open concurse of Merchants and protest that I am deceived by him And thereupon if he hath any goods remaining in any mans hands within the Realm the Law of Merchants is that I be paid out of them Prouver Probator See Approuver anno 5 H. 4. cap. 2. See Approvours Province Provincia was used among the Romans for a Country without the compasse of Italy gained to their subjection by the sword whereupon the part of France next the Alpes was so called of them when it was in their dominion and of that carrieth the same name at this present But with us a Province is most usually taken for the circuit of an Archbishops Iurisdiction as the Province of Canterbury and the Province of York anno 32 H. 8. ca. 23. anno 33 ejusdem cap. 31. yet it is used divers times in our statutes for several parts of the Realm Provincial provincialis is a chief goververnor of an order of Friers anno quar Hen. quar cap. 17. Protoforestaâ—ius was he whom the antient Kings of this Realm made chief of Wind for Forest to hear all causes of death or mayhem or of slaughter or of the Kings Deer within the Forest Camden Brit. pag. 213. See Justice of the Forest Prove See Profe Provision proviso is used with us as it is used in the Canon law for the providing of a Bishop or any other person of an Ecclesiastical living by the Pope before the Incumbent be dead It is also called gratia expectativa or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenns de sacris ecclesiae ministeriis beneficiis l. 3. cap. 2. but also for England particularly in divers statutes of the Realm viz. anno 35 Ed. 3. cap. 22. stat 4. statu 5. commonly called the statute de provisionibus anno 27 ejusdem cap. 1. anno 38 ejusdem stat 2. cap. pri 2 3 4. anno 38 ejusdem anno 2 Rich. 2. cap. 7. anno 3 ejusdem cap. 3. anno 7 ejusdem cap. 12. anno 12 ejusdem cap 15. anno 13 ejusdem stat 2. cap. 2 3. anno 16 ejusdem cap. 5. anno 2 Henr. 4. cap. 3 et 4. et anno 5 ejusdem cap. prim et anno 7 ejusdem cap. 6 et 8. et anno 9 ejusdem cap. 8. anno 3 Henr. 5. cap. quar See Praemunire Provisour Provisor is he that sueth to the court of Rome for a provision Old nat br fol. 143. See Provision Proviso is a condition inserted into any deed upon the observance whereof the validity of the deed consisteth which form of condition seemeth to be borrowed from France for Pourvieu Gallicum semper conditionem inducit Tiraquel tome 3. pag. 316. Our common Lawyers say that it sometime signifieth but a covenant whereof you have a large dispute in the second Book of Sir Edward Cooks Reports in the Lord Cromwels case It hath also another signification in matters Iudicial as if the Plaintiff or demandant desist in prosecuting an action by bringing it to a tryal the defendant or tenent may take out the venire factas to the Shyreeve which hath in it these words Proviso quòd c. to this end that if the Plaintiff take out any writ to that purpose the Sheriff shall summon but one Iury upon them both See Old natura brev in the writ Nisi prius fo 159. PU Purchas See Pourchas Purfles of a womans gown anno 33 H. 8 cap. 5. Purgation purgatio is a clearing of a mans self from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great use in England touching matter of Felony imputed to Clerks in former time as appeareth by Stawnf pl. cor li. 2. cap. 48. See Clergy It is still observed for matter pertaining to the Ecclesiastical court as suspicion or common fame of incontinency or such like Purgation is either Canonical canonica or vulgar vulgaris Canonical is that which as prescribed by the Canon law The form whereof is usually in the Spiritual court the man suspected taking his oath that he is clear of the fault objected and bringing so many of his honest Neighbours being not above twelve as the court shall assign him to swear upon their consciences and credulity that he sweareth truly or hath taken a true oath Vulgar purgation was by fire or water or by combat used by infidels and Christians also untill by the Canon law it was abolished tit 15. depurgatione Canon et vulga in Decretalibus Combat though it be lesse in use than it was yet it is and may be still practised by the Laws of the Realm in cases doubtfull if the defendant chuâ—e rather the combat than other tryal See Ordell See Combat Purlue is all that ground near any Forest which being made Forest by Henry the second Richard the first or King John were by perambulation granted by Henry the third severed again from the same Manwood parte 2. of his Forest laws cap. 20. And he calleth this ground either pouralce i. perambulationem or purliu purluy which he saith be but abusively taken for pourallee ubi supra num 3. But with the licence of that industrious and learned Gentleman I am bold to say that this word may be no less fitly made of two French words pur i. purus and lieu i. locus and my reason is because that such grounds as were by those Kings subjected to the Laws and Ordinances of the Forest are now cleared and freed from the same for as the Civilians call that purum locum qui sepulchrorum reliâ—ioni non est obstrictus sect 9. de reruus divisin institution so no doubt in imitation of that very point our auncestors called this purlieu i. purum locum because it was exempted from that servitude or thraldome that was formerly layd upon it So ager purus est qui neque sacer neque sanctus neque religiosus sed ab omnibus hujusmodi nominibus vacare videtur lib. 2. sect 4. Ï€. de religio et sumptibus funerum And therefore Master Crompton Purraile is not much amisse fol 153. of his Iurisdict because we may also derive it from the French words pur and allee that is as much as to say as a clear or a free walk or passage And where it is sometime called Pouralee that may and doth come from pur and alee i. itio profectio ambulatio because he that walketh or courseth within that compasse is clear enough from the laws or penalties incurred by them which hunt within the precincts of the Forest See the statute anno 33 Edw. prim stat 5. Pourlie man is he that hath ground within the purlieu and being able to dispend forty shillings by the year of Freehhold is upon these two points licensed to hant in his own purlieu Manwooâ— parte 1 of his Forest laws pag. 151 and 157.
signifieth verbatim Which is the self same thing It is used in our Common law as a word of art in an action of Trespasse or of like nature for a direct justification of the very act complained of by the Plaintiff as a wrong For example in an action of the case the Plaintiff saith that the Lord threatned his Tenants at will in such sort as he drave them to give up their tenures The Lord for his defence pleadeth That he said unto them That if they would not depart he would sue them as the Law would This being the same threatning that he used or to speak 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 have many like examples Que estate word for word signifieth quem statum It signifieth in our Common law a plee whereby a man entituling another to land c. saith That the same estate he had himself hath from him For example in a quare impedit the Plaintiff allegeth That such four 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 void que estat del c that is which estate of the four persons he saith also that he hath now during the vacation by vertue whereof he presently c. Brook titulo Que estate fol. 175 176. But it is harder to know when this Que estate is to be pleaded than to understand what it is as by him may appear See the new book of Entries verb. Que estate Queen Regina is either he that holdeth the Crown of this Realm by right of bloud or else she that is maried to the King In the former signification she is in all construction the same that the King is and hath the same power in all respects In the other signification she is inferiour and a person exempt from the King for she may sue and be sued in her own name Yet that she hath is the Kings and look what she loseth so much departeth from the King Stawnf praerog cap. 2. fol. 10. in sine See Kitchin fo 1. b. See Cook lib. 4. Copy-hold cases fo 23. b. Angusta was the like among the Romans howbeit not ejusdem juris in all things Queens silver See Kings silver Quem redditum reddat is a writ judicial that lyeth for him to whom a rent seck or rent charge is granted by fine levyed in the Kings court against the Tenent of the land that refuseth to atturn unto him thereby to cause him to atturn See Old nat br fo 156. west part 2. symbol titulo Fines sect 125. See the new book of Entries verb. quem reditum reddit Querela frosca fortiae is a writ See Fresh force Querela coram regi et consilio descutienda et terminanda is a writ whereby one is called to justifie a complaint of a trespasse made to the King and himself before the King and his Councel Regist origf 124 b. Questus est nobis c. is the form of a writ of Nusance which by the statute ax 13 Ed 1. ca. 24. lyeth against him to whom the house or other thing that breedeth the Nusance is alienated whereas before that Statute this action lay only against him that first levyed the thing to the hurt of his Neighbour See the Statute Quia improvide seemeth to be a Supersedeas granted in the behalf of a Clark of the Chancery sued against the privilege of that Court in the Common plees and persued in the exigend See Dyerf 33 n 18. Quid juris clamat is a writ judicial issuing out of the Record of the fine which remaineth with the Custos brevinm of the Common place before it be ingrossed for afterward it cannot be had and it lyeth for the Grantee of a Reversion or Remainder when the particular tenant will not atturn West parte 2. symb tit Fines sect 118. Whom see further See the Register judicial 36 57. And the new book of Entries Verbis Quid juris clamat Quinquagesima Sunday is alway the next Sabbath before Shrovetyde so called because it is the fivetieth day before Easter The reason of this appellation whoso desireth to know he may find divers such as they be in Durandi rationali Divinorum Capit. de Quinquagesima Sexagesima Sunday is the next Sabbath before Quinquagesima so called in the opinion of the said Author because the number of sixty consisteth of six times ten six having reference to the six works of mercy and ten to the ten Commandements Septuagesima is the next before Sexagesimi and is instituted and so called as Durand likewise saith for three things and to use his own words Primò propter redemptionem Sabbati vel secundum alios quinta furiae in qua sancti patres stat uerunt jejunari Secundo propter repraesentationem quoniam repraesentat septuaginta annos captivitatis Babylonicae Tertiò propter significationem quoniam per hoc tempiis significatur deviatio exilium et tribulatio totius humani generis ab Adam usque ad finem mundi quod quidem exilium sub revolutione septem dierum peragitur et sub septem millibus annornm includitur But of these three days you may read him at large that have a mind to learn of him I only take occasion to note what time of the year they be because I find them spoken of in our antient Law-writers as Brit. 23. and such like Quite claim quiete clamantia vel quieta clamantia is a release or accquitâ—ing of a man for any Action that he hath or might have against him Bracton li. 5. tract 5. c. 9. nu 9 li. 4. tract 6. ca. 13. nu pri Quittance qutetantia See Acquitance Quid pro quo is an artificial speech in the Common law signifying so much as the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 among the Civilians which is a mutual protestation or performance of both parties to a contrnct as a horse and ten pound between the buyer and the seller Kitchin fo 184. Quinsieme decima quinta is a French word signifying a fifteenth It is used in our Common law for a tax laid upon the subjects by the Prince anno 7 Hen. 7. ca. 5. So termed because it is raised after the fifteenth part of mens Lands or Goods See Fifteenth and Tax The Fifteenth as Crempton saith in his Jurisd fol. 21. is levyed more commonly in these daies by the yards of Land and yet in some places by goods also and note also that he there saith that it is well known by the Exchequer Roll what every town through England is to pay for a fifteenth Sometime this word qninsieme is used for the 15 day after any feast as Quinsieme of Saint Johns Baptist anno 13 Ed. prim ca. 3. et anno decimo ostavo ejusdem capit prim Quod ei def rceat is a writ that
Wesenbecius in their Paratitles π. finium regund And though Justinian in his first division omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certain actions naming these and other of like nature that seem to have a mixture c. Of this you may also read Britton at large in his Chapter 71. And this division of action springeth from the object or matter whereabout it consisteth Wesenb parat π. de actio obliga The Author of the new Tearms of Law defineth a mixt action to be a sute given by the Law to recover the thing demanded and also the damages for wrong done as in Assise of novel disseisin the which writ if the disseisour make a feoffment to another the disseiseur shall have a remedie against the disseisour and the feoffer or other land tenant to recover not only the land but the dammages also See the test These words occasion me to shew that actio is by the Civil law called mixta in two respects Nam quadam mistae sunt quòd in se actionis in rem actionis personalis naturam habeant in üs actor reus uterque sit l. actionis verbo § fina w. de obliga actio Tales sunt actio familiae excisc communi dividun finium regun quaedam verò mistae sunt quòd rem simul poenam persequantur ut in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta solvere distulerunt And of this latter sort is the example that the said Author bringeth of a mixt action Action is also by the Civilians divided of the efficient cause in civilem praetoriam Whereof one riseth out of the common civil law the other from some Edict of the Pretour Who being Chief Justicer had authority for his year to supply the defects of the general law by his especial edicts And a division not unlike this may be made in the Common law of England one growing from the antient customary law the other from some Statute Brook tit Action sur le statut Action of the final cause is divided into civill poenal mixt Cook vol. 6. fol. 61. a. Action civil is that which tendeth only to the reeovery of that which by reason of any contract or other like cause is due unto us as if a man by action seek to recover a sum of mony formerly lent c. Action penal is that aimeth at some penalty or punishment in the party sued be it corporal or pecuniary As in the Action legis Aquiliae in the Civil law wherby in our Common law the next Friends of a man feloniously slain or wounded shall pursue the law against the murtherer or him that wounded him to condign punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are deprived and a penalty also for the unjust deteining of the same as in an Action of Tithe upon the Statute anno 2 3 Ed. 6. cap. 13. Action is also according to the form of Petition divided into such as are conceived to recover either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doth Decies tantum lye against Embracers Fitz. not br fol. 171. and against Jurours that take mony for their verdict of one part or the other or both And to be short any other action upon a Statute that punisheth any offence by restitution or fine proportionable to the transgression Action is prejudicial otherwise called preparatorie or else principal prejudicial is that which groweth from some question or doubt in the principal as if a man sue his younger Brother for Land descended from his Father and it be objected unto him he is a Bastard Bract. lib. 3 ca. 4. nu 6. For this point of bastardy must be tryed before the cause can further proceed and therefore is termed praejudicialis quia prius judicanda Action is either awncestrel or personal Stawnf pl. cor 59. Auncestrel seemeth to be that which we have by some right descending from our Ancestor upon us and that personall which hath the beginning in and from our selves Action upon the Case actio super casu is a general Action given for redress of wrongs done without force against any man and by Law not especially provided for For where you have any occasion of sute that neither hath a fit name nor certain form already prescribed there the Clerks of the Chancery in antient time conceived a fit form of Action for the fact in question which the Civilians call actionem in factum and our common Lawyers action upon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gesta enarratione declarant citra formulam ac solennitatem ullam Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the Civill Law there are two sorts actionis in factum one termed actio in factum ex praescriptis verbis the other actio in factum praetoria Wesenb parat de praescrip verb. the former growing upon words passed in contract the other more generally upon any fact touching either contract or offence formerly not provided against this Action upon the Case seemeth in use to be more like to the Pretours Action in factum than to the other because in the perusal of the new book of Entries and Brooks his Abridgement hereupon I perceive that an Action upon the Case lyeth as well against offences as breach of contract Of this see more in the word Trespass Action upon the Statute actio super Statuto is an Action brought against a man upon breach of a Statute to be resembled in mine opinion to any Action given in the law Imperial either upon edictum praetoris ple biscitum or senatusconsultum For as the Pretour so the common People in comitiis tributis and the Senators or Nobility in curia vel senatu had power to make laws whereupon the Pretour or other Judges permitted Action And even so our high Court of Parliament maketh Statutes against such offences as are either newly grown or more and more increased and our Judges entertain their Plees that commence their actions against the breakers of them Action is perpetual or temporal perpetua vel temporalis and that is called perpetual the force whereof is by no time determined Of which sort were all civil Actions among the antient Romans viz. such as grew from Laws decrees of the Senate or constitutions of the Emperors whereas actions granted by the Pretor died within the year de perpet tempor actio in Instit So we have in England perpetual and temporary actions and I think all may be called perpetual that are not expresly limited As divers Statutes give actions so
false and hath this end to draw the triall of the cause from the Jury to the Judges Of this see twò apt examples in the Authour of the new Terms verbo Colour who also referreth you to the Doctor and Student fol. 158. c. See Brook tit Colour in Assise trespas c. fol. 104. Collusion collusio is in our Common law a deceitfull agreement or compact between two or more for the one party to bring an action against the other to some evill purpose as to defraud a third of his right c. See the new Terms and Brook tit Collusion See also one Case of Collusion in the Register orig fol. 179 a. Combat duellum is a French word signifying as much as certamen decertatio dimicatio discrimen praelium pugna but in our Common law it is taken for a formall tryall of a doubtfull cause or quarrell by the Sword or Bastons of two Champions Of this you may read at large both in divers Civilians as Paris de Puteo de re militari duello Alciat de Duello Hottoman disputatio feudalium cap. 42. and others As also in our Common Lawiers of England namely Glandvile l. 14. cap. 1. Bracton l. 3. tract 2. cap. 3. Britton cap. 22. Horns Myrrhor of Justices l. 3. cap. des exceptions in fine proxime and c. Juramentum duelli Dyer fo 301. nu 41. 42. That this also was antiently the Law of the Lombards before they invaded Italy which was about the year of our Lord 571 appeareth by Sigonius in his History de regno Italiae l. 2. de Aricaldo rege who there reporteth that the said king having put away his wife Gundeberga upon a surmise of Adulterie with Tato Duke of Etruria at the private suggestion of Adalulphus a great man among the Lombards being charged by Clotharius the King of France his Ambassadour of whose blood shee waâ—that he had done her wrong he answered that he had done her no wrong Wherupon Ansoaldus one of the Ambassadour replyed That they would easily beleeve him if he would suffer the truth to be tryed by combat between some one of the Quenes friends and her accuser according to the custome of the Lombards And the king yielding unto this Adulphus was vanquished by one Pitto otherwise called Charles set forth for the Queenes Champion and shee restored to her former place and honour Comin seed alià s Cumin seed Semen cumini is a seed brought forth by an Herb so called which you may see described in Gerards Herball lib. 2. cap. 416. this is placed among the garbleable drugs anno 1. Jacob. cap. 19. Commitatu commisso is a writ or a Commission whereby the Sheriff is authorized to take upon him the sway of the Countie Reg. orig fol. 295. a. b. and Cokes Reports l. 3. fol. 72. a. Comitatu castro commisso is a writ whereby the charge of a County together with the keeping of a Castle is committed to the Sheriff Reg. orig fol. 295. a. Commandrie praeceptoria was by some mens opinion a Manor or chief messuage with which lands or tenements were occupied belonging to the Priorie of S. Johns in Hierusalem in England and he which had the Government of any such Manor or house was called the Commander who had nothing to dispose of it but to the use of the Priory taking only his sustenance thence according to his degree and was usually a brother of the same Priorie Author of the new Terms of law verbo Commandrie By some other Books it appeareth that the chief Prior of S. Johns was a commander of a Nunnerie and constituted the Prioress of the said Nunnery who was under his obedience and removeable at his will notwithstanding that she had covent comon seal and had her possessions severall and was wont to lease the land for Term of years Fulbecks Paralels fol. 2. a. Of these commandries also Petrus Gregorius lib. de beneficiis cap. 11. num 11. hath these words Praeceptoriae dictae commendae satrorum militum veluti ordinis hospitalis Sancti Johannis Hierosolymitani beneficia quidem secundum quid ecclesiastica dicuntur à Barbatia ad Clement causam col 51. de Electione Tamen non prop iè dicuntur ex genere communium beneficiorum eo quòd personae conferentes quibus conferuntur non sunt laicae vel ecclesiasticae sed tertii ordinis De his beneficiâ—s fit mentio cap. exhibita de privilegiis in extravag com in cap. Dudum de decimis These in many places of our Realm are tearmed by the name of Temples because they sometime belonged to the Templers Of these you read anno 26 H. 8. cap. 2. anno 32 ejusd cap. 24 And of these the said Gregorius Tolosanus l. 15 sui syntagmatis cap. 34. hath these words Monuimus superiori capite crescente numero peregrinorum juxta templum Hierosolymitanum Xendochium edificatum tit Divi Johannis quo exciperentur peregrini quos coenobia caepere non possent Hujus ergo ministerio quoque viri pâ—i nobiles se devoverunt qui peregrinos tutarentur â latronum seu Agarenorum incursu defen dere nt Horum professio est votum solenne paupertatis abdicationis propriorum castuatis et obedientiae Proinde propter primum votum nihil proprii habent vel habere debent sed accipiunt annonam quà m diu vivunt vel praeceptorias quas vocant Commandries administrant quà m diu eas possident et optione mutant vel en magistri licentia permutant reddituri morientes quae apud eos reperientur societati Of these Corasius in his para phrase ad sacerd nat part 1. ca. 3. saith thus Praeceptoriae Rhodienses cum non nisi fratribus Hierosolymitanis atque ita personis ecclesiasticis confer antur beneficiis ecclesiasticis annumer ari merit ò debent Commandement praeceptum is used diversly in the Common law sometime for the commandement of the King when upon his meer motion and from his own mouth he casteth any man into prison Stawnf pl. Coron fol. 72. or of the Justices And this commandement of the Justices is either absolute or ordinary Absolute as when upon their own authority in their wisdome and descretion they commit a man to prison for a punishment ordinary is when they commit one rather for safe custody than punishment And â— man committed upon an ordinary commandement is replevisable Pl. cor fol. 73. Commandement is again used for the offence of him that willeth another man to transgresse the law or to do any such thing as is contrary to the law as Murther Theft or such like Bract. l. 3. tract 2. ca. 19. And this the Civilians call mandatum Angelus de maleficiis Commen communiae commeth from the French cummun i. quod ad omnes pertinet and signifieth in our Common law that soyl or water whereof the use is common to this or that town or Lordship as Commen of pasture communia pasturae Bract. lib. 4. ca. 19.
