a Writ that lies where a man is arrested and restrained from his Liberty by another against the order of the Law then he shall have against him this Writ whereby he shall recover Dammages See more thereof before tit Arrest Faux Judgment FAux Judgment See thereof before tit Error Fealty FEalty is a Service called in Latine Fidelitas and shall be done in this manner viz. The Tenant shall hold his right hand upon a Book and shall say to his Lord I shall be to you faithful and true and shall bear to you Faith for the Lands and Tenements which I claim to hold of you and truly shall do you the Customs and Services that I ought to do to you at the terms assigned So help me God and shall kiss the Book but he shall not kneel as in doing Homage And thereof see after in the Title Homage Also Fealty is incident to all manner of Tenures Fee FEE Feodum is in our Law an equivocal word of divers significations for it is most usually taken for an Estate of Inheritance in Lands and Tenements to one and his Heirs or to one and the Heirs of his Body But it is used also for the Compass Circuit or Extent of a Lordship or Mannor And from thence comes the ordinary Plea in Bar to an Avowry That the Land upon which he avows is out of his Fee And thirdly it is taken for a Reward or Wages given to one for the execu ◠〈◊〉 of his Office as the Fee of a Forrester or the Keeper of a Park or a Sheriffs Fee sor â— erving an Execution lim â—â— s by the Statute of 29 Eliz. cap 4. And it is also taken for that Consideration which is given a Sergeant at Law or a Councellor or a Physitian for their Counsel or Advice in their profession which as it is well observed by Sir Jo. Davies in his Preface to his Reports is not properly Merces but Honorarium Yet in our Law-language it is called his Fee Fee expectant FEE expectant Where 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 they are given to them and the heirs of their body c. They have Tail and Fee-expectant Kitch fol. 153. Fee Farm FEE Farm is when a Tenant holds of his Lord in Fee-simple paying to him the value of half or of the third fourth or other part of the Land by the year And he that holds by Fee-Farm ought not to pay Relief or do any other thing that is not contained in the Feoffment but Fealty for that belongs to all kind of Tanures Fee-simple FEe-simple is when any person holds Lands or Rent or other thing inheritable to him and his Heirs for evermore and these words His Heirs make the Estate of Inheritance for if the Land be given to a man for ever yet he hath but an Estate for life Also if Tenant in Fee-simple die his first son shall be his Heir but if he have no Son then all his Daughters shall be his Heirs and every one shall have her part by partition but if he have no Son nor Daughter then his next Coufin collateral of the whole Blood shall be his Heir Fel de se FElo de se is he that commits Felony by murthering himself See Crompt Justice of Peace fol. 28. Felony FElony is a general term which comprehends divers hainous Offences for which the Offenders ought to suffer death and lose their Lands And it seems that they are called Felonies of the Latine word Fel which is in English Gall in French Fiel or of the ancient English word Fell or Fierce because they are intended to be done with a fell fierce or mischievous mind When a man without any colour of Law steals the Goods of another amounting to the value of Twelve pence or more that is Larceny but if he approaches the Person of another in the High-way and robs him of his Goods although it be but to the value of one peny it is Felony and that is called Robbery and therefore he shall be hanged Fence-moneth FEnce-moneth is a Forrest word and signifies the time of 31 days in the year that is to say 15 days before Midsummer and 15 days after in which time it is forbidden for any man to hunt in the Forrest or to go into it to disturb the wild Beasts The reason of which is because the Female Deer do then Fawn And therefore this Moneth is called the Fence-moneth or Defence-moneth for that the Deer are then to be defended from scare or fear See Manwood Forrest Laws cap. 13. fol. 90. b. Feodarie FEodarie was an Officer in the Court of Wards appointed by the Master of that Court by virtue of the Statute 32 H. 8. c. 46. to be present with the Escheator in every County at the finding of Offices and to give in evidence for the King as well for the Value as the Tenure And his Office was also to survey the Lands of the Ward after the Office found to return the true value thereof into the Court to assign Dower unto the Kings Widows to receive all the Rents of the Wards Lands within his Circuit and to answer them to the Receiver of the Court But see the Stat. 12 C â— r. 2. c. 24. for Abolishing the said Court Feoffment FEoffment is where a man gives Lands Houses or other Corporal things which are Heritable to another in Fee-simple and thereof delivers Seisin and Possession Also if one make a gift in tail or a lease for life Livery and Seisin must be given or else nothing shall pass by the Grant Feoffor and Feoffee FEoffor is he that infeoffs or makes a Feoffment to another of Lands or Tenements in Fee-simple And Feoffee is he who is infeoffed or to whom the Feoffment is so made Ferdfare FErdfare is to be quit from going to War Flet. lib. 1. c. 47. Ferdwit FErdwit is to be quit of Murther committed in the Army Flet. l. 1. c. 47. Ferry IS a liberty by prescription or the Kings Grant to have a Boat for passage upon a great Stream for Cariage of horses and men for reasonable toll Feude FEude or Deadly Feude is a German word and signifies implacable Hatred not to be
