to them and their successours See Appropriation Prorata portionis See Onerando pro rata portionis Protection protectio hath a generall and a speciall signification In the generall it is vsed for that benefite and safetie that euery subiect or Denizen or alien specially secured hath by the Kings lawes And thus it is vsed anno 25. Ed. tertii capite 32. Protection in the speciall signification is vsed for an exemption or an immunitie giuen by the King to a person against suites in lawe or other vexations vpon reasonable causes him thereunto moouing which I take to be a braunch of his prerogatiue And of this protection Fitzh maketh two sortes in his nat br fol. 28. The first forme or sort he calleth a protectiō cum clausula volumus wherof he mentioneth foure particulars A protection quia profecturus for him that is to passe ouer sea in the kings seruice A protection quia moratur for him that is abroad in the Kings seruice vpon the sea or in the marches anno 7. H. 7. cap. 2. A protection for the Kings debter that he be not siewed or attached vntill the King be payed his debt See anno 15. Ed. 3. This some Ciuilians call moratoriam which see In singularibus Marantae verb. Princeps pag. 79. col 2. And a protection in the kings seruice beyond the seas or on the marches of Scotland whereof you may reade something anno 1. R. 2. cap. 8. See the Regist orig fol. 23. and Britton cap. 123. The second forme of protection is tearmed cum clausula Nolu 〈…〉 which is graunted most commonly to a spirituall company for their immunitic from taking of their catell by the Kings ministers But it may be graunted also to one man spirituall or temporall Of these things reade the same authour and the formes of these writs See also in the Register originall fol. 22. 23. And see the new Expositour of lawe termes to what action the kings protection doth not extend See also the new booke of Entries verbo Protection Protonotarie protonotarius See Preignetarie Protestation protestatio is as Iustice Walsh defineth it a defence or safegard to the partie which maketh it from being cōcluded by the act he is about to doe that issue cannot be ioyned vpon it Plowden fol. 276. b. whereof see the Register original fol. 306. b. And see Protest Protest protestari hath two diuers applications one is by way of cautell to call witnesse as it were or openly to affirm that he doth either not at all or but after a sort yeeld his consent to any act as vnto a proceeding of a Iudge in a court wherein his iurisdiction is doubtfull or to answer vpon his oath farder then he by lawe is bounde See Plowden casu Gresbroke fol. 276. b. and the Register orig fol. 306. b. Another is by way of complaint to protest a mans bill For example if I giue mony to a Merchant in Fraunce taking his bill of exchange to be repayed in England by one to whome he assigneth me if at my comming I find not my selfe satisfied to my contentment but either delayed or denyed then I goe into the Burse or some open concurse of Merchants and protest that I am deceiued by him And thereupon if he haue any goods remaining in any mans hands within the Realme the lawe of Merchants is that I be paid out of them Prouuer Probator See Approuuer anno 5. H. 4. ca. 2. See Approuours Prouince Prouincia was vsed among the Romans for a Country without the compasse of Italie gained to their subiection by the sword wherevpon the part of Fraunce next the Alpes was soe called of them when it was in their dominion and of that carieth the same name at this present But with vs a province is most vsually taken for the circuit of an Archebishops Iurisdiction as the Province of Canterbury and the province of Yorke anno 32. H. 8. cap. 23. anno 33. eiusdem cap. 31. yet it is vsed diuers times in our statutes for seuerall parts of the Realme Provinciall Prouincialis is a cheife gouernour of an order of Friers anno quar Henr. quar cap. 17. Protoforestarius was he whom the auncient kings of this Realme made chiefe of Winsour forest to heare all causes of death or mayhem or of slaughter or of the Kings deare within the Forest Camd. Britan. pag. 213. See Iustice of the Forest Prove See Profe Prouision Provisio is vsed with vs as it is vsed in the Canon lawe for the providing of a Bishop or any other person of an ecclesiasticall liuing by the Pope before the Incumbent be dead It is also called gratia expectatiua or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenus de sacris ecclesiae ministoriis beneficiis lib. 3. cap. 2. but also for England particularly in diuers statuts of the Realme viz. anno 25. Ed. 3. cap. 22 sttat 4. statu 5. commonly called the statute de prouiscribus anno 27. eiusdem cap. i. anno 38. eiusdem stat 2. cap. 1. 2. 3. 4. anno 38. eiusdem anno 2. Rich. 2. cap. 7. anno 3. eiusdem cap. 3. anno 7. eiusdem cap. 12. anno 12. eiusdem cap. 15. anno 13. eiusdem stat 2. cap. 2. 3. anno 16. eiusdem cap. 5. anno 2. H. 4. cap. 3. 4. anno 5. eiusdem cap. pri anno 7. eiusdem cap. 6. 8. anno 9. eiusdem cap. 8. anno 3. H. 5. cap. 4. See Praemunire Provisour Provisor is he that sieweth to the court of Rome for a prouision old nat br fol. 143. See Provision Proviso is a condition inserted into any deede vpon the obseruance wherof the validitie of the deede consisteth which forme of condition seemeth to be borrowed from Fraunce for Pourve u Gallicum semper conditionem inducit Tiraquel tomo 3. pag. 216. Our common lawyers say that it sometime signifieth but a couenant whereof you haue a large disdispute in the 2. booke of Sir Ed. Cokes reports in the Lord Cromwels case It hath also another signification in maters Iudiciall as if the plaintife or demaundant desist in prosecuting an action by bringing it to a triall the defendant or tenent may take out the venire facias to the Shyreeue which hath in it these words Prouiso quòd c. to this ende that if the plaintife take out any writ to that purpose the shyreeue shall summon but one Iurie vpon them both See old natura breuium in the writ Nisi prius fol. 159. Purchas See pourchas Purfles of a womans growne anno 33. H. 8. cap. 5. Purgation Purgatio is a cleering of a mans selfe from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great vse in England touching maters of felonie imputed to Clerks in former time as appeareth by Stawnf pl.
benefice conferreth it vpon his Clerke whilest two others be contending in law for the right of presenting Exposition of the terms of law old nat br fol. 30. and Fitzh nat br fol. 48. Register originall fol. 32. Quare intrusit matrimonio non satisfacto is a writ that lyeth for the Lord against his tenent being his ward that after couenable mariage offered him marieth another and entreth neuer the lesse vpon his land without agreement first made with his Lord and Gardian Terms of the law Quare non permittit is a writ that lyeth for one that hath right to present for a turne against the proprietary Fleta lib. 5. cap. 16. Quarentine quarentina is a benefit allowed by the lawe of England to the widow of a landed man deceased whereby shee may challenge to continue in his capitall messuage or cheife mansion house by the space of 40. daies after his decease Of this see Bracton lib. 2. cap. 40. And if the heire or any other attempt to eiect her shee may haue the writ De Quarentina habenda Fitzh nat br fol. 161. see anno 9. H. 3. cap. 7. anno 20. cap. pri and Britton cap. 103. M. Skene de verborum significatione verbo Quarentina viduarum deriueth this word from the French Quaresme Who also haue this custome called lo quaresme des vefues granted to widows after the decease of their husbands as he proueth out of Papon in his Arrests libro 15. titulo des dots cap. 7. lib. 10. tit Substitutiones cap. 30. Of this read Fleta also lib. 5. cap. 23. Quarentena habenda is a writ that lyeth for a widow to inioy her Quarentine Register originall fol. 175. Quare non admisit is a writ that lyeth against the Bishop refusing to admit his Clerk that hath recouered in a plee of Aduowsen The furder vse whereof see in Fitzh nat br fol. 47. Register originall fol. 32. See the new booke of Entries verbo quare non admisit Quare obstruxit is a writ that lyeth for him who hauing a seruitude to passe through his neighbours ground cannot inioy his right for that the owner hath so strengthened it Fleta li. 4. cap. 26. § Item si minus Quarter Sessions is a court held by the Iustices of peace in euery Countie once euery quarter The iurisdiction whereof how farre it extendeth is to be learned out of M. Lamberds Eirenarcha Sir Thomas Smith de Republ. Anglor lib. 2. ca. 19. But to these you must adde the late statutes of the Realme for their power daily increaseth Originally it seemeth to haue bene erected onely for maters touching the peace But in these daies it extendeth much farder That these Sessions shold be held quarterly was first of all ordeined so farre as I can learne by the statute anno 25. Ed. 3. stat pri cap. 8. of these read Lamberds Eirenarcha the fourth booke throughout where he setteth them out both learnedly and at large Quashe quassare commeth of the French quasser i. quassare conquassare it signifieth in our common law to ouerthrowe Bracton lib. 5. tracta 2. cap. 3. nu 4. Quekbord anno 17. Ed. 4. ca. 2. Que est mesme signifieth verbatim Which is the selfe same thing It is vsed in our common law as a word of art in an action of trespas or of like nature for a direct iustification of the very act complained of by the plaintffe as a wrong for example in an action of the case the plaintiffe saith that the Lord threatned his Tenents at will in such sort as he draue them to giue vp their tenures The Lord for his defence pleadeth that he said vnto them that if they would not depart he would siew them as the law would This being the same thretning that he vsed or to speake artificially que est le mesme the defence is good Of this see Kitchin in the chapter Que est le mesme fol. 236. where you may haue many like examples Que estate word for word signifieth Quem statum It signifieth in our common law a plee whereby a man intitling another to lands c saith that the same estate that he had himselfe hath from him for example in a Quare impedit the Plaintife alleadgeth that such foure persons were seised of lands whereunto the Advowsen in question was appendant in fee and did present to the Church and afterward the Church was voide Que estat del c. that is which estate of the foure persons he faith also that he hath nowe during the vacation by vertue whereof he presently c. Brooke titulo Que estate fol. 175. 176. But it is harder to knowe when this Que estate is to be pleaded then to vnderstand what it is as by him may appeare See the new booke of Entries verbo Que estate Queene Regina is either shee that houldeth the Crowne of this Realme by right of blood or els shee that is maried to the King In the former signification shee is in all construction the same that the King is and hath the same power in all respects In the other signification shee is inferiour and a person exempt from the King For shee may siew and be siewed in her owne name Yet that shee hath is the Kings and looke what shee looseth so much departeth from the King Stawnf praerog cap. 2. fol. 10. in fine See Kitchin fol. 1. b. See Cooke lib. 4. Copy-hould cases fo 23. b. Augusta was the like among Romaines how be it not euisdem iuris in all things Queenes siluer See Kings siluer Quem reditum reddat is a writ Iudiciall that lyeth for him to whom a rent seck or rent charge is graunted by fine leuied in the Kings Court against the Tenent of the land that refuseth to atturne vnto him thereby to cause him to atturne See old nat br fol. 156. and West parte 2. Simbol titulo Fines sect 125. See the new booke of Entries Verbo Quem reditum reddit Querela friscae fortiae is a writ See Fresh force Querela coram Rege consilio discutienda terminanda is a writ whereby one is called to iustifie a complaint of a trespasse made to the king and himselfe before the King his counsell Register originall fol. 124. b. Questus est nobis c. is the sorme of a writ of Nusance which by the statute anno 13. Ed. pri cap. 24. lieth against him to whome the house or other thing that breedeth the Nusance is alienated wheras before that statute this actiō lay onely against him that first leuied the thing to the hurt of his neighbour See the Statute Quia improvide seemeth to be a supersedeas graunted in the behalfe of a clerke of the Chawncerie siewed against the priuiledge of that court in the common plees persiewed to the exigēd See Dyer f. 33. n. 18. Quid iuris clamat is a writ Iudiciall issuing out of the Record of the Fine which remaineth with
man against another that vpon any cause possesseth or occupieth the thing required or siewed for in his owne name and none other mans and in this onely respect that he possesseth or occupieth the thing and none other Bract. ibid. nu 3. and his reason is this quia habet rem vel possidet quam restituere potest vel dominum nominare This definition reason he farther exēplifieth in the words there following which he that wil may reade at large Action mixt is that which lyeth aswell against or for the thing which we seeke as against the person that hath it and is called mixt because it hath a mixt respect both to the thing the person Bract. lib. 3. cap. 3. nu 5. For example the diuision of an inheritance betweene coheyres or copartners called in the ciuill lawe actio familiae exciscunde secondly the diuision of any particular thing being common to more called likewise actio de communi dividundo this kind of action saith Bracton doth seeme to be mixt because it lyeth as well against thing as the person and indeed so do other excellent Civilians as Cuiacius and Wesenbecius in their Paratitles Π. finium regund And though Iustinian in his first diuision omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certaine actions naming these and other of like nature that seeme to haue a mixture c. Of this you may also reade Britton at large in his chapter 71. And this diuision of action springeth frō the obiect or matter wherabout it consisteth Wesenb parat 〈◊〉 de actio obliga The author of the new tearmes of law defineth a mixt action to be a suite giuen by the lawe to recouer the thing demaunded and also the dammages for wrong done as in Assise of nouel disseysin the which writ if the diffeisour make a feofment to another the disseiseur shall haue remedie against the disseisour and the feoffer or other land tenant to recouer not onely the land but the dammages also See the rest These words occasion me to shew that actio is by the ciuill lawe called mixta in two respects Nam quaedam mistae sunt quòd in se actionis in rem actionis personalis natur am habeant in iis actor reus vterque sit l. actionis verbo § fina Π. de obliga actio Tales sunt actio familiae ercise communi diuidun finium regun quaedam verò mistae sunt quòd remsimul poenam persequantur vt in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta soluere distulerunt And of this later sort is the example that the said author bringeth of a mixt action Action is also by the Civilians divided of the efficient cause in civilem praetoriam Whereof the one riseth out of the common civil lawe the other from some edict of the Pretour Who being cheife Iusticer had authoritie for his yeare to supply the defects of the general law by his especial edicts And a division not vnlike this may be made in the common law of England one growing from the auncient qustomary law the other from some statute Broke tit Action sur le statut Action of the finall cause is divided into civil poenal mixt Cooke vol. 6. fo 61. a. Action civile is that which tendeth onely to the recouerie of that which by reason of any contract or other like cause is due vnto vs as if a man by action seeke to recouer a summe of money formerly lent c. Action penall is that aimeth at some penaltie or punishment in the partie sued be it corporall or pecuniarie As in the action legis Aquiliae in the civile lawe whereby in our common lawe the next frends of a man feloniously slaine or wounded shall persue the law against the murderer or him that wounded him to condigne punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are depriued and a penaltie also for the vniust deteyning of the same as in an action of tithe vpon the statute anno 2. 3. Ed. 6. ca. 13. Action is also according to the forme of petion divided into such as are conceiued to recouer either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doeth Decies tantum lie against embracers Fitzh nat br fo 171. and against iurours that take mony for their verdict of one part or the other or both And to be short any other action vpon a statute that punisheth any offence by restitution or fine proportionable to the transgression Action is preiudiciall otherwise called preparatorie or els principall preiudiciall is that which groweth from some question or doubt in the principall as if a man sue his younger brother for land descended from his father and it be obiected vnto him that he is a bastard Bract. li. 3. ca. 4. nu 9. For this pointe of bastardie must be tried before the cause can farder proceede therefore is termed preiudicialis quia prius iudicanda Action is either awncestrell or personall Stawnf pl. cor 59. Auncestrel seemeth to be that which we haue by some right descending from our auncester vpon vs and that personall which hath the beginning in and from our selues Action vpon the case actio super casu is a generall action giuen for redresse of wrongs done without force against any man and by lawe not especially provided for For where you haue any occasiō of suite that neither hath a fitte name nor certaine forme alreadie prescribed there the clerkes of the chauncerie in auncient time conceiued a fitte forme of action for the fact in questiō which the Civilians call actionem infactum our common lawyers action vpon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gestae enarratione declarant citra formulā ac solennitatem vllā Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the civile lawe there are two sorts actionis in factum one tearmed actio in factum ex praescriptis verbis the other actio in factum praetoria We semb parat de praescrip verb. the former growing vpon words passed in contract the other more generally vpon any fact touching either contract or offence formerly not provided against this action vpon the case seemeth in vse to bemore like to the pretours action in factum then to the other because in the perusall of the new booke of entries and Brookes his abridgement heerevpon I perceiue that an action vpon the case lieth as well against offenses as breach of contract Of this see more in the word Trespas Action vpon the statute actio super statuto is an action brought against
is vsed in the common law for that which commeth in or is adhering of the side as collaterall assurance is that which is made ouer and beside the deede it selfe For example if a man couenant with another and enter bond for the performance of his couenant the bond is termed collaterall assurance because it is externall and without the nature and essence of the couenant And Crompton in his Iurisd fol. 185. saith that to be subiect to the feeding of the kings Deere is collateral to the soyle within the Forest In like maner may we say that the libertie to pitche boothes or standings for a Faire in another mans ground is collaterall to the ground The priuate woods of a common person within a Forest may not be cut without the kings licence For it is a prerogatiue collaterall to the soyle Manwood parte 1. of his Forest lawes pag. 66. Collaterall warrantie See Warrantie Collation of a benefice collatio beneficii signifieth properly the bestowing of a benefice by the Bishop that hath it in his owne gift or patronage and differeth from Institution in this for that Institution into a benefice is performed by the Bishop at the motion or presentation of another who is patron of the same or hath the patrons right for the time Extra de Institutionibus De concessione praebendarum c. And yet is collation vsed for presentation anno 25. Ed. 3. stat 6. Collatione facta vni post mortem alterius c. is a writ directed to the Iustices of the coÌ„mon plees commanding them to direct their writ to a Bishop for the admitting of a clerk in the place of another presented by the king that during the suit betweene the king and the Bishops clerk is departed For iudgment once passed for the kings clerk and he dying before he be admitted the king may bestow his presentation vpon another Register orig fo 31. b. Collatione heremitagii is a writ whereby the king conferreth the keeping of an ermitage vpon a clerk Register orig fo 303 308. Colour color signifieth in the common law a probable plee but in truth false and hath this end to draw the triall of the cause from the Iury to the Iudges Of this see two apt examples in the author of the new tearms Verbo Colour who also referreth you to the Doctor and student fo 158. c. See Broke tit Colour in assise trespas c. fo 140. Collusion collusio is in our common law a deceitfull agreemeÌ„t or compact between two or more for the one party to bring an action against the other to some euill purpose as to defraude a third of his right c. See the new tearms and Broke titulo Collusion See also one case of collusion in the Register orig fo 179. a. Combat duellum is a french word signifiing as much as certamen decertatio dimicatio discrimen praelium pugna but in our common law it is taken for a formall triall of a doubtfull cause or quarrell by the sword or bastons of two champions Of this you may reade at large both in diuers ciuilians as Paris de Puteo de remilitari duello Alciat de duello Hotomam disputatio feudalium ca. 42. and others as also in our common lawyers of England namely Glanuile li. 14. ca. 1. Bracton li. 3. tracta 2. ca. 3. Britton ca. 22. Horns mirrour of Iustices li. 3. ca. des exceptions in fine proxime ante c. IuramentuÌ„ duelli Dier fo 301. nu 41. 42. That this also was aunciently the law of the Lombards before they inuaded Italy which was about the yeare of our Lord 571 appeareth by Sigonius in his historie De regno Italiae lib. 2. de Ariâ—aldo rege who there reporteth that the said king hauing put away his wife Gundeberga vpon a surmise of adulterie with Tato Duke of Etruria at the priuate suggestion of Adalulphus a great man among the Lombards and being charged by Clotharius the king of France his Ambassadors of whose bloud she was that he had done her wrong he answered that he had done her no wrong Whereupon Ansoaldus one of the ambassadors replyed that they would easily beleeue him if he would suffer the truth to be tried by combat betweene some one of the Queens friends and her accuser according to the custome of the Lombards And the king yeelding vnto this Adalulphus was vanquished by one Pitto otherwise called Charles set foorth for the Queenes chaÌ„pion and she restored to her former place and honour Cominseede aliâs Cumin seed Semen cumini is a seede brought foorth by an hearbe so called which you may see described in Gerards Herball lib. 2. cap. 416. This is placed among the garbleable drugges anno 1. Iacob cap. 19. Comitatu commisso is a writ or a commission whereby the Shyreeue is authorized to take vpon him the swaye of the countie Regist orig fol. 295. a. b. and Co 〈…〉 Reports li. 3. fol. 72. a. Comitatu castro commisso is a writ whereby the charge of a countie together with the keeping of a castell is committed to the Shyreeue Reg orig fol. 295. a. Commaundrie praeceptoria was by some mens opinion a maner or chiefe mefuage with which lands or tenements were occupied belonging to the Priorie of S. Iohns in Hierusalem in England and he which had the gouernement of any such maner or house was called the commaunder who had nothing to dispose of it but to the vse of the Priorie taking onely his sustenance thence according to his degree and was vsually a brother of the same Priorie Author of the new tearmes of lawe verbo Commaundrie By some other bookes it appeareth that the chiefe Prior of S. Iohns was a coÌ„maunder of a Nunnerie and coÌ„stituted the Priores of the said Nunnerie who was vnder his obedience and remoueable at his will notwithstanding that shee had covent and common seale and had her possessions seuerall and was wont to lease the land for terme of yeares Fulbecks Paralels fol. 2. a. Of these commaÌ„dries also Petrus Gregorius lib. de beneficiis cap. 11. num 11. hath these words Praeceptoriae dictae commendae sacrorum militum 〈…〉 eluti ordinis hospitalii Sancti Ioannis Hierosolymitani beneficia quidem secundum quid Ecclesiastica dic untur à Barbatia ad Clement causam col 51. de Electione Tamen non propriè dicuntur ex genere communium beneficiorum eo quòd personae conferentes quibus conferuntur non sunt laicae vel ecclesiasticae sed tertu ordinis De hiis beneficiis â—fit mentio cap. exhibita de priuilegiis in extravag com in cap. Dudum de decimis These in many places of our realme are termed by the name of temples because they sometime belonged to the Templers Of these you reade ann 26 H. 8. cap. 2. anno 32. eiusd ca 24. And of these the said Gregorius Tolosanus li. 15. sui syntagmatis cap. 34. hath these words Monuimus superiori capite