from the verb couvar i. tegere It is particularly applyed in our Common law to the estate and condition of a married woman who by the lawes of our Realm is in potestute viri and therefore disabled to contract with any to the prejudice of her self of her husband without his consent and privity or at the least without his allowance and confirmation Broke hoc tit per totum And Bracton saith that omnia quae sure uxorit sunt ipsius viri nec habet uxer potestatem sui sed vir L◠2. cap. 15. and that vir est caput mutieris li. 4. cap. 24. and again that in any law-matter sine viro respondere non potest li. 5. tract 2. cap. 3. and tract 5. cap. 23. ejusdem libri hee hath words to this effect Vir uxor sum quasi unica persona quia caro una sanguis unus Res licet sit propria uxoris vir tamen ejus custos cùm sit caput mulieris and lib. 1. cap. 10. nu 2. Uxores sunt sub virg a viri And if the husband alienate the wifes land during the mariage she cannot gainesay it during his life See Cui ante divortium and Cui in vita Covine covina is a deceitfull assent or agreement between two or more to the prejudice or hurt of another New terms of Law It commeth from the French verb convenancer i. depascisci or rather convenir i. convenire Coucher signifieth a Factour that continueth in some place or Countrey for trasique anno 37. Ed. 3. cap. 16. It is used also for the generall book into which any Corporation entreth their particular acts for a perpetuall remembrance of them Counte commeth of the French coumpte i. subductus computatio ratio or of emote i. warratio It signifieth as much as the original de claration in a process though more used in reall actions than personall as declaration is rather applyed to personall than reall Fitz. nat br fol. 16. A. 60. D. Pl. 71. A. 191. E. 217. A. Libellus with the Civilians comprehendeth both And yet count and declaration be confounded sometimes as Count in debt Kitchin fol. 281. count or declaration in appeal pl. cor fol. 78. Count in trespasse Britton ca. 26. Count in an action of Trespasse upon the case for a slander Kuchin fol. 252. This word seemeth to come from France and Normandy For in the grand Custumary ca. 64. I find Contours to be those which a man set teth to speak for him in court as advocates and cap. 63. Pledurs to be another sort of spokes-men in the nature of Atturneys for one that is himself 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 upon those 3. chapters Camntours by Horn in his Mirror of Justices li. 2. ca. Des loyers are Sergeants skilfull in the law of the Realm which serve the common people to pronounce and defend their actions in judgement for their fee when occasion requireth whose duty if it be as it is there described and were observed men might have much more comfort of the Law than they have Countenance seemeth to be used for credit or estimation Old nat br fo 111. in these words Also the attaint shall be granted to poor men that will swear that they have nothing whereof they may make Fine saving their countenance or to other by a reasonable Fine So is it used anno 1. Ed. 3. stat 2. cap. 4. in these words Sheriffs shall charge the Kings debtors with as much as they may levie with their oaths without abating the Debtors countenance Counter computatorium seemeth to come of the Latine computare or the French counter For we use it for the name of a prison whereinto he that once slippeth is like to acconut 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 law a replication to ayde prier For when the Tenent by cour esie or in dower prayeth in ayde of the King or him in the teversion for his better defence or else if a stranger to the action begun desire to be received to say what he can for the safegard of his estate that which the demandant allegeth against this request why it should not be admitted is called a counter-plee See Broke tit And in this signification it is used anno 25. Ed. 3. stat 3. cap. 7. See also the new Termes of Law and the Statute anno 3. Ed. 1. cap. 39. County comitatus signifieth as much as Shire the one descending from the French the other from the Saxons both containing a circuit or portion of the Realm into the which the whole land is divided for the better government thereof and the more easie administration of justice So that there is no part of the Kingdome that lieth not within some County and every County is governed by a yearly officer whom we call a Sheriff which among other duties belonging to his office putteth in execution all the Commandements and Judgements of the Kings courts that are to be executed within that compasse Fortescue cap. 24. Of these Counties there be four of especiall mark which therefore are termed Counties Palatines as the Countie Palatine of Laucaster of Chester of Durham of Ely an 5. Eliz. 1. ca. 23. I read also of the Countie Palatine of Hexam an 33. H. 8. ca. 10. Unde quaere And this County Palatine is a Jurisdiction of so high a nature that whereas all Plees touching the life or mayhem of man called Plees of the Crown be ordinarily held and sped in the Kings name and cannot passe in the name of any other the chief governours of these by especial charter from the King did heretofore send out all writs in their own name and did all things touching Justice as absolutely as the Prince himself in other Counties only acknowledging him their Superiour and Soveraign But by the Statute anno 27. H. 8. ca. 25. this power is much abridged unto the which I refer the reader as also to Crom. Juris fol. 137. for the whole course of this court Besides these Counties of both sorts there be likewise Counties Corporate as appeareth by the Statute anno 3. Ed. 4 5. And these be certain Cities or antient Boroughs of the land upon which the Princes of our Nation have thought good to bestow such extraordinary liberties Of these the famous Citie of London is one and the principall York another an 32. H. 8. cap. 13. the City of Chester a third an 42. Eliz. cap. 15. Canterbury a fourth Lamb. Eire lib. 1. cap. 9. And to these may be added many more but I have only observed out of the statutes other writers the County of the Town of Kingston upon Hull anno 32. H. 8. cap. 13. the County of the Town of Haverford West
in every Tun anno 12 Edw. 4. ca. 3. anno 6 H. 8. ca. 14. anno pri Ed. 6. ca. 13. anno pri Jacobi ca. 33. I have heard it also called a duty due to the Mariners for unloading their Ship arrived in any Haven after the rate of every Tun. Torny See Turney Totted anno 42 Edw. 3. cap. 9. anno 1 Ed. 6. cap. 15. is a word used of a debt which the forein Apposer or other Officer in the Exchequer noteth for a good debt to the King by writing this word Tot unto it Tourn See Turn Tout tempa prist uncore est that is to say in English Alway ready and is at this present This is a kind of Plee in way of excuse or defence unto him that is sued for with-holding any debt or duty belonging to the Plaintiff See of this Broke his Abridgement fol. 258. TR Traile baston See Iustices of trial baston Traitor traditor proditor See Treason Transgressione is a writ called commonly a writ or action of Trespass Of this Fitzherbert in his Natura brevium hath two sorts one Vicountiel so called because it is directed to the Sheriff and is not returnable but to be determined in the County The form whereof differeth from the other because it hath not these words Quire vi armis c. and this see in Fitzherberts natura brev fol. 84 G. The other is termed a writ of trespasse upon the case which is to be sued in the Common bank or the Kings Bench in which are alwaies used these words vi et armis c. And of this you have Fitzh nat br f. 92. E. See Trespass See the divers use of this writ in the Register original in the Table Transcript anno 34 35 H. 8. cap. 14. is the copy of any original written again or exemplified Transcripto Recognitionis factae coram Justiciariis itinerantibus c. is a writ for the certifying of a Recognizance taken before Iustices in Eyre into the Chancery Regist orig fol. 152. b. Transcripto pedis finis levati mittendo in Cancellariam is a writ for the certifying of the foot of a fine levyed before Justices in Eyre c. into the Chancery eodem fol. 169. et Register judicial fol. 14. Travers commeth of the French Traverser iâ—transfigere It signifieth in our Common law sometime to deny sometime to overthrow or undo a thing done Touching the former signification take these words in Wests Symbol parte 2. titulo Chancery Sect. 54. An answer saith he speaking of an answer to a bill in Chancery is that which the Defendent pleadeth or saith in Bar to avoid the Plaintiffs bill or action either by confession and avoiding or by denying and traversing the material parts thereof And again Section 55. A replication is the Plaintiffs speech or answer to the Defendants answer which must affirm and pursue his bill and confess and avoid deny or traverse the Defendants answer And the formal words of this traverse are in Lawyers French sans ceo in Latine absque hoc in English without that See Kitchin fol. 227. titulo Affirmative et Negative In the second signification I find it in Stawnfords praerog cap. 20. through the whole Chapter speaking of traversing an Office which is nothing else but to prove that an Inquisition made of goods or lands by the Escheatour is defective and untruly made So traversing of an Inditement is to take issue upon the chief matter thereof which is none other to say than to make contradiction or to deny the point of the Inditement As in presentment against A. for a Highway over-flown with water for default of scowring a ditch which he and they whose estate he hath in certain land there have used to scowr and cleanse A. may traverse either the matter viz. that there is no Highway there or that the ditch is sufficiently scowred or otherwise he may traverse the cause viz. that he hath not the land c. or that he and they whose estate c. have not used to scowr the ditch Lamb. Earenarcha lib. 4. cap. 13. pag. 521 522. Of Traverse see a whole chapter in Kitchin fol. 240. See the new book of Entries verbo Traverse Treason traditio vel proditio commeth of the French trahison i. proditio and signifieth an offence committed against the the amplitude and Majesty of the Common wealth West parte secund symbol titulo Inditement sect 63. by whom it is there divided into High treason which other call altam proditionem and Petit treason High treason he defineth to be an offence done against the security of the Common wealth or of the Kings most excellent Majesty whether it be by imagination word or deed as to compass or imagine treason or the death of the Prince or the Queen his Wife or his Son and Heir apparent or to deflowre the Kings wife or his eldest Daughter unmarried or his eldest sons wife or levy war against the King in his Realm or to adhere to his enemies aiding them or to counterfeit the Kings great Seal privy Seal or mony or wittingly to bring false mony into this Realm counterfeited like unto the mony of England and utter the same or to kill the Kings Chancellor Treasurer Iustice of the one bench or of the other Iustices in Eyr Iustices of Assise Iustices of Oyer and Terminer being in his place and doing of his office anno 25 Ed. prim cap. 2. or forging of the Kings seal Manuel or privy signet privy seal or forein coyn current within the Realm anno 2 Mar. cap. 6. or diminishing or impairing of mony current anno 5 Eliz. cap. 11. et anno 14 El. ca. 3. et 18 Eliz. ca. pri and many other actions which you may read there and in other places particularly expressed And in case of this treason a man forfeiteth his lands and goods to the King only And it is also called treason Paramount anno 25 Ed. 3. ca. 2. The form of Iudgement given upon a man convicted of high treason is this The Kings Serjeant after the verdict delivered craveth Iudgement against the Prisoner in behalf of the King Then the Lord Steward if the traitor have been noble or other Iudge if he be under a Peer saith thus N. Earl of P. For so much as thou before this time hast been of these treasons indited and this day arraigned for the same and put thy self upon God and thy Peers and the Lords thy Peers have found thee guilty my Iudgement is that thou shalt be conveyed unto the Tower of London whence thou camest and from thence drawn through the midst of London to Tiburn and there hanged and living thou shalt be cut down thy bowels to be cut out and burnt before thy face thy head cut off and thy body to be divided into four quarters and disposed at the Kings Majesties pleasure and God have mercy upon thee Petit treason is rather described by examples than any where logically
they be pursued within the time by them prescribed namely the Statute anno 1 Ed. 6. cap. 1. giveth action for three years after the offences therein shall be committed and no longer and the Statute anno 7 H. 8. cap. 3. doth the like for four years and that anno 31 Eliz. cap. 5. for one year and no more But as by the Civil Law no actions were at the last so perpetual but that by time they might be prescribed against as actiones in rem decem aut viginti terminantur annis personales veró triginta sect 1. de perpet temp actioin Institutio l. 3. Co. de praescript 30. annorum so in our Common law though actions may be called perpetual in comparison of those that be expresly limited by Statute yet is there a means to prescribe against real actions within five years by a fine levied or a recovery acknowledged as you may see farther in the word Fine and Recovery And for this also look Limitation of Assise Action is farther divided in actionem bonae fidei stricti juris Which division hath good use in our common Law likewise though the terms I find not in any of their Writers But of this and such like divisions because they have as yet no apparent acceptance amongst our Lawyers but only a hidden use I refer the Reader to the Civilians and namely to Wesenb in his Paratitles ◠Deobligatio actio AD Addition additio is both the English and French word made of the Latine and signifieth in our common Law a title given to a man over and above his Christian and Surname shewing his Estate Degree Occupation Trade Age Place of Dwelling c. For the use whereof in original writs of Actions personal appeals and indictments It is provided by Statute an 1 H. 5. cap. 5. upon the penalty therein expressed Terms of the Law Brook farther addeth that it is likewise requisite in Towns and Gates of the Towns Parishes in great Towns and Cities where there may be any doubt by reason of more Towns Gates or Parishes of the same name titulo Addition See also M. Cromptons Justice of peace fol. 95 96. Adeling was a word of Honor among the Angles properly appertaining to the Kings Children whereupon King Edward being himself without issue and intending to make Eadgare to whom he was great Uncle by the Mothers side his Heir to this Kingdom called him Adeling Roger Hoveden parte poster suorum Annal. fol. 347. a. Adjournment adjournamentum is almost all one with the French adjouarement i. denunciatio vel diei dictio and signifieth in our Common-law an assignment of a day or a putting off untill another day Adjournment in eyre anno 25 Ed. 3. Statute of Pourveyers cap. 18. is an appointment of a day when the Justices in eyre mean to sit again Adjourn anno 2 Edw. 3. cap. 11. hath the like signification And this whole Title in Brook his Abridgement proveth the same The bastard Latine word adjournamentum is used also among the Burgundians as M. Skene noteth in his Book De verbo signi verbo Ad urnatus out of Cassaneus de consuet Burg. Ad inquirendum is a Writ judicial commanding inquiry to be made of any thing touching a Cause depending in the Kings Court for the better execution of Justice as of Bastardy of Bond-men and such like whereof see great diversity in the Table of the Register judicial verbo ad inquirendum Admeasurement admensuratio is a Writ which lyeth for the bringing of those to a mediocrity that usurp more than their part And it lyeth in two cases one is termed Admeasurement of Dower admensuratio dotis where the widow of the deceased holdeth from the Heir or his Guardian more in the name of her Dower than of right belonging unto her Register orig fol. 171. a. Fitzh nat br fol. 148. The other is Admeasurement of Pasture admensuratio pasturae which lyeth between those that have common of Pasture appendant to their free-hold or common by vicenage in case any one of them or more do surcharge the Common with more Cattel than they ought Register orig fol. 156. b. Fitzh nat br fol. 125. Administer administrator in our Common-law is properly taken for him that hath the Goods of a Man dying intestate committed to his charge by the Ordinary and is accountable for the same whensoever it shall please the Ordinary to call him thereunto I find not this word so used in all the Civil or Canon-law but more generally for those that have the Government of any thing as the Degrees Can. 23. quaest 5. cap. 26. Administratores plane saecularium dignitatum c. and extrava com ca. 11. Grangias autem alia loca Cisterciensium ordinis aliorum Regalium in quibus Gubernatores seu custodes vel administratores ponuntur c. Howsoever the signification of this word grew to be restrained amongst us it greatly booteth not But there was a Statute made anno 31 Ed. 3. cap. 11. whereby Power was given to the Ordinary to appoint these Administrators and to authorize them as fully as Executors to gather up and to dispose the Goods of the deceased alway provided that they should be accountable for the same as Executors And before that viz. Westm 2. anno 13 Ed. 1. cap. 19. it was ordained that the Goods of those that died intestate should be committed to the Ordinary his disposition and that the Ordinary should be bound to answer his debts so far forth as the Goods would extend as Executors And I perswade my self that the committing of this burden unto Bishops and those that derive Ecclesiastical Authority from them grew first from the constitution of Leo the Emperor Co. de Episco et cleri l. nulli li licere 28. Where it is said that if a man dying bequeath any thing to the redeeming of Captives c. and appoint one to execute his Will in that point the Party so appointed shall see it performed and if he appoint none to do it then the Bishop of the City shall have power to demand the legacie and without all delay perform the Will of the deceased Admirall Admiralius commeth of the French amerel and signifieth both in France and with us an high Officer or Magistrate that hath the Government of the Kings Navy and the hearing determining of all Causes as well Civil as Criminal belonging to the Sea Cromptons divers jurisd fo 88. and the Statutes anno 13 R. 2. ca. 5. anno 15. ejusdem ca. 3. anno 2 H. 4. ca. 11. anno 2 H. 4. ca. 6. anno 28. H. 8. ca. 15. with such like This Officer is in all Kingdoms of Europe that border upon the Sea and this Authority in the Kingdom of Naples is called magna Curia Admiratiae quae habet jurisdictionem in eos qui vivunt ex arte maris Vincent de Franch deseis 142. nu 1. This Magistrate among the Romans was called praefectus
be speciall in this signification as if an especial Commission should be granted to certain as in antient times they often were Bracton lib. 3. c. 11. in fine for the taking of an assise upon one disseisin or two any thing done in the Court before them a man would say it was done at such an especial assise And in this very signification doth Glanvile use it lib. 9. c. 12. in these words Sicontra dominum suum non infra assisam tunc distringitur â—se occupator c. and lib. 13. cap. 32. in these words cùm quis itaque infra assisam domini regis i. infra tempus à domino rege de consilio procerum ad hoc constitutum quandoque majus quandoqne minus censetur alium injuste sine judicio disseisiverit c. Of this word Assise you may read in Mâ— Skene de verbo signif de verbo Assise and by him understand that in Scotland also it is diversly used viz. in five several significations And touching the fifth signification he hath these words An Assise is called a certain number of men lawfully summoned received sworn and admitted to judge and discern in sundry civil causes like as Perambulations Cognitions Molestations pourpestrure division of Lands serving of Briefs and in all and sundry Criminal causes decided and tryed by an assise whereof there are two kinds one ordinarily in use which may be called a little 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 worth the reading Assisa continuanda is a Writ directed to the Justices assigned to take an assise for the continuance of the cause in case where certain Records alleged cannot in time be procured by the party that would use it Reg. orig f. 217. Assisa praeroganda it is a Writ directed to the Justices of Assise for the stay of proceeding by reason of the Kings business wherein the party is imployed Register orig fo 208 and 221. Association associatio is a patent sent by the King either of his own motion or at the sure of the Plaintiff to Justices appointed to take assises of novel disseisin or of Oyer and Terminer c. to take others unto them as fellows collegues in that business The derivation is plain the examples and sundry uses hereof you may find in Fitzh nat br fol. 185. E. fo 111. B. but more particularly in the Reg. orig fol. 201 202 205 206 207 223 224. Assoile absolvere commeth of the French absouldre and signifieth to deliver or set free from an excommunication Stawnf pl. cor fol. 72. in words to this effect otherwise the Defendant should remain in Prison untill the Plaintiff were assoiled that is delivered from his excommunication Assumpsit is a voluntary promise made by word whereby a man assumeth or taketh upon him to perform or pay any thing unto another This word containeth any verbal promise made upon consideration which the Civilians express by divers words according to the nature of the promise calling it sometime pactum sometime sponsionem sometime promissionem pollicitationem or constitutum the word seemeth to be drawn from the Latine assumptio quae significat professionem l. Ï€. ad municipalem AT Attache attachiare commeth of the French attacher i. figere nectere illigare defigere alligare In our Common law it signifieth to take or apprehend by Commandement or Writ And M. Lambert in his Eirenarch lib. 1. cap. 16. maketh this difference between an Arrest and an Attachment 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 formal words ducifacias c. and a Writ of attachment these words praecipimus tibi quòd attachies talem habeas cum coram nobis c. whereby it appeareth that he which arresteth carrieth the party arrested to another higher Person to be disposed of forthwith he that attacheth keepeth the Party attached and presenteth him in Court at the day assigned in attachment Yet I observe out of Master Kitchin that an attachment issueth out of a Court Baron which is a low Court cap. Attachment in Court Baron fol. 79. Another difference there is that an arrest lyeth only upon the body of a man and an attachment sometime upon his goods as shall be shewed in the sequel It may be likewise asked how an attachment and a capias do differ and how an attachment and a cape and an attachment and a Distress First that an attachment differeth from a capias it appeareth by Kitchin in these words fol. 79. Note that in a Court Baron a man shall be attached by his goods and a capias shall not go out thence whereby I gather that an attachment is more general taking hold of a mans goods and a capias of his body only Then an attachment 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 real as you may gather out of their forms in Fitzh nat br whereas attachment hath rather place in Actions personal as Bracton plainly setteth down lib. 4. tract 4. cap. 5. num 3. Where nevertheless it appeareth that a cape may be likewise used in an Action personal An attachment as is formerly said taketh hold of moveable goods or the body For it appeareth by Kitchin fol. 263. that a man may be attached by an hundred Sheep Read Skene de verbo signif verbo Attachiamentum Now it followeth to shew how Attachment differeth from a Distress For so it doth as may be shewed out of Kitchin fol. 78. where he saith that Process in Court Baron is Summons Attachment and Distress our of the Old nat br fol. 27. where it is said that a Process in a quare impedit is Summons Attachment and one Distress and again fol. 28. where speaking of the Writ Ne admittas he saith thus And the Process is one prohibition and upon