Statute of 2 3 E. 6. c. 14. and it is all one with an Harquebuze Hariot or Heriot HAriot is of two sorts Hariot Custome and Hariot Service Hariot Service is often expressed in a mans Grant or Deed that he holds by such Service to pay Hariot at the time of his death And this Hariot is payable after the death of the Tenant in Fee-simple Hariot Custom is where Hariots have been paid time out of mind by Custom And this may be after the death of the Tenant for life c. But to speak thereof generally Hariot is the best Beast whether it be Horse Ox or Cow that the Tenant had at the time of his death And a Distress may be either seised or taken for it whether it be Hariot Service or Hariot Custom to the Lords use of whom the Tenant held by his Bayliff or other Officers But of right neither the Lord nor his Officer should take Hariot before it be presented at the next Court holden after the Tenant is dead that such a Beast is due for his Hariot Haward HAward or Hayward is an Officer appointed in every Town to be the Common Herd of the Town and he is so called either for that it is one part of his Office to keep the Hedges of inclosed Grounds so that they be not cropped or broken down or because he keeps the Grass from hurt and destruction of Cattel so that Hay may be made thereof He is an Officer sworn in the Lords Court For which Oath see Kitch fol. 46. Hawkers HAwkers is a word used in the Statutes 25 H. 8. cap. 9. and 33 Hen. 8. cap. 4. for Tinkers that go from place to place through the Country and by colour of the Kings Letters Patents or Placards buy and sell Brass and Pewter and cozens the Kings people both in the weight and in the stuff Hey-bote or Hedge-bote HEy-bote ou Hedge-bote is necessary Stuff to make and mend Hedges which the Lessee for years or for life of common right may take upon the Ground to him leased although it be not expressed in his Lease and although it be a Lease by Word without Writing Heybote also may be taken for necessary Stuff to make Rakes Forks and such like Instruments wherewith men use in Summer to redde and make Hay And so Lessee for years took it and it was allowed him by his Lessor the rather as I suppose for that such Instruments are commonly made of slendtr Vnder-wood which by the Common Law the Lessee for years may cut and take as aforesaid Head-borow HEad-borow is compounded of two words Heofed id est Head and Borhe id est Pledge So that Head-borow signifies the chief of the three Pledges in a Decennary within a Lect or he that had the Government of those that are within his own Pledge And he was called Head-borough or Borow-head or Boroughs-holder or Third-borough or Tithing-man or Chief-Pledge or Borow-Elder according to the diversity of speech in divers places And to this day he is now called a Constable Head-silver HEadsilver See Common Fine Heireloome HEireloome is any piece of Houshold-stuff which by the Custom of some Countries having belonged to a House for certain discents goes with the House after the death of the Owner unto the Heir and not to the Executors Herbage HErbage is the Fruit of the Earth provided by Nature for the bit or mouth of the Cattel But it is commonly used for a Liberty to feed ones Cattel in anothers mans ground as in the Forest c. Cromp. Juris fol. 197. Heretico or Haeretico comburendo HAEretico comburendo is a Writ that lies against him who is an Heretick that is who having been once convicted of Heresie by the Bishop and having abjured it afterwards falls into it again or into some other and is thereupon committed to the Secular Power And Brit. lib. 1. cap. 17. saith That by the Common Law those persons who Feloniously burn the Corn or Houses of others Sorcerers and Sorcecesses Sodomitical persons and Hereticks should be burnt and consumed This Writ is taken away by the Statute of K. C. 2. Hermitage Hermite HErmite is a Religious Man who devotes himself to live solitary in any private Place Church Monastery c. And his place is called an Hermitage And of it a Prohibition lies Nat. Br. 34. G. Hidage HIdage is to be quit if the King shall tax all the Land by Hides Note that a Hide of Land is a whole Plough-land And this kind of Taxing by Hides was much used in old time as well for provision of Armour as payments of Money and that chiefly in King Etheldred's days who in the year of Christ 1006. when the Danes landed at Sandwich in Kent taxed all his Land by Hides thus That every 310 Hides of Land should find one Ship furnished and every eight Hides should find one Iack and one Saddle for the defence of the Realm Hoblers HOblers are mentioned in the Statute of 25 E. 3. Stat. 5. cap. 8. to be such men as by their Tenure are bound to keep a little Nag to give notice of any Invasion or other danger that happens near the Sea-side where they dwell Hoghenhine HOghenhine is he who comes Guest-wise to a house and there lies the third night after which time he is accounted one of his Family in whose house he lies and if he offend the Kings Peace his Host must be answerable for him Bract. lib. 3. tract 2. cap. 10. In the Laws of King Eâ—ward set forth by Lambert he is called Agenhine where you may read more of this matter Homage HOmage in our Books is twofold viz. Homagium ligeum and that is as much as Ligeance of which Bracton speaks lib. 3. cap. 35. fol. 79. Soli Regi debetur sine Dominio seu Servitio And the other is Homagium feudale which hath his original by Tenure In Fitzh N. B. fol. 269. there is a Writ for respiting this later Homage which is due by reason of the Fee or Tenure But Homagium ligeum is inherent and inseparable and cannot be respited Homage by reason of Fee or Tenure is defined to be a Service which shall be made in this manner The Tenant in Fee or Fee-tail that holds by Homage shall kneel upon both his knees ungirded and the Lord shall sit and hold the hands of his Tenant between his hands and the Tenant shall say I become your man from this day forward of life and member and of earthly honor and to you shall be faithful and true and shall bear to you faith for the Lands that I claim to hold of you saving that Faith I owe to our Lord the King and then the Lord so sitting shall kiss him How Fealty shall be done look before in Fealty The Steward of the Lord may take Fealty but not Homage See the Statute 12 Car. 2. cap. 24. Homage auncestrel HOmage auncestrel is where a man and his Ancestors time out of mind held