convenable as in the stat an 27. Ed. 3. stat 2. ca. 17. Couenāt conuētio is the consēt of two or more in one self thing to doe or giue somwhat West part 2. symbol li. 1. sect 4. It seemeth to be as much as pactum conventum with the ciuilians which you read often times in Tullie Pactum conuentum quod vulgo vestitum vocant opponitur nudo pacto velut ab omni iuris solennitate destituto Huius exempla ponere difficile esse Iason existimavit Conventum aiunt quod vestitur aut re aut verbis aut literis aut contractus cohaerentiâ aut rei interuentu Oldendorpius And couenant in this signification is either a covenant in lawe or a couenant in fact Coke lib. 4. Nokes case fo 80. or couenant expresse couenant in lawe idem li. 6. fo 17. ae Couenant in law is that which the law intendeth to be made though in words it be not expressed as if the lessour doe dimise and graunt c. to the leassee for a certaine tearme the lawe intendeth a couenant of the lessours part that the lessee shall during his whole terme quietly inioy his lease against all lawfull encumbrance Covenant in fact is that which is expressely agreed betweene the parties There is also a couenant meerely personall and a couenant reall Fitz. nat br fo 145. And he seemeth to say that a couenant reall is whereby a man tieth himselfe to passe a thing reall as land or tenements as a couenant to levie a fyne of land c. a couenant meerely personall of the other side is where a man couenanteth with another by deede to build him a house or any other thing or to serue him or to infeoffe him c. Couenant is also the name of a writ for the which see Conuentione Instruments of couenants you may see good store in West parte i. Symbolaeog li. 2. sectio 100. See also the new booke of entries verbo Couenant Couent conuentus signifieth the society or fraternity of an abbie or priorie as societas signifieth the number of fellowes in a colledge Bracton li. 2. ca. 35. It commeth of the french conuent i. coenobium Couerture is a french word signifying any thing that couereth as apparell a couerlet c. and deduced from the verb couvrer i. tegere It is particularly applied in our common lawe to the estate and condition of a maried woman who by the lawes of our realme is in potestate viri and therefore disabled to contract with any to the preiudice of her selfe or her husband without his consent and priuity or at the least without his allowance and confirmation Broke hoc tit per totum And Bracton saith that omnia quae sunt vxoris sunt ipsius viri nec habet vxor potestatem sui sed vir li. 2. ca. 15. and that vir est caput mulieris li. 4. ca. 24. and againe that in any law mater sine viro respondere non potest li. 5. tract 2. ca. 3. and tract 5. ca. 25. eiusdem libri he hath words to this effect vir vxor sunt quasi vnica persona quia caro vna sanguis vnus Res licet sit propria vxoris vir tamen eius custos cùm sit caput mulieris and li. 1. ca. 10. nu 2. Vxores sunt sub virga viri And if the husband alienate the wifes land during the mariage shee cannot gainesay it during his life See Cui ante diuortium and Cui in vita Covine covina is a deceitfull assent or agreement betweene two or more to the preiudice or hurt of another New tearms of lawe It commeth of the french verb conuenancer i. depacisci or rather conuenir i. conuenire Cowcher signifieth a factour that continueth in some place or country for trafique anno 37. Ed. 3. ca. 16. It is vsed also for the generall booke into which any corporation entreth their particular acts for a perpetuall remembrance of them Counte cōmeth of the french coumpte i. subductus cōputatio ratio or of cōte i. narratio It signifieth as much as the originall declaratiō in a proces though more vsed in reall actions then personall as declaration is rather applied to personall then reall Fitzh nat br fo 16. A. 60. D. N. 71. A. 191. E. 217. A. Libellus with the ciuilians comprehendeth both And yet count and declaration be confounded sometimes as count in debt Kitchin fo 281. count or declaration in appeale pl. cor fo 78. Count in trefpasse Britton cap. 26 count in an action of trespasse vpon the case for a slaunder Kit. fol. 252. This word seemeth to come from France Normandy For in the grand Custumarie c. 64. I find conteurs to be those which a man setteth to speake for him in court as aduocates cap. 63. pledeurs to be another sort of spokes men in the nature of Atturneys for one that is him selfe present but suffereth another to tell his tale Where also in the 65. chapter Atturney is said to be he that dealeth for him that is absent See this text and Glosse vpō those 3. chapters Countours by Horn in his Myrror of Iustices li. 2. ca. Des loyers are Sergeants skilfull in the lawe of the Realme which serue the cōmon people to pronounce and defend their actions in iudgement for their fee when occasiō requireth whose duty if it be as it is there described and were obserued men might haue much more comfort of the lawe then they haue Countenance seemeth to be vsed for credit or estimation old na br fol. 111. in these words Also the attaint shall be graunted to poore men that will sweare that they haue nothing whereof they may make fine sauing their countenance or to other by a reasonable fine So is it vsed anno 1. Ed. 3. stat 2. cap. 4. in these words Shyreeues shall charge the kings depters with as much as they may leuie with their oathes without abating the depters countenance Cownter computatorium feemeth to come of the Latin computare or the French counter For we vse it for the name of a prisō wherinto he that once slippeth is like to accompt ere he get out Counter plee is compounded of two French words contre i. contra adversus and pleder i. causam agere It signifieth properly in our common lawe a replication to ayde prier For when the tenent by courtesie or in dower prayeth in ayde of the king or him in the reuersion for his beter defence or else if a stranger to the action begun defire to be receiued to say what he can for the safegard of his estate that which the demandant alledgeth against this request why it shuold not be admitted is called a counter plee See Broke 〈…〉 t. And in this signification it is vsed anno 25. Ed. 3. st at 3. cap. 7. See also the new termes of the law and the statute anno 3. Ed. 1. cap. 39. County comitatus signifieth as much as shire the one descending
boothes or standings Picle ali 〈…〉 p 〈…〉 seemeth to come from the Italian piccolo vel picciolo i. parvus minutus and signifieth with vs a little small close or inclosure Pienour commeth of the French Pionnier i. fossor and signifieth such labourers as are taken vp for the Kings host to cast trenches or vndermine forts anno 2. 3. Ed. 6. cap. 20. Piepowders court Curia pedis pulverizati cōmeth of two French words pie◠i. pes and pouldreux i. pulverulentus It signifieth a court held in faires for the redres of all disorders cōmitted within them which because it is summarie de plano sine figura iudicii it hath the name of dustie seete which we cōmonly get by sitting neere the ground of this see Cromptons Iurisd fol. 221. Reade M. Skene de ver signif verbo Pedepulverosus which word he reporteth to signifie a vagabond especially a merchant which hath no place of dwelling where the dust may be wiped of his feet or shooes therefore must haue iustice summarily ministred vnto him viz. within three flowings and three ebbings of the sea Bract. calleth it Iustitiam pepoudrous li. 5. tract 1. ca. 6. nn 6. Of this court reade the statute anno 17. Ed. 4. cap. 2. Pille of Foddray in the countie of Lancastor an 〈◊〉 H. 6. ca. 5. seemeth to be a creeke and called pille by the ideom of the country for pile for the which see Pile Pillorie Collistrigium Pillorium commeth of the French Pilorie which may seeme to smell of the greeke and to proceede from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because one standing on the pillory putteth his head through a kind of doore i. ianua 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. video it signifieth all one thing with it sauing that the French is vsed for a tumbrell as well as for that which we call the pillorie There is a statute made of the pillorie anno 51. H. 3. wherein you may see who were then subiect to this punishment This was among the Saxons called Healsfang of Heals a necke and Fang to take Lamb. explication of Saxon words verbo Mulcta Pipe pipa seemeth to be a rolle in the exchequer otherwise called the great rolle anno 37. Ed. 3. ca. 4. See Clerke of the pipe It is also a measure of wine or oile couteining halfe a tunne that is sixe score sixe gallons anno 1. R. 3. cap. 13. Piscarie piscaria commeth of the French peschario i. piscatio It signifieth in our common lawe a libertie of fishing in an other mans waters Pittle See Picle Placard anno 2. 3. Ph. Mar. cap. 7. is a licence whereby a man is permitted to maintaine vnlawfull games Plaint Querela is a French word signifing as much as Questus querimonia In our common law it is vsed for the propounding of any action personall or reall in writing So it is vsed in Brooke titulo Plaint in Assise And the party making this plaint is called plaintife Kitchin fol. 231. Plea placitum commeth of the French ploid i. lis controversia It signifieth in our common lawe that which either partie alleadgeth for himselfe in court And this was wont to be done in French from the Conquest vntill Edward the 〈◊〉 who ordeined them to be done in English a. 36. cap. 15. Pleas are diuided into pleas of the Crowne and common pleas Pleas of the Crowne in Scotland be 4. roberie rape murder and wilfull fire Skene de verb. sign verb. Placitum with vs they be all suites in the Kings name against offences committed against his Crowne and dignitie Stawnf pl. cor cap. 1. or against his Crowne and peace Smith de Repub. Augl li. 2. cap. 9. And those seeme to be treasons felonies misprisions of either and mayhem For those onely doth that reverend Iudge mention in that tractat Common pleas be those that be held betweene common persons Yet by the former definitions these must comprise all other though the king be a partie Plea may farder be diuided into as many braunches as Action which see For they signifie all one Then is there a Forein plea whereby mater is alleadged in any court that must be tried in another As if one should lay Bastardy to another in a court Baron Kitchin fo 75. The word placitum is vsed by the Commentours vpon the Feuds in the same signification that pleas be with vs. And placitare with them is litigare causas agere Hotom in verb. feudal verb. Placitare Pledge Plegius commeth of the French Pleige i. fideiussor Pleiger ancun i. fideiubere pro aliquo In the same signification is Plegius vsed by Glanuile libro decimo capite quinto and Plegiatio for the act of suretiship in the interpreter of the Grand Custumarie of Normandie capite 60. Plegii dicuntur persona◠qua se obligant ad hoc ad quod qui eos mittit tenebatur And in the same booke capit 89. 90. Pligutio is vsed as Glanuile before doth vse it Salui plegii be vsed for plegii pupill oculi parte quint. capit 22. Charta de Foresta This word plegius is vsed also for Frank pledge sometime as in the ende of William Conquerours lawes set out by Master Lamberd in his Archaiononi fol. 125. in these words Omnis homo qui voluerit se teneri pro libero sit in plegio vt plegius eum habeat ad Iusticiam si quid offenderit c. And these be called capitall pledges Kitchin folio decimo See Frank pledge Plena forisfactura and plena vita fee Forfeiture Plegiis acquietandis is a writ that lieth for a suretie against him for whome he is suretie if he pay not the money at the day Fitzh nat br fol. 137. Regist. original 158. a. Plenartie is an abstract of the adiectiue plenus and is vsed by our common Lawyers in mater of benefices Wherein plenartie and vacation be meerely contrarie Stawnford prarogativ cap. octau fol. 32. West secundo capit quint. anno 13. Edvard pri Plevin pleuina commeth of the French plenine i. sponsio See Replevin Plite of Lawne c. anno 3. Ed. 4. cap. 5. seemeth to be a certaine measure as a yard or elle c. Plonkets anno 1. R. 3. cap. 8. is a kind of wollen cloth Pluries is a writ that goeth out in the third place For first goeth out the originall Capias which if it speed not then goeth out the Sicut aliâs and if that faile then the Pluries See old nat br fol. 33. In the writ De excom capiendo see in what diuersitie of cases this is vsed in the Table of the original Regist Pole See Perch Polein anno 4. Ed. 4. cap. 7. seemeth to be a sharpe or picked toppe set in the forepart of the shooe or boott This fashion was first taken vp in Richard the seconds dayes the pickes being made so long as they were tyed vp to the knees with siluer or golden chaines and forbidden by Edward the fourth Stow pag. 4.
Tollendo but I rather thinke it commeth from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. vectigalium redemptio vel etiam vectigalium exactio Fleta hath these words of it Tol significat acquietantiam Theolonii vbique in Regno lib. pri cap. 47. M. Skene de verb. signifi verbo Toll saith it is a custome and that it commeth from the Greeke word of the same signification 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that he who is infeoffed with Toll is custome free and payeth no custome which is manifest by sundry ould bookes wherein it is writen Toll hoc est quod vos homines vestri de toto homagio vestro sint quieti de omnibus mercantus de Tolneto de omnibus rebus emptis venditis Thus farre he Kitchin fol. 104. maketh mention of Tolle through and Toll Trauers his words be to this effect Custom or prescription to haue Toll through in the high way is not good for it is against the common right But to haue prescription of Tolle Trauers is good In which place the difference betweene the one and the other the newe expositour of lawe terms faith to be that tolletrauers is that mony which is taken for passing ouer a priuate mans ground But this author seemeth to differ from Kitchin touching the lawfulnes of tolle through saying that by reason of a bridge prouided at the cost and charge of the towne for the ease of trauellers he thinketh it resonable that tolle through be exacted toward the maintenance thereof which writer also maketh mention of tolle turn and that he defineth to be tolle paide for beastes driuen to be sold though they be not sold indeede Where I think he must meane a tolle paide in the returne homeward from the faire or market whether they were driuen to be sold Plowden casu Willion fo 236. agreeth in this definition of tolle trauers And this the Feudists call parangariam defining it to be sumptus labores ferendi referendiue alicuiâ—s causa a principe impositi cùm non per viam sed aliò versùm iter suscipitur l. 2. Co. de Episc cleri a graeco 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. transitus per viam transversam Gothofred ad l. 4. § 1. Î . de vetera I finde in Andrew Horns mirrour of Iustices lib. 1. cap. des articles c. that by the auncient lawe of this land the buyers of corne or catell in faires or markets ought to pay tolle to the Lord of the market in testimony of their contract there lawfully made in open market for that priuie contracts were held vnlawfull Toloneum or Breve de essends quietum de Toloneo is a writ that lyeth in case where the Citizens of any Citie or Burgesses of any towne be quit from tolle by the graunt of the kings predecessours or prescription which you haue at large in Fitzh nat br fol. 226. See Telonium Tolt Tolta is a writ whereby a cause depending in a court Baron is remoued into the county court Old nat br fol. 2. The reason of the appellation seemeth â—o come from the verb Tollo v Cooke lib. 3. in praefatione ad lectorem Tonne See Tunne Tonnage is a custome or impost due for merchaÌ„dise brought or caried in tonns and such like vessels from or to other nations after a certain rate in euery tonne anno 12. Ed. 4. ca. 3. anno 6. H. 8. ca. 14. anno pri Ed. 6. cap. 13. anno pri Iacobi cap. 33. I haue heard it also called a duty due to the Mariners for vnloading their ship arriued in any hauen after the rate of euery tonne Torny See Turney Totted anno 42. Ed. 3. cap. 9. anno 1. Ed. 6. ca. 15. is a word vsed of a dept which the forein Apposer or other officer in the Exchequer noteth for a good dept to the King by writing this word Tot vnto it Tourn See Turn Tout temps prist vncore est that is to say in English Alway ready and is at this present this is a kinde of plee in way of excuse or defence vnto him that is siewed for withhoulding any dept or duty belonging to the plaintiffe See of this Brooke his Abridgement fol. 258. Traile baston See Iustices of triall baston Traitor traditor proditor See Treason Transgressione is â—writ called commonly a writ or action of trespas Of this Fitzherbert in his Naturabre hath two sorts one Vicountiel so called because it is directed to the Shyreeue and is not returnable but to be determined in the countie The forme whereof differeth from the other because it hath not these words Quare vi amis c. and this see in Fitzh nat br fol. 85. G. The other is termed a writ of trespasse vpon the case which is to be siewed in the common Bank or the Kings Bench in which are alwaies vsed these words vi armis c. And of this you haue Fitzh nat br fol. 92. E. See Trespas See the diuers use of this writ in the Register originall in the table Transcript anno 34. 35. H. 8. cap. 14. is the copy of any originall writen againe or exemplified Transcripto Recognitionis factae coram Iusticiariis itiner antibus c. is a writ for the certifiing of a Recognisance taken before Iustices in Eire into the Chauncery Register orig fol. 152. b. Transcripto pedis finis levati mittendo in Cancellariam is a writ for the certifiing of the foote of a fine leuied before Iustices in Eyre c. into the Chauncerie eodem fol. 169. Register Iudiciall fol. 14. Travers coÌ„meth of the French Traverser i. transfigere It signifieth in our common lawe sometime to denie sometime to ouerthrow or vndoe a thing done Touching the former signification take these words in Wests symbol parte 2. titulo Chauncery sect 54. An answer saith he speaking of an answer 〈◊〉 a bille in Chauncerie is that which the Defendant pleadeth or saith in barre to avoide the plantiffes bille or action either by confession and avoiding or by denying and traversing the materiall parts thereof And againe sectio 55. A replication is the plaintifles speech or answer to the Defendants answer which must affirme and persiew his bille and confesse and auoide deny or traverse the Defendants answer And the formall words of this trauers are in Lawyers French sans ceo in Latine absque hoc in English without that See Kitchin fol. 227. titulo Affirmatiue Negatiue In the second signification I find it in Stawnfords praerog cap. 20. through the whole chapter speaking of trauersing an office which is nothing else but to proue that an inquisition made of goods or lands by the Eschetour is defectiue and vntruly made So trauersing of an Inditement is to take issue vpon the chiefe mater thereof which is none other to say then to make contradiction or to deny the point of the Enditement As in presentment against A. for a
a man vpon breach of a statute to be resembled in mine opinion to any action giuen in the lawe imperiall either vpon edictum praetoris plebiscitum or senatusconsultum For as the Pretour so the common people in comitijs tributis the Senatours or nobility in curia vel senatu had power to make lawes wherevpon the Pretour or other Iudges permitted action And euen so our high court of Parlament maketh Statutes against such offēces as are either newly grown or more and more increased and our Iudges intertaine their plees that commence actions against the breakers of them Action is perpetuall or temporall perpetua vel temporalis and that is called perpetuall the force whereof is by no time determined Of which sort were all ciuill actions among the auncient Romaines viz. such as grew from lawes decrees of the Senate or constitutions of the Emperors whereas actions granted by the Pretor died within the yeare de perpet tempor actio in Institut So we haue in England perpetuall and temporarie actions and I thinke all may be called perpetuall that are not expresly limited As diuers Statutes giue actions so they be pursued within the time by them prescribed namely the Statute anno 1. Ed. 6. cap. 1. giueth action for 3. yeares after the offences therein shall be committed and no longer and the Statute anno 7. H. 8. cap. 3. doth the like for foure yeares and that anno 31. Eliz. cap. 5. for one yeare no more But as by the ciuill lawe no actions were at the last so perpetual but that by time they might be prescribed against as actiones in rem decem aut viginti terminantur annis personales verò triginta § 1. de perpet temp actio in Institutio l. 3. Co. de praescript 30. annorum so in our common law though actions may be called perpetual in comparison of those that be expressely limited by statute yet is there a means to prescribe against reall actions within fiue yeares by a fine leuied or a recouerie acknowledged as you may see farther in the word Fine and Recouerie And for this also looke Limitation of assise Action is farther diuided in actionem bona fidei stricti iuris Which diuision hath good vse in our common lawe likewise though the tearmes I find not in any of their writers But of this and such like diuisions because they haue as yet no apparent acceptance amongst our Lawyers but onely a hidden vse I referre the reader to the Ciuilians and namely to Wesenb in his Paratitles Π. De obligatio actio Addition additio is both the English and French word made of the Latine and signifieth in our common law a title giuen to a man ouer and aboue his Christian and surname shewing his estate degree occupation trade age place of dwelling c. For the vse wherof in originall writs of actions personale appeales and indictments it is prouided by Statute anno 1. H. 5. cap. 5. vpō the penaltie therein expressed Tearmes of the lawe Broke farder addeth that it is likewise requisite in townes and gates of townes parishes in great townes and cities where there may be any doubt by reason of more townes gates or parishes of the same name titulo Addition See also M. Cromptons Iustice of peace fol. 95. 96. Adeling was a word of honor among the Angles properly apertaining to the Kings children whereupon king Edward being himselfe without issue and intending to make Eadgare to whome he was great Vnkle by the mothers side his heire to this kingdome called him Adeling Roger Houedine parte poster suorum Annal. fol. 347. a. Adiournment adiurnamentum is almost all one with the French adiounrement i. denunciatio vel diei dictio and signifieth in our commō law an assignement of a day or a putting off vntill another day Adiournment in eyre anno 25. Ed. 3. Statute of pourveyers cap. 18. is an appointment of a day when the Iustices in eire meane to sit againe Adiourn anno 2. Edw. 3. cap. 11. hath the like signification And this whole title in Broke his abridgement proueth the same The bastard Latine word adiurnamentum is vsed also among the Burgundians as M. Skene noteth in his booke De verbo signi verbo Adiurnatus out of Chassaneus de consuet Burg. Ad inquirendum is a writ iudiciall commanding inquirie to be made of any thing touching a cause depending in the Kings court for the better execution of iustice as of bastardie of bondmen and such like whereof see great diuersitie in the Table of the Register iudiciall verbo Ad inquirendum Admeasurement admensuratio is a writ which lyeth for the bringing of those to a mediocritie that vsurpe more then their part And it lyeth in two cases one is tearmed admeasurement of dower admensuratio dotis where the widow of the deceased holdeth from the heire or his guardian more in the name of her dower then of right belongeth vnto her Register orig fol. 171. a. Fitzh nat br fol. 148. The other is admeasurement of pasture admensuratio pasturae which lieth betweene those that haue common of pasture appendant to their free-hold or common by vicenage in case any one of them or more doe surcharge the common with more cattell then they ought Register orig fol. 156. b. Fitzh nat br fol. 125. Administer administrator in our common law is properly taken for him that hath the goods of a man dying intestate committed to his charge 〈…〉 y the ordinary is accountable for the same whensoeuer it shall please the ordinarie to call him thereunto I finde not this word soe vsed in all the civile or canon lawe but more generally for those that haue the gouernment of any thing as the Decrees can 23. quaest 5. c. 26. Administratores plane saecularium dignitatum c. and extrava com ca. 11. Grangias autem alia loca Cisterciensium ordinis aliorum Regalium in quibus Gubernatores seu custodes vel administratores ponuntur c. Howsoeuer the signification of this word grew to be restrained amongst vs it greatly booteth not But there was a statute made anno 31. Ed. 3. ca. 11. whereby power was giuen to the ordinarie to appointe these administratours and to authorize them as fully as executors to gather vp and to dispose the goods of the deceased alway provided that they should be accountable for the same as executors And before that viz. Westm 2. anno 13. Ed. 1. ca. 19. it was ordeined that the goods of those that died intestate should be committed to the ordinarie his disposition and that the ordinarie should be bound to answer his debts so far forth as the goods would extēd as executors And I perswade myselfe that the committing of this burden vnto Bishops to those that deriue ecclesiasticall authoritie from them grew first from the constitution of Leo the Emperour Co. de Episco cleri l. nulli licere 28. Where it is saide that if a man dying