the prohibition an Attatchment or Distress and fol. 32. in a Writ of Indicavit you have these words And after the attachment returned the Distress shall go out of the Roles of the Justices Bracton on the other side l. 5. tract 3. c. 4. num 2. sheweth that both attachiamentum magnum cape districtiones sunt Of which opinion Fleta also is li. 5. ca. 24. § si autem aed. But there also he saith that attachiamentum est districtio personalis cape magnum districtio realis So that by his opinion districtio is genus to Attachment Britton in his 26 Chapter hath words to this effect But in Attachment of Felony there commeth no Distress otherwise than by the body And if the Sheriff return in the cases aforesaid that the Trespassours have 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 Attachment is plainly used for an apprehension of an Offender by his goods So that to conclude I find no difference between an Attachment and a Distress but these two That an Attachment reacheth not to Lands as a Distress doth and that a Distress toucheth not the body if it be properly taken as an attachment doth Yet are they divers times confounded as may appear by the places formerly alleged and by Glanvil lib. 10. cap. 3. and Fleta lib. 2. cap. 66. seq Howbeit in the most common use an Attachment is an apprehension of a man by his Body to bring him to answer the action of the Plaintiff a Distress is the taking of another mans goods for some real cause as rent service or such like whereby to drive him to replevy and so to be Plaintiff in an action of Trespass against him that distreined him And so much for the difference and coherence of these words See also Distress I find in West parte 2. symbolaio titulo Proceedings in Chancery sect 22 23. that Attachment out of the Chancery is two-fold one simple and originally decreed for the apprehension of the party the other after return made by the Sheriff Quod defendens non est inventus in Baliva sua with Proclamations made through the whole County in such places as he shall think meet that the party appear by a day assigned and that he be attatched nevertheless if he may be found This second kind hath an affinity with the Canonists viis modis at the which if the Party appear not he is excommunicate or with the Civilians viis modisunà cum intimatione for in the Chancery if he come not upon this he is forthwith pressed with a Writ of rebellion There is an attachment of Privilege which is a power to apprehend a man in a privileged place or else by vertue of a mans privilege to call another to this or that Court whereunto he himself belongeth and in respect whereof he is privileged New book of Entries verbo Privilege fo 431. col 2. There is also a forein attachment which is an attachment of a Foreiners goods found within a Liberty or City to satisfie some Creditor of his within the City There is also an attachment of the Forest which is a Court there held For as M. Manwood saith in his first Book of forest Laws pag. 90 62 99. there be three Courts of the Forest where the lowest is called the attachment the mean the swaynemote the highest the Justice seat in Eyr This Court of attachment seemeth so to be called because the Verderours of the Forest have therein no other authority but to receive the attachments of Offendours against vert and venison taken by the rest of the Officers and to enroll them that they may be presented and punished at the next Justice-seat Manwood parte 1. pag. 93. And this attaching is by three means by Goods and Cattels by Body Pledges and Mainprise or by the body only The Court is kept every fortie daies throughout the year And he that hath occasion to learn more of this I refer him to M. Manwood loco quo supra and to M. Crompton in his Court of the Forest Attachment is commanded in Writs the diversitie whereof you may see in the Regist orig under the word Attachiamentum in Indice At large see Assise at large in the word Assise and Old nat br fol. 105. Verdict at large Littleton fo 98. To vouch at large Old nat br fol. 108. To make title at large Kitch f. 68. See Barre Attaine attincta commeth of the French as you shall see in the word attainted But as it is a Substantive it is used for a Writ that lyeth after Judgement against a Jury that hath given a false verdict in any Court of Record be the action real or personal if the debt or dammages surmount the sum of 40 s What the form of the Writ is and how in use it is extended Fitz. nat br f. 105. and the new Book of Enteries f. 84. colum 1. The reason why it is so called seemeth to be because the party that obtaineth it endeavoureth thereby to touch deprehend or stain the Jury with perjury by whose verdict he is grieved What the punishment of this perjury is or of him that bringeth the Writ against the Jury if he fail in his proof see Glanvil lib. 2. cap. 19. Fitz. nat br fol. 109. K. L. 110. A. B. C. D. c. the Terms of the Law verb. Attaint Fortescue cap. 26. Smith de rep Anglo lib. 3. cap. 2. and anno 11 H. 7. cap. 21. anno 23 H. 8. cap. 3. and others In what diversity of Cases this Writ is brought see the Register orig in Indice Attainted attinctus commeth of the French temdre i. tingere the Participle whereof is teinct i. tinctus or else of attaindre i. assequi attingere It is used in our Common law particularly for such as are found guilty of some crime or offence and especially of Felony or Treason Howbeit a man is said to be attainted of Disseisin Westm 1. cap. 24 36. anno 3 Ed. 1. And so it is taken in French likewise as estre attaint vayncu en aucuncas is to be cast in any cafe Which maketh me to think that it rather commeth from attaindre as we would say in English catched overtaken or plainly deprehended And Britton cap. 75. useth the Participle attaint in the sence that we say attained unto A man is attainted by two means by Appearance or by Proces◠Stawnf pl. cor fol. 44. Attainder by Appearance is by confession by battel or by verdict idem fo 122. Confession whereof attaint groweth is double one at the Bar before the Judges when the Prisoner upon his endictment read being asked guilty or not guilty answereth guilty never putting himself upon the verdict of the Jury the other is before the Coroner in Sanctuary where he upon his Confession was in former times constrained to abjure the Realm which kind also of the effect is called attainder by abjuration Idem fol. 182. Attainder by battel is when the party appealed by another and chusing to try the truth by combat rather than by Jury is vanquished Idem fol. 44. Attainder by verdict is when the Prisoner at the bar answering to the endirement not guilty hath an enquest of life death passing upon him is by their verdict or doom pronounced guilty Idem fol. 108. 192. Attainder by Process otherwise called attain der by default or attainder by outlagary is where a Partie flyeth and is not found untill he have been 5 times called publickly in the County and at the last out-lawed upon his default Idem f. 44. Ifind by the same Author f. 108. that he maketh a difference between Attainder and Conviction in these words And note the diversity between Attainder and Conviction c. And with this
Coursetour of the court and hath been chosen of some one of he clerks in the remembrancers offices or of the clerk of the Pipes office He at the days of prefixion taketh oath of all high Sheriffs and their under Sheriffs and of all Escheatours Bayliffs and other accountants for their true accounting He taketh the oath of all Collectours Controllers Surveyours and searchers of the Custom houses that they have made true entrances in their books He apposeth all Sheriffs upon their Summons of the Pipe in open Court He informeth the rest of the Barons of the course of the Court in any matter that concerneth the Kings Prerogrative He likewise as the other Barons taketh the declaration of certain receivers accounts and examineth the letters and sums of such of the former accountants as are brought unto him These Barons of the exchequer are antient officers for I find them named West 2. c. 11. an 13 Ed. 1. they be called Barons because Barons of the realm were wont to be employed in that office Fleta li. 2. c. 24. S. Tho. Smith saith of them that their office is to look to the accounts of the Prince and to that end they have Auditors under them as also to decide all causes appertaning to the Kings profits coming into the Exchequer by any means This is in part also proved by the Stat. an 20. Ed. 3. ca. 2. anno 27 ejusd stat 2. ca. 18. anno 5. R. 2. stat 1. ca. 9. 12. et anno 14. ejusd ca. 11. And hereupon they be of late men learned in the Common Law of the Realm whereas in autient times they were others viz. majores et discretiores in regno sive de clero essent sive de curia Ockam in his lucubrations de fisci regii ratione Horn. in his mirrour of Justices saith that Barons were wont to be two and they Knights cap. De la place del Eschequer Then be there in this signification Barons of the Cinque Ports anno 31 Ed. 3. stat 2. cap. 2. an 33 H. 8. cap. 10. which are two of every of the seven towns Hastings Winchelsey Rye Rumney Hithe Dover and Sandwich that have places in the lower-house of Parliament Cromptons jurisd fol. 28. Baron in the third signification is used for the husband in relation to his wife which is so ordinary in all our law-writers that write in French as it were superfluous to confirm it by any one Baronet I read this word anno 13 R. 2. stat 2. cap. 1. But I hold it falsly printed for Baneret or else to signifie all one with it Baronye baronia baronagium is the fee of a Baron In which account are not onely the fees of Temporal Barons but of Bishops also who have two respects One â—s they are Spiritual men without possessions as was the Tribe of Levie among the Israelites being susteined by the onely First fruits and Tenths of the other Tribes Josh cap. 13. vers 14. The other respect they have groweth from the bounty of our English Kings whereby they have Baronies at the least and are thereby Barons or Lords of the Parâ—iament This Baronie as Bracton saith lib. 2. cap. 34. is a right indivisible and therefore if an inheritance be to be divided among Co-parteners Though some capital messuages may be divided yet si capitale messuagium sit caput Comitatus vel caput Baroniae he faith they may not be parcelled The reason is ne sic caput per pluâ—es particulas dividatur plura jura comitatuum baroniarium deveniant ad nihilum per quod deficiat Regnum quod ex Comitatibus Baroniis dicitur esse constitutuÌ„ Barre Barra commeth of the French barre or barriere i. repagulum obex vectis It is used in our Common law for a peremptory exception against a Demand or plaint and is by the Author of the terms of Law defined to be a Plee brought by the Defendant in an Action that destroyeth the Action of the Plaintiff for ever It is divided into a Barre to common intent and a Barre scecial A Barre to a common intendment is an ordinary or general Barre that ordinarily disableth the Declaration or Plee of the Plaintiff A Barre special is that which is more than ordinary and falleth out in the case in hand or question upon some special circumstance of the fact Plowden casu Colthirst fol. 26. a.b. For example an Executor being sued for his Testators debt pleadeth that he had no goods left in his hands at the day when the Writ was purchased or taken out against him This is a good barre to common intendment or prima facie But yet the case may so fall out that more goods might come to his hands sithence that time which if the Plaintiff can shew by way of replication then except he have a more especial plee or barre to allege he is to be condemned in the action See also Plowden in the case aforenamed fol. 28. a. b. and Broke tâ—â—ulâ— Barre num 101. and Kitchin fol. 215. Barre also in the same signification is divided into barre material and barre at large Kitchin fol. 68. A barre material as it seemeth may otherwise be called a barre special as when one in the stop of the Plaintiffes Action pleadeth some particular matter as a descent from him that was the undoubted owner a Feoffment made by the Ancester of the Plaintiff or such like A bar at large is when the Tenent or Defendant by way of exception doth not traverse the Plaintiffs title by pleading not guilty nor confe ie and avoid it but onely maketh to himself a title in his barre As if in an Assise of novel disseisin the Tenent plead a Feoffment of a stranger unto him and gives but a colour onely to the Plaintiff Of this there is an apt example to be found 5 H. 7. fol. 29. Barre is also in regard of the effect divided into barre perpetual and barre pro tempore Perpetual is that which overthroweth the action for ever Barre pro tempore is that which is good for the present and may fail hereafter look an example or two in Broke titu Barre nu 23. where he saith that to plead plenè administravit is good until it may appear that more goods come to the Executors hands afterward which also holdeth for an heir that in an action of his Ancesters debt pleadeth rien per discent This word is also used for a material bar as the place where Sergeants or Councellers stand to plead causes in Court or Prisoners to answer to their Indictment Of which our Common lawyers that be licensed to plead in other Countries called licentiati are termed Baristers anno 24 H. 8. cap. 24. Barrator barectator cometh from the French Barat i. astutia and is neer the French it self in signification For barateur in that tongue betokeneth a deceiver and a barator in our Common law is a common wrangler that setteth men at ods and is
writ of errour be not suffered to remove his goods untill the errour be tried Register orig fo 131. b. Borow burgus vel burgum may either come from the French burg i. pagus or from the Saxon borhoe i. vadium pignus It signifieth here in England a corporate Town that is not a City anno 2 Ed. 3. ca. 3. namely all such as send Burgesses to the Parliament the number whereof you may see in M. Cromptons jurisd fo 24. It may probably be thought that it was antiently taken for those companies consisting often families which were combined to be one anothers pledge or borhoe See Bracton li. 3. tractat 2. a. 10. See Headborow and Borowhead and M. Lamberd in the duties of Constables pag. 8. Lynwood upon the provinciall ut singula de censibus speak to this effect Aliqui interpretantur burgum esse castrum vel locum ubi sunt crebra castra vel dicitur burgus ubisunt per limites habitacula plura constituta Butthen setting down his own opinion he defineth it thus Burgus dici potest villa quaecuâ—que alia à civitate in qua est universitas approba ta And that he provethout of the 11. book of Justinians Codex tit de fund rei privatae 65. l. 6. ejus tituli where burgus is termed corpus Some derive it from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i turris see M. Skene de verbo sign verbo Borghe The late author M. Verstegan in his restitution of decayed intelligences saith that burg or burgh wherof we say yet Borough or Bourrow metaphorically signifieth a Town having a wall or some kind of closure about it also a Castle All places that in old time had among our ancestors the name of Borrough were places one way or other fenced or fortified Bordlands signifie the demesnes that Lords keep in their hands to the maintenance of their bord or table Bract. li. 4. tractat 3. ca. 9. nu 5. Borrowhead aliâs Headborow capitalis plegius by M. Lamberds opinion in his treatise of Constables is made up of these two words borhoe i. pledge and head and signifieth a head or chief pledge And in explication of this and other Saxon words of this nature he maketh an excellent rehearsall of some antient customs of England during the reign of the Saxons which you may read This borowhead in short was the head or chief man of the Decurie or Borhoe that there he speaketh of chosen by the rest to speak and to doe in the name of the rest those things that concerned them See Boron-holders Borow-holders allâs Bursholders be quasi borhoe calders signifying the same officers that be called borow-heads Lamb. in the duties of Caustables Bracton calleth them Borghio Aldere li. 3. tractat 2. ca. 10. Borow english is a customary descent of lands or tenements whereby in all places where this custome holdeth lands and tenements descend to the youngest sonne or if the owner have no issue to his youngest brother as in Edmuntan Kitchin fa 102. And the reason of this custome as Lutleton saith is for that the youngest is tresumed in law to bee least able to shift for himself Barow goods divisable I find these words in the Statute of Acton Burnal anno 11 Edw. 1. statuto unico and dare not confidently set down the true meaning of them But as before the Statute of 32. 34. H. 8. no lands were divisable at the Common law but in antient baronies so perhaps at the making of the foresaid Statute of Acton burnel it was doubtfull whether goods were devisable but in antient borrowes For it seemeth by the writ de rationabili parte bonorum that antiently the goods of a man were partible between his wife and children Bote signifieth compensation Lamb. explication of Saxon words Thence commeth manbote aliâs monbote that is compensation or amends for a man slain which is bound to another For farther understanding whereof it is to be seen in K. Inas laws set out by M. Lamberd ca. 96. what rate was ordained for the expiation of this offence See Hedgebote Plowbote Howsebote and read M. Skene de verbo signif verbo Bote. Boeiler of the King pincerua regis anno 43 Ed. 3. ca. 3. is an officer that provideth the Kings wines who as Fleta li. 2. ca. 21. saith may by vertue of his office out of every ship loaden with sale wines unum dolium eligere in prora navis ad opus regis et aliud in puppi et pro qualibet pecia reddere tantùm 20. solid mercatori Si autem plura inde habere volucrit bene licebie dum tamen precium fide dignorum judicio pro rege apponatur Bow-bearer is an under-officer of the Forest as M. Crompton in his jurisdict fo 201. setteth down sworn to the true performance of his Office in these words I will true man be to the Master Forester of this Forest and to his lieutenent and in the absence of them I shall truely oversee and true inquisition make as well of swornmen as unsworn in every bayliwick both in the North bayl and South bayl of this Forest and of all manner of trespasses done either to vert or venison I shall truly endeavour my self to attach or cause them to be attached in the next court Attachment there to be presented without any concealment had to my knowledge So help me God c. BR Bracton otherwise called Henry of Bracton was a famous Lawyer of this land renowned for his knowledge both in the Common Civill laws as appeareth by his book every where extant He lived in the dayes of Henry the third Stawnf praero f. 5. b. and as some say Lord chief Justice of England Bread of treate and bread of coker anno 51. H. 3. statuto 1. of bread and ale Bred signifieth broad This word Bracton useth li. 3. wact 2. ca. 15. nu 7. proverbially thus to lange and to bred the meaning whereof you may there find word for word it is as we now speak two long and two broad or two in length or two in brea th Brevibus rotulis liberandis is a writ or mandat to a Shyreeve to deliver unto the new Shyreeve chosen in his room the County with the appertinances together with the rols briefs remembrances and all other things belonging to that office Register orig fo 295. a. Bribours cometh of the French bribeur i. mendicus It seemeth to signifie with us one that pilfreth other mens goods anno 28 Ed. 2. stat 1. ca. unico Brief breve cometh from the French bref ou breif i. brevis and in our Common law siggnifieth a writ whereby a man is summoned to answer to any action or more largely any precept of the King in writing issuing out of any Court whereby he commandeth any thing to be done for the furtherance of justice or good order The word is used in the Civil law sometime in the singular number and masculin gender
his Hoast or to be his Marshall or to blow a Horn when he seeth his enemies invade the Land or to find a man at Armes to fight within the four Seas or else to do it himself or to bear the Kings Sword before him at his Coronation or at that day to be his Sewer Carver Butler or Chamberlain Litleton tit Sergeantie Petit Sergeantie is where a man holdeth land of the King to yeeld him yearly some small thing toward his warres as a Sword Dagger Bow Knife Spear pair of Gloves of mail a pair of Spurs or such like Litleton titulo petit Sergeantie Chivalrie that may hold of a Common person as well as of the King is called scutagium escuage that is service of the shield And this is either uncertain or certain Escuage is uncertain is likewise twofold first where the Tenent by his tenure is bound to follow his Lord going in person to the Kings wars against his enemies either himself or to send a sufficient man in his place there to be maintained at his cost so many dayes as were agreed upon between the Lord and his first Tenent at the granting of the fee. And the dayes of such service seem to have been rated by the quantity of the land so holden as if it extend to a whole Knights fee then the Tenent was bound thus to follow his Lord fortie dayes And a Knights see was so much land as in those dayes was accounted a sufficient living for a Knight and that was 680 acres as some opinion is or 800. as others think or 15 pounds per annum Camdens Britan. pag. 110. in meo S. Thomas Smith sayeth Census equestris is fortie pounds revenue in free lands If the law extend but to half a knights fee then the Tenent is bound to follow his Lord as above is said but twentie dayes If to a fourth part then ten dayes Fitz. nat br fo 83. C. 84. C. E. The other kind of this Escuage uncertain is called Castleward where the Tenent by his land is bound either by himself or by some other to defend a Castle as often as it shall come to his course Escuage certain is where the Tenent is set at a certain summe of money to be paid in lien of such uncertain service as that a man shall yearly pay for a Knights fee twenty shillings Stow. annal pag. 238. for half a Knights fee ten shillings or some like rate And this service because is it drawn to a certain rent groweth to be of a mixt nature not meerly Socage for that it smelleth not of the Plough and yet Socage in effect being now neither personal service nor uncertain Litleton titulo Socage This tenure called Chivalrie hath other conditions annexed unto it as Homage Fealtie Wardship Relief and Mariage Bracton lib. 2 cap. 35. which what they signify look in their places Chivalrie is either generall or especiall Dyer fo 161. num 47. Generall seemeth to be where only it is said in the Feosment that the Tenent holdeth per servitium militare without any specification of Sergeantie Escuage c. Speciall that which is declared particularly what kind of Knights service he holdeth by Chorall choralts seemeth to be any that by vertue of any of the orders of Clergy was in antient time admitted to fit and serve God in the Quire which in Latine is tearmed Chorus Chose res is the French word as generall as thyng is with us It is in the Common law used with divers Epithites worthy the interpretation as Chose locall is such a thing as is â—nnexed to a place Fo example a mill is Chose locall Kitchin fol. 18. Chose transitorie in the same place seemeth to be that thing which is moveable and may be taken away or carried from place to place Chose in action is a thing incorporeall and only a right as an Annuitie an obligation of debt a Covenant or Voucher by warrantie Broke titulo Chose in action And it seemeth that Chose in action may be also called Chose in suspence because it hath no reall existence or being neither can be properly said to be in our possession Broke ibidem Church wardens Ecclesiarum gardiani be Officers yearly chosen by the consent of the Minister and Parishioners according to the Cnstome of everie severall place to look to the Church Church-yard and such things as belong â—o both and to observe the behaviours of â—heir Parishioners for such faults as appertain â—o the Jurisdiction or censure of the Court Ecclesiastical These be a kind of Corporation enabled by law to sue for any thing belonging to their Church or poor of their Parish See Lamberd in his Pamphlet of the duty of church-wardens Churchesset is a word that I find in Fleta l.b. 1. cap. 47. in fine whereof he thus writeth Certam mensuram bladi tritici significat quam quilibet olim sanctae Ecclesiae die Sancti Martini empore 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 traxsmisso continetur in quo illam contributionem chirchsed appellant quasi semen Ecclesiae CI Cinamon cinamomum is a tree whereof the bark is known to be a pleasant comfortable and medicinall spice which you have described in Gerards Herball li. 3. cap. 142. This is reckoned among garbleable spices anno 1 Jac. 19. Cinqne portes quinque portus be those special Havens that ly toward France therfore have been thought by out Kings from time to time to be such as ought most vigilantly to be observed against Invasion In which respect the places where they be have an especial governour or keeper called by his office Lord Warden of the Cinque Ports and divers pri vileges granted unto them as a particular ju risdiction their Warden having the authority of an Admirall among them and sending out writs in his own name Crompton in his jurisdictions fol. 28. nameth the Cinque por s Dover Sandwich Rye Hastings Winchelsea Rumney Hithe whereof some because the number exceedeth five must either be added to the first institution by some latter 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 recover the thing sued for than is needfull See the new Terms of law Circumstantibus is a word of art signifying the supply or making up of the number of Jurors if any impaneled appear not or appearing be challenged by either party by adding unto them so many other of those that are present or standing by as will serve the turn v. an 35 H. 8. cap. 6. and anno 5 Elizab. cap. 25. Citie civitas commeth of the French cite and signifyeth with us as it doth in other Regions such a Town