who is therefore called the Incumbent of that Church because he doth bend all his study to the discharge of the Cure there Indicavit INdicavit is a Writ or Prohibition that lies for the Patron of a Church whose Clerk is Defendant in Court-Christian in an Action for Tithes commenced by another Clerk and extending to the fourth part of the Church or of its Tithes in which case the Suit belongs to the Kings Court by Westm 1. c. 5. Wherefore the Defendants Patron being like to be prejudiced in his Church and Advowson if the Plaintiff obtain in the Court-Christian has this means to remove it to the Kings Court Reg. orig fol. 35. and Britton c. 109. This Writ is not returnable but if they cease not their Suit he shall have an Attachment Inditement INditement See Enditement Indorsement INdorsement is that which is written upon the Back of a Deed as the Condition of an Obligation is said to be indorsed because it is commonly written on the Back of the Obligation Induction INduction is a lay act made by prescept of the Ordinary by which actual possession of the Church is given to the Rector or Vicar after his Presentation and Institution to it Infangtheef INfangtheef is a Priviledge or Liberty granted to Lords of certain Mannors to judge any Thief taken within their Fee Information INformation for the King is that which for a common person is called a Declaration and is not always done directly by the King or his Attorney but rather by some other man who sues as well for the King as for himself upon the breach of some penal Law or Statute wherein a Penalty is given to the party that will sue for the same but no Action of Debt to recover it therefore it must be had by Information Ingrosser INgrosser comes of the French word Grosier that is one that sells by Whole-sale But in our Law an Ingrosser is one that buys Corn Grain Butter Cheese Fish or other dead Victuals with an intent to sell the same again And so he is defined in the Stat. of 5 E. 6. c. 14. made against such Ingrossing Inheritance INheritance See Enheritance Inhibition INhibition is a Writ to inhibit a Iudge to proceed farther in the Cause depending before him And there is another Writ where after the Kings Presentment to a Benefice he presents another and inhibiteth the Bishop to give Induction to the first Presentee Plo. Com. 528. See F. N. B. f. 39. where he puts Prohibition and Inhibition together Inhibition is most commonly a Writ issuing forth of an higher Court-Cheistian to a lower and inferiour upon an Appeal Anno 24 H. 8. c. 12. and Prohibition out of the Kings Court of Record at Westminster to a Court-Christian or to an inferiour Temporal Court Injunction INjunction is an interlocutory Decree out of the Chancery sometimes to give Possession to the Plaintiff for defect of Apparance in the Defendant sometimes to the ordinary Courts of the King and sometimes to the Court-Christian to stay Proceeding in a Cause upon suggestiou made that if the rigor of the Law take place it is against Equity and Conscience in that Case See West part 2. tit Proceedings in Chancery sect 25. Inlagary INlagary or Inlagation is a Restitution of one outlawed to the Kings Protection or to the benefit condition of a Subject Inlaugh INlaugh signifies him that is sub Lege in some Frank-pledge not out-lawed of whom see Bract. l. 3. tract 2. c. 11. Inmates INmates are those persons of one Family that are suffered to come and dwell in one Cottage together with another Family by which the poor of the Parish will be increased And therefore by the Statute of 31 Eliz. c. 7. there is a Penalty of ten shillings a Month set upon every one that shall receive or continue such an Iumate Inquisition INquisition See Enquest Inrolment INrolment is the Registring Recording or Entring of any Act or Deed in the Chancery or elsewhere as of a Recognizance Fine Statute or Deed indented by the Statute of 27 H. 8. c. 16. by which a Freehold shall pass Instant INstant in Latine Instans is defined by the Logicians A thing not dividable in Time which is not any Time nor part of Time to which yet the parts of time are conjoyned and much considered in the Law and though it cannot be actually divided yet in consideration and conceit it may be divided and applied to several purposes as if they were several times whereof see in Plowdens Commentaries in the Case between Fulmerston and Stuard where the Statute of 31 H. 8. which Enacted That if an Abbot within a year before the Statute had letten Lands to one who at the time of making that Lease had the same Land to farm for a term of years then not expired that the Lessee should have that Land only for twenty one years is expounded And there it is debated That when the Termor takes the second Lease he surrenders his former term and so at the same instant of taking the second Lease the former term is expired And in the Case between Petit and Hales he who kills himself commits not Felony till he be dead and when dead he is not in being so as to be termed a Felon but at the instant is in the Law so adjudged And there are many other Cases in Law where the instant time that is not dividable in nature in the consideration of the mind and understanding of the Sages of the Law is divided upon which arise many arguments of great use and profound learning Institution INstitution is a Faculty made by the Ordinary by which a Vicar or Rector is approved to be Inducted to a Rectory or Vicarage Interdiction INterdiction has the same signification in the Common as in the Canon Law where it is thus defined Interdictio est Censura Ecclesiastica prohibens administrationem Divinorum And so it is used 22 H. 8. cap. 12. Intrusion INtrusion is a Writ that lies against him that enters after the death of Tenant in Dower or other Tenant for Life and holds out him in the Reversion or Remainder for which see Fitz. N. B. fol. 203. E. And every entry upon the possession of the King is called an Intrusion as where the Heir of the Kings Tenant enters after Office and before Livery this is called an Intrusion upon the King as appears in Stanf. Prerog fol. 40. and many other Books Intrusion INtrusion See Entrusion Inventary AN Inventary is a Catalogue or Recital in Writing of all the Goods and Chattels of one that is dead with the Valuation of them by four several persons which every Executor and Administrator ought to exhibit to the Ordinary at the time appointed Jointenans JOintenants are where two men come to any Lands and Tenements by one joynt Title as if a man give Lands to two men and to their Heirs Tenants in common are where two have Lands by several Titles or by Feoffment to two