contrarie to the writ no wrong no disseisin The third manner is assise out of the point of assise assisa extra assisam vel in modum iuratae viz. when the tenent alledgeth some by exception that must be tried by a Iurie before the principall cause can proceed as if he pleade a foreine release or foreine mater tryable in another countie For in this case the Iustices referre the record to the Court of common plees for the triall of the foreine plee before the disseisin can come to be discussed Of this sort reade diuers other examples in Bracton lib. 4. part 1. cap. 34. For there be of them as he saith and Britton also cap. 52. both dilatorie and peremptorie The fourth and last manner is assise of right of dammages and that is when the tenent confessing a putting out and referring it to a demurter in lawe whether it were rightly done or not is adiudged to haue done wrong For then shall the demandant haue a writ to recouer dammages which is called assise to recouer dammages as also the whole processe Assise is further taken for the court place or time where and when the writs and processes of assise be handled or taken And in this signification assise is generall as when the Iustices passe their seuerall circuits euery couple with their commission to take all assises twice in the yeare For he that speaketh of any thing done at that time and in that place will commonly say that it was done at the generall assise It may likewise be speciall in this signification as if an especiall commission should be granted to certaine as in ancient times they often were Bracton lib. 3. cap. 11. in fine for the taking of an assise vpon one disseisin or two any thing done in the court before them a man would say it was done at such an especiall assise And in this very signification doth Glanvil vse it lib. 9. cap. 12. in these words Si contra dominum suum non infra assisam tunc distringitur ipse occupator c. and lib. 13. cap. 32. in these words cum quis itaque infra assisam domini regis i. infra tempus à domino rege de consilio procarum ad hoc constitutum quod quandoque maius quandoque minus censetur alium iniustè sine iudicio disseisiver 〈…〉 c. Of this word assise you may reade in M. Skene de verbo signif verbo Assise and by him vnderstand that in Scotland also it is diuersely vsed viz. in 5. seuerall significations And touching the fifth signification he hath these words An assise is called a certaine number of men lawfully summoned receiued sworne and admitted to iudge and discerne in sundrie civil causes syke as perambulations cognitions molestations pourpresture division of lands seruing of brieues and in all and sundrie criminall causes decided and tried by an assise whereof there are two kinds one ordinarily in vse which may be called a litle assise of the number of 13. or 15 persons the other called a great assise which consisteth of 25. persons c. The rest is very worthe the reading Assisa continuanda is a writte directed to the Iustices assigned to take an assise for the continuance of the cause in case where certaine records alleaged cannot in time be procured by the party that would vse it Reg. orig f. 217. Assisa proroganda is a writ directed to the Iustices of assise for the stay of proceeding by reason of the Kings buisnes wherein the partie is imploied Register orig fo 208. and fo 221. Association associatio is a patent sent by the King either of his owne motion or at the suite of the plaintife to Iustices appointed to take assises of novel disseisin or of oyer and terminer c. to take others vnto them as felowes and collegues in that busines The dirivation is plaine the examples and sundrie vses hereof you may finde in Fitz◠nat br fo 185. E. fo 111. B. but more particularly in the Reg. orig f. 201. 202. 205. 206. 207. 223. 224. Assoile absolvere commeth of the French absouldre and signifieth to deliuer or set free from an excommunication Stawnf pl. cor fo 72. in words to this effect Otherwise the defendāt should remaine in prison vntill the plaintiffe were assoyled that is deliuered from his excommunication Assumpsit is a voluntarie promise made by word whereby a man assumeth or taketh vpon him to performe or pay any thing vnto another This word containeth any verball promise made vpon consideration which the Civilians expresse by divers words according to the nature of the promise calling it sometime pactum sometime sponsionē sometime promissionem pollicitationem or constitutum the word seemeth to be drawne from the latine assumptio quae significat professionem l. Π. ad municipalem Attache attachiare cōmeth of the French attacher i. figere nectere illigare defigere alligare In our common lawe it signifieth to take or apprehend by commaundement or writte And M. Lamberd in his eirenarch li. 1. cap. 16. maketh this difference betweene an arrest and an attachement that an arrest proceedeth out of lower courts by precept and an attachment out of higher courts by precept or writ and that a precept to arrest hath these formall words duci facius c and a writ of attachment these words praecipimus tibi quòd attachies talem habeas eum coram nobis c. whereby it appeareth that he which arresteth carieth the party arrested to another higher person to be disposed of forth with he that attacheth keepeth the party attached and presenteth him in court at the day assigned in attachement yet I obserue out of Master Kitchin that an attachement issueth out of a court baron which is a lowe court cap Attachment in court baron fo 79. Another difference there is that an arrest lieth onely vpon the body of a man and an attachement some time vpon his good as shal be shewed in the sequele It may be likewise asked how an attachement and a capias doe differ how an attachement and a cape and an attachement and a distresse First that an attachement differeth from a capias it appeareth by Kitchin in these words fo 79. Note that in a court Baron a man shal be attached by his goods and a capias shall not goe out thence wherby I gather that an attachement is more generall taking hold of a mans goods and a capias of his body onely Then an attachement differeth from a cape in this because a cape be it cape magnum or cape parvum taketh hold of immoveables as lands or tenements and are properly belonging to action reall as you may gather out of their formes in Fitzh nat br whereas attachemēt hath rather place in actions personall as Bracton plainly setteth downe li. 4. tracta 4. ca. 5. nu 3. Where neuerthelesse it appeareth that a cape may be likewise vsed in an action personall An attachement as it
is formerly said taketh hold of moueable goods or the bodie For it appeareth by Kitchin fo 263. that a man may be attached by a hundred sheepe Reade Skene de verbo signific verbo attachiamentum Now it followeth to shew how attachement differeth from a distresse For so it doth as may be shewed out of Kitchin fo 78. where he saith that processe in court baron is summons attachment and distresse out of the owld nat br fo 27. where it is said that a processe in a quare impedit is summons attachement and one distresse and againe fo 28. wheare speaking of the writ ne admittas he saieth thus and the processe is one prohibition and vpon the prohibition an attachment and distresse and fo 32. in a writ of Indicauit you haue these words and after the attachment returned the distresse shall goe out of the rols of the Iustices Bracton on the other side li. 5. tract 3. ca. 4. nu 2. sheweth that both attachiamentum magnum cape districtiones sunt of which opinion Fleta also is li. 5. ca. 24. § si autem ad But there also he saith that attachiamentum est districtio personalis cape magnum districtio realis So that by his opinion districtio is genus to attachement Britton in his 26. chapter hath words to this effect but in attachement of felony there commeth no distresse otherwise then by the body And if the Shyreeue return in the cases aforesaid that the trespassours haue nothing in his bayliwick by the which they may be distreined it must be awarded that he take their bodies c. In which place an attachement is plainly vsed for an apprehension of an offender by his goods So that to conclude I finde no difference between an attachment and a distresse but these two◠that an attachement reacheth not to lands as a distresse doth and that a distresse toucheth not the bodie if it be properly taken as an attachement doth yet are they diuers times confounded as may appeare by the places formerly alleadged and by Glanvile li. 10. ca. 3. and Fleta li. 2. ca. 66. seqq How be it in the most common vse an attachment is an apprehēsion of a man by his body to bring him to answer the action of the plaintiffe a distresse is the taking of another mans goods for some reall cause as rent seruice or such like whereby to driue him to replevie and so to be plaintiffe in an action of trespas against him that distreined him And so much for the difference and coherēcie of these words See also Distres I finde in West parte 2. symbolaio titulo proceedings in chauncerie sect 22. 23. that attachemēt out of the chaūcery is two-fold one simple and originally decreed for the apprehension of of the partie the other after return made by the Shyreeue quod defendens non est inventus in baliva sua with proclamations made through the whole courtie in such places as he shall thinke meete that the partie appeare by a day assigned and that he attached never the lesse if he may be found This second kinde hath an affinitie with the canonists vijs modis at the which if the partie appeare not he is excommunicate or with the Civilians vijs modis vnâ cum intimatione For in the chaūcerie if he com not vpō this he is forth with pressed with a writ of rebellion There is an attachment of priviledge which is a power to apprehend a man in a priviledged place or els by vertue of a mans priuiledge to call another to this or that courte whereunto he himselfe belongeth and in respect whereof he is priviledged Newe booke of entrise verbo priviledge fo 431. col 2. There is also a foreine attachement which is an attachement of a foriners goods found within a libertie or citie to satisfie some creditour of his within the citie There is also an attachement of the forest which is a court there held For as M. Manwood saith in his first parte of forest lawes p. 90. 92. 99. there be three courts of the forest wherof the lowest is called the Attachement the meane the swaynemote the highest the Iustice seate in eyre This court of attachement seemeth so to be called because the verderours of the forest haue therein no other authoritie but to receiue the attachements of offenders against vert and venison taken by the rest of the officers and to enrol them that they may be presented and punished at the next Iustice seate Manwood parte 1. pa. 93. And this attaching is by three meanes by goods and catels by body pledges and mainprise or by the body onely The courte is kept euery 40. daies throughout the yere And he that hath occasion to learne more of this I refer him to M. Manwood loco quo supra to M. Crompton in his courte of the forest Attachement is commaunded in writs the diversitie whereof you may see in the Register originall vnder the word Attachiamentum in indice At large see assise at large in the word assise and owld nat br fo 105. Verdict at large Littleton fo 98. To vouch at large owld nat br fo 108. To make title at large Kitchin fo 68. See Barre Attaint attincta commeth of the French as you shall see in the word attainted But as it is a substantiue it is vsed for a writ that lyeth after iudgement against a Iurie that hath giuen a false verdict in any court of record be the action reall or personall if the debt or dammages surmount the summe of 40. shillings what the forme of the writ is and how in vse it is extended see Fitzena br fol. 105. and the new booke of entries fol. 84. colum 1. The reason why it is so called seemeth to be because the partie that obtaineth it endeuoureth thereby to touch deprehend or staine the Iurie with periurie by whose verdict he is grieued What the punishment of this periurie is or of him that bringeth the writ against the Iurie if he faile in his proofe see Glanvile lib. 2. cap. 19. Fitz. nat br fol. 109. K. Io. 110. A. B. C. D. c. the termes of the lawe verb. Attaint Fortescue cap. 26. Smith de rep Anglo lib. 3. cap. 2. and anno 11. H. 7. cap. 21. an 23. H. 8. cap. 3. and others In what diuersitie of cases this writ is brought see the Register orig in Indice Attainted attinctus commeth of the French teindre i. tingere the participle whereof is teinct i. tinctus or else of attaindre i. assequi attingere It is vsed in our common lawe particularly for such as are found guiltie of some crime or offence and especially of felonie or treason How be it a man is said to be attainted of of disseisin Westm 1. cap. 24. 36. anno 3. Ed. 1. And so it is taken in French likewise as estre attaint vayncu en aucun cas is to be cast in any case
101. Kitchin fo 215. Barre also in the same signification is devided into barre materiall and barre at large Kitchin fo 68. A barre materiall as it seemeth may otherwise be called a barre speciall as when one in the stoppe of the plaintiffes action pleadeth some particular mater as a descent from him that was the vndoubted owner a feofment made by the auncester of the plaintiffe or such like A barre at large is when the tenent or defendant by way of exception doth not traverse the plaintifes title by pleading not guiltie nor confesse and avoid it but onely maketh to himselfe a title in his barre As if in an Assise of novel disseisin the tenent pleade a feosment of a straunger vnto him and giues but a colour onely to the plaintiffe Of this there is an apt example to be found 5. H. 7. fo 29. Barre is also in regarde of the effect diuided into barre perpetuall barre pro tempore Perpetuall is that which overthroweth the actioÌ„ for euer Barre pro tempore is that which is good for the present and may faile heereafter looke an example or two in Broke titulo Barre nu 23. where he saith that to plead plene administrauit is good vntill it may appeare that more goods come to the executors hands afterward which also holdeth for an heire that in an action of his auncesters debt pleadeth rien per disceÌ„t This word is also vsed for a materiall bar as the place where Seâ—geants or CouÌ„celers stand to pleade causes in courte or prisoners to aunswere to their endictments Of which our coÌ„mon lawyers that be lyceÌ„ced to plead in other contries called licentiati are termed barristers anno 24. H. 8. ca. 24. Barrator barectator commeth from the French barat i. astutia and is neere the French it selfe in significatioÌ„ For barateur in that tong betokneth a deceiver and a barator in our common law is a common wrangler that setteth men at ods and is himselfe never quiet but at brawle with one or other To this effect you may read M. Lamberds eirenarcha pa 342. who saith likewise that barettor for so he writeth is may seeme to come from the latine baratro or balatro that is a 〈◊〉 knaue or vnthrift and by a metaphor a spot in a coÌ„mon wealth See the statute of champerty an 33. Ed. 1. stat 2. ca. vnico and West 1. ca. 32. anno 3. Ed. i. M. Skene de verb. signif verbo barratrâ— saith that barratours be Symonists called of the Italian word barrataria signifying corruption or briberie in a Iudge giuing a false sentence for mony whome you may read more at large as also Hortensius Cavalcanus in his tractat de brachio reg 10. parte 5. nu 66. whose words are Barataria veròdicitur quando Iudex aliquid petit indebitum vt iustitiam faciat Who also nu 195. partis 5. saith thus barraterii appellaÌ„tur qui praetorium nimis frequentaÌ„t And in another place of the same worke Baratria dicitur quia fit quoddam barratrum i. commutatio pecuniae cum iustitia c. See also Aegidius Bossius in practica criminali titulo de officialibus corrupt c. nu 2. 6. Baratariam committunt Iudices qui iusticiaÌ„ auro vendunt Paris Puteola de syndicatu verbo Barataria pa. 217. Barre fee is a see of 20. 〈◊〉 that every prisoner acquited of felonie payeth to the gaoler Crompt Iustice of peace fo 158. b. Barrell is a measure of wine oyle c. conteining the 8. parte of a tonne the 4. of a pipe and the second of a hogsehead that is 31. gallons and a halfe anno 1. R. 3. ca. 13. But this vessel seemeth not to conteine any certaine quantitie but differeth according to the liquor for a barrell of beere conteineth 36. gallons the Kilderkin 18. and the firkin 9. a barrell of ale 23. gallons the kilderkin 16. and the firkin 8. gallons anno 23. H. 8. ca. 4. Barriers commeth of the French barres and signifieth with vs that which the French men call ieu de barres i. palastraÌ„ a martial sport or exercise of meÌ„ armed and fighting together with short swords within certain limits or lists whereby they are severed from the beholders Barter may seeme to come of the French barater i. circumvâ—nire It signifieth in our statutes exchange of wares with wares an 1. R. 3. ca. 9. so bartry the substantiue anno 13. Eliza. ca. 7. The reason may be because they that choppe and change in this maner doe what they can for the most part one to ouer-reach the other See barratour Base estate is in true French basestat It signifieth in our coÌ„mon law that estate which base tenents haue in their lands Base tenents be they as M. Lamberd saith in his explica of SaxoÌ„wordâ— verbo Paganus which do to their lords villeinous service The author of the termes of law in his Tractat of old termes saith that to hold in see base is to hold at the will of the lord Kitchin fo 41. seemeth to make base tenure and franck to be contraries where it appeareth that he putteth copy holders in the number of base tenents And out of these I thinke that it may be probably coniectured that everie base tenent holdeth at the will of the lord but yet that there is a difference betweene a base estate and and villenage which Fitzh in his nat br fo 12. B. C. seemeth to coÌ„found For the aboue named author of the termes of law saith in the place before cited that to hold in pure villenage is to doe all that the lord will commaund him So that if a copie holder haue but base estate he not holding by the performance of everie commandement of his lord cannot be saide to hold in villenage Whether it may be said that copy holders be by custome and continuaÌ„nce of time growne out of that extreame servitude wherein they were first created I leaue to others of better iudgement but Fith. loco citato saith tenure by copie is a terme but lately invented Base courte is any court that is not of record as the court baron Of this read Kitchin f. 95. 96. c. Base fee See base estate Baselard baslerdus in the statut anno 12. R. 2. ca. 6. signifieth a weapon which M. Speight in his exposition vpon Chancer cal-leth pugimem vol 〈◊〉 Bastard bastardus See Bastardy and See Skeene de verbo siguif verbo Bastardus Bastardy bastardia commeth of the French bastard i. â—othuâ— Cassanans de consuetis Burg. pa. 1116. saith bastard and silius naturalis be all one Bastardy in our common law signifieth a defect of birth obiected to one begotten out of wedlock Bract. li. 5. ca. 19. per totum How bastardie is to be prooued or to be inquired into if it be pleaded see Rastalls booke of Entrise tit Bastardie fo 104. Kitchin fo 64. maketh mention of bastardie speciall and bastardie generall The difference of which is that bastardie generall is a
and true inquisition make as well of swornemen as vnsworne in euerie bayliwick both in the north bayle and south bayle of this forest and of all maner of trespasses done either to vert or venison I shall truly endeavour my selfe to attach or cause them to be attached in the next court Attachement there to be presented without any concealment had to my knowledge so helpe me God c. Bracton otherwise called Henry of Bracton was a famous lawyer of this land renowmed for his knowledge both in the common and civill lawes as appeareth by his booke every where extant He liued in the daies of Henry the third Stawn praero fo 5. b. and as some say Lord cheife Iustice of England Bread of treate and bread of coket anno 51. H. 3. statuto 1. of bread and ale Bred signifieth broade This word Bracton vseth li. 3. tracta 2. ca. 15. nu 7. proverbially thus to lange and to bred the meaning whereof you may there finde word for word it is as we now speake two long and two broad or two in length and two in breadth Breuibus ra 〈…〉 liberandis is a writ or mandat to a Shyreeue to deliuer vnto the newe Shyreeue chosen in his roome the county with the appertenances together with the rols briefes remembrances and all other things belonging to that office Register original fo 295. a. Bribours commeth of the french bribeur i. mendicus It seemeth to signifie with vs one that pilfreth other mens goods anno 28. Ed. 2. stat 1. ca. vnico Brief breve commeth from the French brefou breif i. brevis and in our common lawe signifieth a writ whereby a man is summoned to answer to any action or more largely any precept of the king in writing issuing out of any court whereby he commaundeth any thing to be done for the furtherance of iustile or good order The word is vsed in the ciuile lawe some time in the singular number and masculine gender as l. vlt. Coa de conueniendis fisci debitoribus li. 10. tit 2. you haue these words Inter chartulas confiscati brevis quidam adseueratur inveÌ„tus qui nomina coÌ„tinebaâ— debitoruÌ„ Where it is vsed for a short note Again I finde a title restored by Gothofred in the first booke of the Code de quadrimenstruis brevibus Quadrumenstrus autem breves erant qui de singulis indictionum pensionibus quarte quoque mense foâ—utis conficâ—eâ— antur Also Lampridius in Alexandro hath it singularly thus notarium qui falsum causae brevem in consilio imperatorioretulisset c. And in the AutheÌ„tiques Novel 105. ca. 2. you haue this word breviatores i. brevium proscriptores Breves autem brevia brevicula sunt chartae sive libelli breves as Galbofred there noteth Where he noteth likewise out of Zonaras in Garthagin CoÌ„cilio that this is a greeke word thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 See Skene de verbo signif verbo Breue Of these breifes see also Bracton li. 5. tract 5. ca. 17. nu 2. Breve quidem cùm sit formatum ad similitudinem regula iuris quia breviter paucis verbis intentionem proferentis exponit explanat sicut regula iuris rem quae est breviter charrat Non tamen ita breve esse debet quin rationem vim intentionis contineat c. Brigandine lorica is the french brigandine that is a coate of maile This is vsed anno 4. 5. Ph. Mar. ca. 2. Brigbote significat quietantiam reparationis pontium Fleta li. 1. ca. 47. It is compounded of brig a bridge and bote which is a yeelding of amends or supplying a defect See Bote and Bruck-bote Britton was a famous Lawyer that liued in the daies of K. Edward the first at whose commandemeÌ„t by whose authority he writ a learned booke of the lawe of this realme The tenure wherof runneth in the Kings name as if it had beene penned by himselfe answerably to the Institutions which Iustinian assumeth to himselfe though composed by others Stawnf prare fo 6. 21. S. Edward Cooke saith that this Britton writ his booke in the fifte yeare of the said King reigne li. 4. fo 126. a. lib. 6. fo 67. a. M. Guin in the preface to his reading mencioneth that this Iohn Britton was bishop of Hereford Broke commonly called S. Robert Broke was a greate lawyer and lord chiefe Iustice of the coÌ„mon plees in Queene Mar. 〈◊〉 time Cromptons Iustices of peace fo 2â— b. he made an abbridgement of the whole lawe a booke of highe accoumpt Broker brocarnis seemeth to come from the French broieur tritor that is a gryneder or breaker into small peaces Because he that is of that trade to deall in maters of mony and marchandise betwene Englishe men and Strangers doth draw the bâ—rgaine to particulars and the parties to conclusion not forgetting to grinde out somthing to his owne profit Those men be called broggers anno 10. R. 2. ca. i. It may not improbably be said that this word commeth from carder i. cavillari because these kinde of men by their deceitfull 〈…〉 ches and abusing their true made many times inuegle others In Scotland they be called broccary and in their owne idiome blockers or brockers that is mediators or intercessors in any traÌ„saction paction or contract as in buying or selling or in contractting mariage Skene de verbo signi verbo broccarij He that will know what these brokers were wont ought to be let him read the statut anno 1. Iacobi ca. 21. These in the civile lawe are called proxenetae as also of some licitatores mediatores titulo de proxeneticis in Digestis This kind of dealer is also of the Romanes called pararius Senece li. 2. de benef ca. 22. Caelius Rhideginus libro 6. ca. 32. li 3. cap. 35. Broderers commeth of the French brodeur and that commeth of bordure i. fimbria limbus the edge or hemme of a garmet And that because it is distinguished froÌ„ the rest most coÌ„moÌ„ly by some conceipted or costly worke he that worketh it is called brodeur in French and broderor or embroderer with vs. Brode halpeny commeth of the three Saxon words bret or bred 〈◊〉 aboord and halve that is for this or that cause cuius rei gratie as the Latinists speake and penning it signifieth a tolle or custome for setting vp of tables or boords in a Faire or Market From the which they that are freed by the Kings Charter had this word mentioned in there leters patents In so much as at this day the freedome it selfe for shortnesse of speech is called by the name of brodehalpenie Broggers See Brokers Bruckbote Pontagium is compounded of two German words bruck i. pons and bote i. compensatio It signifieth with vs a tribute contribution or ayde toward the mending or reedifiing of bridges whereof many are freed by the kings charter And thereupon the word is vsed for the very libertie or exemptioÌ„ from this tribute