places they there have this commissary is but superfluous and most commonly doth rather vex and disturb the Country for his lucre than of conscience seek to redresse the lives of offenders And therefore the Bishop taking prestation money of his Archdeacons yearely pro exteriori jurisdictione as it is ordinarily called doth by super-onerating their circuit with a commissary not only wrong Archdeacons but the poorer sort of subjects much more as common practice daily teacheth to their great woe Commission commissio is for the most part in the understanding of the Common law as much as delegatio with the Civilians See Brook titulo Commission and is taken for the warrant or Letters Patents that all men exercising jurisdiction either ordinary or extraordinary have for their power to hear or determine any cause or action Of these see divers in the table of the Register original verbo Commissio Yet this word sometime is extended further than to matters of judgement as the Commission of Purveyers or takers anno 11 H. 4. cap. 28. But with this epitheton High it is most notoriously used for the honourable Commission Court instituted and founded upon the Statute 1 Eliz. cap. 1. for the ordering and reformation of all offences in any thing appertaining to the jurisdiction ecclesiastical but especially such as are of higher nature or at the least require greater punishment than ordinary jurisdiction can afford For the world being grown to that loosenesse as not to esteem the censure of excommunication necessity calleth for those censures of fines to the Prince and imprisonment which doe affect men more neerly Commission of rebellion commissio rebellionis is otherwise called a writ of Rebellion Breve Rebellionis and it hath use when a man after proclamation made by the Sheriff upon an order of the Chauncery or court of Statrechamber under penalty of his allegeance to present himself to the Court by a certain day appeareth not And this commission is directed by way of command to certain persons to this end that they or three two or one of them doe apprehend or cause to be apprehended the party as a rebell and contemner of the Kings lawes wheresoever they find him within the Kingdom and bring him or cause him to be brought to the court upon a day therein assigned The true copie of this commission or Writ you have in Cromptons divers jurisdictions Court de Starre-Chamber as also in West tractat touching proceedings in chancery Sectio 24. Commissioner commissionarius is he that hath commission as Letters Patents or other lawful 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 Eyr anno 3 Ed. 1. cap. 26. with infinite such like Committee is he to whom the consideration or ordering of any matter is referred either by some Court or consent of parties to whom it belongeth As in Parliament a Bill being read is either consented unto and passed or denied or neither of both but referred to the consideration of some certain men appointed by the house farther to examine it who thereupon are called Committees Committee of the King West part 2. symbol titulo Chancerie sect 144. This word seemeth to be something strangely used in Kitchin fol. 160. where the widow of the Kings Tenent being dead is called the Committee of the King that is one committed by the ancient law of the land to the Kings care and protection Common bench bancus communis is used some time for the Court of Common plees anno 2 Ed. 3. cap. 11. So called as M. Cambden saith in his Britannia pag. 113. quia communia placita inter subditos ex jure nostro quod commune vocant in hoc disceptantur that is the Plees or Controversies tryed between Common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Justices in Eyr consueverunt Justiciarii imponere villatis juratoribus hundredis toti comitatui concelamentum omnes separatim amerciare quod videtur voluntarium cùm de per jurio concelauâ—ento non fuerint convicti sed potius dispensandum esset cum eis quod anim as in statera posuerint pro pacis conservatione lib. 1. cap. 48. § Quibus And a little following § Et provisum he hath these words Et provisum ests quòd communes misericordiae vel fines comitatuum amerciatorum in finibus ininerum Justiciariorum ante recessum ipsorum Justiciariorum per sacramenta militum aliorum proborum hominum de comitatu eodem affidentur super eos qui contribuere debent unde particulae Justiciariis liberentur ut cum aliis extractis suis ad Scaccarium liberare valeant These last words of his have relation to the statute Westminst pr. cap. 18. which read See Fine Common Plees communia placita is the Kings Court now held in Westminster Hall but in antient time moveable as appeareth by the Statute called Magna charta cap. 11. as also anno 2 Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his Readings saith that until the time that Henry the third granted the great Charter there were but two Courts in all called the Kings Courts whereof one was the Exchequer the other the Kings Bench which was then called Curia Domini regis and Aula regia because it followed the Court or King and that upon the grant of that Charter the Court of Common plees was erected and setled in one place certain viz. at Westminster And because this Court was setled at Westminster wheresoever the King lay thereupon M. Gwin ubi supra saith that after that all the Writs ran Quòd sit coram Justiciariis meis apud Westmonasterium whereas before the party was commanded by them to appear coram me vel Justiciariis meis simply without addition of place as he well observeth out of Glanvile and Bracton the one writing in Henry the seconds time before this Court was erected the other in the latter end of Henry the thirds time who erected this Court. All civil causes both real and personal are or were in former times tryed in this Court according to the strict law of the Realm and by Fortescue cap. 50. it seemeth to have been the onely Court for real causes The chief Judge thereof is called the Lord chief Justice of the Common Plees accompanied with 3 a 4 Assistants or Associates which are created by Letters Patents from the King and as it were enstalled or placed upon the Bench by the Lord Chancelor and Lord chief Justice of the Court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the Officers belonging to this Court are these The Custos brevium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerk of the Warrants Clerk of the Juries or Jurata
33. So that hereby I gather that of later times this word signifieth nothing but such an one as by oath of loyalty to his Prince for surety none ordinarily findeth at these dayes is setled in the combination or society of a Dozein And a Dozein seemeth now to extend so farre as every Leet extendeth because in Lâ—ets onely this oath is ministred by the Steward and taken by such as are twelve years old and upwards dwelling within the compasse of the Leet where they are sworn Fitzh nat br fol. 161. A. The particulars of this oath you may read in Bracton lib. 3. tract 2. cap. 1. num 1. in these words Quibus propositis that is the Commission of the Justices being read and the cause of their coming being shewed debent Justiciarii se transferre in aliquem locum secretam vocatis ad so quatuor vel sex uel pluribus de ma oribus de comitatu qui dicuntur Busones Comitatus ad quorum nutum dependent vota aliorum sic inter se tractatum habeant Justiciarii adinvicem ostendant qualiter à Donâ—ino Rege erus concilio provisum sit quà d omnes tam milite quà m alii qui sunt quindecim annâ—rum ampliùs jurare debent quòd utlagatos murditores robbatores burglatores non receptaâ—â—nt nec eis consentient nec corum receptatoribus si quos tales noverint illos attachiari facient hoc Vicecomiti balivis suis monstrabuntâ— si hutesium vel clameum de talibus audiverint statim and to clamore sequantur cum familia hominibus de terra sua Here Bracton setreth down fifteen years for the age of those that are sworn to the Kings peace but lib. 3. tract 2. cap. 11. num 5. he nameth 12 years See Inlaughe A man may note out of the Premisses diversities between the ancient and these our times in this point of law and government as well for the age of those that are to be sworn as also that Decennier is not now used for the chief man of a Dozen but for him that is sworn to the Kings peace and lastly that now there are no other Dozens but Leets and that no man ordinarily giveth other security for the keeping of the Kings peace but his own oath and that therefore none answereth for anothers transgression but every man for himself And for the general ground this may suffice See Franke pledge Declaration declaratio is properly the shewing forth or laying out of an action personal in any sure howbeit it is used sometime and indifferently for both personal and real actions For example anno 36. E. 3. cap. 15. in these words By the ancient terms and forms of Declarations no man shall be prejudiced so that the matter of the action be fully shewed in the Demonstration and in the Writ See the new Terms of Law See Cownte Dedimus potestatem is a Writ whereby commission is given to a private man for the speeding of some act appertaining to a Judge The Civilians call it Delegationem And it is granted most commonly upon suggestion that the party which is to do something before a Judge or in Court is so feeble that he cannot travel It is used in divers cases as to make a personal answer to a Bill of complaint in the Chaunceâ—ie to make an Atturney for the following of a sute in the Countie Hundred Wapentake c. Old nat br fol. 20. To levie a Fine West parte 2. symbol titulo Fines sect 112. and divers others effects as you may see by Fitzh nat br in divers places noted in the Index of the Book In what diversity of cases this VVrit or Commission is used see the Table of the Regist orig verbo Dedimus potestatem Deeds Facta signifie in our Common law-writings that contain the effect of a contract made between man and man which the Civilians call Literarum obligationem And of Deeds there be two sorts Deeds indented and Deeds poll VVhich division as M. West saith parte 1. Symbol lib. 1. sect 46. groweth from the form or fashion of them the one being cut to the fashion of teeth in the top or side the other being plain And the definition of a deed indented hee expresseth thus Sect. 47. A Deed indented is a Deed consisting of two parts or more in which it is expressed that the parties to the same Deed have to every part thereof interchangeably or severally set their several seals See the rest where at the last he sheweth the cause of the name viz. for that consisting of more parts each part is indented or cut one of them into the other that by the cut it may appear they belong to one businesse or contract A Deed poll or polled he describeth thus Sect. 46. Q. A polled Deed is a Deed testifying that onely the one of the parties to the bargain hath put his seal thereunto after the manner there by him described which read for your better understanding See the new Terms of law verbo Fait where he sheweth that each Deed consisteth in three points writing sealing and delivery Deer Hayse anno 19 H. 7. cap. 11. seemeth to be an Engine of cords to catch Deer De essendo quietum de telonio is a VVrit that that lyeth for them which are by privilege freed from the payment of Toll which read at large in Fitzh nat br fol. 226. Defalt Defalta cometh from the French Defaut and is an offence in omitting that which we ought to do West parte 2. symbol titulo Indictment sect 2. Of this hath Bracton a whole Tractate lib. 5. tractat 3. By whom it appeareth that a Default is most notoriously taken for non appearance in Court at a day assigned Of this you may read also in Fleta lib. 6. cap. 14. Defeisance defeisantia cometh of the French Desfaire or Deffaire i. infectum reddere quod factum est and signifieth in our Common law nothing but a condition annexed to an Act as to an Obligation a Recognisance or Statute which performed by the Obligee or Recognizee the Act as disabled and made void as if it never had been done whereof you may see West at large part 1. symb lib. 2. Sect. 156. Defendant defendens is he that is sued in an Action personal as Tenant is he which is sued in an Action real Terms of the Law Defendemus is an ordinary word in a Feofment or Donation and hath this force that it bindeth the Donour and his Heirs to defend the Donee if any man go about to lay any servitude upon the thing given other than is contained in the Donation Bracton lib. 2. cap. 16. num 10. See also Warrantizabimus Acquietabimus Defender of the Faith defensor fidei is a peculiar title given to the King of England by the Pope as Catholicus to the King of Spain and Christianissimus to the French King It was first given by Leo Decimus to King Henry the 8. for
writing against Marsin Luther in the behalf of the Church of Rome then accounted Domicilium fidei Catholicae Stows annals pag. 863. Deforsour deforciator cometh of the French Forceur i. expugnator It is used in our Common law for one that overcometh and casteth out by force and differeth from disseisour first in this because a man may disseise another without force which act is called simple disseisin Britton cap. 53. next because a man may deforce another that never was in possession as for example if more have right to lands as Common heirs and one entring keepeth out the rest the Law saith that he deforceth them though he do not disseise them Old nat br fol. 118. and Litleton in his Chapter Disconti nuance fol. 117. saith that he which is enfeoffed by the Tenant in Tail and put in possession by keeping out the Heir of him in reversion being dead doth deforce him though he did not disseise him because he entred when the Tenant in tail was living and the Heir had no present right And a Deforsor differeth from an intrudour because a man is made an Intrudour by a wrongful entry onely into Land or Tenement void of a possessour Bracton lib. 4. cap. pri and a Deforsour is also by holding out the right He iras is above said Deliverances See Repligiare Demand demanda vel demandum cometh of the French Demande i. postulatio postulatus and signifieth a calling upon a man for any thing due It hath likewise a proper significatioÌ„ with the Common Lawyers opposite to plaint For the pursute of all civil actions are either demands or plaints and the persuer is called Demandant or Plaintiff viz. Demandant in actions real and Plaintiff in personal And where the party perfuing is called Demandant there the party persued is called Tenant where Plaintiff there Defendant See Terms of Law verbo Demandant Demy haque See Haque and Haquebut Demain Dominicum is a French word otherwise written Domaine and signifieth Patrimonium Domini as Hotoman saith in verbis feudalibus verbo Dominicum where by divers authorities he proveth those Lands to be dominicum which a man holdeth originally of himself and those to be feodum which he holdeth by the benefit of a superiour Lord. And I find in the Civil Law Rem dominicam for that which is proper to the Emperor Cod. Ne rei dominicae vel templorum vindicatio temporis praescriptione submoveatur being the 38 title of the 7 book And Res dominici juris i. reipub in the same place And by the word Domanium or Demanium are properly signified the Kings Lands in France appertaining to him in property Quia Domanium definitur illud quod nominatim consecratum est unitum incorporatum Regiae coronae ut scripsit Chopinus de domanâ—o Franciae tit 2. per legem Si quando 3. Cod. de bon vacan lib. 10. Mathaeut de Afflictis in consti Siciliae lib. 1. tit De locatione Demanii 82. which may be called Bona incorporata in corpus fisci redacta Skene de verborum signif verb. Terrae Dominicales In like manner co we use it in England howbeit we here have no land the Crown-land onely excepted which holdeth not of a Superior For all dependeth either mediatly or immediately of the Crown that is of some honour or other belonging to the Crown and not graunted in fee to any inferiour person Wherefore no common person hath any Demaines simply understood For when a man in pleading would signifie his land to be his own he saith that he is or was seised therof in his demain as of Fee Litleton l. 1. c. 1. Whereby he signifieth that though his land be to him and his Heirs for ever yet it is not true Demain but depending upon a superior Lord and holding by service or rent in lieu of service or by both service and rent Yet I find these words used in the Kings right anno 37 H. 8. cap. 16. and 39 Eliz. cap. 22. But the application of this speech to the King and crown land is crept in by errour and ignorance of the word Fee or at least by understanding it otherwise than of the Feudists it is taken But Britton cap. 78. sheweth that this word demeyn is diversly taken sometime more largely as of Lands or Tenements held for life c. and sometime more strictly as for such onely as are generally held in see This word sometime is used for a distinction between those lands that the Lord of a Mannor hath in his own hands or in the hands of his Leassee dimised upon a rent for tearm of years or life and such other land appertaining to the said Mannor which belongeth to free or copy-holders Howbeit the copy-hold belonging to any Manor is also in the opinion of many good Law yers accounted Demeines Bracton in his fourth Book tract 3. cap. 9. num 5. hath these words Item dominicum accipitur multipliciter Est autem dominicum quod quis habet ad mensam suam propriè sicut sunt Bordlands anglicè Itèm dicitur dominicum villenagium quod traditur villanis quod quis teÌ„pestivè intempestive sumere possit pro voluntare sua revocare Of this Fleta likewise thus writeth DominicuÌ„ est multiplex Est auteÌ„ DominicuÌ„ propriè terra ad mensaÌ„ assignata villenagium quod traditur villanis ad excolendum terra precariò dimissa quae tempestiviè pro voluntate domini poterit revocari sicut est de terra commissa tenenda quà m diu commissori placuerit poterit dici Dominicum de quo quis babet liberuÌ„ tenementuÌ„ alius usufructum etiaÌ„ ubi quis habet liberuÌ„ tenementuÌ„ alius curaÌ„ sicut de custode dici poterit curatore unde urus dicitur à jure alius quoque ab homine Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio Dominicum est omne illud tenementum de quo antecessor oblit seâ—situs ut de feudo nec refert cum usufructu vel sine de quo sie ectus esset si viveret recuperare posset per assisam nomine disseisinae licet alius haberet usum fructum sicut dici poterit de illis qui tenent in villenagio qui utuntur fruuntur non nomine proprio sed omine Dominâ— sui Flet. lib. 5. cap. 5. sect Dominicum autem And the reason why Copy-hold is accounted Demeans is because they that be Tenents unto it are judged in law to have no other right but at the will of the Lord. So that it is reputed still after a sort to be in the Lords hands And yet in common speech that is called ordinarily Demeans which is neither free nor copy It is farther to be noted that Demain is sometime used in a more special signification and is opposite to Frank-fee For example those lands which were in the possession of King Edward the Confessour
the Ordinarie or Institution by the Ordinarie or Induction by his commandement Fitzh nat br fol. 35. E. See the stature anno 8 R. 2. cap. 4. Of this Petr. Gregor de beneficits cap. 11. num 10. hath these words Sitamen Capellaniae fundatâ—e per Laicos non fuerint à Diocesano approbatae et ut loquuntur spiritualiz atae non censentur beneficia nec ab Episcopo conferri possunt sed sunt sub pia dispositione fundatoris Joh. Fab. ad § Nullius De rerum diuis Iden fundatores et baeredes corum possunt tales Capellanias donare sine Episcopo cui voluerint tanquam profana beneficin Guido Papaeus descis 187. See also Gregorius lib. 15. cap. 29. sui syntagmatis num 11. I sinde in the Preface of M. Gwins readings that as the King might of ancient times found a free Chapel and exempt it from the jurisdiction of the Diocesan so he might also by his Letters Patents license a common person to found such a Chapel and to ordain that it shall be Donative and not presentable and that the Chaplain shall be depriveable by the Founder and his Heirs and not by the Bishop And this is likest to be the original of these Donatives in England Fitzh saith that there be certain Chauntries which a man may give by his Letters Patents nat br fol. 33. C. See him also fol. 42. B. All Bishopricks were Donative by the King Coke lib. 3. fol. 75. b. Dooms day Rotulus Wintoniae domus D i Coke in praefatione ad librum saum is a Book that was made in King Ed. the Confeâ—ors dates as the Author of the Old nat br faith f. 15. containing in it not onely all the Lands through England but also all the names of those in whose hands they were at that time when the book was made M. Lamberd in his explication of Saxon words verbo jus Dacorum c. proveth out of Gervasius Tilburiensis that this Book was made in William the Conquerours time with whom agreeth M. Cambden in his Bretan pag. 94. proâ—ing it out of Ingulphus that flourished the same time And for the better commendation of the Book it is not amiste to set down the words of Ingulphus touching the contents thereof Totam terram descripsit Nec er at hyda in tota Anglia quin valorem ejus possessorem scivit nec lacus nec locus aliquis qâ—sin in Regis rotulo extitit descriptus ac ejus reditus proventus ipsa possessio ejus possessor regiae rotitiae manifestatus juxta taxatorum fidem qui electâ— de qualibet patria territorium oroprium deseribebant Ifte rotulus vocatns est Rotulus Wintoniae ab Anglis pro sua generalitate quòd omnia tenementa totius terrae continuit Domesday cognominatur So it is called in the statute anno pri Ric. 2. cap. 6. And in Ockhams lucubrations de fisci Regis ratione which seemeth to be taken out of the Book called Liber Rubeus in the Exchequer It is termed Liber Judicatorius and the reason why quia in co totius Regni descriptio diligens continetuâ— tam de tempore Regis Edwardi quà m de tempore Regis Willielmi sub quo factus est singulorum fundorum valentia expr mitur Dorture dormitorium anno 25 H. 8. cap. 11. is the common room place or chamber where all the Friers of one Covent slept and lay all night Dote assignanda is a Writ that lieth for a Widow where it is found by office that the Kings Tenent was feised of Tenements in Fee or Fee-tail at the day of his death c. and that he holdeth of the King in chief c. For in this case the Widow cometh into the Chancery and there maketh oath that she will not marry without the Kings leave anno 15 Ed. 3. cap. 4. and hereupon he shall have this Writ to the Escheatour for which see the Register Original fol. 297. and Fitzherb nat br fol. 263. And this sort of Widowes is called the Kings Widow See Widow Dote unde nihil habet is a Writ of Dower that lieth for the Widow against the Tenent which hath bought Land of her Husband in his life time whereof he was feised solely in Fee simple or Fee tail in such sort as the issne of them both might have inherited it Fitzh nat br fol. 147. Regist. fol. 170. Dotts admensuratione See Admensurement See the Reg. orig fol. 171. Dotkins a kind of Coin pl. cor fol. 37. Iâ—seemeth to come of the Dutch word ' Duytkin that is the eighth part of a Stufer or French Shilling which in Latine is called Solidus Gallicus Doubles anno 14 H. 6. cap. 6. fignifie as much as Letters Patents being as it seemeth a French word made of the Latine diploma Double plee duplex placitum is that wherein the Defendant allegeth for himself two several matters in barre of the action where of either is sufficient to effect his desire in debarring the Plaintiff And this is nor to be admitted in the Common law wherefore it is well to be observed when a Pâ—ee is double and when it is not For if a man allege several matters the one nothing depending of the other the Piea is accounted double If they be mutually depending one of the other then is it accounted but single Kitchin fol. 223. See Brook hoc titule But why this doublenesse for so Kitchin calleth it fol. 234. should be debarred I see no reason under correction all things being spoken For a man may have two good defences and happily in the issue he shall contrarily to his hope fail in proving the one and yet be able to carry the cause by the other And therefore not onely the Civilians but Bracton also saith Pluribus exceptionibus uti nemo prohibetur libr. 5 aract 5. cap. 5. num 4. whom also read libro 4. cap. 17. And Sir Thomas Smiths reason of this scantly satisfieth me alleging this to be the course of our proceeding because the trial is by twelve rude men whose heads are not to be troubled with over many things at once lib. 2. de Repub. Anglor cap. 13. Double quarrel duplex querela is a complaint made by any Clerk or other unto the Archbishop of the Province against an inferiour Ordinary for delaying of Justice in some cause Ecclesiastical as to give sentence or to Institute a Clerk presented or such like The effect whereof is that the said Arch-bishop taking knowledge of such delay directeth his Letters under his authentical Seal to all singular Clerks of his Province thereby commanding and authorizing them and every of them to admonish the said Ordinatie within a certain number of dayes namely 9 dayes to do the Justice required or otherwise to cite him to appear before him or his Official at a day in the said Letters prefixed and there to allege the cause of his delay And lastly to intimate to the said Ordinary that if he neither perform the