to have and tohold the one half to one and his Heirs aud the other half to another and his Heirs in all these cases none of them knows his several If there be two or three Ioyntenants and one hath Issue and dies then he or those Ioyntenants that overlive shall have the whole by Survivorship If two Iointenants by agreement make Partition between them by Deed then they are several Tenants But if one Ioyntenant grant that which belongs to him to a Strang â—â— then the other Ioyntenantand the Stranger are Tenants in common And though two Tenants in common be seised throughly and of the whole and none knows his several yet if one die the other shall not make the whole by Survivorship but the Heir of him that dies shall have the half And so if there be three Ioyntenants and one of them makes a Feoffment of his part to another and the Feoffee dies then his Heir shall have the third part and the other two are Ioyntenants as they were because they two are seised by one joynt Title Also if Lands be given to the baron and his wife and the husband aliens and dies the wife shall recover the whole But if they were Ioyntenants before the Coverture then he shall recover but the half If Land be given to the husband and his wife and a third person if the third person grant that which belongs to him the one half passes by this Grant for that the baron and his wife are but one person in Law and in this case they have right but to half Also if two Ioyntenants are of Lands in a Town that is Borough-English where Land is devisable and one by his Testament devises that which belongs to him to a Stranger and dies this Devise is void and the other shall have the whole by Sutviver for that the Devise may not take effect till after the death of the Devisor and immediately after the death of the Devisor the right comes to the other Ioyntenant by Surviver who claims nothing by the Devisor but in his own right by Surviver But otherwise it is of Parceners seised of Lands devisable causa qua supra Journies accounts JOurnies accounts Dietae computatae is a term in the Law which is understood thus If a Writ be abated without the default of the Plaintiff or Demandant he may purchase a new Writ which if it be purchased by Journies accounts that is within as little time as he possibly can after the Abatement of the first Writ then this second Writ shall be as a Continuance of the first and so shall ouste the Tenant or Defendant of his Voucher Plea of Non-tenure Ioyntenancy fully administred c. or any other Plea which arises upon matter hapning after the date of the first Writ And fifteen days have been held a convenient time for the purchase of the new Writ See for this Writ by Journies accounts Spencers Case Coke lib. 6. fol. 9. b. Joynture JOynture is an Estate and Assurance made to a Woman in consideration of Marriage for term of her life or otherwise as is mentioned in the Statute of 27 H. 8. cap. 10. whether it be before or after Marriage And if it be after then she may at her liberty after the death of her husband refuse to take or have the Lands so assured for her Ioynture and demand her Dower at the Common Law But if it be made before Marriage then she may not refuse such Ioynture nor have Dower according to the Common Law unless that when she brings her Writ of Dower the Defendant pleads such a Plea as will not bar her of her Dower as if he say in Bar that her husband was not seised of such Estate whereof she might be endowed or any such Plea and doth not shew that she hath a Ioynture made c. and therefore demands Iudgment of that Action or any such like Plea c. And this was the opinion of Master Brograve at his Reading in Grays-Inn in Summer An. 1567. 18 Eliz. upon a Branch of the Statute made 27 H. 8. cap. 10. concerning Joyntures and Dowers And of those things whereof a Woman may be endowed she may have Ioynture as of Mines Vesturam terrae Woods Towns Is â— es Meadows and such like Also of an Advowson Reversion depending upon an Estate for Life Wind-mill high Chamber Rectory and such other and they are called Tenements Also of a Villain for he is an Hereditament And of all these profit may come to the woman But of those things whereof no profit will come but rather a charge a Ioynture cannot be made See Coke lib. 4. fol. 1. Vernons Case Jurisdiction JUrisdiction is a Dignity which a Man hath by a power to do Iustice in Causes of complaint made before him Juris utrum JUris utrum is a Writ that lies for the succeeding Incumbent of a Benefice to recover the Lands or Tenements belonging to the Church which were aliened by his Predecessor And see of this Fitz. N. B. fol. 48. R. and see after in the Title Utrum Juror JUror is one of those 24 or 12 men which are sworn to deliver a truth upon such Evidence as shall be given them touching the matter in question of which see Fitz. Nat. B. fol. 165. D. and the Statute 16 and 17 Car. 2. cap. for returning able and sufficient Jurors Justice seat JUstice seat is the highest Court that is held in a Forrest and it is always held before the Lord Chief Iustice â—â— Eyre of the Forrest upon mâ—â—ning 40 â— ays before And 〈◊〉 the Iudgments are always given and the Fines see for Offences that were presented at the Courts of Attachments and the Offenders indicted at the Swainmotes See concerning this Court Manwoods Forrest Laws cap 2 â— fol. 238. b. Justices in Eire JUstices in Eire See Eire Justicies JUsticies is a Writ directed to the Sheriff for the dispatch of Justice in some special Cases in his County-Court of which he cannot by his ordinary power hold Plea there And of this you may see Precedents in Fitzh N. B. fol. 117. C. in Account and fol. 152. B. in Annuity and fol. 119. G. in Debt and many others And it is called a Justicies because it is a Commission to the Sheriff to do a man right and it requires no Return or Certificate of what he hath done K. Keelage KEelage in Latine Killagium is a Custom paid at Hartlepool in Durham for every Ship coming into that Port. R of Parl. 21 E. 1. Kiddle KIddle or Kidel is a Dam or Wear in a River All Kidels shall from henceforth be utterly put down in the Thames and Medway and throughout all England except upon the Sea-coast Mag. Char. cap. 24. KIngs silver Kings silver is the Money which is due to the King in the Court of Common Pleas for a License there granted to any man to pass a Fine Coke lib. 6. fol. 39 43. Kintal KIntal is a Weight