Sancti Martini tēpore tam Britonum quà m Anglorum contribuerunt Plures tamen magnates post Romanorum adventum illam contributionem secundum veterem legem Moysi nomine primitiarum dabant prout in brevi regis Knuti ad summum Pontificem transmisso continetur in quo illam contributionem chirchsed appellant quasi semen Ecclesiae Cinamom cinamomum is a tree whereof the barke is knowne to be a pleasant comfortable and medicinall spice which you haue described in Gerards Herball lib. 3 cap. 142. This is reckoned among garbleable spices an 1. Iac. cap. 19. Cinque portes quinque portus be those speciall hauens that lye toward Fraunce and therfore haue bene thought by our kings from time to time to be such as ought most vigilantly to be obserued against invasion In which respect the places where they be haue an especiall gouernor or keeper called by his office Lord Warden of the Cinque ports and divers priuiledges graunted vnto them as a particular iurisdiction their Warden hauing the authoritie of an Admirall among them and sending out writs in his owne name Crompton in his Iurisdictions fol. 28. nameth the Cinque ports Douer Sandwich Rye Hastings Winchelsea Rumney Hithe whereof some because the number exceedeth fiue must either be added to the first institution by some later graunt or be accompted as appendents to some of the rest See Gardein of the Cinque ports and the Statute anno 32. H. 8. cap. 48. Circuit of action circuitus actionis is a longer course of proceeding to recouer the thing sued for then is needfull See the new Tearmes of lawe Circumstantibus is a word of art signifying the supply or making vp of the number of Iurors if any empaneled appeare not or appearing be chalenged by either partie by adding vnto them so many other of those that are present or standing by as will serue the turne v. ann 35. H. 8. cap. 6. and anno 5. Elizab. cap. 25. Citie civitas commeth of the French citè and signifieth with vs as it doth in other regions such a towne corporate as hath a Bishop and a cathedrall church For Lucas de Penna lege vnica tituli De Metropol Beryto ti 21. lib. 10. Cod. hath these words Idem locus vrbs civitas oppidum appeliatur Pro quo est etiam infra De spectaculis l. Nemo Civitas enim dicitur quatenus cum iustitia magistratuum ordine gubernatur oppidum quaetenus est ibi copia incolarum vrbs quatenus muris debito more cingitur Proprie autem dicitur civitas quae habet Episcopū Supra de Episcop Cleri l. Nulli Aliâs dicitur generaliter omnis habitatio plurimorum quae muro cingitur Π. de verb. signif lib. 2. de penu lega l. Nam quod § St ita Sed stricte loquendo si Episcopo caret dicitur vrbs Π. de verb. signif l. Pupillus § Oppidum c. Yet M. Crompton in his Iurisdictions where he reckoneth vp the cities leaueth out Elye though it haue a bishop and a cathedrall Church and putteth in Westminster though now it haue no bishop And anno 35. Eliza. ca. 6. Westminster is called a citie anno 27. eiusd cap. 5. Of the Statutes not printed it is alternatiuely tearmed a citie or borow It appeareth by the Statute 35. H. 8 cap. 10. that then there was a bishop of Westminster Civitas according to Aristotle lib. 3. politicorum ca. pri is defined to be a certaine or vniforme gouernment of the inhabitants Caesar ciuitatem vocat populum eodem iure vtentem Camd. Brittan pa. 310. But this is the generall definition of a common wealth and not of a city at the least as we now a daies particularly take it For ouer and beside that which is aboue saide Cassanaeus in consuetudi Burg. pa. 15. saith that France hath within the teritories of it 104. cities and giueth reason of this his saying because there be there so many seates of Archbishops and bishops Clack as to clack force and bard alias beard good wools anno 8. H. 6. ca. 22. whereof the first viz. to clack wooll is to cut of the sheepes marke which maketh it to waigh lesse and so yeld the lesse custome to the king to force wooll is to clip of the vpper and more heary part of it to bard or beard it is to cut the head and necke from the rest of the fleece Clamea admittenda in itinere per Atturnatum is a writ whereby the king commandeth the Iustices in eyre to admitte of ones claime by Atturney that is employed in the kings seruice and cannot come in his owne person Regist orig fol. 19. b. Clayme clameum is a chalenge of interest in any thing that is in the possession of another or at the least out of his owne as claime by charter clayme by descent old nat br fol. 11. Si dominus infra annum clameum qualitercunque apposuerit Bracton lib. 1. cap. 10. See the definition diuers sorts of claime in Plowden Casu Stowel fol. 359. a. Clarentius See Herald Clorgie clerus clericatus is diuersly taken sometime for the whole number of those that are de Clero domini of the Lords lot or share as the tribe of Leuy was in Iudaea some time for a plee to an indictment or an appeale and is by Stawnf pl. cor li. 2. ca. 41. thus defined Clergie is an auncient liberty of the church which hath bene confirmed by diuers parlaments and is when a priest or one within orders is arraigned of felony before a seculer iudge he may pray his clergie which is as much as if he prayed to be deliuered to his ordinarie to purge him selfe of the offence obiected And this might be done in case of murder Coke li. 4. fo 46. a. This liberty is mentioned in articulis cleri anno 9. Ed. 2. ca. 16. and what persons might haue their clergy and what not see Stawnf pl. cor li. 2. ca. 42. 43. Howbeit there be many statuts made sithence he writ that booke wherby the benefite of clergy is abridged as anno 8. El. ca. 4. anno 14. eiusdem ca. 5. anno 18. eiusd cap. 4. 6. 7. anno 23. eiusd cap. 2. a. 29. eiusd c. 2. anno 31. eiusd ca. 12. a. 39. eiusd ca. 9. ca. 15. Of this see Cromptons Iustice of peace fo 102. 103. 104. 105. and Lamberds Eirenarcha li. 4. ca. 14. pa. 543. And note by the way that the auncient course of the law in this point of clergy is much altered For by the statute anno 18. Eliza. ca. 7. clerks be no more deliuered to their ordinaries to be purged but now euery man though not within orders is put to reade at the barre being founde guilty and conuicted of such felonie as this benefit is still granted for and so burnt in the hand and set free for the first time if the ordinaries commissioner or depute standing by do say legit vt clericus or
beneficiū iusve habere in beneficio aut canonicum titulum censebuur vti nec depositarius in re deposita wherof also Petrus Gregorius de beneficiis ca. 10. nu 13. thus writeth In hac quarta divisione potest adds tertium genus beneficii quod citra praescriptionem qualitatis a persona alterius qualitatis quà m beneficium exigat naturâ possidetur sed sine praeiudicio naturae beneficii per dispensationem eo commendato olim ad tempus certum certae personae hodie vt plerunque quà m diu commendatarius vixerit Vocant hoc beneficium commendatum commendam vt si regulare beneficium á Summo Pontisice conferatur nomine commēdae saeculari Nam ideo non mutatur beneficii natura nec fit ideo saeculare c. And a little after Interim annotabimus duplici de causa fieri commendam ecclesiae nempe vel in vtilitatem ecclesiae vel commendatarii In primo commenda titulum non dat beneficii commendatario dicitur potius custodia quae revocari potest quod repugnat naturae beneficii quod est perpetuum In secundo autem casu beneficium censetur in vtilitatem commendatarii commēda facta quam possidere potest quà m diu vixerit c. whome you may also read ca. 2. li. 13. Commissarie cōmissarius is a title of ecclesiasticall iurisdiction appertaining to such a one as exerciseth spirituall iurisdiction at the least so farre as his commission permitteth him in places of the dioces so farre distant from the cheife citie as the chanceler cannot call the subiects to the Bishops principall consistorie without their to great molestation This commissarie is of the canonists termed commissarius or officialis foraneus Lyndwoods provin ca. 1. de accusatio ver bo Mandatum archiepiscopi in glos and is ordeined to this especiall end that he supply the bishops iurisdiction and office in the out places of the dioces or els in such parishes as be peculiars to the bishop and exempted from the iurisdiction of the Archdeacon For where either by prescription or composition there be archedeacons that haue iurisdiction within their archdeaconries as in most places they haue there this commissarie is but superfluous and most commonly doth rather vexe and disturb the country for his lucre then of conscience seeke to redresse the liues of offenders And therefore the Bishop taking prestation mony of his archdeacons yearely pro exteriori iurisdictione as it is ordinarily called doeth by superonerating their circuit with a commissarie not onely wrong archdeacons but the poorer sort of subiects much more as common practise daily teacheth to their great woe Cōmission commissio is for the most part in the vnderstanding of the common lawe as much as delegatio with the Civilians See Broke titulo commission and is taken for the warrant or letters patents that all men exercising iurisdiction either ordinarie or extraordinarie haue for their power to heare or determine any cause or action Of these see diuers in the table of the Register originall verbo Commissio yet this word sometime is is extended farder then to maters of iudgement as the commission of purveiours or takers anno 11. H. 4. ca. 28. But with this epitheton high it is most notoriously vsed for the honourable commission court instituted and founded vpon the statute 1. Eliza. ca. 1. for the ordering and reformation of all offences in any thing appertaining to the iurisdiction ecclesiasticall but especially such as are of higher nature or at the least require greater punishment then ordinarie iurisdiction can afford For the world being growne to that loosenes as not to esteeme the censure of excommunicatiō necessitie calleth for those censures of fynes to the prince and imprisonment which doe affect men more neerely Commission of rebellion Commissio rebellionis is otherwise called a writte of rebellion breue rebellionis and it hath vse when a man after proclamation made by the Shyreeue vpon an order of the channcerie or court of Starre chamber vnder penaltie of his allegance to present himselfe to the court by a certaine day appeareth not And this commission is directed by way of commaund to certaine persons to this end that they or three two or one of them doe apprehend or cause to be apprehend the party as a rebell and contemner of the kings lawes wheresoeuer they find him within the kingdome and bring him or cause him to be brought to the courte vpon a day therein assigned The true copie of this commission or writ you haue in Cromptons diuers Iurisdictions Court de Starre chamber as also in West tractat touching proceedings in Chancerie Sectio 24. Commissioner commissionarius is he that hath commission as leters patents or other lawfull warrant to execute any publike office as commissioners of the office of fines and licenses West parte 2. symbol titulo Fines sect 106. commissioners in eyre an 3. Ed. 1. ca. 26. with infinite such like Committee is he to whome the consideration or ordering of any mater is referred either by some court or consent of parties to whome it belongeth As in Parlament a bille being read is either consented vnto and passed or denied or nether of both but referred to the consideration of some certaine men appointed by the house farder to examine it who thereupon are called committees Committee of the King West par 2. symbo titulo Chancerie sect 144. This word seemeth to be something strangely vsed in Kitchin fo 160. where the widow of the kings tenent being dead is called the cōmittee of the king that is one committed by the auncient law of the land to the kings care and protection Common bench bancus communis is vsed some time for the court of common plees anno 2. Ed. 3. ca. 11. So called as M. Camden saith in his Britannia pa. 113. quia communia placita inter subditos ex iure nostro quod communae vocant in hoc disceptantur that is the plees or controuersies tryed betweene common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Iustices in eyre consueverunt Iusticiarii imponere villatis iuratoribus hundredis toti comitatui concelamētum omnes separatim amerciare quod videtur voluntarium cùm de periurio concelamento non fuerint convicti sed potius dispensandum esset cumeis quod animas in statera posuerint pro pacis conservatione li. 1. cap. 48. § Quibus And a litle following § Et provisum he hath these words Et provisum est quòd communes misericordiae vel fines comitatuum amerciatorumin finibus itinerum Iusticiariorum ante recessum ipsorum Iustitiariorum per sacramenta militum aliorum proborum hominum de commitatu eodem affidentur super eos qui contribuere debent vnde particulae Iusticiariis liberentur vt cum aliis extractis suis ad Scaccarium liberare valeant These last words of his haue relation to the statute Westminst
originall writ of deceite lieth where any deceit is done to a man by another so that he hath not sufficiently performed his bargaine or promise In the writ iudicial he concurreth with the former booke See the Reg. orig fo 112. and the Reg. iudiciall in the table verbo Deceptione Decimis solvendis pro possessionibus alienigenarum is a writ or leters patents yet extant in the Register which laye against those that had fermed the Priors aliens lands of the king for the Rector of the Parish to recouer his tythe of them Regi orig fol. 179. Deciners aliâs desiners aliâs doziners decennarii commeth of the French dizeine i. decas tenne in number or else of disenier i. decearchus It signifieth in the auncient monuments of our lawe such as were wont to haue the ouersight and checke of ten friburgs for the maintenance of the kings peace And the limits or compasse of their iurisdiction was called decenna Bracton lib. 3. tract 2. cap. 15. of whom you may also reade Fleta lib. 1. cap. 27 and a touch in the Regist orig fol. 68. b. These seemed to haue la 〈…〉 authoritie in the Saxons time 〈◊〉 king knowledge of causes within their circuite and redressing wrongs by way of iudgement as you may reade in the lawes of king Edward set out by M. Lambard num 32. In later times I find mention of these as in Britton cap. 12. who saith in the kings person as he writeth his whole booke in this maner We will that all those which be 14. yeares old shall make oath that they shall be sufficient and loyall vnto vs and that they will be neither felons nor assenting to felons and we will that all be en dozeine plevis per dozeniers that is professe themselues to be of this or that dozein and make or offer suretie of their behauiour by these or those doziniers except religious persons clerks knights and their eldest sonnes and women Yet the same author in his 29. chapter some thing toward the end doth say that all of 12. yeares old and vpward are punishable for not comming to the Turne of the Shyreeue except Earles Prelats Barons religious persons and women Stawnf pl. cor fol. 37. out of Fitzh hath these wordes The like lawe is where the dozeniers make presentment that a felon is taken for felonie and deliuered to the Shyreeue c. And Kitchin out of the Register and Britton saith thus Religious persons clerkes knights or women shall not be deceniers fol. 33. So that hereby I gather that of later times this word signifieth nothing but such an one as by his oath of loyaltie to his Prince for suretie none ordinarily findeth at these dayes is setled in the combination or societie of a dozein And a dozein seemeth now to extend so farre as euery leete extendeth because in leetes onely this oathe is ministred by the steward and taken by such as are twelue yeares old and vpwards dwelling within the compasse of the leete where they are sworne Fitz. nat br fol. 161. A. The particulars of this oath you may reade in Bracton lib. 3. tract 2. cap. 1. num 1. in these words Quibus propositis that is the commission of the Iustices being read and the cause of their comming being shewed debent Iusticiarii se transferre in aliquem locum secretum vocatis ad se quatuor vel sex vel pluribus de maioribus de comitatu qui dicuntur Busones Comitatus ad quorum nutum dependent vota aliorum et sic inter se tractatum habeant Iusticiarii ad muicem ostendant qualiter a Domino Rege eius concilio prouisum sit quod omnes tam milites qùam alii qui sunt quindecim annorum ampliùs iurare debent qùod vtlagatos murditores robbatores burglatores non receptabunt neceis consentient nec eorum receptatoribus si quos tales nouerint illos attachiari facient hoc Vicecomiti baliuis suis monstrabunt si hutesium vel clameum de talibus audiverint statim audsto clamore sequantur cum familia hominibus de terra sua Here Bracton setteth downe 15. yeares for the age of those that are sworne to the kings peace but lib. 3. tract 2. cap. 11. num 5. he nameth 12. yeares See Inlaughe A man may note out of the premisses diuersities betweene the auncient and these our times in this point of law and gouernement as well for the age of those that are to be sworne as also that Decennier is not now vsed for the chief man of a Dozen but for him him that is sworne to the kings peace and lastly that now there are no other Dozens but leetes and that no man ordinarily giueth other security for the keeping of the kings peace but his owne oathe and that therefore none aunswereth for anothers transgression but euery man for himselfe And for the general ground this may suffice See Frankepledge Declaration declaratio is properly the shewing foorth or laying out of an action personall in any suite howbeit it is vsed sometime and indifferently for both personall and reall actions For example anno 36. Ed. 3. c. 15. in these words By the auncient termes and formes of declarations no man shall be preiudiced so that the mater of the action be fully shewed in the demonstration in the writ See the new Termes of lawe See Cownte Dedimus potestatem is a writ whereby commission is giuen to a priuate man for the speeding of some act appertaining to a Iudge The Civilians call it Delegationem And it is graunted most commonly vpon suggestiō that the partie which is to doe something before a Iudge or in court is so feeble that he cannot trauell It is vsed in diuers cases as to make a personall aunswer to a bill of complaint in the Chaunceric to make an Atturney for the following of a suite in the Countie Hundred Wapentake c. Oldnat br fol. 20. To levie a fine West part 2. symbol titulo Fines sect 112. and diuers other effects as you may see by Fitzh nat br in diuers places noted in the Index of the booke In what diuersitie of cases this writ or commission is vsed see the table of the Regist orig verbo Dedimus potestatem Deedes Facta signifie in our commō law wrighungs that containe the effect of a contract made betweene man and man which the ciuilians call literarum obligationem And of deeds there be two sorts deeds indented and deeds poll Which diuision as M. West saith parte i. Simbol lib. 1. sect 46. groweth from the forme or fashion of them the one being cut to the fashion of teeth in the toppe or side the other being plaine And the definition of a deede indented he expresseth thus Sect. 47. A deed iudented is a deede consisting of two partes or more in which it is expressed that the parties to the same deede haue to euery parte thereof interchangeabely or seuerally
set there seuerall seales See the rest where at the last he sheweth the cause of the name viz for that consisting of more partes eche parte is indented or cut one of them into the other that by the cut it may appeare they belonge to one busines or contract A deede poll or polled he describeth thus Sect. 46. Q. A polled deede is a deede testifying that onely the one of the parties to the bargaine hath put his seale thereunto after the maner there by him described which reade for your beter vnderstanding See the newe Tearmes of lawe verbo Fait where he sheweth that each deed consisteth of 3. points writing sealing and deliuerie Deere Hayse anno 19. H. 7. cap. 11. seemeth to be an Engine of cords to catch Deere De essendo quieium de relovio is a writ that lyeth for them which are by priuiledge freed from the payment of tolle which reade at large in Fitzh nat br fol. 226. Defalt defalta commeth from the French Defaut and is an offence in omitting that which we ought to doe West part 2. symbol titulo Indictment sect 2. Of this hath Bracton a whole tractats lib. 5. tractat 3. By whome it appeareth that a default is most notoriously taken for non appearance in court at a day assigned Of this you may reade also in Fleta lib. 6. cap. 14. Defeisance defeisantia commeth of the French Desfaire or Deffaire i. infectum reddere quod factumest and signifieth in our common lawe nothing but a condition annexed to an act as to an obligation a recognizance or statute which performed by the obligee or recognizee the act is disabled and made voide as if it neuer had bene done whereof you may see West at large part 1. symb li. 2. sect 156. Defendant defendens is he that is siewed in an action personall as tenent is he which is siewed in an action reall Tearmes of the lawe Defendemus is an ordinarie word in a feofment or donation and hath this force that it bindeth the donour and his heyres to defend the Donee if any man goe about to laye anie seruitude vpon the thing giuen other then is contained in the donation Bract. lib. 2. cap. 16. num 10. See also Warrantizabimus Acquietabimus Defender of the faith defensor fides is a peculiar title giuen to the King of England by the Pope as Catholicus to the king of Spaine and Christianissimus to the French king It was first giuen by Leo decimus to king Henry the 8. for writing against Martin Luther in the behalfe of the Church of Rome then accounted Domicilium fidei Caholicae Stowes annals pag. 863. Deforsour Deforciator commeth of the french For ceur i. expugnator It is vsed in our common law for one that ouercommeth and casteth out by force and differeth from disseisour first in this because a man may disseise another without force which act is called simple disseisin Britton ca. 53. next because a man may deforce another that neuer was in possession as for example if more haue right to lands as commō heires and one entring keepeth out the rest the law saith that he deforceth them though he doe not disseise them Old nat br fol 118. and Litleton in his chapter Discontinuance fol. 117. faith that he which is infeoffed by the tenent in taile and put in possession by keeping out the heire of him in reuersion being dead doth deforce him though he did not disseise him because he entred when the tenent in taile was liuing and the heire had noe present right And a deforsour differreth from an Intrudour because a man is made an Intrudour by a wrongfull entry only into land or tenement voide of a possessour Bracton li 4 ca pri and a deforsour is also by houlding out the right heire as is abouesaide Deliuerance See Repligiare Demaund Demanda vel Demandum commeth of the french Demande i. postulatio postulatus and signifieth a calling vpon a man for anything due It hath likewise a proper signification with the common lawyers opposite to plaint For the pursiute of all ciuill actions are either demaunds or plaints and the persyewer is called demaundant or plaintife Viz Demandaundant in actions reall and plaintife in personall And where the party persiewing is called demaundāt there the party persiewed is called tenent where plaintife there defendant See terms of law verbo Demaundant Demy haque See Haque and Haquebut Demaine Dominicum is a french word otherwise written Domaine and signifieth Patrimonium domini as Hotoman saith in verbis feudalibus verbo Dominicum where by diuers authorities he proueth those lands to be dominicum which a man holdeth originally of himselfe and those to be feodum which he holdeth by the benefite of a superiour Lord. And I find in the ciuill law Rem dominicam for that which is proper to the Emperour Cod. Ne rei dominicae vel templorum vindicatio temporis praescriptione submoueatur being the 38. title of the 7. booke And res dominici iuris i. reipub in the same place And by the word Domanium or Demanium are properly signified the kings lands in Fraunce appertaining to him in propertie Quia Domanium definitur illud quod nominatim consecratum est vnitum incorporatum Regiae coronae vt scripsit Chopinus de domanio Franciae tit 2. per legem Siquando 3. Cod. de bon vacan lib. 10. Mathaeus de Afflict is in constit Siciliae li. 1. tit De locatione Demanii 82. which may be called Bona incorporata in corpus sisci redacta Skene de verborum signif verb. Terrae Dominicales In like maner doe we vse it in England howbeit we here haue no land the Crowne land onely excepted which holdeth not of a superior For all dependeth either mediatly or immediately of the Crowne that is of some honour or other belonging to the Crowne and not graunted in fee to any inferior person Wherefore no common person hath any demaynes simply vnderstood For when a man in pleading would signifie his land to be his owne he saith that he is or was seised thereof in his demaine as of fee. Litleton li. 1. cap. 1. Whereby he signifieth that though his land be to him and his heyres for euer yet it is not true demaine but depending vpon a superior Lord and holding by seruice or rent in liewe of seruice or by both seruice and rent Yet I find these words vsed in the kings right anno 37. H. 8. cap. 16. and 39. Eliz. cap. 22. But the application of this speech to the king and crowne land is crept in by errour and ignorance of the word Fee or at least by vnderstanding it otherwise then of the Feudists it is taken But Britton cap. 78. sheweth that this word Demeyne is diuersly taken sometime more largely as of lands or tenements held for life c. and sometime more strictly as for such onely as are generally held in fee. This word somtime is vsed for