restraint For the Law holdeth this not good but rather supposeth it to be constrained Broke in his Abridgement joyneth Dures and Manasse together i. duritiam minas hardness and threatning See the new Book of Entries verbo Dures And the New Terms of Law EA EAldermans Aldermannus among the Saxons was as much as Earl among the Danes Cambden Britan. pag. 107. If ye go to the true etymologie of the word me thinkoth it should sound more generally so much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the Graecians or Senator with the Romans who were rather Counsellors at large than bestowed upon any particular office as Comites were See Coun. ie And that signification we retain at this day almost in all our Cities and Boroughs calling those Aldermen that are Associates to the Chief Officer in the common Councel of the Town anno 24 H. 8. cap. 13. or sometime the chief Officer himself as in Stawnford Earl Comes in M. Cambdens opinion pag. 107. is a word made by the Danes of Ealderman a word of the Saxons M. Lamberd seemeth notwithstanding to acknowledge that Earl is originally a Saxon word Explica of Saxon words verbo Paganus and interpreteth it Satrapam which word the Romans borrowing of the Persians applyed to those that were praefecti provinciarum M. Verstegan in his restitution of decayed Intelligence deriveth it from two Netherland words ear i. honor and ethel i. nobilis wherein I leave the Reader to his own iudgement This title in ancient time was given to those that were Associates to the King in his Counsels and Marshal actions as Comes was to those that followed the Magistrates in Rome and executed their offices for them as their Deputies and died alwayes with the man Zasius hath of this word thus much Comitum originem in Doctoribus non invenimus sed noveris eam dignitatem vetustissimam esse Nam Cor. Tacitus in libello de Germania scribit apud priscos usu fuisse receptum ut cuilibet Principi seu Duci exercitus duodecim comites assignarentur ideo dictos quia comitarentur eos à Ducum latere non decederent Comitatum it aque originem Germanis moribus or tum esse dictus receptissimus autor testis est Quapropter quod in duodecimo libro codicis aliqui tituli de Comitibus largitionum c. inscribuntur usurpationem Imperatoris ex Germanorum ritibus sumptum credo But the Conqueror as M. Cambden saith gave this dignity in Fee to his Nobles annexing it to this or that County or Province and allotted them for their maintenance a certain proportion of money rising from the Princes profits for the pleadings and forfeitures of the Province For example he bringeth an ancient Record in these words Henricus 2. Rex Angliae his verbis Comitem creavit Sciatis nos fecisse Hugonet Bigot Comitem de Nortfolk sc de tertio denario de Norwic. Nortfolk sicut aliquis Comes Angliae libertus comâ—tatum suum tenet Which words saith the same Author an old book of Battel Abbey thus expoundeth Consuetudinaliter per totam Angliam mos antiquitùs inoleverat Comites provinciarum tertium denarium sibi obtinere inde Comites dicti And another book without name more fully Comitatus à Comite dicituâ— aut vice versa Comes autem est quia tertiam portionem corum quae de placitis proveniunt in quolibâ—t Comitatu percipitâ— Sed non omnes Comites ista percipiunt sed bit quibus Rex baereditariò aut personaliter concessit You may read M. Fern in Lacy's nobility something to his effect pag. 12. But he saith that one Duke or Earl had divers Shires under his government as a Viceroy and had Lieurenants under him in every particular Shire called a Sheriff That one Earl was dignified by the appellation of more than one Sheriff it appeareth by divers of our ancient Statutes as namely by the sentence of Excommunication pronounced by the Bishops against the infringers of the great Charter and Charter of the Forest anno 38 H. 3. Roger Bigot is named Earl both of Northfolk and Southfolk and anno 1 Ed. 3. Thomas Earl of Lancaster and Leycester Humfrey Bohun Earl of Hereford and Essex Dyer fol. 285. num 39. At these dayes as long since the Kings of England make Eearls by their Charters of this or that County giving them no authority over the County nor any part of the profit rising of it but onely some annual stipend out of the Exchequer rather for honours sake than any great commodity And these be in other Nations accounted Earles improperly Quià illi dicuntur verè Comites quibus datur Comitatus in feudum illi Comites abusivè qui non habent administrationem Vincentius de Franchis descis 115. num 7. The manner of creating Earles is by girding them with a Sword Camden pag. 107. but see the solemnity thereof described more at large in Stowes annals pag. 1121. The occasion why these Earles in latter times have had no sway over the County wherof they bear their name is not obscurely signified in Sir Tho. Smith l. 2. cap. 14. where he saith that the Sheriff is called Vicecomes as Vicarius Comiâ—is following all matters of Justice as the Earl should do and that because the Earl is most continually attendant upon the King in his wars or otherwise So that it seemeth that Earls by reason of their high employments being not able to follow also the businesse of the County were delivered of all that burthen and onely enjoyed the honour as now they do And the Sheriff though he be still called Vice-comes yet all he doth is immediatly under the King and not under the Earl See Countie and see Hotoman de verb. feudal verb. Comes and Cassan de consuetud Burg. pag. 12. Easement esamentum is a service that one Neighbour hath of another by Charter or prescription without profit as a way through his ground a sink or such like Kitchin fol. 105. which in the Civil law is called Servitus praedii EE Eele fares alias Eele Vare anno 25 H. 8. be the frie or brood of Eeles EG Egyptians Aegyptiani are in our Statutes and Laws of England a conterfeit kind of Rogues that being English or Welsh people accompany themselves together disguising themselves instrange robes blacking their faces and bodies and framing to themselves an unknown Language wander up and down and under pretence of telling of Fortunes curing diseases and such like abuse the ignorant common people by stealing all that is not too hot or too heavie for their carriage anno 1. 2 Philip. Mar. cap. 4. anno 5 Eli. cap. 20. These are very like to those whom the Italians call Cingari of whom Franciscus Leo in suo thesauro fori Ecclesiastici parte prim cap. 13. thus writeth Cingari qui corrupto vocabulo quandoque etiam Saraceni nominantur permissione principum ac aliorum dominorum per Italium vagantur nec unquam
Sheriff for the apprehension of him who standeth obstinately excommunicated for forty dayes for such a one not seeking absolution hath or may have his contempt certified or signified into the Chancery whence issueth this Writ for the laying of him up without Bayl or Mainprise until he conform himself Fitzh nat br fol. 62. anno 5 Eliz. cap. 23. and the Regist orig fol. 65 67 70. Excommunicato deliberando is a Writ to the under Sheriff for the delivery of an excommunicate person out of prison upon certificate from the Ordinarie of his conformity to the Jurisdiction Ecclesiastical See Fitzherb nat br fol. 63. a. and the Register fol. 65 67. Excommunicato recipiendo is a Writ whereby persons excommunicate being for their obstinacy committed to prison and unlawfully delivered thence before they have given caution to obey the authority of the Church are commanded to be sought for and layd up again Regist orig fol. 67 a. Executione facienda is a VVrit commanding Execution of a judgement the divers uses whereof see in the Table of the Register judicial verbo Executione facienda Executione facienda in Withernamium is a VVrit that lyeth for the taking of his cattel that formerly hath conveyed out of the County the cattel of another so that the Bailiff having authority from the Sheriff to Replevy the cattel so conveyed away could not execute his charge Reg. orig fol. 82. b. Execution executio in the Common Law signifieth the last performance of an Act as of a fine or of a judgement And the Execution of a fine is the obtaining of actual possession of the things contained in the same by vertue therof which is either by entry into the Lands or by VVrit whereof see West at large part 2. Symbol titulo Fines Sect. 136 137 138. Executing of Judgements and Statutes and such like see in Fitzh nat br in Indice 2 Verbo Execution S. Edw. Coke vol. 6 casu Blumfield fol. 87 a. maketh two sorts of Executions one final another with a Quousque tending to an end An Execution final is that which maketh money of the Defendants goods or extendeth his Lan is and delivereth them to the Plaintiff For this the party accepteth in satisfaction and this is the end of the sute and all that the Kings writ commandeth to be done The other sort with a Quousque is tending to an end and not final as in the case of capias ad satisfaciendum c. this is not final but the body of the party is to be taken to the intent and purpose to satisfie the Demandant and his imprisonment is not absolute but until the Defendant do satisfie Idem ibid. Executour executor is he that is appointed by any man in this last VVill and Testament to have the disposing of all his substance according to the conâ—ent of the said VVill. This Executor is either particular or universal Particular as if this or that thing onely be committed to his charge Universal if all And this is in the place of him whom the Civilians call Haeredem and the Law accounteth one person with the party whose Executor he is as having all advantage of action against all men that he had so likewise being subject to every mans Action as farre a himself was This Executor had his beginning in the Civil Law by the constitutions of the Emperours who first permitted those that thought good by their wills to bestow any thing upon good and godly uses to appoint whom they pleased to see the same performed and if they appoinâ—ed none then they ordained that the Bishop of the place should have authority of course to effect it lib. 28. c. de Episcopis Clericis And from this in mine opinion time and experience hath wrought out the use of these universal Executors as also brought the Administration of their goods that dye without Will unto the Bishop Exemplificatione is a Writ granted for the exemplification of an Original See the Register original fo 290. Ex gravi querela is a VVrit that lieth for him unto whom any Lands or Tenements in Fee within a City Town or Borough being devisable are devised by VVill and the Heir of the Devisour entreth into them and detaineth them from him Register original fol. 244. Old Natura brevium fol. 87. See Fitzherb nat br fol. 198 L. Exigendarie of the Common bank Exigendarius de banco communi is otherwise called Exigenter anno 10 Hen. 6. cap. 4. and is an officer belonging to that Court. For the which see Exigenter Exigent Exigenda is a VVrit that lieth where the Defendant in an Action personal cannot be found nor any thing within the County whereby to be attached or distrained and is directed to the Sheriff to proclaim and call five County dayes one after an other charging him to appear under the pain of Outlawrie Terms of the Law This VVrit lieth also in an indictment of Felony where the party indicted cannot be found Smith de republ Angl. lib. 2. cap. 19. It seemeth to be called an Exigent because it exacteth the party that is requireth his appearance or forth-coming to answer the Law for if he come not at the last dayes proclamation he is said to be quinquies exactus and then is out-lawed Cromptons Jurisd fol. 188. And this M. Manwood also setteth down for the Law of the Forest part 1. of his Forest laws pag. 71. See the new book of Entries verbo Exigent Exigenter Exigendarius anno 18 Hen. 6. cap. 9 is an officer of the Court of Common plees of whom there be four in number They make all Exigents and proclamations in all Actions where Processe of outlawry doth lie and VVrits of Supersede â—s as well as the Pronotaries upon such Exigents as were made in their offices Ex mero motu are words formally used in any Charter of the Prince whereby he signifieth that he doth that which is contained in the Charter of his own will and motion without petition or suggestion made by any other And the effect of these words are to bar all exceptions that might be taken unto the instrument wherein they be contained by alleging that the Prince in passing that Charter was abused by any salse suggestion Kitchin fol. 152. Exoneratione sectae is a VVrit that lieth for the Kings VVard to be disburthened of all sute c. to the County Hundred Leet or Court Baron during the time of his wardship Fitz. nat br fol. 158. Ex parte latis is a VVrit that lyeth for a Bayliff or Receiver that having Auditots assigned to hear his account cannot obtain of them reasonable allowance but is cast into prison by them Regist fol. 137. Fitzh nat brev fol. 129. The manner in this case is to take this VVrit out of the Chancerie directed to the Sheriff to take four Mainpervours to bring his body before the Barons of the Exchequer at a day certain and to warn the Lord to appear at the same time New
those which were formerly in use that King Henry the third was thought but hardly to yield unto it that to have the 15th peny of all the movable goods both of the Spiritualty and Temporalty throughout his Realm Holinshed in Hen. the 3d. And though this Charter consist not of above 37 Charters of Laws yet is it of such extent as all the laws we have is thought in some sort to depend of it Polydor. and Holinshed ubi supra Mahim Mahemium commeth of the old French Mehaigne as M. Skene saith de verbor significat verbo Machanium and signifieth a corporal hurt whereby a man loseth the use of any Member that is or might be any defence unto him in Battel The Canonists call it Membrimutilationem as the eye the hand the foot scalpe of the head his foretooth or as some say of any finger of his hand Glanvile lib. 14. cap. 7. See Bracton at large lib. 3. Tractat. 2. cap. 24. num 3. and Britton cap. 25. and Stawnf pl. cor lib. 1. cap. 41 and the new exposition of Law-terms and the Mirrour of Justices cap. d'Homicid The grand Customary of Normandy cap. 6. calleth it Mahaignium and defineth it to be Enormen laesionem All agree that it is the losse of a Member or the use thereof And membrum as Cassan de consuetu Burgund pag. 168. defineth it out of Baldus Est pars corporis habens destinatam operationem in corpore where you may read more of this point But if you will see it largely discussed look Ugolinus de irregularitatibus cap. 4. sect 3 4 5. also read M. Skene ubi supra Mainour aliâs manour aliâs meinoure seemeth to come of the French manier i. manu tractare attrectare or else of Amener i. abducere It signifieth in our Common law the thing that a Thief taketh away or stealeth As to be taken with the Manour Pl. cor fo 179 is to be taken with the thing stollen about him again fo 194. It was presented that a Thief was delivered to the Viscount together with the Mainour And 3ly fo 186 If a man be indicted that he feloniously stole the goods of another where in truth they be his own goods and the goods be brought into the Court as the Mainour and it be demanded of him what he saith to the goods and he disclaim them though he be quitted of the felony he shall lose the goods And again fo 149. If the Defendant were taken with the Manour and the Manour be carried to the Court they in ancient times would arraign him upon the Manour without any appeal or inditement I find this word used in the Old nat brev fol. 110. in this sort where a man maketh a thing by Manour or leavying or estopping in such Case he shall have assise where it signifieth handy labour and is but an abbreviation of Mainovery Mainvre see Minoverye Mainprise manucaptio is compounded of two French words Main 1. manus and prius id est captus which is a participle of the verb prendre id est capere excipere captare It signifieth in our common Law the taking or receiving a man into friendly custody that otherwise is or might be committed to the mercy of the prison upon security given for his forth-comming at a day assigned as to let one to mainprise Old nat bre f. 42. is to commit him to them that undertake his appearance the time appointed And they that do thus undertake for any are called Mainpernours because they do receive him into their hands Pl. Co. fol. 178. Of this sort is the word Mainpernable which signifieth him that hath committed such an Offence as by law he may be thus bayled for in many Cases a man is not mainpernable whereof see Brook titulo Mainprise per totum and Fitzh nat brev fol. 249. seq Master Manwood in his first part of his Forest laws pa. 167. maketh a great difference between Bayl and Mainprise For he that is mainprised quoth he is alwaies said to be at large and to go at his own liberty out of ward after the day is set to mainprise untill the day of his appearance by reason of the said several summons or otherwise But otherwise it is where a man is let to bayl to four or two men by the Lord Justice in Eyr of the Forest untill a certain day For there he is alwaies accounted by the Law to be in their ward and custody for the time And they may if they will keep him in ward or in prison all that time or otherwise at their will So that he that is so bayled shall not be said by the Law to be at large or at his own liberty Thus far Master Manwood The Myrrour of Justices maketh a difference also between pledges and Mainpernours saying that pledges are more general and that Mainpernours are body for body lib. 2. c. de Trespass veniall and lib. 3. cap. des Pledges and Mainpernours When Mainprises may be granted and when not see Cromptons Justice of Peace fol. 136 c. usque 141. and Lambert Eirenarch lib. 3. cap. 2. pag. 336 337 338 339 340. See also Britton fol. 73. a. cap. des Pledges Mainpernours The Author of the Mirrour of Justices saith that Pledges be those that bayl or redeem 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 real and mixt actions and Mainpernours to personal Maintenance manutentio vel manutenentia is a French word and signifieth an upholding of a cause or person metaphorically drawn from the succouring of a young Child that learneth to go by ones hand In our Common law it is used in the evill part for him that secondeth a Cause depending in sute between others either by lending of mony or making Friends for either party toward his help Anno 32 Hen. 8. cap. 9. And when a mans act in this kind is by Law accounted Maintenance and when not See Brook titulo Maintenance and Kitchm fol. 202 seq and Fitzh natura brev fo 172. and Cromptons Jurisdictions fol. 38. The writ that lieth against a Man for this offence is likewise called Maintenance Terms of the Law verbo Maintenance Special Maintenance Kitchin fol. 204. seemeth to be maintenance most properly so termed Of this see Cromptons Justice of peace fo 155. b. and the New Book of Entries verbo Maintenance Maintenance v. Novos terminos juris Make facere signifieth in the Common law to perform or execute as to make his Law is to perform that law which he hath formerly bound himself unto that is to clear himself of an Action commenced against him by his oath and the Oaths of his Neighbours Old nat brev fol. 161. Kitchin fol. 192. Which Law seemeth to be borrowed of the Feudists who call these men that come to swear for another in this Case Sacramentales Of whom thus saith Hotoman in verbis Feudal