as to the Tenant that is the Feoffee And for this cause it is called in Latine Mortuum vadium as Littleton saith or rather Mortuum vas as I think Also if a Feoffment be made in Morgage upon condition that if the Feoffor pay such a sum at such a day c. and the Feoffor dies before the day yet if the Heir of the Feoffor pay the sum at the same day to the Feoffee and the Feoffee refuses it the Heir of the Feoffor may enter But in such case if there be no day of payment expressed then such Tender of the Heir is void because when the Feoffor dies the time of Tender is past otherwise the Heirs of the Feoffor shall have time of Tender for ever which would be inconvenient that one shall have a Fee-simple to him and his Heirs defeasible always at the pleasure and will of others But in the first case the time of Tender was not expired by the death of the Feoffor Mortmain MOrtmain where Lands are given to a House of Religion or to other Company Incorporate by the Kings Grant the Land is come into Mortmain that is in English a dead hand and then the King or the Lord of whom the Land is holden may enter as appears by the Statute de Religiosis And if one make a Feoffment upon trust to certain persons to the use of a House of Religion or to the use of any Guild or Fraternity Corporate it shall be said Mortmain and he shall incur the same penalty as appears by the Statute Anno 15 R. 2. Mortuary MOrtuary is that Beast or other Chattel moveable which after the death of the owner by the Custom of some places became due to the Parson Vicar or Priest of the Parish in lieu or satisfaction of Tithes or Offerings forgot or not well and truly paid by him that is dead See now the Statute of 21 H. 8. cap. 6. which â— imits the course and order of the payment of these Mortuaries or of money for them Mulier MUlier is a word used in our Law but how aptly I cannot say for according to the proper signification Mulier is a defiled Woman as it is used in Ulpianus thus Si ego me Virginem emere putarem cum esset Mulier emptio non valebat Whereby you may see Mulier is a Woman that hath had the company of a Man But to leave the right signification Mulier is taken in our Law for one that is lawfully begotten and born and is always contra-distinguished with Bastard only to shew a difference between them as thus A Man hath a Son of a Woman before Marriage that is a Bastard and Vnlawful and after he marries the Mother of the Bastard and they have another Son this second Son is called Mulier that is to say Lawful and shall be Heir to his Father but the other cannot be Heir to any man because it is not known nor certain in the Iudgment of the Law who was his Father and for that cause is said to be No mans son or the son of the people and so without Father according to these old verses To whom the People Father is to him is Father none and all To whom the People Father is well fatherless we may him call And always you shall find this addition to them Bastard eldest and Mulier youngest when they are compared together Muniments MUniments are Evidences or Writings concerning a Mans Possession or Inheritance whereby he is able to defend the Estate which he hath And they are fo called from the Latin word Munio which signisies to defend or fortifie And 35 H. 6. fol. 37. b. Wangford says That this word Muniment includes all manner of Evidences viz. Charters Releases and others Murage MUrage is a Toll or Tribute levied for the repairing or Building of Publick Walls See Fitz. Nat. Brev. fol. 227. D. and the Statute of 3 E. 1. cap. 30. Murder MUrder is a wilful Killing a Man upon Malice forethought and seems to come of the Saxon word Mordren which so signifies And Mordridus is the Murderer even until this day among them in Saxony from whence we have most of our words as hath been often said Or it may be derived of Mort and dire as Mors dira See Stanf. Pleas of the Crown lib. 1. Muster MUster comes of the French word Monstrer that is to shew for to Muster is nothing but to shew men and their Arms and to In â— ol them in a Book as appears by the Statute of 18 H. 6. cap. 39. N. Naam NAam is the Attaching or Taking of the moveable Goods of another man and is either lawful or unlawful Lawful Naam is a reasonable Distress according to the value of the thing for which the Distress is made See mo â— e of this in Horn's Mirror of Justices lib. 2. Nativo habendo NAtivo habendo is a Writ that lies where the Villain or Nief of the Lord is gone from him then the Lord shall have this Writ directed to the Sheriff to cause the Lord to have his Villain or Nief with all his goods In this Writ more Villians or Niefs may not be demanded then two but as many Villains or Niefs as will may jointly bring a Writ de Libertate probanda And if a Villain or Nief bring his Writ de Libertate probanda before the Lord bring this Writ then the Villain Plaintiff shall be in peace till the coming of the Iustices or else his Writ shall not help him Also if a Villain have tarried in ancient Demesne one year and a day without claim of the Lord then he cannot seise him in the said Franchise Naturalization NAturalization See Denizen Ne admittas NE admittas is a Writ directed to the Bishop at the Suit of one who is Patron of any Church and he doubts that the Bishop will collate one his Clerk or admit another Clerk presented by another man to the same Benefice then he that doubts it shall have this Writ to forbid the Sheriff to collate or admit any to that Church Negative Pregnant NEgative Pregnant is when an Action Information or such like is brought against one and the Defendant pleads in Bar of the Action or otherwise a Negative Plea which is not so special an answer to the Action but that it includes also an Affirmative As for example If a Writ of Entrie en casu proviso be brought by him in the Reversion of an Alienation by the Tenant for Life supposing that he hath aliened in Fee which is a Forfeiture of his Estate and the Tenant to the Writ saith He hath not alienated in Fee this is a Negative wherein is included an Affirmative for though it be true that he hath not aliened in Fee yet it may be he hath made an Estate in Tail which is also a Forfeiture and then the Entry of him in the Reversion is lawful c. Also in a Quare impedit the King makes Title to present to a