nat br fol. 147. Register fol. 170. Dotis admensuratione See Admēsurement See the Register fol. 171. Dotkins a kinde of coine pl cor fol 37. It seemeth to come of the Dutch word Duythen that is the eight part of a Stufer or French Shilling which in lat ne is called Solidus Gallicus Doubles anno 14. H. 6. cap. 6. signifie as much as leters patents being as it seemeth a French word made of the Latine diploma Double plee duplex placitum is that wherein the defendant alledgeth for himselfe two seuerall maters in barre of the action whereof either is sufficient to effect his desire in debarring the plaintiffe And this is not to be admitted in the common lawe wherefore it is well to be obserued when a plee is double and when it is not For if a man alledge seuerall maters the one nothing depending of the other the plee is accounted double If they be mutually depending one of the other then is it accompted but single Kitchin fo 223. See Broke hoc titulo But why this doublenes for so Kitchin calleth it fol. 234. should bee debarred I see no reason vnder correction all things being spoken For a man may haue two good defences and happily in the issue he shall contrarily to his hope faile in prouing the one and yet be able to carie the cause by the other And therefore not onely the Civilians but Bracton also saith Pluribus exceptionibus uti nemo prohibetur lib. 5. tract 5. cap. 5. num 4. whom also reade libro 4. cap. 17. And Sir Thomas Smiths reason of this scantly satisfieth me alledging this to be the course of our proceeding because the triall is by twelue rude men whose heades are not to be troubled with ouer many things at once lib. 2. de Repub Anglor cap. 13. Double quarell duplex querela is a complaint made by any Clerke or other vnto the Archbishop of the Prouince against an inferiour ordinarie for delaying of iustice in some cause ecclefiasticall as to giue sentence or to institute a clerke presented or such like The effect whereof is that the said Archbishop taking knowledge of such delay directeth his leters vnder his authenticall seale to all and singular clerkes of his Prouince therby commaunding and authorizing them and euery of them to admonish the said Ordinarie within a certaine number of dayes namely 9. dayes to doe the iustice required or otherwise to cite him to appeare before him or his officiall at a day in the said leters prefixed and there to alledge the cause of his delay And lastly to intimate to the said Ordinarie that if he neither performe the thing enioyned nor appeare at the day assigned he himselfe will without farder delay proceed to perform the iustice required And this seemeth to be tearmed a double quarell because it is most commonly made against both the Iudge and him at whose petition iustice is delayed Dower dos commeth of the French douaire and signifieth in our common lawe two things first that which the wife bringeth to her husband in mariage otherwise called maritagiū mariage good next and more commonly that which she hath of her husband after the mariage determined if she out-liue him Glanvile lib. 7. cap. 1. Bracton lib. 2. cap. 38. Britton cap. 101. in princ And in Scotland dos signifieth iust as much Skene de verb. signif verbo Dos The former is in French called dot the other doüayre and by them latined doarium I likewise once thought it not vnreasonable to call the former a Dowrie the other a Dower but I find them confounded For exāple Smith de rep Anglo p. 105. calleth the later a dowrie and dower is sometime vsed for the former as in Britton vbi supra yet were it not inconuenient to distinguish them being so diuers The Civilians call the former dotem and the later donationem propter nuptias Of the former the common law bookes speake very litle This onely is to be noted that whereas by the ciuile lawe instruments are made before mariage which containe the quantitie of the wiues dowrie or substance brought to her husband that he hauing the vse of it during mariage may after certaine deductions restore it againe to his wiues heires or friends after the mariage dissolued the common lawe of England whatsoeuer chatels moueable or immoueable or readie money she bringeth doth make them foorthwith her husbands owne to be disposed of as he will leauing her at his courtesie to bestow any thing or nothing of her at his death The reason whereof is said to be the holding of the wife in obedience to her husband Onely if she be an inheretrice her husband holdeth the land but during her life except he haue issue by her but then he holdeth it by the courtesie of England during his owne life See Courtesie And againe if he haue any land in fee wherof he was possessed during the mariage she is to haue a third therof during her life though she bring nothing to him except she doe by fine release her right during the mariage So that here is no great mater to bee spoken of but touching dower in the later signification You must know therfore that vpon speech of mariage betweene two the parents of both sides are commonly more carefull in prouiding each for his childe then the parties themselues and that by their meanes there bee diuers bargaines made sometime for the conueiance of lands c. to them and their issue and this is said to be giuen in franke mariage sometime to her during her life and that before or at the mariage if before mariage then it is called a Ioynture For a Ioynture is a couenant whereby the husband or some for him is tyed ratione iuncturae in consideration of the mariage that the wife surviuing him shall haue during her life this or that tenement or lands or thus much rent yearely paylible out of such land c. with clause of distresse and this may be more or lesse as they doe accord Britton cap. 101. whome read also ca. 102. 103. 104. for conventio vincit legem Bracton lib. 5. tract 4. cap. 9. The diuersitie of these Ioyntures you may see in West parte prima symbol lib. 2. sect 128. 129. 130. 131. 132. 133. But if none of these former bargaines passe before mariage then must the wife stick to her Dower and that is sometime giuen at the Church doore or the Chappell doore if the mariage bee by licence but not the chamber doore and may bee what the husband will so it exceede not a third part of his lands G lanvile libro 6. cap. pri Or the halfe as some say Fitzh nat br fol. 150. N. P. And this Dower is either certainly set downe and named or not named but onely in generalitie as the law requireth if it be not named then is it by lawe the third part and called dos ligitima Bracton lib. 4. tracta 6. cap. 6. nu 6.
learned men in the lawe reteined of councell with the King in the said court Of this Court M. Gwin in the preface to his readings thus speaketh The court of the Duchy or Countie Palatine of Lancaster grew out of the graunt of king Edward the third who first gaue the Dutchy to his sonne Iohn of Gawnte and endowed it with such royall right as the Countie Palatine of Chester had and for as much as it was afterward extinct in the person of king Henry the fourth by reason of the vnion of it with the Crowne the same king suspecting himselfe to bee more rightfully Duke of Lancaster then king of England determined to saue his right in the Dutchy whatsoeuer should befal of the Kingdome and therefore hee separated the Dutchy from the Crowne and setled it so in the naturall persons of himselfe and his heires as if he had bin no king or Politique bodie at all In which plight it continued during the reigne of K. Henry the 5. and Henry the 6. that were descended of him But when King Edw. the 4. had by recouery of the Crowne recontinued the right of the house of Yorke hee feared not to appropriate that Dutchy to the Crowne againe and yet so that hee suffered the Court and Officers to remaine as he founde them And in this maner it came together with the Crowne to King Henry the 7. who liking well of that policy of King H. the 4. by whose right also hee obteined the Kingdome made like separation of the Dutchy as hee had done and so left it to his posterity which doe yet inioy it Dumfuit infra aetatem is a writ which lyeth for him that before hee came to his full age made a feofment of his land in fee or for terme of life or in taile to recover them againe from him to whome he conveied them Fitzh nat br fol. 192. Dum non fuit compos mentis is a writ that lieth for him that being not of sound memory did alien any lands or tenements in fee simple fee tayle for terme of life or of yeeres against the alienee Fitzh nat br fol. 202. Duplicat is vsed by Crompton for a second leters patent graūted by the Lord Chauncelour in a case wherein he had formerly done the same and was therefore thought void Cromptons Iurisd fol. 215. Dures Duritia commeth of the French dur i. durus vel durete i. duritas and is in our common lawe a plee vsed in way of exception by him that being cast in prison at a mans suite or otherwise by beating or threats hardly vsed sealeth any bond vnto him during his restraint For the lawe holdeth this not good but rather supposeth it to be constrained Brooke in his Abridgement ioyneth Dures and Manasse together i. duritiam minas hardnes and threatning See the newe booke of Entries verbo Dures and the new Termes of law E A EAlderman Aldermannus among the Saxons was as much as Earle among the Danes Camden Britan. pag. 107. If yee goe to the true etimologie of the word mee thinketh it shoud sound more generally so much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the Graecians or Senator with the Romanes who were rather Councellers at large then bestowed vpon any particular office as Comites were See Countie And that signification we retaine at this day almost in all our Cities and Borowes calling those Aldermen that are Associates to the Chiefe Officer in the common councell of the Towne anno 24. H. 8. ca. 13. or sometime the cheife officer himselfe as in Stawnford Earle Comes in M. Camdens opinion pag. 107. is a word made by the Danes of Ealderman a word of the Saxons M. Lamberd seemeth notwithstanding to acknowledge that Earle is originally a Saxon word Explica of Sax. words verbo Paganus and interpreteth it Satrapam which word the Romaines borowing of the Persians applied to those that were praefecti provinciarum M. Verslegan in his restitution of decaied intelligence deriueth it from two Netherland words ear i. honor and ethel i. nobilis wherein I leaue the reader to his owne iudgement This title in auncient time was giuen to those that were associates to the king in his councels and Marshall actions as Comes was to those that folowed the Magistrates in Roome and executed their offices for them as their deputies and died alwaies with the man Zasius hath of this word thus much Comitū originem in Doctoribus non invenimus sed noveris cam dignitatem vetustissimam esse Nam Cor. Tacitus in libello de Germania scribit apud priscos vsu fuisse receptum vt cuilibet principi seu Duci exercitus duodecim comites assignarentur ideo dictos quia comitarentur eos à Ducum latere non decederent Comitū itaque originē Germanis moribus ortum esse dictus receptissimus autor testis est Quapropter quod in duodecimo libro Codicis aliqui tituli de Comitibus largitionum c. inscribuntur usurpationem Imperatoris ex Germanorum ritibus sumptam credo But the Conquerour as M. Camd. saith gaue this dignitie in fee to his nobles annexing it to this or that countie or province and allotted them for their maintenance a certaine proportion of monie rising from the Princes profits for the pleadings and forfeitures of the province For example he bringeth an aunent Record in these words Henricus 2. Rex Anglie his verbis Comitem creauit Sciatis nos fecisse Hugonet Bigot Comitē de Nortfolk sc de tertio denario de Norwic. Northfolke sicut aliquis comes Angliae liberiùs comitatum suum tenet Which words saith the same author an ould booke of Battell Abbie thus expoundeth Consuetudinaliter per totam Angliammos antiquitùs inoleverat Comites provinciarum tertium denarium sibi obtinere inde Comites dicti And another booke without name more fully Comitatus a Comite dicitur aut vice versa Comes autem est quia tertiam portionem eorum quae de placitis proveniunt in quolibet Comitatu percipit Sed non omnes Comites ista percipiunt sed hii quibus Rex haereditariò aut personaliter concessit You may reade M. Fern in Lacyse nobility something to this effect pa. 12. But he saith that one Duke or Earle had diuers Shires vnder his gouernment as a viceroy and had lieuetenants vnder him in euery particular Shire called a Shyreeue That one Earle was dignified by the appellation or more rhen one Shyreeue it appeareth by diuers of our auncient Statutes as namely by the sentēce of excommunication pronounced by the Bishops against the infringers of the great Charter charter of the forest anno 38. H. 3. Roger Bigot is named Earle both of Northfolke and Southfolke and anno 1. Ed. 3. Thomas Earle of Lancaster and Leycester Humsrey Bohum Earle of Hereford and Essex Dyer fo 285. nu 39. At these daies as long since the kings of England make Earles by their charters of this or that Countie giuing them no
See Fitzh nat br fol. 198. L. Exigendarie of the common banke Exigendarius de banco comuni is otherwise called Exigenter anno 10. H. 6. cap. 4. and is an officer belonging to that court for the which see Exigenter Exigent Exigenda is a writ that lyeth where the defendant in an action personall cannot be found nor any thing within the county whereby to be attached or distrained and is directed to the Shyreeue to proclaime and call fiue county daies one after another charging him to appeare vnder the paine of outlawrie Termes of the law This writ lyeth also in an indictment of felony where the party indicted cannot be found Smith de Rep. Angl. li. 2. ca. 19. It seemeth to be called an Exigent because it exacteth the party that is requireth his expearance or forth-comming to answer the lawe for if he come not at the last daies proclamation he is saide to be quinquies exactus and then is outlawed Crompton Iurisd fol. 188. and this M. Manwood also setteth downe for the law of the forest parte i. of his forest lawes pag. 71. See the new booke of Entries verbo Exigent Exigenter Exigendarius anno 18. H. 6. ca. 9. is an officer of the court of common plees of whom there be foure in number They make all Exigents and proclamations in all actions where proces of outlawrie doth lie and writs of supersedeas as well as the protonotaries vpon such exigents as were made in their offices Ex mero motu are words formally vsed in any charter of the Prince whereby he signifieth that he doth that which is cōtained in the charter of his owne will and motion without petition or suggestion made by any other And the effect of these words are to barre al exceptions that might be taken vnto the instrument wherein they be contained by alledging that the Prince in passing that charter was abused by any false suggestion Kitchin fol. 151. Exoneratione sectae is a writ that lyeth for the kings ward to be disburdened of all suite c. to the Countie Hundred Leet or court Baron during the time of his wardship Fitz. nat br fol. 158. Exparte latis is a writ that lyeth for a Bayliffe or Receiuer that hauing Auditours assigned to heare his accompt cannot obtaine of them reasonable allowance but is cast into prison by them Regist fol. 137. Fitzh nat br fol. 129. The maner in this case is to take this writ out of the Chauncerie directed to the Shyreeue to take foure mainperuours to bring his bodie before the Barons of the Echequer at a day certaine to warn the Lord to appeare at that time Newe Tearmes of the lawe verb. Accompt Expectant is vsed in the common lawe with this word fee and thus vsed it is opposite to Fee-simple For example lands are giuen to a man and his wife in franke mariage to haue and to hold to them and their heires In this case they haue Fee simple But if it be giuen to them and the heires of their body c. they haue tayle and see expectant Kitchin fol. 153. Mathaeus de afflictis vseth the Adiectiue expectativa substantiuely in the same signification Descis 292. num 2. pag. 412. Explees See Espleese Expeditate expeditare is a word vsuall in the Forest signifiing to cut out the balles of the great dogges feet for the preseruation of the Kings game Euery one that keepeth any great dogges not expeditated forfeiteth to the king 3. shillings 4. pence Crompt iurisd fol. 152. M. Manwood vseth the same word parte prim of his Forest lawes pag. 205. and pag. 212. he setteth downe the manner of expeditating dogges heretofore viz. Quòd tres ortelli abscindantur sine pellota de pede anteriori i. that the three clawes of the sorefoot on the right side shall be cut off by the skinne whereunto he also addeth out of the same ordinance called the Assise of the Forest that the same maner of expeditating of dogges shall be still vsed and kept and none other Quaere whence it groweth that M. Crompton and hee differ the one saying that the ball of the foote it cut out the other that the three foreclawes are pared off by the skinne Expensis militum levandis is a writ directed to the shyrecue for levying the allowance for Knights of the Parlament Register original fol. 191. b. Expensis militum non levandis ab hominibus de antiquo dominico nec à natiuis is a writ whereby to prohibite the Shyreeue from levying any allowance for the Knights of the Shire vpon those that hold in auncient demesn c. Regist orig fol. 261. b. Extend extendere commeth of the French estendre i. dilatare dispandere distendere and signifieth in our common lawe to valew the lands or tenements of one bound by statute c. that hath forfeited his bond to such an indifferent rate as by the yearely rent the obligour may in time be paide his debt The course and circumstances of this see in Fitzh nat br fol. 131. Brief d'execution sur statut Merchant Extendi facias is a writ ordinarily called a writ of extent whereby the valew of lands c. is commaunded to be made and leavied in divers cases which see in the table of the Register originall Extent extenta hath two significations sometime signifiing a writ or commission to the shyreeue for the valuing of lands or tenements Register iudiciall in the Table of the booke sometime the act of the Shyreeue or other Commissioner vpon this writ Brooke titulo Extent fol. 313. Extinguishment in our common law signifieth an effect of consolidation For example if a man haue due vnto him a yearely rent out of any lands and afterward purchase the same lands now both the property and rent are consolidated or vnited in one possessour and therefore the rent is said to be extinguished In like maner it is where a man hath a lease for yeares and afterwards buyeth the property this is a consolidation of the property and the fruites and is an extinguishment of the lease See the terms of lawe Extirpatione is a writ Iudiciall that lyeth against him who after a verdict found against him for land c. doth maliciously ouerthrow any house vpon it c. and it is two-fold one ante iudicium the other post iudicium Register iudiciall fol. 13. 56. 58. Extortion Extortio signifieth in our common law an vnlawfull or violent wringing of mony or mony worth from any man For example if any officer by terrifiing any the kings subiects in his office take more then his ordinary duties he committeth and is inditeable of extortion To this by M. Wests iudgment may be referred the exaction of vnlawfull vsurie winning by vnlawfull games and in one word all taking of more then is due by colour or pretence of right as excessiue tolle in milners excessiue prices of ale bread victuals wares c. West parte 2. Simbol titulo Indictments sect 65. M