in Chancery to the L. Chancellor or L. Keeper of the Broad Seal in matters of Judgment Of these there be some ordinary and some extraordinary of ordinary there be twelve in number whereof some sit in Court every day throughout each Term and have committed unto them at the Lord Chancellors discretion the interlocutory report and sometimes the final determination of causes there depending Master of the Kings Musters is a Martial Officer in all royal armies most necessary as well for the maintaining of the Forces compleat well armed and trained as also for prevention of such frands as otherwise may exceedingly waste the Princes Treasure and extremely weaken the Forces He hath the oversight of all the Captains and Bands and ought to have at the beginning delivered unto him by the Lord General perfect Lists and Rolls of all the forces both horse and foot Officers c. with the rates of their allowances signed by the Lord General for his direction and discharge in signifying warrants for their full pay This Officer is mentioned in the Statute anno 2 Edw. 6. cap. 2. and Muster master general anno 35 Eliz. cap. 4. who so desireth to read more of him let him have recourse to Master Digs his Stratioticos Master of the Wardrobe magister garderobae is a great and principal Officer in Court having his habitation and dwelling house belonging to that Office called the Wardrobe near Puddle wharfe in London He hath the charge and custody of all former Kings and Queens ancient robes remaining in the Tower of London and all Hangings of Arras Tapestrie or the like for his Majesties houses with the bedding remaining in standing Wardrobes as Hampton Court Richmond c. He hath also the charging and delivering out of all either Velvet or Scarlet allowed for Liveries to any of his Majesties Servants of the Privy Chamber or others Mention is made of this Officer anno 39 Elizab. cap. 7. Matterin deed and matter of record are said to differ Old nat brev fol. 19. where matter in deed seemeth to be nothing elle but a truth to be proved though not by any Record and matter of Record is that which may be proved by some Record For example if a man be sued to an exigent during the time he was in the Kings warrs this is matter in deed and not matter of record And therefore saith the book he that will allege this for himself must come before the Scire facias for execution be awarded against him For after that nothing will serve but matter of Record that is some errour in the processe appearing upon the Record Kitchin fol. 216. maketh also a difference between matter of Record and a specialty and nude matter where he saith that nude matter is not of so high nature as either a matter of Record or a specialty otherwise there called matter in deed which maketh mee to think that nude matter is a naked allegation of a thing done to be proved only by witnesses and not either by Record or other specialtie in writing under Seal Maugre is shuffled up of two French words Mal and Gre i. animo iniquo it signifieth with us as much as in despight or in desof ones teeth as the wife maugre the husband Litleton fol. 124. that is whether the husband will or not ME Meane Medius signifieth the middle between two extreams and that either in time or dignity Example of the first his action was mean betwixt the disseisin made to him his recovery that is in the interim Of the second there is Lord Meane and Tenent See Mesn Mease Mesuagium seemeth to come of the French Maison or rather Meix which word I find in Cassanaeus de consuet Burgund pag. 1195. and interpreted by him Mansus what Mansus is see Mansion it signifieth house Kitch fol. 239. and Fitz. nat br fo 2. C. See Mesuage Medlefe Cromptons Justice of peace fol. 193. is that which Bracton calleth medletum li. 3. tract 2. cap. 35. It seemeth to signifie quarrels scuffling or brawling and to be derived from the French mesler i. miscere turbare Meere Merus though an Adjective yet is it used for a Substantive signifying meere right Old nat br fol. 2. in these words And know yee that this Writ hath but two issues that is to say joyning the mise upon the meere And that is to put himself in the great assise of our Sovereign Lord the King or to joyn battel See Mise Mesurement See Admesurement Medietas linguae signineth an enquest empaneled upon any cause whereof the one half consisteth of Denizens the other of Stranggers It is called in English the half tongue and is used in Plees wherein the one party is a Stranger the other a Denizen See the Stat. an 28. Ed. 3. cap. 13. an 27. ejusdem stat 2. c. 8. commonly called the Statute of the Staple et an 8. H. 6. cap. 29. et anno 2 H. 5. cap. 3. anno 11 H. 7.21 anno 1. 2. Phil. et Mar. cap. 8. And before the first of these Statutes was made this was wont to be obtained of the King by grant made to any company of Strangers as Lombards Almaines c. Stawnford pl. cor lib. 3. cap. 7. Medio acquietando is a writ judicial to destrain a Lord for the acquitting of a mean Lord from a rent which he formerly acknowledgeth in Court not to belong unto him Register judicial fol. 29. b. Melius inquirendo is a writ that lieth for a second inquiry as what lands and tenements a man died seised of where partiall dealing is suspected upon the writ Diem clausit extremum Fitz. nat br fol. 255. Merchenlage was one of the 3. sorts of laws out of which the Conq. framed Laws unto us mingled with those of Normandie Camd. Brit. p. 94. who also p. 103. sheweth that in the yeer of our Lord 1016. this land was divided into three parts whereof the West Saxons had one governing it by the Laws called West Saxon Laws and that conteined these nine Shires Kent Southsex Southrey Barkeshire Hampshire Wiltshire Somerset Dorset and Devonshire The second by the Danes which was governed by the Laws called Denelage and that conteined these fifteen Shires York Darby Nottingham Liecester Lincolne Northampton Bedford Buckingham Hartford Essex Middlesex Northf Southf Cambridge Huntington The Third was ponessed and governed by the Mercians whose Law was called Merchenlage which were these eight Glocester Worcester Hereford Warwick Oxenford Chester Salop and Stafford See Law Mercy Miserecordia signifieth the arbitrement or descretion of the King or Lord in punishing any offence not directly censured by the law As to be in the grievous mercie of the King anno 11 H. 6. cap. 6. is to be in hazard of a great penalty See Misericordia Measondue domus Dei cometh of the French maison de dieu by which names divers Hospitals are named You find the word anno 2 3. Philip et Mar. cap. 23. in fine
one with Brittons misaventure Homicide by chance mixed he defineth sect 50. to be when the killers ignorance or negligence is joyned with the chance as if a man loppe Trees by a high way side by which many usually travel and cast down a bough not giving warning c. By which bough a man passing by is slain Miscontinuance Kitchin fol. 231. See Discontinuance Mise misa is a French word signifying as much as expensum in Latine and the Latine word Misa is so used in Kitchin fol. 144. and in West parte 2. symb titulo Proceedings in Chancery Sect. 21. F. It is used anno 2. 3. Edw. 6. ca. 36. for a summ of money paid by the Kings tenents in certain Counties in Wales according to their several customs In the Statute 33 H. 8. c. 13. it is used plurally for certain cunumary gratuities sent to the Lord Marchers of Wales by their Tenents at their first comming to their lands And an 4. et 5. Ph. Mar. cap. 11. Mise is used in an action of right or property for the point whereupon the parties proceed to trial either by Assise or batel as issue is in an action personal if the Mise be upon battel Litleton fo 102. and in the Old nat br fol. 2. you have these words Know yee that this writ hath but two Issues that is to say joyning the mise upon the meer and that is to put himself into the great Assise of our Soveraign Lord the King or to joyn battel See anno 37 Ed. 3. ca. 16. To joyn the mise upon the meer is as much to say as to joyn the mise upon the cleer right and that in more plain termes is nothing else but â—o joyn upon this point whether hath the â—ore right the Tenent or Demandant Litleton lib. 3. cap. 8. fol. 101. b. This word in â—ome other place is used for a Participle signiâ—ing as much as cast or put upon in English which appeareth by Sir Edw. Cokes report in Stafsins case vol. 6. fol. 124. a. Misericordia is used in the Common law for an arbitrary punishment Bracton li. 4. tractat 5. cap. 6. in these words Item siquis in misericordiam inciderâ—t pro disseisina non remanebit misericordia exigenda si ille qui amiserit quaesiverit convictionem Kithin fol. 78. out of Glanvile saith thus Est autem misericordia quia quis per uramentum legalium hominum amerciatus est ne aliquid de suo honor abilicontenemento amittat Which saying you have in a maner word for word Glanv l. 9. ca. 11. Fitzh saith that it is called misericordia because ie ought to be very moderate and rather lesse than the offence according to the tenure of the great Charter cap. 14. This saith Fitzherbert in his nat brev in the writ de moderata misericordia fol. 75. A. I. Misericordia is to be quit of misericors that is discharged of all manner of amercements that may a man fall into within the Forest See M. Cromptons Jurisdictions fol. 196. See Amerciament See Mercie and Moderata misericordia Miskenning i. changing of speech in Court Saxon in the description of England ca. 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 law the using of one name for another or mis-terming â—roâ—e titulo Misnomer Misprision misprisio commeth of the French Mespris i. fastidium contemptus It signifieth in our Common law neglect or negligence or over-sight As for example misprision of treason or of felony is a neglect or light account shewed of treason or felony committed by not revealing it when we know it to be committed Stawnf pl. cor l. 1. ca. 19. which read at large or by letting any person committed for treason or felonie or suspition of either to goe before he be indited Also Misprision of Clerks anno 8 H. 6. ca. 15. is a neglect of Clerks in writing or keeping Records Thirdly anno 14 Ed. 3. ca. 6. stat prim by misprision of Clerks no processe shall be admitted Misprision of treason is the concealment or not disclosing of known treason for the which the offendours are to suffer imprisonmenâ— during the Kings pleasure lose their goods and the profits of their lands during their lives Crompton in his Justice of Peace cap. Misprision of felony fol. 40. West parte 2. symb titulo Inditements Sect. 63. in fine Misprision of felonie seemeth only finable by the Justices before whom the party is attainted Cromptons Justice of Peace ubi supra The Justices of the Common place have power to assess fines and amerciaments upon persons offending for misprisions contempts or negligences for not doing or mis-doing any thing in or concerning fines West parte 2. symbol titulo Fines Sect. 133. Justices of Assise shall amend the defaults of Clerks misprising of a Syllable or Letter or writing Cromptons jurisdictions fol. 20â— But it is to be noted that other faults may be accounted misprisions of Treason or Felony because certain latter Statutes do inflict that punishment upon themâ— hâ—t of old hath been inflicted upon misprisions wherof you have an example an 14 El. cap. 3. of such as coyn forein Coyns not current in this Realm and of their Procurers Aiders and Abetters And see the new exposition of Law-terms Misprision signifieth also a mistaking anno 14 Edw. 3. stat pri cap. 6. Misses See Mise Misuser is an abuse of liberty or benefit As he shall make fine for his misuser Old nat br fol. 149. Mystery mysterium commeth of the Latin mysterium or rather from the French mestier i. ars artificium an art or occupation Mittendo manuscriptum pedis finis is a writ Judicial directed to the Treasurer and Chamberlains of the Exchequer to search and transmit the foot of a Fine acknowledged before Justices in Eyr into the Common plees c. Reg. orig fol. 14. a b. Mittimus signifieth a Precept sent by the King out of his Bench to those that have the custody of fines levyed that they send them by a day assigned to his Bench West parte 2. symb titulo Fines Sect. 138. F. 154. B. and also to the Exchequer for certificate that Judgement is given for the livery of Lands to such or such a one out of the Kings hands whereupon he is dismissed also out of the Exchequer anno 5 R. 2. cap. 15. of divers other uses and applications of this Mittimus see the Register original in the Table of the Book MO Moderata misericordia is a Writ that lyeth for him that is amerced in Court Baron or other being not of Record for any transgression or offence beyond the quality of a fault It is directed to the Lord of the Court or his Bailiff commanding them to take a moderate amerciament of the party and is founded upon Magna Charta cap. 14. Quòd nullus liber homo amercietur nisi secundùm qualitatem delicti c.
terms And read also in some Civilians of Assirmativa praegnans and that is quae habet in se inclusivam negativam Et hoc importare videntur dictiones Solùm tantiâ—m qua implicant negativam Pacianus De probationibus lib. 1. cap. 31. num 16. fol. 93. Neif nativa cometh of the French Naif i. naturalis vel nativus it signifieth in our Common law a Bondwoman anno 1 Ed. 6. cap. 3. the reason is because women become bound rather nativitate than by any other means Ne injustè vexes is a Writ that lyeth for a Tenent which is distrained by his Lord for other services than he ought to make and is a Prohibition to the Lord in it self commanding him not to distrain The especial use of it is where the Tenent hath formerly prejudiced himself 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 avoid him in avowry and therefore he is driven to this Writ as his next remedy Regist orig fol. 4. Fitz. nat brev fol. 10. Ne Vicecomes colore mandati Regis quemquam amoveat à possessione ecclesiae minus justè Regist orig fol. 61. NI Nient comprise is an exception taken to a Petition as unjust because the thing desired is not contained or comprehended in that Act or Deed whereupon the Petition is grounded For example one desireth of the Court to be put in possession of a House formerly among other Lands c. adjudged unto him The adverse party pleadeth that this Petition is not to be granted because though he had a judgement for certain Lands and Houses yet the House into the possession whereof he desireth to be put is not contained among those for the which he had judgment See the New Book of Enteries titulo Nient comprise This seemeth to be especially to hinder execntion Nifle anno 3 Ed. 4. cap. 5. Nihil anno 5 R. 2. stat 1. cap. 3. is a word set upon a Debt illeviable by the forein Apposer in the Exchequer Nihil dicit is a failing to put in answer to the Plea of the Plaintiff by the day assigned which if a man do commit judgement passeth against him as saying nothing why it should not Nisi prius is a Writ Iudicial which lyeth in Case where the Enquest is paneled and returned before the Iustices of the Bank the one party or the other making Petition to have this Writ for the ease of the Country It is directed to the Sheriff commanding that he should cause the men impaneled to come before the Iustices in the same County for the determination of the Cause there except it be so difficult that it need great deliberation In which it is sent again to the Bank v. anno 14 Edward 3. cap. 15. The form of the Writ see in Old nat br fol. 159. and in the Register judicial fol. 7. 28. 75. See the New Book of Entries verbo Nisi prius And it is called Nisi prius of these words comprised in the same whereby the Sheriff is willed to bring to Westminster the men empaneled at a certain day or before the Iustistices 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 County associated unto him Fitzherb nat brev fol. 240. E. which he taketh from the Statute of York anno 12 Ed. 2. See Westm 2. cap. 30. anno 13 Edw. prim anno 27 ejusdem cap. 4. anno 2 Edw. 3. cap. 17. anno 4 ejusdem cap. 11. anno 14 ejusdem cap. 16. anno 7 Rich. 2. cap. 7. anno 18 Eliz. cap. 12. NO Nobility Nobilitas in England compriseth all Dignities above a Knight So that a Baron is the lowest degree thereof Smith de Repub. Anglor lib. prim ca. 17. Bartolus in his Tractate de Nobilitate which he compiled upon the Law Si ut proponis C. de dignitatibus libro 12. rehearseth four Opinions de Nobilitate but rejecteth them and himself defineth it thus Nobilitas est qualitas illata per principatum tenextem qua quis ultra honestos plebeios acceptus ostenditur But this definition is too large for us except we will account Knights and Banerets inter plebem which in mine opinion were too haish For Equites among the Romans were in a middle rank inter Senatores plebem Nocumento See Nusance Nomination nominatio is used by the Canonists and Common Lawyers for a power that a man by vertue of a Mannor or otherwise hath to appoint a Clerk to a Patron of a Benefice by him to be presented to the Ordinary New Terms of the Law Non-ability is an exception taken against the Plaintiff or Demandant upon some cause why he cannot commence any sute in Law as Praemunire Outlawry Villenage or Excommunication or because he is a Stranger born The Civilians say That such a man hath not personam standi in judicio See Brook hoc titulo See Fitz. nat brev fo 35. a. fo 65. d. fo 77. c. The new Expositor of Law Terms teckoneth six causes of Non-ability as if he be an Outlaw a Stranger born condemned in a Praemunire professed in Religion excommunicate or a Villein Howbeit the second cause holdeth only in Actions real or mixt and not in personal except he be a Stranger and an enemy Non admittas See ne admittas Nonage is all the time of a mans age under one and twenty years in some cases or fourteen in some as mariage See Brook titulo Age. See Age. Non capiendo Clericum see Clericum non capiendo Non-claym Cromptons Jurisdict fo 144 seemeth to be an exception against a man that claimeth not within the time limited by Law as within a year and day in case where a man ought to make continual Claim or within five years after a Fine levyed Vide Cook lib. 4. in Prâ—oemio See Continual claim Non compos mentis it is of four sorts First he that is an Ideot born Next he that by accident afterwards wholly loseth his wits Thirdly a Lunitick that hath sometime his understanding and sometime not Lastly he which by his own Act depriveth himself of his right mind for a time as a Drunkard Coke lib. 4. fo 124. b. Non distringendo is a Writ comprising under it divers particulars according to divers Cases all which you may see in the Table of the Register origin verbo non distringendo Non est culpabilis is the general Answer to an Action of Trespass whereby the Defendant doth absolutely deny the fact imputed unto him by by the Plaintiff whereas in other especial Answers the Defendant granteth a Fact to be done and allegeth some reason in his defence why he lawfully might
three morsells of barley bread without drink and the second day he shall have drink three times and as much at each time as he can drink of the water next unto the prison door except it be running water without any bread And this shall be his dyet untill he die Palatin See County Palatin See Cassan de consuctud Burg. pag. 14. Palingman anno 11. Henr. 7. cap. 22. Panell panellum cometh of the French panne i. pellis or paneau a piece or pain as wee call it in English It signifieth in our common law a shedule or rolle containing the names of such Iurors as the Shyreeve provideth to passe upon any triall Register orig fol. 223. a. Kitchin fol. 266. See Broke hoc titulo And thereupon the empannelling of a Iury is nothing but the entering of them into the Shyreeves rolle or book Paunage pannagium is a tolle or contribution Fitz. nat br fol. 227. D. See Pawnage Parramounte aliâs peremounte cometh of these two French words par i. per and Monter i. ascendere It signifieth in our law the highest Lord of the fee for there may be a Tenant to a Lord that holdeth over of another Lord and the former of those is called Lord mesn the second Lord paramount And a Lord paramount as it seemeth by Kitchin fol. 289 consisteth only in comparison as one man may be great being compared with a lesser and little being compared with a greater and as Genus among Logicians may be in divers respects both genus species Fitzh nat br fol. 135. M. So that none seemeth simply to be Lord paramount but only the King as Genus summum is simply Genus For the King is Patron paramount to all the benefices in England Doctor and student ca. 36. See Paravaile Maner and Fee Paravail alias Peravaile is compounded of two French words par i. per and aveller i. dimitteree demittere It signifieth in our common Law the lowest Tenant or him that is tenant to one who holdeth his fee over of another So is it used pl. cor fol. 197. Fitzh nat br fol. 135 M. See Paramounte See Mesn Parcellmakers are two officers in the eschequer that make the parcells of the escheators accompts wherein they charge them with every thing they have levyed for the Kings use within the time of their office and deliver the same to one of the Auditors of the court to make an accompt of the escheator thereof Parceners See Coparceners Parcinarie participatio cometh of the French partir i. dividuum facere It signifieth in our common Law a holding or occupying of land by more pro indiviso or by joynt tenants otherwise called Coparceners of the French parsonier i. parciarius particeps For if they refuse to divide their common inheritance and chuse rather to hold it joyntly they are said to hold in parcinarie Litl fol. 56. 57. This by the Feudists and Lombards is termed adaequatio vel paragium And among the ancient Romans particulones sic enim anthore Nonio à veteribus cohaeredes inter se dicebantur quod paries invicem facerent Spigelius Pardon pardonatio is a French word signifying as much as pax venia gratia It is used most notoriously in our common Law for the remitting or forgiving of a felonious or other offence committed against the King This pardon is two-fold one ex gratia Regis the other per cours de ley by course of law Stawnf pl. cor fol. 47. Pardon ex gratia Regis is that which the King in some speciall regard of the person or other circumstance sheweth or affordeth upon his absolute prerogative or power Pardon by course of Law is that which the law in equity affordeth for a light offence as homicide casuall when one killeth a man having no such meaning Westm parte 2. symbel titulo Inditements sect 46. Of this see the new book of Entries verba Pardon Pardoners anno 22 H. 8. c. 12. were certain fellowes that carryed about the Popes Indulgences and sold them to such as would buy them against whom Luther by Sleydans report incensed the people of Germany in his time exhorting them ne merees tam viles tantiemerent Park parcus cometh of the French parquer i vallo vel fossa cicundare It signifieth with us a piece of ground inclosed and stored with wild beasts of chase Which a man may have by prescription or the Kings grant Cromptons Jurisd fol. 148. M. Manwood parte pri of his Forest laws pag. 148. defineth it thus A park is a place for privilege for wild beasts of venery and also for other wild beasts that are beasts of the Forest and of the chase tam sylvestres quam campestres And all those wild beasts are to have a firm peace and protection there So that no man may hurt or chase them within the park without license of the owner of the same Who also fol. 149. saith thus A park is of another nature than either a chase or a warren is For a park must be inclosed and may not lie open 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 inclosed And moreover the owner cannot have an action against such as hunt in his park if it lie open See Forest See Chase See Warren This word Park Baldwinus deriveth à paradiso enmque locum esse dicit in quo varia animalia ad usum voluptatis aut venationis includuntur possidentur adempta naturali libertate Adtis 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 trespasse done upon another mans ground are lawfully impounded Register original fol. 166. Fitzh nat br fol. 100. Parish parochia cometh of the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i Accolarnm conventus accolaius sacra vicinia it is used in the Canon law sometime for a Bishoprick But in our common Law it signifieth the particular charge of a secular Priest For every Church is either Cathedrall Coven nal or parochiall Cathedrall is that where there is a Bishop seated so called à Cathedra Coventual consisteth of Regular Clerks professing some order of religion or of Deane chapter or other college of spiritual men Parochial is that which is instituted for the sayingof divine Service ministring the holy Sacraments to the people dwelling within a certain compass of ground neer unto it Our Realm was first divided into Parishes by Honorius Archb. of Canterbury in the year of our Lord 636. Cambd. Britan. pag. 104. Of these Parish Churches I find there were in England in the dayes of H. 8. the number of 45000 Hotoman in his disputations de feudis cap. 2. maketh mention of this word parochia out of Pomponius Letus in these words Nam sic quoque Pomponins Letus veâ—eâ—em consuetudinem fuisse scribit