Law and for not performance thereof no Action lies for Ex nudo Pacto non oritur Actio Nuper obiit NUper obiit is a Writ and it lies where one hath many Heirs that is many Daughters or many Sons if it be in Gavelkind in Kent and dies seised and one Heir enters into all the Land then the others whom he holds out shall have this Writ against the Coheir that is in But a Writ of â— ationabili parte lies in such ca â— e where the Ancestor was once seised and died not seised of the Possession but in Revertion Nusance NUsance is where any Man raises any Wall or stops any Water or doth any thing upon his own Ground to the unlawful hurt or annoyance of his neighbor he that is grieved may have thereof an Assise of Nusance And if he that makes the Nusance aliens the Land to another then this Writ shall be brought against them both as it appears by the Stat. of Westm 2. c. 24. It may be also by stopping Lights in an House or causing water to run over House or Lands for remedy whereof an Action upon the Case or Assise lyeth O. Oblations OBlations are what things soever are offered to God and his Church by pious and faithful Christians Occupant OCcupant Is when a man makes a Lease to another for the Term of the Life of a third person The Lessee dies He who first enters shall hold the land as occupant during the life of the third person To prevent which such Leases are now made to the Lessee his heirs nnd assigns 2 Cro. 554. Co. 6. r. 37. Odio Atia ODio Atia is an old Writ mentioned in the Statute of Westm 1. made in 3 E. 1. cap. 11. and it was directed to the Sheriff to inquire whether a man committed to prison upon Suspicion of Murther were committed upon just cause of Suspicion or for Malice only And if upon an inquisition it were found that he were not guilty then there came another Writ to the Sheriff to bail him But now that course is taken away by the Statute of 28 E. 3. cap. 9. as it appears in Stamford's Pl. of the Crown fol. 77. G. Aud see Coke lib. 9. fol. 56. a. b. Ordael ORdael is as much as to say as Not guilty and was an ancient manner of Trial in Criminal causes for when the Defendant being arraigned pleaded Not guilty he might chuse whether he would put himself upon God and the Country which is upon the Verdict of twelve men as they are at this day or upon God onely and therefore it was called The Judgment of God presuming that God would deliver the innocent and that was if he were of Free estate by Fire that is to say to go bare-footed over nine Plow-shares fire-hot and if he escaped unhurt he should be acquitted and if not then he should be condemned And if the party were of Servile condition then he should be tried by Water which was in divers manners For which see Lambert in the word Ordalium But now this Trial is prohibited by Parliament See Coke lib. 9. fol. 32. b. Ordelfe ORdelfe is where one claims to have the Ore that is sound in his Soil or Ground Ordinary ORdinary is a term of the Civil Law and there signifies any Iudge that hath authority to take Conusance of Causes in his own Right and not by Deputation But in the Common Law it is properly taken for the Bishop of the Diocess who is the true Ordinary to certifie Excommunications lawful Marriages and such Ecclesiastical and Spiritual acts within his Diocess to the Iudges of the Common Law for he is the party to whom the Court ought to write upon such occasions And yet the word Ordinary is usually taken in the Common Law and Statutes for every Commissary or Official of the Bishop or other Iudge Ecclesiastical that hath Iudicial Authority within his Iurisdictio â— as appears in Coke l. 9. Hensloe's C. fol. 36. b. and the Statute of Westm 2. cap. 19. 31 E. 3. cap. 11. and many others Orfgild ORfgild signifies a payment or restoring of Cattel from the Sax. Orf. Pecus and Guild Solut â— o Redditio Ouster le maine OUster le maine is a Writ directed to the Escheator to deliver Seisin or Possession out of the Kings hands unto the party that sues the Writ for that the Lands seised are not holden of the King or for that he ought not to have the wardship of them or for that the Kings Title is determined c. It is also the Iudgement given in a Monstrans de Droit or upon a Traverse or Petition for when it appears upon the matter discussed that the King hath no Right or Title to the thing that he seised then Iudgment shall be given that the Kings hand be amoved and thereupon an Amoveas manum shall be awarded to the Escheator which is as much as if Iudgment were given that the party should have his Lands again And see for this Stamf. Prerog cap. 24. Outfangtheef OUtfangtheef is that Thieves or Felons belonging to your Land or Fee but taken out of it shall be brought back to your Court and there judged Outlary OUtlary See Utlary Owelty OWelty is when there is Lord Mesne and Tenant and the Tenant holds of the Mesne by the same Service that the Mesne holds over of the Lord above him as if the Tenant holds of the Mesne by Homage Fealty and xx s. Rent and the Mesne holds over of the Lord above by Homage Fealty and xx s. Rent also this is called Owelty of Services Hearing of Records and Deeds c. HEaring of Records and Deeds is where an Action of Debt is brought against a man upon an Obligation and the Defendant appears and then prays that he may hear the Obligation wherewith the Plaintiff charges him So it is when Executors bring an Action of Debt and the Defendant demands to hear the Testament upon this demand it shall be read unto him But if it be in another Term or after the Defendant hath imparled then he shall not hear it And so as is said of Deeds is to be understood of Records that are alledged against him But in the Kings Bench the Defendant may at any time before Plea and the Plaintiff have Oyer of Deed and Record See the Title Monstrans de Fait Oyer and Terminer OYer and Terminer is a Writ called in Latine de Audiendo Terminando and it lies where any great or sudden Insurrection is made or any other sudden Trespass which requires hasty Reformation then the King shall direct a Commission to certain Iustices to hear and to determine the same Note that the Iustices of Assise have also one Commission of Oyer and Terminer directed to them and divers other Inhabitants within the Shires whereunto their Circuit extends whereof each of the Iustices of Assise are of the Quorum for the hearing and determining of divers Offences which may