guardeyn of the spiritualties may be either Guardeyn in lawe or Iure Magistratus as the Archbishop is of any Dioces within his prouince or guardian by delegation as he whom the Archbishop or Vicar generall doth for the time depute Gardeyn of the peace Custos pacis See Conservatour of the peace Gardeyn of the Cinque ports Gardianus quinque portuum is a Magistrate that hath the iurisdiction of those hauens in the east part of England which are commonly called the Cinque ports that is the fiue hauens who there hath all that iurisdiction that the Admirall of England hath in places not exempt The reason why one Magistrate should be assigned to these few hauens seemeth to be because they in respect of their situation aunciently required a more vigilant care then other hauens being in greater daunger of invasion by our enemies by reason that the sea is narrower there then in any other place M. Camden in his Britannia pag. 238. saith that the Romaines after they had setled themselues and their Empire here in England appointed a Magistrate or gouernour ouer those East partes whom they tearmed Comitem littoris Saxonici per Britanniam hauing another that did beare the same title on the opposite part of the sea whose office was to strengthen the sea coasts with munition against the outrages and robberies of the Barbarians And farder signifieth his opinion that this Warden of the Cinque ports was first erected amongst vs in imitation of that Romaine policie See Cinque ports Gare anno 31. Fd. 3. cap. 8. is a course wooll full of staring haires as such as groweth about the pesill or shankes of the sheepe Garnishment commeth of the French Garnir i. instruere It signifieth in our common lawe a warning giuen to one for his appearance and that for the beter furnishing of the cause and court For example one is siewed for the detinew of certaine euidences or charters and saith that the euidences were deliuered vnto him not onely by the plaintiffe but by another also and therefore prayeth that that other may be warned to pleade with the plaintiffe whether the said conditions bee performed yea or no. And in this petition he is said to pray garnishment New booke of Entries fol. 211. colum 3. Termes of the lawe Cromptons Iurisd fol. 211. which may be interpreted either warning of that other or else furnishing of the court with parties sufficient throughly to determine the cause because vntill he appeare and ioyne the defendant as Fitzh saith is as it were out of the court nat br fol. 106. G. and the court is not prouided of all parties to the action I am the bolder thus to interpret it because I find Britton in the same mind cap. 28. where he saith that contracts be some naked and sans garnment and some furnished or to vse the literall signification of his word appareled but a naked obligation giueth no action but by common assent And therefore it is necessarie or needfull that euery obligation be appareled And an obligation ought to be appareled with these fiue sortes of garnements c. Howbeit I reade it generally vsed for a warning in many places and namely in Kitchin fol. 6. Garnisher le court is to warne the court And reasonable garnishment in the same place is nothing but reasonable warning and againe fol. 283. and many other authours also But this may be well thought a Metonymie of the effect because by the warning of parties to the court the court is furnished and adorned Garrantie See Warrantie Garter Garterium commeth of the french Iartiere or Iartier i. periscelis fascia poplitaria It signifieth with vs both in diuers statutes and otherwise one especiall garter being the ensigne of a great and noble societie of knights called knights of the garter And this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Poeta among the Graecians was Homer among the Romanes Virgill because they were of all others the most excellent This high order as appeareth by M. Camden pag. 211 and many others was first instituted by that famous king Edward the third vpon good successe in a skirmish wherein the kings garter I know not vpon what occasion was vsed for a token I know that Polidore Virgill casteth in an other suspition of the originall but his groundes by his owne confession grew from the vulgar opinion yet as it is I will mention it as I haue read it Edward the third king of England after he had obtained many great victories King Iohn of Fraunce King Iames of Scotland being both prisoners in the tower of London at one time and king Henry of Castile the bastard expulsed and Don Pedro restored by the prince of Wales did vpon no weighty occasion first erect this order in anno 1350. viz. He dauncing with the Queene and other ladies of the court tooke vp a garter that happened to fall from one of them whereat some of the lords smiling the king said vnto them that eare it were long he would make that garter to be of high reputation shortly after instituted this order of the blew garter which euery one of the order is boūd daily to weare being richly decked with gold and pretious stones and hauing these words written or wrought vpon it Honi soit qui mal y pence which is thus commonly interpreted euill come to him that euill thinketh but I thinke it might be better thus Shame take him that thinketh euill See knights of the garter M. Fearne in his glory of generosity agreeth with M. Camden and expressier setteth downe the victories whence this order was occasioned whatsoeuer cause of beginning it had theorder is inferiorto none in the world consisting of 26. martiall and heroicall nobles whereof the king of England is the cheif and the rest be either nobles of the realme or princes of other countries friends and confederates with this realme the honour being such as Emperours and Kings of other nations haue desired and thankfully accepted it He that will reade more of this let him repaire to M. Camden and Polidore and M. Fern. fol. 120. vbi supra The Ceremonies of the chapter proceeding to election of the inuestures and robes of his installation of his vowe with all such other obseruances see in M. Segars new booke intituled Honour militarie and ciuile li. 2. ca. 9. fo 65. Garter also signifieth the principall king at armes among our English Heralds created by king Henry the 5. Stow. pa. 584. Garthman anno 13. R. 2. stat 1. ca. 19. anno 17. eiusd cap. 9. Gavelet is a speciall and auncient kinde of Cessauit vsed in Kent where the custome of Gavill kind continueth whereby the tenent shall forfeit his lands and tenements to the Lord of whome he holdeth if he withdraw from him his due rents and seruices The new Expounder of lawe Termes whom reade more at large I reade this word anno 10. Ed. 2. cap. vnico where it appeareth to be a writ vsed
day of his appearance by reason of the said common summons or otherwise But otherwise it is where a man is let to bayle to foure or two men by the lord Iustice in eyre of the Forest vntill a certaine day For there he is alwayes accounted by the lawe to be in their ward and custody for the time And they may if they will keepe him in ward or in prison all that time or otherwise at their will So that he that is so bayled shall not be said by the lawe to be at large or at his owne libertie Thus farre M. Manwood The myrror of Iustices maketh a difference also betweene pledges and mainpernours saying that pledges are more generall that mainpernours are bodie for bodie lib. 2. cap. de trespasse venial and lib. 3. cap. des pledges mainpernours When mainprises may be granted and when not see Cromptons Iustice of peace fol. 136. c. vsque 141. and Lamberd Eiren. lib. 3. cap. 2. pag. 336. 337. 338. 339. 340. See also Britton fol. 73. a. cap. Des pledges mainpernours the author of the Myrror of Iustices saith that pledges bee those that bayle or redeeme any thing but the body of a man and that mainpernours be those that free the body of a man And that pledges therefore belong properly to reall and mixt actions and mainpernours to personall Maintenance manutentio vel manutenentia is a French word and signifieth an vpholding of a cause or person metaphorically drawne from the succouring of a young child that learneth to goe by ones hand In our common lawe it is vsed in the euill part for him that secondeth a cause depending in suite betweene others either by lending of mony or making friends for either partie toward his help anno 32. Henr. 8. cap. 9. And when a mans act in this kinde is by lawe accounted Maintenance and when not see Broke titulo Maintenance and Kitchin fol. 202. seqq and Fitz. nat br fol. 172. and Cromptons Iurisdict fol. 38. The writ that lyeth against a man for this offence is likewise called Maintenance Termes of the lawe verb. Maintenance Speciall maintenance Kitchin fol. 204. seemeth to bee maintenance most properly so tearmed Of this see Cromptons Iustice of peace fol. 155. b. and the new booke of Entries verbo Maintenance Maintenance vid. Nouos terminos Iuris Make facere signifieth in the common lawe to performe or execute as to make his lawe is to performe that lawe which he hath formerly bound himselfe vnto that is to cleare himselfe of an action commenced against him by his oath and the oathes of his neighbours Old nat br fol. 161. Kitchin fol. 192. which lawe seemeth to be borowed of the Feudists who call these men that come to sweare for another in this case Sacramentales Of whom thus saith Hotoman in verbis foundal Sacramentales a sacramento i. iuramento diccbantur â—i qui quamuis res de qua ambigebatur testes non fuissent tamen ex eius cuius res agebatur animi sententia in eadem quae ille verba iurabant illius vide licet probitate innocentia confisi Nam tum demum adhibebantur cùm testes nulli extarent See the rest The formall words vsed by him that maketh his lawe are commonly these Heare O ye Iustices that I doe not owe this summe of money demaunded neither all nor any part thereof in maner and forme declared so helpe me God and the contents of this booke To make seruices or custome is nothing else but to performe them Old nat br fol. 14. To make oath is to take an oath Maletent in the Statute called the Confirmation of the liberties of c. anno 29. Ed. prim cap. 7. is interpreteted to be a tolle of 40. shillings for euery sacke of wooll Stow in his Annals calleth it a Maletot pag. 461 See also the Statute de tallagio non concedendo an 34. eius stat 5. Malin See Marle Manbote signifieth a pecuniary compensation for killing of a man Lambard in his exposition of Saxon words verbo Aestimatio Of which reade Roger Houeden also in parte poster suorum annal fol. 344. a. b. Mandamus is a writ that lyeth after the yere and day wheras in the meane time the writ called diem clausit extremum hath not bene sent out to the Excheatour for the same purpose for the which it should formerly haue bene sent forth Fitzh nat br fol. 253. B. See Diem clausit extremum Mandamus is also a charge to the shyreeue to take into the kings hands all the lands and tenements of the kings widowe that against her oath formerly giuen marieth without the kings consent Register fol. 295. b. See Widow Mandatum is a commaundment iudiciall of the king or his Iustices to haue any thing done for the dispatch of iustice wherof you shall see diuersity in the table of the Register iudiciall verbo Mandatum Maner Manerium seemeth to come of the French manoir i. domicilium habitatio M. Skene de verbo significatione verbo Manerium saith it is called Manerium quasi Manurium because it is laboured with handy worke by the Lord himselfe It signifieth in our common law a rule or gouernmeÌ„t which a man hath ouer such as hould land within his fee. Touching the originall of these maners it seemeth that in the beginning there was a certaine compasse or circunt of ground graunted by the king vnto some man of worth as a Baron or such like for him and his heires to dwell vpon and to exercise some iurisdiction more or lesse within that compasse as he thought good to graunt performing him such seruices and paying such yearely rent for the same as he by his graunt required and that afterward this great man parcelled his land to other meaner men inioyning them againe such seruices and rents as he thought good and by that meanes as he became tenent to the king so the inferiours became tenents vnto him See Perkins Reseruations 670. and Andrew Horns booke intituled the mirrour of Iustices li. 1. ca. du Roy Alfred See the definition of a Maner Fulb. fol. 18. And this course of benefiting or rewarding their nobles for good seruice haue our kings borowed from the Emperours of Rome or the Lombard kings after they had setled themselues in Italy as may well appeare by Antonius Contius in methodo feudorum c. i. de origine libris Feudorum And I finde that according to this our custome all lands houlden in fee throughout Fraunce are diuided into Fiefz and arrierfiefz whereof the former are such as are immediatly graunted by the king the secoÌ„d such as the kings feudataries doe againe graunt to others Gregorii Syntagm lib. 6. an 5. nu 3. But the inconstancy of mans estate and the mutability of time hath brought to passe that those great men or their posterity haue alienated these Mansions and lands so giuen them by their Prince and others that had none haue by ther welth
whereby any preiudice losse hinderance or disherison shall be or grow to the king a. 33. H. 8. c. 33. Master of the horse is he that hath the rule and charge of the kings stable being an office of high accompt and alwaies bestowed vpon some Noble man both valiant and wise This Officer vnder the Emperours of Rome was called comes sacri stabuli The Master of the horse is mentioned anno 39. Eliz. cap. 7. anno prim Ed. 6. cap. 5. Master of the posts is an Officer of the Kings court that hath the appointing placing and displacing of all such through England as prouide post horse for the speedie passing of the kings messages and other businesse in the through-fayre townes where they dwell as also to see that they keepe a certaine number of conuenient horses of their owne and when occasion is that they prouide others wherewith to furnish such as haue warrant from him to take post horses either from or to the seas or other borders or places within the Realme He likewise hath the care to pay them their wages and make their allowance accordingly as he shall thinke meete This officer is mentioned anno 2. Ed. 6. cap. 3. Master of the armorie is he that hath the care and ouersight of his Maiesties armour for his person or horses or any other prouision or store thereof in any standing Armories with command and placing or displacing of all inferiour Officers thereunto appertaining Mention is made of him anno 39. Eliz cap. 7. Master of the Iewel house is an Officer in the Kings houshould of great credit beeing allowed bouge of court that is diet for himselfe and the inferiour Officers viz. Clerks of the Iewell house and a speciall lodging or chamber in court hauing charge of all plate of gold of siluer double or parcell guilt vsed or occupied for the Kings or Queenes board or to any Officer of accompt attendant in court and of all plate remaining in the Tower of London of cheynes and loose Iewels not fixed to any garment Mention is made of this Officer anno 39. Eliz. cap. 7. Master of the Kings houshould magister hospitii is in his iust title called grand Master of the Kings houshould and beareth the same office that he did that was wont to be called Lord Steward of the kings most honorable houshould anno 32. H. 8. ca. 39. Whereby it appeareth that the name of this Officer was then chaunged and Charles Duke of Suffolke President of the Kings Councell then enioying that office was so to be called euer after so long as he should poffesse that office Master of the Ordinance anno 39. El. cap. 7. is a great Officer to whose care all the Kings Ordinance and Artillerie is committed being some great man of the Realme and expert in marshall affaires Master of the Chauncery Magister Cancellariae is an assistant in Chauncerie to the Lord Chaunceler or Lord Keeper of the broad seale in maters of iudgement Of these there be some ordinarie and some extraordinarie of ordinarie there be twelue in number whereof some fit in court euery day thorough each Terme and haue committed vnto them at the Lord Chauncelers discretion the interlocutorie report and sometimes the finall determination of causes there depending Master of the Kings musters is a martiall officer in all royall armies most necessarie as well for the maintaining of the forces complete well armed and treined as also for preuention of such fraudes as otherwise may exceedingly waste the Princes treasure and extreamly weaken the forces He hath the ouersight of all the captaines and bands and ought to haue at the beginning deliuered vnto him by the Lord Generall perfect lists and rolles of all the forces both horse and foot Officers c. with the rates of their allowances signed by the Lord Generall for his direction and discharge in signifying warrants for their full pay This Officer is mentioned in the statue anno 2. Ed. 6. cap. 2. and Muster master generall anno 35. Eliz. cap. 4. who so desireth to reade more of him let him haue recourse to Master Digs his Stratioticos Master of the Wardrobe magster garderobae is a great and principall officer in Court hauing his habitation and dwelling house belonging to that office called the Wardrobe neere Puddle-wharfe in London He hath the charge and custodie of all former Kings and Queenes auncient robes remaining in the Tower of London and all hangings of Arras Tapestrie or the like for his Maiesties houses with the bedding remaining in standing wardrobes as Hampton court Richmond c. He hath also the charging and deliuering out of all either Veluet or Scarlet allowed for liueries to any of his Maiesties seruants of the priuie chamber or others Mention is made of this officer anno 39. Eliz. ca. 7. Mater in deede and mater of record are said to differ old nat br fol. 19. where mater in deede seemeth to be nothing else but a truth to be prooued though not by any Record and mater of Record is that which may be proued by some Record For example if a man be siewed to an exigent during the time he was in the kings warres this is mater in deede and not mater of record And therefore saith the booke he that will alledge this for himselfe must come before the Scire facias for execution be awarded against him For after that nothing will serue but mater of Record that is some errour in the processe appearing vpon the Record Kitchin fol. 216. maketh also a difference betweene mater of Record and a specialitie and nude mater where he faith that nude mater is not of so high nature as either a mater of Record or a speciality otherwise there called mater in deede which maketh mee to thinke that nude mater is a naked allegation of a thing done to be proued only by witnesses and not either by Record or other speciality in writing vnder seale Mauger is shuffied vp of two French words Mal and Gre id est animo iniquo it fignifieth with vs as much as in despight or in despight of ones teeth as the wife mauger the husbande Litleton fol. 124. that is whether the husbund will or not Meane Medius signifieth the middle betweene two extreames and that eitherin time or dignitie Example of the first His action was meane betwixt the disseisin made to him and his recouerie that is in the interim Of the second there is Lord Meane and Tenent See Mesn Mease Mesuagium seemeth to come of the French Maison or rather Meix which word I finde in Cassanaeus de consuetu Burgund pag. 1195. and interpreted by him Mansus what Mansus is see Mansiō It signifieth a house Kitchin fol. 239. and Fitzh nat br fol. 2. C. See Mesuage Medlefe Cromptons Iustice of peace fol. 193. is that which Bracton calleth medletum It. 3. tract 2. ca. 35. It seemeth to signifie quarels scuffling or brawling to be deriued from the French
to the pound weight The third is the Controller who is to see that the mony be made to the iust assise to ouersee the officers and controll them if the money be not as it ought to be his fee is 100. merkes per annum Then is the Master of the Assaye who weigheth the siluer and seeth whether it be according to standard his yerely fee is also an hundred merkes Then is the Auditour to take the accompts and make them vp Auditor-like Then is the Surueyor of the melting who is to see the siluer cast out and not to be altered after it is deliuered to the melter which is after the Assay-master hath made triall of it Then is the Clerke of the Irons who seeth that the Irons be cleane and fit to worke with Then the Grauer who graueth the stampes for the monies Then the Smyters of Irons who after they be grauen smiteth them vpon the money Then the Melters that melt the Bullion before it come to the coyning TheÌ„ the Blanchers who do aneale boyle and cleanse the money The Porter who keepeth the gate of the mint The Prouost of the mint who is to prouide for all the monyers and to ouersee them Lastly the monyers who are some to sheere the money some to forge it some to beate it abroade some to rouÌ„nd it some to stampe or coyn it Their wages is not by the day or yeare but vncertaine according to the waight of the money coyned by them Other officers that haue benein former time are said nowe to bee out of vse Misauenture or misaduenture commeth neere the French mesaduenture i. infortunium In our common law it hath an especiall signification for the killing of a man partly by negligence and partly by chaunce As if one thinking no harme dissolutely throweth a stone where with he killeth another or shooteth an arrow c. For in this case he committeth not felony but onely looseth his goods and hath pardon of course for his life Stawn pl. cor li. 1. ca. 8. Britton ca. 7. distinguisheth betweene Auenture and misauenture Auenture he maketh to be meere chaunce as if a man being vpon or neere the water be taken with some sodaine sicknes and so fall in and is drowned or into the fire and be burned to death Misauenture he maketh where a man commeth to his death by some outward violence as the fall of a tree or of a gate the running of a cartwheele the stroke of a horse or such like So that misauenture in Stawnfords opinione is construed somewhat more largely then Britton vnderstandeth it West parte 2. Symbol titulo Inditement sect 48. maketh homicide casuall to be meerely casuall or mixt Homicide by meere chaunce he defineth sect 49. to be when a man is slaine by meere fortune against the minde of the killer as if one hewing the axe flieth of the haste and killeth a man And this is all one with Brutons misauenture Homicide by chaunce mixed he defineth sect 50. to be when the killers ignorance or negligence is ioyned with the chaunce as if a man loppe trees by an high way side by which many vsually trauell and cast downe a bowgh not giuing warning c. by which bowgh a man passing by is slaine Miscontinuance Kitchin fol. 231. See Discontinuance Mise misa is a French word signifing as much as expensum in latine and the latine word Misa is so vsed in Kitchin fol. 144. and in West parte 2. Simbol titulo Proceedings in chauncery sect 21. F. It is vsed anno 2. 3. Ed. 6. ca. 36. for a somme of mony paid by the Kings tenents in certaine counties in Wales according to their seuerall customes In the statute 33. H. 8. ca. 13. it is vsed plurally for certaine custumary gratuities sent to to the Lord Marchers of Wales by their tenents at their first comming to their lands And anno 4. 5. Phil. Mar. ca. 11. mise is vsed in an action of right or property for the point whereupon the parties proceede to triall either by Assise or battaile as issue is in an action personall if the Mise be vpon battell Litleton fol. 102. and in the old nat br fol. 〈◊〉 you haue these words Know yea that this writ hath but two issues that is to say ioyning the mise vpon the meere and that is to put himselfe into the great Assise of our soueraigne Lord the King or to ioyne battaile See anno 37. Ed. 3. ca. 16. To ioyne the mise vpon the meere is as much to say as to ioyne the mise vpon the cleare right and that in more plaine terms is nothing else but to ioyne vpon this point whether hath the more right the tenent or demaundant Litleton li. 3. ca. 8. foll 101. b. This word in some other place is vsed for a participle signifiing as much as cast or put vpon in english which appeareth by S. Ed. Cokes report in Saffins case vol. 6. fo 124. a. Misericordia is vsed in the common law for an arbitrary punishment Bracton li. 4. tracta 5. ca. 6. in these words Item siquis in misericordiam inciderit pro disseisina non remanebit misericordia exigenda si ille qui â—miserit quaesiuerit conuictionem Kitchin fol. 78. out of Glanuile saith thus Est autem misericordia quia quis per iuramentum legalium hominum amerciatus est ne aliquid de suo honorabili contenemento amittaâ— which saying you haue in a maner word forword in Glanvile lib. 9. cap. 11. Fitzherbert saith that it is called misericordia because it ought to be very moderate and rather lesse then the offence according to the tenure of the great charter cap. 14. This saith Fitz. in his nat br in the writ De moderata misericordia fol. 75. A. I. Misericordia is to be quit of Misericors that is to be discharged of all maner of amercements that a man may fall into within the Forest Crompton Iurisd fol. 196. See Amerciament See Mercy and Moderata misericordia Miskeâ—ning i. chaunging of speech in court Saxon in the description of Engl. cap. 11. Misnomer is compounded of the French mes which in composition alwaies signifieth as much as amisse and nomer i. nominare It signifieth in our common lawe the vsing of one name for another or mis-tearming Broke titulo Misnomer Misprision Misprisio commeth of the French Mespris i. fastidiuÌ„ contemptus it signifieth in our common lawe neglect or negligence or ouersight As for example Misprision of treason or of felony is a neglect or light accompt shewed of treason or felony commited by not reuealing it when we know it to be committed Stawnf pl. cor li. 1. ca. 19. which read at large or by letting any person committed for treason or felony or suspitioÌ„ of either to goe before he be indited Also Misprision of Clerks anno 8. He. 6. ca. 15. is a neglect of Clerks in wrighting or keeping records Thirdly anno 14. Ed. 3. ca. 6. statu pri