eamque ab Imperatore Constantino repetitam ut Ducibus praefectis tribunis qui pro augendo Imperio consenuerant darentur agri villâ—que at necessaria suppeterent quoad viverent quas parochias vocabant And a little after verum inter feuda et parochias hoc interest quod kae plâ—rumque senthus et veteranis plerisque emeritae militiae dabantur qui cum de Rep. bene meriti essent publico beneficio reliquum vitae sustentabant aut si quod bellum uasceretur evocari non tam milites quam magistr militum viderentur Feuda vero plurimum Juvenibus robustis primo flore aetatis qui militiae munus sustinere poterant imovero ut possent ut vellent c. Parlament parlamentum is a French word signifying originally as much as Collocutio or colloquium but by use it is also taken for those high Courts of Justice throughour the Kingdome of Frauce where mens causes and differences are publickly determined without farther appeal Whereof there be seven in number as Paris Tolouse Gresnoble in Daulphine Aix in Provence Bordeaux Dijon in Bourgogn and Roan in Normandy Vincentius Lupanus de Magist. Franc. lib. 2. cap. Parlamentum num 28. whereunto Gerard de Hailon addeth the eighth viz. Rhenes in Brettagne In England we use it for the assembly of the King and the 3 Estates of the Realm viz. the Lords Spiritual the Lords temporal and Commons for the debating of matters touching the Common-wealth and especially the making and correcting of Laws which assembly or Court is of all other the highest and of greatest authority as you may read in Sir Thom. Smith de Repub. Auglo l. c. 1. 2. Camd. Britan. pag. 112. and Crompions Jurisd fol. pri seq The institution of this Court Polydor Virgil lib. 11. of his Chronicles referreth after a fort to Henry the first yet confessing that it was used before though very seldome I find in the former Prologue of Grand Customary of Normandy that the Normans used the same means in making their Lawes And I have seen a Monument of Antiquity shewing the manner of holding this Parlament in the the time of King Edward the sonne of King Ethelred which as my note saith was delivered by the descreeter sort of the Realm unto William the Conquerour at his commandement and 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 Archieviscapis Episcopis Abbatibus Prioribus per Bavoniam tenentibus Tertius gradus est de procuratoribus cleri Quâ—rtus gradus est de Comitibus Baronibus al is Magnatibus Quintus gradus est de militibus Comitatuum Sextus gradus est de civibus Burgensibus ita est Parlamentum ex sex gradibus sed scienduml cet aliquis dictorum quinque graduum post Regem absens fuerit dum tamen omnes praemoniti fuerint per rationabiles summonitiones parlamentum nihilo minus censetur esse plenum Touching the great authority of this Court I find in Stowes Annals pag. 660. that Henry the sixth directing his privy seal to Richard Earl of Warwick thereby to discharge him of the Captainship of Callis the Earl refused to obey the Privie Seal and continued forth the said office because he received it by Parliament But one example cannot make good a doctrine And of these two one must needs bee true that either the King is above the Parliament that is the positive lawes of his Kingdome or else that he is not an absolute King Aristotle lib. 3. Politico c. 16. Andtherefore though it be a merciful policy and also a politique mercy not alterable without great peril to make lawes by the consent of the whole Realm because so no one part shall have cause to complain of a partiality yet simply to bind the Prince to or by these lawes were repugnant to the nature and constitution of an absolute monarchy See Bracton lib. 5. tract 3. cap. 3. num 3. and Cassan de consuet Burg. pag. 335. and Tiraquel in his book De Nobilitate cap. 20. pag. 68. num 26. See the Statute anno 31 Henr. 8. cap. 8. in proaemio and many excellent men more that handle this point That learned Hottoman in his Francogallia doth vehemently oppugn this ground as some other that write in corners but he is so clean overbern by the pois of reason that not only many meaner men for Learning triumph over him in this case but himself as I have credibly heard upon the sight of his fault cryed God and the world mercy for his offence in writing that erroneous and seditious book The Emperours of Rome had their semestria consilia and their praetorium or place of Councel bailded by Augustus in his palace and thereupon called palatinm afterward termed Consistorium where they as in their principull court did both determine the greatest sort of their causes and also made their constitutions And here had they assisting them many of the wisest of their Empire whom 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 enjoyed many privilege Yet were but the assistants to the Emperour to advise him not chalenging any power over him or equal with him More touching the course and order of this Parliament see in Cromptons Jurisd fol. pri seque and Vowel alias Hocker in his book purposely written of this matter See King Parole Loquela is a French word signifying as much as Dictio allocutio sermo vox It is used in Kitchin fol. 193. for a plea in Court It is also sometime joyned with lease as Lease parol that is Lease per parole a lease by word of mouth Parson Parsona cometh of the French Personne It peculiarly signifieth with us the Rector of a Church the reason whereof seemeth to bee because he for his time representeth the Church and sustaineth the person thereof as well in suing as being sued in any action touching the same See Fleta l. 9. ca. 18. Parson imp rsonee parsona impersonata is he that is in possession of a Church whether appropriated or not appropriated for in the new book of Entries ver Ayde in Annuity you have these words Et praedictus A. dicit quod ipse est persona praedicta Ecclesiae de Simpersonata in eidem ad praesent aâ—ionem F. patronissae c. So I have reason to think that persona is the patron or he that hath right to give the Benefice by reason that before the Lateran Councill he had right to the tithes in respect of his liberality used in the erection or endowment of the Church quasi sustineret personam Ecclesiae and hee persona impersonata to whom the benefice is given in the Patrons
lying neer one another and consenting to have their bounds severally known It is directed to the Shyreeve commanding him to make perambulation and to set down their certain limits between them Of this read more at large in Fitz. nat br fol. 133. See Rationalibus divisis See the Regist orig fol. 157. and the new book of Entries verbo Perambulatione facienda Perche pertica is a French word signifying a long pole It is used with us for a rod or Pole of sixteen foot and a half in length Whereof Fourty in length and four in breath make an acre of ground Cromptons Jurisdict fol. 222. Yet by the custom of the country it may be longer as he there saith For in the Forest of Sherwood it is 25. foot fol. 224. M. Skene de verbor signif verbo Particata terrae saith that particata terrae is a Rood of land where he hath also these words in effect Three beer corns without tails set together in length make an inch of the which corns one should be taken off the middle ridge another of the side of the ridge another of the furrow Twelve inches make a foot of measure three foot and an inch make an elne six elnes long make one fall which is the common lineal measure and six elnes long and six broad make a square and superficiall fall of measured land And it is to be understood that one rod one raip one lineall fall of measure are all one for each one of them containeth six elnes in length Howbeir a rod is a staff or pole of wood a rasp is made of tow or hemp And so much land as fall thunder the rod or raip at once is called a fall of measure or a lineal fall because it is the measure of the line or length only Like as the superficiall fall is the measure both of length and bredth Item ten falls in length and four in breadth make a Rood four Roods make and acre c. This is the measure of Scotland whereof you may read more in the same place Perdonatio utlagariae in the Register judiciall fol. 28. is the form of pardon for him that for not comming to the Kings court is out-lawed and afterwards of his own accord yeeldeth himself to prison Peremptory peremptorius commeth of the verb perimere to cut off and joyned with a substantive as action or exception signifyeth a finall and determinate act without hope of renewing So Fitzh calleth a peremtory action nat br fol. 35. P. fol. 38. M. fol. 104. O. Q R. fol. 108. D. G. and non-sute peremptory idem eodem fol. 5. N. F. fol. 11. A peremptory exception Bracton li. 4. cap. 20. Smith derep Anglorum li. 2. cap. 13. calleth that a preremptory acception which can make the state and an issue in a cause Perinde valere is a dispensation graunted to a Clerk that being defective in his capacity to a benefice or other ecclesiastical function is de facto admitted unto it And it hath the appellation of the words which make the faculty as effectual to the party dispensed with as if he had been actually capable of the thing for which he is dispensed with at the time of his admission Perkins was a learned Lawyer fellow and bencher of the inner Temple that lived in the daies of Edw. the 6. and Queen Mary He wrote a book upon divers points of the common Law of very great commendation Permutatione Archidiaconatus ecclesiae eidem annexe cum ecclesia et praebenda is a writ to an Ordinary commanding him to admit a clerk to a benefice upon exchange made with another Regist orig fol. 307. a. Pernour of profits cometh of the French verb. prendere i. acciperâ— and signifieth him that taketh as pernour of profits anno 1 H. 7 ca. pri Pernour de prosits et cesti que use is all one Coke li. i. casu Chuâ—ley fol. 123. a. See Pernour anno 21. R. 2. ca. 15. Per quae ervitia is a writ judicial issuing from the note of a fine and lyeth for the cognizee of a maner seignory chief rent or other services to compell him that is tenant of the land at the time of the note of the fine levyed to atturn unto him West parte 2. symbol titulo Fines-Sect 126. To the same effect speaketh the old nat br fol. 155. See also the new book of Entries verbo per quae servitia Perquesite perquesitum signifyeth in Bracton any thing purchased as per quisitum facere lib. 2. cap. 30. numb 3. lib. 4. cap. 22. perquisites of court be those profits that grow unto the Lord of a maner by vertue of his Court Baron over and above the certain and yearly profits of his land as escheats mariages goods purchased by villeins fines of copie holds and such like New Termes of the Law Person See Parson Personable signifyeth as much as inhabled to hold or maintain plee in a court For example the demaundant was judged personably to maintain this action Old nat br fol. 142. and in Kitchin fol. 214. The tenent pleaded that the wife was an alien born in Portingall without the ligeance of the King and judgement was asked whether she would be answered The Plaintiff saith she was made personable by Parliament that is as the Civilians would speak it habere personam standi in judicio Personable is also as much as to be of capacity to take any thing granted or given Plowden casu Colthirst fol. 27. b. Personal personalis hath in our common Law one strange signification being joyned with the substantive things goods or Chatels as things personal goods personal Chatels personal for thus it signifieth any corporeal and moveable thing belonging to any man be it quick or dead So it is used in Westm par 2. symbol titulo Inditements sect 58. in these words Theft is an unlawfull fellonious taking away another mans moveable personal goods And again fol. 61. Larcency is a felonious taking away of anothers mans moveable personall goods and Kitchin fol. 139. in these words Where personal things shall be given to corporation as a horse a cow an oxe sheep hogs or other goods c. and Stawnford pl. cor fol. 25. Contrectatio rei alienae is to be understood of things personal for in things real it is not felony as the cutting of a tree is not fellony The reason of this application see Chattel Personalty personalitas is an abstract of personall The action is in the personalty old nat br fol 92. that is to say brought against the right person or the person against whom in law it lyeth I find these contrary words Personalitas impersonalitas in the Author of the book called vocabularius utriusque juris as for example Personalitas significatur per has dictiones tu mihi ego tibt cum alio significato quod probbialiter oencluditur si nullo modo concludatur tunc est impersonalttas quia actum vitiat pront ratio dictat verbi gratia
ego stipulor constituis te mihi scluturum debitum à Titio mihi debitum Tu respondes Satisfiet Haec impersonalitas non contrahit obligationem Persons ne Praebendaries ne seront charges as quinsimes c. is a writ that lieth for prebendaries or other spiritual persons being distreined by the shyreeve or collectors of fifteenths for the fifteenth of their goods or to be contributory to taxes Fitzh nat br fol. 176. Pestarable wares seem to be such ware as pester and take up much room in a shipp anno 32. H. 8. cap 14. Peter pence Denarii Sancti Petri otherwise called in the Saxon tongue Romefeoh i. the fee of Rome or due to Rome and also Romescot and Rome penning was a tribute given by â—n as King of the West Saxons being in pilgrimage at Rome in the year of our Lord 720. which was a penny for every house Lamberds explication of Saxon words verbo Numus whom see also fol. 128. in St. Edw. Laws nu 10. where it is thus written Omnes qui habent 30. denariatus vivae pecuniae in domo sua de suo proprio Anglorum lege dabit denarium Sancti Petri lege Danorum dimidiam markam Iste vero denarius debet summoniri in solemnitate Apostolorum Petri et Pauliâ—â— et colligi ad festivitatem quae dicitur ad vincula ita ut ultra illum diem non detineatur Si quispiam detinuerit ad Justiciam Regis clamor deferatur quoniam denarius hic Regis eleemozyna est Justicia vero faciat denarium reddere forisfacturam Episcopi et Regis Quòd si quis domos plures habueris de illa ubi residens fuerit in festo Apostolorum Petri et Pauli denarium reddat See also King Edgars lawes fol. 78. ca. 4. which containeth a sharp constitution touching this matter Stow. in his Annals pag. 67. saith that he that had 20. penniworth of goods of one manner cattel in his house of his own proper was to give a penny at Lammas yearly See Romescot Petit Cape See Cape Petit Larceny parvum latrocinium See Larceny Petit treason parva traditio in true French is petit trabizon i. proditio minor treason in a lesser or lower kind For whereas treason in the highest kind is an offence done against the security of the common wealth Westm parte 2. symb titulo Inditement sect 63. petit treason is of this nature though not so expresly as the other Examples of petit treason you shall find to be these if a servant kill his Master a wife her husband a secular or religious man his prelat anno 25. Edw. 3. cap. 2. Whereof see more in Stawn pl. cor lib. 1. cap. 2. See also Cromptons Justice of peace fol. 2. where he addeth divers other examples to those of Stawnford For the punishment of petit treason see the Statute an 22. H. 8. cap. 14. and Crompton ubisupra Petition petitio hath a general signification for all intreaties made by an inferiour to a superiour and especially to one having jurisdiction But most especially it is used for that remedie which the subject hath to help a wrong done or pretended to be done by the King For the King hath it by prerogrative that he may not be sued upon a writ Stawn praer cap. 15. whom also read cap. 22. And a petition in this case is either general or special It is called generall of the general conclusion set down in the same viz. que le Roy lui face droit et reison that the King doe him right and reason whereupon followeth a general indorsement upon the same soit droit fait aux partis let right be done to the parties Petition special is where the conclusion is speciall for this or that and the Indorsement to this is likewise special See the rest cap. 22. Petra lanae a stone of wool See Stone PH Philiser See Filazer PI Piccage piccagium is money paid in fairs for breaking of the ground to set up booths or standings Picle alià s pitle seemeth to come from the Italian piccolo vel picciolo i. parvus minutus and signifyeth with us a little small close or inclosure Pienour cometh of the French Pionnier i. fossor and signifieth such labourers as are taken up for the Kings host to cast trenches or undermine forts Anno 2. 3. Ed. 6. cap. 20. Piepowders court Curiae pedis pulverizati comes of two French words pied i pes and pouldreux i. pulverulentus It signifieth a court held in fairs for the redresse of all disorders committed within them which because it is summary de plano fine figura judicii it hath the name of dustie feet which we commonly get by sitting neer the ground of this see Cromptons Jurisd fol. 221. Read M. Skene de ver signif verbo Peduâ—ulversus which word he reporteth to signifie a vagabond especially a merchant which hath no place of dwelling where the dust may be wiped off his feet or shooes and therefore must have justice summarily ministred unto him viz. within three flowings and three ebbings of the sea Bract. calleth it Justitiam pepoudrous li. 5. tract 1. c. 6. nu 6. Of this court read the Statute anno 17 Edw. 4. ca. 2. Pille of Foddray in the Countie of Lancaster anno 2 H. 6. ca. 5. seemeth to be a creek and called pille by the idiom of the Countrey for pile for the which see Pile Pillorie Collistrigium Pillorium cometh of the French Pilori which may seem to smell of the greek and to proceed from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because one standing on the pillory putteth his head through a kind of a door i. janua 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 video it signifieth all one thing with it saving that the French is used for a tumbrell as well as for that which we call the pillorie there is a Statute made of the pillory anno 51 H. 3. wherein you may see who were then subject to this punishment This was among the Saxons called Healsfang of Heals a neck and Fang to take Lamb explication of Saxon words verbo Mulcta Pipe pipa seemeth to be a roll in the exchequer otherwise called the great roll anno 37 Ed. 3. cap. 4. See Clerk of the pipe It is also a measure of wine or oyle containing half a tun that is six score and six gallons anno 1 R. 3. cap. 13. Piscarie piscaria cometh of the French pescharie i. piscatio It signifieth in our common Law a libertie of fishing in an other mans waters Pittle See Picle PL Placard anno 2. 3. Ph. Mar. cap. 7. is a licence whereby a man is permitted to maintain unlawfull games Plaint Querela is a French word signifying as much as questus querimonia In our Common law it is used for the propounding of any action personal or real in writing So it is used in Brook titulo Plaint in Assise and the party making this plaint is called Plaintiff Kitchin fol. 231. Plea
placitum commeth of the French ploid i. lis controversia It signifieth in our Common law that which either party allegeth for himself in Court And this was wont to be done in French from the Conquest untill Edward 3. who ordained them to be done in English a. 36. cap. 15. Pleas are divided into pleas of the Crown and Common pleas Pleas of the Crown in Scotland be 4. robberie rape murder and wilfull fire Skene de verb. sign verb. Placitum With us they be all sutes in the Kings name against offences committed against his Crown and dignity Stawnf pl. cor cap. 1. or against his Crown and peace Smith de repub Angl. li. 2. cap. 9. And those seem to be treasons felonies misprisions of either and mayhem For those only doth that reverend Judge mention in that tractat Common pleas be those that be held between Common persons Yet by the former definitions these must comprise all other though the King be a party Plea may farther be divided into as many branches as Action which see For they signifie all one Then is there a Forein plea whereby matter is alleged in any Court that must be tryed in another As if one should lay Bastardy to another in a Court Baron Kitchin fol. 75. The word placitum is used by the Commentours upon the Feuds in the same signification that pleas be with us And Placitare with them is littgare causas agere Hotom in verb. feudal verb. Placitare Pledge Plegius commeth of the French Pleige i. fidejussor Pleiger aucun i. fidejubere pro aliquo In the same signification is Plegius used by Glanvile Libro decimo capite quinto and Plegiatio for the act of suretiship in the interpreter of the Grand Customary of Normandy capite 60. Plegii dicuntur personae quae se obligant ad hoc ad quod qui eos mittit tenebatur And in the same Book capit 89 90. Plegiatio is used as Glanvile before doth use it Salvi plepii be used for Plegii Pupill oculi parte quint. capit 22. Charta de foresta This word Plegius is used also for Frank pledge sometime as in the end of William the Conquerours Laws set out by Master Lambard in his Archaionum fol. 125. in these words Omnis homo qui voluerit se tenere pro libro sit in plegio ut plegius cum habeat ad usticiam si quid offenderit c. And these be called capital pledges Kitchin fol. dectm◠See Frank pledge Plena forisfactura and plena vita see Forfeiture Plegiis acquietandis is a Writ that lyeth for a surety against him for whom he is surety if he pay not the mony at the day Fitzherb nat br folio 137. Regist original 158. a. Plenartie is an abstract of the adjective plinus and is used by our Common Lawyers in matters of benefices Wherein plenarty and vacation be meerly contrary Stawnford prerogativ cap. octavo fol. 32. Westm secundo capit quint. anno 13 Edvard prim Plevin Plevina commeth of the French plevine i. sponsi See Replevin Plite of Lawn c. anno 3 Edw. 4. cap. 5. seemeth to be a certain 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 original Capias which if it speed not then goeth out the Sicut aliàs and if that fail then the Pluries See Old nat br fol. 33. In the writ De excom captendo see in what diversity of cases this is used in the Table of the original Register PO Pole See Perch Polein anno 4. Ed. 4. cap. 7. seemeth to be a sharp or picked top set in the fore-part of the shooe or boot This fashion was first taken up in Richard the seconds daies the picks being made so long as they were tyed up to the knees with silver or golden chains and forbidden by Edw. the fourth Stow. pag. 4. Policy of assurance is a course taken by those which do adventure wares or merchandize by sea whereby they loath to hazard their whole adventure do give unto some other a certain rate or proportion as ten in the hundred or such like to secure the safe arival of the ship and so much wares at the place agreed upon So that if the ship and wares do miscarry the assurer maketh good to the venturer so much as he promised to secure as 20 30 100. more or lesse and if the ship do safely arive he gaineth that clearly which the venturer compoundeth to pay him And for the more even dealing between the venturer and the securer in this case there is a certain Clerk or Officer ordained to set down in writing the sum of their agreement that they afterwards differ not among themselves upon the bargain This is in coarse Latine elsewhere called assecuratio This term you have anno 43 Eliz. cap. 11. Pondage See Poundage Pone is a writ whereby a cause depending in the County court is removed to the Common Bank Old nat br fol. 2. See in what diversity of Cases it is used in the table of the Original Register Pone per vadium is a writ commanding the Shyreeve to take surety of one for his appearance at a day assigned of this see five sorts in the table of the Register Judic verbe Pone per vadium Ponendis in assisis is a writ founded upon the statute of Westm 2. cap. 38. and upon the statute Articuli super chartas c. 9. which statutes do shew what persons Vicounts ought to impanel upon Assizes and Iuries and what not as also what number he should empanel upon Iuries and Inquests which see in the Regist orig fol. 178. a. and in Fitz. nat br fol. 165. Ponendum in ballum is a writ whereby to will a Prisoner held in Prison to be committed to bail in cases baylable Regist. orig fol. 133. b. Ponendo sigillnm ad exceptionem is a writ whereby the King willeth Iustices according to the statute of West 2. to put their seals to exceptions laid in against the Plaintiffs declaration by the Defendant Pontage pontagiuns is a contribution towards the maintenance or re-edifying of bridges Westm 2. cap. 25. anno 13 Ed. pri It may be also toll taken to this purpose of those that pass over bridges anno 39 Eliz. cap. 24. anno 1 H. 8. cap. 9. and see the Statute anno 22 H. 8. cap. 5. Pontibus reparandis is a writ directed to the Shyreeve c. willing him to charge one or more to repair a bridge to whom it belongeth Register orig fol. 153. b. Portgreve portgrevius is compounded of two words port and greve or grave i. praefectus It signifieth with us the chief Magistrate in certain Coast towns and as M. Camden sayth in his Britan pag. 325. the chief Magistrate of London was termed by this name instead of whom Richard the first ordained two Bayliffs but presently after