c. 10. f. 74. a. Purveyors PUrveyors were ancient Officers to provide Victuals for the King which Office is mentioned in the Statute 28 E. 1. cap. 2. 36 E. 4. cap. 6. 14 E. 3. cap. 19. But it is abolished by the Stat. 12 Car. 2. cap. 24. Q. Quadrantata terrae QUadrantata terrae is the fourth part of an Acre Quae plura QUae plura is a Writ that lies in case where the Escheator hath found an Office after the death of the Kings Tenant virtute officii and hath not found all the Lands of which he died seised then this Writ shall issue in nature of a Melius inquirendo to find what Lands he had more See F. N. B. f. 255. a. Quale jus QUale jus is a Writ that lies where an Abbot Prior or such other should have Iudgment to recover Land by Default of the Tenant against whom the Land is demanded then before Iudgment given or Execution awarded this Writ shall go forth to the Escheator to enquire what right he hath to recover And if it be found that he hath not right then the Lord who should have the Land if the Tenant had aliened in Mortmain may enter as into Land aliended in Mortmain for this losing by Default is like an Alienation See the Stat. Westm 2. c. 32. But where one will give Lands to a House of Religion an Ad quod damnū shall go forth to the Escheator to enquire of what value the Land is and what prejudice is shall be to the King Quare ejecit infra terminum QUare ejecit infra terminum is a Writ that lies where one makes a Lease to another for term of years and the Lessor infeoffs another and the Feoffee puts out the Termour then the Termour shall have this Writ against the Feoffee But if another stranger put out the Termour then he shall have a Writ De ejectione firmae against him And in these two Writs he shall recover the term and his dammages Quare impedit QUare impedit is a Writ that lies where I have an Addowson and the Parson dies and another presents a Clerk or disturbs me to present then I shall have the said Writ But Assise de darrein presentment lies where I or my ancestors have preseuted before And where a man may have art Assise de darrene presentment he may have a Quare impedit but not contratiwise Also if the Plea be depending between two parties and be not discussed within fix moneths the Bishop may present by Lapse and he that hath right to present shall recover his dammages as appears by the Statute of Westm 2. c 5. And if he that hath right to present after the death of the Parson brings no Quare impedit nor Darreine presentment but suffers a stranger to usurp upon him yet he shall have a Writ of right of Advowson But this Writ lies not unless he claim to have the Advowson to him and his heirs in Fee Quare incumbravit QUare incumbravit is a Writ that lies where two are in Plea for the Advowson and the Bishop admits the Clerk of one of them within the six moneths then he shall have this Writ against the Bishop But this Writ lies always depending the Plea Quare intrusit Matrimonio non satisfacto QUare intrusit Matrimonio non satisfacto is a Writ that lies where the Lord profers convenable Marriage to his Ward and he refuses and enters into the Land and marries himself to another then the Lord shall have this Writ against him Quare non admifit QUare non admifit is a Writ that lies where a man hath recovered an Advowson and sends his convenable Clerk to the Bishop to be admitted and the Bishop will not receive him then he shall have the said Writ against the Bishop But a Writ of Ne admittas lies where two are in Plea if the Plaintiff suppose the Bishop will admit the Clerk of the Defendant then he may have this Writ to the Bishop commanding him not to admit him hanging the Plea Quarels QUarels is derived from Querendo and extends not only to Actions as well real as personal but also to the Causes of Actions and Suits so that by the Release of all Quarels not only Actions depending in Suit but Causes of Action and Suit also are released and Quarels Controversies and Debates are words of one sense and of one and the same signification Coke lib. 8. fol. 153. Quarentine QUarentine is where a man dies seised of a Mannour-place and other Lands whereof the Wife ought to be endowed then the woman may abide in the Mannour-place and there live of the store and profits thereof the space of sorty days within-which time her Dower shall be assigned as it appears in Magna Charta cap. 6. Que estate QUe estate is a term in pleading to avoid prolixity as if a man pleads a feoffment in fee to A. cujus statum idem B. modo habet and no one can plead it but Tenant of the Fee nor can it be pleaded of things which pass meerly by grant as Advowsons Franchises c. Quid juris clamat QUid juris clamat is a Writ that lies where I grant the Reversion of my Tenant for life by Fine in the Kings Court and the Tenant will not attorn then the Grantee shall have this Writ to compel him But a Writ of Quem redditum reddit lies where I grant by Fine a Rent charge or another Rent which is not Rent service which my Tenant holds of me and the Tenant will not attorn then the Grantee shall have this Writ And a Writ of Per quae servitia lies in like case for Rent service Also if I grant four divers Rents to one man and the Tenant of the Land attourns to the Grantee by payment of a peny or of a half peny in the name of Attournment of all the Rents this Attournment shall put him in seisin of all the Rent But these three Writs ought to be brought against those who are Tenants at the day of the Fine levied and against no other Fifteenth FIfteenth is a Payment granted in Parliament to the King by the Temporalty namely the fifteenth part of their goods And it was used in ancient time to be levied upon their Cattel going in their grounds which thing was very troublesome and therefore now for the most part that way is altered and they use to levie the same by the Yard or Acre or other measure of Land by means whereof it is now less troublesome and more certain than before and every Town and Country know what sum is to be paid among them and how the same shall be raised We read that Moses was the first that numbred the people for he numbred the Israelites and the first Tax Subsidy Tribute or Fifteenth was invented by him among the Hebrews as Polydore Virgil thinks Quit claim QUit claim is a Release or Acquitting of a man for any Action that he