in the number of the kings souldiours Master of the kings musters anno 2. Ed. 6. cap. 2. See Master Muster master general anno 35. Eliz. ca. 4. See Master of the kings musters N NAam Namium seemeth to come from the Dutch word nemmen i. capio It signifieth in our common law the taking or apprehending of another mans moueable goods and is either lawfull or vnlawfull Lawfull naam is nothing els but a reasonable distresse proportionable to the valew of the thing distreined for And this naam was aunciently called either vif or mort quicke or dead accordingly as it was made of dead or quicke chatels Lawfull naam is so either by the common law or by a mans perticular fact by the common law as when one taketh another mans beasts dammage seisant in his grounds by a mans particular fact as by reason of some contract made that for default of payment of an annuity agreed vpon it shall be lawfull to distreine in such or such lands c. Horns mirrour of Iustices lib. 2. ca. de vec de naam where you may read of other circumstances required in lawfull naam viz of what thing or of what things first in what maner on what daies and at what houres it ought to be made with other points worth the reading for the vnderstanding of our law antiquities See Withernam Nasse anno 4. H. 7. ca. 21. seemeth to be the proper name of Orford Hauen Whether it be so termed of the boates or water vessels that lye there or not let the reader iudge But nasselle is in French a kinde of small boat Natiuo habendo is a writ that lyeth to the Shyreeue for a Lord whose vilein claimed as his inheritance is runne from him for the apprehending and restoring of him to his Lord againe Register orig fol. 87. Fitzh nat br fol. 77. See Libertate probanda Naturalization See Denizen Ne admittas is a writ that lyeth for the plaintife in a Quare impedit or him that hath an action of Darrein presentment depending in the common Bench and feareth that the Bishop will admit the clerke of the defendant during the suite betweene them And this writ must be sued within sixe monethes after the avoydance Because after the sixe moneths the Bishop may present by lapse Register orig fol. 31. Fitzh nat br fol. 37. where see the rest Negatiue pregnant Negatiua praegnans is a negatiue implying also an affirmatiue As is a man being impleaded to haued one a thing vpon such a day or in such a place denyeth that he did it modo forma declarata which implyeth neuer the lesse that in some sort he did it Or if a man be said to haue alienated land c. in fee he denying that he hath alienated in fee seemeth to confesse that he hath alienated in some other sort Dyer fol. 17. nu 95. See Brooke hoc titulo and Kitchin fol. 232. And see the new exposition of lawe terms And read also in some Ciuilians of Affirmatiua praegnans and that is quae habet in se inclusiuam negatiuam Et hoc importare videntur dictiones Solùm tantùm quae implicant negatiuam Pacianus De probationibus lib. 1. ca. 31. nu 16. fol. 93. Neif natiua commeth of the French Naif i. naturalis vel nativus it signifieth in our common law a bond woman anno 1 Ed. 6. ca. 3. the reason is because women become bond rather natiuitate than by any other means Ne in iuste vexes is a writ that lyeth for a Tenent which is distrained by his Lord for other seruices than he ought to make and is a prohibition to the Lord in it selfe commaunding him not to distreine The especial vse of it is where the tenent hath formerly preiudiced himselfe by performing more services or paying more rent without constraint than he needed For in this case by reason of the Lords seisin he cannot avoide him in avowry and therefore he is driuen to this writ as his next remedie Register orig fol. 4. Fitzh nat br fol 10. Ne vicecomes colore mandat◠Regis quenquam amoueat à possessione ecclesiae minus iustè Register orig fol. 61. Nient comprise is an exception taken to a petition as vniust bicause the thing desired is not conteined or comprehended in that act or deede wherevpon the petition is grounded For example one desireth of the court to be put in possession of a house formerly among other lands c. adiudged vnto him The adverse party pleadeth that his petitiō is not to be granted because thogh he had a iudgement for certaine lands and houses yet the house into the possession wherof he desireth to be put is not conteined among those for the which he had iudgement See the newe booke of Entries titulo Nient comprise This seemeth to be especially to hinder execution Nifle anno 3. Ed. 4. cap. 5. Nihil anno 5. R. 2. stat pri cap. 3. is a word set vpon a debt illeuiable by the foreine Apposer in the Exchequer Nohil dicit is a fayling to put in answer to the plee of the plaintiffe by the day assigned which if a man do commit iudgement passeth against him as saying nothing why it should not Nisi prius is a writ iudiciall which lyeth in case where the Enquest is paneled and returned before the Iustices of the Banke the one partie or the other making petition to haue this writ for the case of the contrie It is directed to the Shyreeue commaunding that hee cause the men impaneled to come before the Iustices in the same countie for the determination of the cause there except it be so difficult that it need great deliberation In which case it is sent againe to the Bank v. anno 14. Ed. 3. cap. 15. The forme of the writ see in old nat br fol. 159. and in the Regist indic fol. 7. 28. 75. See the new booke of Entries verbo Nisi prius And it is called Nisi prius of these words comprised in the same whereby the Shyreeue is willed to bring to Westminst the men impaneled at a certaine day or before the Iustices of the next Assises nisi die Lunae apud talem locum prius venerint c. whereby it appeareth that Iustices of Assises and Iustices of nisi prius are differing And Iustices of nisi prius must be one of them before whom the cause is depending in the Bench with some other good man of the Countie associated vnto him Fitz. nat br fol. 240. E. which he taketh from the Statute of Yorke ann 12. Ed. 2. See Westm 2. cap. 30. anno 13. Ed. prim anno 27. eiusdem cap. 4. anno 2. Ed. 3. cap. 17. anno 4. eiusdem cap. 11. anno 14. eiusdem cap. 16. anno 7. Rich. 2. cap. 7. anno 18. Eliz. cap. 12. Nobility nobilitas in England compriseth all dignities aboue a Knight So that a Baron is the lowest degree thereof Smith de Repub. Anglor lib. prim
time exhorting them ne merces tam viles tanti emerent Parke parcus commeth of the French parquer i. vallo vel fossa circundare It signifieth with vs a peece of grounde inclosed and stored with wild beastes of chase Which a man may haue by prescription or the kings graunt Cromptons Iurisd fol. 148. M. Manwood parte pri of his Forest lawes pag. 148. defineth it thus A parke is a place of priuiledge for wilde beastes of venerie and also for other wild beasts that are beasts of the Forest and of the chase tam syluestres quam campestres And all those wild beastes are to haue a firme peace and protectioÌ„ there So that no man may hurt or chase them within the park without licence of the owner of the same Who also fol. 149. saith thus A parke is of another nature then either a chase or a warren is For a parke must bee inclosed and may not lye ope for if it doe that is a good cause of seisure of the same into the hands of the king as a thing forfeited as a free chase is if it be enclosed And moreouer the owner cannot haue action against such as hunt in his park if it lye open See Forest See Chase See Warren This word Parke Baldwinus deriueth a paradiso eumque locum esse dicit in quo varia animalia ad vsum voluptatis aut venationis includuntur possidentur adempta naturali libertate Ad tit de rerum divis in Institutionib Parco fracto is a writ which lyeth against him that violently breaketh a pound and taketh out beasts thence which for some trespas done vpon another mans ground are lawfully impounded Register originall fol. 166. Fitzh nat br fol. 100. Parish parochia commeth of the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Accolarum conuentus accolatus sacra vicinia it is vsed in the Cannon law some time for a Bishoprick But in our common law it signifieth the particular charge of a secular priest For euery church is either Cathedrall Couentuall or Parochiall Cathedrall is that where there is a Bishop seated so called a Cathedra Conuentuall consisteth of Regular clerks professing some order of religion or of Deane and chapter or other colledge of spirituall men Parochiall is that which is instituted for the saying of diuine seruice and ministring the holy Sacraments to the people dwelling within a certaine compas of ground neare vnto it Our Realme was first diuided into parishes by Honorius Archb of Canterbury in the yeare of our Lord. 636. Camden Britan. pag. 104. Of these parish churches I finde there were in England in the daies of H. 8. the number of 45000. Hotoman in his disputations de feudis ca. 2. maketh mention of this word parochia out of Pomponius Laetus in these words Nam sic quoque Pomponius Laetus veterem consuetudinem fuisse scribit eamque ab Imperat 〈…〉 Constantino repetitam vt Duc 〈…〉 praefectis Tribunis qui pro augendâ— Imperio consenuerant darentur agri villaeque vt necessaria suppet 〈…〉 quoad viuerent quas paroehias cabant And a litle after ver 〈…〉 inter feuda parochias hoc 〈…〉 est quod hae plerumque senibus 〈…〉 veteranis plerisque emeritae 〈…〉 dabantur qui cum de Rep. bene meriti essent publico beneficio reliquum vitae sustentabant aut si quod bellum nasceretur euocati non tam milites quà m magistri milituÌ„ viderentur Feuda vero plurimum Iâ—â—enibus robustis primo flore aetatis qui militiae munus sustinere poteraÌ„t imo verò vt posseÌ„t vt velleÌ„t c. Parlament parlamentum is a French word signifiing originally as much as Collocutio or colloquium but by vse it is also taken for those high courts of Iustice throughout the kingdome of Fraunce where mens causes and differences are publikely determined without farder appeale Whereof there be seuen in number as Paris Tolouse Gresnoble in Daulphene Aix in Prouence Bordeaux Diion in Bourgogine and Roan in Normandy Vincentius Lupanus de Magistrat Franc. lib. 2. cap. Parlamentum num 28. whereunto Gerard de Haillon addeth the eighth viz. Rhenes in Brettagne In England we vse it for the assembly of the king and the three estates of the Realme videlicet the Lords Spirituall the Lords Temporall and commons for the debating of maters touching the common wealth and especially the making and correcting of lawes which assembly or court is of all other the highest and of greatest authoritie as you may reade in Sir Thomas Smith de Repub. Anglo lib. 2. cap. 1. 2. Camd. Britan. pag. 112. and Cromptons Iurisd fol. pri seqq The institution of this court Polydor Virgil lib. 11. of his Chronicles referreth after a sort to Henry the first yet confessing that it was vsed before though verie seldome I find in the former prologue of the Grande Custumarie of Normandie that the Normans vsed the same meanes in making their lawes And I haue seene a monument of Antiquite shewing the maner of houlding this parlament in the time of King Edward the sonne of King Etheldred which as my note saith was deliuered by the discreeter sorte of the Realme vnto William the Conquerour at his commaundement allowed by him This writing beginneth thus Rex est caput principium finis parlamenti ita non habet parem in suo gradu Et sic ex Rege solo primus gradus est Secundus gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per BaroniaÌ„ tenentibus Tertius gradus est de procuratoribus cleri Quartus gradus est de Comitibus Baronibus aliis Magnatibus Quintus gradus est de militibus Comitatuum Sextus gradus est de civibus Burgensibus ita est parlamentum ex sex gradibus sed sciendum licet aliquis dictorum quinque graduum post Regem absens fuerit dum tamen omnes praemoniti fuerint per rationabiles summonitiones parlamentum nibilo minus censetur esse plenum Touching the great authoritie of this court I finde in Stowes Annalls pag. 660. that Henry the sixth directing his priuie seale to Richard Earle of Warwicke thereby to discharge him of the Captainship of Cales the Earle refused to obey the priuie seale and continued forth the said office because he receiued it by Parlament But one example cannot make good a doctrine And of these two one must needes be true that either the king is aboue the Parlament that is the positiue lawes of his kingdome or els that he is not an absolute king Aristotle lib. 3. Politico cap. 16. And therefore though it be a mercifull policie and also a politique mercie not alterable without great perill to make lawes by the consent of the whole Realme because so no one part shall haue cause to complaine of a partialitie yet simply to binde the prince to or by these lawes weare repugnant to the nature and constitution of an absolute monarchy See Bracton lib. 5.
tract 3. ca. 3. nu 3. and Cassan de consuet Burg pag. 335. and Tiraquel in his booke De Nobilitate cap. 20. pag. 68. nu 26. See the statute anno 31. H. 8. cap. 8. in prooemio and many excellent men more that handle this point That learned Hotoman in his Francogallia doth vehemently oppugne this ground as some other that write in corners but he is so cleane overborne by the pois of reason that not onely many meaner men for learning triumph ouer him in this case but himselfe as I haue credibly hard vpon the sight of his fault cried God and the world mercie for his offence in writing that erroneous and seditious booke The Emperours of Rome had their semestria consilia their praetorium or place of councell builded by Augustus in his palace and therevpon called palatium afterward termed consistorium where they as in their principall court did both determine the greatest sort of their causes and also made their constitutions And heere had they assisting them many of the wisest of their empire whome Augustus first called consiliarios Alexander Severus afterward scriniorum principes others after that palatinos and then comites consistorianos And these men in this respect were indued with great honour and enioyed many priuiledges Yet were they but assistants to the Emperour to aduise him not chalenging any power ouer him or equal with him More touching the course and order of this Parlament see in Cromptons Iurisdict fol. pri seqq and Vowell aliâs Hooker in his booke purposely writen of this mater See King Parole Loquela is a French word signifying as much as Dictio allocutio sermo vox It is vsed in Kitchin fol. 193. for a plee in court It is also sometime ioyned with lease as Lease parol that is Lease per parole a lease by word of mouth Parson Persona commeth of the French Personne It peculiarly signisieth with vs the Rector of a church the reason whereof seemeth to be bicause he for his time representeth the church and susteineth the person thereof as well in siewing as being siewed in any action touching the same See Fleta lib. 6. ca. 18. Parson impersonee persona impersonata is he that is in possession of a church whether appropriated or not appropriated for in the new booke of Entries verbo Ayde in Annuity you haue these words Et praedictus A dicit quod ipse est persona praedictae ecclesiae de S. impersonata in eadem ad praesentationem E. patronissae c. So I haue reason to thinke that persona is the patrō or he that hath right to giue the benefice by reason that before the Lateran councell he had right to the tithes in respect of his liberalitie vsed in the erection or endowment of the church quasi sustineret personam ecclesiae and he persona impersonata to whome the benefice is giuen in the patrons right For I reade in the Register Iudiciall personam impersonatam for the Rector of a benefice presentatiue and not appropriated fol. 34. b. and see Dyer fol. 40. nu 72. where he saith that a Deane and chapter be persons impersonees of a benefice appropriated vnto them who also fol. 221. num 19. plainly sheweth that persona impersonata is he that is inducted and in possession of a benefice So that persona seemeth to be termed impersonata onely in respect of the possession that he hath of the benefice or Rectorie be it appropriated or otherwise by the act of another And yet I haue talked with men of good opinion in the common lawe that hold onely the proprietarie of a benefice to be the person personee But if that weare true he should rather be called person parsonnier i. partiarius vel particeps fructuum because the Vicare hath some parte toward his paines in seruing the cure For parsonnier in the french tongue is partiarius or particeps Partes finis nihil habuerunt c. is an exception taken against a fine levied Cookes reports lib. 3. the case of Fines fol. 88. a. b. Parters of gold and siluer See Finours Partitione facienda is a writ that lieth for those which hould lands or tenements Pro Indiuiso and would seuer to euery one his part against him or them that refuse to ioyne in partition as Coparceners and Tenents in Gauel kind ould nat br fol 142. Fitzh nat br fol. 61. Register orig fol. 76. 316. and Register Iudiciall fol. 80. and the new booke of Entrise verbo Partition Part let seemeth to be some part of a mans attire as namely some loose collar of a dublet to be set on or taken of by it selfe without the bodies as mens bands or womens neckirchiefs be which are in some places or at least haue beene within memory called partlets This word is reade in the statute anno 24. H. 8. ca. 13. and seemeth to be a diminutine of the word part Paruo nocumen to is a writ See Nusance Passage Passagium is a French word signifying transitum transitionem meatum It signifieth in our common lawe the hire that a man payeth for being transported ouer sea anno 4. Ed. 3. cap. 7. or ouer any riuer Westm 2. cap. 25. anno 13. Ed. pri Passagio is a writ to the keepers of ports to let a man passe ouer that hath license of the king Register originall fol. 193. b. 194. a. Passeport is compounded of two French words Passer i. perambulare transire and port i. portus It signifieth with vs a license made by any that hath authoritie for the safe passage of any man from one place to another anno 2. Ed. 6. ca. 2. Pasuage pasuagium See Pawnage Patent literae patentes is different from a writ Cromptons Iurisd fol. 126. The Coroner is made by writ and not by patent See Leters patents See also Literae patentes in the table of the Register where you shall finde the forme of diuers patents Patron Patronus is vsed in the Ciule lawe for him that hath manumitted a seruant and thereby is both iustly accompted his great benefactor and challengeth certaine reverence and dutie of him during his life see the title De iure patranatus in the Digest with the Feudists it is vsed pro authore feudi Hotom verbo Patronus in his commentarie de verbis feudal In the canon lawe as also in the feuds and our common lawe it signifieth him that hath the gift of a benefice And the reason is because the gift of churches and benefices originally belonged vnto such good men as either builded them or els indowed them with some great part of the reuenew belonging vnto them De iure patronatus in the Decretals Such might well be called patrons as builded the Church or inriched it but these that now haue the gift of a benefice are more commonly patronized by the Church though against her will alway selling their presentations as deerely as they can and therefore may be called Patroni a patrocinando as
lyeth for the cognizee of a maner seignory cheife rent or other seruices to compell him that is tenent of the land at the time of the note of the fine leuied to atturne vnto him West parte 2. symbol titulo Fines sect 126. To the same effect speaketh the old nat br fol. 155. See also the new booke of Entries verâ—â— Per quae seruitia Perquisite perquisitum signifieth in Bracton any thing purchased as perquisitum facere 〈◊〉 2. cap. 30. nu 3. lib. 4. ca. 22. Perquisites of court be those profits that grow vnto the Lord of a maner by vertue of his Court Baron ouer and aboue the certaine and yearely profits of his land as escheats mariages goods purchased by villeines fines of copie houlds and such like New terms of the law Person See Parson Personable signifieth as much as inhabled to hould or mainetaine plee in a court for example The demaundant was iudged personable to maintaine this action old nat br fol. 142. and in Kitchin fol. 214. The tenent pleaded that the wife was an alien borne in Portingall without the ligeance of the King and Iudgement was asked whether shewould be answered The plaintife saith shee was made personable by Parlament that is as the Ciuilians would speake it habere personam standi in iudicio Personable is also as much as to be of capacitie to take any thing graunted or giuen Plowden casis Colthirst fol. 27. b. Personall Personalis hath in our common lawe one strange signification being ioyned with the substantiue things goods or Chatels as things personall goods personall Chatels personall for thus it signifieth any corporeall and moueable thing belonging to any man be it quicke or dead So is it vsed in West parte 2. symbol titulo Inditements sect 58. in these words Theft is an vnlawfull felonious taking away of another mans moueable personall goods and againe fol. 61. Larceny is a felonious taking away of another mans moueable personal goods Kitchin f. 139. In these words Where personall things shal be giuen to a corporation as a horse a cowe an oxe sheepe hogs or other goods c. and Stawnford pl cor fo 25. Contrectatio rei aliena is to be vnderstood of things personall for in things reall it is not felony as the cutting of a tree is not felony The reason of this application see in Chatell Personalty Personalitas is an abstract of persouall The action is in the personalty old nat br fol. 92. that is to say brought against the right person or the person against whome in lawe it lieth I find these contrary words Personalitas Impersonalitas in the author of the booke called vocabularius vtriusque iuris as for example Personalitas significatur per has dictiones tu mihi ego tibi cum alto significato quod probabiliter conclulitur si nullo modo concludatur tunc est Impersonalitas quia actum vitiat prout ratio dictat verbi gratia Ego stipulor constituis te mihi soluturum debitum a Titio mihi debitum Tu respondes Satisfiet Haec Impersonalitas non contrahit obligationem Persons ne Praebendaries ne seront charges as quinsimes c. is a writ that lyeth for preb endaries or other spirituall persons being distreined by the shyreeue or collectours of fifteenths for the fiftenth of their goods or to be contributory to taxes Fitzh nat br fol. 176. Pesterable wares seeme to be such wares as pester and take vp much roome in a shippe anno 32. H. 8. cap. 14. Peter pence Denar 〈…〉 Sancti Petri otherwise called in the Saxon tongue Roomfooh i. the see of Rome or due to Rome and also Romescot and Rome penning was a tribute giuen by Inas King of the west Saxons being in pilgrimage at Rome in the yeare of our Lord. 720. which was a peny for euery house Lamberds explication of Saxon words verbo Numus whome see also fol. 128. in Saint Edwards lawes nu 10. where it is thus writen Omnes qui habent 30. denariatus viuae pecuniae in domo sua de suo proprio Anglorum lege dabit denariuÌ„ Sancti Petri lege Danorum dimidiam merkam Iste verò denarius debet summoniri in solennitate Apostolorum Petri Pauli colligi ad festivitatem quae dicitur ad vincula ita vt vltra illum diem non detincatur Si quispiam detinuerit ad Insticiam Regis 〈◊〉 deferatur quoniam denarius hic Rogis eleemmoz 〈…〉 est Iusticia verò faciat denarium 〈◊〉 dere foriffacturam Episcopiâ— Regis Quòd si quis domos plures had buerit de illa vbi residens fuerit infesto Apostolorum Petri Paulâ— denarium reddat See also King Edgars lawes fol. 78. cap. 4. which containeth a sharpe constitution touching this 〈…〉 ter Stowe in his Annals pag. 67. saith that he that had 20. peni worth of goods of one manes catell in his house of his own proper was to giue a p 〈…〉 at Lammas yearly See Romes 〈…〉 Petit Cape See Cape Petit Larceny parvum latr 〈…〉 nium See Larcenye Petit treason parua traditio in true French is petit trahizon 〈…〉 proditio minor treason in a lesser or lower kinde For whereas treason in the highest kinde is an offence done against the securitie of the common wealth West parte 2. symb titulo Indiâ—ements sect 63. petit treason is of this nature though not so expresly as the other Examples of petit treason you shall find to be these if a seruant kill his master a wife her husband a secular or religious man his prelate anno 25. Edward 3. cap. 2. Whereof see more in Stawâ—f pl. cor lib. 1. cap. 12. See also Crom 〈…〉 Iustice of peace fol. 2. where he addeth diuers other examp 〈…〉 those of Stawnford For the punishment of petit treason see the statute anno 22. H. 8. cap. 14. and Crompton vbi supra Petition Petitio hath a general signification for all intreaties made by an inferiour to a superiour and especially to one hauing iurisdiction But most especially it is vsed for that remedie which the subiect hath to helpe a wrong done or pretended to be done by the King For the King hath it by prerogatiue that he may not be siewed vpon a writ Stawnf praer cap. 15. whome also read cap. 22. And a petition in this case is either generall or speciall It is called generall of the generall conclusion set downe in the same viz. que le Roy lui face droit reison that the King doe him right and reason wherevpon followeth a generall indorsement vpon the same soit 〈◊〉 fait aux partis let right be done to the partise Petition special is where the conclusion is speciall for this or that and the Indorsment to that is likewise speciall See the rest cap. 21. Petra lanae a stone of wooll See Stone Philiser See Filazer Piccage Piccagium is money paid in faires for breaking of the ground to set vp