the Court of that which is done by vertue of his Office See the Statutes of dayes in bank anno 51 H. 3. et anno 32 H. 8. cap. 21. And in this signification Hilary Term is said to have four returns viz. Octabis Hilarii Quindena Hilarit crastine Purificationis Octabis Purificaticnis and Easter Term to have 5. returns viz. Quindena Pascha Tres paschae Mense paschae Quinque paschae et crastino Ascensionis And Trinity Term 4. returns i. Crastino Trinitatis Octabis Trinitatis Quindena Trinitatis Tres Trinitatis And Michaâ—lmus Term 8. returns sc Octabis Michaelis Quindena Michaelis Tres Michaelis Mense Michaelis Crastine animarum Crastino Martini Octabis Martini Quindena Martini The other application of this word is in case of Replevy For if a man distraine cattel for rent c. And afterward justifie or avow his act that it be found lawfull the cattel before delivered unto him that was distrained upon security given to follow the action shall now be returned to him that distrained them Brook titulo Return d'avers et hommes fol. 218. you shall find this word often used in Fitzherb nat br as appeareth in the word Return 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 avowed a distresse made of cattel and proved his distresse to bee lawfully taken for the return of the cattel distrained unto him which before were replevied by the party distrained upon surety given to persue the action Terms of law verbo Replevin Returnum averiorum is a writ Iudicial granted to one impleaded for taking the cattel of another and unjust deteining of them centra vadium et plegies and appearing upon summons is dismissed without day by reason that the Plaintiff maketh default and it lyeth for the return of the cattel unto the Defendant whereby he was summoned or which were taken for the security of his appearance upon the summons Register Judicial fol. 4. a. Returnum irreplegiabile is a writ judicial sent out of the common plees to the Shyreeve for the final restitution or return of cattel to the owner unjustly taken by another as dammage seisant and so found by the jury before Iustices of Assise in the County For which see the Regist Iudicial fol. 27. a. b. Reve altà s Greve Prafectus is made of Geresa the Saxon word for a Governour Lamb. explica of Saxon words verbo Prafectus and that by rejecting the first syllable which hee saith among the Saxons is usuall It signifieth in our common Law the Bayliff of a Fraunchis or Mannor and especially in the West parts Of this you may see Kitchen fol. 43. See Greve See Shyreeve See also of this word M. Verstigan in his restitution of decayed intelligence cap. 10. speaking much to the same effect Revels seemeth to be derived from the French word Reveiller i. excitari vel expergâ—fieri It signifieth with us sports of daunsing masking comedies tragedies and such like used in the Kings house the houses of court or of other great personages The reason whereof is because they are most used by night when otherwise men commonly sleep be at rest In the Kings house there is an officer called the Master of these Reves who hath the ordering and dispositions of these pastimes in the Court. Revenewe is a French word signifying as much as Reditio Reversio Reditus It signifieth properly the yearly rent that groweth to every man form his lands and possessions Reversion Reversio signifieth in the common Law a possibility reserved to a mans self and his heirs to have again lands or tenements made over conditionally unto others upon the defect or fayling of such condition The difference between a Remainder and a Reversion is that a Remainder is general and may be to any man but to him that graunteth or conveyeth the land c. for term of life only or otherwise a Reversion is to himself from whom the conveiance of the land c. proceeded and commonly perpetual as to his heirs also Littleton fol. 12. in fine See Cook lib. 2. Sir Hugh Cholmleis case fol. 51. a. And yet a reversion is sometime confounded with a remainder Cook li. 2. Tookers case fol. 67. b. Plowden casu Hille fol 170. q. What this word Reversion in a deed doth carrie See Littleton lib. 2. cap. 12. Revocation Revocatio is the calling back of a thing granted Of these you have divers in the Register original as Revocationem brevis de audiendo et terminando fol. 124. Revocationem praesentationis fol. 304 et 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 than if a man or other living creature should be dead and restored to life See divers examples in Brook titulo Revivings of rents action c. fol. 223. Rewardum See Regard Reweye anno 43 Blizab cap. 10. RI Rie is a Saxon word signifying as much as Regnum in Latine Camd. Britan. Pag. 346. Reins passe per le fait is a form of an exception taken in same cases to an action See Brook titulo Estaunger al fait or Record Riens dans le gard was a chalenge to a Iury or enquest within London for that four sufficient men of livelyhood to the yearly value of fortie shillings above all charges within the same City and dwelling and having within the same ward were not impanelled therein But it is abrogated by the Statute An. 7 H. 7. cap. 4. Rier county Retrocomitatus seemeth to come of the French Arriere i. posterior and in the Statute Anno 2. Edwar. 3. cap. 5. is opposite to the open county And by comparison of that Statute with Westm 2. cap. 38. it appeareth to be some publike place which the Shyreeve appointeth for the receipt of the Kings money after the end of his County Fleta saith that it is diet crastinus post comitatum li. 2. cap. 67. R. Quia Iusticiurii Right Rectum See Recto Ridings be the names of the parts or divisions of York shire being three in number viz. West riding East riding and North riding Cambd. 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 County it is requisite that the town and the Riding be expresed 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 cometh of the French Riotter i. rixari It signifieth in our common Law the forcible doing of an unlawful act by three or more persons assembled together for that purpose Westm. parte 2. symbol titulo Inditements sect 65. P. The
est in aliis libris guarentisare i. causam alterius suscâ—pere se defensorem profiteri The Feudists also use this word guarentus quo significatur is qui Latinis author dieitur evictionem praestat lib. 2. Feud titulo 34. § 2. The Civilians have a stipulation habere licere whereby is signified a power of perpetual and quiet possession to be given lib. 11. § final Ï€. de action empt vend But this reacheth not so far as our warranty For the Seller hereby is bound but to a kind of diligence and care to maintain the Buyer in his possession For if he be evicted the Buyer is not tyed to recompence Dectores in l. stipulatio ista Habere licere Ï€ de verb. obliga VVarranty signifieth in our Common law a promise made in a deed by one man unto another for himself and his heirs to secure him and his Heirs against all men for the enjoying of any thing agreed of between them And he that maketh this warranty is called Warrantus by Bracton lib. 2. cap. 19 37. The Romans called him Auctorem as Hotoman testifieth in his Commentarie upon Tullies oration pro Aulo Caecinna verbo Cesennius author fundi whom you may read more at large And that which we term vocationem warranti the Civilians call authoris laudationem vel nominationem Eimer pract cap. 48. This warranty passeth from the seller to the buyer from the feoffor to the feoffee from him that releaseth to him that is released from an action real and such like And for the form it passeth in a clause toward the end of a deed in these words Et ego verò praefatus 1 haeredes mei praedictas decem acras terrae cum pertinentiis suis praefato H. haeredibus assignatis suis contra omnes gentes warrantizabimus in perperuum per praesentes West parte pri symbol li. 2. titulo Feofments sect 28â— et 288. So a release may be with clause of warranty Idem eodem titulo Releases sect 410. There is also a warrant of Attorney whereby a man appointeth another to do something in his name and warranteth his action West eod sect 181. And these VVarrants of Attorney seem to differ from letters of Attorney because that whereas Letters pass ordinarily under the hand and seal of him that maketh an Attorney by them before any credible witnesses warrants of Attorney be acknowledged before such persons by such means and in such manner as Fines West parte 2. symbol titulo Recoveries sect prim F. See Attorney But these warranties in passing land from one to another be of greatest consequent and of more intricate understanding And therefore of these divers have written at large as Glanvile lib. 3. per totum Bracton lib. 5. tractat 4. per totum Briton cap. 105. Littleton in the last Chapter of his tenures the form and effect whereof Bracton in his second book cap. 16. num 10. declareth thus Et ego haeredes mei warrantizabimus tali haeredibus suis tantùm vel tali haeredibus assignatis haeredibus assignatorum vel assignatis assignatorum et eorum haeredibus et acquietabimus et defendemus eis totam terram illam cum pertinentiis secundum quod praedictum est contra omnes gentes in perpetuum per praedictum servitium Per hoc autem quod dicit Ego et haeredes mei obligat se et haeredes suos ad warrantiam propinquos et remotos praesentes et futuros ei succedentes in infinitum Per hoc autem quòd dicit warrantizabimus sucipit in se obligationem ad defendendum suum Tenementum in possessione rei datae et assignatos suos et eorum haeredes et omnes alios secundum quod supradictum est si fortè tenementùm datum petatur ab antiquo in Dominico Per hoc autem quòd dicit acquietabimus obligat se et haeredes suos ad acquietabimus obligat se et haeredes suos ad acquietandum si quis plus petierit servitii vel aliud servitium quam in charta donationis continetur Per hoc autem quòd dicit Defendemus obligat se et haeredes ad Defendendum si quis velit servitutem ponere reidatae contra formam suae donationiâ— c. But the new Expounder of law terms saith That this warranty beginneth two wayes one by deed of Law as if one and his Ancestors have held land of another and his Ancestors time out of mind by homage which is called Homage auncestrel for in this case the homage continually performed by the tenent is sufficient to bind the Lord to warrant his estate The other is by deed of the party which by deed or fine tâ—y eth himself to warrant the land or tenement to the tenent And Sir Edward Cook in the fourth book of his Reports mentioneth the same distinction Nokes case fol. 81. a. calling the one a warranty in law the other an expresse warranty Civilians would call these species tacitam et expressam Warranty as the said Author of the terms of law saith is in 2 manners warranty lineal warranty collateral But Litleton saith ubi supra it is threefold warranty lineal warranty collateral and warranty that beginneth by disseisin Warranty by disseisin what it is is partly declared in Sir Edw. Cooks Reports li. 3. Fermors case fol. 78. a. VVhether of them divideth more aptly let the learned Judge For my part I think that lineal and collateral be no essential differences of warranty as it is originally considered in the first warranter For he bindeth himself and his heirs in general And such be bound be they lineal or collateral unto him Therefore this division riseth rather from the event of the original warranty videlicet because it so falleth out that the tenent to whom the warranty was made or his heirs when he or they be called into question for the land warranted formerly by the first feoffour is driven by the means of the first warranters death to call or vouch him to warranty that is his heir and now presently living be he descending or collateral as it falleth out For example A. enfeoff th B. in twenty acres of land with clause of warranty against all men So long as A. himself liveth he is lyable to this Covenant and none else after his decease his heir is subject unto it be he his Son Brother Uncle or what else And whether of these or neither of these it will be none knoweth untill he be dead Wherefore I conclude that this didistinction of lineal or collateral hath no use originally in this contract For as the Author of the terms of Law saith the burthen of this warranty after the death of the first warranter falleth upon him upon whom the land should have descended if the warranty had not been made And that is the next of blood to the warranter be he in the descending or collateral line And therefore I resolve that this
may appoint one to order his moveables and chattels until the age of fourteen years at which time he may chuse his Gardian accordingly as by the Civil Law he may his Curator For we hold all one rule with the Civilians in this case and that is Invito curator non datur And for his Lands if he hold any by Copy or Court-rol commonly the Lord of the Fee appointeth him a Guardian until he come to the age of fourteen years and that is one next of kind to the Minor of that side that can hope for least profit by his death If he hold by charter in socage then the next of kind on that side by which the land cometh not is the Guardian and hereupon called guardian in socage And that which is said here of socage seemeth to be true likewise in petit sergeantie anno vicesimo octavo Ed. vardi primi statuto primo And the reason of this Fortescue giveth in his book intituled A commendation of the politique laws of England cap. 44. viz. because there might be suspition if the next kinsman on that side by which the land descendeth should have the custody and education of the Child that for desire of his land he might be entised to work him some mischief Lastly if a man die seised of lands holding by Knights service leaving his heir in minority that is under 21 years the Lord of the Fee hath by Law the custody both of the heir anâ— his land until he come to age See the statute anno 28 Ed. prim statut prim And the reason of this Fortescue likewise giveth for that he to whom by his Tenure he oweth Knights service when he can perform it is likeliest to train him up in martial and ingenious discipline until he be of ability But Polidore Virgil in his Chronicle lib. 16. saith that this was Novum vectigalis genus excogitatum to help Henry the third being oppressed much with poverty by reason he received the Kingdome much wasted by the Wars of his Ancestors and therefore needing extraordinary help to uphold his estate yet the 33 Chapter of the Grand Custumary maketh mention of this to have been used by the Normans and I think this the truer opinion Here it is to be observed whether land in Knights service hold in capite or of another Lord or some of the King and some of another If of the King whether of the King alone or not all is one For the King in this case is Guardian to the heirs both person and land by his prerogative Stawnford praerogat cap. 1. If he hold of a common Lord it is either of one alone or more if of one onely then is he Guardian of both person and Lands if of more then the Lord of whom he holdeth by the elder Tenure is Guardian of the person and every one of the rest hath the custody of the land holden of himself If the priority of the Tenure cannot be discerned then is he Guardian of the person that first happeth him Terms of the law Stawnf ubi supra whom you may read more at large which Author fol. 19. maketh mention of Gardeyn in feit and Gardeyn in droit that is in deed and in law I take the first to be him that hath purchased or otherwise obtained the ward of the Lord of whom the Land holdeth The second him that hath the right by his inheritance and seignorie Old nat br fol. 94. Then is there Gardeyn per cause de gard which is he that hath the wardship of a Minor because he is Guardian of his Lord being likewise in minority Stawnford ubi supra fol. 15. Of this you may read Skene de verb. signif verbo Varda by whom you may learn great affinity and yet some difference between the Law of Scotland and ours in this point Guardia is a word used among the Feudists for the Latine Custodia and Guardianus seu guardio dicitur ille cui custodia commissa est lib. Feudo 1. titulo 2. titulo 11. Gardeyn of the Spiritualities Custos spiritualium vel spiritualitatis is he to whom the spiritual jurisdiction of any Diocesse is committed during the vacancie of the See an 25 H. 8. c. 21. And I take that the Guardeyn of the Spiritualties may be either Guardein in law or Jure Magistratus as the Arch-bishop is of any Dioces within his Province or Guardian by delegation as he whom the Arch-bishop or Vicar general doth for the time depute Gardeyn of the peace Custos pacis See Conservatour of the peace Gardeyn of the Cinque ports Gardianus quinque portuum is a Magistrate that hath the jurisdiction of those Havens in the East part of England which are commonly called the Cinque ports that is the five Havens who there hath all that jurisdiction that the Admiral of England hath in places not exempt The reason why one Magistrate should be assigned to these few Havens seemeth to be because they in respect of their situation anciently required a more vigilant care than other Havens being in greater danger of invasion by our enemies by reason that the Sea is narrower there than in any other place M. Cambden in his Britannia pag. 238. saith That the Romans after they had setled themselves and their Empire here in England appointed a Magistrate or Governour over those East parts whom they rearmed Comitem littoris Saxonici per Britanniam having another that did bear the same title on the opposite part of the Sea whose office was to strengthen the Sea Coasts with Munition against the outrages and robberies of the Barbarians And farther signifieth his opinion that this Warden of the Cinque ports was first erected amongst us in imitation of that Roman policie See Cinque ports Gare anno 31 Ed. 3. cap. 8. is a coarse wool full of staring hairs as such as groweth about the pesil or shanks of the Sheep Garnishment cometh of the French Garnir i. instruere It signifieth in our Common law a warning given to one for his appearance and that for the better furnishing of the cause and Court. For example one is sued for the detinue of certain Evidences or Charters and saith that the Evidences were delivered unto him not onely by the Plaintiff but by another also and therefore prayeth that that other may be warned to plead with the Plaintiff whether the said conditions be performed yea or no. And in this petition he is said to pray Garnishment New book of Entries fol. 211. colum 3. Terms of the Law Cromptons Jurisd fol. 211. which may be interpreted either warning of that other or else furnishing of the Court with parties sufficient throughly to determine the cause because untill he appear and joyn the Defendant as Fitzherb saith is as it were out of the Court nat br fol. 106. G. and the Court is not provided of all parties to the action I am the bolder thus to interpret it because I find Britton in the same
mind cap. 28. where he saith That contracts be some naked and sans garnment and some furnished or to use the literal signification of his word apparelled but a naked Obligation giveth no action but by common assent And therefore it is necessary or needfull that every Obligation be apparelled And an obligation ought to be apparelled with these sive sorts of garnements c. Howbeit I read it generally used for a warning in many places and namely in Kitchin fol. 6. Garnisher le court is to warn the Court. And reasonable garnishment in the same place is nothing but reasonable warning and again fol. 283. and many other Authors also But this may be well thought a Metonymy of the effect because by the warning of parties to the Court the Court is furnished and adorned Garrantie See Warrantie Garter Garterium cometh of the French Jartiere or Jartier i. periscelis fascia poplitaria It signifieth with us both in divers Statutes and otherwise one especiall Garter being the ensigne of a great and Noble Society of Knights called Knights of the Garter And this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Poeta among the Graecians was Homer among the Romans Virgil 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 upon good successe in a skirmish wherin the Kings Garter I know not upon what occasion was used for a token I know that Polydore Virgil casteth in another suspition of the originall But his grounds by his own confession grew from the Vulgar opinion yet as it is I will mention it as I have read it Edward the third King of England after he had obtained many great victories king John of France king James 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 upon no weighty occasion first erect this order in Anno 1350. viz. He danceing with the Queen and other Ladies of the Court took up a Garter that happened to fall from one of them whereat some of the Lords smiling the king said unto them That ere it were long hee would make that Garter to be of high reputation and shortly after instituted this order of the Blew Garter which every one of the order is bound dayly to wear being richly decked with Gold and precious stones and having these words written or wrought upon it Honi soit qui maly pence which is thus commonly interpreted Evill come to him that evil thinketh But I think it might be better thus Shame take him that thinketh evill See knights of the Garter M. Ferne in his glory of generosity agreeth with M. Camden and expressier setteth down the victories whence this order was occasioned whatsoever cause of beginning it had the order is inferior to none in the world consisting of 26. martial and heroical Nobles whereof the king or England is the chief and the rest be either Nobles of the Realm or Princes of other Countries friends and confederates with this Realm the Honour being such as Emperours and kings of other Nations have desired and thankfully accepted it he that will read more of this let him repair to M. Camden and Polydore and M. Ferne fol. 120. ubi supra The Ceremonies of the chapter proceeding to election of the investures and robes of his installation of his vow with all such other Observations see in M. Segars new book intituled Honour militarie and civill lib. 2. cap. 9. fol. 65. Garter also signifieth the principall kings at Armes among our English Heralds created by king Henry the fifth Stow. pag. 584. Garthman anno 13 R. 2. stat 1. ca. 19. anno 17. ejusd ca. 9. Gavelet is a special and antient kind of Cessavit used in Kent where the custome of Gavell kind continueth whereby the tenent shall forfeit his Lands and tenements to the Lord of whom he holdeth if he withdraw from him his due rents and services The new Expounder of Law Termes whom read more at large I read this word anno 10. Edw. 2 cap. unico where it appeareth to be a Writ used in the Hustings at London And I find by Fleta that it is used in other liberties as the Hustings of Winchester Lincolne York and the Cinque ports lib. 2. cap. 55. in principio Gavelkind is by M. Lamberd in his exposition of Saxon words verbo Terra et scripto compounded of three Saxon words gyfe cal cin omnibus cognatione proximis data But M. Verstegan in his restitution of his decayed intelligence cap. 3. called it Gavelkind quasi give all kind that is give to each child his part It signifieth in our Common law a custome whereby the Land of the Father is equally divided at his death amongst all his Sons or the Land of the Brother equally divided among the Brethren if he have no issue of his own Kitchin fol. 102. This custome is said to be of force in divers places of England but especially in Kent as the said Authour reporteth shewing also the cause why Kentish men rather use this custome than any other Province viz. because it was a composition made between the Conquerour and them after all England beside was conquered that they should enjoy their ancient customes whereof this was one For. M. Camden in his Britannia pag. 239. saith in expresse words thus Cantiani eâ lege Gulielmo Normanno se dediderunt ut patrias consuetudines illaesas retinerent illamque imprimis quam Gavelkind nominant Haec terrae quae eo nomine censentur liberis masculis ex aequis portionibus dividuntur vel faeminis si masculi non fuerint adding more worth the noting viz. Hanc haereditatem cùm quintum decimum annum attigerint adeunt sine Domini consensu cuilibet vel dando vel vendendo alienare licet Hac filii parent thus furti damnatis in id genus fundis succedunt c. This custome in divers Gentlemens lands was altered at their own petition by Act of Parliament anno 31 H. 8. cap. 3. But it appeareth by 18 H. 6. cap. pri that in those dayes there were not above thirty or fourty persons in Kent that held by any other Tenure See the new Terms Gavelet and Gavelkind Gawgeour gaugeator seemeth to come of the French Gawchir i. in gyrum torquere It signifieth with us an Officer of the Kings appointed to examine all Tunnes Hogsheads Pipes Barrels and Tercians of Wine Oil Honey Butter and to give them a mark of allowance before they be sold in any place And because this mark is a circle made with an iron Instrument for that purpose It seemeth that from thence he taketh his name Of this Office you may find many Statutes the first whereof is anno 27 Ed. 3. commonly called the Statute of provision or Purveyours cap. 8. GE Geld signifieth with the