for him that is infeoffed with Warranty and is afterward impleaded in an Assise or other Action in which he cannot vouch then he may have this Writ against the Feoffor or his Heir to compel them to warrant the Land unto him And see of this Fitz. N. B. f. 134. D. See Garrantie of Charters Warrantia diei WArrantia diei is a Writ the lies in case where a man hath a day in any Action sue â— against him to appear in prope â— person and the King at that day or before imploys him i â— some service so that he cann â—â— appear at the day in Court the â— he may have this Writ direct â— to the Iuistices that they shal â— not record them to be in Defau â—â— for his not appearing And see 〈◊〉 this Fitz N. B. fol. 17. A. and â—â— the form of the Writ see G 〈◊〉 vile lib. 1. cap. 8. Warren WArren is a place Priviledged by Prescription or Grant of the King for the Preservation of Hares Conies Partridges and Pheasants or any of them Warwit WArwit or Wardwit as some Copies have it is to be quit of giving money for keeping of Wards Wast WAst is where Tenant for term or years Tenant for life or Tenant for term of anothers life Tenant in Dower or Tenant by the Curtesse or Gardian in Chivalry doth make Wast or Destruction upon the Land that is to say pulls down the House or cuts down Timber or suffers the House willingly to fall or digs the Ground then he in the Reversion shall have a Writ for that Wast and shall recover the place where the Wast is done and treble Dammages And if a Man cut down Timber without Licence and therewith repairs old Houses yet that is no Wast But if he with the Timber build a new house the cutting down of such Timber is Wast Also the cutting down of Vnder-wood or Willows which is no Timber shall not be said to be Wast unless they grow in the sight or shadow of the House Wast by the Civil Law is call'd Dilapidation and for that the Executor of a Rector or Vicar are answerable in the Court Christian There is also a Writ of Wast permittendo Messuagium vel domum fore in decasu ruinosum Co. Ent. 601. Wharf WHarf is a word used in the Statute of 1 Eliz. cap. 11. and other Statutes and is a Broad place near a Crock or Hithe of water upon which Goods and Wares are laid which are to be Ship'd and Transported from place to place Withernam WIthernam is the Taking or Driving of a Distress to a Hold or out of the County so that the Sheriff cannot upon Replevin make delivery thereof to the party distrained in which case a Writ of Withernam is directed to the Sheriff for the taking of as many of his Beasts that did thus unlawfully distrain or as much Goods of his into his keeping until he hath made deliverance of the first Distress Also if the Beasts be in a Fortier or Castle the Sheriff may take with him the Power of the County and bear down the Castle as appears by the Statute of Westm 1. cap. 20. Brit. cap. 27. Woodgeld WOodgeld seems to be the Gathering or Cutting of Wood within the Forrest or money paid for the same to the Foresters And the Immunity from this by the Kings Grant is by Crompt fol. 197. called Woodgeld Woodmote WOodmote is the old name of that Court of the Forrest which is now since the Statute of Charta de Foresta called the Court of Attachments and by the Statute is held every forty days but was wont to be held at the will of the chief Officers of the Forrest and at no certain time See Manwoods Forrest Laws cap. 22. fol. 207. a. Woolferthfod WOolferthfod is the condition of such who were Outlawed in the Saxons time for not submitting themselves to Iustice for if they could be taken alive they should be brought to the King and if they in fear of apprehension did defend themselves they might be slain and their heads brought to the King for they carried a Woolfs Head that is to say their Head was no more to be accounted of than a Woolfs head being a Beast so hurtful to man See the Laws of King Edward by Lambert f. 127. num 7. Bract. lib. 3. tract 2. cap. 21. This is written Wulve-sheaved by Roger Hoveden part poster Annal. fol. 343. Wreck WReck or Varech as the Normans from whom it came call it is where a Ship is perished on the Sea and no man escapes alive out of it and the Ship or part of it so perished or the Goods of the Ship come to the Land of any Lord the Lord shall have that as a Wreck of the Sea But if a Man or a Dog or a Cat escape alive so that the party to whom the Goods belong come within a year and a day and prove the Goods to be his he shall have them again by Provision of the Statute of Westm 1. cap. 4. made in King Edw. 1. days who therein followed the Decree of H. 1. before whose days if a Ship had been cast on shore torn with Tempest and were not repaired by such as escaped alive within a certain time that then was taken for Wreck Y. Yard-land YArd-land Virgata terrae in some Counties contains 20 Acres in some 24 and in some 30 Acres of Land Abate ABate semble de vener del Francois Abbatre i. rescindere destruere ad pleuseurs significations Come abater un Chesteau ou Fortlet Vet. Nat. br fo 45. que en Westm 1. ca. 17. est enterprete to beat down Et abater un brief est pur le defaire ou renverser per ascun Erreur ou Exception Britton ca. 48. Et luy que s'enterpose enter le prieur possesseur son Heir est dit abater en les Terres Veies Abatement Abatement de Brief ou Plaint ABatement de Brief ou Plaint est quant un Action est port per Brief ou Plaint en que fault sufficient bone matter ou auterment le matter alledge nest certainment alledge ou si le Plaintiff ou Defendant ou Lieu sont misnosme ou si la appear varience perenter le Brief le Specialty ou Record ou que le Brief ou Declaration sont uncertain ou pur mort del Plaintiff ou Defendant ou pur divers auters semblable causes donques sur ceux defaults le Defendant poit prier que le Brief ou Plaint abatera cest adire que le Suit del plaintiff envers luy cessera pur cest temps que il commencera auter temps son Suit port uÌ„ novel Brief ou Plaint sil soit issint dispose Mes si le Defendant en ascun Action plede un matter en Bar ' pur adnuller de Action a touts jours il ne viendra apres a pleader en Abatement de Brief mes si apres il