dare bellum indicere belli indicenci licentiam alii dare pronunciare ita vt a sententia appellari non possit committere sive delegare alicui causam cum clausula appellatione remota cognoscere de crimine laesae maiestatis legitimare per rescriptum eos qui extra legitimum matrimonium nati sunt ad famam honores natales in integrum restituere veniam aetatis dare creare Duces Marchiones Comites regnum in feudum concedere Huc referri potest ius erigendi scholam quae hodie Vniuersitas vel Academia appellatur etiā ius creādi doctores gradu licentiae aliquem insigniendi creandi magistratus tabelliones siue notarios ius dandi insignia nobilitatis siue nobiles creandi ius cudendae monetae noua vectigalia instituendi vel instituta vectigalia augendi Sixtinus vbi supra So that those other which are mentioned in libris feudorum and the interpreters of them are at the least for the most part iustly called regalia minora as armandiae viae publicae flumina nauigantia portus ripalia vectigalia monetae mulctarum poenarumque compendia bona vacantia bona quae indignis auferuntur bona eorum qui incestum matrimonium contrahunt bona damnatorum proscriptorum angariae parangariae extraordinariae ad expeditionem imperatoris collationes potestas creandorum magistratuum ad iusticiam exequendam argentarie palatia in ciuitatibus constituta piscationum reditus salinarum reditus bona committentium crimen laesae maiestatis thesaurus inuentus By setting downe these regalities of both sorts as they are accoumpted in the Empire and other forein kingdomes they may be the more easily compared with our kings prerogatiues and so the differences noted betweene vs and them And whereas some things are before reckoned both inter regalia maiora minora the reader must vnderstand that this may be in diuers respects For example the power of raising a tribute or of coyning money is inter maiora but the profit that groweth to the Prince by the one or other is inter minora Now may there also be noted out of books a great number of prerogatiues belonging to the king of this land which doe not bring profit to his cofers immediately and therefore may be accoumpted inter regalia maiora or at the least in a middle or mixt nature or inter maiora minora because by a consequent they tend to the increase of the kings exchequer Of these such as I haue obserued in reading I will set downe as they come to my hands without farder curiosity in diuiding It is the kings prerogatiue that he may not be siewed vpon an ordinary writ as tenent to lands but by petition Plowd casu Walsingham fo 553. to haue a cecessary consent in the appropriation of all benefices Idem casu Grendon fol. 499. to waiue and to demurre and to pleade to the issue or to waiue the issue and to demurre vpon the plee of the aduers part yet not to chaunge the issue another terme after he and the aduers part be once at issue Idem casu Willion fol. 23. 6. a. casu Mines fol. 322. a. to be receiued in a suite before issue ioyned vpon an ayde prier Idem casu Dutchry of Lancaster fol. 221. b. to be neuer in nonage eodem fol. 218. b. that a man indicted may not wage battell with him Idem casu nimes fol. 335. b. that no man vpon any right may enter vpon him being in possession but must be put to suite Dyer fol. 139. nu 33. to seise the lands of his tenents that alienate without licence Plowd casu Mines fol. 322. a. that no subiect may wage his law against him Broke chosein action 9. Coke lib. 4. fol. 93. to present in the right of the youngest coparcener being his worde before the elder Plowd casu Mines fol. 332. b. fol. 333. a. that a benefice by institution is not full against him Coke Digbies case fol. 79. a. not to finde pledges for the persecuting of any action For he cannot be amerced Fitzh nat br fo 31. F. fo 47. C. to siew in what court he will Fitzh nat br f. 7. B. 32. E. to siew the writ Ne admittas after sixe monethes Regist orig fol. 31. a. that a mans villein hauing remained in his auncient demesn by the space of a yeare may not be recouered by the writ de natiuo habendo Fitzh nat br fol. 79. A. to graunt an office with the babendum post mortem alterius Dyer fo 295. nu 1. to shorten the ordinary time of summons being 15. daies in writ of right Brit. ca. 121. to giue what honour or place he listeth to his subiects anno 31. H. 8. ca. 10. to be owner of a forest See Forest to haue free warren See Warren Not to be owted of his free hould Cromptons Iustice of peace fol. 59. b. 16. a. to araigne a man being both a Traitor and a Felon rather vpon the treason than vpon the felony because he may haue the whole escheats Idem eodem fol. 99. a. to warrant the day of appearance to his subiect being in his seruice and summoned to appeare at a day certaine Fitzh nat br fol. 17. a. Diuers of these and many others did belong fisco imperatorum which you may finde in the Digest De iure fisci Co. lib. 10. tit 1. Besides these also many moe may be obserued to belong vnto our King out of lawes which I leaue to their collection that are of longer reading and more painefull industry Prerogatiue of the Archbishop of Canterbury or Yorke prarogatiua Archiepiscopi Cantuariensis seu Eboracensis is an especiall preeminence that these Sees haue in certaine cases aboue ordinary Bishops within their Prouinces And that of the Archbishop of Canterburie principally consisteth of these points First in the confirmation of all elections made of Bishops by the Deane and Chapter of all Cathedrall Churches as also the consecration of them Next in a power of visiting his whole Prouince of assembling Synods of supplying the defects and negligences of inferiour Bishops of receiuing appeales from their courtes of assigning coadiutours to those Bishops that grow weake and insufficient to discharge their function of appointing Vicars generall to those that haue either none or an insufficient man employed in that office and of dispensing in all ecclesiasticall cases wherein the lawes beare dispensation of taking oath of euery Bishop at his confirmation to performe canonicall obedience vnto the See of Canterburie But thes seem to belong vnto him by an ordinarie archiepiscopall authority Certaine other things there be that appertaine vnto him more then ordinarily to other Archbishops as the originall calling of any person in any cause belonging to spirituall iurisdiction out of any part of his prouince though not appealed But this point is now limited by the Statute made anno 23. Henr. 8. ca. 9. The receyuing of an appeale from the lowest Iudge ecclesiasticall
patents to any man Brooke titulo Repellance Resumption fol. 298. Thus it is applyed anno 31. H. 6. cap. 7. See Reseiser Retainer commeth of the French retenir i. detinere retinere It signifieth in the cōmon law a seruant not meniall nor familiar that is not continually dwelling in the house of his Lord or Master but onely vsing or bearing his name or liuery This liuery was wont to consist of hats otherwise hoods badges and other suits of one garment by the yeare anno pri R. 2. cap. 7. These were taken by great Lords many times vpon purpose of maintenance and quarels and therefore they haue beene iustly for the better freedome of law forbidden by many statutes as namely by anno pri R. 2. cap. 7. vpon paine of imprisonment and greeuous forfeiture to the King and againe anno 16 eiusd cap. 4. anno 20. eiusedem cap. 1. 2. and anno pri H. 4. cap. 7. by the which the Lords offending herein should make ransome at the Kings will and any Knight or Esquire hereof duly attainted should loose his said Liuery and forfeit his see for euer and any yeoman wearing the Liuery of the King or other Lord should be imprisoned and make raunsome at the Kings will onely some fewe excepted in the said statute which statute is farder confirmed and explaned anno 2. H. 4. cap. 21. an 7. eiusd cap. 14. anno 13. eiusd cap. 3. anno 8. H. 6. ca. 4. And yet this offence was so deeply rooted that Edward the fourth was driuen to confirme the former statutes and farder to extend the meaning of them as appeareth by the statute made anno 8. Ed. 4. cap. 2. adding an especiall paine of fiue pounds to euery man that giueth such Liuery and as much to euery one so retained either by writing oath or promise for euery moneth Yet is not this fault so well looked vnto but that there is need of more pregnant lawes for the redresse thereof or at the least beter execution of those that be already made These be by the Feudists called affidati Sic enim dicuntur qui in alicuius fidem tutelam recepti sunt Neapol constitu li. 3. titulo 7. And as our retainers are here forbidden so are those affidati in other countries Retraxit is an exception against one that formerly commenced an action and withdrew it or was non-suit before triall Brooke titulo Departure in despight Retraxit fol. 216. See also the new booke of Entries verbo Deperter verbo retrar it Returne returna commeth of the French retour i. reditio reuersio recursus and in our common law hath two particular applycations as namely the return of a writ by Shyreeues and Bayliffs which is nothing but a certificate made to the Court whereunto the writ directeth him of that which he hath done touching the seruing of the same writ And this among the Ciuilians is called Certificatorium Of returnes in this signification speake the statutes of Westm 2. cap. 39. anno 13. Ed. prim and Tractatus contra Vice-comites Clericos with diuers other collected by Rastal titulo Returne of Shyreeues So is the returne of an office Stawnf prarog fol. 70. a certificate into the court of that which is done by vertue of his office See the Statutes of dayes in banke anno 51. H. 3. anno 32. H. 8. cap. 21. And in this signification Hilary terme is said to haue 4. returnes viz. Octabis Hilarii Quindena Hilarii crastino Purificationis Octabis Purificationis and Easter terme to haue 5. returnes viz. Quindena paschae Tres paschae mense paschae Quinque pasche crastino Ascensionis And Trinity terme 4. returnes i. Crastino Trinitatis Octabis Trinitatis Quindena Trinitatis Tres Trinitatis And Michaelmas Terme 8. returnes sc Octabis Michaelis Quindena Michaelis Tres Michaelis Mense Michaelis Crastino animarum Crastino Martini Octabis Martini Quindena Martini The other application of this word is in case of Repleuy For if a man distraine catell for rent c. And afterward iustifie or avowe his act that it be found lawfull the catell before deliuered vnto him that was distrained vpon security giuen to follow the action shall now be returned to him that distrained them Brooke titulo Returne d'auers hommes fol. 218. you shall finde this word often vsed in Fitzh nat br as appeareth in the word Returne in his table but in all those places it hath the one or the other of these two significations Returno habendo is a writ which lyeth for him that hath auowed a distresse made of catell and proued his distresse to be lawfully taken for the returne of the catell distrained vnto him which before were expleuied by the party distrained vpon suerty giuen to persiew the action Terms of law verbo Repleuin Returnum aueriorum is a writ Iudiciall graunted to one impleaded for taking the cattell of another vniust deteining of them contra vadium plegios and appearing vpon summons is dismissed without day by reaso◠that the plaintife maketh default and it lyeth for the returne of the cattell vnto the Defendant whereby he was summoned or which were taken for the security of his apparence vpon the summons Register Iudiciall fol. 4. a. Returnum irreplegiabile is a writ iudiciall sent out of the common plees to the Shyreeue for the finall restitution or returne of catell to the owner vniustly taken by another as dammage seisant and so found by the Iury before Iustices of Assise in the County For which see the Register Iudiciall fo 27. a. b. Reue aliâs Greue Praefectus is made of Gerefa the Saxon word for a gouerner Lamb explica of Saxon words verb. Profectus and that by reiecting the first sillable which he saith among the Saxons is vsuall It signifieth in our common law the Bayliffe of a Fraunchis or maner and especially in the West parts Of this you may see Kitchin fol. 43. See Greue See Shyreeue See also of this word M. Verstigan in his restitution of decayed intelligence cap 10. speaking much to the same effect Reuels seemeth to be deriued from the French word Reueiller i. excitari vel expergefieri It signifieth with vs sports of daunsing masking comedies tragedies and such like vsed in the Kings house the houses of court or of other great personages The reason whereof is because they are most vsed by night when otherwise men commonly sleepe and be at rest In the Kings house there is an officer called the Master of these Reuils who hath the ordering and dispositions of these pastimes in the court Reuenewe is a French word signifiing as much as Reditio Reuersio Reditus It signifieth properly the yearely rent that groweth to euery man from his lands and possessions Reuersion Reversio signifieth in the comon lawe a possibility reserued to a mans selfe and his heires to haue againe lands or tenements made ouer conditionally vnto others vpon the defect or fayling of
such condition The difference betweene a Remainder and a Reversion is that a Remainder is generall and may be to any man but to him that graunteth or conueieth the land c. for terme of life onely or otherwise a Reuersion is to himselfe from whome the conveiance of the land c. proceeded and commonly perpetuall as to his heires also Litleton fol. 112. in fine See Cooke lib. 2. Sir Hugh Cholmleis case fol. 51. a. And yet a Reuersion is sometime confounded with a remainder Cooke li. 2. Tookers case fol. 67. b. Plowden casu Hille fol. 170. b. what this word Reuersion in a deede doth carie See Litleton lib. 2. ca. 12. Revocation Revocatio is the calling backe of a thing granted Of these you haue diuers in the Register originall as Reuovocationem brevis de audiendo terminando fol. 124. Revocationem praesentationis fol. 304 305. Revocationem protectionis fol. 23. Revocationem specialium Iusticiariorum quia c. fol. 205. Reviving is a word metaphorically applied to rents and actions and signifieth a renewing of them after they be extinguished no lesse then if a man or other liuing creature should be dead and restored to life See diuers examples in Brooke titulo Revivings of rents actions c. fol 223. Rewardum See Regard Reweye anno 43. Elizab. cap. 10. Rie is a Saxon word signifiing as much as Regnum in Latine Camd. Britan. pag. 346. Riens passe perle fait is a forme of an exception taken in some cases to an action See Brooke titulo Estaunger al fait or Record Riens dans le gard was a chalenge to a Iurie or Enquest within London for that foure sufficient men of liuelyhood to the yearely value of fortie shillings aboue all charges within the same City and dwelling and hauing within the same ward weare not impanelled therein But it is abrogated by the statute anno 7. H. 7. cap. 4. Rier countie Retrocomitatus seemeth to come of the French Arriere i. posterior and in the statute anno 2. Ed. 3. cap. 5 is opposite to the open countie And by comparison of that statute with Westm 2. cap. 38. it appeareth to be some publique place which the Shyreeue appointeth for the receipt of the kings money after the ende of his Countie Fleta saith that it is dies crastinus post comitatum lib. 2. cap. 67. § Quia Iusticiarii Right Rectum See Recto Ridings be the names of the parts or diuisions of Yorke shire being three in number viz. West riding East riding and North riding Camd. Britan. pag. 530. This word is mentioned in the statute anno 22. H. 8. cap. 5. 23. H. 8. cap. 18. and M. West parte 2. symbol titulo Inditements saith that in Inditements within that Countie it is requisite that the towne and the Riding be expressed sect 70. Q. Right in the Court anno 6. R. 2. stat 1. cap. 12. See Rectus in Curia Ringhead anno 43. Elizab. cap. 10. Riot Riottum commeth of the French Rioter 〈…〉 rixari It signifieth in our common lawe the forcible doing of an vnlawfull act by three or more persons assembled togither for that purpose Westm parte 2. symbol titulo Inditements sect 65. P. The differences and agreements betweene a Riot a Rout and vnlawfull assembly See in M. Lamb. Eirenarcha lib. 2. cap. 5. c. See the statute 1. M. 1. cap. 12. Kitchin fol. 19. who giueth these examples of Riots the breach of inclosures or banks or conduicts parks pownds houses barnes the burning of stacks of corne M. Lamberd vbi supra vseth these examples to beate a man to enter vpon a possession forcibly See Route and vnlawfull assembly See also Cromptons Iustice of peace diuers cases of Riots c. fol. 53. See Trihings Ripiers Riparii be those that vse to bring fish from the sea coast to the inner parts of the land Camd. Britan. pag. 234. It is a word made of the latine Ripa Rise oriza is a kinde of corne growing in Spaine Asia and India with the which both good foodes and medicines be made whereof if you desire farder knowledge reade Gerards herball lib. 1. cap. 52. This is mentioned among merchandize to be garbled in the statute anno 1. Iaco. cap. 19. Roag Rogus seemeth to come of the French Rogue i. arrogans It signifieth with vs an idle sturdie beggar that wandring from place to place without pasport after he hath beene by Iustices bestowed vpon some certaine place of aboade or offered to be bestowed is condemned to be so called who for the first offence is called a Roag of the first degree and punished by whipping and boring through the grissell of the right eare with a hot yron an inch in compas for the secoÌ„d offence is called a Roag of the second degree and put to death as a felon if he be aboue 18. yeares ould See the statute anno 14. Elizab. cap. 5. 18. eiusdem cap. 3. anno 36. cap. 17. If you will know who be Rogues and to be punished as Rogues by lawe Reade Lamberds Eirenarcha lib. 4. cap. 4. See Rout. Robberie Robaria commeth of the French Robbe 1. vestis and in our common lawe a felonious taking away of another mans goods from his person or presence against his will putting him in feare and of purpose to steale the same goods West parte 2. symbol titulo Inditments sect 60. This is sometime called violent theft Idem eodem which is felonie for two pence Kitchin fol. 26. and 22. lib. Assis 39. Robaria is a word vsed also in other nations as appeareth by the annotations vpon Mathaeus de Afflictis descis 82. nu 6. pag. 122. See Skene verbo Reif libro de verbo significat See Cromp. Iustice of peace f. 30. b. Roberdsmen anno 5. Ed. 3. cap. 14. anno 7. R. 2. cap. 5. M. Lamb. interpreteth them to be mighty theeues Eironarch lib. 2. cap. 6. pag. 190. Rodknights aliâs Radknights are certaine seruitours which hould their lands by seruing their Lord on horseback Bracton lib. 2. cap. 36. nu 6. faith of them debent equitare cum Domino suo de manerio in manerium vel cum Domini vxore Fleta lib. 3. cap. 14. § Continetur Rodde Pertica is otherwise called a pearche and is a measure of 16. foote and an halfe long and in Stafford Shire 20. foote to measure land with See â—earch Rofe tyle aliât Creast tyle is that tyle which is made to lay vpon the rudge of the house anno 17. Ed. 4. cap. 4. Rogation weeke dies rogationum is a time well knowne to all being otherwise called Gang weeke The reason why it is so termed is because of the especiall deuotion of prayer and fasting then inioyned by the Church to all men for a preparatiue to the ioyfull remembrance of Christs glorious ascension and the descension of the holy Ghost in the forme of cloven tongues shortly after And in that respect the solemnization of carnall matrimony is forbidden
the master of the Court c. To whom are ioyned the Surueiour Atturny and Receiuer of the said Court as his Assistants then as Ministers the Register two inferiour Atturnies or Clerks and a Messenger Ward Custodia is the German word as Garde is the French Both these be vsed among our common lawyers the one by those that write in French the other by those that write in English Wherefore for your farder vnderstanding See Gard and Gardein Yet is Gard sometime vsed in the Englishbookes also as yeomen of the Gard. And also the keeper of one in his minority is not called a warder but a Gardein or Gardian Ward hath diuers applications as a Ward in London latined warda which is a portion of the City committed to the especiall charge of some one of the 24. Aldermen of the city in such sort as euery one knoweth his certaine ward assigned vnto him and hath dwelling within the same compas some one graue Citizen for the good gouernment thereof who is in that respect a Deputie to the said Alderman and commonly called the Aldermans Deputie Of these there be 25. within the citie and one without beside other liberties and the suburbes Stowes Suruey of London Also a Forest is diuided into wards Manwood parte prim of his Forest lawes pag. 97. Lastly a prison is otherwise called a Ward And the heire of the Kings tenent houlding by knights seruice or in capite or of any common person by Knights seruice is called Ward during his nonage See anno 32. H. 8. cap. 46. Warden Gardianus signifieth al one thing with the French Gardien And therefore of this see more in Gardien But it is the more vsuall word of all that writ in English for him that hath the keeping or charge of any person or thing by office as Wardens of Felowships in London anno 14. H. 8. cap. 2. Warden courts anno 31. H. 6. ca. 3. Warden of the Marches anno 4 H. 7. cap. 8. Wardens and Communaltie of the lanes contributorie to Rochester bridge anno 18. Eliz. cap. 7. Wardens of peace anno 2. Ed. 3. cap. 3. Statute Northampton Warden of the West Marches Camd. Brit. pag. 606. Warden of the Forest Manwood parte prim pag. 111. 112. Warden of the Aulnage anno 18. H. 6. cap. 16. Chiefe Warden of the Forest Manwood parte prim pag. 42. 43. Warden of the Kings wardrobe anno 51 H. 3. statut quinto Wardens of the tables of the Kings Exchaunge anno 9. Ed. 3. stat 2. cap. 7. anno 9. H. 5. stat 2. c. 4. Warden of the rolles of the Chauncerie anno 1. Ed. 4. cap. 1. cap. 5. Warden or Clerke of the hamper of the Chauncerie ibid. Warden of the kings writs and Records of his common bench ibid. Warden of the Kings armour in the tower anno 1. Ed. 4. cap. 1. Wardnote is a court kept in euery ward in London anno 32. H. 8. cap. 17. ordinarily called among them the Wardmote Court Ward peny is money to be contributed toward watch and ward Warantie warantia commeth of the French garantie or garant i. vindex litis which is a word of great antiquitie with the French men being brought first thither by the Francogalli And thence do they make a Latinish verbe viz. guarentare vel vt est in aliis libris guarentisare i. causam alterius suscipere se defensorem profiteri The Feudists also vse this word guarentus quo significatur is qui Latinis author dicitur euictionem praestat lib. 2. Feud titulo 34. § 2. The Ciuilians haue a stipulation habere licere whereby is signified a power of perpetuall quiet possession to be giuen l. 11. § final Π. de action empt vend But this reacheth not so farre as our warrantie For the seller hereby is bound but to a kind of diligence and care to maintaine the buyer in his possession For if he be euicted the buyer is not tyed to recōpence Doctores in l. stipulatio ista Habere licere Π. de verb. obliga Warrantie signifieth in our common lawe a promise made in a deed by one man vnto another for himselfe and his heires to secure him and his heires against all men for the enioying of any thing agreed of betweene them And he that maketh this warrantie is called Warrantus by Bracton lib. 2. cap. 10. 37. The Romaines called him Auctorem as Hotoman testifieth in his Commentarie vpon Tullies oration pro Aulo Caecinna verbo Cesennius author fundi whom you may reade more at large And that which we terme vocationem warranti the Ciuilians call authoris laudationem vel nominationem Eimer pract cap. 48. This warranty passeth from the seller to the buyer from the feoffer to the feoffee from him that releaseth to him that is released of an action reall and such like And for the forme it passeth in a clause toward the end of a deed in these wordes Et ego verò praefatus I. haeredes mei praedictas decem acras terrae cum pertinentiis suis praefato H. haeredibus assignatis suis contra omnes gentes warrantizabimus in perpetnum per praesentes West parte prim symbol lib. 2. titulo Feofments sect 281. 288. So a release may be with a clause of warrantie Idem eodem titulo Releases sect 510. There is also a warrant of Atturney whereby a man appointeth another to do some thing in his name and warranteth his action West eod sect 181. And these warrāts of Atturney seeme to differ from leters of Atturney because that whereas leters passe ordinarily vnder the hand and seale of him that maketh an Atturney by them before any credible witnesses warrants of Atturney be acknowledged before such persons by such means and in such maner as Fines West parte 2. symbol titule Recoueries sect prim F. See Atturney But these waranties in passing land from one to another be of greatest consequent of more intricate vnderstanding And therefore of these diuers haue written at large as Glanvile lib. 3. per totum Bracton lib. 5. tract 4. per totum Britton cap. 105. Litleton in the last chapter of his tenures the forme and effect whereof Bracton in his second booke cap. 16. num 10. declareth thus Et ego haeredes mei warrantizabimus tali haeredibus suis tantùm vel tali haeredibus assignatis haeredibus assignatcrum vel assignatis assignatorum eorum haeredibus acquietabimus defendemus eis totam terram illam cum pertinentiis secundum quod praedictum est contra omnes gentes in perpetuum per praedictum seruitium Per hoc autem quòd dicit Ego haeredes mei obligat se haeredes suos ad warrantiam propinquos remotos praesentes futuros ei succedentes in infinitum Per hoc autem quòd dicit warrantizabimus suscipit in se obligationem ad defendendum suum Tenementum in possessione res datae